UP Political Law Reviewer

LABOR LAW REVIEWER
POLITICAL LAW 2010
CONSTITUTIONAL
LAW I
CONSTITUTIONAL
LAW II
PUBLIC
INTERNATIONAL LAW
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owned jointly by the University of the Philippines College of
Law, the Faculty Editor and the Student Editorial Team.
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Philippines College of Law. No part of this book shall be
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College of Law.
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ADMINISTRATIVE
LAW
ELECTION LAW
LAW ON
PUBLIC OFFICERS
LOCAL
GOVERNMENT LAW
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 1
Table of Contents
Chapter I. The State .................................................3
I.
Territory .......................................................3
A.
1987 Const., Art. I ...................................3
B.
Treaty of Paris, Art. III .............................3
C.
Archipelagic Doctrine ..............................4
II.
People..........................................................4
A.
Definition .................................................4
B.
Citizenship ..............................................4
III.
Sovereignty..................................................6
A.
Kinds .......................................................6
B.
Theory of Auto-Limitation ........................6
C.
Dominium v Imperium ........................6
D.
Jurisdiction ..............................................6
E.
Suits Against the State and the Doctrine
of Sovereign Immunity......................................7
IV. Government .................................................8
A.
Definition .................................................8
B.
Functions ................................................8
C.
Doctrine of Parens Patriae ......................8
D.
De Jure and De Facto Governments.......9
Chapter II. Structure and Powers of Government
Separation of Powers ............................................10
I.
Legislative Department ..............................10
A.
Nature and Classification of Legislative
Power .............................................................10
B.
Composition, Qualifications and Term of
Office10
C.
Election .................................................11
D.
Salaries, Privileges and Disqualifications
12
E.
Internal Government of Congress .........13
F.
Electoral Tribunals ................................14
G.
Commission on Appointments ..............15
H.
Powers of Congress..............................16
II.
Judiciary.....................................................21
A.
In General .............................................21
B.
Supreme Court......................................23
C.
Judicial and Bar Council........................25
III.
Executive ...................................................25
A.
The President........................................25
B.
Vice President.......................................41
IV. Constitutional Commissions.......................42
A.
Common Provisions ..............................42
B.
Civil Service Commission......................42
C.
Commission on Elections......................43
D.
Commission on Audit ............................44
V.
Constitutionally-Mandated Bodies .............44
A.
Sandiganbayan .....................................44
B.
Ombudsman .........................................44
C.
Commission on Human Rights..............45
Chapter III. National Economy and Patrimony.....46
I.
General Principles .....................................46
A.
Goals.....................................................46
B.
Citizenship Requirements .....................46
C.
Filipino First...........................................46
II.
Natural Resources .....................................46
A.
Regalian Doctrine [Jura Regalia] ..........46
B.
Exploration, Development, and Utilization

47
C.
Stewardship Concept ............................48
III.
Private Lands .............................................48
A.
General Rule .........................................48
B.
Exceptions.............................................48
IV. Monopolies.................................................48
V.
Central Monetary Authority ........................48
Chapter IV. Current Events and Special Topics ..49
I.
Party-List System.......................................49
II.
Question Hour v. Inquiries In Aid of
Legislation ...........................................................51
III.
Executive Privilege................................51
IV. Peoples Initiative .......................................52
V.
Right of Reply ............................................53
VI. The (Erstwhile) Province of Shariff
Kabunsuan ..........................................................53
VII.
MOA on Ancestral Domain (MOA-AD) ..54
CONSTITUTIONAL LAW II
Table of Contents
Chapter I. Bill of Rights .................................58
I.
In General ...........................................58
II.
Bases and Purpose.............................59
A. Bases: .............................................59
III. Accountability ......................................59
Chapter II. Fundamental Powers ..................60
of the State......................................................60
I.
Police Power .......................................60
A. Definition .........................................60
II.
Eminent Domain..................................63
A. Definition .........................................63
B. Who May Exercise..........................63
C. Requisites .......................................64
III. Taxation ..............................................65
A. Definition and Scope.......................65
B. Who May Exercise.........................65
C. Limitations.......................................65
D. Double Taxation..............................66
Chapter III. Due Process................................67
I.
In General ...........................................67
II.
Substantive Due Process....................67
A. Scope..............................................68
B. Requisites .......................................68
C. Doctrines.........................................68
III. Procedural Due Process .....................69
A. Scope..............................................69
B. Kinds ...............................................69
IV. Due Process As Limitation On
Fundamental State Powers .........................70
A. Vis--vis Police Power ....................70
B. Vis--vis Eminent Domain ..............70
C. Vis--vis Power to Tax....................71
Chapter IV. Equal Protection of the Laws....72
I.
Definition and Scope of Protection......72
II.
Requisites of Valid Classification ........72
III. Examples of Valid Classification .........72
A. Aliens ..............................................72
B. Filipino Female Domestics Working
Abroad .....................................................73
C. Land-based vs. Sea-based Filipino
Overseas Workers...................................73
D. Qualification for Elective Office.......73
E. Office of the Ombudsman...............73
F.
Print vs. Broadcast Media...............73
IV. Standards of Judicial Review..............73
A. Rational Basis Test ......................73
B. Strict Scrutiny Test .......................73
C. Intensified Means Test .................73
Chapter V. Requirements for Fair Procedure
.........................................................................74
I.
II.
Nature and Scope ............................... 74

ARREST.............................................. 74
A. Requisites for Issuance of a Valid
Arrest Warrant ......................................... 74
B. Requisites of a Valid Warrantless
Arrest (Rule 113, Sec. 5, Rules on Criminal
Procedure)............................................... 75
III. SEARCH AND SEIZURE.................... 77
IV. Detention/Custodial Investigation ....... 80
A. Rights under Custodial Investigation
80
B. Tests of Waiver of Miranda Rights . 83
V. Protocol After Conduct Of Investigation
84
VI. Other Rights Guaranteed Under Art. III.
Sec. 12......................................................... 84
VII.
Exclusionary Rules ......................... 84
VIII.
Right to Bail .................................... 86
Chapter VI. Rights of the Accused ............... 88
II.
Rights Post Trial.................................. 91
Chapter VII. Writs ........................................... 94
I.
HABEAS CORPUS ............................. 94
II.
WRIT OF AMPARO ............................ 96
III. WRIT OF HABEAS DATA................... 96
Chapter VIII. Privacy of Communication and
Correspondence ............................................ 99
I.
Intrusion, When Allowed ..................... 99
II.
Forms of Correspondence Covered ... 99
III. ENABLING LAW ................................. 99
Chapter IX. Freedom of Expression ........... 101
I.
Basis,
Components,
Scope
and
Limitations.................................................. 101
II.
CONTENT-BASED RESTRICTIONS103
IV. CONTENT-NEUTRAL RESTRICTIONS
106
Chapter X. Freedom of Religion ................. 109
I.
Non-establishment Clause................ 109
II.
Free Exercise Clause........................ 110
III. Tests ................................................. 111
Chapter XI. Liberty of Abode and Travel ... 112
I.
Liberty of Abode................................ 112
II.
Right to Travel................................... 112
III. Right to Return to Ones Country...... 112
Chapter XII. RA 9372: Human Security Act*
....................................................................... 113
Chapter XIII. Latest Cases........................... 119
PUBLIC INTERNATIONAL LAW

Table of Contents
Chapter I. Preliminaries ...............................124
I.
Public International Law (PIL) ...........124
II.
Contra-Distinctions............................124
III. Relationship between PIL and Municipal
Law 125
A. Monist View...................................125
B. Dualist View ..................................125
C. Monist-Naturalist View ..................125
D. Coordinationist View .....................125
IV. The Philippine Doctrine .....................125
A. Doctrine of Incorporation ..............125
B. Doctrine of Transformation ...........125
Chapter II. Actors of International Law ......126
I.
Subjects and Objects of International
Law 126
A. States............................................126
B. Individuals .....................................128
C. International Organizations (IO)....128
Chapter III. The Norms of International Law
.......................................................................129
I.
Concepts ...........................................129
II.
Sources of International Law ............129
A. Treaty as Source of Law...............129
B. Customary International Law ........129
C. General Principle of Law...............131
D. Subsidiary Source: Judicial Decisions
132
E. Subsidiary Source: Publicists .......132
F.
Other Sources...............................132
III. Status of Norms ................................132
A. Jus Cogens or Peremptory Norms132
B. Erga Omnes Norms ......................132
Chapter IV. The Law of Treaties .................133
I.
Definition ...........................................133
II.
Requisites for Validity........................133
A. Treaty Making Capacity ................133
B. Competence
of
the
Representative/Organ Making the Treaty
133
C. Parties Must Freely Give Consent 133
D. Object and Subject Matter Must be
Lawful ....................................................133
E. Ratification in Accordance with the
Constitutional Process of the Parties
Concerned .............................................133
III. The Treaty-Making Process ..............133
A. Negotiation....................................133
B. Adoption (Article 9, VCLOT) .........133
C. Authentication of the Text (Article 10,
VCLOT) .................................................134
D. Expression of Consent to be bound

by the Treaty (Article 11, VCLOT)......... 134
E. Registration with the UN............... 135
IV. Philippine Law................................... 135
V. Amendment or Modification of Treaty
135
VI. Reservations ..................................... 135
VII.
Invalid Treaties ............................. 135
VIII.
Grounds for Termination............... 135
Chapter V. International Responsibility..... 137
I.
Breach............................................... 137
A. Is Fault or Malice Necessary? ...... 137
B. The Standard of Diligence ............ 137
II.
Attribution .......................................... 137
A. Direct and Indirect Attribution ....... 138
B. Conduct Attributable to the State . 138
III. Consequences of State Responsibility
138
A. Duty to Make Reparation.............. 138
B. Forms of Reparation..................... 138
IV. Circumstances Precluding Wrongfulness
139
V. Diplomatic Protection (Espousal of
Claim) ....................................................... 139
A. Material Dates............................... 140
B. Exhaustion of Local Remedies ..... 140
Chapter VI. Sovereignty and Jurisdiction . 141
I.
Sovereignty ....................................... 141
A. Characteristics .............................. 141
B. Sovereign Equality of States ........ 141
C. Corollaries..................................... 141
II.
Jurisdiction ........................................ 141
A. Criminal Jurisdiction ..................... 141
B. Reserved Domain of Domestic
Jurisdiction ............................................ 141
C. Doctrine of State Immunity ........... 141
Chapter VII. The Law of the Sea ................. 143
I.
Concepts ........................................... 143
A. Distinguished from Maritime or
Admiralty Law........................................ 143
B. Baseline ........................................ 143
II.
Waters............................................... 143
A. Internal Waters ............................. 144
B. Territorial Waters .......................... 144
C. Contiguous Zone .......................... 144
D. Exclusive Economic Zone ............ 144
E. High Seas ..................................... 145
III. Archipelagic State ............................. 146
IV. Continental Shelf............................... 146
A. Limits of the Continental Shelf...... 148
B. Rights of the Coastal State over the

Continental Shelf ...................................148
C. Rights with Respect to Continental
Shelf vs. EEZ.........................................148
V. Settlement of Disputes ......................149
A. Peaceful Settlement of Disputes ..149
B. Compulsory Settlement of Disputes
149
C. Jurisdiction of Court or Tribunal....149
D. Composition of the International
Tribunal for the Law of the Sea (ITLOS)149
E. Jurisdiction of ITLOS ....................149
F.
Applicable Laws in Settlement of
Disputes by the ITLOS ..........................149
Chapter VIII. The Use of Force in
International Law..........................................150
I.
Jus Ad Bellum v Jus in Bello .............150
II.
Rules on the Use of Force ................150
A. General Rule.................................150
B. Exceptions ....................................150
Chapter IX. International Human Rights Law
.......................................................................152
I.
Definition of Human Rights ...............152
II.
Classification of Human Rights .........152
III. Internationalization of Human Rights
152
IV. Sources of Human Rights .................152
A. Convention....................................152
B. Custom..........................................152
V. International Bill of Human Rights.....153
A. Universal Declaration of Human
Rights (UDHR).......................................153
B. International Covenant on Civil and
Political Rights (ICCPR) ........................153
C. International Covenant on Economic,
Social and Cultural Rights (ICESCR) ....154
D. Common Provisions in the ICCPR
and the ICESCR and differences ..........154
VI. Specific Norms in Human Rights ......154
A. Genocide.......................................154
B. Torture ..........................................155
C. Rights of the Child ........................155
D. Law against Discrimination ...........155
E. Refugee Law.................................156
Chapter X. International Humanitarian Law
.......................................................................157
I.
Definition of Armed Conflict ............157
II.
Fundamental Principles of IHL..........157
III. Application of IHL ..............................158
IV. The Four Geneva Conventions and the
Two Additional Protocols ...........................158
V. Application of the Four Geneva
Conventions
and the Two Additional
Protocols ....................................................158
VI. Definition of Concepts and Phrases..159
A. Combatants...................................159
B. Hors de combat ............................ 159

C. Protected Persons ........................ 159
D. Martens clause ............................. 159
E. Military Objective .......................... 159
F.
Belligerency Status ....................... 159
VII.
IHL
and
Weapons
of
Mass
Destruction................................................. 160
VIII.
IHL and Non-International Armed
Conflict 160
A. Common Article 3 and Protocol II. 160
B. Control-of-Territory ....................... 161
C. War of National Liberation ............ 161
IX. Neutrality ........................................... 161
X. Protective Emblems .......................... 161
A. Who May Use ............................... 162
B. Misuse of the Emblem .................. 162
C. Punishment................................... 162
XI. The International Criminal Court ....... 162
A. Crimes within the Courts Jurisdiction
162
B. Modes of Incurring Criminal Liability
163
C. Sources of Law ............................. 163
D. Other Key Concepts ..................... 163
E. Landmark Cases .......................... 163
Chapter XI. Diplomatic Intercourse ............ 165
I.
Agents of Diplomatic Intercourse...... 165
A. Head of State................................ 165
B. The Foreign Office........................ 165
C. The Diplomatic Corps ................... 165
II.
Functions and Duties ........................ 165
III. Diplomatic Immunities and Privileges165
A. Personal Inviolability..................... 165
B. Inviolability of Premises and Archives
166
C. Right of Official Communication ... 166
D. Immunity from Local Jurisdiction .. 166
E. Exemption from Taxes and Customs
Duties .................................................... 166
IV. Consular Relations............................ 167
A. Ranks............................................ 167
B. Necessary Documents ................. 167
C. Immunities and Privileges............. 167
Chapter XII. Recent International Law Issues
in Philippine Law.......................................... 168
I.
Daniel Smith and the Visiting Forces
Agreement ................................................. 168
II.
The Constitutionality of the Baselines
Law 169
III. VIOLENCE AGAINST WOMEN (VAW)
AS A FORM OF TORTURE ...................... 169
Appendix 1 - Straight and Normal Baselines
....................................................................... 171
Appendix 2 - Continental Shelf and the
Maritime Zones............................................. 171
ADMINISTRATIVE LAW
Table of Contents
Chapter I. Preliminary Considerations.......174
A. Definitions .........................................174
B. Historical Considerations ..................174
C. Modes of Creation of Administrative
Agencies ....................................................174
D. When is an agency administrative? ..174
E. Types of Administrative Agencies .....174
Chapter II. Powers of Administrative
Agencies .......................................................174
A. Quasi-Legislative (Rule-making) Powers
174
1.
Definition .......................................174
2.
Non-delegation doctrine................174
3.
Legislative Delegation...................174
B. Quasi-Judicial (Adjudicatory) Powers174
C. Determinative Powers .......................174
Chapter III. Judicial Review and Enforcement
of Agency Action..........................................174
A. Considerations ..................................174
1.
Basis .............................................174
2.
Factors to Consider in Judicial
Review: ..................................................174
3.
The doctrines of forum shopping, litis
pendentia and res judicata also apply to
administrative agencies. ........................174
4.
General Rule.................................174
5.
Exceptions ....................................174
6.
When judicial review is valid despite
finality of administrative decisions: ........174
7.
Availability
of
Judicial
Review
depends on:...........................................174
B. Four Important Doctrines in Judicial
Review .......................................................174
1.
Doctrine of Primary Jurisdiction or
Preliminary Resort .................................174
2.
Doctrine
of
Exhaustion
of
Administrative Remedies.......................174
3.
Doctrine of Qualified Political Agency
174
4.
Ripeness .......................................174
C. Extent of Judicial Review ..................174
1.
General Rule.................................174
2.
General Principles ........................174
3.
Law-fact Distinction.......................174
4.
Question of Law............................174
5.
Question of Fact ...........................174
6.
Question of Discretion ..................174
D. Modes of Judicial Review..................174
1.
Certiorari .......................................174
2.
Prohibition .....................................174
3.
Mandamus ....................................174
4.
Declaratory Relief .........................174
5.
6.
7.
8.
Habeas Corpus............................. 174

Writ of Amparo.............................. 174
Habeas Data................................. 174
Injunction as Provisional Remedy 174
E. Enforcement of Agency Action ......... 174
1.
Res Judicata; Finality of Judgment
174
2.
Writ of Execution; Mandamus....... 174
ELECTION LAW
Table of Contents
Chapter I. General Principles ......................198
A. Definitions .........................................198
1.
Suffrage ........................................198
2.
Scope............................................198
B. Constitutional Mandate on Congress 199
C. Election Period ..................................199
Chapter II. COMELEC...................................200
A. Composition ......................................200
B. Qualifications.....................................200
C. Powers and Functions.......................200
1.
Constitutional powers and functions
[Art. IX-C, Sec. 2]...................................200
2.
Statutory powers ...........................201
D. Rendition of Decision ........................201
1.
Composition ..................................201
2.
Time Period and Votes Required .202
3.
COMELEC decisions reviewable by
the Supreme Court ................................202
E. Measures Designed for COMELECs
Independence ............................................202
Chapter III. Voters: Qualification and
Registration ..................................................203
A. Qualifications.....................................203
B. Registration of Voters........................203
1.
Definition .......................................203
2.
System of Continuing Registration of
Voters ....................................................204
3.
Illiterate or disabled voters............204
4.
Election Registration Board ..........204
5.
Change of residence or address ..204
6.
Challenges to right to register.......204
7.
Deactivation of Registration..........205
8.
Reactivation of Registration..........205
9.
Certified List of Voters ..................205
C. Inclusion and Exclusion Proceedings205
D. Annulment of Book of Voters ............205
E. Overseas Absentee Voter .................206
1.
Definitions .....................................206
2.
Coverage ......................................206
3.
Qualifications ................................206
4.
Disqualifications ............................206
5.
Personal
Overseas
Absentee
Registration ...........................................206
6.
Inclusion and Exclusion Proceedings
206
7.
National Registry of Overseas
Absentee Voters ....................................206
Chapter IV. Pre-Election Requirements .....207
A. Certificates of Candidacy ..................207
1.
Candidate, Definition ....................207
2. Qualifications .....................................207
3.
Disqualifications............................ 207
4.
Filing and withdrawal of certificate of
candidacy .............................................. 208
5.
Effect of filing certificate of candidacy
209
6.
Substitution of Candidates............ 209
7.
Duty of COMELEC ....................... 209
8.
Petition to declare a duly registered
candidate as a nuisance candidate....... 209
9.
Petition to Deny Due Course or to
Cancel Certificate .................................. 210
10.
Effect of disqualification case... 210
B. Registration of Political Parties ......... 210
1.
Party System ................................ 210
2.
Definitions ..................................... 210
3.
Purpose ........................................ 211
4.
Procedure for Registration............ 211
5.
Who May Not be Registered ........ 211
6.
Grounds
for
refusal
and/or
cancellation of registration .................... 211
7.
Parameters in Allocation of Seats for
Party-List Representatives .................... 212
8.
Effect of Change of Affiliation... 212
9.
Nomination
of
Party-List
Representative ...................................... 212
C. Party-list and District Representatives
Distinguished ............................................. 213
Chapter
V.
Election
Campaign
and
Expenditures ................................................ 214
A. Election Campaign............................ 214
1.
Election Campaign or Partisan
Political Activity...................................... 214
2.
Campaign Period .......................... 214
3.
Lawful Election Propaganda......... 215
4.
Prohibited Acts ............................. 215
5.
Equal Access to Media Time and
Space .................................................... 215
7.
Election Surveys ........................... 216
8.
Application for Rallies, Meetings and
Other Political Activity............................ 216
B. Election Contributions and Expenditures
216
1.
Definitions ..................................... 216
2.
Prohibited Contributions ............... 217
3.
Prohibited Fund-raising Activities . 217
4.
Limitations on Expenses............... 217
5.
Statement of Contributions and
Expenses............................................... 217
6.
Requisites of a Prohibited Donation
218
Chapter VI. Election Proper ........................ 219
A. In General ......................................... 219
1.
2.
3.
4.
What Constitutes an Election........219

Failure of Elections .......................219
Postponement of Elections ...........219
Special Elections ..........................220
B. Board of Election Inspectors .............220
C. Casting of Votes................................220
1.
Voting Hours .................................220
2.
Voting............................................220
3.
Challenge of Illegal Voters............220
4.
Challenge based on certain illegal
acts 220
D. Counting of Votes..............................220
1.
Counting Proper............................220
2.
Election Returns ...........................220
E. Canvassing of Votes .........................220
1.
Definitions .....................................220
2.
Composition of Board of Canvassers
220
3.
Prohibitions on BOC .....................220
4.
Canvass by the BOC ....................220
5.
Certificate of Canvass and Statement
of Votes .................................................220
6.
Proclamation .................................220
Chapter VII. Modes of Challenging Candidacy
and Election Results....................................220
A. Cancellation of Certificate of Candidacy
220
1.
Grounds ........................................220
2. Nature of Proceedings.......................220
3.
Procedure .....................................220
B. Pre-Proclamation Controversies .......220
1.
Jurisdiction ....................................220
2.
When Not Allowed ........................220
3.
Nature of Proceedings ..................220
4.
Issues That May Be Raised..........220
5.
Issues That Cannot Be Raised .....220
6.
Procedure .....................................220
7.
Effect of Filing of Pre-Proclamation
Controversy ...........................................220
8.
Effect of Proclamation of Winning
Candidate ..............................................220
9.
Petition to Annul or Suspend
Proclamation..........................................220
10.
Declaration of Failure of Election
220
C. Disqualification Cases.......................220
1.
Procedure .....................................220
2. Effect .................................................220
Chapter VIII. Election Offenses...................220
A. Jurisdiction over Election Offenses...220
B. Prosecution of Election Offenses......220
C. Preferential Disposition of Election
Offenses.....................................................220
D. Election Offenses ..............................220
1.
Registration...................................220
2.
Certificate of Candidacy................220
3.
Election Campaign........................220
4.
5.
6.
7.
Voting............................................ 220
Counting of Votes ......................... 220
Canvassing ................................... 220
Acts of Government or Public Officers
220
8.
Coercion, Intimidation, Violence ... 220
9.
Other Prohibitions ......................... 220
10.
Penalties................................... 220
E. Arrests in Connection with Election
Campaign .................................................. 220
F.
Prescription ....................................... 220
G. Prohibited Acts Under R.A. 9369 ...... 220
LAW ON PUBLIC OFFICERS

Table of Contents
Chapter I. Public Office and Officers .........234
A. Public Office ......................................234
1.
Definition .......................................234
2.
Purpose.........................................234
3.
Nature ...........................................234
4.
Elements .......................................234
5.
Public Office v. Public Employment
234
6.
Public Office v. Public Contract ....234
7.
No vested right to public office. ....234
8.
Public Office is not Property. ........234
9.
Creation of Public Office ...............234
10.
Methods of Organizing Public
Offices 234
11.
Modification and Abolition of Public
Office 234
12.
Estoppel in Denying Existence of
Office 234
B. Public Officer.....................................234
1.
Definition .......................................234
2.
A Person Cannot be Compelled to
Accept a Public Office. ..........................234
3.
Public Officers Power is Delegated
(not Presumed)......................................234
C. Classification of Public Offices and
Public Officers............................................234
D. De Facto Officers ..............................234
1.
De Facto Doctrine.........................234
2.
De Facto Officer Defined ..............234
3.
Elements of a De Facto Officership
234
4.
Office
created
under
an
unconstitutional statute..........................234
5.
Legal Effect of Acts of De Facto
Officers ..................................................234
6.
Liabilities of De Facto Officers ......234
7.
Right to Compensation of De Facto
Officer ....................................................234
Chapter II. Eligibility and Qualifications ....234
A. Definition ...........................................234
B. Power to Prescribe Qualifications .....234
C. Time of Possession of Qualifications 234
D. Eligibility is Presumed .......................234
E. Qualifications
Prescribed
By
Constitution ................................................234
F.
Religious Test or Qualification is not
Required ....................................................234
G. Disqualifications to Hold Public Office
234
Chapter III. Formation of Official Relation .234
A. Modes of Commencing Official Relation
234
B.
C.
Election ............................................. 234

Appointment...................................... 234
1.
Definition....................................... 234
2.
Nature of Power to Appoint .......... 234
3.
Classification of Appointments ..... 234
4.
Steps in Appointing Process......... 234
5.
Presidential Appointees................ 234
D. Qualification
Standards
and
Requirements under the Civil Service Law234
1.
Qualification Standards ................ 234
2.
Political Qualifications for an Office
234
3.
No Property Qualifications............ 234
4.
Citizenship .................................... 234
5.
Effect of Removal of Qualifications
During the Term .................................... 234
6.
Effect
of
Pardon
upon
the
Disqualification to Hold Public Office .... 234
E. Discretion of Appointing Official ........ 234
F.
Effectivity of Appointment ................. 234
G. Effects of a Complete, Final and
Irrevocable Appointment............................ 234
H. Civil Service Commissions (CSCs)
Jurisdiction................................................. 234
I.
Appointments to the Civil Service ..... 234
LOCAL GOVERNMENT LAW

Table of Contents
Chapter I. Basic Principles..........................258
I.
Nature and Status .............................258
A. Definition .......................................258
B. Dual Nature...................................258
II.
Principles of Local Government Law 259
A. State
Policy,
Principles
of
Decentralization.....................................259
B. Local Autonomy ............................259
C. Decentralization ............................259
C. Devolution .....................................260
III. The Local Government Code ............260
A. Effectivity.......................................260
B. Scope............................................260
C. Rules of Interpretation ..................260
Chapter II. Creation and Dissolution of LGUs
.......................................................................261
I.
Creation.............................................261
A. General Provisions .......................261
B. Specific Requirements..................261
C. Authority to Create Local Government
Units 262
D. Creation and Conversion of LGUs 263
E. Plebiscite.......................................264
F.
Beginning of Corporate Existence 264
II.
Division and Merger; Abolition ..........266
A. Division and Merger ......................266
B. Abolition ........................................266
III.
Settlement of Boundary Disputes .267
A. Jurisdictional
Responsibility
for
Settlement of Boundary Dispute............267
B. Appeal...........................................267
C. Maintenance of the Status Quo ....267
Chapter III.
General
Powers
and
Attributes of LGUs .......................................268
I.
Powers in General ...............................268
A. Sources of Powers of LGUs..............268
B. Classification of Powers of LGUs......268
C. Execution of Powers .........................268
II.
Political and Corporate Nature of LGUs
268
III.
Governmental Powers ....................269
A. General Welfare ................................269
1.
Police Power .................................269
2.
Limitations.....................................270
3.
Abatement of Nuisance ................271
4.
Closure of Roads ..........................271
B. Power to Generate Revenue ............272
C. Eminent Domain................................273
D. Basic Services and Facilities ............275
E. Reclassification of Lands ..................276
F.
Corporate Powers .............................277
G. Local Legislative Power ....................278
Chapter IV. Local Initiative and Referendum

....................................................................... 283
A. Definition ........................................... 283
B. Requirements.................................... 283
C. Procedure ......................................... 283
D. Effectivity of Local Propositions ........ 283
E. Limitations on Initiatives.................... 283
F.
Limitations Upon Local Legislative
Bodies ........................................................ 284
Chapter V. Municipal Liability..................... 285
A. Specific Provisions making LGUs Liable
285
B. Liability for Torts, Violation of the Law
and Contracts ............................................ 285
C. Personal Liability of Public Official.... 286
Chapter VI. Intergovernmental Relations
National Government and LGUs................. 287
I.
Executive Supervision....................... 287
A. 1987 Constitution, Art. X, Sec. 2 and
4
287
B. Administrative Code of 1987, Title XII
Chapter I................................................ 287
II.
Consultations .................................... 288
LGC Sec. 2(c), 26, 27 ........................... 288
A. Declaration of Policy..................... 288
B. Maintenance of Ecological Balance
288
C. Prior Consultation ......................... 288
III.
Relations with Philippine National
Police 289
LGC, Sec. 28 ........................................ 289
IV.
Other Relations............................. 290
A. Inter-local Relations ...................... 290
B. Relations with Non-Governmental
organizations ......................................... 290
Chapter VII. Local Officials ......................... 291
I.
Elective Local Officials ....................... 291
A. Qualifications .................................... 291
B. Disqualifications ...............................292`
C. Manner of Election ............................ 294
D. Term of Office ................................... 294
E. Rules on Succession ........................ 296
F.
Recall ................................................ 299
G. Discipline........................................... 300
1.
Administrative Action .................... 300
2.
Penalties ....................................... 302
3.
Power of Tribunals........................ 303
II.
Appointive Officials............................. 304
A. Appointments .................................... 304
B. Discipline........................................... 306
C. Removal ............................................ 306
D. Officials Common to All Municipalities,

Cities and Provinces ..................................306
III.
Provisions Applicable to Elective and
Appointive Officials .....................................307
A. Prohibited Interests ...........................307
LGC Sec. 89 ..............................................307
B. Practice of Profession .......................307
C. Prohibition against Appointment .......307
IV. Local Boards and Councils ................307
A. Local School Board ...........................307
B. Local Health Board............................307
C. Local Development Council ..............307
D. Local Peace and Order Council ........307
Chapter VIII. Local Government Units .......307
A. The Barangay....................................307
1.
Katarungang Pambarangay..........307
2.
Sangguniang Kabataan ................307
B. The Municipality ................................307
C. The City .............................................307
D. The Province .....................................307
Chapter IX. Miscellaneous and Final
Provisions .....................................................307
A. Posting and Publication of Ordinances
with Penal Sanctions .................................307
B. Penalties
for
Violation
of
Tax
Ordinances.................................................307
C. Provisions for Implementation...........307
Chapter
X.
Application of LGC to
Autonomous Regions and Other Entities..307
I.
The Autonomous Region in Muslim
Mindanao ...................................................307
II.
Cordillera Administrative Region.......307
III. The Metropolitan Manila Development
Authority.....................................................307
TABLE of CONTENTS
CONSTITUTIONAL LAW 1
Table of Contents
Chapter I. The State .................................................3
I.
Territory .......................................................3
A.
1987 Const., Art. I ...................................3
B.
Treaty of Paris, Art. III .............................3
C.
Archipelagic Doctrine ..............................4
II.
People..........................................................4
A.
Definition .................................................4
B.
Citizenship ..............................................4
III.
Sovereignty..................................................6
A.
Kinds .......................................................6
B.
Theory of Auto-Limitation ........................6
C.
Dominium v Imperium ........................6
D.
Jurisdiction ..............................................6
E.
Suits Against the State and the Doctrine
of Sovereign Immunity......................................7
IV. Government .................................................8
A.
Definition .................................................8
B.
Functions ................................................8
C.
Doctrine of Parens Patriae ......................8
D.
De Jure and De Facto Governments.......9
Chapter II. Structure and Powers of Government
Separation of Powers ............................................10
I.
Legislative Department ..............................10
A.
Nature and Classification of Legislative
Power .............................................................10
B.
Composition, Qualifications and Term of
Office10
C.
Election .................................................11
D.
Salaries, Privileges and Disqualifications
12
E.
Internal Government of Congress .........13
F.
Electoral Tribunals ................................14
G.
Commission on Appointments ..............15
H.
Powers of Congress..............................16
II.
Judiciary.....................................................21
A.
In General .............................................21
B.
Supreme Court......................................23
C.
Judicial and Bar Council........................25
III.
Executive ...................................................25
A.
The President........................................25
B.
Vice President.......................................41
IV. Constitutional Commissions.......................42
A.
Common Provisions ..............................42
B.
Civil Service Commission......................42
C.
Commission on Elections......................43
D.
Commission on Audit ............................44
V.
Constitutionally-Mandated Bodies .............44
A.
Sandiganbayan .....................................44
B.
Ombudsman .........................................44
C.
Commission on Human Rights..............45
Chapter III. National Economy and Patrimony.....46
I.
General Principles .....................................46
A.
Goals.....................................................46
B.
Citizenship Requirements .....................46
C.
Filipino First...........................................46
II.
Natural Resources .....................................46
A.
Regalian Doctrine [Jura Regalia] ..........46
B.
Exploration, Development, and Utilization

47
C.
Stewardship Concept ............................48
III.
Private Lands .............................................48
A.
General Rule .........................................48
B.
Exceptions.............................................48
IV. Monopolies.................................................48
V.
Central Monetary Authority ........................48
Chapter IV. Current Events and Special Topics ..49
I.
Party-List System.......................................49
II.
Question Hour v. Inquiries In Aid of
Legislation ...........................................................51
III.
Executive Privilege................................51
IV. Peoples Initiative .......................................52
V.
Right of Reply ............................................53
VI. The (Erstwhile) Province of Shariff
Kabunsuan ..........................................................53
VII.
MOA on Ancestral Domain (MOA-AD) ..54
2
CONSTITUTIONAL LAW I
Dean Marvic MVF Leonen

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Head
Chapter I. The State

I.
II.
III.
IV.
I.
TERRITORY
A. 1987 CONSTITUTION, ART.
RT. I
B. TREATY OF PARIS
C. ARCHIPELAGIC DOCTRINE
DOCTRIN
PEOPLE
A. DEFINITIONS
B. CITIZENSHIP
SOVEREIGNTY
A. KINDS
B. THEORY OF AUTO-LIMITATION
LIMITATION
C. DOMINIUM V. IMPERIUM
D. JURISDICTION
E. SUITS AGAINST THE STATE
ST
AND THE
DOCTRINE OF SOVEREIGN
SOVEREIG IMMUNITY
GOVERNMENT
A. DEFINITION
B. FUNCTIONS
C. DOCTRINE OF PARENS PATRIAE
D. DE JURE AND DE FACTO GOVERNMENTS
Territory
(Asked 7 times in the Bar)
A. 1987 Const., Art. I

SCOPE OF THE NATIONAL TERRITORY AS
DEFINED IN THE CONSTITUTION
1) Philippine archipelago
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
B. Treaty of Paris, Art. III

Spain cedes to the United States the archipelago
known as the Philippines Islands, and comprehending
the islands lying within the following line xxx
Loraine Mendoza Faye Celso

Mary Mendoza Joie Bajo
Members
*Image taken from:

http://media.photobucket.com/image/philippine%20map%20image%2
0international%20law/jibrael_2007/Jibrael%202008/map1_rpterritory.j
pg
3
CONSTITUTIONAL LAW I TEAM
Chapter I. THE STATE
C. Archipelagic Doctrine
Elements:
1. Internal waters waters around, between and
connecting the islands of the archipelago
2. Straight baseline method consists of drawing
straight lines connecting appropriate points on
the coast without departing to any appreciable
extent from the general direction of the coast,
in order to delineate the internal waters from the
territorial waters of an archipelago
Refer to PIL, Chap. 12, II for further discussion
on Baselines

The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to
such limitations as may be provided by law. (Sec 7,
Art III)
As an element of a state, people means a
community of persons adequate in number for selfsufficiency and defense, and also capable of
maintaining the continued existence of the
community and held together by a common bond of
law. (BERNAS)
II. People
B. Citizenship
A. Definition
The term assumes three different meanings,
depending on the context in which it is used:
(NACHURA)
1.

1.
Inhabitants, as used in:

i.
The right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures
of whatever nature and for any purpose shall
be inviolable x x x (Sec 2, Art III)
ii.
The right of an individual to be

secure in his person is guaranteed
by the Constitution. The same is
declared a popular right of the
people and indisputably applies to
both citizens and foreigners in this
country. [Qua Chee Gan vs
Deportation Board (1963)]
ARTICLE IV, Section 1 (3), 1987 Constitution is

also applicable to those who are born to Filipino
mothers and elected Philippine citizenship before
February 2, 1987.
This is to correct the anomalous situation
where one born of a Filipino father and an alien
mother was automatically granted the status of a
natural-born citizen, while one born of a Filipino
mother and an alien father would still have to
elect Philippine citizenship. [Co v. Electoral
Tribunal of the House of Representatives (1991)]
Civilian authority is, at all times, supreme

over the military. The Armed Forces of the
Philippines is the protector of the people
and the State. Its goal is to secure the
sovereignty of the State and the integrity of
the national territory. (Sec 3, Art II)
2.
Electors, as used in:

i. The President and the Vice-President shall
be elected by direct vote of the people
(Sec 4, Art VII)
3.
Citizens, as used in:

i. We, the sovereign Filipino people
(Preamble)
ii. The Philippines is a democratic and
republican State. Sovereignty resides in
the people and all government authority
emanates from them. (Sec 1, Art II)
iii. The prime duty of the Government is to
serve and protect the people.
The
Government may call upon the people to
defend the State and, in the fulfillment
thereof, all citizens may be required, under
conditions provided by law, to render
personal military, or civil service. (Sec 4, Art
II)
Who are citizens?

i. Citizens of the Philippines at the time of the
adoption of this Constitution;
ii. Those whose fathers or mothers are citizens
of the Philippines;
iii. 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
iv. Those naturalized in accordance with law.
2.
Natural-born
i. citizens of the Philippines from birth without
having to perform any act to acquire or
perfect their Philippine citizenship; and
ii. those who elect Philippine citizenship in
accordance with ARTICLE IV, Section 1 (3)
The term "natural-born citizens," is

defined to include "those who are
citizens of the Philippines from birth
without having to perform any act to
acquire or perfect their Philippine
citizenship." [Tecson vs COMELEC
(2004)]
Only two, i.e., jus soli and jus sanguinis, could

qualify a person to being a "natural-born" citizen
of the Philippines. Jus soli, per Roa vs. Collector
of Customs (1912), did not last long. With the
adoption of the 1935 Constitution and the
4
reversal of Roa in Tan Chong vs. Secretary of

Labor (1947), jus sanguinis or blood
relationship would now become the primary
basis of citizenship by birth.
3.
4.

5.
Who must be Natural-Born?

i. President (Sec. 2, Art VII)
ii. Vice-President (Sec. 3, Art VII)
iii. Members of Congress (Secs. 3 and 6, Art VI)
iv. Justices of SC and lower collegiate courts
(Sec. 7 (1), Art VIII)
v. Ombudsman and his deputies (Sec. 8, Art
XI)
vi. Members of Constitutional Commissions
vii. CSC (Sec. 1 (1), Art IX B)
viii. COMELEC (Sec. 1 (1) Art IX C)
ix. COA (Sec. 1 (1), Art IX D)
x. Members of the Central Monetary Authority
(Sec. 20, Art XII)
xi. Members of the Commission on Human
Rights (Sec. 17 (2), Art XIII)
ii.
Grounds for Loss of Citizenship

i. Naturalization in a foreign country [Sec.1 (1),
CA 63];
ii. Express renunciation or expatriation [Sec.1
(2), CA 63];
iii. Taking an oath of allegiance to another
country upon reaching the age of majority;
iv. Accepting a commission and serving in the
armed forces of another country, unless
there is an offensive/ defensive pact with the
country, or it maintains armed forces in RP
with RPs consent;
v. Denaturalization;
vi. Being found by final judgment to be a
deserter of the AFP;
vii. Marriage by a Filipino woman to an alien, if
by the laws of her husbands country, she
becomes a citizen thereof.
Expatriation is a constitutional right.

No one can be compelled to remain a
Filipino if he does not want to. [Go
Gullian vs Government]
EXCEPTION: A Filipino may not divest

himself of Philippine citizenship in any
manner while the Republic of the Philippines
is at war with any country. (Sec. 1 (3), Com.
Act No. 63)
Aznar v COMELEC, (1995)
Loss of Philippine citizenship cannot be
presumed. Considering the fact that admittedly,
Osmea was both a Filipino and an American,
the mere fact that he has a certificate stating that
he is an American does not mean that he is not
still a Filipino, since there has been NO
EXPRESS renunciation of his Philippine
citizenship. [Aznar vs COMELEC (1995)]
How may citizenship be reacquired?

i. Naturalization (CA No. 63 and CA No. 473)
now an abbreviated process, no need to

wait for 3 years (1 year for declaration of
intent, and 2 years for the judgment to
become executory)
requirements:
a.) be 21 years of age
b.) be a resident for 6 months
c.) have good moral character
d.) have no disqualification
Naturalization is never final and
may be revoked if one commits acts
of moral turpitude. [Republic vs Guy
(1982)]
Repatriation
Repatriation results in the recovery of
the original nationality. Therefore, if he is
a natural-born citizen before he lost his
citizenship, he will be restored to his
former 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 and
equivocal act. [Frivaldo vs COMELEC
(1989)]
In the absence of any official action or

approval by proper authorities, a mere
application for repatriation does not,
and cannot, amount to an automatic
reacquisition
of
the
applicants
Philippine
citizenship.
[Labo
vs
COMELEC (1989)]
iii. Legislative Act
6.
both a mode of
reacquiring citizenship
acquiring
and
Dual Allegiance
i. aliens who are naturalized as Filipinos but
remain loyal to their country of origin (cite
source)
ii. public officers who, while serving the
government, seek citizenship in another
country (cite source)
disqualified from running for any elective

local position. (Sec 40d, Local Government
Code)
Once a candidate files his candidacy, he is

deemed to have renounced his foreign
citizenship. [Mercado vs Manzano (1999)]
Clearly, in including 5 in Article IV on

citizenship,
the
concern
of
the
Constitutional Commission was not with
dual citizens per se but with naturalized
citizens who maintain their allegiance to
their countries of origin even after their
naturalization. Hence, the phrase dual
5
citizenship in R.A. No. 7160, 40(d) and

in R.A. No. 7854, 20 must be understood
as referring to dual allegiance.
Consequently, persons with mere dual

citizenship do not fall under this
disqualification.
Unlike those with dual
allegiance, who must, therefore, be subject
to strict process with respect to the
termination of their status, for candidates
with dual citizenship, it should suffice if,
upon the filing of their certificates of
candidacy,
they
elect
Philippine
citizenship to terminate their status as
persons with dual citizenship considering
that their condition is the unavoidable
consequence of conflicting laws of different
states.
Cf: RA 9225 (Citizenship Retention and Re-acquisition

Act
of
2003)
Sec. 3.
Retention of Philippine Citizenship. Any
provision of law to the contrary notwithstanding, natural-born
citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have re-acquired
Philippine citizenship upon taking the following oath of
allegiance to the Republic: xxx
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath.
Sec. 4. Derivative Citizenship. The unmarried child,
whether legitimate, illegitimate or adopted, below eighteen
(18) years of age, of those who re-acquire Philippine
citizenship upon effectivity of this Act shall be deemed
citizens of the Philippines.
Sec. 5. Civil and Political Rights and Liabilities. Those
who retain or re-acquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of
the Philippines and 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, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other
existing laws;
(2) Those seeking elective public office in the Philippines
shall meet the qualifications for holding such public
office as required by the Constitution and existing laws
and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer
authorized to administer an oath;
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of
the Philippines and its duly constituted authorities prior
to their assumption of office: provided, that they
renounce their oath of allegiance to the country where
they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by,
or extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which they are naturalized
(b)
citizens; and/or
are in active service as commissioned or noncommissioned officers in the armed forces of the
country which they are naturalized citizens.
III. Sovereignty
Supreme and uncontrollable power inherent in a

State by which the State is governed.
A. Kinds
1.
2.
3.
4.
Legal sovereignty - power to issue final

commands.
Political sovereignty - power behind the legal
sovereign, or the sum total of the influences that
operate upon it.
Internal sovereignty - power to control domestic
affairs.
External sovereignty (also known as
independence) - power to direct relations with
other states.
B. Theory of Auto-Limitation
It is the property of the State-force due to which a

State has exclusive legal competence of selflimitation and self-restriction.
Sovereignty is subject to restrictions and

limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member
of the family of nations. [Taada vs Angara
(1997)]
C. Dominium v Imperium
[Lee Hong Hok v. David, (1972)]
Dominium
capacity of the State to own property.
covers such rights as title to land,

exploitation and use of it, and disposition or
sale of the same.
Regalian doctrine
all lands of the public domain belong to

the State, and anyone claiming title has
the burden to show ownership, comes
within this concept. In this capacity, the
State descends to the status of ordinary
persons and thus becomes liable as
such. [Cruz v. Sec of DENR, (2000)]
Imperium
States authority to govern.
covers such activities as passing laws

governing a territory, maintaining peace and
order over it, and defending it against foreign
invasion.
When the State acts in this capacity, it

generally enjoys sovereign immunity.
6

is clear that the respondent is a public
officer sued in a private capacity;
iii. when the action is not in personam with the
government as the named defendant, but an
action in rem that does not name the
government in particular.
D. Jurisdiction
Jurisdiction is the manifestation of sovereignty.

The jurisdiction of the state is understood as both
its authority and the sphere of the exercise of that
authority. (SINCO)
1.
KINDS:
i. Territorial jurisdiction
authority of the State to have all persons

and things within its territorial limits to be
completely subject to its control and
protection.
ii.
Personal jurisdiction
authority of the State over its nationals,

their persons, property, and acts,
whether within or outside its territory.
(Art 15, CC: Laws relating to family
rights and duties, or to the status,
condition and legal capacity of persons
are binding upon citizens of the
Philippines, even though living abroad.)
iii. Extraterritorial jurisdiction
authority of the State over persons,

things, or acts, outside its territorial limits
by reason of their effects to its territory
E. Suits Against the State and the Doctrine of

Sovereign Immunity
(Asked two times in the Bar)
The State may not be sued without its consent.

(Sec 3, Art XVI)
There can be no legal right as against the

authority that makes the laws on which the right
depends. also called the doctrine of Royal
Prerogative of Dishonesty. [Kawananakoa v.
Polyblank (1907)]
If the State is amenable to suits, all its time would

be spent defending itself from suits and this
would prevent it from performing it other
functions. [Republic vs. Villasor (1973)]
1.
A suit is against the State regardless of who is

named the defendant if:
i. it produces adverse consequences to the
public treasury in terms of disbursement of
public funds and loss of government
property.
ii. cannot prosper unless the State has given its
consent.
2.
In the following instances, it was held that the suit

is not against the State:
i. when the purpose of the suit is to compel an
officer charged with the duty of making
payments pursuant to an appropriation
made by law in favor of the plaintiff to make
such payment, since the suit is intended to
compel performance of a ministerial duty.
[Begoso v. PVA (1970)]
ii. when from the allegations in the complaint, it
3.
How the States consent to be sued is given:

i. Express consent
a. It is effected only by the will of the
legislature through the medium of a duly
enacted statute.
b. may be embodied either in a:
General Law
authorizes any person who meets

the conditions stated in the law to
sue the government in accordance
with the procedure in the law
Special Law
may come in the form of a private

bill authorizing a named individual
to bring suit on a special claim
Art 2189, CC: Provinces, cities and

municipalities shall be liable for
damages for the death or injuries
suffered by any person by reason of
the defective conditions of roads,
streets, public buildings and other
public works under their control and
supervision.
ii.
Implied consent
when the State enters into a business

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

proprietary acts (jure gestionis) and
not for sovereign acts (jure imperii)
When state files complaint, suability

will
result
only
where
the
government is claiming affirmative
relief from the defendant. [US v.
Guinto, (1990)]
When it would be inequitable for the

State to invoke its immunity.
In instances when the State takes

private property for public use or
purpose.
iii. When does Liability Attach?

a.
The Government is only liable for the

acts of its agents, officers and
employees, when they act as special
agents within the meaning of Art. 2180
(6) CC.
Special Agent
one who receives a definite and fixed
order or commission, foreign to the
exercise of the duties of his office if he is
a special official. [Merritt v. Govt of the
Philippine Islands, (1916)]
This concept does not apply to any

executive agent who is an
employee
of
the
active
administration and who on his own
responsibility performs the functions
7
b.
c.
Unauthorized acts of government

officials or officers are not acts
of the State, and an action against
the officials or officers by one
whose rights have been invaded or
violated by such acts, for the
protection of his rights, is not a suit
against the State.
The doctrine of immunity from suit
will not apply and may not be
invoked where the public official is
being sued in his private and
personal capacity as an ordinary
citizen, for acts without authority or
in excess of the powers vested in
him. [Lansang vs CA (2000)]
When the Government creates a

corporation, it invariably provides this
corporation a separate entity and with
the capacity to sue and be sued.
Consent to be sued includes

actions based on quasi-delict even
though committed by regular, and
not special, agents.
Rule: a government entity can be

sued for tort, but if it is, it can invoke
the defense that it acted through its
regular employee, and not through
a special agent.
The principle of State immunity from suit
does not apply when the relief
demanded requires no affirmative
official action on the part of the State
or the affirmative discharge of any
obligation which belongs to the State in
its political capacity, even though the
officers or agents who are made
defendants claim to hold or act only by
virtue of a title of the State and as its
agents and servants. [Republic v
Sandoval, (1993)]
IV. Government
(Asked two times in the Bar)
A. Definition
Sec. 2(1) Administrative Code. Government of the
Republic of the Philippines is defined as:
the corporate governmental entity through which the
functions of government are exercised throughout the
Philippines, including
the various arms through which political authority is

made effective in the Philippines, whether pertaining to:
1. the autonomous regions,
2. the provincial, city, municipal, or barangay
subdivisions, or
3. other forms of local government.
Government is that institution or aggregate of

institutions by which an independent society
makes and carries out those rules of action which
are necessary to enable men to live in a social
state or which are imposed upon the people
forming that society by those who possess the
power or authority of prescribing them.[US vs
Dorr (1903)]
B. Functions
1.
Constituent functions - constitute the very bonds

of society; compulsory.
i. keeping of order and providing protection
ii. fixing of legal relations between man and
wife, and children
iii. regulation of the holding, transmission and
interchange of property
iv. define crime and punishment
v. regulates and determines contract between
individuals
vi. dealings of state with foreign powers
2.
Ministrant functions - undertaken to advance the

general interests of society; optional.
i. public works
ii. public education
iii. public charity
iv. health and safety regulations
v. trade and industry
The distinction between constituent and

ministrant functions is not relevant in our
jurisdiction. [ACCFA v. Federation of Labor
Unions, (1969)]
C. Doctrine of Parens Patriae
Parens patriae is the task of the government to

act as guardian of the rights of the people.
This prerogative of parens patriae is inherent in
the supreme power of every state, whether that
power is lodged in a royal person or in the
legislature
The Monte de Piedad y Caja de Ahorros de
Manila is an institution organized in accordance
with the canon law, having been created by the
royal order of the King of Spain of July 8, 1880,
made under the royal patronate powers then
8
which are inherent in and naturally

pertain to his office and which are
regulated
by
law
and
the
regulations.
existing in the Crown of Spain. The royal order

referred to created, according to the purpose
expressed therein, an institution for the safe
investment of the savings of the poor classes and
to assist the needy in time of need by loaning
such savings to them at a low rate of interest.
[Government of the Philippine Islands v. Monte
de Piedad, (1916)]
D. De Jure and De Facto Governments

1.
De jure government
i. has rightful title
ii. no power or control, either because this has
been withdrawn from it, or because it has not
yet actually entered into the exercise thereof.
[In re Letter of Associate Justice Puno,
(1992)]
2.
De facto government
i. government of fact, that is, it actually
exercises power or control without legal title.
[Co Kim Cham v. Valdes, (1945)]
The legitimacy of the Aquino government is

not a justiciable matter. It belongs to the
realm of politics where only the people of the
Philippines are the judge. And the people
have made the judgment; they have
accepted the government of President
Corazon C. Aquino which is in effective
control of the entire country so that it is not
merely a de facto government but in fact
and law a de jure government. Moreover,
the community of nations has recognized the
legitimacy of the present government. All the
eleven members of this Court, as
reorganized, have sworn to uphold the
fundamental law of the Republic under her
government. [In re Bermudez, (1986) citing
Lawyers League for a Better Philippines v.
Aquino, (1986)]
In the cited cases [Lawyers League for a

Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al], we held
that the government of former President
Aquino was the result of a successful
revolution by the sovereign people, albeit a
peaceful one. No less than the Freedom
Constitution declared that the Aquino
government was installed through a direct
exercise of the power of the Filipino people
"in defiance of the provisions of the 1973
Constitution, as amended."
It is familiar learning that the legitimacy of a

government sired by a successful revolution
by people power is beyond judicial scrutiny
for that government automatically orbits out of the
constitutional loop. In checkered contrast, the
government of respondent Arroyo is not
revolutionary in character. The oath that she
took at the EDSA Shrine is the oath under the
1987
Constitution.
In
her
oath,
she
categorically swore to preserve and defend

the 1987 Constitution. Indeed, she has stressed
that she is discharging the powers of the
presidency under the authority of the 1987
Constitution.
In fine, the legal distinction between EDSA
People Power I EDSA People Power II is clear.
EDSA I involves the exercise of the people power
of revolution which overthrew the whole
government. EDSA II is an exercise of people
power of freedom of speech and freedom of
assembly to petition the government for redress
of grievances which only affected the office of the
President. EDSA I is extra-constitutional and
the legitimacy of the new government that
resulted from it cannot be the subject of
judicial review, but EDSA II is intraconstitutional and the resignation of the
sitting President that it caused and the
succession of the Vice President as President
are subject to judicial review. EDSA I
presented a political question; EDSA II involves
legal questions. xxx
Even if the petitioner can prove that he did not
resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is
merely unable to govern temporarily. That claim
has been laid to rest by Congress and the
decision that respondent Arroyo is the de
jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
[Estrada v Desierto/ Estrada v GMA, (2001)]
9
Chapter II. STRUCTURE and POWERS of GOVERNMENT Separation of Powers
Chapter II. Structure and Powers

Government Separation of Powers
I.
II.
III.
IV.
V.
of
LEGISLATIVE DEPARTMENT
A. NATURE
AND
CLASSIFICATION
OF
LEGISLATIVE POWER
B. COMPOSITION, QUALIFICATIONS AND TERM
OF OFFICE
C. ELECTION
D. SALARIES,
PRIVILEGES
AND
DISQUALIFICATIONS
E. INTERNAL GOVERNMENT OF CONGRESS
F. ELECTORAL TRIBUNALS
G. COMMISSION ON APPOINTMENTS
H. POWERS OF CONGRESS
JUDICIAL DEPARTMENT
A. IN GENERAL
B. SUPREME COURT
C. JUDICIAL AND BAR COUNCIL
EXECUTIVE DEPARTMENT
A. PRESIDENT
B. VICE-PRESIDENT
CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
B. CIVIL SERVICE COMMISSION
C. COMMISSION ON ELECTIONS
D. COMMISSION ON AUDIT
CONSTITUTIONALLY-MANDATED BODIES
A. SANDIGANBAYAN
B. OMBUDSMAN
C. COMMISSION ON HUMAN RIGHTS
I.
Legislative Department
A. Nature and Classification of Legislative

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

repeal them.
Vested in Congress, except to the extent

reserved to the people by provision on
initiative and referendum
Plenary (Congress may legislate on any

subject matter provided that the limitations
are observed.)
2.
Classification of Legislative Power:
Original - possessed by the sovereign

people
Derivative - delegated by the sovereign

people to legislative bodies and is
subordinate to the original power of the
people
Constituent - power to amend and revise

the Constitution
Ordinary - power to pass ordinary laws
B. Composition, Qualifications and Term of Office
Composition
Qualifications
Term
of
Office
Term Limits
1.
Senate
(Art. VI secs. 2-4)
24 senators elected at large
Natural-born citizen
At least 35 years old on the day of the
election
Able to read and write
A registered voter
Resident of the Philippines for at least 2

years immediately preceding the day of the
election
6 years
2 consecutive terms.
on the 30
election
(Art. VI Secs. 2-4)

Composition: 24 senators elected at large
Qualifications:
1. Natural-born citizen
2. At least 35 years old on the day of the
election
3. Able to read and write
4. A registered voter
5. Resident of the Philippines for at least 2
years immediately preceding the day of the
election
Term of Office: 6 years, commencing at noon
3 years
Senate
House of Representatives
(Art. VI secs. 5-8)
Not more than 250 members, unless otherwise

provided by law, consisting of:
1. District Representatives
2. Party-List Representatives
3. Sectoral Representatives
Natural-born citizens
At least 25 years old on the day of the election
Able to read and write
Registered voter in the district he seeks to

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

immediately preceding the day of the election
th
day of June next following their
Term Limits: only up to 2 consecutive terms.

However, they may serve for more than 2 terms
provided that the terms are not consecutive.
2.
House of Representatives
(Art. VI Secs. 5-8)
Composition: Not more than 250 members,

unless otherwise provided by law, consisting of:
i.
District Representatives
elected
from
legislative
districts
apportioned among the provinces, cities,
10
ii.
and the Metro Manila area.

Rules on Apportionment of Legislative
Districts:
1. Proportional representation based
on number of inhabitants
a. Each city with a population of
at least 250,000, or each
province, shall have at least 1
representative. Each province,
irrespective of the number of
inhabitants, shall have at least
1 representative.
b. Each legislative district shall
comprise, as far as practicable,
contiguous,
compact,
and
adjacent territory.
2. Re-apportionment by Congress
within 3 years after the return of
each census
Party-List Representatives
20%
of
the
total
number
of
representatives
chosen indirectly through a party

selected by voters
RA 7941 (An Act Providing For The

Election Of Party-List Representatives
Through The Party-List System, And
Appropriating Funds Therefor)
o Parties,
organizations,
and
coalitions must obtain at least 2% of
all votes cast to obtain a party-list
seat
o Those garnering more than 2% are
entitled to additional seats in
proportion to their total number of
votes, but may not have more than
3 seats
o Disqualified:
1. Religious Sects
2. Foreign Organizations
3. Those Advocating Violence or
Unlawful Means
o Qualified Sectors:
1. Labor
2. Peasant
3. Fisherfolk
4. Urban Poor
5. Indigenous Cultural
Communities
6. Elderly
7. Handicapped
8. Women
9. Youth
10. Veterans
11. Overseas Workers
12. Professionals
of nominees by the respective

sectors. (Art. XVIII, sec. 7)
Sec. 41, RA 7160 (An Act Providing for a Local Government
Code of 1991): Manner of Election.
(c) In addition thereto, there shall be one (1) sectoral
representative from the women, one (1) from the workers,
and one (1) from any of the following sectors: the urban
poor, indigenous cultural communities, disabled persons, or
any other sector as may be determined by the sanggunian
concerned within ninety (90) days prior to the holding of the
next local elections, as may be provided for by law. The
Comelec shall promulgate the rules and regulations to
effectively provide for the election of such sectoral
representatives.
Term of Office: 3 years, commencing

th
at noon on the 30 day of June next
following their election.
For 3 consecutive terms from 2

February 1987, 25 seats shall be
allotted to sectoral representatives.
to be chosen by appointment or
election, as may be provided by law
Until a law is passed, they are
appointed by the President from a list
In B.P. Blg. 881 members of the legislature

included in the enumeration of elective public
officials are to be considered resigned from
office from the moment of the filing of their
certificates of candidacy for another office,
except for President and Vice-President. The
term of office prescribed by the Constitution
may not be extended or shortened by the
legislature, but the period during which an
officer actually holds the office (tenure) may
be affected by circumstances within or
beyond the power of said officer.
Tenure may be shorter than the term or
it may not exist at all. These situations will
not change the duration of the term of office.
[Dimaporo vs Mitra (1991)]
Term Limits: No member of the House

of Representatives shall serve for more than
3.
Synchronized Terms of Office

(Secs 1-2, Art XVIII)
C. Election
1.
Regular Elections
Unless otherwise provided by law, the

regular election of the Senators and the
Members of the House of Representatives
shall be held on the second Monday of May.
(Sec 8, Art VI)
2.
Special Election
In case of vacancy in the Senate or in the

House of Representatives, a special election
iii. Sectoral Representatives
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.
11
may be called to fill such vacancy in the

manner prescribed by law,
But the Senator or Member of the House of
Representatives thus elected shall serve
only for the unexpired term. (Sec 9, Art VI)
The Constitution mandates that there should

always be adequate representation for every
province or legislative district. If a vacancy
occurs in a manner contemplated in the
Constitution, then Congress has the authority if
not the duty to call for special elections.
[Lozada v. COMELEC, (1983)]
4.
Disqualifications
May not hold any other office or employment

in the government during his term without
forfeiting his seat. (Art VI Sec 13)
May not be appointed to any office created

or the emoluments thereof were increased
during the term for which he was elected.
(Art VI Sec 13)
Cannot personally appear as counsel before

any court, electoral tribunal, quasi-judicial
and administrative bodies during his term of
office. (Art VI Sec 14)
Shall not be financially interested, directly or

indirectly, in any contract with, or franchise
or special privilege granted by the
government during his term of office. (Art VI
Sec 14)
Shall not intervene in any matter before any

office of the government when it is for his
pecuniary benefit or where he may be called
upon to act on account of his office. (Art VI
Sec 14)
Certain salient circumstances militate against the

intervention of Assemblyman Fernandez in the
SEC Case.
He had acquired a mere P200.00 worth of
stock in IPI, representing ten shares out of
262,843 outstanding shares.
He acquired them after the contested
election of Directors, after the quo warranto suit
had been filed before SEC, and one day before
the scheduled hearing of the case before the
SEC.
Before he moved to intervene, he had
signified his intention to appear as counsel for
respondent, but which was objected to by
petitioners. Realizing, perhaps, the validity of the
objection, he decided, instead, to "intervene" on
the ground of legal interest in the matter under
litigation.
Under those facts and circumstances that
there has been an indirect "appearance as
counsel before ... an administrative body" and
that is a circumvention of the Constitutional
prohibition.
The "intervention" was an afterthought to
enable him to appear actively in the proceedings
in some other capacity. [Puyat v De Guzman,
(1982)]
D. Salaries, Privileges and Disqualifications

1.
Salaries
The salaries of Senators and Members of

the House of Representatives shall be
determined by law.
No increase in said compensation shall take

effect until after the expiration of the full term
of all the Members of the Senate and the
House of Representatives approving such
increase. [Ligot v. Mathay, (1974)]
Official
President
Vice-President, President of
the Senate, Speaker of the
House of Representatives,
and Chief Justice of the
Supreme Court
Senators, Members of the
House of Representatives,
Associate Justices of the
Supreme
Court,
and
Chairmen
of
the
Constitutional Commissions
Members
of
the
Constitutional Commissions
2.
3.
Annual Salary
Php 300,000
Php 240,000
Php 204,000
Php 180,000
Freedom from arrest

(Art VI Sec 11, 1987 Constitution)
A Senator or Member of the House of

Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest while
the Congress is in session.
No Member shall be questioned nor be held

liable in any other place for any speech or
debate in the Congress or in any committee
thereof.
Speech and Debate Clause
In this case, a clarification of the scope and
limitation of the parliamentary immunity was
made. There was reiteration that,
First, Congressional immunity is a guarantee
of immunity from answerability before an outside
forum but not from answerability to the
disciplinary authority of congress itself;
Second, to come under the guarantee the
speech or debate" must be one made "in
Congress or in any committee thereof." [Jimenez
v. Cabangbang, (1966)]
Each House of the Congress can discipline its

members for disorderly conduct or behavior.
What constitutes disorderly behavior is
entirely up to Congress to define.
Although a member of Congress shall not be
held liable in any other place for any speech or
debate in the Congress or in any committee
thereof, such immunity, although absolute in its
protection of the member of Congress against
suits for libel, does not shield the member
against the disciplinary authority of the
Congress. [Osmena v. Pendatun, (1960)]
12
5.
Duty to Disclose
A public officer or employee shall, upon

assumption of office and as often as may be
required by law, submit a declaration
under oath of his assets, liabilities, and
net worth.
Cases wherein declaration shall be disclosed

to the public in the manner provided by law:
o President
o Vice-President
o the Members of the Cabinet
o the Congress
o the Supreme Court
o the Constitutional Commissions and
other constitutional offices
o
officers of the armed forces with
general or flag rank (Art XI Sec 17)
All Members of the Senate and the House of

Representatives shall, upon assumption of
office, make a full disclosure of their financial
and business interests.
o They shall notify the House concerned
of a potential conflict of interest that may
arise from the filing of a proposed
legislation of which they are authors.
(Art VI Sec 12)
The records and books of accounts of the

Congress shall be preserved and be open to
the public in accordance with law,
o such books shall be audited by the
Commission on Audit which shall
publish annually an itemized list of
amounts paid to and expenses incurred
for each Member. (Art VI Sec 20)
members of the House" and a majority of "the

House", the latter requiring less number than the
first. Therefore, an absolute majority (12) of all
members of the Senate less one (23) constitutes
constitutional majority of the Senate for the
purpose of the quorum. [Avelino v. Cuenco,
(1949)]
3. Rules of Proceedings
4. Discipline of Members
E. Internal Government of Congress
1. Election of officers
Officers:
1. Senate President
2. Speaker of the House
3. Such officers as deemed by each house to be
necessary
Election of Officers:
respective members
Each House shall determine its own procedural

rules.
Issues may either be:
o Political- On matters affecting only internal
operation of the legislature, the legislatures
formulation and implementation of its rules.
o Justiciable - when the legislative rule affects
private rights.
By a majority vote of all
Each house may punish its members for

disorderly behavior, and with the concurrence of
2/3 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
Senate expelled Senator Alejandrino for
disorderly conduct for assaulting Senator de Vera
during one of their debates in session. Senate
adopted a resolution depriving Senator
Alejandrino of all the prerogatives, privileges
and emoluments of his office for the period of
one year.
The Court held that the resolution was illegal
since it amounted to expulsion and it would
deprive the electoral district of representation
without any means to fill the vacancy. The
Senate had no authority to suspend an appointed
Senator like Senator Alejandrino. [Alejandrino v.
Quezon, (1924)]
2. Quorum
5. Journal and Congressional Records
a.
Majority of each House shall constitute a

quorum.
A smaller number may adjourn from day to day
and may compel the attendance of absent
members.
In computing a quorum, members who are
outside the country, thus outside of each Houses
coercive jurisdiction, are not included.
Majority refers to the number of members
within the jurisdiction of the Congress (those
it can order arrested for the purpose of
questioning). In this case, one Senator was out of
the Philippines which is not within the
jurisdiction of the Senate, so that the working
majority was 23 Senators.
There is a difference between a majority of "all
The Enrolled Bill Theory
An enrolled bill is the official copy of

approved legislation and bears the
certifications of the presiding officers of each
House.
where the certifications are valid and are not

withdrawn, the contents of the enrolled bill
are conclusive upon the courts.
RATIONALE
OF
ENROLLED
BILL
THEORY- An enrolled Act in the custody of
the Secretary of State, and having the official
attestations of the Speaker of the House of
Representatives, of the President of the
Senate, and of the President of the United
States, carries, on its face, a solemn
assurance by the legislative and executive
13
departments of the government, charged,

respectively, with the duty of enacting and
executing the laws, that it was passed by
Congress. The respect due to coequal and
independent departments requires the
judicial department to act upon that
assurance, and to accept, as having passed
Congress, all bills authenticated in the
manner stated; leaving the courts to
determine, when the question properly
arises, whether the Act, so authenticated, is
in conformity with the Constitution [Astorga
vs Villegas, (1974) citing Field vs. Clark].
b.
d.
e.
Congressional Record
6. Sessions
a.
Regular Sessions
th
Convenes once every year on the 4

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

before the start of its next regular session,
exclusive of Saturdays, Sundays, and legal
holidays.
b.
Special Sessions
Called by the President at any time when

Congress is not in session
c.
Adjournments
Neither House can adjourn for more than 3

days during the time Congress is in session
without the consent of the other House.
Neither can they adjourn to any other place

than that where the two houses are sitting,
without the consent of the other.
d.
Joint Sessions
Voting separately
Choosing the President (Sec. 4, Art VII)
Determining the Presidents temporary

disability (Id., Sec. 11, Par 4)
Confirming the nomination of a VicePresident (Id., Sec. 9)
Declaring a state of war (Sec. 23(1), Art

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

Art XVII)
Voting Jointly
To revoke or extend martial law or

suspension of privilege of habeas
corpus (Sec. 18 Art VII)
F.
Electoral Tribunals
Matters required to be entered in the Journal
Yeas and Nays on third and final reading of

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

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

request of 1/5 of members present.
1.
Composition
Journal Entry Rule v. Enrolled Bill Theory
3 Supreme Court Justices to be designated by

the Chief Justice (The senior Justice in the
Electoral Tribunal shall be its Chairman).
6 Members of the Senate or House, as the case
may be, chosen on the basis of proportional
representation from the political parties and
party-list organizations.
The ET shall be constituted within 30 days after
the Senate and the House shall have been
organized with the election of the President and
the Speaker.
Members chosen enjoy security of tenure and
cannot be removed by mere change of party
affiliation.
Respect due to a co-equal department

requires the courts to accept the certification
of the presiding officer of the legislative
body. [Casco vs Gimenez (1963)]
A duly authenticated bill or resolution imports

absolute verity and is binding on the
courts.[Mabanag v. Lopez Vito, (1947)]
Probative value of the Journal
The Journal is conclusive upon the courts.
But when the contents of the journal conflicts

with that of an enrolled bill, the enrolled bill
prevails over the contents of the journal.
c.
records of Congress for proof of its due

enactment. [Astorga v. Villegas, (1974)]
Congress may validly continue enacting

bills even beyond the reglementary
period of adjournment.
When the
journal shows that Congress conducted
a sine die session where the hands of
the clock are stayed in order to afford
Congress the opportunity to continue its
session. All bills enacted during the
sine die session are valid and
conclusive upon the Courts.
The Journals are conclusive
evidence of the contents thereof and
Courts are bound to take judicial
notice of them. [US vs Pons (1916)]
It may be noted that the enrolled bill theory is

based mainly on "the respect due to coequal
and independent departments," which
requires the judicial department "to accept,
as having passed Congress, all bills
authenticated in the manner stated." Thus it
has also been stated in other cases that if
the attestation is absent and the same is not
required for the validity of a statute, the
courts may resort to the journals and other
The five LDP members who are also members

of the Senate Electoral Tribunal may not inhibit
themselves since it is clear that the Constitution
intended legislative and judiciary membership to
the tribunal. As a matter of fact, the 2:1 ratio of
14
legislative to judiciary indicates that

legislative membership cannot be ignored.
To exclude themselves is to abandon a duty
that no other court can perform. [Abbas vs
SET (1988)]
2.
4.
Powers
Lazatin v. HRET, (1988)

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.
As constitutional creations invested with

necessary power, the Electoral Tribunals are, in
the exercise of their functions independent
organs independent of Congress and the
Supreme Court. The power granted to HRET by
the Constitution is intended to be as complete
and unimpaired as if it had remained originally in
the legislature [ Co vs HRET (1991) citing Angara
vs. Electoral Commission [1936]).
5.
Judicial Review of Decisions of Electoral

Tribunals
With the SC only insofar as the decision or

resolution was rendered
o without or in excess of jurisdiction, or
o with grave abuse of discretion tantamount to
denial of due process.
To question the jurisdiction of the lower court or

the agency exercising judicial or quasi-judicial
functions, the remedy is a special civil action
for certiorari under Rule 65 of the Rules of
Court. The petitioner in such cases must clearly
show that the public respondent acted without
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. Grave
abuse of discretion defies exact definition, but
generally refers to "capricious or whimsical
exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an
arbitrary and despotic manner by reason of
passion and hostility. [Garcia vs HRET (1999)]
Nature of Function
Jurisdiction: be the sole judge of all CONTESTS

relating to the election, returns, and qualifications
of their respective members. ET has jurisdiction
only when there is an election contest.
Election Contest - one where a defeated

candidate challenges the qualification and claims
for himself the seat of a proclaimed winner.
The Electoral Tribunal of each House is the

SOLE judge of all contests relating to the
election, returns, and qualifications of the
members of Congress.
In the absence of election contest, the
Electoral Tribunal has no jurisdiction.
The Electoral Tribunals are independent
constitutional bodies and cannot be regulated by
Congress.
Supreme Court has jurisdiction over the
Electoral Commission and the subject matter of
the present controversy for the purpose of
determining the character, scope and extent
of the constitutional grant to the Electoral
Commission as "the sole judge of all contests
relating to the election, returns and qualifications
of the members of the National Assembly."
[Angara vs Electoral Commission (1936)]
3.
Independence of the Electoral Tribunals
Since the ETs are independent constitutional

bodies, independent even of the respective
House, neither Congress nor the Courts may
interfere with procedural matters relating to the
functions of the ETs. [Co vs HRET, (1991)]
The HRET was created to function as a

nonpartisan court although two-thirds of its
members are politicians. It is a non-political body
in a sea of politicians.
To be able to exercise exclusive jurisdiction,
the House Electoral Tribunal must be
independent. Its jurisdiction to hear and decide
congressional election contests is not to be
shared by it with the Legislature nor with the
Courts. "The Electoral Commission is a body
separate from and independent of the legislature
and though not a power in the tripartite scheme
of government, it is to all intents and purposes,
when acting within the limits of its authority, an
independent organ; while composed of a
majority of members of the legislature it is a
body separate from and independent of the
legislature. [Bondoc v. Pineda, (1991)]
Valid grounds / Just cause for termination of

membership to the tribunal.
o Expiration of Congressional term of office;
o Death or permanent disability;
o Resignation form political party which one
represents in the tribunal;

Removal from office for other valid reasons.
G. Commission on Appointments
(Sec, Art VII)
1.
Composition:
a.
Senate President as ex-officio chairman (shall

not vote except in case of a tie.)
12 Senators
12 Members of the House
b.
c.
The 12 Senators and 12 Representatives are elected

on the basis of proportional representation from
the political parties and party-list organizations.
15
The authority of the House of Representatives to

change its representation in the Commission on
Appointments to reflect at any time the changes
that may transpire in the political alignments of its
membership. It is understood that such changes
in membership must be permanent and do not
include the temporary alliances or factional
divisions not involving severance of political
loyalties or formal disaffiliation and permanent
shifts of allegiance from one political party to
another. [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 the Senate to disobey or disregard the
rule on proportional representation RATIONALE:
The party with a majority representation in the
Senate or the house of Representatives can by
sheer force of numbers impose its will on the
hapless minority.
By requiring a proportional representation in
the Commission on Appointments, Section 18 in
effect works as a check on the majority party in
the Senate and helps to maintain the balance of
power. No party can claim more than what it is
entitled to under such rule. [Guingona, Jr. vs
Gonzales, (1993)]
Meetings
Commission on Appointments shall meet only

while Congress is in session.
Meetings are held either at the call of the
Chairman or by a majority of all its members.
Since the Commission on Appointments is also
an independent constitutional body, its rules of
procedure are also outside the scope of
congressional powers as well as that of the
judiciary.
b.
Congress cannot by law require that the

appointment of a person to an office created by
such law shall be subject to confirmation by the
Commission on Appointments.
c.
Appointments extended by the President to the

above-mentioned positions while Congress is
not in session shall only be effective until
disapproval
by
the
Commission
on
Appointments or until the next adjournment
of Congress.
H. Powers of Congress
1.
General
(Sec Art VI)
a.
Legislative Powers: (Scope: vested in

Congress by the Constitution except to the
extent reserved to the people by the
provision on initiative and referendum).
powers of appropriation, taxation and

expropriation
authority to make, frame and enact laws
b.
Non-legislative Powers (Scope)
power to canvass the presidential

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

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

punish
contempt
in
legislative
investigations.
The Commission on Appointments shall be

constituted within 30 days after the Senate and
the House of Representative shall have been
organized with the election of the President and
the Speaker.
The Commission on Appointments shall act on all
appointments within 30 session days from their
submission to Congress.
The Commission on Appointments shall rule by a
majority vote of all its members.
2.
COMELEC members);
3.
Jurisdiction
a.
Commission on Appointments shall confirm the

appointments by the President with respect to the
following positions:
Heads of the Executive Departments (except

if it is the Vice-President who is appointed to
the post);
Ambassadors, other public ministers or

consuls;
Officers of the AFP from the rank of Colonel

or Naval Captain;
Other officers whose appointments are

vested in him by the Constitution (e.g.
2.
Specific Powers
a.
b.
c.
d.
e.
f.
3.
Inherent Powers
a.
b.
c.
d.
4.
Constituent power
Legislative Inquiries
Appropriation
Taxation
Concurrence in treaties and international
agreements
War powers and delegations powers
Police Power
Make, ordain, and establish all manner

of wholesome and reasonable laws,
statutes and ordinances as they shall
judge for the good and welfare of the
constituents.
Includes maintenance of peace and

order, protection of life, liberty and
property and the promotion of general
welfare
Power of Taxation
Power of Eminent Domain
Contempt power
Limitations:
16
a.
b.
5.
Formal or Procedural Limitations
Prescribes the manner of passing bills in

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

o Every bill passed by the Congress
shall embrace only one subject
which shall be expressed in the title
o No bill passed by either house shall
become law unless it has passed 3
readings on separate days
o Printed copies in its final form have
been distributed to its members 3
days before the passage of the bill
Exception: president certifies to

the necessity of its immediate
enactment to meet a public
calamity or emergency
Substantive Limitations
Circumscribe both the exercise of the

power itself and the allowable subject of
legislation
Express limitations:
o Sec 24-26, 28-30, Art VI
Express limitations on general powers

o Bill of rights
Implied Limitations
o No power to pass irrepealable law
o Non-encroachment on powers of
other departments
o Non-delegability of powers
Discussion of Specific Powers

a.
Constituent Powers
Power to propose amendments to the
Constitution
b.
Legislative Inquiries (Sec 21, Art VI)

Requisites:
o Must be in aid of legislation
o In accordance with duly published rules
of procedure
o Right of persons appearing in or
affected by such inquiries shall be
respected
Additional limitation: Executive Privilege
(Refer to Chap 4, III)
c.
Appropriation
General Limitations:
o Appropriations must be for a PUBLIC
PURPOSE.
o Cannot appropriate public funds or
property, directly or indirectly, in favor of
1. Any sect, church, denomination, or
sectarian institution or system of
religion or
2. Any priest, preacher, minister, or
other religious teacher or dignitary
as such.
EXCEPT if the priest, etc is assigned to:
1. the Armed Forces;
2. any penal institution;
3. government orphanage;
4. leprosarium
o Government is not prohibited from
appropriating money for a valid secular

purpose, even if it incidentally benefits a
religion, e.g. appropriations for a
national police force is valid even if the
police also protects the safety of
clergymen.
Also, the temporary use of public
property for religious purposes is valid,
as long as the property is available for
all religions.
Specific Limitations
o For General Appropriations Bills
1. Congress may not increase the
appropriations recommended by
the President for the operation of
the Government as specified in the
budget.
2. Form, content and manner of
preparation of the budget shall be
prescribed by law.
3. No provision or enactment shall be
embraced
in
the
general
appropriations bill unless it relates
specifically to some particular
appropriation therein.
4. Procedure
in
approving
appropriations
FOR
THE
CONGRESS shall strictly follow the
procedure
for
approving
appropriations
for
other
departments and agencies.
5. No law shall be passed authorizing
any transfer of appropriations.
However, the following may, BY
LAW, be authorized to AUGMENT
any
item
in
the
general
appropriations
law
for
their
respective offices from savings in
other items of their respective
appropriations:
i. President
ii. Senate President
iii. Speaker of the House
iv. Chief Justice of the Supreme
Court
v. Heads of the Constitutional
Commissions
Guidelines
for
disbursement
of
DISCRETIONARY FUNDS appropriated
FOR PARTICULAR OFFICIALS:
i. For public purposes
ii. To be supported by appropriate
vouchers
iii. Subject to such guidelines as may be
prescribed by law
If Congress fails to pass the general
appropriations bill by the end of any
fiscal year:
i. The general appropriations bill for the
previous year is deemed reenacted
ii. It shall remain in force and effect until
the general appropriations bill is passed
by Congress.
17
d.

o
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 be raised
by corresponding revenue proposal
therein
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 an appropriation
made by law.
2. However, this rule does not prohibit
continuing appropriations, e.g. for
debt servicing, for the reason that
this rule does not require yearly or
annual appropriation.
Four phases of Governments budgeting

process:
1. Budget preparation
2. Legislative authorization
3. Budget execution
4. Budget accountability
Taxation (Sec 28, Art VI)

Nature
o Sec 28 is an enumeration of the limits
on the inherent and otherwise unlimited
power
Purposes
o Pay debts and provide for the common
defense and general warfare;
o Raise revenue;
o Instrument of national and social policy;
o Instrument
for
extermination
of
undesirable acts and enterprises;
o Tool for regulation;
o Imposition of tariffs designed to
encourage and protect locally produced
goods against competition for imports.
Limitations
o Public.
Power to tax should be
exercised only for a public purpose.
o Uniform and Equitable.
1. Operates with the same force and
effect in every place where the
subject of it is found
2. Does not prohibit classification for
the purpose of taxation
3. Requirements
for
valid
classification:
i. Based
on
substantial
distinctions which make real
differences
ii. Germane to the purpose of law
iii. Applies to present and future
conditions
substantially
identical to those of the present
iv. Applies equally to those who
belong to the same class
e.
f.
Progressivity.
1. The rate increases as the tax base
increases
2. Tax burden is based on the
taxpayers capacity to pay
3. Suited to the social conditions of
the people
4. Reflects aim of the Convention that
legislature following social justice
command should use taxation as
an instrument for more equitable
distribution of wealth
Constitutional Tax Exemptions:
1. Religious, charitable, educational
institutions and their properties
2. All revenues and assets of NONSTOCK
NON-PROFIT
EDUCATIONAL institutions are
exempt from taxes and duties
PROVIDED that such revenues and
assets are actually, directly and
exclusively used for educational
purposes (sec. 4 (3) Art XIV).
3. Grants, endowments, donations or
contributions
used
actually,
directly and exclusively for
educational purposes shall be
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 fund and paid out for
such purpose only.
2. Once the special purpose is fulfilled
or abandoned, any balance shall be
transferred to the general funds of
the Government
Concurrence in Treaties and international

agreements (Sec 21, Art VII)
Treaties and other international agreements
which are in the nature of original
agreements of a permanent nature or which
establish national policy, or involve political
issues or changes in national policies need
the concurrence of 2/3 of the members of
the Senate.
Executive agreements which are merely
implementation of treaties or statutes or of
well-established policies or are of transitory
effectivity
do
not
require
Senate
concurrence.
War Powers (Sec 23 (1), Art VI)
Congress in joint session assembled and
voting separately shall have the sole power
to declare the existence of war
Philippines renounces war as an instrument
of national policy
Even though the legislature can declare
existence of war and enact measures to
support it, the actual power to make war is
lodged nonetheless in the executive
18
6.
Delegation of Powers
a.
b.
General rule: Congress cannot delegate its

legislative power (Potestas delegate non
potest delegare)
Exceptions
1. Delegation of tariff powers to the
President (Art VI sec. 28(2)).
2. Delegation of emergency powers to the
President (Art VI sec. 23(2)).
o Preconditions:
i. Limited time period
CA 671 passed delegative
emergency powers to the
president in times of war and
other national emergencies.
Since said grant was given to
meet
the
emergencies
incidental to the war, such
powers ceased at the time the
war stopped
ii. Power may be withdrawn by
resolution, not necessary that it
be done through statute
iii. Subject to restrictions as the
congress may provide
3. Delegation to the people at large.
4. Delegation to local governments.
5. Delegation to administrative bodies
(rule-making power).
RA 7716 (EVAT Law) did not violate Sec. 24, Art.

VI (Origination Clause). It is important to
emphasize that it is the law, and not the bill,
which is required to originate exclusively
from the HoR, because the bill may undergo
such extensive changes in the Senate that the
result may be the rewriting of the whole.
To insist that a revenue statute, and not just the bill,
must be substantially the same as the House bill
would be to deny the Senates power not only to
concur with amendments but also to propose
amendments. It would violate the co-equality of
legislative power of the Senate. [Tolentino vs.
Secretary of Finance (1994)]
B.
Procedure for the Passage of Bills
i.
Procedure for Enactment:

Introduction: must be by any member of the
House of Representatives or Senate except for
some measures that must originate only from the
former chamber
First reading: The reading of the title and the
number; the bill is passed by the Senate
President or Speaker to the proper committee
Second reading: Entire text is read and debates
are held, and amendments introduced.
The bill as approved in the second reading is
printed in its final form and copies are distributed
three days before the third reading
Tests for a Valid Delegation

1. The Completeness Test
The law must be complete in all its terms and
conditions when it leaves the legislature so that
there will be nothing left for the delegate to do
when it reaches him except enforce it.
Third reading:
Only the title is read, no
amendments are allowed. Vote shall be taken
immediately thereafter and the yeas and nays
entered in the journal.
Sent to the other chamber: once the bill passes
the third reading, it is sent to the other chamber
where it will also go under three readings
2. The Sufficient Standard Test

The law must fix a standard, the limits of which
are sufficiently determinate or determinable, to
which the delegate must conform in the
performance of his functions. [Pelaez vs. Auditor
General, (1965)]
7.
Legislative Process
A.
Bills that Must Originate EXCLUSIVELY from

the House of Representatives
(Sec. 24, Art VI):
i.
Appropriation bills (A bill appropriating a sum of

money from the public treasury.) A bill creating a
new office, and appropriating funds therefor is
NOT an appropriation bill.
Revenue bills (A bill specifically designed to raise
money or revenue through imposition or levy.)
A law regulating an industry, though incidentally
imposing a tax, does not make the law a revenue
bill.
Tariff bills
Bills authorizing the increase of public debt
Bills of local application
Private bills
ii.
iii.
iv.
v.
vi.
vii.
Enrolled Bill: The bill is printed as finally

approved by the Congress, authenticated with
the signatures of the Senate President or the
Speaker and the Secretary and approved by the
President
ii.
Submission to the President; Presidents Veto

power (Sec 27, Art VI)
Every bill, in order to become a law, must be

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

he shall veto the same and return it with his
objections to the House from which it
originated.
The House shall enter the
objections in the journal and proceed to
reconsider it.
The President must communicate his

decision to veto within 30 days from the date
of receipt thereof. If he fails to do so, the bill
shall become a law as if he signed it.
To override the veto, at least 2/3 of ALL the

members of each House must agree to pass
the bill. In such case, the veto is overridden
and becomes a law without need of
presidential approval.
19
Item veto
o The President may veto particular items in an
appropriation, revenue or tariff bill.
o This veto will not affect items to which he does
not object.
Veto of a Rider
o A rider is a provision which does not relate to a
particular appropriation stated in the bill.
o Since it is an invalid provision under Section
25(2), the President may veto it as an item.
The executive's veto power does not carry

with it the power to strike out conditions or
restrictions. If the veto is unconstitutional, it
follows that the same produced no effect
whatsoever, and the restriction imposed by the
appropriation bill, therefore, remains. [Bolinao
Electronics Corp vs Valencia, (1964)]
DOCTRINE
OF
INAPPROPRIATE
PROVISIONS- A provision that is constitutionally
inappropriate for an appropriation bill may be
singled out for veto even if it is not an
appropriation or revenue item. [Gonzales vs
Macaraig, (1990)]
The Constitution provides that only a particular

item or items may be vetoed. The power to
disapprove any item or items in an appropriate
bill does not grant the authority to veto a part of
an item and to approve the remaining portion of
the same item. [Bengzon vs. Drilon, (1992)]
The terms item and provision in budgetary

legislations and practice are concededly different. An
item in a bill refers to the particulars, the details, the
distinct and severable parts . . . of the bill. It is an
indivisible sum of money dedicated to a stated
purpose. An 'item' of an appropriation bill means an
item which in itself is a specific appropriation of
money, not some general provision of law, which
happens to be put into an appropriation bill.'"
The president cannot veto unavoidable obligations
such as the payment of pensions which has already
been vested by the law. The veto is invalid since it is
violated the separation of property and the judiciarys
fiscal autonomy.
C.
Effectivity of Laws
Article 2 (CC)
Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided. This code shall take effect one year
after such publication.
unless otherwise provided this phrase refers to

the date of effectivity, and not to the very act of
publication.
Complete
publication
is
indispensable.
Executive Order No. 200 (June 18, 1987):
Amended Art II of CC to include any newspaper
of general circulation as a means of publication
other than the Official Gazette
8.
Initiative and Referendum

(Sec 32, Art VI)
a.
b.
c.
Limited only to the proposal of amendments

Requirements for peoples initiative:
12 % of the total number of registered voters
at least 3% of all registered voters in every

district should be represented
No amendments shall be authorized within 5
years following the ratification of the new
Constitution.
The right of the people to directly propose
amendments to the Constitution through the
system of initiative would remain entombed in the
cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise,
while the Constitution has recognized or granted
that right, the people cannot exercise it if
Congress, for whatever reason, does not
provide for its implementation.
Held: RA 6735 is incomplete, inadequate, or wanting

in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned.
The court cited the following reasons:
1. Sec 2 of the Act does not suggest an initiative on
amendments to the Constitution. The inclusion of
the word "Constitution" therein was a delayed
afterthought. That word is neither germane nor
relevant to said section.
2. Unlike in the case of the other systems of
initiative, the Act does not provide for the
contents of a petition for initiative on the
Constitution.
While the Act provides subtitles for National
Initiative and Referendum and for Local Initiative
and Referendum, no subtitle is provided for
initiative on the Constitution. Also, while RA 6735
exerted utmost diligence and care in providing for
the details in the implementation of initiative and
referendum on national and local legislation, it
failed, rather intentionally, to do so on the system
of initiative on amendments to the Constitution.
[Santiago vs Comelec, (1997)]
The court cited the following reasons for holding

that there was failure to comply with 2, Art.XVII
of the Constitution: (a) the initiative petition did
not present the full text of the proposed
amendments; and (b) the proposed changes
constituted revision not amendment. The
essence of amendments directly proposed by
the people through initiative upon a petition
is that the entire proposal on its face is a
petition by the people. This means two
essential elements must be present. First, the
people must author and thus sign the entire
proposal. No agent or representative can sign on
their behalf. Second, as an initiative upon a
petition, the proposal must be embodied in a
petition. Further, a peoples initiative could only
propose amendments not revisions. Only
Congress or a constitutional convention can
propose both amendments and revisions to the
Constitution. A change in the form of government
20
from presidential and bicameral Congress to

parliamentary and unicameral legislature
constitutes revision and not merely amendment.
[Lambino v Comelec, (2006)]
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
resolved
through
judicial
determination. [John Hay vs. Lim, (2003)]
II. Judiciary
This precludes the courts from entertaining the
following:
i. Request for an advisory opinion [Guingona
vs. CA, (1998)]
ii. Cases that are or have become moot and
academic, unless --
capable of repetition yet evading review
[Alunan III v. Mirasol, (1997); Sanlakas
v. Executive Secretary, (2004)]; or
when the court feels called upon to

exercise its symbolic function and
provide future guidance [Salonga v.
Pao, (1985)]
A. In General
1. Judicial Power v. Judicial Review

Where
vested
Definition
JUDICIAL POWER
Supreme Court
Lower courts
Duty to settle actual
controversies
involving
rights
which are legally
demandable
and
enforceable, and to
determine whether
or not there has
been a grave abuse
of
discretion
amounting to lack or
excess of jurisdiction
on the part of any
branch
or
instrumentality of the
Government
[Art.
VIII, Sec. 1, Par. 2]
Jurisdiction power
to decide and hear a
case and execute a
decision thereof
JUDICIAL REVIEW
Supreme Court
Lower courts
Power of the courts
to test the validity
of executive and
legislative acts in
light
of
their
conformity with the
Constitution
[Angara v. Electoral
Commission
(1936)]
b.
Standing: NOT the same as real party in interest

A proper party is one who has sustained or is in
imminent danger of sustaining a direct injury as
a result of the act complained of [NACHURA,
citing IBP v. Zamora (2000)]. The alleged injury
must also be capable of being redressed by a
favorable judgment [Tolentino v. Comelec,
(2004)].
i. requires partial consideration of the merits of
the case in view of its constitutional and
public policy underpinnings [Kilosbayan vs
Morato, (1995)]
ii. may be brushed aside by the court as a
mere procedural technicality in view of
transcendental importance of the issues
involved [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 are being impaired [Philconsa
vs Enriquez, (1994)]
citizens, when the enforcement of a

public right is involved [Taada vs
Tuvera, (1985)]
c.
Constitutional question must be raised at the

earliest possible opportunity, except:
i. in criminal cases, at the discretion of the
court
ii. in civil cases, if necessary for the
determination of the case itself
iii. when the jurisdiction of the court is involved
[NACHURA]
Functions of Judicial Review
d.
a.
b.
c.
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
Requisites for
exercise
1. Appropriate
case: actual
case or
controversy
2. Standing:
personal and
substantial
interest
3. Question raised
at the earliest
opportunity
4. Lis mota of the
case
When the judiciary mediates to allocate

constitutional boundaries, it does not assert
any superiority over the other departments; it
does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and
sacred obligation assigned to it by the
Constitution to determine conflicting claims of
authority under the Constitution and to
establish for the parties in an actual
controversy the rights which that instrument
secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial
supremacy" which properly is the power of
judicial review under the Constitution. [Angara v.
Electoral Commission, (1936)]
Checking
Legitimating
Symbolic
[NACHURA]
21
given to the co-equal branches, and because of

the grave consequences of a declaration of
unconstitutionality. [De la Llana v. Alba, (1982)]
Political Question Doctrine
The term political question refers to: (1) matters

to be exercised by the people in their primary
political capacity; or (2) those specifically
delegated to some other department or
particular office of the government, with
discretionary power to act. It is concerned with
issues dependent upon the wisdom, not legality,
of a particular measure. [Taada v. Cuenco,
(1957)]
In recent years, the Court has set aside this doctrine

and assumed jurisdiction whenever it found
constitutionally-imposed limits on the exercise of
powers conferred upon the Legislative and Executive
branches [BERNAS].
POLITICAL QUESTION
Alejandrino
v.
Quezon,
(1924): The legislatures
exercise
of
disciplinary
power over its member is
not to be interfered with by
the Court.
Vera v. Avelino, (1946):
inherent
right
of
the
legislature to determine who
shall be admitted to its
membership
Mabanag v. Lopez-Vito,
(1947): Proposal to amend
the Constitution is a highly
political function performed
by Congress in its sovereign
capacity.
Osmea
v.
Pendatun,
(1960): disciplinary power of
the legislature
Severino
v.
GovernorGeneral, (1910): Mandamus
and injunction could not lie
to enforce or restrain a duty
which
is
discretionary
(calling a special local
election).
Montenegro v. Castaeda,
(1952): Authority to decide
whether the exigency has
arisen
requiring
the
suspension of the privilege
of the writ of habeas corpus
belongs to the President.
Manalang v. Quitoriano,
(1954):
Presidents
appointing power is not to
be interfered with by the
Court.
Javellana
v.
Executive
Secretary,
(1973):
The
people may be deemed to
have cast their favorable
votes in the belief that in
doing so they did the part
required of them by Article
JUSTICIABLE
CONTROVERSY
Avelino v. Cuenco, (1949):
election of Senate President
was done without the
required quorum
POLITICAL QUESTION
Effect of a Declaration of Unconstitutionality

a.
b.
Orthodox view
An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no
protection; it creates no office; it is inoperative, as
if it had not been passed at all.
Modern view
Pelaez v. Auditor General, (1965)
Certain legal effects of the statute prior to its
declaration of unconstitutionality may be
recognized. [NACHURA]
2. Appointment and Qualifications

SC and CA
JUSTICE
Age
Experience
Tenure
Characteristics
Javellana
v.
Executive
Secretary, (1973): WON the
1973 Constitution had been
ratified in accordance with
the 1935 Constitution is
justiciable.
22
XV, hence, it may be said

that in its political aspect,
which is what counts most,
after all, said Article has
been substantially complied
with, and, in effect, the 1973
Constitution
has
been
constitutionally ratified.
Citizenship
Taada v. Cuenco, (1957):
The
selection
of
the
members of the Senate
Electoral Tribunal is subject
to constitutional limitations.
Cunanan v. Tan, Jr., (1962):
The
Commission
on
Appointments
is
a
constitutional creation and
does not derive its power
from Congress.
Gonzales
v.
Comelec,
(1967);
Tolentino
v.
Comelec,
(1971):
abandoned Mabanag v.
Lopez-Vito
Lansang v. Garcia, (1971):
Suspension of the privilege
of the writ of habeas corpus
is not a political question.
JUSTICIABLE
CONTROVERSY
Naturalborn
Filipino
At least 40
years old
RTC
JUDGE
MTC/
MCTC
JUDGE
Filipino
At least At least
35 years 30 years
old
old
Has been engaged for
at least 5 years in the
practice of law* in the
Philippines or has held
public office in the
Philippines
requiring
admission
to
the
practice of law as an
indispensable requisite
15 years or
more as a
judge or a
lower court
or
has
been
engaged in
the practice
of law in
the Phils.
for
the
same
period
Hold office during good behavior until
they reach the age of 70 or
become incapacitated to discharge
their duties
Person of proven competence,
integrity, probity and independence
Practice of law is not confined to litigation.

It means any activity in and out of court, which
requires the application of law, legal procedure,
knowledge, training and experience. [Cayetano v.
Monsod, (1991)]
3. Disqualification from Other Positions or

Offices
Art. VIII, Sec. 12. The Members of the Supreme Court and
of other courts established by law shall not be designated to
any agency performing quasi-judicial or administrative
functions.
The issue concerns the legal right of the

members of the SC, sitting as a board of
arbitrators, the decision of a majority of whom
shall be final, to act in that capacity.
It was held that the SC and its members
should not and cannot be required to exercise
any power or to perform any trust or to assume
any duty not pertaining to or connected w/ the
administering of judicial functions. [Meralco vs
Pasay Transportation Co., (1932)]
A judge in the CFI shall not be detailed with the
Department of Justice to perform administrative
functions as this contravenes the doctrine of
separation of powers. [Garcia vs Macaraig,
(1972)]
4. Grounds
Removal
from
Office
Impeachment of Members of the SC
any treaty, international or executive agreement, law,

presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto.
(c) All cases in which the jurisdiction of any lower court
is in issue.
(d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
(e) All cases in which only an error or question of law is
involved.
iii. Congressional power vis--vis SC

Art. VIII, Sec. 2. The Congress shall have the power to
define, prescribe, and apportion the jurisdiction of the
various
courts
[subject
to
the
following
conditions/limitations:
on
a.
b.
(Art. XI, Sec. 2)
i.
ii.
iii.
iv.
v.
vi.
Culpable violation of the Constitution

Treason
Bribery
Graft and corruption
Other high crimes
Betrayal of public trust
B. Supreme Court
1.
Composition
i.
ii.
Chief Justice and 14 Associate Justices

May sit en banc or in divisions of three, five, or
seven Members
iii. Vacancy shall be filled within 90 days from the
occurrence thereof
2.
Powers: Jurisdiction
i.
Original
a. Cases affecting ambassadors, other public
ministers and consuls [Art. VIII, Sec. 5(1)];
b. Petitions
for
certiorari,
prohibition,
mandamus, quo warranto, and habeas
corpus [Art. VIII, Sec. 5(1)];
c. Sole judge of all contests relating to the
election, returns, and qualifications of the
President or Vice-President, and may
promulgate its rules for the purpose [Art. VII,
Sec. 4, par. 7];
d. Sufficiency of the factual basis of the
proclamation of martial law or the
suspension of the privilege of the writ of
habeas corpus or the extension thereof [Art.
VII, Sec. 18, par. 3].
ii.
Appellate
Art. VIII, Sec. 5. The Supreme Court shall have the
following powers:
xxx
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of
It may not increase or decrease the

appellate jurisdiction of SC
It may not pass a law reorganizing the
Judiciary when it undermines the security of
tenure of the Members of the latter
Section 27 of Republic Act No. 6770
(Ombudsman Act of 1989), together with
Section 7, Rule III of Administrative Order
No. 07 (Rules of Procedure of the Office of
the Ombudsman), and any other provision of
law or issuance implementing the aforesaid
Act and insofar as they provide for appeals
in administrative disciplinary cases from the
Office of the Ombudsman to the Supreme
Court, are declared INVALID for increasing
the Courts appellate jurisdiction. However, it
cannot be said that transfer of appellate
jurisdiction to the CA is an act of creating a
new right of appeal because such power of
the SC to transfer appeals to subordinate
appellate courts is purely a procedural and
not a substantive power. [Fabian vs
Desierto, (1998)]
3.
Other Powers
i.
Rule-making
Art. VIII, Sec. 5. The Supreme Court shall have the
following powers:
xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance
to the under-privileged.
The 1987 Constitution took away the power

of Congress to repeal, alter, or supplement
rules concerning pleading, practice and
procedure. In fine, the power to
promulgate rules of pleading, practice
and procedure is no longer shared by this
Court with Congress, more so with the
Executive. [Echegaray vs Secretary of
Justice, (1999)]
23
Limitations:
a. Shall provide a simplified and inexpensive
procedure for speedy disposition of cases
b. Uniform for all courts in the same grade
c. Shall not diminish, increase or modify
substantive rights
ii.
ii.
Administrative
a. Assign temporarily judges of lower courts to
other stations as public interest may require;
shall not exceed 6 months without the
consent of the judge concerned
b. Order a change of venue or place of trial to
avoid a miscarriage of justice;
c. Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law;
d. Supervision over all courts and the
personnel thereof;
e. Discipline judges of lower courts, or order
their dismissal by a vote of a majority of the
Members who actually took part in the
deliberations on the issues in the case and
voted [en banc].
4.
Manner of Sitting and Required Votes
i.
En banc
a. decided with the concurrence of a majority
of the Members who actually took part in
the deliberations and voted.
b. Instances when the SC sits en banc: (C-DDMM-PO)
Those involving the constitutionality,
application, or operation of: (TOILPIPOO)
Treaty
Orders
International
or
executive
agreement
Law
Presidential decrees
Instructions
Proclamations
Ordinances
Other regulations
Exercise of the power to discipline
judges of lower courts, or order their
dismissal [Art. VIII, Sec. 11]
Cases or matters heard by a division
where the required number of votes to
decide or resolve (the majority of those
who took part in the deliberations on the
issues in the case and voted thereon
and in no case less than 3 members) is
not met [Art. VIII, Sec. 4(3)]
Modifying or reversing a doctrine or
principle of law laid down by the court in
a decision rendered en banc or in
division [Art. VIII, Sec. 4(3)]
Actions instituted by citizen to test the
validity of a proclamation of martial law
or suspension of the privilege of the writ
[Art. VII, Sec. 18]
When sitting as Presidential Electoral

Tribunal [Art. VII, Sec. 4, par. 7]
All other cases which under the Rules of
Court are required to be heard by the
SC en banc. [Id., Sec. 4(2)]
In divisions
Requirement and Procedures:
With the concurrence of a majority of the

Members who actually took part in the
deliberations and voted
In no case without the concurrence of at

least three of such Members
When required number is not obtained,

the case shall be decided en banc:
Provided: that no doctrine or principle of
law laid down by the court in a decision
rendered en banc or in division may be
modified or reversed except by the court
sitting en banc
The Supreme Court sitting en banc is not an

appellate court vis--vis its Divisions. The
only constraint is that any doctrine or
principle of law laid down by the Court, either
rendered en banc or in division, may be
overturned or reversed only by the Court
sitting en banc.[ Firestone Ceramics v. CA,
(2000)]
iii. Provisions of the Rules of Court

Rule 56, Sec. 7. Procedure if opinion is equally divided.
Where the court en banc is equally divided or the
necessary majority cannot be had, the case shall again
be deliberated on, and if after such deliberation no
decision is reached, the original action commenced
in the court shall be dismissed; in appealed cases,
the judgment or order appealed from shall stand
affirmed; and on all incidental matters, the petition or
motion shall de denied.
Rule 125, Sec. 3. Decision if opinion is equally

divided. When the Supreme Court en banc is
equally divided or the necessary majority cannot
be had on whether to acquit the appellant, the
case shall again be deliberated upon and if no
decision is reached after re-deliberation, the
judgment of conviction of the lower court
shall be reversed and the accused acquitted.
5.
Requirements as to Decisions
(applicable also to lower collegiate courts)
i.
ii.
iii.
iv.
Conclusions shall be reached in consultation

before the case is assigned to a Member for the
writing of the opinion;
Certification to this effect signed by the Chief
Justice shall be issued and a copy thereof
attached to the record of the case and served
upon the parties;
Any Member who took no part, or dissented, or
abstained from a decision or resolution must
state the reason;
Decision shall clearly and distinctly express
the facts and the law on which it is based
24
No petition for review or MR of a decision

shall be refused due course or denied
without stating the legal basis
The Court reminds all lower courts, lawyers,
and litigants that it disposes of the bulk of its
cases by minute resolutions and decrees
them as final and executory, as where a
case is patently without merit, where the
issues raised are factual in nature, where the
decision appealed from is supported by
substantial evidence and is in accord with
the facts of the case and the applicable laws,
where it is clear from the records that the
petition is filed merely to forestall the early
execution of judgment and for noncompliance with the rules. The resolution
denying due course or dismissing the
petition always gives the legal basis. As
emphasized in In Re: Wenceslao Laureta
(1987), The Court is not duty bound to
render signed Decisions all the time. It has
ample discretion to formulate Decisions
and/or Minute Resolutions, provided a
legal basis is given, depending on its
evaluation of a case. This is the only way
whereby it can act on all cases filed before it
and, accordingly discharge its constitutional
functions. [Borromeo vs. Court of Appeals,
(1990)]
iii.
2.
Function
i.
ii.
3.
Representative of the Integrated Bar (4

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

year)
Clerk of SC as Secretary ex officio
Recommending appointees to the Judiciary;
Such other functions and duties as the SC
may assign.
Procedure
i.
Members of the SC and Judges of lower

courts
appointed by the Pres. from a list of at

least 3 nominees prepared by the JBC
for every vacancy
no confirmation needed
ii. Lower courts
President shall issue the appointments

within 90 days from the submission of
the list
III. Executive
A. The President
6.
Mandatory Period for Deciding Cases
SUPREME
COURT
24
months
from date of
submission
LOWER
COLLEGIATE
COURTS
12 months, unless
reduced by SC
LOWER COURTS
1.
Qualifications, Election, Term and Oath
i.
Qualifications (Sec. 2, Art VII)
natural-born citizen of the Philippines
a registered voter
able to read and write
at least forty years of age on the day of the

election
a resident of the Philippines for at least ten

years immediately preceding such election.
o residency and domicile mean the same
thing under election law
o The ff must be taken into consideration:
1. bodily presence
2. animus manendi
3. animus revertendi
The candidate must be qualified on the day

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

regular election for President and VicePresident shall be held on the second
Monday of May.
Canvassing of votes:
o Congress shall promulgate rules for
canvassing of the certificates.
o Board of canvassers duly certifies
returns of every election for President
and VP and transmits them to
Congress, directed to the Senate
President.
3 months, unless
reduced by SC
Art. VIII, Sec. 15(3). Upon the expiration of the

corresponding period, a certification to this effect signed by
the Chief Justice or the presiding judge shall forthwith be
issued and a copy therefor attached to the record of the case
or matter, and served upon the parties. The certification shall
state why a decision or resolution has not been rendered
or issued within said period.
Art. VIII, Sec. 15(4). Despite the expiration of the
applicable mandatory period, the court, without prejudice to
such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the case or
matter submitted thereto for determination, without further
delay.
C. Judicial and Bar Council

1.
Composition
i.
Ex Officio Members
Chief Justice as ex officio Chairman
Secretary of Justice
Representative of the Congress

ii. Regular Members
appointed by the President for a term of
4 years with the consent of the
Commission on Appointments but the
term of those initially appointed shall be
staggered as to create continuity
25
Senate President shall, not later than 30

days after the day of election (2nd
Tuesday of June), open all certificates in
the presence of the members of
Congress in a joint public session. The
Congress, upon determination of the
authenticity and due execution of the
certificates, shall canvass the votes.
The persons having the highest number
of votes shall be proclaimed elected. In
case of a tie, one of the candidates shall
be chosen by the vote of a majority of all
the members of Congress, voting
separately.
The Supreme Court en banc, shall be
the sole judge of all contests relating to
the election, returns, and qualifications
of the President, or VP, and may
promulgate its rules for the purpose.
B.
Regular Election and Term

o The President and Vice-President (who shall
be elected with and in the same manner as
the President) shall be elected by direct vote
of the people for a term of 6 years
o
Term shall begin on the noon of June 30
next following the day of election. *The
regular election for President and Vicend
President shall be held on the 2 Monday of
May. (Art. VII, Sec. 4 pars. 1 & 3).
Special Election and Term
o A special election to elect the President and
Vice-President shall be called by Congress,
pursuant to Art VII, Section 10, if
1. a vacancy occurs in the offices of
President and Vice- President
2. more than 18 months
3. before the date of the next regular
presidential election.
o The failure of the SC to issue an injunction
on time is a decision in itself in favor of the
validity of the law calling for Snap Elections
despite the absence of vacancy. [Philippine
Bar Association, Inc. v COMELEC, (1985)]
o The Constitution is silent as to whether the
persons elected in the special election shall
serve only for the unexpired portion of the
term.
Whether the new President can run for reelection if he has not served more than 4
years (Art VII, Section 4, par. 1) depends on
the construction of the phrase "has
succeeded as the President.
Re-election
A.
President
o Not eligible for any re-election.
o No person who has "succeeded" as
President and has served as such for
more than 4 years, shall be qualified for
any election to the same office (the
Presidency) at any time. (par. 1 Sec. 4,
Art VII)
The person who succeeds as

President and not just in an acting
capacity, could either be
(i) the Vice-President, or
(ii) one who was elected President
in a special election.
Vice President
o shall not serve for more than 2
successive terms.
o
a voluntary renunciation of office for
any length of time, shall not be
considered an interruption in the
continuity of the service for the full terms
for which he was elected. (par 2, Sec. 4,
Art VII).
applicable beginning 1992, because

of the Transitory Provisions. This
prohibition is similar to that
applicable to Senators.
Canvassing of Election Returns

o
Congress acts as Board of Canvassers of

every election for President and VicePresident.
Electoral Tribunal for the Election of the

President and Vice- President
o
The Supreme Court, sitting en banc, shall be

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

Congress are under the exclusive
jurisdiction of their respective Electoral
Tribunals, those in the Executive are
under the Supreme Court itself.
iii. Oath of Office (Sec 5, Art VII)
Before they enter into office, the President,

the Vice-President or the Acting President
shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will
faithfully and conscientiously fulfill my duties
as President (or Vice-President or Acting
President) of the Philippines, preserve and
defend its Constitution, execute its laws, do
justice to every man, and consecrate to
myself to the service of the Nation. So help
me God."
(In case of affirmation, last
sentence will be omitted.)
2.
Privilege and Salary
o
o
The President shall have an official residence.

The salaries of the President and Vice-President
shall be determined by law and shall not be
decreased during their tenure.
No increase in said compensation shall take

effect until after the expiration of the term of
the incumbent during which such increase
was approved.
Unless the Congress provides otherwise, the

President shall receive an annual salary of P
26
300,000 (Sec 17, Art XVIII)

They shall not receive during their tenure any
other emolument from the Government or any
other source.
3.
Prohibitions (Sec 13, Art VII)
Prohibited acts:
i. Hold any other office or employment during
their tenure, unless otherwise provided in the
Constitution
ii. Directly or indirectly practice any other
profession
iii. Directly or indirectly participate in any
business
iv. Be financially interested in any contract with,
or in any franchise, or special privilege
granted by the Government or any
subdivision, agency or instrumentality
thereof,
including
GOCCs
or
their
subsidiaries.
v. Appoint Presidents spouse and relatives by
consanguinity or affinity within the 4th civil
degree as Members of the Constitutional
Commissions, or the Office of the
Ombudsman,
or
as
Secretaries,
Undersecretaries, chairmen or heads of
bureaus or offices, including GOCCs and
their subsidiaries.
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 his

official family under Sec. 13, Art. VII as compared to
the prohibition applicable to appointive officials in
general under Art. IX, B, Sec. 7, par. 2 are proof of
the intent of the 1987 Constitution to treat them as
a class by itself and to impose upon said class
stricter prohibitions.
However, the prohibition against holding dual or
multiple offices or employment under Art. VII, Sec. 13
must not be construed as applying to posts
occupied by the Executive officials specified
therein w/o additional compensation in an exofficio capacity as provided by law and as required
by the primary functions of said official's office. The
reason is that these posts do not comprise "any
other office" w/in the contemplation of the
constitutional prohibition but are properly an
imposition of additional duties and function on
said officials. [Civil Liberties Union v Executive
Secretary, (1991)]
o Prohibitions against other officials
(1.) Sec. 13, Art VI
No Senator or Member of the House of
Representatives, during his term, may:
o hold any other office or employment in the
Government, or any of its subdivisions,
agencies, or instrumentalities including
GOCCs or their subsidiaries
o be appointed to any office which may have
been created or the emoluments thereof
increased during the term for which he was

elected
(2.) Sec. 2, Art IX-A
No member of the Constitutional Commission
during his term, shall:
o hold any other office or employment.
o engage in the practice of any profession or in
the active management or control of any
business which in any way may be affected
by the functions of his office
o be financially interested, directly or indirectly,
in any contract with, or in any franchise or
privilege granted by the Government, any of
its
subdivisions,
agencies,
or
instrumentalities, including governmentowned or controlled corporations or their
subsidiaries.
(3.) Sec. 7. Art IX B
No elective official during his tenure shall:
o be eligible for appointment or designation in
any capacity to any public office or position.
No appointive official shall:
o hold any other office or employment in the
Government or any of its subdivisions,
agencies or instrumentalities, including
GOCCs or their subsidiaries.
(4.) Sec. 12, Art VIII
The Members of the Supreme Court and of other
courts established by law shall not be designated
to any agency performing quasi-judicial or
administrative functions.
o
Exceptions to rule prohibiting executive

officials from holding additional positions:
a.
President
(1) The President can assume a Cabinet
post, (because the departments are
mere extensions of his personality,
according to the Doctrine of Qualified
Political Agency, so no objection can
be validly raised based on Sec. 13, Art
VII
(2) The President is the Chairman of NEDA.
(Sec. 9, Art XII)
b.
Vice-President
xxx The Vice-President may be appointed as
member of the Cabinet. Such appointment
requires no confirmation (Sec 3, Art VII)
c.
Cabinet
(1) The Secretary of Justice shall be an exofficio member of the Judicial and Bar
Council. ( Sec. 8[1], Art VIII)
(2) Unless otherwise allowed by law or by
the primary functions of his position,
appointive officials shall not hold any
other office or employment in the
Government or any subdivision, agency
or instrumentality thereof, including
governmentowned or controlled
27
corporations or their subsidiaries. (Art.

IX, B, 7, par. 2)
Art. VII, Sec. 13 talks of "unless otherwise
provided by the Constitution." In the case of
Cabinet members, this refers to Art. IX, B, 7,
par. 2.
Thus, the Constitution allows a Cabinet
member to hold another office provided
either
(1) such is necessitated by the primary
functions of his position
a. Secretary of Trade and Industry as
Chairman of NDC
b. Secretary of Agrarian Reform as
Chairman of the Land Bank
(2) such is allowed by law.
4. Succession
Vacancy in the Presidency
Two sets of rules in succession:
1. vacancy took place before the beginning of the
term on June 30
2. vacancy during the pendency of the terms that
commences on June 30
i.
Effect
VP shall act as President
until the President-elect shall
have qualified, or shall have
been "chosen and qualified,
as the case may be. (pars. 2
& 3, sec 7, Par VII).
VP elect shall become the

President. (par. 4, Sec 7, Art
VII)
Senate President, or in case
of his inability, the Speaker
of the House, shall act as
President until a President
or a VP shall have been
"chosen" and qualified. (par.
5)
In
case
both
Senate
President and Speaker of
the House are unable to act
as President, Congress shall
by law, provide for the
"manner of selecting" the
one who will act as
President until a President
or VP shall have been either
"chosen"
or
"elected"
pursuant to the special
election referred to in Art VII,
Sec 10, and qualified.
Permanent Vacancy in the Presidency during

the term
Causes
President's
1. death
2. permanent disability,
3. removal from office
(impeached), or
4. resignation*
Both the President's and
VP's
1. death
2. permanent disability
3. removal from office
(impeached)
4. resignation
Acting President
1. dies
2. becomes permanently
disabled
3. resigns
Effect
VP shall become President
for the unexpired portion of
the term. (par. 1)
Senate President or, in case

of his inability, the Speaker
of the House, shall become
Acting President until the
President or VP shall have
been "elected" (pursuant to
Art. VII, Sec. 10) and
qualified. (par. 1.)
Congress shall by law,
provide "who" shall be
Acting President until the
President or VP shall have
been "elected" (pursuant to
Art. VII, Sec. 10) and
qualified. Acting President
shall be subject to the same
restrictions of powers and
disqualifications.(par. 2)
The presidents resignation must be willful and

intentional, and it must be strictly construed.
When impeachment proceedings have become
moot due to the resignation of the Pres, proper
criminal and civil cases may already be filed
against him. [Estrada v. Desierto (2001)]
The totality test was applied to determine

whether or not the president has indeed
resigned. Many things were considered including
the Angara Diary. [Resn on the Motion for Recon
(2001]
Temporary or permanent vacancy in the

Presidency before the term
Causes
President has not yet
qualified (e.g. he had
an operation and so he
could not take his oath
of office on June 30)
2. President has not yet
been "chosen" and
qualified (e.g. there is a
tie and Congress has
not yet broken the tie)
President-elect
1. dies, or
2. becomes permanently
disabled
Both President and VP
1. have not been "chosen"
or
2. have not qualified, or
3. die, or
4. become
permanently
disabled
1.
ii.
Comparisons and distinctions between the two

vacancies:
a)
b)
c)
d)
The incumbent President never holds-over the

Presidency in any case.
The vacancy must occur in the offices of both the
President and Vice-President in order for the Senate
President, or the Speaker, or, in their inability, the
one provided to succeed according to the Law of
Succession passed by the Congress, to succeed as
Acting President until the qualification of the President.
The Law on Succession must be passed by the
Congress in both cases in the event that the
President, Vice-President, Senate President and the
Speaker are all unable to act as President. But in
the case of a vacancy occurring before the term, the
law provides only for the "manner of selecting" the
Acting President, while in the case of a vacancy
occurring during the term, it provides for "the
person" who shall act as President. In both cases,
the stint of the Acting President is temporary.
When the vacancy comes before the term, the
Constitution talks of the successor acting as
President until a President has been "chosen" and
"qualified";
when it comes during, it talks of
"elected" and qualified. The reason is that before
the term, the vacancy in the Presidency need not be
filled up by election, since it may be filled up by a
28
e)
f)
vote of Congress in case of a tie (Art. VII, Sec. 4,

par. 5); but during the term, the only way to fill up
the vacancy is by special election.
A special election in both cases is held, pursuant to
Art. VII, Sec. 10, only when both offices of President
and Vice-President are vacant. However, if the
vacancy occurs before the term, the grounds are
limited to 2 (death and permanent disability or both),
while if the vacancy occurs during the term, the
grounds are 4 (death, permanent disability, removal,
and resignation).
The vacancy that occurs before the term of office
may be temporary or permanent; the vacancy that
occurs during the term of office can only be a
permanent one. Thus, a different set of rules
applies, to be discussed next following, in case of
the temporary inability of the President during the
term of office.
b.
4.
Special election in Sec. 10, Art VII.
1.
2.
The Congress shall, at ten o'clock in the morning

of the third day after the vacancy in the offices of
the President and Vice-President occurs,
convene in accordance with its rules without
need of a call
Within seven days enact a law calling for a
special election to elect a President and a VicePresident to be held not earlier than forty-five
days nor later than sixty days from the time of
such call.
The bill calling such special election:
a.
Voluntary
Declaration
Inability
President
Contested
Inability of
President
is deemed certified under paragraph 2,

Section 26, Article VI
of
by
the
Appropriations for the special election

a.
b.
3.
(xxx the President certifies to the necessity

of its immediate enactment to meet a
public calamity or emergency xxx)
shall become law upon its approval on
third reading by the Congress.
charged against any current appropriations
exempt from the requirements of
paragraph 4, Section 25, Article VI of this
Constitution.
(A special appropriations bill shall specify
the purpose for which it is intended, and
shall be supported by funds actually
available as certified by the National
Treasurer, or to be raised by a
corresponding revenue proposal therein)
The convening of the Congress cannot be

suspended nor the special election postponed.
No special election shall be called if the vacancy
occurs within eighteen months before the date of
the next presidential election.
iii. Temporary Vacancy in the Presidency During

the term
o
A vacancy in the Presidency arising from his

disability can occur in any of the ff ways:
1. A written declaration by the President
2. Written declaration by the Cabinet
3. Finding by Congress by 2/3 vote that the
President is disabled.
In all these cases, the Vice-President temporarily
acts as the President.
Actions Required
Effect
President transmits to Senate President

and Speaker of the House his written
declaration that he is unable to discharge
the powers and duties of his office
1. Majority of all Cabinet members
transmit to the Senate President and
Speaker of the House their written
declaration that the President is unable to
discharge his office.
2. President contests by sending his own
written declaration to the Senate
President and Speaker that no inability
exists.
3. Majority of the Cabinet insist on their
original stand by transmitting a second
written declaration of the President's
inability within 5 days from resumption of
office of the President.
VP to become Acting President until the President transmits to

Senate President and Speaker of the House a written declaration
that he is no longer unable to discharge his office.
VP shall immediately assume the Presidency in an acting capacity
President shall automatically assume his office.
a. Congress shall convene, if it is not in session, within 48 hours,

without need of call, in accordance with its rules, and decide
before the 12th day after it is required to assemble. If it is already
in session, it must meet immediately, and decide within 10 days
after receipt of the second written declaration by the Cabinet
b. If the President, by a 2/3 vote of both houses voting separately,
is determined to be "unable" to discharge his office, then the VP
shall act as President. If less than 2/3 find him unable, the
President shall continue exercising the powers and duties of his
office.
29
Serious Illness of the President (Sec 12, Art VII)

a. The public shall be informed of the state of
his health.
b. The members of the Cabinet in charge of
national security and foreign relations and
the Chief of Staff of the Armed Forces of the
Philippines, shall not be denied access to the
President during such illness.
The same shall constitute the Articles of

Impeachment, and trial by the Senate shall
forthwith proceed.
5.
No impeachment proceedings shall be initiated

against the same official more than once within a
period of one year.
6.
The Senate shall have the sole power to try and

decide all cases of impeachment. No person shall
be convicted without the concurrence of twothirds of all the Members of the Senate.
o When sitting for that purpose, the Senators
shall be on oath or affirmation.
o When the President of the Philippines is on
trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote.
7.
Judgment in cases of impeachment shall not

extend further than:
o removal from office and
o disqualification to hold any office under the
Republic of the Philippines.
But the party convicted shall nevertheless be
liable and subject to prosecution, trial, and
punishment according to law.
5. Removal
i.
Impeachment, Sec. 2, Art XI.
Who are Subject to Impeachment:
The President
the Vice-President
the Members of the Supreme Court
the
Members
of
the
Constitutional
Commissions
Ombudsman
Reasons for Impeachment
culpable violation of the Constitution
treason
bribery
graft and corruption
other high crimes
betrayal of public trust.

All other public officers and employees may be
removed from office as provided by law, but not
by impeachment.
The officer can still be tried for a criminal case

aside from impeachment. (BERNAS)
Initiation - governed by the rules of the House of
Reps;
ii.
Impeachment Process Art. XI, Sec. 3.
Trial-governed by the rules of the Senate.
1.
Who may initiate

The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment.
2.
Verified Complaint
a. A verified complaint for impeachment may be
filed by any Member of the House of
Representatives or by any citizen upon
resolution of endorsement by any Member
thereof
b. Verified Complaint shall be included in the
Order of Business within ten session days,
and referred to the proper Committee within
three session days thereafter.
c. The Committee, after hearing, and by a
majority vote of all its Members, shall submit
its report to the House within sixty session
days from such referral, together with the
corresponding resolution.
d. The resolution shall be calendared for
consideration by the House within ten
session days from receipt thereof.
The
basic
issue
here
was
the
constitutionality of the filing of the second
impeachment complaint against then Chief
Justice Davide. The following are the pertinent
constitutional provisions:
3.
Number of votes necessary

A vote of at least one-third of all the Members of
the House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member
shall be recorded.
4.
In case the verified complaint or resolution of

impeachment is filed by at least one-third of all
the Members of the House.
Art. XI, Section 3 (1) The House of

Representatives shall have the exclusive power
to initiate all cases of impeachment. [Francisco
v. House of Representatives, (2003)]
xxx
(5) No impeachment proceedings shall be
initiated against the same official more than once
within a period of one year.
The Court held that once an impeachment
complaint has been initiated and subsequently
dismissed, another impeachment complaint may
no longer be filed until after the lapse of one year.
In so ruling, the Court differentiated between the
initiation of the impeachment case and the
impeachment proceeding. The latter is initiated
when a verified complaint is filed and referred to
the House Committee on Justice for action, or by
the filing of at least 1/3 of the Members of the
House with the Secretary General of the House.
In consequence therefore, once an impeachment
complaint
has
been
initiated,
another
impeachment complaint may not be filed against
the same official within a 1-year period. The
House Impeachment Rules were thereby
declared unconstitutional for giving the term
initiate a different meaning, i.e., it pegged the
initiation of the impeachment proceedings to,
among others, the finding by the House
30
Committee on Justice that the verified complaint

and/or resolution is sufficient in substance.
6.
Powers and Functions of the President
o
o
o
o
o
o
Executive power
Control of executive departments
General supervision of local governments
Power of appointment
Executive clemencies
Commander in chief powers
Military powers
Suspension of the writ of habeas corpus
Martial law
Emergency powers
Contracting and guaranteeing foreign loans
Powers over foreign affairs
Power over legislation
Immunity from suit
o
o
o
o
o
the Constitution or by the law to act in person or

the exigencies of the situation demand that he act
personally, the multifarious executive and
administrative functions of the Chief Executive
are performed by and through the executive
depts., performed and promulgated in the regular
course of business, are, unless disapproved or
reprobated by the Chief Executive, presumptively
acts of the Chief Executive. [Free Telephone
Workers Union vs. Minister of Labor and
Employment (1981)]
(C) General Supervision of Local Governments

and Autonomous Regions
The President shall exercise general supervision

over local governments. (Sec 4, Art X)
The President shall exercise general supervision

over autonomous regions to ensure that laws are
faithfully executed. (Sec 16, Art X)
(A) Executive Power

o
It is the duty to implement the laws within the

standards imposed by the legislature. *This
power is exercised by the President. (Sec 1 Art
VII)
The President shall have control of all the
executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed
(Sec 17).
The Court held that as administrative head of

the government, the President is vested with
the power to execute, administer and carry
out laws into practical operation. [National
Electrification Commission vs. CA (1997)]
The powers of the President cannot be said to be

limited only to the specific power enumerated in
the Constitution. In other words, executive power
is more than the sum of specific powers so
enumerated.
The framers did not intend that by enumerating
the powers of the Pres, he shall exercise those
powers and no other.
These unstated residual powers are implied
from the grant of executive power and which
are necessary for the Pres to comply with his
duties under the Constitution. [Marcos vs
Manglapus (1989)]
Supervision and Control Distinguished

Supervision
- Overseeing or the power or
authority of the officer to see
that
subordinate
officers
perform their duties, and if the
latter fail or neglect to fulfill
them, then the former may take
such action or steps as
prescribed by law to make
them perform these duties.
- This does not include the power
to overrule their acts, if these
acts are within their discretion.
(D) Power of appointment

o
Definition: the selection, by the authority vested

with the power, of an individual who is to exercise
the functions of a given office.
Appointment is distinguished from:

1. Designation imposition of additional duties,
usually by law, on a person already in the
public service
2. Commission written evidence of the
appointment
Classification of Power of Appointment:

1.
(B) Control of Executive Departments

(Sec 17, Art VII)
Control is the power of an officer to alter or

modify or nullify or to set aside what a
subordinate has done in the performance of his
duties and to substitute one's own judgment to
that of a subordinate.
Qualified political agency doctrine (also alter
ego principle)- all the different executive and
administrative organizations are mere adjuncts of
the Executive Department, the heads of the
various executive departments are assistants and
agents of the Chief Executive, and, except in
cases wherein the Chief Executive is required by
Control
- Power of an officer to
alter, modify, nullify
or set aside what a
subordinate officer had
done
and
to
substitute
the
judgment of the former
for that of the latter.
With the consent of the Commission on

Appointments
There are 4 groups of officers whom the
Pres may appoint:
1.
2.
3.
Heads of the Executive Department,

ambassadors, other public ministers and
consuls, officers of the armed forces
from the rank of colonel or naval captain
and other officers whose appointments
are vested in him;
All other officers of the government
whose appointments are not otherwise
provided by law;
Those whom the President may be
authorized to appoint;
31
4.
Officers
lower
in
rank
whose
appointments Congress may by law vest
in the President alone.
Heads of bureaus were deliberately removed

from the provision of appointments requiring
th
confirmation and were included in the 4
group and hence, their appointments no
longer need confirmation. [Sarmiento vs
Mison, (1987)]
The seats reserved for sectoral reps may be
filled by appointment by the President under
Art XVIII, Sec7. It is indubitable that sectoral
representatives to the House are among the
other officers whose appointments are
vested in the Pres in this Constitution,
st
referred to in the 1 sentence of Art. VII, Sec.
16.
These appointments require the
confirmation of the Commission on
Appointments.
Notes: From the rulings in Sarmiento III v.
Mison 1987, Bautista v. Salonga 1989, and
Deles v. Constitutional Commission 1989,
these doctrines are deducible:
1.
2.
Confirmation by the Commission on

Appointments is required only for
presidential appointees as mentioned in
the first sentence of Sec. 16, Art. VII,
including
those
officers
whose
appointments are expressly vested by
the Constitution itself in the President:
(a) Heads of the executive departments
(b) Ambassadors,
other
public
ministers and consuls
(c) Officers of the Armed Forces of the
Philippines with the rank of colonel
or naval captain (because these are
officers of a sizeable command
enough to stage a coup)
(d) Other officers whose appointments
are vested in the President in the
Constitution:
(i) Chairman and Commissioners
of
the
Constitutional
Commissions (Sec 1 Art IX-B,
Sec 1 (2) Art IX-B, Sec 1(2) Art
Ix-D)
(ii) Regular members of the
Judicial and Bar Council (Sec 8
(2) Art VII)
(iii) Sectoral representatives (Sec 7
Art XVIII, Sec 18 Art X)
Confirmation is not required when the
President appoints other government
officers whose appointments are not
otherwise provided for by law or those
officers whom he may be authorized by
law to appoint (like the Chairman and
Members of the Commission on Human
Rights). Also, as observed in Sarmiento
v. Mison, when Congress:
o creates inferior offices but omits to
provide for appointment thereto, or
provides in an unconstitutional
manner for such appointments
the officers are considered as among
those whose appointments are not
otherwise provided for by law.
o
2.
Upon Recommendation of the Judicial and

Bar Council
(a) Members of the Supreme Court and all
other courts. (Sec 9, Art VIII)
a. Appointments need no confirmation
b. For lower courts, appointment shall
be issued within 90 days from
submission of the list
(b) Ombudsman and his 5 deputies (for
Luzon, Visayas, Mindanao, general and
military) Sec 9 Art XI
a. Such appointments shall require no
confirmation.
b. All vacancies shall be filled within
three months after they occur.
3.
Appointment of Vice-President as Member of

the Cabinet (Sec 3, Art.VII)
o
4.
Appointment requires no confirmation
Appointments solely by the President (Sec.

16, Art VII)
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

otherwise provided by law.
3.
Those whom he may be authorized by

law to appoint.
4.
Those other officers lower in rank whose

appointment is vested by law in the
President (alone).The phraseology is
muddled:
Sarmiento v Mison (1987):

In arguing that even bureau chiefs needed
confirmation even if they are of inferior rank,
the basis was the phrase, "the Congress
may, by law, vest in the appointment of other
officers lower in rank in the President alone".
This meant that until a law is passed giving
such appointing power to the President
alone, then such appointment has to be
confirmed.
The SC dismissed this view
however, saying that the inclusion of the
word "alone" was an oversight. Thus, the
Constitution should read "The Congress
may, by law, vest the appointment of other
officers lower in rank in the President."
o
Limitations on appointing power of the

President
a.
The spouse and relatives by

consanguinity or affinity within the 4th
civil degree of the President shall not,
during his "tenure", be appointed as (sec
13, Art VII)
32
(i)
(ii)
(iii)
(iv)
(v)
b.
c.
members of the Constitutional

Commissions,
member
of
the
Office
of
Ombudsman,
Secretaries,
Undersecretaries,
Chairmen or heads of bureaus or
offices,
including
governmentowned or controlled corporations
and their subsidiaries.
The President shall have the power to

make appointments during the recess
of the Congress, whether voluntary or
compulsory, but such appointments
shall be effective only until disapproval
by the Commission on Appointments or
until the next adjournment of the Congress. (par 2, Sec 16, Art VII)
Interim or recess appointments

1)
Two months immediately before the next

presidential elections (2nd Monday of
March), and up to the end of his "term"
(June 30), a President (or Acting
President) shall not make appointments.
(Sec 15, Art VII)
recess
(ad-interim)
Appointments requiring confirmation

are of two kinds
(i) regular, if the CA, that is,
Congress, is in session
(ii) during the recess of Congress
(because the Commission shall
meet only while Congress is in
session [Art. VI, Sec. 19]).
Regular appointment - one made by

the President while Congress is in
session, takes effect only after
confirmation by the Commission on
Appointments, and once approved,
continues until the end of the term of the
appointee.
Ad-interim appointment - one made by
the President while Congress is not in
session, takes effect immediately, but
ceases to be valid if disapproved by the
Commission on Appointments or upon
the next adjournment of Congress. (Art.
VII, Sec. 16, par. 2)
The SC ruled that while "midnight

appointments"
(note:
made
by
outgoing President near the end of his
term) are not illegal, they should be
made in the capacity of a "caretaker"
doubly careful and prudent in making
the selection, so as not to defeat the
policies of the incoming administration.
The filling up of vacancies in important
posts, if few, and so spaced as to afford
some assurance of deliberate action and
careful consideration of the need for the
appointment and the appointees
qualifications, may be undoubtedly
permitted. But the issuance of 350
appointments in one night and the
planned induction of almost all of them a
few hours before the inauguration of the
new President may be regarded as
abuse of presidential prerogatives.
[Aytona vs Castillo (1962)]
The SC emphasized that the Aytona
ruling does not declare all midnight
appointments as invalid, and that the ad
interim appointment of the petitioner
chief of police here, whose qualification
and regularity were not disputed, except
for the fact that it was made during the
last few days of the old administration, is
thus
not
invalid.
[Quimsing
vs
Tajanglangit (1964)]
Regular
and
appointments
Exception:
Temporary appointments, to executive
positions, when continued vacancies will
(1) prejudice
public
service
(e.g
Postmaster); or
(2) endanger public safety (e.g. Chief of
Staff).
The prohibition against midnight

appointments applies only to the
president and does not extend to
local elective officials.
Moreover,
there is no law that prohibits local
elective
officials
from
making
appointments during the last days of his
or her tenure. [De Rama v. CA (2001)]
2)
Ad interim appointment a
permanent appointment made by
the Pres in the meantime that
Congress is in recess.
It is
permanent as it takes effect
immediately and can no longer be
withdrawn by the President once
the appointee has qualified into
office. The fact that it is subject to
the confirmation of the Commission
on Appointments does not alter its
permanent character. Hence, said
appointment is effective until (1)
disapproved by the CA or (2) the
next adjournment of Congress
[Matibag vs Benipayo (2002)]
Acting/Temporary appointment can be

withdrawn or revoked at the pleasure of
the appointing power. The appointee
does not enjoy security of tenure. This
is the kind of appointment that the
Constitution prohibits the Pres from
making to the independent constitutional
commissions.
The mere filing of a motion for
reconsideration of the confirmation of an
appointment cannot have the effect of
33
recalling
or
setting
aside
said
appointment. The Consti is clear there
must either be a rejection by the
Commission on Appointments or nonaction on its part for the confirmation to
be recalled.
Also, the power to approve or

disapprove appointments is conferred
on the CA as a body and not on the
individual
members.
[Pacete
vs
Secretary (1971)]
3)
Temporary Designations
Admin Code of 1987, Book III Sec. 17
The President may designate an officer
already in the govt. service or any other
competent person to perform the functions of
any office in the executive branch,
appointment to which is vested in him by law,
when:
(a) The officer regularly appointed to the
office is unable to perform his duties by
reason of illness, absence or any other
cause; or
(b) There exists a vacancy;
In no case shall a temporary designation
exceed one (1) year.
Limitations on the appointing power of the

Acting President
1.
2.
Appointments extended by an Acting

President shall remain effective unless
revoked by the elected President within
ninety days from his assumption or
reassumption of office. (Sec. 14 Art VII)
A President or Acting President shall not
make
appointments
two
months
immediately before the next presidential
elections and up to the end of his term
except temporary appointments to
executive positions when continued
vacancies therein will prejudice
public service or endanger public
safety. (Sec 15, Art VII)
7. Executive Clemencies
o
The President may grant:

a. Reprieves
a temporary relief from or postponement
of execution of criminal penalty or
sentence or a stay of execution.
(BLACK)
It is the withholding of a sentence for an
interval of time, a postponement of
execution, a temporary suspension of
execution. [People vs. Vera, supra]
b.
Commutations
Reduction of sentence. (BLACK)
It is a remission of a part of the
punishment; a substitution of a less
penalty for the one originally imposed.
[People vs. Vera, supra]
c.
Pardons, and
Permanent cancellation of sentence.
d.
(BLACK)
It is an act of grace proceeding from the
power entrusted with the execution of
the laws, which exempts the individual
on whom it is bestowed, from the
punishment the law inflicts for the crime
he has committed. It is a remission of
guilt, a forgiveness of the offense.
[People v Vera, supra]
Plenary or partial
o Plenary - extinguishes all the
penalties
imposed
upon
the
offender,
including
accessory
disabilities
o Partial does not extinguish all
penalties imposed
Absolute or conditional
o Conditional - the offender has the
right to reject the same since he
may feel that the condition imposed
is more onerous than the penalty
sought to be remitted.
o Absolute pardon - pardonee has no
option at all and must accept it
whether he likes it or not. In this
sense, an absolute pardon is similar
to commutation, w/c is also not
subject to acceptance by the
offender.
Remit fines and forfeitures, after conviction

by final judgment
Except:
(a) In cases of impeachment, and
(b) As otherwise provided in this Constitution
No pardon, amnesty, parole or

suspension of sentence for violation of
election laws, rules, and regulations
shall be granted by the President
without the favorable recommendation
by the Commission (on Elections.) (Sec
5, Art IX)
The President shall also have the power to grant

amnesty with the concurrence of a majority of all
the Members of the Congress. (Sec 19, Art VII)
Amnesty - a sovereign act of oblivion for past

acts, granted by government generally to a
class of persons who have been guilty
usually of political offenses and who are
subject to trial but have not yet been convicted, and often conditioned upon their
return to obedience and duty within a
prescribed time. (BLACK; Brown v Walker,
161 US 602).
Probation - a disposition under which a

defendant after conviction and sentence is
released subject to conditions imposed by
the court and to the supervision of a
probation officer. [Sec. 3 (a), PD 968.]
Parole - suspension of the sentence of a

convict granted by a Parole Board after
serving the minimum term of the indeterminate sentence penalty, without granting
a pardon, prescribing the terms upon which
the sentence shall be suspended. [REYES]
34
Effects of Pardon (Case Law)
There are 2 limitations upon the exercise of

the constitutional prerogative of the Pres. to
grant pardon: (1)
that the power be
exercised after conviction; (2) that such
power does not extend to cases of
impeachment.
[Cristobal v Labrador
(1940)]
Pardon implies guilt and does not erase the

fact of the commission of the crime and the
conviction thereof. It does not ipso facto
restore a convicted felon to a public office
necessarily relinquished or forfeited by
reason of the conviction although such
pardon undoubtedly restores his eligibility for
appointment to that office. [Monsanto vs
Factoran (1989)]
Application
of
Pardoning
Administrative Cases
Powers
Removal of Administrative Penalties

Sec. 53, Chapter 7, Subtitle A, Title I, Book V,
Administrative Code of 1987
Removal
of
Administrative
Penalties
or
Disabilities.-- In meritorious cases and upon
recommendation
of
the
(Civil
Service)
Commission, the President may commute or
Amnesty Proclamation No. 76 applies even

to
Hukbalahaps
already
undergoing
sentence upon the date of its promulgation.
The majority of the Court believes that by its
context and pervading spirit the proclamation
extends to all members of the Hukbalahap.
[Tolentino vs Catoy (1948)]
The SC agreed with the Sandiganbayan that
in fact the petitioners were expressly
disqualified from amnesty. The acts for
which they were convicted were ordinary
crimes without any political complexion
and consisting only of diversion of public
funds to private profit. The amnesty
proclamation covered only acts in the
furtherance of resistance to duly constituted
authorities of the Republic and applies only
to members of the MNLF, or other antigovernment groups. [Macaga-an vs People
(1987)]
8. Powers as Commander-in-Chief
o
Powers as Commander-in-Chief:
a. He may call out such armed forces to
prevent or suppress lawless violence,
invasion or rebellion.
b. He may suspend the privilege of the writ of
habeas corpus, or
c. He may proclaim martial law over the entire
Philippines or any part thereof.
Subject to judicial review to determine whether or

not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction (par.
2, Sec 1, Art VIII)
a.
Call out the AFP to prevent lawless violence
This is merely a police measure meant to quell

disorder. As such, the Constitution does not
regulate its exercise radically
It is not disputed that the President has full

discretionary power to call out the armed forces
and to determine the necessity for the exercise of
such power. While the Court may examine
whether the power was exercised within
constitutional limits or in a manner constituting
grave abuse of discretion, none of the petitioners
here have, by way of proof, supported their
assertion that the President acted without factual
basis. The President, in declaring a state of
rebellion and in calling out the armed forces, was
merely exercising a wedding of her Chief
Executive and Commander-in-Chief powers.
These are purely executive powers, vested on
the President by Sections 1 and 18, Article VII, as
to
If the President can grant reprieves,

commutations and pardons, and remit fines
and forfeitures in criminal cases, with much
more reason can she grant executive
clemency in administrative cases, which are
clearly less serious than criminal offenses.
However, the power of the President to grant
executive clemency in administrative cases
refers only to administrative cases in the
Executive branch and not in the Judicial or
Legislative branches of the govt. [Llamas v
Executive Secretary (1991)]
Who may avail of amnesty? (Case Law) (Asked 5

times in the Bar)
Absolute pardon has the effect of removing

the disqualification from voting and being
elected incident to criminal conviction under
Sec 94(a) of the Election Code.
The Chief Executive, after inquiry into the
environmental facts, should be at liberty to
atone the rigidity of the law to the extent of
relieving completely the party or parties
concerned from the accessory and resultant
disabilities of criminal conviction. [Pelobello
v. Palatino (1941)]
Notes:
"Pardon granted after conviction frees the
individual from all the penalties and legal
disabilities and restores him to all his civil rights.
But unless expressly grounded on the
person's innocence (w/c is rare), it cannot bring
back lost reputation for honesty, integrity and fair
dealing.
This must be constantly kept in mind lest we
lose track of the true character and purpose of
the privilege. xxx"
o
remove administrative penalties or disabilities

imposed upon officers or employees in disciplinary
cases, subject to such terms and conditions as he
may impose in the interest of the service
35
opposed to the delegated legislative powers

contemplated by Section 23 (2), Article VI.
[Sanlakas v Executive Secretary (2004)]
Assailed is PP1017 (Declaration of State of

National Emergency). It is different from the law
in Sanlakas as this proclamation was woven out
of the calling out and take care powers of the
President joined with the temporary takeover
provision under Art. XII, section 17.
PP1017 purports to grant the President, without

authority or delegation from Congress, to take
over or direct the operation of any privatelyowned public utility or business affected with
public interest.
The SC held that while the President could validly

declare the existence of a state of national
emergency even in the absence of a
Congressional enactment, the exercise of the
emergency powers, such as the taking over of
privately-owned public utility or business affected
with public interest, requires a delegation from
Congress which is the repository of emergency
powers.
PP1017 did not authorize said temporary take
over without authority from Congress. [David v.
Arroyo (2006)]
b.
Suspend the privilege of the writ of habeas

corpus
A "writ of habeas corpus" is an order from the

court commanding a detaining officer to inform
the court
(i) if he has the person in custody, and
(ii) his basis in detaining that person.
Effects of the suspension of the privilege:

1) The suspension of the privilege of the writ
applies only to persons "judicially charged"
for rebellion or offenses inherent in or directly
connected with invasion (Art. VII, Sec. 18,
par. 5).
Such persons suspected of the above

crimes can be arrested and detained
without a warrant of arrest.
The suspension of the privilege does

not make the arrest without warrant
legal. But the military is, in effect,
enabled to make the arrest, anyway
since, with the suspension of the
During the suspension of the privilege of the

writ, any person thus arrested or detained
shall be judicially charged within 3 days, or
otherwise he shall be released. (Art. VII,
Sec. 18, par. 6).
The effect of the suspension of the

privilege, therefore, is only to extend the
periods during which he can be detained
without a warrant. When the privilege is
suspended, the period is extended to 72
hours.
What happens if he is not judicially

charged nor released after 72 hours?
The public officer becomes liable under
Art. 125 for "delay in the delivery of
detained persons."
3)
The right to bail shall not be impaired even

when the privilege of the writ of habeas
corpus is suspended. (Art. III, Sec. 13)
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 any
part thereof.
Effects of the proclamation of martial law:

The President can:
1) Legislate
2) Order the arrest of people who obstruct the
war effort.
o
Requisites:
1) There must be an invasion or rebellion, and
2) The public safety requires the suspension.
2)
c.
The "privilege of the writ" is that portion of the writ

requiring the detaining officer to show cause why he
should not be tested. Note that it is the privilege that
is suspended, not the writ itself.
o
privilege, there is no remedy available

against such unlawful arrest (arbitrary
detention).
The arrest without warrant is justified by
the emergency situation
and the
difficulty in applying for a warrant
considering the time and the number of
persons to be arrested.
The crime for which he is arrested must
be one related to rebellion or invasion.
As to other crimes, the suspension of
the privilege does not apply.
But the following cannot be done (Art. VII, Sec.

18, par. 4)
a. Suspend the operation of the Constitution.
b. Supplant the functioning of the civil courts
and the legislative assemblies.
martial law is proclaimed only because
the courts and other civil institutions like
Congress have been shut down. It
should not happen that martial law is
declared in order to shut down the civil
institutions.
c. Confer jurisdiction upon military courts and
agencies over civilians, where civil courts are
able to function.
"open court" doctrine
o holds that civilians cannot be tried
by military courts if the civil courts
are open and functioning.
o if the civil courts are not functioning,
36
then civilians can be tried by the

military courts.
o Martial law usually contemplates a
case where the courts are already
closed and the civil institutions have
already crumbled, that is a "theater
of war." If the courts are still open,
the President can just suspend the
privilege and achieve the same
effect.
d. Automatically suspend the privilege of the
writ of habeas corpus.
The President must suspend the
privilege expressly.
The Role of Congress [Art. VII, Sec. 18, pars. 1-2]
a.
Congress may revoke the proclamation of martial

law or suspension of the privilege of the writ of
habeas corpus before the lapse of 60 days from
the date of suspension or proclamation
b.
Upon such proclamation or suspension,

Congress shall convene at once. If it is not in
session, it shall convene in accordance with its
rules without need of a call within 24 hours
following the proclamation or suspension.
c.
Within 48 hours from the proclamation or the

suspension, the President shall submit a report,
in person or in writing, to the Congress (meeting
in joint session of the action he has taken).
d.
The Congress shall then vote jointly, by an

absolute majority. It has two options:
(i) To revoke such proclamation or suspension.
The Role of the Supreme Court

[Art. VII, Sec. 18, par. 3]
o
The Supreme Court may review, in an

appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of:
(a) the proclamation of martial law or the
suspension of the privilege of the writ, or
(b) the extension thereof. It must promulgate its
decision thereon within 30 days from its
filing. (Sec 18 (3), Art. VII)
The jurisdiction of the SC may be invoked in a

proper case.
Petition for habeas corpus
When a person is arrested without a warrant

for complicity in the rebellion or invasion, he
or someone else in his behalf has the
standing to question the validity of the
proclamation or suspension.
Before the SC can decide on the legality of

his detention, it must first pass upon the
validity of the proclamation or suspension.
Test of Arbitrariness: [IBP v. Zamora, (2000)]
to be used by the Supreme Court in so

reviewing the act of the President in
proclaiming or suspending, or the act of
Congress in extending
seeks to determine the sufficiency of the

factual basis of the measure.
The question is not whether the President or

Congress acted correctly, but whether he
acted arbitrarily in that the action had no
basis in fact.
amounts to a determination of whether
or not there was grave abuse of discretion amounting to lack or excess of
jurisdiction. (Sec 1(2) Art. VIII)
When it so revokes, the President

cannot set aside (or veto) the revocation
as he normally would do in the case of
bills.
(ii) To extend it beyond the 60-day period of its

validity.
Congress can only so extend the
proclamation or suspension upon the
initiative of the President.
The period need not be 60 days; it could

be more, as Congress would determine,
based on the persistence of the
emergency.
If Congress fails to act before the
measure expires, it can no longer
extend it until the President again
redeclares the measure.
o
Congress cannot "validate" the proclamation or

suspension, because it is already valid.
If Congress extends the measure, but before the

period of extension lapses the requirements for
the proclamation or suspension no longer exist,
Congress can lift the extension, since the power
to confer implies the power to take back.
If Congress does not review or lift the order, this

can be reviewed by the Supreme Court pursuant
to the next section.
The issue there raised was whether in

suspending the privilege of the writ in 1971,
Marcos had a basis for doing so. The SC, in
considering the fact that the President based
his decision on (a) the Senate report on the
condition in Central Luzon and (b) a closed
door briefing by the military showing the
extent of subversion, concluded that the
President did not act arbitrarily. One may
disagree with his appreciation of the facts,
but one cannot say that it is without basis.
[Lansang v Garcia (1971)]
2 conditions must concur for the valid exercise of

authority to suspend the privilege:
(a) there must be an actual invasion,
insurrection, rebellion or imminent danger;
and
(b) public safety must require the suspension of
the privilege. [This holding of the SC is now
found in Art. VII, Sec. 18, par. 3.] The
function of the court is to check and not
supplant the executive or to ascertain merely
whether he has gone beyond the
constitutional limits of jurisdiction. The
proper standard is not correctness but
arbitrariness.
37
There are 4 ways, then, for the proclamation or

suspension to be lifted: (P-C-S-O)
1)
2)
3)
4)

o
Lifting by the President himself

Revocation by Congress
Nullification by the Supreme Court
Operation of law after 60 days
This power is:

(1) for a limited period, and
(2) subject to such restrictions as Congress may
provide.
The power ceases:
(a) upon being withdrawn by resolution of the
Congress, or, if Congress fails to adopt such
resolution,
(b) upon the next (voluntary) adjournment of
Congress. For the fact that Congress is able
to meet in session uninterruptedly and
adjourn of its own will proves that the
emergency no longer exists is to justify the
delegation.
Military trial of civilians void even under Martial

Law, if civil courts are open. (Sec 18(4) Art.
VII,).
Cf. RA 7055 (1991) "An Act Strengthening
Civilian Supremacy over the Military by Returning
to the Civil Courts the Jurisdiction over Certain
Offenses involving Members of the Armed Forces
of the Philippines, other Persons Subject to
Military Law, and the Members of the Philippine
National Police, Repealing for the Purpose
Certain Presidential Decrees"
This rule or the termination of the grant of

emergency powers is based on decided cases,
which in turn became Art. VII, Sec. 15 of the
1973 Constitution.
RA 7055 effectively placed upon the civil

courts the jurisdiction over certain offenses
involving members of the AFP and other
members subject to military law.
RA 7055 provides that when these

individuals commit crimes or offenses
penalized under the RPC, other special
penal laws, or local government ordinances,
regardless of whether civilians are coaccused, victims, or offended parties which
may be natural or juridical persons, they
shall be tried by the proper civil court, except
when the offense, as determined before
arraignment by the civil court, is serviceconnected in which case it shall be tried by
court-martial.
The assertion of military authority over

civilians cannot rest on the President's power
as Commander in Chief or on any theory of
martial law. As long as civil courts remain
open and are regularly functioning, military
tribunals cannot try and exercise jurisdiction
over civilians for offenses committed by them
and which are properly cognizable by civil
courts. To hold otherwise is a violation of the
right to due process. [Olaguer vs Military
Commission No. 34 (1987)]
9. Emergency powers (Sec 23, Art. VI).

o
The Congress may by law authorize the

President to exercise powers necessary and
proper to carry out a declared national policy.
Different from the Commander-in-Chief clause:

When the President acts under the
Commander-in-Chief clause, he acts under a
constitutional grant of military power, which
may include the law-making power.
When the President acts under the
emergency power, he acts under a
Congressional delegation of law-making
power.
Meaning of power necessary and proper

Power to issue rules and regulations
The Congress granted the President certain

emergency powers. (CA671) After the war,
Congress held a special session. The SC
held that the emergency power lasted only
until Congress held its regular session. The
fact that Congress could now meet meant
that there was no emergency anymore that
would justify the delegation. The assertion
that new legislation is needed to repeal
CA671 is not in harmony with the
Constitution. If a new law were necessary to
terminate it, then it would be unlimited and
indefinite. This would create an anomaly
since what was intended to meet a
temporary emergency becomes a permanent
law. [Araneta v Dinglasan (1949)]
The specific power to continue in force laws

and appropriations which would lapse or
otherwise become inoperative is a limitation
on the general power to exercise such other
powers as the executive may deem
necessary to enable the government to fulfill
its responsibilities and to maintain and
enforce its authority. [Rodriguez v Gella
(1953)]
Inconsistency between the Constitution and the

cases: (BARLONGAY)
The Constitution [Art. VI, Sec. 23 (2)] states
that the emergency powers shall cease upon
the next adjournment of Congress unless
sooner withdrawn by resolution of Congress
Cases tell us that the emergency powers
shall cease upon resumption of session.
Reconciling the two: it would not be enough
for Congress to just resume session in order
that the emergency powers shall cease. It
has to pass a resolution withdrawing such
emergency powers, otherwise such powers
shall cease upon the next adjournment of
Congress.
38
10. Contracting
and
Guaranteeing
The agreement is not a "treaty" as the term

is used in the Constitution. The agreement
was never submitted to the Senate for
concurrence. It must be noted that a treaty
is not the only form that an international
agreement may assume. For the grant of
treaty making power to the Executive and the
Senate does not exhaust the power of the
government over international relations.
Foreign
Loans
o
Requisites for contracting and guaranteeing

foreign loans:
1. With the concurrence of the monetary board
(Sec 20, Art VII)
2. subject to limitations as may be provided by
law (Sec 21, Art XII)
3. information on foreign loans obtained or
guaranteed shall be made available to the
public (sec 21, Art XII)
Cf. Republic Act 4860
An Act Authorizing The President Of The
Philippines To Obtain Such Foreign Loans
And Credits, Or To Incur Such Foreign
Indebtedness, As May Be Necessary To
Finance Approved Economic Development
Purposes Or Projects, And To Guarantee, In
Behalf Of The Republic Of The Philippines,
Foreign Loans Obtained Or Bonds Issued By
Corporations Owned Or Controlled By The
Government Of The Philippines For
Economic Development Purposes Including
Those Incurred For Purposes Of Re-Lending
To The Private Sector, Appropriating The
Necessary Funds Therefore, And For Other
Purposes
Approved, September 8, 1966.

Role of Congress:
1. The President does not need prior approval
by the Congress
a. Because the Constitution places the
power to check the Presidents power on
the Monetary Board
b. Congress may provide guidelines and
have them enforced through the
Monetary Board
Consequently, executive agreements may be

entered into with other states and are
effective even without the concurrence of the
Senate. From the point of view of
international law, there is no difference
between treaties and executive agreements
in their binding effect upon states concerned
as long as the negotiating functionaries have
remained within their powers. The distinction
between an executive agreement and a
treaty is purely a constitutional one and has
no international legal significance. [USAFFE
Veterans Assn. vs Treasurer (1959)]
o
Nature of Executive Agreements:

There are 2 classes:
(1) agreements made purely as executive acts
affecting external relations and independent
of or without legislative authorization, which
may be termed as presidential agreements,
and
(2) agreements entered into in pursuance of
acts of Congress, or CongressionalExecutive Agreements.
Although the President may, under the

American constitutional system enter into
executive agreements without previous
legislative authority, he may not, by
executive agreement, enter into a transaction
which is prohibited by statutes enacted prior
thereto. Under the Constitution, the main
function of the Executive is to enforce laws
enacted by Congress. The former may not
interfere in the performance of the legislative
powers of the latter, except in the exercise of
his veto power. He may not defeat legislative
enactments that have acquired the status of
law, by indirectly repealing the same through
an executive agreement providing for the
performance 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 the power to concur with
treaties or exercise its prerogative within the
boundaries prescribed by the Constitution,
the concurrence cannot be viewed as an
abuse of power, much less a grave abuse of
discretion. The President, in ratifying the
VFA and submitting the same for
concurrence of the Senate, acted within the
confines and limits of the power vested in
him by the Constitution. The President
merely performed a constitutional task and
11. Powers over Foreign Affairs

(a) Treaty-making power
o
No treaty or international agreement shall be

valid and effective unless concurred in by at least
two-thirds of all the members of the Senate. (Sec
21, Art VII)
Treaty distinguished from executive agreements:

1.
Executive Agreements
entered into by the President
need no concurrence.
International agreements involving political
issues or changes in national policy and
those involving international agreements of
permanent character usually take the form of
TREATIES.
But
the
international
agreements involving adjustments in detail
carrying out well-established national policies
and traditions and those involving a more or
less temporary character usually take the
form of EXECUTIVE AGREEMENTS. [
Commissioner of Customs vs. Eastern Sea
Trading (1961)]
39
exercised a prerogative that chiefly pertains

to the functions of his office. [Bayan vs
Executive Secretary (2000)]
(b) Deportation of undesirable aliens
[Qua Chee Gan vs Deportation Board (1963]
The President may deport only according to

grounds enumerated by law since it would be
unreasonable and undemocratic to hold that an
alien be deported upon an unstated or undefined
ground depending merely on the use of an
unlimited discretion by the President.
2 ways of deporting an undesirable alien:

(a) by order of the President after
investigation
(b) by the Commissioner of Immigration
due
The President can delegate the power of

investigation but not the power to order the arrest
of an alien.
The Deportation Board may not order the arrest

of the alien in this case. If an implied grant of
power, considering that no express authority was
granted by law, would curtail the right of a person
then a delegation of the implied power must be
rejected as inimical to the liberties of the people.
[Go Tek vs Deportation Board (1977)]
The Deportation Board can entertain deportation

based on grounds not specified in Sec 37 of the
Immigration Law. The Board has jurisdiction to
investigate Go Tek even if he had not been
convicted yet.
The Presidents power to deport aliens and to

investigate them subject to deportation are
provided in the Revised Administrative Code.
The State has inherent power to deport

undesirable aliens. This power is exercised by
the President.
There is no legal nor constitutional provision

defining the power to deport aliens because the
intention of the law is to grant the Chief Executive
the full discretion to determine whether an aliens
residence in the country is so undesirable as to
affect the security, welfare or interest of the state.
The Chief Executive is the sole and exclusive

judge of the existence of facts which would
warrant the deportation of aliens.
that Congress can take during the regular

session.
(b) Prepare and Submit the Budget
The President shall submit to Congress within thirty
days from the opening of every regular session, as
the basis of the general appropriations bill, a budget
of expenditures and sources of financing, including
receipts from existing and proposed revenue
measures. (Sec 22, Art VII)
o The budget is the plan indicating:
(a) expenditures of the government,
(b) sources of financing, and
(c) receipts from revenue-raising measures.
This budget is the upper limit of the appropriations bill
to be passed by Congress. Through the budget,
therefore, the President reveals the priorities of the
government.
(c) Veto power
o
As a general rule, all bills must be approved by

the President before they become law, except
when:
(i) the veto of the President is overridden by 2/3
vote of all the Members of the House where
it originated; and
(ii) the bill passed is the special law to elect the
President and Vice-President.
This gives the President an actual hand in

legislation. However, his course of action is only
to approve it or veto it as a whole. (See
Legislative Power of Congress)
It is true that the Constitution provides a

mechanism for overriding a veto (Art. VI, Sec. 27
[1]). Said remedy, however, is available only
when the presidential veto is based on policy or
political considerations but not when the veto is
claimed to be ultra vires. In the latter case, it
becomes the duty of the Court to draw the
dividing line where the exercise of executive
power ends and the bounds of legislative
jurisdiction begin. [PHILCONSA v Enriquez
(1994)]
(d) Emergency Power

o
12. Power over Legislation

(a) Message to Congress
The President shall address the Congress at the

opening of its regular session. He may also
appear before it at any other time. (Sec 23, Art
VII)
Every 4th Monday of July, the President delivers

the State of the Nation Address, which contains
his proposals for legislation.
Through this
speech, he can influence the course of legislation
In times of war or other national emergency, the

Congress, may, by law, authorize the President,
for a limited period, and subject to such
restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a
declared national policy.
Unless sooner
withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment
thereof. (Sec 23, Art VI see discussion above)
(e) Fixing of tariff rates (Sec 28, Art VI)

o
The Congress may, by law, authorize the

President to fix:
within specified limits, and
subject to such limitations and restrictions as
40
it may impose,
tariff rates
import and export quotas
tonnage and wharfage dues
other duties or imposts within the

framework of the national development
program of the Government.
o
Reason for delegation: highly technical nature of

international commerce, and the need to
constantly and with relative ease adapt the rates
to prevailing commercial standards.
B. Vice President
Article VII, Section 3. There shall be a Vice
President who shall have the same qualifications and
term of office and be elected with, and in the same
manner, as the President. He may be removed from
office in the same manner as the President.
The Vice President may be appointed as a Member of
the Cabinet. Such appointment requires no
confirmation.
1.
Qualifications, Election, Term and Oath
13. Immunity from Suit
a.
Qualifications
* same as President (Sec. 3, Art VII)
b.
Term and Election

* same as President (Sec. 4, Art VII)
c.
Oath
* same as President (except for the statement of
position)
2.
Privilege and Salary
The President as such cannot be sued, enjoying

as he does immunity from suit, but the validity of
his acts can be tested by an action against
the other executive officials or such
independent constitutional agencies as the
Commission on Elections and the Commission on
Audit. [Carillo vs. Marcos (1981)]
The petition seeks clarification as to whom the
Constitution refers to as the incumbent Pres and
Vice Pres. The petition amounts in effect to a suit
against the incumbent Pres. Aquino and it is
equally elementary that incumbent Presidents are
immune from suit or from being brought to court
during the period of their incumbency and tenure.
[In Re Bermudez (1986)]
* same as President
except: the Vice-President, xxx [shall receive annual
salary of] P240,000 (Sec 17, Art XVIII)
3.
* same as President
4.
The SC held that the privilege of immunity from

suit pertains to the President by virtue of the
office and may be invoked only by the holder
of the office; not by any other person in the
President's behalf. Thus, an accused in a
criminal case where the President is a
complainant cannot raise the presidential
privilege as a defense to prevent the case from
proceeding against the accused. Moreover, there
is nothing in our laws that would prevent the
President from waiving the privilege. The
President may shed the protection afforded by
the privilege and submit to the court's jurisdiction.
[Soliven vs Makasiar (1988); Beltran vs Makasiar
(1988)]
The Presidents immunity from suit extends
beyond his term so long as the act in question
was done during his term.
Petitioners theorize that the present petition for

prohibition is improper because the same attacks
an act of the President, in violation of the doctrine
of presidential immunity from suit. Petitioners
contention is untenable for the simple reason that
the petition is directed against petitioners and
not against the President. The questioned acts
are those of petitioners and not of the President.
Furthermore, presidential decisions may be
questioned before the courts where there is
grave abuse of discretion or that the
President acted without or in excess of
jurisdiction. [Gloria v CA (2000)]
Prohibitions
Succession
* same as President (Art. VII, Sec. 9)
5.
Removal
Impeachment Process
* same as President (Art. XI, Sec. 3)
6.
Functions
a.
Right of succession
The Vice-President shall assume the functions of the

president in case of:
1. death, permanent disability, removal from office,
or resignation of the President (Sec 8, Art VII)
2. Whenever the President transmits to the
President of the Senate and the Speaker of the
House of Representatives his written declaration
that he is unable to discharge the powers and
duties of his office, and until he transmits to them
a written declaration to the contrary (Sec 11, Art
VII)
3. Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate
and to the Speaker of the House of
Representatives their written declaration that the
President is unable to discharge the powers and
duties of his office
b.
Membership in Cabinet
xxx The Vice-President may be appointed as member

of the Cabinet.
Such appointment requires no
confirmation. (Sec 3, Art VII)
41
IV. Constitutional Commissions

A. Common Provisions
1.
Disqualifications; Inhibitions
No member of a Constitutional Commission shall,

during his tenure:
i.
ii.
iii.
iv.
2.
hold any other office or employment

engage in the practice of any profession
engage in the active management and control
of any business which in any way may be
affected by the functions of his office
be financially interested, directly or indirectly, in
any contract with, or in any franchise or
privilege granted by the Government, any of its
subdivisions, agencies or instrumentalities,
including GOCCs or their subsidiaries. (Art. IX,
sec.2)
3.
Compensation
Fixed by law and shall not be decreased during

their tenure. (sec. 3)
4.
Power to Appoint Personnel (sec. 4)
5.
Fiscal Autonomy (sec. 5)
6.
Rule-Making Power
shall not diminish, increase, or modify substantive

rights (sec. 6)
7.
Procedure
i.
ii.
Composition and Qualifications
CSC
Chairman and
Commissioners
(Comm)
COMELEC
Chairman and
6 Comm
Natural-born citizens
At least 35 years of age
Proven capacity for Holders of a
public
college
administration, and degree,
and
must not have been must not have
candidates for any been
elective position in candidates for
the
lections any
elective
immediately
position in the
preceding
their immediately
appointment
preceding
elections
Majority,
including the
Chairman,
shall
be
Members
of
the Philippine
Bar who have
been engaged
in the practice
of law for at
least 10 years
COA
Chairman and 2
Comm
8.
At no time shall
all Members of
the Commission
belong to the
same profession.
Appointed by the President with the consent of the

Commission on Appointments for a term of 7 years without
reappointment
Staggered term of Staggered term Staggered term
those first appointed: of those first of those first
a) Chairman 7 appointed:
appointed:
years
a) 3 Members a) Chairman 7
b) 1 Comm 5 7 years
years
years
b) 2 Members b) 1 Comm 5
c) Other Comm 3 5 years
years
years
c)
Last
2 c) Other Comm
Members 3 3 years
years
Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity.
Other functions provided by law

(sec. 8)
Certified public
accountants
with not less than
10 years auditing
experience, or
Members of the
Philippine Bar
who have been
engaged in the
practice of law for
at least 10 years,
and must not
have
been
candidates
for
any
elective
position in the
elections
immediately
preceding
their
appointment
Decision on any case or matter brought

before it shall be decided by a majority vote
of all its Members within 60 days of
submission for decision or resolution
SC has certiorari jurisdiction which a party
aggrieved by any decision, order, or ruling of
each Commission can invoke within 30 days
from receipt of a copy. (sec.16)
At issue was the no report, no release policy of

the DBM which the latter is invoking, in addition
to the fact that there is an alleged shortage of
funds, to justify the withholding of the balance of
the CSCs annual budget. It was held that such
policy may not be validly enforced against
offices vested with fiscal autonomy like the
CSC and other Constitutional Commissions.
Being automatic means that the budget
releases cannot be made contingent on the
performance of a particular act or the availability
of funds, otherwise, the constitutional mandate of
automatic and regular release would be
significantly emasculated.[ CSC v. DBM, (2005)]
B. Civil Service Commission

1.
Scope of Civil Service
Art. IX-B, Sec. 2(1). The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters.
2.
Terms and Conditions

Employment
i.
ii.
iii.
iv.
v.
Merit-based system
No holding of other positions
Standardization of salary
No partisan political activity
Security of tenure Temporary employees of
the Government shall be given such protection as
may be provided by law.
Right to self-organization (v. Right to strike)
vi.
of
Government
Art. XIII, Sec. 3. [The State] shall guarantee the rights of all
workers
to
self-organization,peaceful
concerted
activities, including the right to strike in accordance with
law.
42
Art. III, Sec. 8. The right of the people, including those

employed in the public and private sectors, to form
unions, association, or societies for purposes not contrary
to law shall not be abridged.
5.
Salary
i.
Art. IX-B, Sec. 2(5). The right to self-organization shall not

be denied to government employees.
ii.
Standardized compensation, taking into account

the nature of the responsibilities pertaining to,
and the qualifications required for their positions
No
additional,
double,
or
indirect
compensation unless specifically authorized by
law
No elective or appointive public officer or
employee shall accept without the consent of
the Congress, any present, emolument, office,
or title of any kind from any foreign government
Sec. 38, Book V, Title I, Subtitle A, Chapter 6,

Administrative Code of 1987.
Who: All government employees, including those in GOCCs
with original charters
Exception: (1) members of the AFP, (2) police officers and
policemen, (3) firemen, (4) jail guards.
Scope of right: (1) form, join or assist employees'
organizations of their own choosing for the furtherance and
protection of their interests
(2) form, in conjunction with appropriate government
authorities, labor-management committees, work councils
and other forms of workers' participation schemes to achieve
the same objectives
Employees in the Civil Service may not resort to

strikes, walkouts and other temporary work
stoppages in order to alter the terms and
conditions of their employment, which are
generally governed and fixed by law. Government
employees may, through their unions or
associations, either
(1) petition the Congress for the betterment of
the terms and conditions of employment
which are within the ambit of legislation, or
(2) negotiate with the appropriate government
agencies for the improvement of those which
are not fixed by law. If there be any
unresolved grievances, the dispute may be
referred to the Public Sector LaborManagement Council for appropriate action.
[SSS Employees Association v. CA, (1989)]
3.
Disqualifications
i.
Candidate who has lost in any election, within 1

year after such election, cannot be appointed to
any office in the Civil Service;
No elective official shall be eligible for
appointment or designation in any capacity to any
public office or position during his tenure;
No appointive official shall hold any other office or
employment in the Civil Service unless otherwise
allowed by law or by the primary functions of his
position.
ii.
iii.
4.
Powers and Functions
Art. IX-B, Sec. 3. The Civil Service Commission, as the

central personnel agency of the Government, shall
establish a career service and adopt measures to promote
morale,
efficiency,
integrity,
responsiveness,
progressiveness, and courtesy in the civil service. It shall
strengthen the merit and rewards system, integrate all
human resources development programs for all levels
and ranks, and institutionalize a management climate
conducive to public accountability. It shall submit to the
President and the Congress an annual report on its
personnel programs.
iii.
C. Commission on Elections
1.
i.
Enforce all laws relating to the conduct of

election:
o Recommend to the Congress effective
measures to minimize election spending,
and to prevent and penalize all forms of
election frauds, offenses, malpractices, and
nuisance candidacies
o Submit to the President and the Congress, a
comprehensive report on the conduct of
each
election,
plebiscite,
initiative,
referendum, or recall
ii. Decide administrative questions pertaining to
election except the right to vote;
iii. File petitions in court for inclusion or exclusion of
voters;
iv. Investigate and prosecute cases of violations of
election laws;
v. Recommend pardon, amnesty, parole or
suspension of sentence of election law violators;
vi. Deputize law enforcement agencies and
instrumentalities of the Government for the
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections;
vii. Recommend to the President the removal of any
officer or employee it has deputized for violation
or disregard of, or disobedience to its directive;
viii. Registration of political parties, organizations and
coalitions and accreditation of citizens arms;
ix. Regulation of public utilities and media of
information.
The law limits the right of free speech and of

access to mass media of the candidates
themselves. The limitation however, bears a
clear and reasonable connection with the
objective set out in the Constitution. For it is
precisely in the unlimited purchase of print space
and radio and television time that the resources
of the financially affluent candidates are likely to
make a crucial difference. The purpose is to
ensure "equal opportunity, time, and space,
and the right to reply," as well as uniform and
reasonable rates of charges for the use of such
media facilities, in connection with "public
information campaigns and forums among
candidates." [National Press Club vs Comelec,
(1992)]
43
x.
Decide election cases
Art. IX-C, Sec. 3. The Commission on Elections may sit en

banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases,
including pre- proclamation controversies. All such election
cases shall be heard and decided in division, provided that
motions for reconsideration of decisions shall be
decided by the Commission en banc.
2.
Jurisdiction
i.
Exclusive original: all contests relating to the

elections, returns, and qualifications of all elective
regional, provincial, and city officials
Appellate:
o elective municipal officials decided by trial
courts of general jurisdiction
o elective barangay officials decided by trial
courts of limited jurisdiction
ii.
Once a winning candidate has been proclaimed,

taken his oath, and assumed office as a Member
of the House of Representatives, the Comelecs
jurisdiction over election contests relating to his
election, returns, and qualifications ends, and the
HRETs own jurisdiction begins. [Aggabao vs
Comelec, (2005)]
Congress cannot make decisions of MTC or
MCTC in a barangay election appealable to the
trial court, because Comelec has exclusive
appellate jurisdiction over all contests involving
barangay elective officials decided by trial courts
of limited jurisdiction. The jurisdiction of the
Comelec, however, is over questions of fact;
questions of law go to the SC. [Flores v. Comelec,
(1990)]
V. Constitutionally-Mandated Bodies
A. Sandiganbayan
(Asked 1 time in the Bar)
Art. XI, Sec. 4. The present anti-graft court known as the
Sandigan-bayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law.
Under RA 8249 (AN ACT FURTHER DEFINING

THE
JURISDICTION
OF
THE
SANDIGANBAYAN, AMENDING FOR THE
PURPOSE PRESIDENTIAL DECREE NO. 1606,
AS
AMENDED,
PROVIDING
FUNDS
THEREFOR, AND FOR OTHER PURPOSES), to
determine whether the Sandiganbayan has
jurisdiction, one must look into two (2) criteria,
namely:
1) The nature of the offense, and
2) The salary grade of the public official.
To further strengthen the functional and structural

organization of the Sandiganbayan, several
amendments have been introduced to the
original law creating it, the latest of which are
Republic Acts No. 7975 and No. 8249.
Under these new laws, the jurisdiction of the

Sandiganbayan is now confined to cases
involving public officials occupying positions
classified as salary grade 27 and higher.
As restructured, the Sandiganbayan is presently

composed of:
a Presiding Justice and
fourteen (14) Associate Justices
who sit in five (5) Divisions of
three Justices
each in the trial and determination of

cases.
D. Commission on Audit
1.
i.
Examine, audit, and settle accounts pertaining to

Government funds or property: its revenue,
receipts, expenditures, and uses
o Post-audit basis: Constitutional bodies,
commissions and offices; Autonomous state
colleges and universities; GOCCs with no
original charters and their subsidiaries; Nongovernmental entities receiving subsidy or
equity, directly or indirectly, from or through
the Government, which are required by law
or the granting institution to submit such
audit as a condition of subsidy or equity
ii.
B. Ombudsman
1.
Qualification
Natural born citizen at time of appointment
At least 40 yrs old
With probity and independence
Member of the Bar
Not a candidate for elective office in

immediately preceding election
At least 10 yrs had been a judge OR in

practice of law
2.
Appointment
JBC to nominate at least 6 for original

Ombudsman
JBC to nominate at least 3 for every vacancy

thereafter
Vacancies to be filled within 3 months after

occurrence
Appointed by the President
Appointment needs no confirmation
3.
Term
7 yrs without reappointment
Exclusive Authority
o Define the scope of its audit and
examination;
o Establish techniques and methods required ;
o Promulgate accounting and auditing rules
and regulations.
Art. IX-D, Sec. 3. No law shall be passed exempting any

entity of the Government or its subsidiaries in any guise
whatever, or any investment of public funds, from the
jurisdiction of the Commission on Audit.
44
4.
Removal
By impeachment for:
culpable violation of the constitution
treason
bribery
graft and corruption
other high crimes
betrayal of public trust
5.
Benefits
Ombudsman has rank of Chairman of a

ConCom
Enjoys fiscal autonomy
Automatic and regular release of funds
Salary cannot be decreased during term
6.
Powers/Duties
MAIN PURPOSE: protectors of the people
Shall act promptly on complaints against
public officials/govt employees AND notify
complainants of action taken and the result
Investigate on its own or any complaint when
appears to be:
Illegal
Unjust
Improper
Inefficient
Direct, on its own or upon complaint, any
public official/govt employee to:
perform and expedite an act/duty

required
stop/prevent/correct any abuse or

impropriety of duty
Direct the officer concerned to take
appropriate action against the public
official/govt employee
Recommend for their:
removal
suspension
demotion
fine
censure
prosecution
Ensure compliance of the recommendation
Subject to limitations of law, direct the officer
concerned to furnish copies of related
documents/contracts entered by his office
involving use of public funds:
Further report any irregularity to the

Commission on Audit
Request assistance and information from
other govt agencies for the discharge of his
duties
Publicize, with due prudence, matters
covered
by
investigation,
whenever
warranted
Determine the causes of the ff and make
recommendations for their eradication, and
observance
of
high
standards
of
ethics/efficiency:
Inefficiency
Red tape
Mismanagement
Fraud
Govt corruption
7.
Promulgate its rules of procedure

Exercise other functions provided by law
Declare his assets, liabilities, and net worth
upon assumption of office and when required
by law
Disqualification
Cannot hold any other office or employment

during tenure
Cannot engage in any profession or active

management/control
of
any
business
affecting their office
Cannot be financially interested, directly or

indirectly, in any contract, franchise, or
privilege granted by the Government or its
agencies/corporations (Sec. 2, Art. IX-A)
Cannot run for any office in the election

immediately succeeding their term of office
Cannot
be
granted
any
financial
accommodation for business purposes,
directly or indirectly, within tenure.
C. Commission on Human Rights

1.
Composition and Qualifications
2.
Chairman and 4 Members

o
natural-born Filipinos
o
majority shall be members of the Bar
o
The term of office and other qualifications
shall be provided by law.
Investigate, on its own or on complaint by any

party, all forms of human rights violations involving
civil and political rights
The Commission can only protect civil and

political rights, which do not include the less
traditional social and economic rights. [Simon v.
CHR, (1994)]
Note, however, that the reason for these modest

objectives of the Framers of the Constitution is the
desire not to overburden the CHR during its initial
years. The limitation does not exclude the
possibility of expanding the Commissions scope
later --- as in fact Section 19 specifically allows
(BERNAS).
IMPT: Section 25 of the Universal Declaration of

Human Rights (UDHR) as well as the International
Covenant on Economic, Social, and Cultural Rights
(ICESCR) are deemed part of Philippine law pursuant
to the Incorporation Clause of the Constitution.
Art. XIII, Sec. 19. The Congress may provide for

other cases of violations of human rights that should fall
within the authority of the Commission, taking into
account its recommendations.
The Commission was not meant by the

fundamental law to be another court or quasijudicial agency in this country, or duplicate much
less take over the functions of the latter. It is
conceded, however, that the Commission may
investigate, i.e., receive evidence and make
findings of fact as regards claimed human
rights violations involving civil and political
rights. [Cario v. CHR, (1991)]
45
Chapter III. NATIONAL ECONOMY and PATRIMONY
Chapter III. National Economy and Patrimony

I.
III.
IV.
V.
GENERAL PRINCIPLES
A. GOALS
B. CITIZENSHIP REQUIREMENTS
C. FILIPINO FIRST
NATURAL RESOURCES
A. REGALIAN DOCTRINE
B. EXPLORATION, DEVELOPMENT, UTILIZATION
C. STEWARDSHIP CONCEPT
PRIVATE LANDS
MONOPOLIES
CENTRAL MONETARY AUTHORITY
I.
General Principles
II.
100% Filipino
Small-scale
utilization
of
natural resources
(as
may
be
provided by law)
[Art. XII, Sec. 2,
par. 3]
A. Goals
1.
2.
3.
More equitable distribution of opportunities,

income and wealth
Sustained increase in amount of goods and
services produced by the nation for the benefit
of the people
Expanding production as the key to raising the
quality of life for all, especially the
underprivileged.
100% Filipino
Marine
Wealth
[Art. XII, Sec. 2,
par. 2]
Agricultural lands
[Art. XII, Sec. 3]
o Lease: < 500
ha.
o Purchase,
homestead
or grant: < 12
ha.
o Private
corpora-tions
may
lease
not
more
than
1,000
ha. for 25
years,
renewable for
another
25
years.
Practice
of
professions [Art.
XII, Sec. 14]
60-40
Natural Resources
[Art. XII, Sec. 2,
par. 1]
(Co-production,
Joint
venture,
Production sharing
agreemenents)
Agreements shall
not
exceed
a
period of 25 years
renewable
for
another 25 years.
Educational
Institutions
[Art.
XIV, Sec. 4(2)]
70-30
A public utility is a business or service engaged in

regularly supplying the public with some commodity or
service of public consequence. A joint venture falls
within the purview of an association pursuant to Sec.
11, Art. XII; thus a joint venture which would engage in
the business of operating a public utility must comply
with the 60%-40% Filipino-foreign capitalization
requirement. [JG Summit Holdings v. CA, (2000)]
C. Filipino First
Art. XII, Sec. 10. In the grant of rights, privileges, and
concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance
with its national goals and priorities.
B. Citizenship Requirements
60-40
Operation
of
public utility [Art.
XII, Sec. 11]
o Cannot be for
longer period
than 50 years
o Executive
and
managing
officers must
be Filipino
70-30
Advertising
Industry
[Art.
XVI, Sec. 11]
The term patrimony pertains to heritage, and given

the history of the Manila Hotel, it has become a part of
our national economy and patrimony. Thus, the Filipino
First policy provision of the Constitution is applicable.
Such provision is per se enforceable, and requires no
further guidelines or implementing rules or laws for
its operation. [Manila Prince Hotel v. GSIS, (1997)]
Art. XII, Sec. 12. The State shall promote the preferential
use of Filipino labor, domestic materials and locally produced
goods, and adopt measures that help make them
competitive.
II. Natural Resources

A. 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.. [Cario v. Insular Government,
(1909)]
As in previous Constitutions, the 1987

Constitution adheres to this doctrine as illustrated
by this section:
Art. XII, Sec. 2. All lands of the public domain, waters,

minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other
natural resources shall not be alienated.
Areas
Investment
Congress
prescribe
(percentage
be higher)
XII, Sec. 10]
of
as
may
can
[Art.
Under the Regalian Doctrine, all lands not otherwise

clearly appearing to be privately owned are presumed
to belong to the State. The classification of public lands
is an exclusive prerogative of the Executive Department
through the Office of the President. [Republic v.
Register of Deeds of Quezon, (1994)]
46

FTAA
(1987 Const.)
B. Exploration, Development, and Utilization

Art. XII, Sec. 2, par. 4. The President may enter into
agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale
exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general
terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the
development and use of local scientific and technical
resources.
The State, being the owner of the natural resources,

is accorded the primary power and responsibility in
the exploration, development and utilization thereof.
As such it may undertake these activities through four
modes:
(1) The State may directly undertake such activities;
(2) The State may enter into co-production, joint
venture or production-sharing agreements with
Filipino citizens or qualified corporations;
(3) Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens;
or
(4) For the large-scale exploration, development and
utilization of minerals, petroleum and other
mineral oils, the President may enter into
agreements with foreign-owned corporations
involving technical or financial assistance.
[[La Bugal-BLaan Tribal Assn. v. Ramos,
(Jan,2004)]
FTAA
(1987 Const.)
Parties
Size
Activities
of
Only
the
President
(in
behalf of the
State), and only
with
corporations
Only large-scale
exploration,
development and
utilization
Natural
Resources
Covered
Minerals,
petroleum
and
other mineral oils
Scope of the
Agreements
Involving either
financial
or
technical
assistance
SERVICE
CONTRACT
(1973 Const.)
A Filipino citizen,
corporation
or
association with a
foreign person or
entity
Contractor provides
all
necessary
services
and
technology and the
requisite
financing,
performs
the
exploration
work
obligations,
and
assumes
all
exploration risks
Virtually the entire
range
of
the
countrys
natural
resources
Contractor provides
financial or technical
resources,
undertakes
the
exploitation
or
production of a
given resource, or
directly
manages
the
productive
enterprise,
operations of the
exploration
and
exploitation of the
resources or the
disposition
of
SERVICE
CONTRACT
(1973 Const.)
marketing
resources
or
Following this framework, the SC declared the

following provisions of the Philippine Mining Act of
1995 (RA 7942) unconstitutional for being contrary
to Sec. 2, Art. XII of the 1987 Constitution:
a. The proviso in Sec. 3(aq), which defines a
qualified person, to wit: Provided, That a legally
foreign-owned corporation shall be deemed a
qualified person for purposes of granting an
exploration permit, FTAA or mineral processing
permit
b. Sec. 23, which specifies the rights and
obligations of an exploration permit grantee
c. Sec. 33, which prescribes the eligibility of a
contractor in an FTAA
d. Sec. 35, which enumerates the terms and
conditions for every FTAA
e. Sec. 39, which allows the contractor to convert
the FTAA into a mineral production-sharing
agreement (MPSA)
f. Sec. 56, which authorizes the issuance of a
mineral processing permit to a contractor in an
FTAA
The following provisions of the same Act were
likewise deemed void as they are dependent on the
foregoing provisions and cannot stand on their own:
a. Section 3 (g), which defines the term contractor,
insofar as it applies to a financial or technical
assistance agreement;
b. Section 34, which prescribes the maximum
contract area in a financial or technical
assistance agreements;
c. Section 36, which allows negotiations for financial
or technical assistance agreements;
d. Section 37, which prescribes the procedure for
filing and evaluation of financial or technical
assistance agreement proposals;
e. Section 38, which limits the term of financial or
technical assistance agreements;
f. Section 40, which allows the assignment or
transfer of financial or technical assistance
agreements;
g. Section 41, which allows the withdrawal of the
contractor in an FTAA;
h. The second and third paragraphs of Section 81,
which provide for the Governments share in a
financial and technical assistance agreement;
i. Section 90, which provides for incentives to
contractors in FTAAs insofar as it applies to said
contractors;
The Court then struck down the Financial and
Technical Assistance Agreement (FTAA) entered into
between the Government and Western Mining
Corporation (Phils.), Inc. (WMCP) for being similar to
service contracts, previously allowed under the 1973
Constitution but which are now proscribed under the
1987 Constitution.
On motion for reconsideration, the SC reversed

its original decision and upheld the
47
The Constitution should be read in broad, life-giving

strokes. It should not be used to strangulate
economic growth or to serve narrow, parochial
interests. Rather, it should be construed to grant the
President and Congress sufficient discretion and
reasonable leeway to enable them to attract foreign
investments and expertise, as well as to secure for
our people and our posterity the blessings of
prosperity and peace. The Court fully sympathize with
the plight of La Bugal Blaan and other tribal groups,
and commend their efforts to uplift their communities.
However, the Court cannot justify the invalidation
of an otherwise constitutional statute along with
its implementing rules, or the nullification of an
otherwise legal and binding FTAA contract.
The Court believes that it is not unconstitutional to
allow a wide degree of discretion to the Chief
Executive, given the nature and complexity of such
agreements, the humongous amounts of capital and
financing required for large-scale mining operations,
the complicated technology needed, and the
intricacies of international trade, coupled with the
States need to maintain flexibility in its dealings, in
order to preserve and enhance our countrys
competitiveness in world markets. On the basis of this
control
standard,
the
Court
upholds
the
constitutionality of the Philippine Mining Law, its
Implementing Rules and Regulations -- insofar as
they relate to financial and technical agreements -- as
well as the subject Financial and Technical
Assistance Agreement (FTAA). [La Bugal-Blaan
Tribal Assn. v. Ramos, (Dec. 2004)]
B. Exceptions
i.
ii.
Hereditary succession
(Art. XII, sec. 7)
A natural-born citizen of the Philippines who has
lost his Philippine citizenship may be a transferee
of private lands, subject to limitations provided by
law.
(Art. XII, sec. 8)
IV. Monopolies
Art. XIII, Sec. 19. The State shall regulate or prohibit
monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall
be allowed.
Although the Constitution enshrines free

enterprise as a policy, it nevertheless reserves to
the Government the power to intervene whenever
necessary for the promotion of the general
welfare. [Philippine Coconut Dessicators v. PCA,
(1998)]
Monopolies are not per se prohibited by the

Constitution but may be permitted to exist to aid
the government in carrying on an enterprise or to
aid in the performance of various services and
functions in the interest of the public.
Nonetheless, a determination must first be made
as to whether public interest requires a
monopoly. As monopolies are subject to abuses
that can inflict severe prejudice to the public, they
are subject to a higher level of State regulation
than an ordinary business undertaking. [Agan, Jr.
v. PIATCO, (2003)]
C. Stewardship Concept
Art. XII, Sec. 6. The use of property bears a social function,
and all economic agents shall contribute to the common
good.
Individuals and private groups, including corporations,
cooperatives, and similar collective organizations, shall have
the right to own, establish, and operate economic
enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good
so demands.
Art. XIII, Sec. 6. The State shall apply the principles of
agrarian reform or stewardship, whenever applicable in
accordance with law,
in the disposition or utilization of other natural resources,
including lands of the public domain under lease or
concession suitable to agriculture,
subject to prior rights, homestead rights of small settlers, and
the rights of indigenous communities to their ancestral lands.
III. Private Lands

A. General Rule
No private lands shall be transferred or conveyed
except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.
(Art. XII, sec. 7)
V. Central Monetary Authority

[Art. XII, Sec. 20]
Functions:
1.
Provide policy directions in the areas of money,

banking, and credit;
2.
Supervise the operations of banks;
3.
Exercise such regulatory powers as may be

provided by law over the operations of finance
companies and other institutions performing
similar functions
Qualifications of the Governors:
1.
2.
3.
Natural-born Filipino;
Known probity, integrity and patriotism;
Majority shall come from the private sector
Subject to such other qualifications

disabilities as may be provided by law
and
Until the Congress otherwise provides, the Central

Bank of the Philippines operating under existing laws,
shall function as the central monetary authority.
48
constitutionality of the subject FTAA, the Mining

Law, and its Implementing Rules.
Chapter IV. Current Events and Special

Topics
I.
II.
PARTY-LIST SYSTEM
QUESTION HOUR V. INQUIRIES IN AID OF
LEGISLATION
III. EXECUTIVE PRIVILEGE
IV. PEOPLES INITIATIVE
V. RIGHT OF REPLY BILL
VI. THE (ERSTWHILE) PROVINCE OF SHARIFF
KABUNSUAN
VII. MOA ON ANCESTRAL DOMAIN (MOA-AD)
I.
Party-List System
The SC laid down the following guidelines for

screening party-list participants ---
1)
The parties must represent the marginalized and

underrepresented.
Major political parties must comply with this
statutory policy
Religious sects are prohibited by the Constitution
The party must not be disqualified under RA 7941
The part must not be an adjunct of an entity or
project funded by the government
The party and its nominees must comply with the
requirements of the law
The members must come from the marginalized
and underrepresented sectors
The nominee must be able to contribute to the
formulation and enactment of appropriate
legislation that will benefit the nation
Their nominees must come from the same party.
[Ang Bagong Bayani v. Comelec, (2001)]
2)
3)
4)
5)
6)
7)
8)
9)
The Legal and Logical Formula for the Philippines

Step One. The initial step is to rank all the
participating parties, organizations and coalitions
from the highest to the lowest based on the
number of votes they each received. Then the ratio
for each party is computed by dividing its votes
by the total votes cast for all the parties
participating in the system. All parties with at least
two percent of the total votes are guaranteed one
seat each. Only these parties shall be considered in
the computation of additional seats. The party
receiving the highest number of votes shall
thenceforth be referred to as the first party.
Step Two. The next step is to determine the number
of seats the first party is entitled to, in order to be able
to compute that for the other parties. Since the
distribution is based on proportional representation,
the number of seats to be allotted to the other
parties cannot possibly exceed that to which the
first party is entitled by virtue of its obtaining the
most number of votes.
For example, the first party received 1,000,000 votes
and is determined to be entitled to two additional
seats. Another qualified party which received 500,000
votes cannot be entitled to the same number of seats,
since it garnered only fifty percent of the votes won by
the first party. Depending on the proportion of its
votes relative to that of the first party whose number
Chapter IV. CURRENT EVENTS and SPECIAL TOPICS

of seats has already been predetermined, the second
party should be given less than that to which the first
one is entitled.
The other qualified parties will always be allotted
less additional seats than the first party for two
reasons:
(1) the ratio between said parties and the first party
will always be less than 1:1, and
(2) the formula does not admit of mathematical
rounding off, because there is no such thing as a
fraction of a seat.
Verily, an arbitrary rounding off could result in a
violation of the twenty percent allocation. An
academic mathematical demonstration of such
incipient violation is not necessary because the
present set of facts, given the number of qualified
parties and the voting percentages obtained, will
definitely not end up in such constitutional
contravention.
The Court has previously ruled in Guingona Jr. v.
Gonzales that a fractional membership cannot be
converted into a whole membership of one when it
would, in effect, deprive another party's fractional
membership. It would be a violation of the
constitutional mandate of proportional representation.
We said further that "no party can claim more than
what it is entitled to x x x. [Veterans Federation Party
v. Comelec, (2000)]
Formula for Determining Additional Seats for the
First Party
The formula for computing the number of seats to which
the first party is entitled is as follows:
Number of votes
of first party
-----------------Total votes for
party-list system
Proportion of votes
relative to total votes
for party list
If the proportion of votes received by the first

party without rounding it off is equal to at least six
percent of the total valid votes cast for all the
party list groups, then the first party shall be
entitled to two additional seats or a total of three
seats overall. If the proportion of votes without a
rounding off is equal to or greater than four percent,
but less than six percent, then the first party shall
have one additional or a total of two seats. And if the
proportion is less than four percent, then the first party
shall not be entitled to any additional seat.
Note that the above formula will be applicable only in
determining the number of additional seats the first
party is entitled to. It cannot be used to determine the
number of additional seats of the other qualified
parties. As explained earlier, the use of the same
formula for all would contravene the proportional
representation parameter.
49
Formula for Additional Seats of Other Qualified

Parties
Step Three. The next step is to solve for the number
of additional seats that the other qualified parties are
entitled to, based on proportional representation. The
formula is encompassed by the following complex
fraction:
Additional seats
for concerned
party
No. of votes of
concerned party
--------------No. of votes of
the first party
No. of additional
seats allocated
to first party
Incidentally, if the first party is not entitled to any

additional seat, then the ratio of the number of
votes for the other party to that for the first one is
multiplied by zero. The end result would be zero
additional seats for each of the other qualified
parties as well.
The above formula does not give an exact
mathematical representation of the number of
additional seats to be awarded since, in order to be
entitled to one additional seat, an exact whole number
is necessary. In fact, most of the actual mathematical
proportions are not whole numbers and are not
rounded off for the reasons explained earlier.
To repeat, rounding off may result in the awarding of a
number of seats in excess of that provided by the law.
Furthermore,
obtaining
absolute
proportional
representation is restricted by the three-seat-per-party
limit to a maximum of two additional slots. An increase
in the maximum number of additional representatives
a party may be entitled to would result in a more
accurate proportional representation. But the law itself
has set the limit: only two additional seats. Hence, we
need to work within such extant parameter. [Veterans
Federation Party v. Comelec, (2000)]
SC declared the 2%-threshhold used for computing
the allocation of additional seats under the Veterans
Formula, pursuant to Sec. 11, RA 7941,
unconstitutional, because it renders the attainment
of the maximum number of available party seats
mathematically impossible once the available party list
seats exceeds 50, as in the present state of the law,
where 55 seats are available to party-list
representatives.
1.
2.
3.
In determining the allocation of seats for

party-list representatives under Section 11 of
R.A. No. 7941, the following procedure shall
be observed:
The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on
the number of votes they garnered during the
elections.
The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one guaranteed seat each.
Those garnering sufficient number of votes,
according to the ranking in paragraph 1, shall be
entitled to additional seats in proportion to their
4.
total number of votes until all the additional seats

are allocated.
Each party, organization, or coalition shall be
entitled to not more than three (3) seats.
In computing the additional seats, the guaranteed

seats shall no longer be included because they have
already been allocated, at one seat each, to every
two-percenter. Thus, the remaining available seats
for allocation as additional seats are the maximum
seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in
the absence of a provision in R.A. No. 7941 allowing
for a rounding off of fractional seats.
The three-seat cap, as a limitation to the number of
seats that a qualified party-list organization may
occupy, remains a valid statutory device that prevents
any party from dominating the party-list elections.
However, by a vote of 8-7, the Court decided to
continue the ruling in Veterans disallowing major
political parties from participating in the party-list
elections, directly or indirectly. [Barangay Association
for National Advancement and Transparency
(BANAT) v. Comelec, (2009)]
Puno, C.J., Concurring and Dissenting Opinion:
Limiting the party-list system to the marginalized and
excluding the major political parties from participating
in the election of their representatives is aligned with
the constitutional mandate to reduce social,
economic, and political inequalities, and remove
cultural inequalities by equitably diffusing wealth and
political power for the common good.
The evils that faced our marginalized and
underrepresented people at the time of the framing of
the 1987 Constitution still haunt them today. It is
through the party-list system that the Constitution
sought to address this systemic dilemma. In ratifying
the Constitution, our people recognized how the
interests of our poor and powerless sectoral groups
can be frustrated by the traditional political parties
who have the machinery and chicanery to dominate
our political institutions. If we allow major political
parties to participate in the party-list system electoral
process, we will surely suffocate the voice of the
marginalized, frustrate their sovereignty and betray
the democratic spirit of the Constitution.
Nachura, J., Separate Opinion:
The inflexible 2% threshold vote required for
entitlement by a party-list group to a seat in the House
of Representatives in Republic Act (R.A.) No. 7941 is
unconstitutional.
This minimum vote requirement fixed at 2% of the
total number of votes cast for the party list system
presents an unwarranted obstacle to the full
implementation of Section 5 (2), Article VI, of the
Philippine Constitution.
As such, it effectively defeats the declared
constitutional policy, as well as the legislative
50
objective expressed in the enabling law, to allow the

peoples broadest representation in Congress, the
raison detre for the adoption of the party-list system.
A legal provision that poses an insurmountable barrier

to the full implementation and realization of the
constitutional provision on the party-list system should
be declared void.
I submit that, until Congress shall have effected an
acceptable amendment to the minimum vote
requirement in R.A. 7941, we abide by the sensible
standard of proportional representation and adopt a
gradually regressive threshold vote requirement,
inversely proportional to the increase in the
number of party-list seats.
Thus, at present, considering that there are 55 seats
allocated for party-list groups, the formula should be:
100%
(Total # of votes cast for party-list)
55 party-list seats
1.818%
Under the 1973 Constitution, a similar provision

expressly referred to this appearance as the
question hour. In contrast to such provision,
however, the tenor of its counterpart in the
present Constitution is merely permissive. Hence,
the President may or may not consent to the
appearance of the heads of departments; and
even if he does, he may require that the
appearance
be
in
executive
session.
Reciprocally, Congress may refuse the initiative
taken by a department secretary.
5.
Likewise, Congress exercises legislative scrutiny

thru its power of confirmation.
B.
Congressional Investigation
Art. VI, Sec. 21. The Senate or the House of

Representatives or any of its respective committee may
conduct inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
The minimum vote requirement will gradually

lessen as the number of party-list seats increases.
Accordingly, if the scenario we presented above
should ever come to pass, and there are 100 seats
allocated for party-list groups, then the threshold vote
should be 1%, based on the following computation:
Limitations
i. Must be in aid of legislative functions
ii. Must be conducted in accordance with duly
published rules of procedure
iii. Persons appearing therein are afforded their
constitutional rights
100%
(Total # of votes cast for party-list)
100 party-list seats
Although there is no provision in the Constitution

expressly investing either House of Congress
with power to make investigations and exact
testimony to the end that it may exercise its
legislative functions advisedly and effectively,
such power is so far incidental to the legislative
function as to be implied. In other words, the
power of inquiry with process to enforce it is
an essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which
legislation is intended to affect or change; and
where the legislative body does not itself possess
the requisite information which is not
frequently true recourse must be had to others
who do possess it. [Arnault v. Nazareno, (1950)]
C.
Legislative Supervision
1%
II. Question Hour v. Inquiries In Aid of

Legislation
Macalintal v. Comelec, (2003), Puno, C.J.,

Concurring and Dissenting Opinion:
Categories of Congressional Oversight Functions

A.
Scrutiny
1.
Primary purpose is to determine economy and

efficiency of the operation of government
activities
In the exercise of legislative scrutiny, Congress
may request information and report from the
other branches of government.
based primarily on the power of appropriation of
Congress
Congress can ask the heads of departments to
appear before and be heard by either House of
Congress on any matter pertaining to their
departments.
2.
3.
4.
Art. VI, Sec. 22. The heads of departments may, upon their
own initiative, with the consent of the President, or upon the
request of either House, as the rules of each House shall
provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days
before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related
thereto. When the security of the State or the public interest
so requires and the President so states in writing, the
appearance shall be conducted in executive session
Congress exercises supervision over the executive

agencies through its veto power.
It typically utilizes veto provisions when granting the
President or an executive agency the power to
promulgate regulations with the force of law. These
provisions require the President or an agency to
present the proposed regulations to Congress, which
retains a right to approve or disapprove any
regulation before it takes effect.
51
III. Executive Privilege
Citing American sources, the SC defined and

explained executive privilege as follows --(1) It is the right of the President and high-level
executive branch officers to withhold information
from Congress, the courts, and ultimately the
public;
(2) It takes on various forms, whereby U.S.
Presidents invoke it in order to prevent a
subversion of crucial military or diplomatic
objectives, or to protect the identity of informers,
or to maintain the internal nature of the
formulation of governmental decisions and
policies;
(3) It is based on the constitutional doctrine of
separation of powers. [Senate v. Ermita, (2006)]
1.
2.
Two kinds of executive privilege:

[citing In re: Sealed Case]
Presidential Communications Privilege
Deliberative Process Privilege
exempts
the
executive
from
disclosure
requirements applicable to the ordinary citizen or
organization
Scope
Who are
covered
Basis
Elements
where such exemption is necessary to the

discharge of highly important executive
responsibilities
involved
in
maintaining
governmental operations, and
extends not only to military and diplomatic
secrets but also to documents integral to an
appropriate exercise of the executive domestic
decisional and policy making functions, that is,
those documents reflecting the frank expression
necessary in intra-governmental advisory and
deliberative communications. [Neri v Senate
(2008)]
Presidential Communications
Communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential
o applies to documents in their entirety, and covers final and postdecisional materials as well as pre-deliberative ones
President
operational proximity test: meant to encompass only those
functions that form the core of presidential authority, involving
what the court characterized as quintessential and nondelegable
Rooted in the constitutional principle of separation of power and
the Presidents unique constitutional role
1. The protected communication must relate to a quintessential
and non-delegable presidential power.
2. The communication must be authored or solicited and received
by a close advisor of the President or the President himself.
The judicial test is that an advisor must be in operational
proximity with the President.
3. The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate
need, such that the information sought likely contains important
evidence and by the unavailability of the information elsewhere
by an appropriate investigating authority.
How does one draw the line, or balance, the

competing claims of the presidency and the
legislature?
o Citing Senate v. Ermita (2006), the Court
held that the oversight function of
Congress
may
be
facilitated
by
compulsory process only to the extent
that it is performed in pursuit of
legislation.
o It is conceded that it is difficult to draw the
line between an inquiry in aid of legislation
and an inquiry in the exercise of oversight
function of Congress. In this regard, much
will depend on the content and the manner
the inquiry is conducted.
Deliberative Process
Advisory opinions, recommendations
and deliberations comprising part of a
process
by
which
governmental
decisions and policies are formulated.
Executive officials
Common law privilege
52
IV. Peoples Initiative

Lambino v. COMELEC (2006):
In Santiago v. COMELEC (1997), the SC declared
RA. 6735 on Peoples Initiative to be incomplete,
inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned.
The Lambino petition seeks to use the same law for a
new peoples initiative in order to convert the present
government set-up into a parliamentary-unicameral
system.
Held:
o The Court held that the Santiago decision need
not be revisited. The Lambino petition warranted
outright dismissal for failure to comply with the
basic requirement of Section 2, Art. XVII such
that an affirmation or reversal of Santiago will not
change the outcome of the case.
o
The Lambino petition failed to comply because:

a) the initiative petition did not present the full
text of the proposed amendments, and
b) the proposed changes constituted revision,
not amendment.
The essence of amendments directly proposed
by the people through initiative upon petition is
that the entire proposal on its face is a petition by
the people. This means the 2 essential
elements must be present:
1) The people must author and thus sign the
entire proposal. No agent or representative
can sign on their behalf.
2) As an initiative upon a petition, the proposal
must be embodied in the petition.
Further, a peoples initiative could only propose
amendments, not revisions. Only a Congress or
a Constitutional Convention can propose both
amendments and revisions to the Constitution. A
change in the form of governmentfrom
presidential and bicameral to parliamentary and
unicameralconstitutes revision and not merely
an amendment.
V. Right of Reply
Highlights of House Bill No. 3306
A.
To Whom the Right to Reply is Granted
1.
All persons accused of any crime or offense

defined by law, or
Criticized by innuendo, suggestion or rumor for
any lapse in behavior in public or private life.
2.
B.
Where Reply is Published or Broadcast
1.
Same space of the printed media where

accusation or criticism was published
Same program where accusation or criticism was
broadcast
Media covered include websites and any

electronic devices
2.
C.
When Reply is Published or Broadcast
Not later than 1 day after the reply shall have been
delivered to the editorial office of the publication
concerned or to the station that carried the broadcast
being replied to.
D.
Length of Reply
Not longer than the accusation or criticism.

E.
Other Provisions
1.
It is the obligation of the publication or

broadcast network which featured the
accusations against a person, if the latter is
eventually cleared of the crime alluded to him, to
correct its previous report.
The publication or broadcasting of the reply shall
be free of charge, payment or fees.
Failure or refusal to publish or broadcast a reply
or the correction of an erroneous news item is
carries penal sanctions consisting of both fines
and imprisonment.
The publication of the reply or correction does not
preclude recourse to the exercise of other legal
rights and remedies available to the party
concerned.
2.
3.
4.
53
VI. The (Erstwhile)

Kabunsuan
Province
of
Shariff
2.
Sema v. Comelec, (2008):
Facts:
o The ARMM's legislature, the ARMM Regional
Assembly, exercising its power to create
provinces under Section 19, Article VI of RA
9054, enacted Muslim Mindanao Autonomy Act
No. 201 (MMA Act 201) creating the Province of
Shariff Kabunsuan.
o The province was composed of the eight
municipalities in the first district of Maguindanao
and the City of the Cotabato. However, Cotabato
City, though part of the first legislative district of
Maguindanao, voted against its inclusion in the
ARMM in the plebiscite held in November 1989.
Only Congress can create provinces and

cities because the creation of provinces and
cities necessarily includes the creation of
legislative districts, a power only Congress
can exercise under Section 5, Article VI of the
Constitution and Section 3 of the Ordinance
appended to the Constitution.
The ARMM
Regional Assembly cannot create a province
without a legislative district because the
Constitution mandates that every province shall
have a legislative district. Thus, MMA Act 201,
enacted by the ARMM Regional Assembly and
creating the Province of Shariff Kabunsuan, is
void.
VII. MOA on Ancestral Domain (MOA-AD)
Issue: WON the ARMM Regional Assembly can

create the Province of Shariff Kabunsuan.
Held:
1. There is no provision in the Constitution that
conflicts with the delegation to regional legislative
bodies of the power to create municipalities
and barangays, provided the provisions of
Section 10, Article X of the Constitution is
followed.
Facts:
However, the creation of provinces and cities

is another matter.
Section 5 (3), Article VI of the Constitution
provides, Each city with a population of at least
two hundred fifty thousand, or each province,
shall have at least one representative in the
House of Representatives.
Similarly, Section 3 of the Ordinance appended to
the Constitution provides, Any province that may
hereafter be created, or any city whose
population may hereafter increase to more than
two hundred fifty thousand shall be entitled in the
immediately following election to at least one
Member.
Thus, the power to create a province or city
inherently involves the power to create a
legislative district.
The creation of the ARMM, and the grant of
legislative powers to its Regional Assembly under
its organic act, did not divest Congress of its
exclusive authority to create legislative
districts. To allow the ARMM Regional Assembly
to create a national office is to allow its legislative
powers to operate outside the ARMMs territorial
jurisdiction.
This violates Section 20, Article X of the
Constitution which expressly limits the coverage
of the Regional Assemblys legislative powers
[w]ithin its territorial jurisdiction x x x.
Thus, the creation of the Province of Shariff
Kabunsuan without a legislative district is
unconstitutional.
Province of North Cotabato v. GRP, Esperon

(2008)
In lieu of the historical hostilities occurring in

Mindanao perpetrated by Muslim secessionist groups
and the failure of a number of peace talks entered into
between the government and the MNLF (the MILF
broke away from MNLF and continued armed
hostilities), President Arroyo issued Executive Order
No.3 defining the policy and administrative structure
for the governments comprehensive peace effort.
Later on, she issued Memorandum of Instructions to
the GRP Peace Panel providing the General
Guidelines on the Peace Talks with the MILF.
Pursuant to this, the MILF and the AFP suspended all
military actions and began the peace talks. But
despite two rounds of formal peace talks, violence still
ensued.
Later on, the GRP and the MILF again agreed to a
cessation of hostilities to give way to exploratory talks
to be conducted in Kuala Lumpur. The exploratory
talks culminated in the drafting of the subject of MOAAD intended to be signed on August 5, 2008 in Kuala
Lumpur.
Petitioners wanted to secure copies of the MOA but
they were denied. They filed petitions which resulted
to a cease and desist order from the Supreme Court
restraining the government to sign the MOA-AD and
prompted the SolGen to submit to the court the final
draft of the MOA-AD.
Later on, the Executive Department pronounced that it
would not longer sign the MOA-AD and dissolved the
GRP Peace Panel.
Petitioners still filed 13 petitions assailing the
constitutionality of the MOA-AD arguing that there
remains a justiciable controversy to resolve.
Held:
Concrete acts under the MOA-AD are not necessary
to render the present controversy ripe. In Pimentel, Jr.
v. Aguirre (2000), this Court held that the mere
enactment of the questioned law or the approval of
54
the challenged action ripened the dispute to a judicial

controversy even without any other overt act. By the
same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution
and the laws, settling the dispute becomes the duty
and the responsibility of the courts.
Contrary to the contention of the respondents, the
non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the
present petitions. It bears emphasis that the signing of
the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Likewise, the MOA-AD cannot be considered a mere
"list of consensus points," especially given its
nomenclature, the need to have it signed or initialed
by all the parties concerned on August 5, 2008, and
the far-reaching Constitutional implications of
these "consensus points," foremost of which is the
creation of the BJE. In fact, there is a commitment on
the part of respondents to amend and effect
necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined
to the terms and provisions of the MOA-AD, but to
other on-going and future negotiations and
agreements necessary for its realization. The
petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOAAD, the manifestation that it will not be signed as well
as the disbanding of the GRP Panel not withstanding.
Moreover, these petitions are imbued with paramount
public interest, involving a significant part of the
country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the
MOA-AD is subject to further legal enactments
including possible Constitutional amendments more
than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar,
the public and, in this case, the government and
its negotiating entity.
Also:
1. The Presidential Adviser on Peace Process,
General Esperon, committed grave abuse of
discretion when he failed to carry out the
pertinent consultation process as required by EO
3, RA 7160 (LGC) and RA 8371 (IPRA).
2.
The MOA-AD cannot be reconciled with the

Constitution and laws, particularly the associative
relationship envisioned between GRP and BJE.
Therefore, it is unconstitutional.
3.
The clause on the MOA-AD that inconsistent

provisions will not take effect until the framework
is amended does not cure the MOA-ADs
unconstitutionality.
4.
Respondents
act
of
guaranteeing
the
amendments is, by itself, already a constitutional
violation.
Nachuras Dissent:
In light of supervening events, there is no more actual
case or controversy to be resolved. There can be no
violation of the Constitution because the MOA-AD
was not consummated. On the substantive aspect,
Nachura believed that the constitutionality of the
MOA-AD should be viewed from the perspective of
executive power.
As Chief Executive and
Commander-in-Chief, there is an implied power given
to the President as protector of peace. Implied from
the calling out power of the President which does not
require existence of actual invasion or rebellion, the
President may exercise not only emergency powers,
but day-to-day problems of maintaining peace and
order and ensuring domestic tranquility. The mandate
of the GRP Peace Panel emanated from Executive
Order No. 3 which was issued pursuant to the power
of the President to maintain peace and order.
- end of Constitutional Law I -
55
TABLE of CONTENTS
Table of Contents
Chapter II. Fundamental Powers ..................60

of the State......................................................60
I.
Police Power .......................................60
A. Definition .........................................60
II.
Eminent Domain..................................63
A. Definition .........................................63
B. Who May Exercise..........................63
C. Requisites .......................................64
III. Taxation ..............................................65
A. Definition and Scope.......................65
B. Who May Exercise.........................65
C. Limitations.......................................65
D. Double Taxation..............................66
Chapter III. Due Process................................67
I.
In General ...........................................67
II.
Substantive Due Process....................67
A. Scope..............................................68
B. Requisites .......................................68
C. Doctrines.........................................68
III. Procedural Due Process .....................69
A. Scope..............................................69
B. Kinds ...............................................69
IV. Due Process As Limitation On
Fundamental State Powers .........................70
A. Vis--vis Police Power ....................70
B. Vis--vis Eminent Domain ..............70
C. Vis--vis Power to Tax....................71
Chapter IV. Equal Protection of the Laws....72
I.
Definition and Scope of Protection......72
II.
Requisites of Valid Classification ........72
III. Examples of Valid Classification .........72
A. Aliens ..............................................72
Abroad .....................................................73
C. Land-based vs. Sea-based Filipino
Overseas Workers...................................73
D. Qualification for Elective Office.......73
E. Office of the Ombudsman...............73
F.
Print vs. Broadcast Media...............73
IV. Standards of Judicial Review..............73
A. Rational Basis Test ......................73
B. Strict Scrutiny Test .......................73
C. Intensified Means Test .................73
Chapter V. Requirements for Fair Procedure
.........................................................................74
I.
II.
Nature and Scope ............................... 74

ARREST.............................................. 74
Arrest Warrant ......................................... 74
Arrest (Rule 113, Sec. 5, Rules on Criminal
Procedure)............................................... 75
III. SEARCH AND SEIZURE.................... 77
IV. Detention/Custodial Investigation ....... 80
80
B. Tests of Waiver of Miranda Rights . 83
V. Protocol After Conduct Of Investigation
84
VI. Other Rights Guaranteed Under Art. III.
Sec. 12......................................................... 84
VII.
Exclusionary Rules ......................... 84
VIII.
Right to Bail .................................... 86
Chapter VI. Rights of the Accused ............... 88
II.
Rights Post Trial.................................. 91
Chapter VII. Writs ........................................... 94
I.
HABEAS CORPUS ............................. 94
II.
WRIT OF AMPARO ............................ 96
III. WRIT OF HABEAS DATA................... 96
Chapter VIII. Privacy of Communication and
Correspondence ............................................ 99
I.
Intrusion, When Allowed ..................... 99
II.
Forms of Correspondence Covered ... 99
III. ENABLING LAW ................................. 99
Chapter IX. Freedom of Expression ........... 101
I.
Basis,
Components,
Scope
and
Limitations.................................................. 101
II.
CONTENT-BASED RESTRICTIONS103
IV. CONTENT-NEUTRAL RESTRICTIONS
106
Chapter X. Freedom of Religion ................. 109
I.
Non-establishment Clause................ 109
II.
Free Exercise Clause........................ 110
III. Tests ................................................. 111
Chapter XI. Liberty of Abode and Travel ... 112
I.
Liberty of Abode................................ 112
II.
Right to Travel................................... 112
III. Right to Return to Ones Country...... 112
....................................................................... 113
Chapter XIII. Latest Cases........................... 119
57
Chapter I. Bill of Rights .................................58

I.
In General ...........................................58
II.
Bases and Purpose.............................59
A. Bases: .............................................59
III. Accountability ......................................59
Prof. Ibarra M. Gutierrez

Faculty Editor
Paula Deveraturda
Lead Writer
Tina Amador
Dan Avila
Richard Beltran
Daniel Convocar
Michael Manotoc
Sam Nuez
Che Santos
Alyanna Orbeta
Writers
POLITICAL LAW
Jennifer Go
Subject Editor
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

Kae Guerrero
DESIGN & LAYOUT

Pat Hernandez
Viktor Fontanilla
Romualdo Menzon Jr.
Rania Joya
LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Heads
Volunteers
MOCK BAR COMMITTEE

Lilibeth Perez

Dahlia Salamat
LOGISTICS
Charisse Mendoza
Jill Hernandez
Head
Members
Chapter I. Bill of Rights

I. IN GENERAL
II. BASES AND PURPOSE
A. BASES
B. PURPOSE
III. ACCOUNTABILITY
I.
In General
It is a declaration and enumeration of a person's

fundamental civil and political rights. It also
imposes safeguards against violations by the
government, by individuals, or by groups of
individuals.
People vs. Marti, G.R. No. 81561 (January 18,
1991):
The Bill of Rights governs the relationship
between the individual and the state. Its
concern is not the relation between individuals,
between a private individual and other
individuals. What the Bill of Rights does is to
declare some forbidden zones in the private
sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas ,
Record of the Constitutional Commission, Vol. 1,
p. 674; July 17, 1986; Emphasis supplied)
It is generally self-executing.
Article III contains the chief protection for
human rights but the body of the Constitution
guarantees other rights as well.
1. Civil rights rights that belong to an
individual by virtue of his citizenship in a
state or community (e.g. rights to property,
marriage, freedom to contract, equal
protection, etc.)
2. Political rights rights that pertain to an
individuals
citizenship
vis--vis
the
management of the government (e.g. right of
suffrage, right to petition government for
redress, right to hold public office, etc.)
3. Social and economic rights rights which
are intended to insure the well-being and
economic security of the individual
4. Rights of the accused civil rights
intended for the protection a person accused
of any crime
58
CONSTITUTIONAL LAW II TEAM
Chapter I. BILL of RIGHTS
Chapter I. BILL of RIGHTS
III. Accountability
A. Bases:
1. Importance accorded to the dignity and
worth of the individual.
2. Protection against arbitrary actions of
government and other members of
society
B. Purpose:
1. To preserve democratic ideals
2. To safeguard fundamental rights
3. To promote the happiness of
individual
an
Philippine
Blooming
Mills
Employees
Organization vs. Philippine Blooming Mills Co.,
Inc. (1973):
The Bill of Rights is designed to preserve the
ideals of liberty, equality and security
"against the assaults of opportunism, the
expediency of the passing hour, the erosion of
small encroachments, and the scorn and
derision of those who have no patience with
general principles." (Justice Cardoso, Nature of
Judicial Process, 90-93; Tanada and Fernando,
Constitution of the Philippines, 1952 ed., 71.)
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 political controversy, to place
them beyond the reach of majorities and
officials, and to establish them as legal
principles to be applied by the courts. One's
rights to life, liberty and property, to free speech,
or free press, freedom of worship and assembly,
and other fundamental rights may not be
submitted to a vote; they depend on the
outcome of no elections." (West Virginia State
Board of Education vs. Barnette, 319 U.S. 624,
638)
People vs. Marti (1991):

That the Bill of Rights embodied in the
Constitution is not meant to be invoked
against acts of private individuals
Serrano vs. NLRC (2000):
Section 3 of Article XIII of the Constitution
requires the State to give full protection to labor.
We cannot be faithful to this duty if we give no
protection to labor when the violator of its rights
happens to be private 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 right of employees to
security of tenure comes almost always from
their private employers.
59
II. Bases and Purpose
I.
POLICE POWER
A. DEFINITION
B. SCOPE AND LIMITATIONS
C. WHO MAY EXERCISE
D. TESTS FOR VALIDITY OF EXERCISE
E. ILLUSTRATION ON THE EXERCISE
II. EMINENT DOMAIN
A. DEFINITION
B. WHO MAY EXERCISE
C. REQUISITES
III. TAXATION
A. DEFINITION AND SCOPE
B. WHO MAY EXERCISE
C. LIMITATIONS
D. DOUBLE TAXATION
Bank and Trust Co. (1979):

the state, in order to promote the general
welfare, may interfere with personal liberty,
with property, and with business and
occupations. Persons may be subjected to
all kinds of restraints and burdens, in order
to secure the general comfort health and
prosperity of the state and to this
fundamental aim of our Government, the
rights of the individual are subordinated.
(citations omitted)
Ermita-Malate Hotel and Motel Operators
Assoc. vs. Mayor of Manila (1967):
A. Definition
...has been properly characterized as the

most essential, insistent and the least
limitable of powers, (Cf. Ichong v.
Hernandez, (1957) 101 Phil. 1155, at p.
1163) extending as it does "to all the great
public needs." (Noble state Bank vs.
Haskell, 219 U.S. 412)
Ermita-Malate Hotel and Motel Operators

Association, Inc. vs. Mayor of Manila (1967):
Specific Coverage
I.
Police Power
It is the inherent and plenary power of the

state which enables it to prohibit all that is
hurtful to the comfort, safety and welfare of
society.
B. Scope and Limitations

1. Scope
General Coverage:
Rubi vs. Provincial Board, G.R. No. L-14078
(March 7, 1919)
"The police power of the State," one court
has said, "is a power coextensive with selfprotection, and is not inaptly termed the 'law
of overruling necessity.' It may be said to be
that inherent and plenary power in the State
which enables it to prohibit all things hurtful
to the comfort, safety and welfare of
society." (Lake View vs. Rose Hill Cemetery
Co. [1873], 70 Ill., 191.)
It may be said to be that inherent and
plenary power in the State which enables it
to prohibit all things hurtful to the comfort,
safety and welfare of society." (Lake View
vs. Rose Hill Cemetery Co. [1873], 70 Ill.,
191.)
Ortigas & Co., Limited Partnership vs. Feati
Public Health
Public Morals
Public Safety
Public Welfare
2. Limitations
US vs. Toribio (1910):
The legislative determination as to what is a
proper exercise of its police powers is not final
or conclusive, but is subject to the supervision of
the court. (Mr. Justice Brown in his opinion in
the case of Lawton vs. Steele [152 U.S., 133,
136]
C. Who May Exercise

1. Legislature
Police power is lodged primarily in the
national legislature.
2. 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 (R.A. 7160, sec.
16).
60
Chapter II. Fundamental Powers of the

State
Chapter II. FUNDAMENTAL POWERS
Churchill and Tait vs. Rafferty (1915):

...this power is limited only by the Acts of
Congress and those fundamentals principles
which lie at the foundation of all republican
forms of government. An Act of the Legislature
which is obviously and undoubtedly foreign to
any of the purposes of the police power and
interferes with the ordinary enjoyment of
property would, without doubt, be held to be
invalid.
Note: MMDA vs. Garin (2005):
Rep. Act No. 7924 does not grant the MMDA
with police power, let alone legislative power,
and that all its functions are administrative in
nature. (MMDA v. Bel-Air Village Association,
G.R. No. 135962, March 27, 2000) BUT it is not
precludedand in fact is duty-boundto
confiscate and suspend or revoke drivers'
licenses in the exercise of its mandate of
transport and
traffic
management,
as
well
as
the
administration and implementation of all traffic
enforcement operations, traffic engineering
services and traffic education programs.
(Section 3(b), Rep. Act No. 7924)
D. Tests for Validity of Exercise of Police

Power
1. LAWFUL SUBJECT: Interest of the general
public (as distinguished from a particular
class required exercise).
2. LAWFUL MEANS: Means employed is
reasonably
necessary
for
the
accomplishment of the purpose, and is not
unduly oppressive
E. Illustrations on the Exercise of Police

Power
1. National Security
Scope of the police power: Since the Courts

cannot foresee the needs and demands of
public interest and welfare, they cannot delimit
beforehand the extent or scope of the police
power by which and through which the state
seeks to attain or achieve public interest and
welfare.
Police power and national security: The
disputed law was enacted to remedy a real
actual threat and danger to national
economy posed by alien dominance and control
of the retail business; the enactment clearly falls
within the scope of the police power of the State,
thru which and by which it protects its own
personality and insures its security and future.
2. Public Safety
Agustin vs. Edu, (1979):
Agustin questions President Marcos Letter of
Instruction No. 229 compelling owners of
motor vehicles to install specific early
warning devices to reduce road accidents.
Agustin already installed warning devices in his
car but they were not the same ones specified in
the LOI. He argued that the said LOI violated the
police power of the state for being oppressive,
arbitrary and unconscionable.
Police power, public safety: The Court
identified police power as a dynamic agency,
suitably vague and far from precisely
defined, rooted in the conception that men in
organizing the state and imposing upon its
government
limitations
to
safeguard
constitutional rights did not intend to enable an
individual citizen or a group of citizens to
obstruct unreasonably the enactment of
such salutary measures calculated to
communal peace, safety, good order, and
welfare. According to the Court, a heavy burden
lies in the hands of the petitioner who questions
the states police power if was clearly intended
to promote public safety.
Ichong vs. Hernandez (1957):

SC upheld the constitutionality of RA 1180 (An
Act to Regulate the Retail Business) which
sought to nationalize the retail trade business by
prohibiting aliens in general from engaging
directly or indirectly in the retail trade. Aliens did
not question the exercise of police power; they
claim, however, that there was a violation of the
due process and equal protection clauses.
3. Public Morals
Ermita-Malate Motel and Motel Operators
Assn. vs. City Mayor of Manila (1967):
Ermita Malate Hotel and Motel Operations
Assoc. assails the constitutionality of Ordinance
No. 4760.
61
The grounds adduced were: (1) unreasonable

and violative of due process insofar as it
would impose different fees for different classes
of hotels/motels and prohibit 18 year-olds from
being accepted in such hotels, unless
accompanied by parents or a lawful guardian
and making it unlawful for the owner, manager,
keeper or duly authorized representative of such
establishments to lease any room or portion
more than twice every 24 hours, and (2)
invasion of the right to privacy and the
guaranty against self-incrimination because it
requires clients to fill up the prescribed form in a
lobby open to public view at all times and in his
presence, wherein personal information are
mandated to be divulged.
Police power, public morals: The mantle of
protection associated with the due process
guaranty does not cover petitioners. This
particular manifestation of a police power
measure being specifically aimed to
safeguard public morals is immune from
such imputation of nullity resting purely on
conjecture and unsupported by anything of
substance. Police power is "that inherent and
plenary power in the State which enables it
to prohibit all that is hurt full to the comfort,
safety, and welfare of society xxx There is no
question but that the challenged ordinance was
precisely enacted to minimize certain practices
hurtful to public morals.
Cf. White Light Corporation, et al vs. City of
Manila (2009):
The case of White Light vs. City of Manila was
termed by Justice Tinga as a middle case. It
was meant to identify its case within a spectrum
of cases decided by the Supreme Court which
dealt with ordinances which has for its view
the regulation of public morals.
It is called a middle case because unlike its
predecessors where the issue is either a
wholesale ban against hotels and motels or a
reasonable regulatory device as the one found
in Ermita-Malate vs. City of Manila, this is a
case where the ordinance in question
severely restricts the services of the
abovementioned establishments.
The ratio decidendi started with an outline of the
test of a valid ordinance i.e. it must be within the
corporate powers of the local government to
enact and pass and it must conform with
substantive requirements.
A reading of the ordinance at bar would yield

that it prohibits two practices: the wash rate
admission and renting out a room more than
twice per day.
These prohibitions are anchored in the power of
the LGU to implement ordinances hinged on the
general welfare clausethe devolved aspect of
police power.
This case churned out three standards for
judicial review: the STRICT SCRUTINY TEST
for laws dealing with freedom of the mind and
curtailment of political process and the
RATIONAL BASIS STANDARD OF REVIEW for
economic legislation. A third standard was
created known as the IMMEDIATE SCRUTINY
for evaluating standards based on gender and
legitimacy.
The Supreme Court justified the application of
the strict scrutiny test to this particular
ordinance despite its lack of political significance
by saying that it is not gravitas alone which is
sheltered by the Bill of Rights. It is precisely
these reflexive exercises of fundamental acts
which best reflect the degree of liberty
enjoyed.
Sexual behavior is one of these fundamental
acts covered by the penumbra of rights.
While the reality of illicit activity is judicially
recognized, it cannot be denied that sexual
behavior between consenting adults is
constitutionally protected.
Apart from the right to privacy, the ordinance
also proscribes other legitimate activities most of
which are grounded on the convenience of
having a place to stay during the short intervals
between travels.
The Ordinance was struck down as an arbitrary
intrusion to private rights. It made no
distinction between lodgings and placed
every establishment as susceptible to illicit
patronage.
4. The National Economy
U.S. vs. Toribio, G.R. No. L-5060 (January 26,
1910)
Police power, national economy The State
can restrict or limit private use, if such is
deemed by the legislature to be detrimental to
the public welfare.
62
The scarcity of these animals, the increase in

their sale value, and the prevalence of carabao
thefts,
justified
Legislature
to
adopt
reasonable measures for the preservation of
these work animals, even to the extent of
prohibiting and penalizing what would, under
ordinary conditions, be a perfectly legitimate and
proper exercise of rights of ownership and
control of the private property of the citizen.
The police power rests upon necessity and
the right of self-protection and. it is clear
that the enactment of the provisions of the
statute under consideration was required by
"the interests of the public generally, as
distinguished from those of a particular
class;" and that the prohibition of the
slaughter
of
carabaos
for
human
consumption, so long as these animals are
fit for agricultural work or draft purposes
was a "reasonably necessary" limitation on
private ownership, to protect the community
from the loss of the services of such animals by
their slaughter by improvident owners.
II. Eminent Domain

Art. III, Sec. 9. Private property shall not be take
for public use without just compensation.
Art. XII, Sec. 18. The State may, in the interest
of national welfare or defense, establish and
operate vital industries and, upon payment of
just compensation, transfer to public ownership
utilities and other private enterprises to be
operated by the government.
Art. XIII, Sec. 4 The State shall, by law,
undertake an agrarian reform program
founded on the right of farmers and regular
farmworkers who are landless, to own
directly or collectively the lands they till or,
in the case of other farmworkers, to receive
a just share of the fruits thereof.
To this end, the State shall encourage and
undertake the just distribution of all agricultural
lands, subject to such priorities and reasonable
retention limits as the Congress may prescribe,
taking into account ecological, developmental,

or equity considerations, and subject to the
payment of just compensation.
In determining retention limits, the State shall
respect the right of small landowners. The State
shall further provide incentives for voluntary
land-sharing.
Art. XIII, Sec. 9 The State shall, by law, and for
the common good, undertake, in cooperation
with the private sector, a continuing program
of urban land reform and housing which will
make available at affordable cost, decent
housing and basic services to underprivileged and homeless citizens in urban
centers and resettlement areas.
It shall also promote adequate employment
opportunities to such citizens. In the
implementation of such program the State shall
respect the rights of small property owners.
Art XIV, Sec. 13. The National assembly may
authorize, upon payment of just compensation,
the expropriation of private lands to be
subdivided into small lots and conveyed at cost
to deserving citizens.
A. Definition
It is the right of the government to take private
property with just compensation.
Visayan Refining Co. vs. Camus, G.R. No. L15870 (December 3, 1919):
The power of eminent domain does not depend
for its existence on a specific grant in the
constitution. It is inherent in sovereignty and
exists in a sovereign state without any
recognition of it in the constitution. The
provisions found in most of the state
constitutions relating to the taking of property for
the public use do not by implication grant the
power to the government of the state, but limit a
power which would otherwise be without
limit. (citations omitted)
B. Who May Exercise

Inherently:
Executive
Legislative
Visayan Refining Co. vs. Camus, G.R. No. L15870 (December 3, 1919):
63
In this case, the general public interest and

the countrys material welfare is affected
because of the contagious disease that
threatened to kill all the carabaos in the
country, such carabaos being the work animal
almost exclusively in use in the fields as well as
for draft purposes.
the performance of the administrative acts

necessary to the exercise of the power of
eminent domain in behalf of the state is lodged
by tradition in the Sovereign or other Chief
Executive.
where the Legislature has expressly conferred
the
authority to
maintain
expropriation
proceedings upon the Chief Executive, the right
of the latter to proceed therein is clear.
"Once authority is given to exercise the power
of eminent domain, the matter ceases to be
wholly legislative. The executive authorities may
then decide whether the power will be invoked
and to what extent." (citations omitted)
Extent of
Power
Question
of
Necessity
AS
EXERCISED
BY
CONGRESS
Pervasive and
allencompassing
Political
question
By Delegation:
City of Manila vs. Chinese Community of Manila,
G.R. No. L-14355 (October 31, 1919)
Re:
private
property
The general power to exercise the right of

eminent domain must not be confused with the
right to exercise it in a particular case.
The power of the legislature to confer, upon
municipal corporations and other entities
within the State, general authority to exercise
the right of eminent domain cannot be
questioned by the courts, but that general
authority of municipalities or entities must not be
confused with the right to exercise it in particular
instances.
The moment the municipal corporation or entity
attempts to exercise the authority conferred, it
must comply with the conditions accompanying
the authority. The necessity for conferring the
authority upon a municipal corporation to
exercise the right of eminent domain is
admittedly within the power of the
legislature.
But whether or not the municipal corporation or
entity is exercising the right in a particular case
under the conditions imposed by the general
authority, is a question which the courts have
the right to inquire into.
When a stature or charter or by general law has
conferred the right of eminent domain upon a
private entity. (Tenorio vs. Manila Railroad Co.,
G.R. No. L-6690, March 29, 1912)
AS EXERCISED
BY DELEGATES
Can only be as
broad as the
enabling law and
the conferring
authorities want it
to be
Justiciable
question. RTC
has to determine
whether there is
a genuine
necessity for its
exercise, as well
as what the
propertys value
is
Delegate cannot
expropriate
private property
already devoted
to public use
C. Requisites
Generally
a. Taking of Private Property
b. for Public Use,
c. with Just Compensation, and
d. Due Process.
Specifically
(LGUs, Sec. 19, Local Government Code):
a. Ordinance by a local legislature council
is enacted authorizing local chief
executive to exercise eminent domain,
b. For public use, purpose or welfare or for
the benefit of the poor and of the
landless,
c. Payment of just compensation,
d. Valid and definite offer has been
previously made to owner of the
property sought to be expropriated but
such
offer
was
not
accepted
(Municipality of Paraaque vs. VM
Realty, 1998)
Heirs of Ardona vs. Reyes, G.R. Nos. L-60549,
60553 to 60555 (October 26, 1983):
The particular mention in the Constitution of
agrarian reform and the transfer of utilities and
other private enterprises to public ownership
merely underscores the magnitude of the
64
There can be no doubt that expropriation for

such traditions' purposes as the construction of
roads, bridges, ports, waterworks, schools,
electric and telecommunications systems,
hydroelectric power plants, markets and
slaughterhouses, parks, hospitals, government
office buildings, and flood control or irrigation
systems is valid. However, the concept of
public use is not limited to traditional
purposes. Here as elsewhere the Idea that
"public use" is strictly limited to clear cases of
"use by the public" has been discarded.
Private bus firms, taxicab fleets, roadside
restaurants, and other private businesses using
public streets end highways do not diminish in
the least bit the public character of
expropriations for roads and streets. The
lease of store spaces in underpasses of streets
built on expropriated land does not make the
taking for a private purpose. Airports and piers
catering exclusively to private airlines and
shipping companies are still for public use.
The expropriation of private land for slum
clearance and urban development is for a
public purpose even if the developed area is
later
sold
to
private
homeowners,
commercial firms, entertainment and service
companies, and other private concerns.
III. Taxation
A. Definition and Scope
It is the enforced proportional contributions from
persons and property, levied by the State by
virtue of its sovereignty, for the support of the
government and for all public needs.
It is as broad as the purpose for which it is
given.
Purpose:
To raise revenue
Tool for regulation
Protection/power to keep alive
B. Who May Exercise
legislature (primarily)
local legislative bodies (Sec. 5 Art. 10,
1987 Consti)
President (o a limited extent, when

granted delegated tariff powers under
Sec. 28 (2) Art. 6, 1987 Consti)
C. Limitations
General Limitations
Power to tax exists for the general welfare;

should be exercised only for a public
purpose
might be justified as for public purpose even
if the immediate beneficiaries are private
individuals
Tax should not be confiscatory: If a tax
measure is so unconscionable as to amount
to confiscation of property, the Court will
invalidate it. But invalidating a tax measure
must be exercised with utmost caution,
otherwise, the States power to legislate for
the public welfare might be seriously
curtailed
Specific Limitations
Uniformity of taxation:
a. General Rule: simply geographical
uniformity, meaning it operates with the
same force and effect in every place
where the subject of it is found
b. Exception: rule does not prohibit
classification for purposes of taxation,
provided the ff requisites are met:
i. standards used are substantial and
not arbitrary
ii. categorization is germane to
achieve the legislative purpose
iii. the law applies, all things being
equal to both present and future
conditions
iv. applies equally to members of the
same class
c. Rules:
i. Equal protection clause: taxes
should be uniform (persons or
things belonging to the same class
shall be taxed at the same rate) and
equitable
(taxes
should
be
apportioned among the people
according to their capacity to pay)
ii. Progressive system of taxation:
The rate increases as the tax base
increases, with basis as social
justice
Taxation as an instrument for a
more equitable distribution of
wealth
iii. Delegated
tax
legislation:
Congress may delegate law-making
65
problems sought to be remedied by these

programs. They do not preclude nor limit the
exercise of the power of eminent domain for
such purposes like tourism and other
development programs.
authority when the constitution itself

specifically authorizes it.
members of Congress (Art. VI, sec.

28 (4))
d. Constitutional
exemptions
(1987
CONST., art. VI, sec. 28(3))
i. Educational institutions (both
profit and non-profit): Benefits
redound to students, but only
applied to property taxes not excise
taxes
ii. Charitable institutions: Religious
and charitable institutions give
considerable assistance to the State
in the improvement of the morality of
the people and the care of the
indigent and the handicapped
iii. Religious property
Impairment of Obligations of Contracts

a. General Rule: Power of taxation may
not be used to violate the constitutional
right of every person to be secured
against any statute that impairs the
obligation of contracts;
b. Exception: But if the statute exempts a
party from any one class of taxes, the
imposition of a different tax is not an
impairment of the obligation of
contracts.
Tax Exemptions
a. A corollary power but must be for a
public purpose, uniform and equitable
and in conformity with the equal
protection clause
b. Tax exemptions are granted gratuitously
and may be revoked at will, except
when it was granted for valuable
consideration
c. May either be constitutional or statutory
i. If statutory, it has to have been
passed by majority of all the
D. Double Taxation
Occurs when additional taxes are laid on the
same subject by the same taxing jurisdiction
during the same taxing period for the same
purpose
No provision in the Constitution specifically

prohibiting double taxation, but will not be
allowed if it violates equal protection
clause.
COMPARATIVE TABLE
Compensation
POLICE POWER
EMINENT DOMAIN
TAXATION
None
(The altruistic feeling
that one has contributed
to the public good
[NACHURA])
Just compensation
(Full and fair equivalent of
the property taken)
required.
Not appropriated for

public use
Appropriated for public

use
To destroy noxious
property or to restrain
the noxious use of
property
Liberty and Property
Property taken for public

use; it is not necessarily
noxious
None
(The protection given
and public improvements
instituted by the State
because of these taxes
[NACHURA])
Use taxing power as an
implement for the
attainment of a
legitimate police
objectiveto regulate a
business or trade
Earn revenue for the
government
Use of Property
Objective
What it Regulates
Property rights only
Property rights only
66
Chapter III. DUE PROCESS
Chapter III. Due Process

B. Noted Exceptions to Due Process
I.
(Ynot vs. IAC, 1987)
The conclusive presumption, bars the

admission of contrary evidence as long as
such presumption is based on human
experience or there is a rational connection
between the fact proved and the fact
ultimately presumed therefrom.
There are instances when the need for

expeditious action will justify omission of
these requisites, as in the summary
abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on
sight because of the immediate danger it
poses to the safety and lives of the people.
Art. III, Sec. 1. No person shall be deprived of

life, liberty or property without due process of
law, nor shall any person be denied the equal
protection of the laws.
Pornographic materials, contaminated meat

and narcotic drugs are inherently
pernicious and may be summarily
destroyed.
Art. XIII, Sec. 1. The Congress shall give

highest priority to the enactment of measures
that protect and enhance the right of all the
people to human dignity, reduce social,
economic, and political inequalities and remove
cultural inequities by equitably diffusing wealth
and political power for the common good.
The passport of a person sought for a

criminal offense may be cancelled without
hearing, to compel his return to the country
he has fled.
Filthy restaurants may be summarily

padlocked in the interest of the public
health and bawdy houses to protect the
public morals.
To this end, the State shall regulate the

acquisition, ownership, use, and disposition of
property and its increments.
I.
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 by those who sit in judgment.
(Ynot vs. IAC, 1987)
It covers any governmental action which
constitutes a deprivation of some person's
life, liberty, or property.
A. Minimum Requirements
Due process of law guarantees:
notice and
opportunity to be heard
to persons who would be affected by the
order or act contemplated.
In such instances, previous judicial hearing

may be omitted without violation of due
process in view of: 1) the nature of the property
involved; or 2) the urgency of the need to protect
the general welfare from a clear and present
danger.
II. Substantive Due Process

City of Manila vs. Laguio, (2005)
Substantive due process, asks whether the
government has an adequate reason for
taking away a persons life, liberty, or
property.
In other words, substantive due process looks to
whether there is a sufficient justification for the
governments action.
67
IN GENERAL
A. MINIMUM REQUIREMENTS
B. NOTED
EXCEPTIONS
TO
DUE
PROCESS
II. SUBSTANTIVE DUE PROCESS
A. SCOPE
B. REQUISITES
C. DOCTRINES
III. PROCEDURAL DUE PROCESS
A. SCOPE
B. KINDS
IV. DUE PROCESS AS LIMITATION ON
FUNDAMENTAL STATE POWERS
A. VIS-A-VIS POLICE POWER
B. VIS-A-VIS EMINENT DOMAIN
C. VIS-A-VIS POWER TO TAX
A. Scope
Substantive due process is an aspect of due
process which serves as a restriction on the lawmaking and rule-making power of the
government.
The law itself, not merely the procedures by
which the law would be enforced, should be fair,
reasonable, and just.
B. Requisites
(US vs. Toribio, 1910)
Laws which interfere with life, liberty or

property satisfy substantive due process
when there is:
1. Lawful object i.e. the interests of the public

in general (as distinguished from those of a
particular class) require the intervention of
the State, and
2. Lawful means i.e. means employed are
reasonably
necessary
for
the
accomplishment of the purpose and not
unduly oppressive on individuals.
Taada vs. Tuvera (1986):
Publication of laws is part of substantive due
process.
People vs. Nazario (1988):
VOID FOR VAGUENESS DOCTRINE: An
accused is denied the right to be informed of the
charge against him and to DUE PROCESS
where the statute itself is couched in such
INDEFINITE LANGUAGE that its not possible
for men of ordinary intelligence to determine
therefrom what acts/omissions are punished.
C. Doctrines
1. Overbreadth Doctrine: A governmental
purpose may not be achieved by means
which sweep unnecessarily broadly and
thereby invade the area of protected
freedoms. David vs. Arroyo (2006)
a. Claims of facial overbreadth are
entertained in cases involving statutes
which by their terms seek to regulate
only spoken words. Such claims have
been curtailed when invoked against
ordinary criminal laws that are sought to
be applied to protected conduct.
b. A facial challenge using the overbreadth
doctrine will require the Court to
examine PP 1017 and pinpoint its
flaws and defects, not on the basis of
its actual operation to petitioners, but

on the assumption or prediction that
its very existence may cause others
not before the Court to refrain from
constitutionally protected speech or
expression.
c. Also, the challenger must establish that
there can be no instance when the
assailed law may be valid.
A plain reading of PP 1017 shows that it is not
primarily directed to speech / speech-related
conduct. It is actually a call upon the AFP to
prevent or suppress all forms of lawless
violence. Petitioners did not show WON theres
an instance when PP1017 may be valid.
2. Void for Vagueness: An act is vague when
it lacks comprehensible standards that
men of common intelligence must
necessarily guess at its common
meaning and differ as to its application.
The statute is repugnant to the constitution
in 2 respects:
a. It violates due process for failure to
accord persons, especially the parties
targeted by it, fair notice of what conduct
to avoid,
b. It leaves law enforcers an unbridled
discretion in carrying out its provisions.
Still on David vs. Arroyo:
Related to the "overbreadth" doctrine is the
"void for vagueness doctrine" which holds that
"a law is facially invalid if men of common
intelligence must necessarily guess at its
meaning and differ as to its application." It is
subject to the same principles governing
overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes
in free speech cases. Like overbreadth, it is said
that a litigant may challenge a statute on its
face only if it is vague in all its possible
applications.
A facial review of PP 1017 on the ground of
vagueness is unwarranted. Petitioners did not
even attempt to show that PP 1017 is vague in
all its application. They also failed to establish
that men of common intelligence cannot
understand the meaning and application of PP
1017.
68
III. Procedural Due Process
Criminal Due Process
A. Scope
Requisites (People vs. Vera, 1937)
Procedural due process is that aspect of due

process which serves as a restriction on actions
of judicial and quasi-judicial agencies of the
government. It refers to the method or manner
by which a law is enforced.
B. Kinds
a) Accused is heard by
competent jurisdiction;
court
of
b) Accused is proceeded against under the

orderly process of law;
c) Accused is given notice and opportunity
to be heard;
1. Judicial Due Process

d) Judgment rendered is within the
authority of a constitutional law. (Mejia
vs. Pamaran, 1988)
Civil Due Process

Requisites (Banco Espanol vs. Palanca, 1918)
a) An impartial court of tribunal clothed with
judicial power to hear and determine the
matter before it.
b) Jurisdiction must be lawfully acquired
over the person of the defendant and
over the property subject matter of the
proceeding
Note: NOTICE is an essential element
of due process, otherwise the Court will
not acquire jurisdiction and its judgment
will not bind the defendant.
To be meaningful, it must be both as to
time and place.
c) The defendant must be
opportunity to be heard
given
an
d) Judgment must be rendered upon

lawful hearing and must clearly explain
its factual and legal bases... (Sec. 14,
Art. 8, 1987 Consti; Banco EspaolFilipino vs. Palanca)
Note: Reyes vs. CA (1977): The

allowance or denial of motions for
extension rests principally on the sound
discretion of the court to which it is
addressed, but such discretion must be
exercised wisely and prudently, with a
view to substantial justice. Poverty is
recognized as a sufficient ground for
extending existing period for filing. The
right to appeal is part of due process
of law.
2. Administrative due process

Requisites of Procedural Due Process in
Administrative Agencies (Ang Tibay vs. CIR;
also known as the Ang Tibay Rules):
1. Right to a hearing to present own case and
submit evidence in support thereof.
2. Tribunal must consider the evidence
presented.
3. Decision rendered must have support.
4. Evidence which supports the finding or
conclusion is substantial (such relevant
evidence as a reasonable mind accept as
adequate to support a conclusion).
5. The decision must be rendered on the
evidence presented at the hearing, or at
least contained in the record and disclosed
to the parties affected.
6. The tribunal or any of its judges, must act on
its or his own independent consideration of
the law and facts of the controversy, and not
simply accept the views of a subordinate in
arriving at a decision.
7. The tribunal should, in all controversial
questions, render its decision in such a
manner that the parties to the proceeding
can know the various issues involved, and
the reasons for the decision rendered.
69
IV. Due Process As Limitation

Fundamental State Powers
On
A. Vis--vis Police Power

Cruz vs. Paras (1983):
Petitioners are operators of nightclubs in
Bulacan. They filed a prohibition suit to stop the
Municipality of Bacaue from enforcing an
ordinance prohibiting the operation of said
nightclubs. The Court held that a municipal
corp cannot prohibit the operation of
nightclubs. They may only regulate such. RA
938 granted municipalities the power to regulate
establishments. While another act amended it to
include the power to prohibit its operation, such
a construction of the amendatory act would be to
construe it in a way that it violates the
constitutional provision that every bill shall
embrace only 1 subject which shall be
expressed in the title thereof. Here, the title of
the amended RA remained the same so that the
power granted is still regulation not prohibition.
Bautista vs. Juinio (1984):
LOI No. 869 banned the use of vehicles with A
and EH plates on weekends and holidays in
view of the energy crisis. Some exceptions are
service, truck, consular corps vehicles.
Petitioners, owners of an 8 cylinder 1969 Buick
and a 6 cylinder Willys Kaiser Jeep questioned
the validity of LOI on grounds of it being
discriminatory and a denial of due process.
Court held that it cannot be held void on its face.
It has a presumption of validity. LOI is an
energy conservation measure; it is an
appropriate response to a problem. Nor does it
deny equal protection to petitioners since the
LOI operates equally and uniformly w/ class to
w/c petitioners belong. The government is not
required to adhere to a policy of all or none.
B. Vis--vis Eminent Domain

De Knecht vs. Bautista (1980):
CHOICE
OF
PROPERTY
TO
BE
EXPROPRIATED IS SUBJECT TO JUDICIAL
REVIEW AS TO REASONABLENESS:
Under Section 2, Article IV of the Philippine
Constitution, the Republic of the Philippines can
take private property upon payment of just
compensation. However, private property to
be taken cannot be chosen arbitrarily and
capriciously, as the landowner is entitled to
due process. The Department of Public

Highways originally established the extension in
Cuneta Avenue, and it is assumed that they
made extensive studies regarding it. The change
from Cuneta Avenue to Fernando Rein-Del Pan
Streets cannot be justified on the ground of
social impact, as the properties to be affected
along Cuneta Avenue are mostly motels.
EPZA vs. Dulay (1987):
DETERMINATION OF JUST COMPENSATION
IS JUDICIAL FUNCTION:
The Presidential Decrees merely serve as a
guide or a factor for the courts in determining
amount of just compensation (which should be
the fair and full value of the property at time of
taking). The courts have the power and authority
to determine just compensation, independent of
what the decrees state, and thus may appoint
commissioners to help in determining just
compensation.
Sumulong vs. Guerrero (1987):
SCOPE
OF
JUDICIAL
REVIEW
IN
EXPROPRIATION PROCEEDINGS:
In this case the Court held that socialized
housing falls under the scope of public use, and
is therefore a valid basis for expropriation.
Manotok vs. NHA (1987):
HEARING:
What the due process clause requires is that
the landowner must be given reasonable
opportunity to be heard and to present his claim
or defense. Although due process does not
always necessarily demand that a proceeding be
had before a court of law, it still mandates some
form of proceeding wherein notice and
reasonable opportunity to be heard are given to
the owner to protect his property rights. Although
there are exceptional situations when in the
exercise of the power of eminent domain, the
requirement does not need judicial process,
when it is alleged that the landowners right to
due process of law has been violated in the
taking of his property, the courts can probe and
check on the alleged violation.
Subjects of Judicial Review in Eminent
Domain:
a. Validity of taking
b. Adequacy of compensation,
c. Public use character of the purpose of
taking.
1. Taking
70
Requisites for a valid taking:

a. The expropriator must enter a private
property
b. Entry must be for more than a momentary
period
c. Entry must be under warrant or color of legal
authority
d. Proerty must be devoted to public use or
otherwise
informally
appropriated
or
injuriously affected
e. Utilization of the property must be in such a
way as to oust the owner and deprive him of
beneficial enjoyment of the property
(Republic vs. Castelvi, 1974)
Q: What happens if the expropriator does not
use the property for a public purpose but sells it
to a private user?
A: Property reverts back to the owner in fee
simple. (Heirs of Moreno vs. Mactan-Cebu
International Airport, 2005)
Price fixed by a buyer (desirous but not

compelled to buy) and a seller (willing but not
compelled to sell).
Must
include
consequential
damages
(damages to other interest of the owner attribute
to the expropriation) and deduct consequential
benefits (increase of value of other interests
attribute to new use of the former property)
Taking via eminent domain vs. taking
under social justice clause
Agrarian Reform (Art. XIII, Sec. 4)
This provision is an exercise of the police
power of the State through eminent domain
(Association of Small Landowners vs. Secretary
of Agrarian Reform) as it is a means to regulate
private property.
C. Vis--vis Power to Tax
The inherent limitation on the power of

taxation is public purpose. Taxes are
exacted only for a public purpose. They
cannot be used for purely private purposes
or for the exclusive benefit of private
persons
The reason for this is simple. The power to

tax exists for the general welfare; hence,
implicit in its power is the limitation that it
should be used only for a public purpose.
Taxation should be exercised with caution to

minimize the injury to the proprietary rights
of a taxpayer.
It must be exercised fairly, equally, and

uniformly, lest the tax collector kill the hen
that lays the golden eggs. in order to
maintain the general publics trust and
confidence in the Government, this power
must be used justly and not treacherously.
(Roxas y Cia vs. CTA, 23 SCRA 276)
2. 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
does not diminish its public-use character,
inasmuch as pubic use now includes the broader
notion of indirect public benefit or advantage
(Filstream International vs. CA, 284 SCRA 716)
3. Just Compensation
Definition
Province of Tayabas vs. Perez (1938): It is the
just and complete equivalent of the loss which
the owner of the thing expropriated has to suffer
by reason of the expropriation.
BASIS: Fair Market Value
Premature issuance of final assessment notice

and demand letter is tantamount to denial of
reply to the preliminary assessment notice.
[THESE ARE] essential elements of due process
because they constitute the notice and
opportunity to present ones side. (Phil. Health
Care Providers vs. CIR, 2008)
71
Definition
A physical dispossession of the owner of his
actual property, or its use.
It may include trespass without actual
eviction of owner, such as the material
impairment of value of property, or
preventions of ordinary uses for which the
property was intended.
Chapter IV. Equal Protection of the Laws

I.
DEFINITION
AND
SCOPE
OF
PROTECTION
II. REQUISITES OF VALID CLASSIFICATION
III. EXAMPLES OF VALID CLASSIFICATION
A. ALIEN
B. FILIPINO
FEMALE
DOMESTICS
WORKING ABROAD
C. LAND-BASED
VS.
SEA-BASED
FILIPINO OVERSEAS WORKERS
D. QUALIFICATION
FOR
ELECTIVE
OFFICE
E. OFFICE OF THE OMBUDSMAN
F. PRINT VS. BROADCAST MEDIA
IV. THREE STANDARDS OF JUDICIAL
REVIEW
A. RATIONAL BASIS TEST
B. STRICT SCRUTINY TEST
C. INTENSIFIED MEANS TEST
I.
Definition and Scope of Protection
Definition
City of Manila vs. Laguio (2005) citing Ichong vs.
Hernandez (1957):
Equal protection requires that all persons or

things similarly situated should be treated
alike, both as to rights conferred and
responsibilities imposed.
Similar subjects, in other words, should not
be treated differently, so as to give undue
favor to some and unjustly discriminate
against others.
The guarantee means that no person or
class of persons shall be denied the same
protection of laws which is enjoyed by other
persons
or
other
classes
in
like
circumstances.
Scope
Natural and juridical Persons (the equal
protection clause extends to artificial
persons but only insofar as their property is
concerned.)
A corporation as an artificial person is
protected under the Bill of Rights against
denial of due process, and it enjoys the
equal protection of the law. (Smith, Bell &
Co., vs. Natividad, 1919)
A corporation is also protected against
unreasonable searches and seizures. (See
Stonehill vs. Diokno, 1967)
It can only be proceeded against by due
process of law, and is protected against
Chapter IV. EQUAL PROTECTION of the LAWS
unlawful discrimination. (Bache & Co. vs.

Ruiz, 1971)
II. Requisites of Valid Classification

People vs. Cayat (1939):
a. It must rest on substantial distinctions;
b. It must be germane to the purpose of the
law;
c. It must not be limited to existing conditions
only.
Ormoc Sugar Co. vs Treasurer of Ormoc
City:
An ordinance was declared void because it
taxes only centrifugal sugar produced and
exported by the Ormoc Sugar Company and
none other, such that if a new sugar
central is established in Ormoc, it would
not be subject to the ordinance.
d. It must apply equally to all members of the
same class.
III. Examples of Valid Classification

Lacson vs. Executive Secretary (1999):
All classifications made by law are generally
presumed to be valid unless shown otherwise
by petitioner.
A. Aliens
General rule:
The general rule is that a legislative act may
not validly classify the citizens of the State on
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 a
classification is permitted by the Constitution
when
the
facts
so
warrant
(e.g.
discriminatory legislation against Japanese
citizens during WWII).
2. The political rights of aliens do not enjoy the
same protection as that of citizens.
3. Statutes may validly limit to citizens
exclusively the enjoyment of rights or
privileges connected with the public
domain, the public works, or the natural
resources of the State.
4. The rights and interests of the state in these
things are not simply political but also
proprietary in nature; and so the citizens
may lawfully be given preference over
'aliens in their use or enjoyment.
72
Chapter IV. EQUAL PROTECTION of the LAWS
Ichong vs, Hernandez (1957):
The Court upheld the Retail Trade Nationalization

Law despite the objection that it violated the EP
clause, because there exists real and actual, positive
and fundamental differences between an alien and a
national.
B. Strict Scrutiny Test

Abroad
They are a class by themselves because of the
special risks to which their class was exposed. (Phil
Association of Service Exporters vs. Drilon)
C. Land-based vs. Sea-based

Overseas Workers
Also important when the government

attaches a morally irrelevant and negative
significance to a difference between the
advantaged and the disadvantaged.
This test is triggered when a fundamental

constitutional right is limited by a law. This
requires the government to show an overriding
or compelling government interest so great
that it justifies the limitation of fundamental
constitutional rights (the courts make the
decision of WON the purpose of the law makes
the classification necessary).
Filipino
There is dissimilarity as to work environment, safety,

danger to life and limb, and accessibility to social, civil
and spiritual activities. (Conference of Maritime
Manning Agencies vs. POEA)
Applied also when the classification has a

"suspect" basis (Suspect Classes classes
subject to such a history of purposeful unequal
treatment or relegated to such a position of
political powerlessness as to command
extraordinary protection from the majoritarian
political process.)
D. Qualification for Elective Office

Disqualification from running in the same elective
office from which he retired of a retired elective
provincial/municipal official who has received payment
of retirement benefits and who shall have been 65 y.o.
at the commencement of the term of office to which
he seeks to be elected is valid. (Dumlao vs. Comelec)
E. Office of the Ombudsman

Allowing it to start an investigation based on an
anonymous letter does not violate EP clause. The
Office of the Ombudsman is different from other
investigatory and prosecutory agencies of government
because those subject to its jurisdiction are public
officials who, through official pressure and influence,
can quash, delay or dismiss investigations against
them (Almonte vs. Vasquez).
F. Print vs. Broadcast Media

There are substantial distinctions between the two to
warrant their different treatment under BP 881
(Telecommunications and Broadcast Attorneys of the
Phil vs. COMELEC)
IV. Standards of Judicial Review

A. Rational Basis Test
The classification should bear a reasonable
relation to government's purpose.
Notes:
Important when there is no plausible
difference between the disadvantaged class
and those not disadvantaged.
C. Intensified Means Test

In this situation the Court accepts the articulated
purpose of the legislation but it should closely
scrutinize the relationship between the
classification and the purpose based on a
spectrum of standards, by gauging the extent
to which constitutionally guaranteed rights
depend upon the affected individual interest.
The balancing test or the equality test is used.
Applicable to certain sensitive but not suspect
classes;
certain
important
but
not
fundamental interest.
Immediate Scrutiny Test
White Light Corporation vs. City of Manila
(2009):
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the
U.S.
Supreme
Court
for
evaluating
classifications based on gender and legitimacy.
Immediate scrutiny was adopted by the U.S.
Supreme Court in Craig. While the test may
have first been articulated in equal protection
analysis, it has in the United States since been
applied in all substantive due process cases as
well.
73
Chapter V.
Procedure
Requirements
Chapter V. REQUIREMENTS for FAIR PROCEDURE
for
Fair
seized.
Nature
THIS SECTION DEALS WITH THE RIGHTS

OF A PERSON BEFORE AND DURING
CUSTODIAL INVESTIGATIONS I.E. BEFORE
HE HAS BEEN ACCUSED OF A CRIME
Personal
I.
It may be waived expressly or impliedly only by

the person whose right is invaded, not by one
who is not duly authorized to effect such
waiver. (People vs. Damaso, 1992)
NATURE AND SCOPE OF THE RIGHT IN

ART. III, SEC. 2
II. ARREST
A. REQUISITES FOR ISSUANCE OF
VALID ARREST WARRANT
B. WHEN ARREST MAY BE MADE
WITHOUT A WARRANT
III. SEARCH AND SEIZURE
A. REQUISITES OF A VALID SEARCH
WARRANT
B. WHEN SEARCH MAY BE MADE
WITHOUT WARRANT
C. PROPERTIES SUBJECT OF
SEIZURE
IV. DETENTION/CUSTODIAL
INVESTIGATION
A. RIGHTS UNDER CUSTODIAL
INVESTIGATION
B. TESTS OF WAIVER OF MIRANDA
RIGHTS
V. PROTOCOL AFTER CONDUCT OF
INVESTIGATION
VI. OTHER RIGHTS GUARANTEED UNDER
ART. III. SEC. 12
VII. EXCLUSIONARY RULES
A. VIS--VIS VIOLATION OF THE RIGHT
AGAINST UNREASONABLE
SEARCHES AND SEIZURES
B. VIS--VIS VIOLATION OF THE
RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION
C. VIS--VIS VIOLATION OF THE RIGHT
AGAINST SELF-INCRIMINATION
VIII.RIGHT TO BAIL
I.
Nature and Scope
ART. III, SEC. 2. The right of the people to be

secure in their persons, houses, papers, and
effects against unreasonable searches and
seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except
upon probable cause to be determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce, and
particularly describing the place to be
searched and the persons or things to be
It may be invoked only by the person entitled to

it. (Stonehill vs. Diokno)
Directed Against the Government and Its

Agencies (State Action Requirement)
The right cannot be set up against acts
committed by private individuals (People vs.
Marti)
Scope
Natural Persons
It protects all persons including aliens (Qua
Chee Gan vs. Deportation Board, 1963).
Artificial Persons
Artificial persons are protected to a limited
extent. (Bache & Co. Inc vs. Ruiz, 1971) The
opening of their account books is not protected,
by virtue of police and taxing powers of the
State.
II. ARREST
Arrest Warrant
Beltran vs. Makasiar (1988):
What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the
existence of probable cause.
In satisfying himself of the existence of
probable cause for the issuance of a warrant
of arrest, the judge is not required to
personally examine the complainant and his
witnesses.
Following established doctrine and procedure,
he shall:
1) Personally evaluate the report and the
74
supporting documents submitted by the

fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
warrant of arrest; or
2) If he finds no probable cause,
He may disregard the fiscal's report
and
Require the submission of supporting
affidavits of witnesses to aid him in
arriving at a conclusion as to the
existence of probable cause.

Arrest (Rule 113, Sec. 5, Rules on
Criminal Procedure)
Existence of probable cause
Rebellion is a continuing offense. Therefore a

rebel may be arrested w/o a warrant at any
time of the day or the night as he is deemed to
be in the act of committing rebellion.
Such facts and circumstances which would

lead a reasonably discreet and prudent
mean to believe that an offense has been
committed by the person sought to be
arrested. (Webb vs. De Leon, 1995)
Determination of probable cause personally
by the judge.
i.
ii.
Personally evaluate the report and

supporting documents submitted by the
fiscal regarding the existence of probable
cause and, on the basis thereof, issue the
arrest warrant; OR
If he finds no probable cause, he may
disregard the prosecutors report and
require the submission of supporting
affidavits of witnesses to aid him in
arriving at a conclusion as to the existence
of probable cause (Cruz vs. Judge Areola,
2002).
As to warrant of arrest:
i. On the basis of their personal knowledge
of the facts they are testifying to.
ii. The arrest warrant must describe
particularly the person to be seized.
o By stating the name of the person to
be arrested.
o If not known, then a John Doe
warrant may be issued, with some
descriptio persona that will enable
the officer to identify the accused.
Pangandaman vs. Casar (1988):
JOHN DOE WARRANT: Warrants issued
against 50 John Does, none of whom the
witnesses could identify, were considered
as general warrants and thus void.
1. When, in his presence, the person to be

arrested has committed, is actually
committing, or is attempting to commit an
offense;
Umil vs. Ramos:
Parulan vs. Dir of Prisons:

Though kidnapping w/ serious illegal detention
is deemed a continuing crime, it can be
considered as such only when the deprivation
of liberty is persistent and continuing from one
place to another.
People vs. De Lara (1994):
HOT PURSUIT:
The arrest of the accused inside his house
following hot pursuit of the person who
committed the offense in flagrante was held
valid.
People vs. Hindoy (2001):
BUY-BUST:
A buy-bust operation is a valid in flagrante
arrest. The subsequent search of the person
arrested and the premises within his immediate
control is valid as an incident to a lawful arrest.
People vs. Rodrigueza:
EXCEPTION TO BUY-BUST.
Instead of arresting the suspect after the
sale in a buy-bust op, the officer returned to the
police headquarters and filed his report. It was
only in the evening that he, without warrant,
arrested the suspect at his house where dried
marijuana leaves were found and seized.
Unlawful arrest.
2. When an offense has just been

committed and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it;
75
Requisites:
i.
ii.
Offense had JUST been committed;

Person making the arrest has probable
cause to believe based on PERSONAL
KNOWLEDGE.
Note: There must be a large measure of

immediacy between the time the offense is
committed and the time of the arrest. If
there was an appreciable lapse of time
bet. arrest and commission of crime,
warrant of arrest must be secured.
(NACHURA)
People vs Kimura:
Warrantless arrest of accused for selling MJ 2
days after he escaped is invalid.
People vs Gerente:
PERSONAL KNOWLEDGE:
The police saw the victim dead at the
hospital and when they inspected the crime
scene, they found the instruments of death.
The eyewitnesses reported the happening and
pointed to Gerente as one of the killers. Here
the warrantless arrest only 3 hrs after the killing
was held valid since personal knowledge was
established as to the fact of death and facts
indicating that Gerente killed the victim.
People vs. Burgos (1986)
Burgos was convicted for the crime of Illegal
Possession of Firearms in Furtherance of
Subversion. One Masamlok claimed that he
had been forcibly recruited by Burgos to the
NPA, threatening him with the use of firearm
against his life and family. Masamlok was also
allegedly threatened to attend an NPA seminar.
The next day the authorities went to arrest
Burgos without a warrant. They found him in his
residence plowing his field. Burgos denied the
accusation, but his wife pointed to a place
below their house where a gun was buried in
the ground. After the firearm was recovered,
Burgos allegedly pointed to a stock pile of
cogon where he had hidden subversive
documents. The prosecution presented an
extrajudicial confession made by Burgos.
However, Burgos claimed that he had been
mauled and hit repeatedly until he would admit
and sign an extrajudicial confession.
Exceptions to warrant of arrest: Art. IV, Sec.
3 of the Constitution safeguards against wanton
and unreasonable invasion of the privacy and
liberty of a citizen as to his person, papers, and

effects. Rule 113, Sec. 6 of the Rules of Court
provides the exceptions to the warrant
requirement.
However, the instant case does not fall under
any of the exceptions in Rule 113, Sec. 6.
First, it requires that the officer arresting a
person who has committed, is committing,
or is about to commit an offense must have
personal knowledge of that fact. The offense
must be committed in his presence or within 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
subversive document.
Neither was he committing any act which
could be described as subversive. He was
in fact plowing his field at the time of his
arrest.
It is clear that the arresting officers had no
personal knowledge of the commission of
the offense because such information was
only supplied to them by an informant.
Neither has Burgos committed any offense in
their presence as he was merely plowing his
field at the time of arrest. On the other hand,
Sec. 6 (b) of Rule 113 requires that a crime
must in fact or actually have been
committed first. It is not enough that there
is reasonable ground to believe that the
person to be arrested has committed a
crime. That a crime has actually been
committed is an essential precondition. In
the instant case, it was not even established
that indeed a crime has been committed. The
information that a crime was probably
committed was supplied by Masamlok who
did not even give his testimony under oath.
Finally, the Court finds no compelling reason
for the haste of the arresting officers to
arrest Burgos if indeed he committed a
crime. There is no showing that there was real
apprehension that Burgos was on the verge of
flight or escape and that his whereabouts are
unknown.
76
3. When the person to be arrested is a

prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
while
being
transferred
from
one
confinement to another.
The examining Judge has to take

depositions in writing of the
complainant and the witnesses he
may produce and attach them to the
record.
Such written deposition is necessary

in order that the Judge may be able
to properly determine the existence
or non-existence of the probable
cause, to hold liable for perjury the
person giving it if it will be found later
that his declarations are false
It is axiomatic that the examination

must be probing and exhaustive, not
merely routinary or pro-forma, if the
claimed probable cause is to be
established.
The examining magistrate must not

simply rehash the contents of the
affidavit but must make his own
inquiry on the intent and justification of
the application. (Roan vs. Gonzales,
1984)
ADDITIONAL EXCEPTION (NOT IN THE

RULES): When the right is voluntarily
waived (estoppel).
People vs. Salvatierra:
Appellant is estopped from questioning the
illegality of the arrest when he voluntarily
submitted himself to the jurisdiction of the court
by entering a plea of not guilty and by
participating in the trial.
SCOPE OF WAIVER: Waiver is limited to the
illegal arrest. It does not extend to the search
made as an incident thereto, or the subsequent
seizure of evidence allegedly found during the
search (People vs. Peralta, 2004).
4. On the basis of their personal knowledge

of the facts they are testifying to.
III. SEARCH AND SEIZURE

A. Requisites of a Valid Search Warrant
1. Existence of probable cause
Such facts and circumstances;

which would lead a reasonably discreet
and prudent man to believe
that an offense has been committed
and
that the objects sought in connection
with the offense are in the place sought
to be searched. (Burgos vs. Chief of
Staff, 1984)
2. Determination
of
probable
personally by the judge.
PLACE TO BE SEARCHED:
The search warrant issued to search
petitioners compound for unlicensed firearms
was held invalid for failing to describe the place
with particularity, considering that the
compound was made up of 200 bldgs, 15
plants, 84 staff houses, 1 airstrip etc spread out
over 155 hectares. (PICOP vs. Asuncion,
1999).
cause
3. After personal examination under oath or

affirmation of the complainant and the
witnesses he may produce.
How it is done: In the form of searching
questions and answers, in writing and
under oath (Rule 126, Sec. 6, ROC)
5. The warrant must describe particularly

the place to be searched and the persons
or things to be seized.
Mere affidavits of the complainant and

his witnesses are thus not sufficient.
DESCRIPTION OF PLACE:
The description of the property to be seized
need not be technically accurate nor precise.
Its nature will vary according to whether the
identity of the property is a matter of concern.
The description is required to be specific only in
so far as the circumstances will allow. (Kho vs.
Judge Makalintal, 1999)
DESCRIPTION OF PERSONS SEARCHED:
SW valid despite the mistake in the name
of the persons to be searched. The authorities
conducted surveillance and test-buy ops before
obtaining
the
SW
and
subsequently
77
implementing
it.
They
had
personal
knowledge of the identity of the persons
and the place to be searched, although they
did not specifically know the names of the
accused. (People vs. Tiu Won Chua, 2003)
GENERAL WARRANT: One that (1) does not
describe with particularity the things subject of
the search and seizure; and (2) where probable
cause has not been properly established. It is a
void warrant. (Nolasco vs. Pao, 1985)
EXCEPTION TO GENERAL WARRANTS:
General descriptions will not invalidate the
entire warrant if other 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
o sufficient age
o discretion
o residing in the same locality
Force may be used in entering a dwelling
if justified by Rule 126 ROC.
People vs. Gesmundo:
Failure to comply with Sec. 7 Rule 126
invalidates the search.
People vs. Salanguit:

FORCIBLE ENTRY JUSTIFIED:
Occupants of the house refused to
open the door despite the fact that the
searching party knocked several times, and
the agents saw suspicious movements of
the people inside the house.
People vs. Benny Go (2003):
UNLAWFUL SEARCH:
Police officers arrived at appellants
residence and side-swiped (sinagi)
appellants car (which was parked outside)
to gain entry into the house. Appellants
son, who is the only one present in the
house, opened the door and was
immediately handcuffed to a chair after
being informed that they are policemen with
a warrant to search the premises.
B. Searches without Warrant, when Valid

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).
People vs. Veloso (1925):
It was alleged that Parliamentary Club was a
gambling 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 is nothing to prevent issue and service of
warrant against a party whose name is
unknown. Besides, the officers had the right to
arrest the persons engaged in prohibited game.
An officer making an arrest may take from
the person arrested any money / property
found upon his person, w/c was used in
commission of crime, or was the fruit of the
crime, or w/c may furnish the person w/
means of committing violence or escaping,
or w/c may be used as evidence on trial, but
not otherwise.
Other specific situations:
Quick Look:
1. Search is an Incident to a Lawful Arrest.
2. Search of Moving Vehicles
3. Plain View Doctrine
4. Stop and Frisk Searches
5. Valid Express Waiver
6. Customs search
7. Visual Search at Checkpoints
8. Conduct of Areal Target Zoning and
saturation drive
9. Exigent and Emergency Circumstances
1. Search is an incident to a lawful arrest.

Sec. 12, Rule 126, Rules of Court. Search
incident to lawful arrest. - A person lawfully
arrested may be searched for dangerous
weapons or anything which may be used as
proof of the commission of an offense, without
a search warrant.
The provision (R126, S12) is declaratory in
the sense that it is confined to the search,
without a search warrant, of a person who
had been arrested.
It is also a general rule that, as an incident
of an arrest, the place or premises where
the arrest was made can also be search
without a search warrant. In this latter case,
"the extent and reasonableness of the
78
search must be decided on its own facts

and circumstances.
What must be considered is the balancing
of the individual's right to privacy and the
public's interest in the prevention of crime
and the apprehension of criminals.
(Nolasco vs. Pano, 1985)
Test for validity:

Item to be searched was within the
arresters custody;
Search was contemporaneous with the
arrest
Nolasco vs Cruz Pao (1985):
Aguilar-Roque
and
Nolasco,
allegedly
connected w/ the CPP-NPA and accused of
rebellion and subversion, assert that the search
warrant in this case is void because (1) it
doesnt sufficiently describe things subject of
the search & seizure and (2) probable cause
hasnt been established for lack of searching
questions propounded to applicants witness.
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 the Rules of Court, a person charged
w/ an offense may be searched for
dangerous weapons or anything w/c may be
used as proof of the commission of the
offense. As an incident of an arrest, the
premises where the arrest was made can
also be searched w/o search warrant.
Nolasco vs. Pao, M.R., 1987:
In this Motion for Partial Reconsideration of the
1985 decision, the petitioners submit that a
warrantless search can be justified only if its an
incident to a lawful arrest and that since Aguilar
wasnt lawfully arrested, a search w/o warrant
couldnt be made. The SolGen offered no
objection to declaration that the search was
illegal and to the return of the seized items. The
Motion for Partial Reconsideration is granted.
2. Search of Moving Vehicles

Securing SW is not practicable since the
vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be
sought (Papa vs. Mago 1968)
3. Plain View Doctrine: Things seized are

within plain view of a searching party
Requisites (People vs. Musa; People vs.
Sarap, 2003):
a. Prior valid intrusion into a place;
b. Evidence:
inadvertently discovered
by police who had the right to be where
they were;
c. Evidence must be immediately apparent
and
d. Noticed without further search
4. Stop and Frisk Searches

There should be a genuine reason to stopand-frisk in the light of the police officers
experience and surrounding conditions to
warrant a belief that the person detained has
weapons concealed. (Malacat vs. CA 1997,
citing Terry vs. Ohio)
5. Valid Express Waiver made Voluntarily

and Intelligently
Requisites (People vs. Peralta, 2004):
a. Must appear that right exists;
b. Person involved had actual/ constructive
knowledge of the existence of such right;
c. Said person had an actual interest to
relinquish the right;
d. Waiver is limited only to the arrest;
e. Waiver does not extend to search made as
an incident thereto, or to any subsequent
seizure of evidence found in the search.
People vs. Kagui Malasugui (1936):
It was ruled that the right to be secure from
unreasonable search may be waived.
Waiver may be express or implied. When
one voluntarily submits to a 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 nor even muttered a bit of
protest when the search was conducted on his
person. Also, as held in Weeks v. United
States, when the search of the person detained
or arrested and seizure of effects found in his
possession are incidental to an arrest made in
conformity w/ the law, they cannot be
considered unreasonable, much less unlawful.
79
6. Customs Search
Searches of vessel and aircraft for violation of
immigration and smuggling laws. (Papa vs.
Mago, 1968)
7. Visual Search at Checkpoints
(Valmonte vs. de Villa)
8. Conduct of areal target zoning and
saturation drive in the exercise of the
military powers of the President (Guanzon
vs. de Villa, 1990)
9. Exigent and Emergency Circumstances
(People vs. de Gracia 1994)
Example: 1989 Coup detat
C. Properties Subject to Seizure

General rule: Only the articles particularly
described in the warrant may be seized.
o
o
o
Property subject of an offense

Stolen or embezzled property and other
proceeds or fruits of an offense
Used or intended to be used as a means of
committing an offense (Sec. 2 Rule 126,
ROC)
People vs. Salanguit:

Where the warrant authorized only the seizure
of shabu, and not marijuana, the seizure of the
latter was held unlawful.
Burgos vs. Chief of Staff:
It is not necessary that the property to be
searched or seized should be owned by the
person against whom the person is issued; it is
sufficient that the property is within his control
or possession.
Comparison of Procedures in Obtaining

Search Warrants 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 of the
prosecutor and its supporting evidence. He
may immediately dismiss the case if the
evidence on record clearly fails to establish
probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment

order if the accused has already been arrested
pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when
the complaint or information was filed pursuant
to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge
may order the prosecutor to present
additional evidence (THIS IS NOT FOUND IN
THE PROCEDURE FOR A SEARCH
WARRANT) within five (5) days from notice
and the issue must be resolved by the court
within thirty (30) days from the filing of the
complaint of information.
R126, Sec. 4. Requisites for issuing search
warrant. A search warrant shall not issue
except upon probable cause in connection
with one specific offense to be determined
personally by the judge after examination
under oath or affirmation of the complainant
and the witness he may produce, and
particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines.
IV. Detention/Custodial Investigation

ART. III, SEC. 12, 1987 CONSTITUTION
1. Any person under investigation for the
commission of an offense shall have the
right to be informed of his right to remain
silent and to have competent and
independent counsel preferably of his own
choice. If the person cannot afford the
services of counsel, he must be provided
with one. These rights cannot be waived
except in writing and in the presence of
counsel.
2. No torture, force, violence, threat,
intimidation, or any other means which
vitiate the free will shall be used against
him. Secret detention places, solitary,
incommunicado, or other similar forms of
detention are prohibited.
3. Any confession or admission obtained in
violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
4. The law shall provide for penal and civil
sanctions for violations of this section as
well as compensation to the rehabilitation
of victims of torture or similar practices, and
their families.
80
In Miranda vs. Arizona:

The Federal Supreme Court made it clear that
what is prohibited is the "incommunicado
interrogation of individuals in a police
dominated atmosphere, resulting in selfincriminating
statements
without
full
warnings of constitutional rights.
MIRANDA RIGHTS
The person under custodial investigation
must be warned that
1. He has a right to remain silent,
2. That any statement he does make may be
used as evidence against him, and
3. That he has a right to the presence of an
attorney, either retained or appointed.
People vs. Galit (1985):
The long question during the appraisal of
Galits constitutional rights followed by a
monosyllabic answer does not satisfy the
requirements of the law that the accused be
informed of his rights. Instead there should
be several short and clear questions and
every right explained in simple words in a
dialect or language known to the person
under investigation. In this case, the accused
is from Samar and there is no showing that he
understands Tagalog. Furthermore, waiver of
the right to counsel must be done in the
presence of counsel, otherwise, the procured
statements will be inadmissible.
People vs. Duero (1985):
Inasmuch as the prosecution in this case failed
to prove that before Duero made his alleged
oral confession he was informed of his
rights to remain silent and to have counsel
and because there is no proof that he
knowingly and intelligently waived those
rights, his confession is inadmissible in
evidence. Accused repudiated his alleged oral
confession during trial. Since, the SC found
that the procedure set out in the Miranda
case was not followed, oral confession of
accused to police station commander is
inadmisible in evidence. (enshrined in Art. III,
Sec. 12 of the 1987 Constitution)
People vs. Andag (1980):
The SC reversed the lower courts imposition of
death penalty because the accused was not
even informed at the start of the investigation of
his right to counsel, much less afforded the
service of counsel notwithstanding his

insistence. He was given the unacceptable
excuse that there were no available lawyers.
As used in this Act, "custodial investigation"
shall include the practice of issuing an
"invitation" to a person who is investigated in
connection with an offense he is suspected to
have committed, without prejudice to the
liability of the "inviting" officer for any violation
of law.
NOTE: These rights were further reiterated
under RA 7438, otherwise known as AN ACT
DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED,
DETAINED
OR
UNDER
CUSTODIAL INVESTIGATION AS WELL AS
THE
DUTIES
OF THE
ARRESTING,
DETAINING
AND
INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES
FOR VIOLATIONS THEREOF
RA 7438, Rights of Persons under Custodial
Investigation;
Section 1. Statement of Policy. - It is the policy
of the Senate to value the dignity of every
human being and guarantee full respect for
human rights
Section 2. Rights of Persons Arrested,
Detained or Under Custodial Investigation;
Duties of Public Officers.
(b) Any public officer or employee, or anyone
acting under his order or his place, who arrests,
detains or investigates any person for the
commission of an offense:
shall inform the latter, in a language
known to and understood by him,
of his rights to remain silent and
to have competent and independent
counsel, preferably of his own choice,
who shall at all times be allowed to
confer privately with the person
arrested, detained or under custodial
investigation.
If such person cannot afford the services of
his own counsel, he must be provided
with a competent and independent
counsel by the investigating officer.
1. When Rights are Available:
When the
custody
person
is
already
in
81
Custodial investigation involves any

questioning
initiated
by
law
enforcement
During critical pre-trial stages in the
criminal process
People vs. Mara, (1994):

The rights under sec. 12, Art. 3 are available
when the investigation is no longer a general
inquiry unto an unsolved crime but has begun
to focus on a particular suspect, as when the
suspect has been taken into police custody and
the police carries out a process of interrogation
that lends itself to eliciting incriminating
statements.
People vs. Escordial:
An out-of-court identification may be made in a
show up (accused is brought face to face
with the witness for identification), or police
line-up (suspect is identified by witness from a
group of persons gathered for that purpose).
Babst vs. NBI (1984):

Ordinarily, an invitation to attend a hearing and
answer some questions which the person
invited may heed or refuse is not
unconstitutional.
Under
certain
circumstances, however, such an invitation
can easily assume a different appearance.
Here, where the invitation comes from a
powerful group composed predominantly of
ranking military officers issued at a time when
the country has just emerged from martial rule
and when the suspension of the privilege of the
writ of habeas corpus has not entirely been
lifted and the designated interrogation site is a
military camp, the same can easily be taken not
as a strictly voluntary invitation but as an
authoritative command which one can only
defy at his peril, especially where the
invitation carries the ominous seaming that
"failure to appear . . . shall be considered as a
waiverand this Committee will be constrained
to proceed in accordance with law."
U.S. vs. Wade 388 U.S. 218 (1967):
2. Discussion of Rights Accorded
Neither the lineup itself nor anything required

therein violated respondent's Fifth Amendment
privilege against self-incrimination, since
merely exhibiting his person for observation by
witnesses and using his voice as an identifying
physical characteristic involved no compulsion
of the accused to give evidence of a testimonial
nature against himself which is prohibited by
that Amendment. HOWEVER, the Sixth
Amendment guarantees an accused the
right to counsel not only at his trial but at
any
critical
confrontation
by
the
prosecution at pretrial proceedings where
the results might well determine his fate and
where the absence of counsel might
derogate from his right to a fair trial.
People vs. Agustin, (1995):

This carries the correlative obligation on the
part of the investigator to explain, and
contemplates effective communication which
results in the subject/accused understanding
what is conveyed.
During custodial investigations, these types of

identification have been recognized as critical
confrontations of the accused by the
prosecution, necessitating presence of
counsel for the accused. Otherwise, the
identification will be inadmissible in evidence.
Note: INVITATIONS - Sec. 2, RA 7438
provides that custodial investigation shall
include the practice of issuing an invitation to a
person who is under investigation in connection
with an offense he is suspected to have
committed.
a. Right to Remain Silent

The warning is needed simply to make
the
person
under
custodial
investigation aware of the existence of
the right;
This
warning
is
the
threshold
requirement for an intelligent decision
as to its exercise.
More importantly, such a warning is an
absolute pre-requisite in overcoming
the
inherent
pressures
of
the
interrogation atmosphere.
Further, the warning will show the
individual that his interrogators are
prepared to recognize his privilege
should he choose to exercise it.
b. Right against Self-Incrimination under
Art. III, Sec. 12
The warning of the right to remain silent
must be accompanied
by the
explanation that anything said can and
will be used against the individual in
court.
82
This warning is needed in order to

make him aware not only of the
privilege to remain silent, but also of
the consequences of forgoing it.
c. Right to Counsel
Investigation; 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 by counsel;
The Miranda doctrine was modified to

qualify the right to counsel to mean
competent and independent counsel
preferably of the suspect's own choice.
An individual need not make a preinterrogation request for a lawyer.
While such request affirmatively secures
his right to have one, his failure to ask for
a lawyer does not constitute a waiver.
No effective waiver of the right to
counsel during interrogation can be
recognized unless specifically made
AFTER the warnings have been given.
o The accused who does not know
his rights and therefore does not
make a request may be the person
who most needs counsel.
If an individual indicates that he wishes the
assistance of counsel before any
interrogation occurs, the authorities
cannot rationally ignore or deny his
request on the basis that the individual
does not have or cannot afford a
retained attorney.
In order fully to apprise a person
interrogated of the extent of his rights under
this system then, 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 a lawyer will be appointed to
represent him.
POLICE LINE-UPS (Gamboa vs. Cruz, 1988):
When petitioner was identified by the

complainant at the police line-up, he had
not been 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 yet shifted from the investigatory to
the accusatory as when police investigation
does not elicit a confession the accused
may not yet avail of the services of his
lawyer (Escobedo vs. Illinois of the United
States Federal Supreme Court, 1964).
However, given the clear constitutional
intent in the 1987 Constitution, the
moment there is a move or even an urge
of said investigators to elicit admissions
or confessions or even plain information
which
may
appear
innocent
or
innocuous at the time, from said suspect,
he should then and there be assisted by
counsel, unless he waives the right, but
the waiver shall be made in writing and in
the presence of counsel.
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 or under
custodial investigation shall be allowed
visits by or conferences with
any member of his immediate family,
or
any medical doctor;
priest or religious minister chosen by
him; or
by his counsel; or
by any national non-governmental
organization duly accredited by the
Commission on Human Rights or
by
any
international
nongovernmental
organization
duly
accredited by the Office of the
President.
The person's "immediate family" shall
include his or her spouse, fiance or
fiancee, parent or child, brother or
sister, grandparent or grandchild, uncle
or aunt, nephew or niece, and guardian
or ward.
B. Tests of Waiver of Miranda Rights

1. What Cannot be Waived
The right to remain silent and the right to

counsel may be waived.
What cannot be waived is THE RIGHT TO
BE GIVEN THE MIRANDA WARNINGS.
83
2. Rule on Waiver
detained does not know how to read and

write).
EFFECT OF FAILURE TO FOLLOW
PROTOCOL: Such investigation report shall
be null and void and of no effect whatsoever.

(e) Any waiver by a person arrested or
detained under the provisions of Article
125 of the Revised Penal Code, or under
custodial investigation, shall be in writing
and signed by such person in the presence
of his counsel; otherwise the waiver shall
be null and void and of no effect.
3. Burden of Proving Voluntariness of

Waiver (People vs. Jara, 1986)
Whenever a protection given by the

Constitution is waived by the person
entitled to that protection, the presumption
is always against the waiver.
Consequently, the prosecution must
prove with strongly convincing evidence
to the satisfaction of this Court that indeed
the accused:
Willingly and voluntarily submitted his
confession and
Knowingly and deliberately manifested
that he was not interested in having a
lawyer assist him during the taking of
that confession.
V. Protocol
After
Investigation
Conduct
Of
Sec. 2. Rights of Persons Arrested, Detained or

Under Custodial Investigation; Duties of Public
Officers.
(c) The custodial investigation report shall be:
Reduced to writing by the investigating
officer;
It shall be read and adequately explained
to him by his counsel or by the assisting
counsel provided by the investigating
officer in the language or dialect known
to such arrested or detained person,
The reading and explanation SHOULD BE
DONE BEFORE such report is signed, or
thumb-marked (if the person arrested or
VI. Other Rights Guaranteed Under Art.

III. Sec. 12
A. No torture, force, violence, threat
intimidation or any other means which
vitiate the free will shall be used against
him
B. Secret
detention
places,
solitary,
incommunicado, or other similar forms of
detention are prohibited
C. Confessions or admissions obtained in
violation of these rights are inadmissible
evidence.
VII. Exclusionary Rules

(d) Any extrajudicial confession made by a
person arrested, detained or under custodial
investigation:
shall be in writing and signed by such
person in the presence of his counsel or in
the latter's absence,
upon a valid waiver, and
in the presence of any of the parents, elder
brothers and sisters, his spouse, the
municipal mayor, the municipal judge,
district school supervisor, or priest or
minister of the gospel as chosen by him;
otherwise, such extrajudicial confession
shall be inadmissible as evidence in any
proceeding.
A. Vis--vis Violation of the Right Against

Unreasonable Searches and Seizures
Sec. 3(2), Art. 3, 1987 CONSTI. Any evidence
obtained in violation of this or the preceding
section shall be inadmissible for any purpose in
any proceeding.
84
ART. III, SEC. 12:

(1) Must be in writing
(2) Made in the presence of counsel
Evidence obtained in violation of Sec. 2 Art. 3

shall be inadmissible for any purpose and in
any proceeding (Stonehill vs, Diokno, 1967)
C. Vis--vis Violation of the Right Against

Self-incrimination
Nardone vs. US:
ART. III. SEC. 17: No person shall be

compelled to be a witness against himself.
[in relation to SEC. 12(3)]
Once the primary source is shown to have

been unlawfully obtained, any secondary or
derivative evidence is also inadmissible.
B. Vis--vis Violation of the Rights of

Persons under Custodial Investigation
ART. III, SEC. 12(3): Any confession or
admission obtained in violation of this or
Section 17 hereof shall be inadmissible in
evidence against him.
RA 7438 | Rights of Persons under Custodial Investigation

Section 4. Penalty Clause.
PERSON LIABLE
FOR WHAT ACTS
PENALTY
Any arresting public fails to inform any person arrested, o a fine of Six thousand pesos
or
under
custodial
officer or employee, detained
(P6,000.00) or a penalty of
or any investigating investigation of his right to remain
imprisonment of not less than
officer
eight (8) years but not more than
independent counsel preferably of his
ten (10) years, or both.
own choice
o The penalty of perpetual absolute
disqualification shall also be
imposed upon the investigating
officer who has been previously
convicted of a similar offense.
Public
officer
or fails to provide a competent and Same as above
employee, or anyone independent counsel to a person
acting upon orders of arrested, detained or under custodial
such
investigating investigation for the commission of an
officer or in his place
offense if the latter cannot afford the
services of his own counsel
who obstructs, prevents or prohibits penalty of imprisonment of not less
Any person
any lawyer, any member of the than four (4) years nor more than
immediate family of a person arrested six (6) years, and a fine of four
from visiting and conferring privately thousand pesos (P4,000.00)
with him, or from examining and treating
him, or from ministering to his spiritual
needs, at any hour of the day or, in urgent
cases, of the night
85
VIII.
Right to Bail
Art. III. Sec. 13. All persons, except those

charged with offenses punishable by reclusion
perpetua when the evidence of guilt is strong,
shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may
be provided by law. the right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail
shall not be required.
Definition
(Rule 114, Sec. 1, ROC)
Bail is the security given for the release of a
person in custody of the law, furnished by him or
a bondsman, conditioned upon his appearance
before any court as may be required.
be an overt act constitutive of rebellion taking

place in the presence of the arresting officer.
xxx
This requirement was not complied with
particularly in the arrest of Senator Enrile. In
the Court's Resolution of May 5, 2001 in the
petition for habeas corpus filed by Senator
Enrile, the Court noted that the sworn
statements of
the
policemen
who
purportedly arrested him were hearsay.
Senator Enrile was arrested two (2) days after
he delivered allegedly seditious speeches.
Consequently, his arrest without warrant cannot
be justified under Section 5(b) which states that
an arrest without a warrant is lawful when made
after an offense has just been committed and
the arresting officer or private person has
probable cause to believe based on personal
knowledge of facts and circumstances that the
person arrested has committed the offense.
Dela Camara vs. Enage (1971)

Before conviction, every person is bailable
except if charged with capital offenses when the
evidence of guilt is strong. Such a right flows
from the presumption of innocence in favor of
every accused who should not be subjected to
the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved
beyond reasonable doubt.
Comendador vs. De Villa (1991)
The military men who participated in the failed
coup d etat should be denied release on bail.
The argument that denial from the military of the
right to bail would violate the equal protection
clause is not acceptable, given that the officers
and members of the military are not similarly
situated with others. They are allowed a
fiduciary use of firearms and can easily continue
their insurgent activities against the government.
National security considerations should impress
upon the Court that release on bail of
respondents constitutes a damaging precedent.
Enrile vs. Perez (En Banc Resolution, 2001)
It has not been alleged that the persons to be
arrested for their alleged participation in the
"rebellion" on May 1, 2001 are members of an
outlawed organization intending to overthrow the
government. Therefore, to justify a warrantless
arrest under Section 5(a), there must be a
showing that the persons arrested or to be
arrested
has
committed,
is
actually
committing or is attempting to commit the
offense of rebellion. In other words, there must
Since the evidence in this case is hearsay, the

evidence of guilt is not strong, bail is allowed.
1. Bail as a Matter of Right vs. Matter of

Discretion
Matter of
right
Bail
is
a
matter of right
in all cases
not punishable
by reclusion
perpetua.
Matter of Discretion
In case the evidence of guilt is
strong.
In such a case, according to
People vs. San Diego, (1966),
the court's discretion to grant
bail must be exercised in the
light of a summary of the
evidence presented by the
prosecution.
Thus, the order granting or
refusing bail must contain a
summary of the evidence for
the prosecution followed by the
conclusion on whether or not
the evidence of guilt is strong
(Note: it is not the existence
of guilt itself which is
concluded but the strength
of the probability that guilt
exists).
Also
discretionary
in
extradition
proceedings,
because extradition courts do
not render judgments of
conviction or acquittal so it
86
does not matter WON the

crimes the accused is being
extradited for is punishable by
reclusion
perpetua
(US
Government
vs.
Judge
Puruganan and Mark Jimenez,
2002)
2. When Available:
From the very moment of arrest (which may

be before or after the filing of formal charges
in court) up to the time of conviction by final
judgment (which means after appeal).
No charge need be filed formally before one

can file for bail, so long as one is under
arrest. (Heras Teehankee vs. Rovica, 1945)
Lavides vs CA, 2000:
Arraigment of the accused is not essential to the
approval of the bail bond. When bail is
authorized, it should be granted before
arraignment. Otherwise the accused may be
precluded from filing a motion to quash. Also,
the court will be assured of the presence of the
accused at the arraignment precisely by grating
bail and ordering his presence at any stage of
the proceeding.
3. Standards for Fixing Bail

RULE 114. Sec. 9. Amount of bail;
guidelines. The judge who issued the warrant
or granted the application shall fix a reasonable
amount of bail considering primarily, but not
limited to, the following factors:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Financial liability of the accused to give bail;

Nature and circumstance of the offense;
Penalty for the offense charged;
Character and reputation of the accused;
Age and health of the accused;
Weight of the evidence against the accused;
Probability of the accused appearing at the
trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive
from justice when arrested; and
(j) Pendency of other cases where the
accused is on bail.
Excessive bail shall not be required.
Dela Camara v. Enage (1971):
The constitution prohibits excessive bail.

Where the lower court fixed bail at P 1, 195,
200.00, it rendered the right to bail nugatory. /
"Discretionis with the court called upon to rule
on the question of bail. We must stress,
however, that where conditions imposed
upon a defendant seeking bail would amount
to a refusal thereof and render nugatory the
constitutional right to bail, we will not
hesitate to exercise our supervisory powers
to provide the required remedy.
STANDARDS FOR FIXING BAIL: Citing
Villaseor vs. Abano, guidelines in the fixing of
bail are: (1) ability of the accused to give bail; (2)
nature of the offense; (3) penalty for the offense
charged; (4) character and reputation of the
accused; (5) health of the accused; (6) character
and strength of the evidence; (7) probability of
the accused appearing in trial; (8) forfeiture of
other bonds; (9) whether the accused wasa
fugitive from justice when arrested; and (10) if th
e accused is under bond for appearance at trial
in other cases."
4. Right to Bail and Right to Travel Abroad

Manotok vs CA (1986):
The main issue in this case is WON a person
facing a criminal indictment and provisionally
released on bail have an unrestricted right to
travel. The Court held that the constitutional
right to travel being invoked 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 be impaired 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
releasing petitioner on bail as a lawful order
contemplated by the above-quoted constitutional
provision.
87
Chapter VI. Rights of the Accused

I.
RIGHTS DURING TRIAL

A. PRESUMPTION OF INNOCENCE
B. RIGHT TO BE HEARD PERSONALLY
OR BY COUNSEL
C. RIGHT TO BE INFORMED OF
NATURE AND CAUSE OF
ACCUSATION
D. RIGHT TO SPEEDY, IMPARTIAL AND
PUBLIC TRIAL
E. RIGHT OF CONFRONTATION
F. RIGHT TO COMPULSORY
PROCESSES
G. TRIAL IN ABSENTIA
H. RIGHT AGAINST SELFINCRIMINATION
II. RIGHTS POST TRIAL

A. RIGHT AGAINST DOUBLE JEOPARDY
B. EXCESSIVE FINES AND CRUEL,
DEGRADING AND INHUMAN
PUNISHMENT
C. INVOLUNTARY SERVITUDE
D. IMPRISONMENT FOR DEBT
E. EX POST FACTO LAWS AND BILLS
OF ATTAINDER
I.
Rights During Trial
ART. III. SEC. 14. 1987 CONSTITUTION.

(1) No person shall be held to answer for 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 and cause of the
accusation against him, to have a speedy,
impartial, and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the
attendance of witnesses and the production
of evidence in his behalf. However, after
arraignment,
trial
may
proceed
notwithstanding the absence of the accused:
Provided, that he has been duly notified and
his failure to appear is unjustifiable.
Chapter VI. RIGHTS of the ACCUSED
ROC. RULE 115. RIGHTS OF ACCUSED

Section 1. Rights of accused at trial. In all
criminal prosecutions, the accused shall be
entitled to 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 the accusation against him.
(c) To be present and defend in person and
by counsel at every stage of the
proceedings,
from
arraignment
to
promulgation of the judgment. The accused
may, however, waive his presence at the
trial pursuant to the stipulations set forth in
his bail, unless his presence is specifically
ordered by the court for purposes of
identification.
The absence of the accused without
justifiable cause at the trial of which he had
notice shall be considered a waiver of his
right to be present thereat.
When an accused under custody
escapes, he shall be deemed to have
waived his right to be present on all
subsequent trial dates until custody over
him is regained. Upon motion, the accused
may be allowed to defend himself in person
when it sufficiently appears to the court that
he can properly protect his rights without the
assistance of counsel.
(d) To testify as a witness in his own behalf
but subject to cross-examination on
matters covered by direct examination.
His silence shall not in any manner
prejudice him.
(e) To be exempt from being compelled to
be a witness against himself.
(f) To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence the
testimony of a witness who is deceased,
out of or cannot with due diligence be found
in the Philippines, unavailable, or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative,
involving the same parties and subject
matter, the adverse party having the
opportunity to cross-examine him.
(g) To have compulsory process issued to
secure the attendance 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
manner prescribed by law.
88
A. Presumption of Innocence
Elements of the Right to Counsel:
People vs. Dramavo (1971):
1. Courts duty to inform the accused of right to

counsel before being arraigned;
The requirement of proof beyond reasonable

doubt is a necessary corollary of the
constitutional right to be presumed innocent.
Alejandro vs. Pepito (1980):
The accused cannot present evidence before
the prosecution does so, even if the accused
pleads guilty. It violates the presumption of
innocence.
People vs. Acuram:
The presumption of regularity (in official duties)
cannot by itself prevail over the presumption of
innocence of the accused. But where it is not the
sole basis for conviction, the presumption of
regularity of performance of official functions
may prevail over the constitutional presumption
of innocence.
Corpus vs. People:
EQUIPOISE RULE:
Where the evidence adduced by the parties
are evenly balanced, the constitutional
presumption of innocence should tilt the balance
in favor of the accused.
B. Right to be Heard Personally or by

Counsel
1. Any person under investigation for the
commission of an offense shall have the
right to be informed of his right to remain
independent counsel preferably of his own
choice. If the person cannot afford the
services of counsel, he must be provided
with one. These rights cannot be waived
except in writing and in the presence of
counsel.
2. It must ask him if he desires the services of

counsel;
3. If he does, and is unable to get one, the
Court must give him one; if the accused
wishes to procure private counsel, the Court
must give him time to obtain one.
4. Where no lawyer is available, the Court may
appoint any person resident of the province
and of good repute for probity and ability.
C. Right to be Informed of Nature and

Cause of Accusation
Vera vs. People:
Procedural due process requires that the
accused must be informed why he is being
prosecuted and what charge he must meet.
D. Right to Speedy, Impartial and Public

Trial
ART. III. SEC. 16. All persons shall have the
right to a speedy disposition of their cases
before
all
judicial,
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. No provision of law on
speedy trial and no rule implementing the same
shall be interpreted as a bar to any charge of
denial of the right to speedy trial guaranteed by
Section 14(2), Article III, of the 1987
Constitution.
Olaguer vs. Military Commission (1987):
RA 7438. Rights of Persons under Custodial

Investigation. SEC. 2. Rights of Persons
Investigation; Duties of Public Officers. (a) Any
person arrested detained or under custodial
investigation shall at all times be assisted by
counsel;
IMPARTIAL TRIAL
A civilian cannot be tried by a military court
so long as the civil courts are open and
operating, even during Martial Law.
Acevedo vs. Sarmiento (1970):
Dismissal based on the denial of the right to
speedy trial amounts to an acquittal.
89
Note: RA 8493 provides: a 30-day arraignment

within the filing of the information or from the
date the accused appeared before the court; trial
shall commence 30 days from the arraignment,
as fixed by the court. The entire trial period shall
not exceed 180 days, except as otherwise
authorized by the SC Chief Justice.
Aquino vs. Military Commission (1975)
E. Right of Confrontation
This is the basis of the right to crossexamination.
F. Right to Compulsory Processes

1. Right to Secure Attendance of Witness
2. Right to Production of Other Evidence
G. Trial in Absentia
Borja vs. Mendoza (1977):
WHEN CAN TRIAL IN ABSENTIA BE DONE:
Accused failed to appear for trial despite
postponement and notice to his bondsmen. The
Court then allowed prosecution to present
evidence despite the fact that accused had not
been arraigned. Petitioner was found guilty. The
issue is WON the court has jurisdiction. The
Court held that because accused was not
arraigned, he was not informed of the nature
and cause of accusation against him, Therefore,
the
Court
has
no
jurisdiction.
The
indispensable requisite for trial in absentia is
that it should come after arraignment.
Gimenez vs. Nazareno (1988)
After arraignment, during which accused
pleaded not guilty, case was set for hearing but
the accused escaped. He was tried in absentia.
Lower court held the proceedings against him in
abeyance to give him the opportunity to cross
examine witnesses against him and present his
evidence.
The Court held that abeyance of proceedings
was invalid. Such right to cross examine and
present evidence on his behalf is waived by
failure to appear during the trial of which he
had notice.
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

military commissions to try him (for murder,
illegal possession of firearms and for
violation of the Anti-Subversion Act) arguing
that he being a civilian, such trial during
martial law deprives him of his right to due
process.
An issue has been raised as to WON
petitioner could waive his right to be present
during trial.
On a 7-5 voting: SEVEN justices voted that

petitioner may waive his right to be present at
ALL stages of the proceedings while FIVE voted
that this waiver is qualified, he cannot waive
when he is to be identified.
Trial in Absentia: As a general rule, subject to
certain exceptions, any constitutional or
statutory right may be waived if such waiver is
not against public policy.
Considering Art IV, Sec 19, 1973 Constitution
(trial of a capital offense may proceed even in
the absence of the accused) and the absence of
any law specifically requiring his presence at all
stages of his trial, there appears, no logical
reason why petitioner, although he is
charged with a capital offense, should be
precluded from waiving his right to be
present in the proceedings for the
perpetuation of testimony, since this right was
conferred upon him for his protection and
benefit.
H. Right Against Self-Incrimination

Sec. 17, Art. 3. No person shall be compelled to
be a witness against himself.
1. Scope
Compulsory testimonial self-incrimination
It refers therefore to the use of the mental

process and the communicative faculties,
and not to a merely physical activity.
If the act is physical or mechanical, the

accused can be compelled to allow or
perform the act, and the result can be used
in evidence against him.
90
2. Examples
a. Handwriting in connection with a prosecution
for falsification is NOT allowed, for this
involves the use of the mental processes
(Beltran vs. Samson, 53 Phil 570; Bermudez
vs. Castillo, 1937).
b. Re-enactment of the crime by the accused is
NOT allowed, for this also involves the
mental process.
c.
The accused can be required to allow a

sample of a substance taken from his body
(U.S. vs. Tan Teh, 1912), or be ordered to
expel the morphine from his mouth (U.S. vs.
Ong Sio Hong, 1917)
d. Accused may be made to take off her

garments and shoes and be photographed
(People vs. Otadura, 96 Phil 244, 1950);
compelled to show her body for physical
investigation to see if she is pregnant by an
adulterous relation (Villaflor vs. Summers,
1920)
ART. XIII. SEC. 18. 1987 CONSTITUTION.

The Commission on Human Rights shall have
the following powers and functions:
xxx
(8) Grant immunity from prosecution to any
person whose testimony or whose
possession of documents or other evidence
is necessary or convenient to determine the
truth in any investigation conducted by it or
under its authority;
b. Use and Fruit of Immunity
Galman vs. Pamaran (1985):
Use immunity prohibits use of a witness
compelled testimony and its fruits in any manner
in connection with the criminal prosecution of the
witness. On the other hand transactional
immunity grants immunity to witness from
prosecution for an offense to which his
compelled testimony relates.
5. Effect of Denial of Privilege
e. Order to give a footprint sample to see if it

matches the ones found in the scene of the
crime is allowed (People vs. Salas and
People vs. Sara).
EXCLUSIONARY RULE under ART. III. SEC.

17 in relation to SEC. 12: When the privilege
against self-incrimination is violated outside of
court (e.g. police), then the testimony, as
already noted, is not admissible.
3. Kinds of Proceeding Applicable
OUSTED OF JURISDICTION: When the

privilege is violated by the Court itself, that is, by
the judge, the court is ousted of its jurisdiction,
all its proceedings and even judgment are null
and void. (Chavez vs. CA, 1968)
General rule: The privilege is available in any

proceedings, even outside the court, for they
may eventually lead to a criminal prosecution.
a. It extends to administrative proceedings
which possess a criminal or penal aspect. A
doctor who was being investigated by a
medical board for alleged malpractice who
would lose his license if found guilty, could
not be compelled to take the witness stand
without his consent. (Pascual vs. Board of
Medical Examiners, 1969)
b. It extends to a fact-finding investigation
by an ad hoc body. A person can be
compelled to testify provided he is given
immunity co-extensive with the privilege
against self-incrimination (Galman vs.
Pamaran, 1985)
II. Rights Post Trial

A. Right against Double Jeopardy
ART. III. SEC. 21. No person shall be twice put
in jeopardy of punishment for the same offense.
If an act is punished by a law and an ordinance,
conviction or acquittal under either shall
constitute a bar to another prosecution for the
same act.
1. Elements of Double Jeopardy
(Rule 117, Sec. 7; People vs. Obsania,
1968)
4. Use Immunity v. Transactional Immunity

a. Transactional Immunity
a. Court of competent jurisdiction;

b. A Complaint/Information sufficient in form
and substance to sustain a conviction;
91
c. Arraignment and plea by the accused;

d. Conviction, acquittal, or dismissal of the
case without the express consent, of the
accused.
dismissal is regarded as with express

consent of the accused, who is therefore
deemed to have waived the right to plea
double jeopardy.
6. Termination of Jeopardy
a.
b.
c.
d.
a. By acquittal
b. By final conviction
c. By dismissal without express consent of
accused
d. By dismissal on the merits
Same offense
Attempt of the same offense
Frustration of the same offense
Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the 1st
offense)
e. Offense that necessarily includes the 1st
offense (All the elements of the 1st
constitute some of the elements of the 2nd
offense)
3. Exceptions
a. The graver offense developed due to
"supervening facts" arising from the same
act or omission constituting the former
charged.
b. The facts constituting the graver charge
became known or were discovered only
after the filing of the former complaint or
information.
c.
The plea of guilty to the lesser offense was

made without the consent of the fiscal and
the offended party.
A. Excessive Fines and Cruel, Degrading

and Inhuman Punishment
1. 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. Any death penalty
already imposed shall be reduced to
reclusion perpetua.
2. The employment of physical, psychological,
or degrading punishment against any
prisoner or detainee or the use of
substandard or inadequate penal facilities
under subhuman conditions shall be dealt
with by law.
People vs. dela Cruz (1953):
4. When Defense of Double Jeopardy is

Available
a. Dismissal based on insufficiency of
evidence;
b. Dismissal because of denial of right to
speedy trial;
c. Accused is discharged to be a state witness.
5. When Defense of Double Jeopardy is

NOT Available
RULE 117. Sec. 8, par 1. Provisional
dismissal.A case shall not be provisionally
dismissed except with the express consent of
the accused and with notice to the offended
party.
When the case is dismissed other than on

the merits, upon motion of the accused
personally, or through counsel, such
In this case the Court took into account, in

lowering the penalty to reclusion perpetua of the
accused most of whom were already death row
convicts, the deplorable sub-human conditions
of the National Penitentiary where the crime was
committed.
RA 9346 (June 24, 2006): An Act Prohibiting
the Imposition of Death Penalty in the
Philippines:
Sec. 1. The imposition of the penalty of death is
hereby prohibited. Accordingly, R.A. No. 8177,
otherwise known as the Act Designating Death
by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty
Law, and all other laws, executive orders and
decrees, insofar as they impose the death
penalty are hereby repealed or amended
accordingly.
92
2. When Subsequent Prosecution is Barred
B. Involuntary Servitude
C. Imprisonment for Debt

No person shall be imprisoned for debt or nonpayment of a poll tax.
D. Ex Post Facto Laws and Bills Of

Attainder
No ex post facto law or bill of attainder shall be
enacted.
People vs. Ferrer (1972):
RA 1700 which declared the Communist Party of
the Philippines a clear and present danger to
Philippine security, and thus prohibited
membership in such organization, was
contended to be a bill of attainder. Although the
law mentions the CPP in particular, its purpose
is not to define a crime but only to lay a basis or
to justify the legislative determination that
membership in such organization is a crime
because of the clear and present danger to
national security.
93
ART. III. SEC. 18 (2). 1987 CONSTITUTION.

No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the
party shall have been duly convicted.
Chapter VII. WRITS
Chapter VII. Writs
I. HABEAS CORPUS
II. WRIT OF AMPARO
III. HABEAS DATA
I.
Habeas Corpus
thereof, and 5) must promulgate its decision

thereon within thirty days from its filing.
A state of martial law does not suspend
the operation of the Constitution, nor
supplant the functioning of the civil courts or
legislative assemblies, nor authorize the
conferment of jurisdiction on military courts
and agencies over civilians where civil
courts
are
able
to
function,
nor
automatically suspend the privilege of
the writ.
The suspension of the privilege of the
writ shall apply only to persons judicially
charged for rebellion or offenses inherent
in or directly connected with invasion.

The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or
rebellion when the public safety requires it.
ART. VII. SEC. 18. 1987 CONSTITUTION.

The President shall be the Commander-inChief of all armed forces of the Philippines
and whenever it becomes necessary, he
may call out such armed forces to prevent or
suppress lawless violence, invasion or
rebellion.
In case of invasion or rebellion, when the
public safety requires it, he may, for a
period not exceeding sixty days,
suspend the privilege of the writ of
habeas corpus or place the Philippines or
any part thereof under martial law.
Within forty-eight hours from the
proclamation of martial law or the
suspension of the privilege of the writ of
habeas corpus, the President shall
submit a report in person or in writing to
the Congress.
The Congress, voting jointly, by a vote of
at least a majority of all its Members in
regular or special session, may revoke
such proclamation or suspension, which
revocation shall not be set aside by the
President.
Upon the initiative of the President, the
Congress may, in the same manner, extend
such proclamation or suspension for a
period to be determined by the Congress,
if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within
twenty-four
hours
following
such
proclamation or suspension, convene in
accordance with its rules without need of a
call.
The Supreme Court may: 1) review, 2) in
an appropriate proceeding; 3) filed by
any citizen, 4) the sufficiency of the
factual basis of the proclamation of
martial law or the suspension of the
privilege of the writ or the extension
Villavicencio vs. Lukban (1919):

"A prime specification of an application for a writ
of habeas corpus is restraint of liberty.
The essential object and purpose of the writ
of habeas corpus is to inquire into all
manner
of
involuntary
restraint
as
distinguished from voluntary, and to relieve
a person therefrom if such restraint is illegal.
Any restraint which will preclude freedom of
action is sufficient.
The forcible taking of these women from
Manila by officials of that city, who handed
them over to other parties, 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
personal belongings, they were prevented from
exercising the liberty of going when and where
they pleased.
The restraint of liberty which began in Manila
continued until the aggrieved parties were
returned to Manila and released or until they
freely and truly waived his right."
"We believe the true principle should be that, if
the respondent is within the jurisdiction of the
court and has it in his power to obey the order of
the court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even
if the party to whom the writ is addressed
has illegally parted with the custody of a
person before the application for the writ is
no reason why the writ should not issue.
Lansang vs. Garcia (1971):
Petitioners were arrested without warrants and
detained, upon the authority of Proclamation 889
(Which suspended the privilege of the Writ of
94
Habeas Corpus) and subsequently filed a

petition for writ of habeas corpus, assailing the
validity of the said Proclamation and their
detention.
The Court upheld the violation of the
Proclamation and dismissed the petitions. The
Supreme Court held that the authority to
suspend the privilege of the writ is
circumscribed, confined and restricted, not
only by the prescribed setting or the conditions
essential to its existence, but, also, as regards
the time when and the place where it may be
exercised.
Thus, the Court has the authority to inquire into
the existence of the factual bases for the
proclamation in order to determine its
constitutional sufficiency. The test for such
judicial inquiry is whether or not the Executive
acted arbitrarily in issuing the Proclamation. The
test is not correctness, but arbitrariness.
For the suspension of the privilege of the writ to
be valid, (a) there must be "invasion,
insurrection or rebellion" or, pursuant to
paragraph (2), section 10 of Art. VII of the
Constitution, "imminent danger thereof"; and (b)
public safety must require the aforementioned
suspension. The President declared in
Proclamation No. 889, as amended, that both
conditions are present, and the Supreme Court
agreed. The President did not act arbitrarily;
the Court acknowledged the existence of a
sizeable group of men (Communists and the
NPA) who have publicly risen in arms to
overthrow the government and have thus
been and still are engaged in rebellion against
the Government of the Philippines.
Moncupa vs. Enrile (1986):
It is not physical restraint alone which can be
inquired into by means of the writ of habeas
corpus. In this case, the petition is valid as
petitioners temporary release from detention is
accompanied with restrictions w/ the ff effects: 1)
curtailed freedom of movement by the condition
that he must get approval of respondents for any
travel outside Metro Manila, 2) abridged liberty
of abode because prior approval of respondent
is required in case petitioner 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 to
respondents or their reps.
Gumabon vs. Director of Prisons (1971):
Chapter VII. WRITS
It being undeniable that if the Hernandez ruling

were to be given a retroactive effect petitioners
had served the full term for which they could
have been legally committed, is habeas corpus
the appropriate remedy?
YES. In Cruz vs. Director of Prisons (1910),
"The courts uniformly hold that where a
sentence imposes punishment in excess of
the power of the court to impose, such
sentence is void as to the excess,
The rule is that the petitioner is not entitled to
his discharge on a writ of habeas corpus
unless he has served out so much of the
sentence as was valid." xxx While the above
decision speaks of a trial judge losing jurisdiction
over the case, insofar as the remedy of habeas
corpus is concerned, the emphatic affirmation
that it is the only means of benefiting the
accused by the retroactive character of a
favorable decision holds true. Petitioners
clearly have thus successfully sustained the
burden of justifying their release.
Sombong vs. CA (1990):
Sombong claims that she is the mother of the
child Christina, who is under the custody of Neri,
and filed a petition for the issuance of the writ of
habeas corpus. The Supreme Court denied the
petition.
In order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the
nature of an illegal and involuntary deprivation of
freedom of action. However, habeas corpus
may still be resorted to even if the restraint is
voluntary in cases where the rightful custody
of any person is withheld from the person
entitled thereto. The said writ is the proper
legal remedy to enable parents to regain the
custody of a minor child even if the child is in the
custody of a third person of her own free will.
Sombong does not have the right of custody
over the child, because the evidence adduced
does not warrant the conclusion that Christina is
the same person as her child Arabella.
Velasco vs. CA (1995):
Larkins was arrested after a certain Alinea filed
a complaint-affidavit for rape against him before
the NBI. There was no warrant. A complaint for
rape was subsequently filed before the RTC. His
common-law wife filed a petition for habeas
corpus.
95
Chapter VII. WRITS
Another is the filing of a complaint or

information for the offense for which the
accused is detained.
By then, the restraint of liberty is already by
virtue of the complaint or information and,
therefore, the writ of habeas corpus is no longer
available.
Section 4 of Rule 102 reads in part as follows:
"Nor shall anything in this rule be held to
authorize the discharge of a person charged
with or convicted an offense in the Philippines."
It may also be said that by filing his motion for
bail, Larkins admitted that he was under the
custody of the court and voluntarily submitted
his person to its jurisdiction.
II. Writ of Amparo and Writ of Habeas Data

QUERY
What is the writ
amparo?
of
WRIT OF AMPARO
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.
The writ covers extralegal killings

and enforced disappearances or
threats thereof.
HABEAS 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 aggrieved party.
The Rule on the Writ of Habeas Data
(A.M. No. 08-1-16-SC), which was
approved by the Supreme Court on
22 January 2008. That Rule shall not
diminish,
increase
or
modify
substantive rights.
It is governed by The Rule on the

Writ of Amparo (A.M. No. 07-9-12SC ), which was approved by the
Supreme Court on 25 September
2007. This Rule also governs
existing cases involving extralegal
killings
and
enforced
disappearances or threats thereof.
What is the Supreme The Rule was drafted pursuant to (Constitution, Art. VIII, Sec. 5[5]).
Courts basis in issuing the Supreme Courts constitutional
the Rule?
power to promulgate rules for the
protection and enforcement of
constitutional rights (Constitution,
Art. VIII, Sec. 5[5]).
When does the Rule take The Rule takes effect on 24 October The Rule takes effect on 2 February
effect?
2007, following its publication in 2008, following its publication in three
three (3) newspapers of general (3) newspapers of general circulation.
circulation.
Who may file a petition the aggrieved party or by any The aggrieved party.
for the issuance of a writ
qualified person or entity in the However, in cases of extralegal
of amparo?
following order:
killings and enforced
What
rule
governs
petitions for and the
issuance of a writ of
amparo?
96
The Supreme Court held that even if the arrest

of a person is illegal, supervening events
may bar his release or discharge from
custody. The court must thus look into the
legality of his detention as of, at the earliest, the
filing of the application for a writ of habeas
corpus, for even if the detention is at its
inception illegal, it may, by reason of some
supervening events, such as the instances
mentioned in Section 4 of Rule 102, be no
longer illegal at the time of the filing of the
application. Among such supervening events
are:
The issuance of a judicial process
preventing the discharge of the detained
person.
QUERY
Chapter VII. WRITS
WRIT OF AMPARO
Any member of the immediate
family, namely: the spouse,
children and parents of the
aggrieved party;
Any ascendant, descendant or
collateral relative of the
aggrieved party within the
fourth
civil
degree
of
consanguinity or affinity, in
default of those mentioned in the
preceding paragraph; or
Any
concerned
citizen,
organization, association or
institution, if there is no known
member of the immediate family
or relative of the aggrieved
party.
The petition may be filed on any
day and at any time with:
Where can the petition be

filed?
The Regional Trial Court of the

place where the threat, act or
omission was committed or any of
its elements occurred,
the writ shall be returnable
before such court or judge.
or with the Sandiganbayan, the
Court of Appeals, or any justice of
such courts.
The writ shall be enforceable
It may be returnable before
such court or any justice
thereof, or to any Regional Trial
Court to any Regional Trial
Court of the place where the
threat, act or omission was
committed or any of its
elements occurred.
How much is the docket

or filing fees for the
petition?
The Supreme Court, or any

justice
The writ shall be enforceable
it may be returnable before such
Court or any justice thereof, or
before the Sandiganbayan or
the Court of Appeals or any of
their justices, or to any Regional
Trial Court of the place where
the threat, act or omission was
committed or any of its elements
occurred.
There is NO docket and other lawful
fees for the petition. The court,
justice or judge shall docket the
HABEAS DATA
disappearances, the petition may
be filed by
o Any member of the immediate
family of the aggrieved party,
namely: the spouse, children
and parents; or
o Any ascendant, descendant
or collateral relative of the
aggrieved party within the
fourth civil degree of
consanguinity or affinity, in
default of those mentioned in
the preceding paragraph.
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.
No docket and other lawful fees shall

be required from an indigent
petitioner.
97
QUERY
Chapter VII. WRITS
WRIT OF AMPARO
petition and act upon it immediately.
HABEAS DATA
The petition of the indigent shall be
docketed
and
acted
upon
immediately, without prejudice to
subsequent submission of proof of
indigency not later than 15 days from
the filing of the petition.
What is the
required burden of
proof?
The parties shall establish their

claims by substantial evidence.
The respondent who is a private
individual or entity must prove that
ordinary diligence as required by
applicable
laws,
rules
and
regulations was observed in the
performance of duty.
Instead of having the

hearing in open court,
can it be done in
chambers?
Can
the
respondent
invoke
the
legal
presumption (Rules of
Court, Rule 131, Sec.
3[m]) that official duty has
been
regularly
performed?
The respondent who is a public

official or employee must prove that
extraordinary
diligence
as
required by applicable laws, rules
and regulations was observed in the
performance of duty.
Yes. It can be done when the

respondent invokes the defense that
the release of the data 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 or privileged
character
No. The respondent public official or

employee
cannot
invoke
the
presumption that official duty has
been regularly performed to evade
responsibility or liability.
Secretary of National Defense vs. Manalo

(2008):
government also failed to provide an effective

investigation.
The Manalo brothers were abducted, detained,

and tortured repeatedly by the military. After
their escape, they filed a petition for the privilege
of the Writ of Amparo. The Supreme Court
granted the petition and held that there was a
continuing violation of the Manalos right to
security. Considering that they only escaped
from captivity and have implicated military
officers, there is still a threat to their lives,
liberty, and security. The threat vitiates their
free will and they are forced to limit their
movements and activities. The government
also failed to provide them protection because
the military themselves perpetrated the
abduction,
detention,
and
torture.
The
As regards the relief granted, the Court held

that the production order under the Amparo
rule is different 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
present places of assignment of the
implicated military officers would not
jeopardize the exercise of the military
functions of the officers. Such disclosure is
relevant in ensuring the safety of the Manalo
brothers.
98
Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE
detectaphone or walkie-talkie or tape

recorder,
or
however
otherwise
described.
Chapter VIII. Privacy of Communication

and Correspondence
I. INTRUSION, WHEN ALLOWED
II. FORMS OF CORRESPONDENCE
COVERED
III. ENABLING LAW
3. For any person, be he a participant or

not in the act or acts penalized in the
next preceding sentence, to knowingly
possess any tape record, wire record,
disc record, or any other such
record, or copies thereof, of any
communication or spoken word secured
either before or after the effective date
of this Act in the manner prohibited by
this law

(1) The privacy of communication and
correspondence shall be inviolable except
upon lawful order of the court, or when
public safety or order requires otherwise, as
prescribed by law.
(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible
for any purpose in any proceeding.
4. to replay the same for any other

person/persons
5. to communicate the contents thereof,
either verbally or in writing,
I.
Intrusion, When Allowed
1. By lawful order of the court

2. When public safety or public order requires
otherwise, as may be provided by law
II. Forms of Correspondence Covered

1.
2.
3.
4.
letters
messages
telephone calls
telegrams, and the like (BERNAS)
6. to furnish transcriptions thereof,

whether complete or partial, to any other
person
Exception 1:
That the use of such record or any copies
thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in
Sec. 3 hereof, shall not be covered by this
prohibition.
Section 3.
Exception 2:
III. ENABLING LAW

Republic Act 4200: AN ACT TO PROHIBIT
AND PENALIZE WIRE TAPPING AND OTHER
RELATED VIOLATIONS OF THE PRIVACY OF
COMMUNICATION,
AND
FOR
OTHER
PURPOSES (1965)
Section 1.
Unlawful Acts:
1. For any person not being authorized by
all the parties to any private
communication or spoken word to tap
any wire or cable, or by using any
other device or arrangement,
2. to secretly overhear, intercept, or record
such communication or spoken word
by using a device commonly known as a
dictaphone
or
dictagraph
or
Any peace officer, who is authorized by a written

order of the Court may lawfully execute any of
the acts declared to be unlawful in the two
preceding Sections in cases involving the crimes
of:
1.
2.
3.
4.
5.
treason
espionage
provoking war and disloyalty in case of war
piracy, and mutiny in the high seas,
rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion
6. sedition, conspiracy to commit sedition,
inciting to sedition
7. kidnapping as defined by the RPC
8. violations of Commonwealth Act No. 616,
punishing espionage and other offenses
against national security
Requirements for valid issuance of written
order:
99
Chapter VIII. PRIVACY of COMMUNICATION and CORRESPONDENCE
1. Upon written application and examination

under oath or affirmation of the applicant
and the witnesses he may produce, and
Section 4.
2. A showing of:
i. reasonable grounds to believe that
any of the crimes enumerated
hereinabove has been committed or
is being committed or is about to be
committed: Provided, however, That in
cases involving the offenses of rebellion,
conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, and
inciting to sedition, such authority shall
be granted only upon prior proof that a
rebellion or acts of sedition, as the case
may be, have actually been or are being
committed;
ii. reasonable grounds to believe that
evidence will be obtained essential to
the conviction of any person for, or to
the solution of, or to the prevention of,
any such crimes; and
iii. no other means readily available for
obtaining such evidence.
Any communication or spoken word, or the

existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or
any information therein contained obtained or
secured by any person in violation of the
preceding sections of this Act shall not be
admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or
investigation.
Contents of the order:

1. the identity of the person/persons whose
communications,
conversations,
discussions, or spoken words are to be
overheard, intercepted, or recorded and, in
the case of telegraphic or telephonic
communications, the telegraph line or the
telephone number involved and its location;
2. the identity of the peace officer authorized to
overhear,
intercept,
or
record
the
communications,
conversations,
discussions, or spoken words
3. the offense/offenses committed or sought to
be prevented
4. the period of the authorization. The
authorization shall be effective for the
period specified in the order which shall
not exceed sixty (60) days from the date of
issuance of the order, unless extended or
renewed by the court upon being satisfied
that such extension or renewal is in the
public interest.
Inadmissibility:
Gaanan vs. IAC (1986):

The use of a telephone extension for the
purpose of overhearing a private conversation
without authorization did NOT violate R.A. 4200
because a telephone extension device was not
among those "device(s) or arrangement(s)"
enumerated therein, following the principle that
"penal statutes must be construed strictly in
favor of the accused.
100
Chapter IX. FREEDOM of EXPRESSION
Chapter IX. Freedom of Expression

I.
BASIS, COMPONENTS, SCOPE AND

LIMITATIONS
A. FREEDOM FROM CENSORSHIP OR
PRIOR RESTRAINT
B. FREEDOM
FROM
SUBSEQUENT
PUNISHMENT
II. CONTENT-BASED RESTRICTIONS
A. TESTS
B. APPLICATIONS OF VARIOUS TESTS
IN SPECIFIC INSTANCES
1. FREEDOM OF EXPRESSION AND
NATIONAL SECURITY
LIBEL
THE RIGHT TO PRIVACY
THE
ADMINISTRATION
OF
JUSTICE
5. FREEDOM OF INFORMATION
III. CONTENT-NEUTRAL RESTRICTIONS
A. FREEDOM OF ASSEMBLY
B. FREEDOM OF ASSOCIATION AND
SELF-ORGANIZATION
C. MOVIE CENSORSHIP
D. BROADCAST MEDIA
I.
Basis, Components,
Limitations
Scope
accordingly shifted to the plaintiff, that is, that

he must prove that the defendants were
actuated by ill-will in what they caused to be
printed and published, with a design to
carelessly or wantonly injure the plaintiff.
Components
Speech, expression, and press include:
a) Written or spoken words (recorded or not)
b) Symbolic speech (e.g. wearing armbands as
symbol of protest)
c) Movies (BERNAS)
Scope of Protected Freedoms

Any and all modes of protection are embraced in
the guaranty. It is reinforced by Sec. 18(1), Art.
3.
A. Freedom from Censorship or Prior

Restraint
Concept:
Censorship conditions the exercise of freedom
of expression upon the prior approval of the
government.
and
Basis
Sec. 4, Art. 3. No law shall be passed abridging
the freedom of speech, of expression, or of the
press, or the right of the people peaceably to
assemble and petition the government for
redress of grievances.
The censor serves therefore as the political,

moral, social and artistic arbiter for the
people, usually applying only his own subjective
standards in determining what is good and
whats not.
General rules:
1.
All are indispensable to the uninhibited, robust

and wide-open debate in the free marketplace of
ideas (Abrams vs. US)
Any system of prior restraints of expression

comes to the Court bearing a heavy
presumption against its constitutionality,
giving the government a heavy burden to
show justification for the imposition of such
restraint. (New York vs. United States 1971)
2.
U.S. vs. Bustos (1909):

While indeed, the news item subject of the
present case might have ruffled the sensitivities
of plaintiff, this Court however believes that the
alleged defamatory articles fall within the
purview of a qualifiedly privileged matter, and
that therefore, it cannot be presumed to be
malicious. The onus of proving malice is
There need not be total suppression.

Even restriction of circulation constitutes
censorship (Grosjean vs. American Press
Co. 297 US 233)
Examples
Restraint:
Sec. 18. (1), Art. 3 No person shall be detained

solely by reason of his political beliefs and
aspirations.
1.
of
Unconstitutional
Prior
COMELEC
prohibition
against
radio
commentators or newspaper columnists
101
from commenting on the issues involved in

a scheduled plebiscite (Sanidad vs.
COMELEC)
2.
Arbitrary closure of a radio station (Eastern

Broadcasting vs. Dans)
3.
COMELEC resolution prohibiting the posting

of decals and stickers in mobile units like
cars and other moving vehicles (Adiong vs.
COMELEC)
the sailing dates of transports or the

number and location of troops
c. Obscene publications
d. Incitements to acts of violence and the
overthrow
by
force
of
orderly
government
B. Freedom from Subsequent Punishment

Concept:
4.
5.
Search, padlocking and sealing of the

offices of newspaper publishers (We Forum)
by military authorities (Burgos vs. Chief of
Staff)
An announcement of a public figure to
prohibit the media to issue a specific kind of
statement amounts to prior restraint,
which is violative of the right to free
press. (Chavez vs. Gonzales, 2006)
Freedom of speech includes freedom after

speech. Without this assurance, the citizen
would hesitate to speak for fear he might be
provoking the vengeance of the officials he has
criticized (chilling effect).
If criticism is not to be conditioned on the
governments consent, then neither should it
be subject to the governments subsequent
chastisement.
Examples of Constitutional Prior Restraint:

Examples of Valid Subsequent Restraints:
1. Law which prohibits, except during the
prescribed election period, the making of
speeches, announcements or commentaries
for or against the election of any candidate
for office (Gonzales vs. COMELEC)
2. Prohibition on any person making use of the
media to sell or to give free of charge print
space or air time for campaign or other
political purposes except to the COMELEC.
Ratio: police power of State to regulate
media for purpose of ensuring equal
opportunity, time and space for political
campaigns. (National Press Club vs.
COMELEC, Osmena vs. COMELEC)
3. Movie censorship: the power of the MTCRB
can be exercised only for purposes of
reasonable classification, not censorship.
(NACHURA citing Gonzales vs. Katigbak
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 are
such a hindrance to its effort that their
utterance will not be endured so long as
men fight and that no court could regard
them as protected by any constitutional
right
b. Actual obstruction to the governments
recruiting service or the publication of
1. Libel. Every defamatory imputation is

presumed to be malicious. (Alonzo vs. CA)
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)
U.S. vs. Kottinger:
Accused was convicted for exhibiting nude
painting and pictures, notwithstanding his
claim that he had done so in the interest of
art. Court said that the purpose was
commercial, not merely artistic, because he
charged admission fees to the exhibition.
3. Contempt for criticism/publications tending
to impede, obstruct, embarrass or influence
the courts in administering justice in a
pending suit or proceeding (sub judice)
(People vs. Alarcon)
4. Being a public figure does not automatically
destroy in toto a person's right to privacy.
The limits of freedom of expression are
reached when it touches upon matters of
private concern (Lagunzad vs. Gonzales)
5. Right of students to free speech in school
premises must not infringe on the schools
102
right to discipline its students (Miriam

College Foundation vs. CA 2000).
test most applied to cases re: freedom of

expression.
Exceptions:
3. Balancing of Interest Test
1.
American Communications
Douds, (339 US 282):
2.
Fair comment on matters of public interest.

Fair comment is that which is true or, if
false, expresses the real opinion of the
author based upon reasonable degree of
care and on reasonable grounds.
Criticism of official conduct is given the
widest latitude. (US vs. Bustos)
103
Assoc.
vs.
When a particular conduct is regulated in the

interest of public order, and the regulation
results in an indirect, conditional and partial
abridgement of speech, the duty of the courts is
to determine
which
of the two conflicting
interests demands greater protection.
Gonzales vs. Comelec:
II. Content-Based Restrictions

A. Tests
The test is applied when two legitimate values

not involving national security crimes
compete.
1. Dangerous Tendency Test
4. Direct Incitement Test
Cabansag vs. Fernandez:
Salonga vs. Cruz Pao (1986):
If the words uttered create a dangerous

tendency of an evil which the State has the right
to prevent, then such words are punishable.
In this case, the Petitioner was charged with

violation of the Revised Anti-Subversion Act
after being apparently implicated by a certain
Victor Lovely as being involved in the series of
bombings in Metro Manila.
People vs. Perez:

It is sufficient if the natural tendency and the
probable effect of the utterance were to bring
about the substantive evil that the legislative
body seeks to prevent.
Direct Incitement Test: In the case before us,

there is no teaching of the moral propriety of a
resort to violence, much less an advocacy of
force or a conspiracy to organize the use of
force against the duly constituted authorities.
2. Clear and Present Danger Test

Schenck vs. United States (1919):
The question in every case is whether the words
used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a
question of proximity and degree.
Gonzales vs. COMELEC:
This rule requires that the danger created must
not only be clear and present but also traceable
to the ideas expressed.
Note: This test has been adopted by the
Philippine SC lock, stock and barrel and is the
The alleged remark about the likelihood of

violent struggle unless reforms are instituted is
not a threat against the government. Nor is it
even the uninhibited, robust, caustic, or
unpleasantly sharp attack which is protected by
the guarantee of free speech.
Parenthetically,
the
American
case
of
Brandenburg vs. Ohio (395 U.S. 444) states that
the constitutional guarantees of free speech
and free press do not permit a State to forbid
or proscribe advocacy of the use of force or
of law violation except where such advocacy
is directed to inciting or producing imminent
lawless action and is likely to incite or
produce such action.
Political discussion even among those
opposed to the present administration is
within the protective clause of freedom of

speech and expression. The same cannot be
construed as subversive activities per se or as
evidence of membership in a subversive
organization.
5. Grave-But-Improbable Danger Test

Dennis vs. U.S. (1951):
In this case, the Petitioners, leaders of the
Communist Party in this country, were indicted
in a federal district court under 3 of the Smith
Act for (1) wilfully and knowingly conspiring to
organize as the Communist Party a group of
persons to teach and advocate the overthrow
and destruction of the Government of the United
States by force and violence, and (2) to
knowingly and wilfully advocate and teach the
duty and necessity of overthrowing and
destroying the Government of the United States
by force and violence.
Grave-But-Improbable Danger Test: To
determine the clear and present danger of the
utterances bringing about the evil which that
legislature has the power to punish, "In each
case [courts] must ask whether the gravity of
the 'evil,' discounted by its improbability,
justifies such invasion of free speech as is
necessary to avoid the danger." In this case,
an attempt to overthrow the Government by
force is a sufficient evil for Congress to prevent.
It is the existence of the conspiracy which
creates the danger.
B. Applications of Various
Specific Instances
I.
Tests
in
Freedom of Expression and National

Security
Espuelas vs. People (1951)

Espuelas was convicted in the lower court of the
crime of inciting to sedition. Espuelas had his
picture taken, making it to appear as if he were
hanging lifeless at the end of a piece of rope
suspended from the limb of a tree, when in truth
and in fact, he was merely standing on a barrel.
After securing copies of his photograph, he sent
copies to several newspapers and weeklies of
general circulation throughout the Philippines
and abroad, for their publication with a suicide
note or letter, wherein he made to appear that it
was written by a fictitious suicidee, Alberto

Reveniera and addressed to the latter's
supposed wife.
These
reasons
point
to
the
Roxas
administration,
his
disappointments
and
humiliations because of the former and his lack
of power to put under Juez de Cuchillo all the
Roxas people in power. Finally, the letter
instructed the wife to teach their children to burn
pictures of Roxas if they come across one.
Espuelas admitted the fact that he wrote the
letter and caused its publication and that he had
impersonated one Alberto Reveniera and posed
himself as Alberto Reveniera in a picture taken
wherein he was shown hanging by the end of a
rope tied to a limb of a tree.
Freedom of Expression, national security:
The letter is a scurrilous libel against the
Government. It suggests or incites rebellious
conspiracies or riots and tends to stir up the
people against the constituted authorities, or to
provoke violence from opposition groups who
may seek to silence the writer, which is the sum
and substance of the offense under
consideration. Such writings are criminal not
only because they tend to incite to a breach
of the peace but because they are conducive
to the destruction of the very government
itself. Malicious endeavors to stir up public strife
are prohibited.
Our Legislature has spoken in article 142 of the
RPC and the law must be applied. This kind of
legislation must be weighed carefully vis--vis
the fundamental right to freedom of speech.
Such freedom, although secured by the
Constitution, does not confer an absolute
right
to
speak
or
publish
without
responsibility whatever one may choose. It is
not unbridled license that gives immunity for
every possible use of language and prevents
the punishment of those who abuse this
freedom.
The privilege of any citizen to criticize his
government and government officials and to
submit his criticism to the "free trade of ideas"
and to plead for its acceptance in "the
competition of the market" is not to be
restrained. However, let such criticism be
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 an
invitation to disloyalty to the government.
104
When the use of irritating language centers

not on persuading the readers but on
creating disturbance, the rationale of free
speech cannot apply and the speaker or
writer is removed from the protection of the
constitutional guaranty.
II. Freedom of Expression and Libel

Bulletin Publishing vs. Noel
NATIONAL COMMUNITY STANDARD AS
BASIS OF WHAT IS DEFAMATORY:
Facts: An article in Phil. Panorama described
Amir Mindalano as not belonging to a royal
house.
Held: Court held that there is no libel. Such a
description cannot be regarded as defamatory,
an imputation of a vice or defect, or tending to
cast dishonor, discredit or contempt or to
blacken the memory of one who is dead. In a
community like ours which is both
republican
and
egalitarian,
such
an
ascription, whether correct or not, cannot be
defamatory.
It is to the standards of the national
community, not to those of the region that a
court must refer especially where a
newspaper is national in reach and
coverage.xxx
Newsweek vs. IAC (1986):
REPORT OF OFFICIAL CONDUCT IS
PRIVILEGED AND COVERED BY PRESS
FREEDOM: Where the defamation is alleged to
have been directed at a group/class, it is
essential that the statement must be so
sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently
specific so that each individual in the class or
group can prove that the defamatory statement
specifically pointed to him, so that he can bring
the action separately, if need be.
Also, the report in the Newsweek article referring
as it does to an official act performed by an
elective public official (i.e. that the victim had
been arrested by members of special police unit
brought by the mayor of Kabankalan who
incidentally is a sugar planter), is w/in the realm
of privilege and is protected by the constitutional
guarantees of free speech and press.
MVRS v. Islamic DaWah Council of the Phil
(2003)
Islamic DaWah Council of the Philippines, Inc.,
a local federation of more than 70 Muslim
religious organizations, filed a complaint for
damages against MVRS Publications, Inc.,

arising from an article, which says that the pig is
sacred for the Muslims.
Freedom of Expression, Libel: As the size of
these groups increases, the chances for
members of such groups to recover damages on
tortious libel become elusive. This principle is
said to embrace two important public policies:
first, where the group referred to is large, the
courts presume that no reasonable reader would
take the statements as so literally applying to
each individual member; and second, the
limitation on liability would satisfactorily
safeguard freedom of speech and expression,
as well as of the press, effecting a sound
compromise
between
the
conflicting
fundamental interests involved in libel cases.
Courts must be viewpoint-neutral when it comes
to religious matters if only to affirm the neutrality
principle of free speech rights under modern
jurisprudence where "all ideas are treated equal
in the eyes of the First Amendment - even those
ideas that are universally condemned and run
counter to constitutional principles."
Under the right to free speech, "there is no such
thing as a false idea. However pernicious an
opinion may seem, we depend for its correction
not on the conscience of judges and juries but
on the competition of other ideas."
Denying certiorari and affirming the appellate
court decision would surely create a chilling
effect on the constitutional guarantees of
freedom of speech, of expression, and of the
press.
III. Freedom of Expression and the Right to

Privacy
Lagunzad vs. Sotto (1979)
Being a public figure does not automatically
destroy in toto a persons right to privacy.
The right to invade a persons privacy to
disseminate public info does not extend to a
fictional representation of a person, no matter
how public a figure he/she may be. In the case
at bar, petitioner admits that he included a little
romance in the film about Moises Padilla
(despite efforts to present the true-to-life story of
the latter) because w/o it, it would be a drab
story of torture and brutality.
Ayer Productions vs. Capulong (1988):
Facts: TC issued a writ of preliminary injunction
against petitioners ordering them to desist from
105
producing the movie The Four-Day Revolution,

a docu-drama of EDSA I, on the ground that it
violated the right to privacy of Juan Ponce Enrile
who was featured in the documentary.
Held:
1) Freedom of speech and expression includes
freedom of filming and producing motion
pictures and to exhibit them. The fact that
such film production is a commercial activity
is not a disqualification for availing of
freedom of speech and expression.
2) The right to privacy cannot be involved to
resist publication and dissemination of
matter of public interest.
3) The intrusion is no more than necessary to
keep the film a truthful historical account.
Enrile is a public figure because of his
participation as a principal actor in the
culminating events of the revolution.
4) There must be no knowing or reckless
disregard of truth in depicting the
participation of Enrile in EDSA I. Also, there
must be no presentation of his private life
and
no revelation of
intimate or
embarrassing personal facts.
IV. Freedom of
Expression
Administration Of Justice
and
the
Cabansag vs. Fernandez (1957)

Facts: Due to the delay in the disposition of his
original case, Cabansag asked for help from the
President through a letter addressed to the
Presidential
Complaints
and
Actions
Commission (PCAC). A contempt charge was
brought against him for sending that letter which
tended to degrade the lower court in the eyes of
the President and of the people. SC reversed
the ruling which cited him in contempt.
Held:
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 be contemptuous, the
danger must cause a serious imminent threat to
the administration of justice. We cannot infer
that such act has "a dangerous tendency" to
belittle the court or undermine the administration
of justice for the writer merely exercised his
constitutional right to petition the government for
redress of a legitimate grievance.
V. Freedom of Information
Valmonte vs. Belmonte
Facts:
Media
practitioners
requested
information from the GM of GSIS regarding
clean loans granted to certain members of the
defunct Batasang Pambansa on the guaranty of
Imelda Marcos shortly before the Feb 1986
elections. Request was refused on the ground of
confidentiality.
Held: The right to information is not absolute. It
is limited to matters of public concern and is
subject to such limitations as may be provided
by law. That the GSIS was exercising a
proprietary function would not justify its
exclusion of the transactions from the coverage
of the right to info. But although citizens have
such right and, pursuant thereto, are entitled to
access to official records, the Constitution does
not accord them the right to compel custodians
of official records to prepare lists, summaries
and the like in their desire to get info on matters
of public concern.
III. Content-Neutral Restrictions

1. Freedom of Assembly
Primicias vs. Fugoso (1948):
The right to freedom of speech and to peaceably
redress of grievances are fundamental personal
rights of the people guaranteed by the
constitutions of democratic countries. City or
town mayors are not conferred the power to
refuse to grant the permit, but only the
discretion in issuing the permit to determine
or specify the streets or public places where
the parade may pass or the meeting may be
held.
J.B.L. Reyes vs. Bagatsing (1983):
The Court held here that freedom of speech and
freedom to peaceably assemble is entitled to
be accorded utmost deference and respect,
and cannot be limited or denied unless there
is showing of a clear and present danger of a
substantive evil that the State has a right to
prevent. For the constitutional right to be
invoked, riotous conduct, injury to property and
acts of vandalism must be avoided.
Furthermore, absent any clear and present
106
danger of a substantive evil, peaceable

assembly in public places like streets or
parks cannot be denied.
mayor to allow proper coordination and

orderly activities.
Bayan vs. Ermita (2006)
CPR serves no valid purpose if it means the

same thing as maximum tolerance (Sec. 3
[c] of B.P. 880), and is illegal if it means
something else. Accordingly, what is to be
followed is and should be that mandated by
the law itself, namely, maximum tolerance.
B.P. 880 not unconstitutional

B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply
regulates the time, place and manner of the
assemblies. The law is not vague or
overbroad. There is, likewise, no prior
restraint, since the content of the speech is
not relevant to the regulation. A fair and
impartial reading of B.P. No. 880 thus
readily shows that it refers to all kinds of
public assemblies that would use public
places.
Freedom Parks
B.P. 880 provides that every city and
municipality must set aside a freedom park
within six months from the laws effectivity in
1985, or 20 years ago. Section 15 of the law
provides for an alternative forum through the
creation of freedom parks where no prior
permit is needed for peaceful assembly and
petition at any time. According to the
SolGen (Nachura), however, he is aware
of only ONE declared freedom park Fuente Osmena in Cebu City. Without
such alternative forum, to deny the
permit would in effect be to deny the
right.
Hence, local governments are given a

deadline of 30 days within which to
designate specific freedom parks as
provided under B.P. No. 880. If, after that
period, no such parks are so identified in
accordance with Section 15 of the law, all
public parks and plazas of the municipality
or city concerned shall in effect be deemed
freedom parks; no prior permit of whatever
kind shall be required to hold an assembly
therein. The only requirement will be written
notices to the police and the office of the
In such a situation, as a necessary

consequence and part of maximum
tolerance, rallyists who can show the police
an application duly filed on a given date can,
after two days from said date, rally in
accordance with their application without the
need to show a permit, the grant of the
permit being then presumed under the law,
and it will be the burden of the authorities to
show that there has been a denial of the
application, in which case the rally may be
peacefully dispersed following the procedure
of maximum tolerance prescribed by the
law.
Conclusion
For this reason, the so-called calibrated
pre-emptive response policy has no
place in our legal firmament and must be
struck down as a darkness that shrouds
freedom. It merely confuses our people and
is used by some police agents to justify
abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it
does not curtail or unduly restrict freedoms;
it merely regulates the use of public places
as to the time, place and manner of
assemblies.
Far from being insidious, maximum

tolerance is for the benefit of rallyists, not
the government. The delegation to the
mayors of the power to issue rally permits is
valid because it is subject to the
constitutionally-sound clear and present
danger standard.
2. Freedom of Association and SelfOrganization

SEC. 17. Human Security Act:
SEC. 17. Proscription of Terrorist Organizations,
Association, or Group of Persons. -- Any
organization, association, or group of persons
organized for the purpose of engaging in
107
The CPR, insofar as it would purport to differ

from or be in lieu of maximum tolerance, is
NULL and VOID
Permit Application
There is need to address the situation
adverted to by petitioners where mayors do
not act on applications for a permit and
when the police demand a permit and the
rallyists could not produce one, the rally is
immediately dispersed.
terrorism, or which, although not organized for

that purpose, actually uses the acts to terrorize
mentioned in this Act or to sow and create a
condition of widespread and extraordinary fear
and panic among the populace in order to
coerce the government to give in to an unlawful
demand shall, upon application of the
Department of Justice before a competent
Regional Trial Court, with due notice and
opportunity to be heard given to the
organization, association, or group of persons
concerned, be declared as a terrorist and
outlawed organization, association, or group of
persons by the said Regional Trial Court.
including the right to strike in accordance with

law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage.
They shall also participate in policy and
decision-making processes affecting their rights
and benefits as may be provided by law.
3. Movie Censorship
Gonzales vs. Kalaw Katigbak (1985):
Facts: Gonzales was the producer of the movie
Kapit sa Patalim w/c the Board of Review for
Motion Pictures and Televisions classified as fit
For Adults Only.
People vs. Ferrer (1972):

The right to associate is not absolute.
Sec. 2 (5), Art 9-B. 1987 Constitution. The
right to self-organization shall not be denied to
government employees.
Sec. 8, Art. 3, 1987 Constitution. The right of
the people, including those employed in the
public and private sectors, to form unions,
associations, or societies for purposes not
contrary to law shall not be abridged.
par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It
shall guarantee the rights of all workers to selforganization,
collective
bargaining
and
negotiations, and peaceful concerted activities,
Held: Here the Court held that the power of the

Board is limited to the classification of films. For
freedom of expression is the rule and restrictions
the exception. Censorship is allowable only
under the clearest proof of a clear and
present danger of a substantive evil to public
safety, morals, health or any other legit
public interest. 1) There should be no doubt
what is feared may be traced to the
expression complained of. 2) Also, there
must be reasonable apprehension about its
imminence. It does not suffice that the
danger is only probable.
4. Broadcast Media
108
Chapter X. FREEDOM of RELIGION
3.
I.
NON-ESTABLISHMENT CLAUSE
A. CONCEPT
B. BASIS
C. ACTS NOT PERMITTED BY THE
ESTABLISHMENT CLAUSE
D. ACTS
PERMITTED
BY
THE
ESTABLISHMENT CLAUSE
E. TEST
II. FREE EXERCISE CLAUSE
A. DUAL ASPECT
B. LAWS JUSTIFIED UNDER THE FREE
EXERCISE CLAUSE
III. TESTS
A. CLEAR AND PRESENT DANGER
TEST
B. COMPELLING
STATE
INTEREST
TEST
C. CONSCIENTIOUS OBJECTOR TEST
Art. III, Sec. 5. No law shall be made respecting
an establishment of religion; or prohibiting the
free exercise thereof. The free exercise and
enjoyment of religious profession and worship,
without discrimination or preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political
rights.
I.
Glassroth vs. Moore, 335 F.3d 1282 (11th Cir.

2003):
Display
of
granite
monument
of
10
commandments in front of a courthouse is
unconstitutional for being is unmistakably nonsecular. Nothing in its setting de-emphasizes its
religious nature. It engenders in viewers a sense
that Christianity is endorsed by the government.
4.
Mandatory religious subjects or prohibition

of secular subjects (evolution) in schools
(Epperson vs. Arkansas)
5.
Mandatory bible reading in school (a form of

preference for belief over non-belief)
(School District vs. Schempp)
6.
Word God in the Pledge of Allegiance
Newdow vs. US (2003):

Mandatory recitation in school of such a Pledge
of Allegiance would tend to discriminate against
students who are atheists.
D. Acts Permitted by the Establishment

Clause
1. Tax exemption
Non-establishment Clause
A. Concept
The clause prohibits excessive government
entanglement with, endorsement or disapproval
of religion (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).
B. Basis
Rooted in the separation of Church and State
(Sec. 2(5), Art. 9-C; Sec. 5(2), Sec. 29(2) Art. 6,
1987 Consti).
C. Acts
NOT
permitted
establishment Clause
Religious displays in public spaces
by
Sec. 28 (3), Art. 6. Charitable institutions,

churches and personages or convents
appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation.
2. Operation of sectarian schools
Sec. 4(2), Art. 14. Educational institutions, other
than those established by religious groups and
mission boards, shall be owned solely by
citizens of the Philippines or corporations or
associations at least sixty per centum of the
capital of which is owned by such citizens
Non-
1.
Prayer and Bible-reading in public schools

(Engel v. Vitale 1967; Abington School
District v. Schemp 1963)
2.
Financial subsidy for parochial schools

(Lemon vs. Kurtzman)
3. Religious instruction in public schools

Sec. 3(3), Art. 14. At the option expressed in
writing by the parents or guardians, religion shall
be allowed to be taught to their children or wards
in public elementary and high schools within the
regular class hours by instructors designated or
109
Chapter X. Freedom of Religion
Civil Code, Art. 359. The government promotes

the full growth of the faculties of every child. For
this purpose, the government will establish,
whenever possible:
(1) Schools in every barrio, municipality and city
where optional religious instruction shall be
taught as part of the curriculum at the option of
the parent or guardian.xxx
4. Public aid to religion
Sec. 29 (2), Art. 6. No public money or property
shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use,
benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister,
other religious teacher, or dignitary as such,
except when such priest, preacher, minister,
or dignitary is assigned to the armed forces,
or to any penal institution, or government
orphanage or leprosarium.
5. Postage stamps depicting Philippines as the
site of a significant religious event
Aglipay vs. Ruiz, (64 Phil. 201):
Postage stamps which promote a Catholic
event are constitutional. The benefit to
religious sect is incidental to promotion of
Philippines as a tourist destination.
6. Government sponsorship of town fiestas.
Traditions which used to be purely religious
but have now acquired secular character are
permissible (Garces vs. Estenzo)
7. Book lending program for students in
parochial schools. The benefit redounds to
students and parents and not to any
particular sect. (Board of Education vs.
Allen, 392 U.S. 236)
8. Display of crche in a secular setting
Lynch vs. Donnely, (1984):
Crche is displayed in a secular manner,
and merely depicts the origins of the holiday.
The Constitution mandates accommodation
and not merely tolerance. Instead of an
absolutist approach, court inquires if the law
or conduct has a secular purpose.
9. Financial support for secular academic

facilities
Tilton vs. Richardson, (403 U.S. 672):
WON a law that grants financial support for
expansion of educational facilities in
parochial schools is constitutional. HELD:
Yes, secular purpose facilities to be used
for secular activities. The facilities built here
were a library and a science center.
10. Exemption from zoning requirements to
accommodate unique architectural features
of religious buildings
Martin vs. Corporation of the Presiding
Bishop, (434 Mass. 141):
WON zoning law giving exemption to
religious sect (Mormons building a tall
pointed steeple) is constitutional. HELD:
Yes, court may not determine whether
architectural features are necessary for a
particular religion, e.g. steeple pointing
upwards into heaven for Mormons.
E. Test
Lemon vs. Kurtzman, (403 U.S. 602): 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 entanglement
between government and religion.
II. Free Exercise Clause

A. Dual Aspect
1. Freedom to believe - absolute
2. Freedom to act on ones belief subject to
regulation
B. Laws Justified under Free Exercise

Clause
1. Exemption from flag salute
Ebralinag vs. Division Superintendent of
Schools of Cebu (1993):
Conscientious Objectors cannot be compelled to
salute the flag on pain of being dismissed from
one's job or of being expelled from school.
110
approved by the religious authorities of the

religion to which the children or wards belong,
without additional cost to the Government.
2. Freedom to propagate religious doctrines

American Bible Society vs. City of Manila
(1957):
health or any other legitimate interest, that the

state has a right to prevent.
B. Compelling State Interest Test

(from a benevolent neutrality stance)
The power to tax the exercise of the privilege is

the 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
its maintenance.
1. Determine sincerity and centrality of claimed

religious belief and practice
2. Compelling state interest must override
religious belief and practice
3. The means adopted in pursuing its interest
is the least restrictive to religious freedom
3. Exemption from union shop
Estrada vs. Escritor (2003):
Victoriano vs. Elizalde Rope Workers Union

(1974):
Although the morality contemplated by laws is

secular, benevolent neutrality could allow for
accommodation of morality based on religion,
provided it does not offend compelling state
interests.
Neither does the law constitute an establishment

of religion. It has been held that in order to
withstand objections based on this ground, the
statute must have a secular purpose and that
purpose must not directly advance or diminish
the interest of any religion. Congress acted
merely to relieve persons of the burden imposed
by union security agreements. The
free
exercise of religious profession or belief is
superior to contract rights.
4. Non-disqualification from local government

office
Pamil vs. Teleron (1978):
For lack of votes, law disqualifying religious
leaders from public office is held valid. As per
free exercise clause, it is invalid for it requires a
religious test for qualification.
Dean Pangalangan: There should be no
distinction between ordinary believer and the
Pope; if the former can hold office, why not the
latter.
III. Tests
A. Clear and Present Danger Test
Ebralinag vs. Div. Superintendent:
The existence of a grave and present danger, of
a character both grave and imminent, of a
serious evil to public safety, public morals, public
C. Conscientious Objector Test

1. Conscientiously opposed to war in any form.
2. Opposition is based upon religious training
and belief.
3. Objection is sincere. (See Cassious Clay vs.
US)
Note: Meaning of religious training and belief:
WON it is sincere and meaningful and occupies
a place in the life of its possessor parallel to that
filled by the orthodox belief in God. (US vs.
Seeger, 380 US 163). This expands the
meaning of religion to cover not just recognized
sects but also personal beliefs akin to
traditional religion.
111
Chapter XI. LIBERTY of ABODE and TRAVEL
Chapter XI. Liberty of Abode and Travel
police chief to restrain the liberty of abode of

citizens of the Philippines.
I. LIBERTY OF ABODE
II. RIGHT TO TRAVEL
III. RIGHT TO RETURN TO ONES COUNTRY
II. Right to Travel

Manotok vs. CA (1986):
I.
Liberty of Abode
The right of the individual is necessarily subject

to reasonable restraint by general law for the
common good. The Liberty of the citizens may
be restrained in the interest of the public health,
or of the public order and safety, or otherwise
within the proper scope of the police power.
RIGHT NOT ABSOLUTE:

The Constitutional Right to Travel under
Sec. 5, Art. IV of the 1973 Consitution is not an
Absolute Right, and can only be impaired upon
lawful order of the court, or when necessary in
the interest of national security, public safety or
public health. Releasing the petitioner on bail
and that as a condition, he make himself
available at all times is a valid restriction on his
right to travel. To allow him to travel, especially
abroad will make the order of the court nugatory
as the court's jurisdiction cannot extend beyond
the Philippines.
None of the rights of the citizen can be taken

away except by due process of law.
III. Right to Return to Ones Country
Rubi vs. Provincial Board (1919):

"Liberty" as understood in democracies, is not
license; it is "Liberty regulated by law."
The government's measure in relocating the

Manguianes, a nomadic people with a wayfaring
life and without permanent individual property is
necessary both in the interest of the public as
owner of the lands about which they are roving
and for the proper accomplishment of the
purposes and objectives of the government. For
as people accustomed to nomadic habit, they
will always long to return to the mountains and
follow a wayfaring life, and unless a penalty is
provinced for, you can not make them live
together and the noble intention of the
Government of organizing them politically will
come to naught. Furthermore, their relocation
(and the imposition that they are not allowed to
emigrate to some other places under penalty of
imprisonment) is a proper restraint to their
liberty, they being taught and guided in Tigbao
to improve their living conditions, and improve
their education. In short, everything is being
done from them in order that their advancement
in civilization and material prosperity may be
assured.
Villavicencio vs. Lukban (1919):
The executive of a municipality does not have
the right to force citizens of the Philippine
Islands to change their domicile from one locality
to another. Law defines power, and there is no
law nor regulation that allows a mayor or a
Marcos vs. Manglapus (1989):

The threats to the government, to which the
return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown
to have ceased. The President has unstated
residual powers which are implied from the grant
of executive power and which are necessary for
her to comply with her duties under the
Constitution. One of her duties is to protect and
promote the the interest and welfare of the
people. Her decision to bar the return of the
Marcoses and subsequently, the remains of Mr.
Marcos at the present time and under present
circumstances is in compliance with this
bounden duty.
112
Chapter XII. RA 9372: HUMAN SECURITY ACT

RELEVANT PROVISIONS VIS--VIS CONSTITUTIONAL GUARANTEES
CRITICISM
If terrorism is defined by result, then how can a
conspiracy to commit the Section 3 offense
arise?
Surveillance of suspects and interception and

recording of communications, 7

1. The privacy of communication and
correspondence shall be inviolable except
upon lawful order of the court, or when
public safety or order requires otherwise as
prescribed by law.
2. Any evidence obtained in violation of this or
the preceding section shall be inadmissible
for any purpose in any proceeding.
Upon written order of the Court of Appeals,

The provisions of RA 4200 to the contrary
notwithstanding Intercept and record, with
the use of any mode, form, kind or type of
electronic or other surveillance equipment of
intercepting and tracking devices, or with the
use of any other suitable ways and means for
that purpose, any communication, message,
conversation, discussion, or spoken or written
words between members of a judicially
declared
and
outlawed
terrorist
organization, association or group of
persons or of any person charged with or
suspected of the crime of terrorism or of
conspiracy to commit terrorism.
Proscription
of
Terrorist
Organizations,
Association or Group of Persons, 17
Any organization, association or group of

persons organized for the purpose of engaging
in terrorism, or which although not organized
for this purpose, actually uses the acts to
terrorize shall, upon application of the
Department of Justice before a competent
Regional Trial Court, with due notice and
opportunity to be heard given to the
organization, association or group of persons
concerned, be declared as a terrorist and
outlawed organization, association, or group of
persons by the court.
Note: to terrorize to commit the crime

of terrorism?
Periods of Detention without Judicial (sic) Warrant
of Arrest, 18
The provisions of Article 125 of the Revised

Penal
Code
to
the
contrary
notwithstanding,
any
police
or
law
enforcement personnel, who, having been duly
authorized in writing by the Anti-Terrorism
Council has taken custody of a person charged
with or suspected of the crime of terrorism or
the crime of conspiracy to commit terrorism
shall, without incurring any criminal liability
for delay in the delivery of detained persons

No law shall be passed abridging the freedom
of speech, of expression, or of the press, or the
right of the people peaceably to assemble and
petition the government for redress of
grievances.
The right of the people, including those
employed in the public and private sectors, to
form unions, associations, or societies for
purposes not contrary to law shall not be
abridged.
1) No person shall be detained solely by
reason of his political beliefs and aspirations.
No person shall be deprived of life, liberty, or
property without due process of law, nor shall
any person be denied the equal protection of
the laws.
ART. 125., REVISED PENAL CODE

Delay in the delivery of detained persons to
the proper judicial authorities. The
penalties provided in the next preceding article
113
REPUBLIC ACT 9327

Conspiracy to Commit Terrorism, 4
to the proper judicial authorities, deliver

said charged or suspected person to the
proper judicial authority within a period of
three (3) days counted from the moment the
said charged or suspected person has been
apprehended or arrested, detained, and taken
into custody by the said police, or law
enforcement personnel.
Periods of Detention in the Event of an

Actual or Imminent Terrorist Attack, 19
suspects may be detained for more than 3

days without the written approval of the Human
Rights Commission or judge of the nearest
court.
Chapter XII. RA 9372: HUMAN SECURITY ACT
shall be imposed upon the public officer or

employee who shall detain any person for
some legal ground and shall fail to deliver such
person to the proper judicial authorities within
the period of; twelve (12) hours, for crimes or
offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or
offenses punishable by correctional penalties,
or their equivalent and thirty-six (36) hours, for
crimes, or offenses punishable by afflictive or
capital penalties, or their equivalent.
Note: Law is silent as to the MAXIMUM

PERIOD OF DETENTION
Restriction on Travel, 26
o
o
Situation contemplated:
Bail is granted
because evidence of guilt is not strong
Court may, upon application of the prosecution,
limit the right to travel of the accused to within
the municipality or city where he resides or
where the case is pending, in the interest of
national security and public safety;
May also be placed under house arrest by
order of the court at his or her usual place of
residence; while under house arrest, he/she
may not use telephones, cellphones, emails,
computers, the internet or other means of
communication with people outside the
residence until otherwise ordered by the court.
_____________________________________________
* Acknowledgment: Thank you to Prof.
Theodore Te for allowing us to substantially lift
the materials from his report on the HSA.

All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail
shall not be required.
1. XXX
2. In all criminal prosecutions, the accused
shall be presumed innocent until the
contrary is proved,
114
BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY
THE PEOPLE OF THEIR RIGHT PEACEABLY
TO ASSEMBLE AND PETITION THE
GOVERNMENT FOR OTHER PURPOSES
Section 1. Title - This Act shall be known as
"The Public Assembly Act of 1985."
Section 2. Declaration of policy - The
constitutional right of the people peaceably to
redress of grievances is essential and vital to the
strength and stability of the State. To this end,
the State shall ensure the free exercise of such
right without prejudice to the rights of others to
life, liberty and equal protection of the law.
Section 3. Definition of terms - For purposes of
this Act:
(a) "Public assembly" means any rally,
demonstration, march, parade, procession
or any other form of mass or concerted
action held in a public place for the purpose
of presenting a lawful cause; or expressing
an opinion to the general public on any
particular issue; or protesting or influencing
any state of affairs whether political,
economic or social; or petitioning the
government for redress of grievances.
The processions, rallies, parades,
demonstrations, public meetings and
assemblages for religious purposes shall be
governed by local ordinances: Provided,
however, That the declaration of policy as
provided in Section 2 of this Act shall be
faithfully observed.
The definition herein contained shall not
include picketing and other concerted action
in strike areas by workers and employees
resulting from a labor dispute as defined by
the Labor Code, its implementing rules and
regulations, and by the Batas Pambansa
Bilang 227.
(b) "Public place" shall include any highway,
boulevard, avenue, road, street, bridge or
other thoroughfare, park, plaza, square,
and/or any open space of public ownership
where the people are allowed access.
(c) "Maximum tolerance" means the highest
degree of restraint that the military, police
and other peace keeping authorities shall
observe during a public assembly or in the
dispersal of the same.
(d) "Modification of permit" shall include the
change of the place and time of the public
assembly, rerouting of the parade or street
Chapter XII. BP 880
march, the volume of loud-speakers or

sound system and similar changes.
Section 4. Permit when required and when not
required - A written permit shall be required for
any person or persons to organize and hold a
public assembly in a public place. However, no
permit shall be required if the public assembly
shall be done or made in a freedom park duly
established by law or ordinance or in private
property, in which case only the consent of the
owner or the one entitled to its legal possession
is required, or in the campus of a governmentowned and operated educational institution
which shall be subject to the rules and
regulations of said educational institution.
Political meetings or rallies held during any
election campaign period as provided for by law
are not covered by this Act.
Section 5. Application requirements - All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and shall
include the names of the leaders or
organizers; the purpose of such public
assembly; the date, time and duration
thereof, and place or streets to be used for
the intended activity; and the probable
number of persons participating, the
transport and the public address systems to
be used.
(b) The application shall incorporate the duty
and responsibility of applicant under Section
8 hereof.
(c) The application shall be filed with the office
of the mayor of the city or municipality in
whose jurisdiction the intended activity is to
be held, at least five (5) working days before
the scheduled public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office
of the city or municipal mayor shall cause
the same to immediately be posted at a
conspicuous place in the city or municipal
building.
Section 6. Action to be taken on the
application (a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant a
permit unless there is clear and convincing
evidence that the public assembly will create
a clear and present danger to public order,
public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf
shall act on the application within two (2)
working days from the date the application
115
(c)
(d)
(e)
(f)
(g)
(h)
(i)
was filed, failing which, the permit shall be

deemed granted. Should for any reason the
mayor or any official acting in his behalf
refuse to accept the application for a permit,
said application shall be posted by the
applicant on the premises of the office of the
mayor and shall be deemed to have been
filed.
If the mayor is of the view that there is
imminent and grave danger of a substantive
evil warranting the denial or modification of
the permit, he shall immediately inform the
applicant who must be heard on the matter.
The action on the permit shall be in writing
and served on the application within twentyfour hours.
If the mayor or any official acting in his
behalf denies the application or modifies the
terms thereof in his permit, the applicant
may contest the decision in an appropriate
court of law.
In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be
appealed to the appropriate court within
forty-eight (48) hours after receipt of the
same. No appeal bond and record on appeal
shall be required. A decision granting such
permit or modifying it in terms satisfactory to
the applicant shall, be immediately
executory.
All cases filed in court under this Section
shall be decided within twenty-four (24)
hours from date of filing. Cases filed
hereunder shall be immediately endorsed to
the executive judge for disposition or, in his
absence, to the next in rank.
In all cases, any decision may be appealed
to the Supreme Court.
Telegraphic appeals to be followed by
formal appeals are hereby allowed.
Section 7. Use of public thoroughfare - Should

the proposed public assembly involve the use,
for an appreciable length of time, of any public
highway, boulevard, avenue, road or street, the
mayor or any official acting in his behalf may, to
prevent grave public inconvenience, designate
the route thereof which is convenient to the
participants or reroute the vehicular traffic to
another direction so that there will be no serious
or undue interference with the free flow of
commerce and trade.
Section 8. Responsibility of applicant - It shall
be the duty and responsibility of the leaders and
organizers of a public assembly to take all
Chapter XII. BP 880
reasonable measures and steps to the end that

the intended public assembly shall be conducted
peacefully in accordance with the terms of the
permit. These shall include but not be limited to
the following:
(a) To inform the participants of their
responsibility under the permit;
(b) To police the ranks of the demonstrators in
order to prevent non-demonstrators from
disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials
concerned and law enforcers to the end that
the public assembly may be held peacefully;
(d) To see to it that the public assembly
undertaken shall not go beyond the time
stated in the permit; and
(e) To take positive steps that demonstrators do
not molest any person or do any act unduly
interfering with the rights of other persons
not participating in the public assembly.
Section 9. Non-interference by law enforcement
authorities - Law enforcement agencies shall not
interfere with the holding of a public assembly.
However, to adequately ensure public safety, a
law enforcement contingent under the command
of a responsible police officer may be detailed
and stationed in a place at least one hundred
(100) meter away from the area of activity ready
to maintain peace and order at all times.
Section 10. Police assistance when requested It shall be imperative for law enforcement
agencies, when their assistance is requested by
the leaders or organizers, to perform their duties
always mindful that their responsibility to provide
proper protection to those exercising their right
peaceably to assemble and the freedom of
expression is primordial. Towards this end, law
enforcement agencies shall observe the
following guidelines:
(a) Members of the law enforcement contingent
who deal with the demonstrators shall be in
complete uniform with their nameplates and
units to which they belong displayed
prominently on the front and dorsal parts of
their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement
contingent shall not carry any kind of
firearms but may be equipped with baton or
riot sticks, shields, crash helmets with visor,
gas masks, boots or ankle high shoes with
shin guards;
(c) Tear gas, smoke grenades, water cannons,
or any similar anti-riot device shall not be
used unless the public assembly is attended
by actual violence or serious threats of
116
violence,
property.
or
deliberate
Chapter XII. BP 880
destruction
of
(b)
Section 11. Dispersal of public assembly with

permit - No public assembly with a permit shall
be dispersed. However, when an assembly
becomes violent, the police may disperse such
public assembly as follows:
(a) At the first sign of impending violence, the
ranking officer of the law enforcement
contingent shall call the attention of the
leaders of the public assembly and ask the
latter to prevent any possible disturbance;
(b) If actual violence starts to a point where
rocks or other harmful objects from the
participants are thrown at the police or at the
non-participants, or at any property causing
damage to such property, the ranking officer
of the law enforcement contingent shall
audibly warn the participants that if the
disturbance persists, the public assembly
will be dispersed;
(c) If the violence or disturbances prevailing as
stated in the preceding subparagraph should
not stop or abate, the ranking officer of the
law enforcement contingent shall audibly
issue a warning to the participants of the
public assembly, and after allowing a
reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or
participant shall also be made during the
public assembly unless he violates during
the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall
be governed by Article 125 of the Revised
Penal Code, as amended:
(e) Isolated acts or incidents of disorder or
branch of the peace during the public
assembly shall not constitute a group for
dispersal.
Section 12. Dispersal of public assembly
without permit - When the public assembly is
held without a permit where a permit is required,
the said public assembly may be peacefully
dispersed.
Section 13. Prohibited acts - The following shall
constitute violations of this Act:
(a) The holding of any public assembly as
defined in this Act by any leader or organizer
without having first secured that written
permit where a permit is required from the
office concerned, or the use of such permit
for such purposes in any place other than
those set out in said permit: Provided,
however, That no person can be punished
(c)
(d)
(e)
(f)
(g)
or held criminally liable for participating in or

attending an otherwise peaceful assembly;
Arbitrary
and
unjustified
denial
or
modification of a permit in violation of the
provisions of this Act by the mayor or any
other official acting in his behalf.
The unjustified and arbitrary refusal to
accept or acknowledge receipt of the
application for a permit by the mayor or any
official acting in his behalf;
Obstructing,
impeding,
disrupting
or
otherwise denying the exercise of the right
to peaceful assembly;
The unnecessary firing of firearms by a
member of any law enforcement agency or
any person to disperse the public assembly;
Acts in violation of Section 10 hereof;
Acts described hereunder if committed
within one hundred (100) meters from the
area of activity of the public assembly or on
the occasion thereof;
1. the carrying of a deadly or offensive
weapon or device such as firearm,
pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the
like;
3. the malicious burning of any object in
the streets or thoroughfares;
4. the carrying of firearms by members of
the law enforcement unit;
5. the interfering with or intentionally
disturbing the holding of a public
assembly by the use of a motor vehicle,
its horns and loud sound systems.
Section 14. Penalties - Any person found guilty

and convicted of any of the prohibited acts
defined in the immediately preceding Section
shall be punished as follows:
(a) violation of subparagraph (a) shall be
punished by imprisonment of one month and
one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e),
(f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and
one day to six years;
(c) violation of item 1, subparagraph (g) shall be
punished by imprisonment of six months and
one day to six years without prejudice to
prosecution under Presidential Decree No.
1866;
(d) violations of item 2, item 3, or item 5 of
subparagraph (g) shall be punished by
imprisonment of one day to thirty days.
Section 15. Freedom parks - Every city and
municipality in the country shall within six
months after the effectivity of this Act establish
or designate at least one suitable "freedom park"
117
or mall in their respective jurisdictions which, as

far as practicable, shall be centrally located
within the poblacion where demonstrations and
meetings may be held at any time without the
need of any prior permit.
In the cities and municipalities of
Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of
six months from the effectivity of this Act.
Section 16. Constitutionality - Should any
provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality
of the other provisions shall not be affected
thereby.
Section 17. Repealing clause - All laws,
decrees, letters of instructions, resolutions,
orders, ordinances or parts thereof which are
inconsistent with the provisions of this Act are
hereby repealed, amended, or modified
accordingly.
Section 18. Effectivity - This Act shall take effect
upon its approval.
Approved, October 22, 1985.
Chapter XII. BP 880
118
Chapter XIII. Latest Cases

Salonga vs. Daniel Smith (February 2009):
Petitioners contend that these undertakings
violate another provision of the Constitution,
namely, that providing for the exclusive power of
this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]).
They argue that to allow the transfer of custody
of an accused to a foreign power is to provide
for a different rule of procedure for that accused,
which also violates the equal protection clause
of the Constitution (Art. III, Sec. 1.).The Court
finds no violation of the Constitution because
there is a substantial basis for a different
treatment of a member of a foreign military
armed forces allowed to enter our territory and
all other accused.
The rule in international law is that a foreign
armed forces allowed to enter ones territory is
immune from local jurisdiction, except to the
extent agreed upon. The Status of Forces
Agreements involving foreign military units
around the world vary in terms and conditions,
according to the situation of the parties involved,
and reflect their bargaining power. But the
principle remains, i.e., the receiving State can
exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by
the parties.12
As a result, the situation involved is not one in
which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one
in which, as is normally encountered around the
world, the laws (including rules of procedure) of
one State do not extend or applyexcept to the
extent agreed uponto subjects of another
State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign
armed forces.
Soriano vs. Laguardia (29 April 2009):

There is nothing in petitioners statements
subject of the complaints expressing any
particular religious belief, nothing furthering his
avowed evangelical mission. The fact that he
came out with his statements in a televised bible
exposition program does not automatically
accord them the character of a religious
discourse. Plain and simple insults directed at
another person cannot be elevated to the status
of religious speech.
Chapter XIII. LATEST CASES
Villanueva vs. Philippine Daily Inquirer (15

May 2009)
The rule on privileged communication had its
genesis not in the nations penal code but in the
Bill of Rights of the Constitution guaranteeing
freedom of speech and of the press. As early as
1918, in United States v. Caete,23 this Court
ruled that publications which are privileged for
reasons of public policy are protected by the
constitutional guaranty of freedom of speech.24
In the instant case, there is no denying that the
questioned articles dealt with matters of public
interest. These are matters about which the
public has the right to be informed, taking into
account the very public character of the election
itself. For this reason, they attracted media
mileage and drew public attention not only to the
election itself but to the candidates. As a political
candidate, petitioner consequently assumed the
status of a public figure.
But even assuming a person would not qualify
as a public figure, it would not necessarily follow
that he could not validly be the subject of a
public comment. For he could; for instance, if
and when he would be involved in a public
issue. If a matter is a subject of public or general
interest, it cannot suddenly become less so
merely because a private individual is involved
or because in some sense the individual did not
voluntarily choose to become involved. The
publics primary interest is in the event; the
public focus is on the conduct of the participant
and the content, effect and significance of the
conduct, not the participants prior anonymity or
notoriety.
Pates vs. COMELEC (June 2009)

Procedural rules should be treated with utmost
respect and due regard since they are designed
to facilitate the adjudication of cases to remedy
the worsening problem of delay in the resolution
of rival claims and in the administration of
justice. The requirement is in pursuance to the
bill of rights inscribed in the Constitution which
guarantees that "all persons shall have a right to
the speedy disposition of their before all judicial,
quasi-judicial and administrative bodies," the
adjudicatory bodies and the parties to a case are
thus enjoined to abide strictly by the rules. While
it is true that a litigation is not a game of
technicalities, it is equally true that every case
must be prosecuted in accordance with the
prescribed procedure to ensure an orderly and
speedy administration of justice. There have
119
Chapter XIII. LATEST CASES
People vs. Lopez (26 September 2008):

There are eight (8) instances when a
warrantless search and seizure is valid, to wit:
(1) consented searches; (2) as an incident to a
lawful arrest; (3) searches of vessels and aircraft
for violation of immigration, customs, and drug
laws; (4) searches of moving vehicles; (5)
searches of automobiles at borders or
constructive borders; (6) where the prohibited
articles are in "plain view;" (7) searches of
buildings and premises to enforce fire, sanitary,
and building regulations; and (8) "stop and frisk"
operations.
Quinto vs. Comelec (01 December 2009):

The equal protection of the law clause in the
Constitution is not absolute, but is subject to
reasonable classification. If the groupings are
characterized by substantial distinctions that
make real differences, one class may be treated
and regulated differently from the other.
The equal protection of the law clause is against
undue favor and individual or class privilege, as
well as hostile discrimination or the oppression
of inequality. It is not intended to prohibit
legislation which is limited either in the object to
which it is directed or by territory within which it
is to operate. It does not demand absolute
equality among residents; it merely requires that
all persons shall be treated alike, under like
circumstances and conditions both as to
privileges conferred and liabilities enforced. The
equal protection clause is not infringed by
legislation which applies only to those persons
falling within a specified class, if it applies alike
to all persons within such class, and reasonable
grounds exist for making a distinction between
those who fall within such class and those who
do not.
ON TIMBER LICENSE
AND THE NON-IMPAIRMENT CLAUSE
Alvarez substituted by Gozun (DENR) vs.
PICOP (03 December 2009): A timber license is
not a contract within the purview of the nonimpairment clause is edifying.
Needless to say, all licenses may thus be
revoked or rescinded by executive action. It is
not a contract, property or a property right
protected by the due process clause of the
Constitution because timber license is an
instrument by which the State regulates the
utilization and disposition of forest resources to
the end that public welfare is promoted. A timber
license is not a contract within the purview of the
due process clause; it is only a license or a
privilege, which can be validly withdrawn
whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do
what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or
municipal, granting it and the person to whom it
is granted; neither is it a property or a property
right, nor does it create a vested right; nor is it
taxation. The granting of license does not create
irrevocable rights, neither is it property or
property rights.
Sison vs. PNCC (04 December 2009):

(NOTE: Also involves Remedial Law)
Unquestionably, the Court has the power to
suspend procedural rules in the exercise of its
inherent power, as expressly recognized in the
Constitution, to promulgate rules concerning
pleading, practice and procedure in all courts.
In proper cases, procedural rules may be
relaxed or suspended in the interest of
substantial justice, which otherwise may be
miscarried because of a rigid and formalistic
adherence to such rules. x x x
Be it remembered that rules of procedure are
but mere tools designed to facilitate the
attainment of justice. Their strict and rigid
application, which would result in technicalities
that tend to frustrate rather than promote
substantial justice, must always be avoided. x x
x Time and again, this Court has suspended its
own rules and excepted a particular case from
their operation whenever the higher interests of
justice so require.
- end of Constitutional Law II -
120
been some instances wherein this Court allowed

a relaxation in the application of the rules, but
this flexibility was "never intended to forge a
bastion for erring litigants to violate the rules
with impunity." A liberal interpretation and
application of the rules of procedure can be
resorted to only in proper cases and under
justifiable causes and circumstances.
TABLE of CONTENTS

Table of Contents
Chapter II. Actors of International Law ......126

I.
Law 126
A. States............................................126
B. Individuals .....................................128
C. International Organizations (IO)....128
Chapter III. The Norms of International Law
.......................................................................129
I.
Concepts ...........................................129
II.
Sources of International Law ............129
A. Treaty as Source of Law...............129
B. Customary International Law ........129
C. General Principle of Law...............131
132
E. Subsidiary Source: Publicists .......132
F.
Other Sources...............................132
III. Status of Norms ................................132
A. Jus Cogens or Peremptory Norms132
B. Erga Omnes Norms ......................132
Chapter IV. The Law of Treaties .................133
I.
Definition ...........................................133
II.
Requisites for Validity........................133
A. Treaty Making Capacity ................133
B. Competence
of
the
Representative/Organ Making the Treaty
133
C. Parties Must Freely Give Consent 133
Lawful ....................................................133
Concerned .............................................133
III. The Treaty-Making Process ..............133
A. Negotiation....................................133
B. Adoption (Article 9, VCLOT) .........133
VCLOT) .................................................134
D. Expression of Consent to be bound

by the Treaty (Article 11, VCLOT)......... 134
E. Registration with the UN............... 135
IV. Philippine Law................................... 135
135
VI. Reservations ..................................... 135
VII.
Invalid Treaties ............................. 135
VIII.
Grounds for Termination............... 135
Chapter V. International Responsibility..... 137
I.
Breach............................................... 137
A. Is Fault or Malice Necessary? ...... 137
B. The Standard of Diligence ............ 137
II.
Attribution .......................................... 137
A. Direct and Indirect Attribution ....... 138
B. Conduct Attributable to the State . 138
III. Consequences of State Responsibility
138
A. Duty to Make Reparation.............. 138
B. Forms of Reparation..................... 138
IV. Circumstances Precluding Wrongfulness
139
Claim) ....................................................... 139
A. Material Dates............................... 140
B. Exhaustion of Local Remedies ..... 140
Chapter VI. Sovereignty and Jurisdiction . 141
I.
Sovereignty ....................................... 141
A. Characteristics .............................. 141
B. Sovereign Equality of States ........ 141
C. Corollaries..................................... 141
II.
Jurisdiction ........................................ 141
A. Criminal Jurisdiction ..................... 141
B. Reserved Domain of Domestic
Jurisdiction ............................................ 141
C. Doctrine of State Immunity ........... 141
Chapter VII. The Law of the Sea ................. 143
I.
Concepts ........................................... 143
A. Distinguished from Maritime or
Admiralty Law........................................ 143
B. Baseline ........................................ 143
II.
Waters............................................... 143
A. Internal Waters ............................. 144
B. Territorial Waters .......................... 144
C. Contiguous Zone .......................... 144
D. Exclusive Economic Zone ............ 144
E. High Seas ..................................... 145
III. Archipelagic State ............................. 146
IV. Continental Shelf............................... 146
A. Limits of the Continental Shelf...... 148
122
Chapter I. Preliminaries ...............................124

I.
Public International Law (PIL) ...........124
II.
Contra-Distinctions............................124
III. Relationship between PIL and Municipal
Law 125
A. Monist View...................................125
B. Dualist View ..................................125
C. Monist-Naturalist View ..................125
D. Coordinationist View .....................125
IV. The Philippine Doctrine .....................125
A. Doctrine of Incorporation ..............125
B. Doctrine of Transformation ...........125
B. Rights of the Coastal State over the

Continental Shelf ...................................148
Shelf vs. EEZ.........................................148
V. Settlement of Disputes ......................149
A. Peaceful Settlement of Disputes ..149
149
C. Jurisdiction of Court or Tribunal....149
Tribunal for the Law of the Sea (ITLOS)149
E. Jurisdiction of ITLOS ....................149
F.
Applicable Laws in Settlement of
Disputes by the ITLOS ..........................149
International Law..........................................150
I.
Jus Ad Bellum v Jus in Bello .............150
II.
Rules on the Use of Force ................150
A. General Rule.................................150
B. Exceptions ....................................150
Chapter IX. International Human Rights Law
.......................................................................152
I.
Definition of Human Rights ...............152
II.
Classification of Human Rights .........152
III. Internationalization of Human Rights
152
IV. Sources of Human Rights .................152
A. Convention....................................152
B. Custom..........................................152
V. International Bill of Human Rights.....153
A. Universal Declaration of Human
Rights (UDHR).......................................153
Political Rights (ICCPR) ........................153
Social and Cultural Rights (ICESCR) ....154
D. Common Provisions in the ICCPR
and the ICESCR and differences ..........154
VI. Specific Norms in Human Rights ......154
A. Genocide.......................................154
B. Torture ..........................................155
C. Rights of the Child ........................155
D. Law against Discrimination ...........155
E. Refugee Law.................................156
Chapter X. International Humanitarian Law
.......................................................................157
I.
Definition of Armed Conflict ............157
II.
Fundamental Principles of IHL..........157
III. Application of IHL ..............................158
IV. The Four Geneva Conventions and the
Two Additional Protocols ...........................158
Conventions
and the Two Additional
Protocols ....................................................158
VI. Definition of Concepts and Phrases..159
A. Combatants...................................159
TABLE of CONTENTS
B. Hors de combat ............................ 159

C. Protected Persons ........................ 159
D. Martens clause ............................. 159
E. Military Objective .......................... 159
F.
Belligerency Status ....................... 159
VII.
IHL
and
Weapons
of
Mass
Destruction................................................. 160
VIII.
IHL and Non-International Armed
Conflict 160
A. Common Article 3 and Protocol II. 160
B. Control-of-Territory ....................... 161
C. War of National Liberation ............ 161
IX. Neutrality ........................................... 161
X. Protective Emblems .......................... 161
A. Who May Use ............................... 162
B. Misuse of the Emblem .................. 162
C. Punishment................................... 162
XI. The International Criminal Court ....... 162
162
163
C. Sources of Law ............................. 163
D. Other Key Concepts ..................... 163
E. Landmark Cases .......................... 163
Chapter XI. Diplomatic Intercourse ............ 165
I.
Agents of Diplomatic Intercourse...... 165
A. Head of State................................ 165
B. The Foreign Office........................ 165
C. The Diplomatic Corps ................... 165
II.
Functions and Duties ........................ 165
III. Diplomatic Immunities and Privileges165
A. Personal Inviolability..................... 165
166
C. Right of Official Communication ... 166
D. Immunity from Local Jurisdiction .. 166
Duties .................................................... 166
IV. Consular Relations............................ 167
A. Ranks............................................ 167
B. Necessary Documents ................. 167
C. Immunities and Privileges............. 167
Chapter XII. Recent International Law Issues
in Philippine Law.......................................... 168
I.
Agreement ................................................. 168
II.
The Constitutionality of the Baselines
Law 169
AS A FORM OF TORTURE ...................... 169
....................................................................... 171
Appendix 2 - Continental Shelf and the
Maritime Zones............................................. 171
123
Prof. Jay Batongbacal

Faculty Editor
Ma. Florence Therese Martirez

Maricris Real
Lead Writers
POLITICAL LAW
Jennifer Go
Subject Head
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Jerome Leccio
Committee Heads

Kae Guerrero
DESIGN & LAYOUT

Pat Hernandez
Malds Menzon
Viktor Fontanilla
Rania Joya
LECTURES COMMITTEE
Micha Arias
Cams Maranan
Anj Sandalo
Committee Heads
Volunteers

Da Salamat
LOGISTICS
Cha Mendoza
Jill Hernandez
Head
Members
Chapter I. Preliminaries
I. PUBLIC INTERNATIONAL LAW
II. CONTRA-DISTINCTIONS
III. RELATIONSHIP
BETWEEN
PIL
MUNICIPAL LAW
A. MONIST VIEW
B. DUALIST VIEW
C. MONIST-NATURALIST VIEW
D. COORDINATIONIST VIEW
IV. THE PHILIPPINE DOCTRINE
A. DOCTRINE OF INCORPORATION
B. DOCTRINE OF TRANSFORMATION
I.
AND
Public International Law (PIL)
Traditionally, PIL is understood to be the body of

principles, norms and processes which regulates
the relations of states and other international
persons, and governs their conduct affecting the
interests of States (MAGALLONA).
Other jurists, however, have defined PIL as "a
continuing process of authoritative decisions by
authorized decision-makers, when authority and
power coincide (HIGGINS).
It is not just the reference to the trend of past
decisions which are termed 'rules' but a matrix of
norms and process that come into being through
the interaction of authority and international
reality (MAGALLONA).
II. Contra-Distinctions
Municipal Law deals with the conduct or status
of individuals, corporations, and other private
entities within states. PIL may be distinguished
therefrom in that it prescribes rules and
processes that govern the relations of states
with each other, and the rights of other entities
insofar as they implicate the community of states
(note: whom it governs). (vs. PIL, Asked 1 time
in the Bar))
Private International Law is that part of the
laws of each State (conflict of laws rules) which
determines whether in dealing with a factual
situation involving a foreign element, the law or
judgment of some other State will be recognized
or applied in the forum (SALONGA). Unlike PIL
which is international in character and origin,
private international law is national or municipal
in character (note: character of norms being
applied). It even involves the recognition and
enforcement of a foreign judgment from another
jurisdiction.
124
PUBLIC INTERNATIONAL LAW TEAM
Chapter I. PRELIMINARIES
PIL
and
Although distinct, PIL and Municipal are

interrelated. Below are the four theoretical
views on how they are related (CARTER AND
TRIMBLE):
A. Monist View
International and municipal legal systems are
fundamentally part of one legal order. This view
considers international law to be superior,
with municipal law being a mere subset of
international law.
Thus, international norms are applicable within
municipal systemseven without some positive
act of the State.
B. Dualist View
International law and municipal law are separate
systems.
Only those problems affecting international
relations are within the scope of international
law.
Thus, before an international norm can have an
effect within a municipal legal system, that norm
must be transformed, or adopted into the
municipal system through a positive act by a
State
organ.
(Exception:
Customary
International Law and General Principles of
International Law)
C. Monist-Naturalist View
PIL is superior to municipal law, and that both
systems are but a part of a higher system of
natural law.
D. Coordinationist View
International law and municipal law operate in
different spheres, but municipal law is
(generally) obliged to be in conformity with
international law.
IV. The Philippine Doctrine

A. Doctrine of Incorporation
The Philippines adopts the generally accepted
principles of international law as part of the law
of the land (Art.II, Sec.2, Constitution).
These generally accepted principles of
international law refer to norms that are binding
upon all states (international customs and
general principles of international law).
Though these principles do not become part of
the Constitution, they nonetheless become part
of the Philippine legal system, and may be
subject to judicial notice as law (MAGALLONA).
Secretary of Justice vs. Lantion, (2000)
Under the doctrine of incorporation, rules of

international law form part of the law of the land,
and no further legislative action is needed to
make such rules applicable in the domestic
sphere.
B. Doctrine of Transformation
The rule is different with respect to treaties.
They have to be transformed in order to be part
of Philippine law.
A treaty is transformed when a treaty is ratified
after it has been concurred in by the Senate
(Art.VII, Sec.21, Constitution). After ratification,
a treaty shall be deemed as if legislated by
our Legislature.
Note: Executive Agreements shall be effective in
the Philippines after they are ratified by the Chief
Executive, without need for Senate concurrence
or ratification (BERNAS).
125
III. Relationship
between
Municipal Law
Chapter I. PRELIMINARIES
Chapter II. ACTORS of INTERNATIONAL LAW
entering into legal relations with other

states(Montevideo Convention on the Rights and
Duties of States, Art.1 [1933]).
Chapter II. Actors of International Law

SUBJECTS
AND
OBJECTS
INTERNATIONAL LAW
A. STATES
1. REQUISITE ELEMENTS
i. PEOPLE
ii. TERRITORY
iii. GOVERNMENT
iv. INDEPENDENCE OR
SOVEREIGNTY
2. RECOGNITION
B.INDIVIDUALS
C.INTERNATIONAL ORGANIZATIONS
OF
1. Requisite Elements
i.
ii.
I.

Law
Subjects of International Law refer to entities:

capable of possessing international rights
and duties; and
having the capacity to maintain these rights
by bringing international claims (Reparations
for Injuries Advisory Opinion, 1949).
A State is a quintessential example of a subject
of international law.
By contrast, an Object of International Law is
the person or thing in respect of which rights are
held and obligations are assumed by the
subject. It is, therefore, not directly governed by
the rules of international law. Its rights may be
asserted and its responsibilities imposed
indirectly, through the instrumentality of an
intermediate agency (the subject). For example,
individuals are objects in respect of which
human rights obligations are imposed upon
States. When an individuals human rights is
violated by another State, the aggrieved
persons State of nationality may espouse his
claim and invoke the erring states responsibility
(see: Discussion on Diplomatic Protection in
Chapter 5, Part V).
Notwithstanding this distinction, both subjects
and objects are considered actors in
international law. They are:
A. States
States remain the most important actors in
international law.
A state is defined as a group of people, more or
less numerous, permanently living in a definite
territory, under an independent government
organized for political ends and capable of
People
The term people refers to an aggregate of
individuals of both sexes who live together
as a community despite racial or cultural
differences. Although no minimum number is
provided, they should be permanent, and
sufficient to maintain and perpetuate
themselves.
Territory
A state must exercise control over a certain
area. It need not be exactly defined by
metes and bounds, so long as there exists a
reasonable certainty of identifying it. No
minimum land area is required.
iii. Government
Government is the physical manifestation of
a state. Government must be organized,
exercising control over and capable of
maintaining law and order within its territory.
Note: Under the Rules on Succession of
States,
even
changes
of
entire
governments do not affect the identity
and personality of the state. Once
statehood is established, neither invasion
nor disorder alone can remove its character
as a state (BROWLIE).
a. Effective Government
Although an effective government is the
best evidence of the existence of a
State, an effective government is not
always strictly necessary (BROWLIE).
The requirement of effective government
is not strictly applied when the State,
already long-existing, happens to
undergo a period of civil strife or internal
chaos due to natural disaster or
invasion.
Thus, with the collapse of their
governments, Afghanistan and Somalia
were deemed failed states, but they
remained states.
Further, some states were deemed
states even before their governments
were "very well organized" (ex. Poland,
Burundi, and Rwanda).
126
I.
b. Governments de facto & de jure

A government de jureis a government
from law, that is, one with a color of
legitimacy.
A government de facto is one that
governs without a mandate of law. So
long as it is in place, it may command
obedience from the inhabitants of the
occupied area.
The practice of states has been to ignore

so far as the issue of statehood is
concernedvarious forms of political and
emotional blackmail and interference
directed against the weaker members of the
community."
Thus, it is sufficient for a State to possess
external appearanceof capacity to enter into
international relations (BROWNLIE).
The de facto ruler may suspend laws

and enact new ones.
2. Recognition
The establishment of a de facto

government does not by itself abolish all
lawsand structures established by
thedeposedgovernment.
Act by which a state acknowledges the

existence of another state, government or
belligerent community and indicates willingness
to deal with the entity as such under
international law.
Only laws of political nature affecting

political relations are suspended ipso
facto; laws that enforce public order and
regulate social and commercial life
remain in effect unless they are changed
by the de facto sovereign.
Conversely, the re-establishment of the
de jure government does not void the
acts of the preceding de facto
government.
Three kinds of de facto government:
(1) Government de facto in the strict
legal sense is that which usurps
either by force or the will of the
majority the legal government and
maintains and control against it;
(2) Government by paramount force is
that which results from the
occupation of a state or a part
thereof by invading forces in time of
war; and
(3) Government established as an
independent
government
by
inhabitants of a country who rise in
insurrection against the parent state.
iv. Independence or Sovereignty
Refers to the capacity to enter into relations
with other states. A state must be free from
outside control in conducting foreign and
internal affairs.
It has, however, been advanced that the fact
that a State may be acting under the
direction of another State is not of concern
to international law (SALONGA).
Declaratory View vs.

(Asked 1 time in the Bar).
Constitutive
View
The Declaratory View (Prevailing View) posits

that recognition is a mere declaration or
acknowledgement of an existing state of law
and fact, legal personality having been
previously conferred by operation of law
(BROWNLIE).
The Constitutive View (Minority View) posits
that the political act of recognition is a
precondition to the existence of legal rights
of a state. In its logical extreme, this is to say
that the very personality of a state depends on
the political
decision
of
other states
(BROWNLIE).
Important Doctrines:
Wilson/Tobar Doctrine(Asked 1 time in the
Bar) precludes recognition of government
established by revolution, civil war, coup
detat or other forms of internal violence
until freely elected representatives of the
people have organized a constitutional
government (US President Woodrow
Wilson, 1913 and Ecuadorian FM, 1907)
Stimson Doctine precludes recognition of
any government established as a result of
external aggression (US Sec. of State Henry
Stimson, 1932)
Estrada Doctrine(Asked 1 time in the Bar)
dealing or not dealing with the government
established through a political upheaval is
not a judgment on the legitimacy of the said
government (Mexican Minister Genaro
Estrada, 1930)
127
B. Individuals
While States are have traditionally been deemed
to be subject of international law, individuals
have likewise become in some degree subjects
of that law. (This will be discussed further in the
Chapter on Human Rights)
C. International Organizations (IO)

The status and powers of an IO is determined by
agreement and not by general or customary
international law.
IOs are considered subjects of international law
if their legal personality is established by
their constituent instrument (charter).
Further, its constituent rights and duties, or
capacities and immunities, are limited to those
set forth in the treaty creating the international
organization (MAGALLONA).
1. Preconditions
Personality of IO
for
International
I.
It must constitute a permanent

association of states, with lawful
objects, equipped with organs;
II. There must be a distinction, in terms of
legal powers and purposes, between
the organization [and] its member
states; and
III. It must have legal powers that it may
exercise on the internationalplane and
not solely within the national systems of
one or more states.
2. Capacity to Bring a Claim for Reparation
An IO such as the United Nations (UN)

must be deemed to have such powers
which, though not expressly granted in
its Charter, are conferred upon it by
necessary implication as being essential
to the performance of its duties.
Thus, though the UN Charter did not

expressly clothe the UN with the
capacity to bring an international claim
for reparations, the UN nevertheless
possessed
functional
personality
(Reparations for Injuries Advisory
Opinion, 147).
IOs are deemed to have powers not

expressly granted in their charters
where these unstated powers are either
implicitly bestowed in their charters
or
necessary
to
effect
powers
expressly granted.
128
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 from
passing upon their legality in its own court.
Chapter III. The NORMS of INTERNATIONAL LAW
Chapter III. The Norms of International

Law
I.
II.
CONCEPTS
SOURCES OF INTERNATIONAL LAW
A. TREATY AS SOURCE OF LAW
B. CUSTOMARY INTERNATIONAL LAW
1. ELEMENTS
2. SCOPE
3. DUALITY OF NORMS
C. GENERAL PRINCIPLE OF LAW
D. SUBSIDIARY
SOURCE:
JUDICIAL
DECISIONS
E. SUBSIDIARY SOURCE: PUBLICISTS
F. OTHER SOURCES
III. STATUS OF NORMS
A. JUS COGENS OR PEREMPTORY NORMS
B. ERGA OMNES NORMS
I.
Concepts
Formal Sources vs. Material Sources

Formal sources consist of the methods and
procedures for the creation of rules of
general application which are legally binding
upon States. Material sources, upon the
other hand, are the substantive evidence of
the existence of the norms.
A. Treaty as Source of Law

A 'treaty' means an international agreement
concluded between States in written form and
governed by international law, whether
embodied in a single instrument or in two or
more related instruments and whatever its
particular
designation"
(Art.2(1),
Vienna
Convention on the Law of Treaties (VCLOT))
Material sources supply the substance of

the rule, while formal sources confer upon it
the force of law.
Lex lata vs. Lex ferenda

Lex lata what the law is
Lex ferenda what jurists think the law
should be or will become
II. Sources of International Law

Primary Sources:
International Conventions, whether general
or particular, establishing rules expressly
recognized by the contracting states
(Treaties);
International Custom, as evidence of a
general custom accepted as law;
General Principles of Law recognized by
civilized nations;
Subsidiary Sources:
Judicial Decisions; and
Teachings of the most highly qualified
publicists of the various nations (Art. 38, ICJ
Statute).
Treaties,
Customs
and
General
Principles (Primary Sources) create law,
while
court
decisions
publicists
teachings constitute evidence of what is
the law.
With respect to the three primary
sources, the order the enumeration
does not provide a hierarchy in all
cases.
Thus, although treaties are mentioned
first, they are not ipso facto superior to
customs and general principles.
Under the VCLOT, the term treaty

includes all agreements between states,
regardless of how they are called. Thus, for
purposes of international law, treaties,
executive agreements, exchanges of notes,
etc. are all treaties.
Note, however, that Philippine law makes a
distinction between treaties and executive
agreements.
Although they are equally
binding,
only
treaties
require
the
concurrence of the Senate to be
effective.(Art. 7, Sec. 21, 1987 Constitution)
A state party to a treaty is bound to comply
with the obligations it assumed under such
treaty
in
good
faith
[Pacta
sunt
servanda](Art.26, VCLOT).
Treaty Obligation is based on consent. No
state may be bound by a treaty obligation
unless it has so consented [Pacta tertiis nec
nocet nec prosunt ](Art. 34, VCLOT).
As a general rule, treaties do not bind nonparties to the treaty
Treaties shall be further discussed on the

Chapter on the Law of Treaties.
B. Customary International Law

Norms of international law are those that result
from a general and consistent practiceof states
which they follow under a sense of legal
obligation. For custom to exist, it requires the
concurrence of 2 elements:
(1) State Practice and
(2) Opinio juris.
129
Unlike treaties, customary norms are

legally binding upon states regardless of
whether they consent, subject to the
Persistent Objector rule.
1. Elements
i.
State Practice
For custom to exist, the customary practice
must be both consistent and general.
(1) Consistency
requires
substantial
uniformity, and not necessarily complete
uniformity in practice.
(2) Generality likewise does not require
universality.
The absence of protest could be considered
evidence of the binding nature of customary
practice (AKEHURST).
Acts Evidencing State Practice (HARRIS):

a. Diplomatic correspondence
b. Policy statements
c. Press releases
d. Opinions of official legal advisers
e. Official manuals on legal decisions
(executive
decisions
and
practices;
government comments on drafts by the ILC)
f. International and national judicial decisions
g. Recitals in treaties and international
instruments
h. Practice of international organs
UN
General
Assembly
Resolutionsare
generally just recommendations. They have no
binding effect under the Charter, save in limited
fields like budgetary concerns. However,such
resolutions may nonetheless be an evidence of
state practice that is relevant in the development
of custom.
ii. Opinio juris sive necessitatis
Refers to the belief on the part of States
that a particular practice is required by
law. It is the existence of opinio juris that
distinguishes binding custom from mere
usage, from comity, and from courtesy or
protocol.
Note: It is not a maxim, it is an element
required in order for custom to come into
fruition.
2. Scope
Custom may be:
General
binding upon all or most
statesor
Particular binding between only two or
among a few states.
In cases it has decided, the ICJ has indeed
recognized the possibility of regional custom
(Asylum Case) and of bilateral custom (Right of
Passage over Indian Territory Case).
Norms
or
Principles
of
Customary
International Lawas Identified by the
Philippine Supreme Court as forming part of
Philippine Law
1. Rules and principles of land warfare and of
humanitarian law under the Hague
Convention 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 sovereign
immunity (Sanders v. Veridiano, 1988)
5. The principle in diplomatic law that the
receiving State has the special duty to
protect the premises of the diplomatic
mission of the sending State (Reyes v.
Bagatsing, 1983)
6. The right of a citizen to return to his own
country (Marcos v. Manglapus, 1989)
7. The principle that a foreign army allowed to
march through friendly country or to be
stationed in it, by permission of its
government or sovereign, is exempt from
criminal jurisdiction of the place. (Raquiza
v. Bradford, 1945)
8. The principle that judicial acts not of a
political complexion of a de facto
government established by the military
occupant in an enemy territory, is valid
under international law. (Montebon v.
Director of Prisons, 1947)
9. The principle that private property seized
and used by the enemy in times of war
under circumstances not constituting valid
requisition does not become enemy property
and its private ownership is retained, the
enemy having acquired only its temporary
use. (Noceda v. Escobar, 1950)
10. The principle that a State has the right to
protect itself and its revenues, a right not
limited to its own territory but extending to
the high seas (Asaali v. Commissioner,
1968)
130
The Persistent Objector.When a State has

continuously objected to a new customary norm
at the time when it is yet in the process of
formation, by such persistent objection the norm
will not be applicable as against that State.
3. Duality of Norms
It is possible for a norm of international law to
exist both as a customary norm and a
conventional norm(ex. The Prohibition against
the Use of Force). Such norms are said to be of
dual character.
Norms of dual character come into being
through any of the following ways:
a. A treaty provision may simply restate a
customary norm (as is true of many of the
provisions in the VCLOT;
b. A treaty provision may constitute evidence
of custom;
c. A treaty provision may crystallize into a
customary norm.
For a treaty provision to crystallize into

custom, the provision must be normcreating. The treaty must be law-making,
creating legal obligations which are not
dissolved by their fulfilment.
The number of parties, the explicit
acceptance of rules of law, and, in some
cases, the declaratory nature of the
provisions produce a strong law-creating
effect at least as great as the general
practice considered sufficient to support a
customary rule (BROWNLIE).
The customary norm retains a separate
identity even if its content is identical with
that of a treaty norm. Thus, a state that
cannot hold a state responsibility for a
breach of a treaty obligation can still hold the
erring state responsible for the breach of the
identical customary norm (See Nicaragua
vs. US Case).
Examples:
1. Principles in Roman Law estoppel, res
judicata, res inter alios acta, prescription.
When Thailand did not object to, and has in
fact benefited from, the Treaty of 1904 for 50
years, it is deemed to have accepted said
treaty. It is thereby precluded from
questioning Annex I thereof, which showed
that the Temple of Preah Vihear was within
Cambodian territory (Temple of Preah
Vihear Case).
2. Procedural
Rules
the
use
of
circumstantial evidence, hearsay evidence
(press reports).
Press reports can be used to corroborate
the existence of a fact; and, when they
demonstrate matters of public knowledge
which have received extensive press
coverage, they can be used to prove a fact
to the satisfaction of the court(Nicaragua vs.
US Case, 62-63).
Circumstantial evidence is admitted as
indirect evidence in all systems of law and
its use is recognized by international
decisions. Such circumstantial evidence,
however, must consist of a series of facts or
events
that
lead
to
a
single
conclusion.(Corfu Channel Case)
3. Substantive duty to make reparations,
principle of reciprocity, pacta sunt servanda,
separate corporate personality (Barcelona
Traction Case).
Every
breach
of
an
engagement
(international
obligation)
entails
the
obligation to make reparation. The amount
of reparation required is that amount which
is necessary to bring the injured party
back to the situation had the wrong not
occurred
[The
Standard
of
Full
Reparations] (Chorzow Factory Case).
C. General Principle of Law

Refer to those general principles in municipal
law (particularly those of private law) that may
be appropriated to apply to the relations of
states (OPPENHEIM).
Unlike custom, it does not require to be
supported by state practice that is consistent
and virtually uniform; it being sufficient that such
principle is found in a number of legal
jurisdictions (ROQUE).
4. Jurisdictional Principles The power of a

tribunal to determine the extent of its own
jurisdiction (competence de la competence).
Note: International tribunals have not been
consistent in their manner of determining
whether a principle in municipal law
constitutes a general principle. In some
instances they have examined different legal
systems; in others, they merely declared a
principle in municipal law as constituting a
general principle of international law.
131
a. Preliminary note: International law does not

follow the rule on stare decisis. Art. 59 of the
ICJ State (which Art.38(1)(d) makes
reference to) expressly limits the effect of a
decision only to the parties to the case.
b. Be that as it may, decisions of international
tribunals exercise considerable influence as
impartial and well-considered statements of
the law by (qualified) jurists made in light of
actual problems. Decisions of international
tribunals constitute evidence of the state of
the law (BROWLIE).
E. Subsidiary Source: Publicists

Writings of highly qualified publicists likewise
constitute evidence the state of the law.
The problem, though, is that some publicists
may be expressing not what the law is (lex lata),
but what they think the law should be or will be
(lex ferenda).
F. Other Sources
a. Ex Aequo et Bono the court may apply
this standard of what is equitable and good
to decide a case when the parties to the
dispute so agree.
b. Equity refers to the application of
standards of justice that are not contained in
the letter of existing law. It has often been
applied in cases involving territorial disputes
and maritime delimitations.
c. Unilateral Declarations declarations
made by way of unilateral acts, concerning
legal or factual situations, may have the
effect of creating legal obligations.
Nothing in the nature of a quid pro quo,
nor any subsequent acceptance, nor even
any reaction from other states is required for
such declaration to take effect.
Verily, unilateral declarations bind the
State that makes them.
In the Eastern Greenland case, the ICJ held that
Denmark not only had a superior claim over the
contested territory, but that Norway was further
bound by the Ihlen Declaration not to oppose
Denmarks claim. The Ihlen Declaration is a
statement made by the Norwegian Foreign
Minister, Nils Claus Ihlen, on the topic of
Denmark's sovereignty over Greenland, which
Mr. Ihlen declared verbally to the Danish
Minister that "...the plans of the Royal [Danish]
Government respecting Danish sovereignty over

the whole of Greenland would be met with no
difficulties on the part of Norway."
Also in the Nuclear Test cases, France declared
that it would cease atmospheric nuclear tests.
This signaled that there had ceased to be a
dispute, since it had bound itself to do what
Australia and New Zealand wanted.
III. Status of Norms

A. Jus Cogens or Peremptory Norms
Refer to norms accepted and recognized by the
international community of States as a norm
from which no derogation is permitted and
which can be modified only by a subsequent
norm of such character (Art.53, VCLOT).
When a treaty provision violates jus cogens
norms, it would be void; and a subsisting treaty
provision shall be voided by the emergence of a
new jus cogens norm.
B. Erga Omnes Norms

International obligations of such character and
importance that:
their violation by any state allows any other
state to invoke the violator's liability,
even if only one state or only a few incurred
direct material damage.
It usually has to do with issues on standing.
In the Barcelona Traction Light and Power Co.

Case, the grant of standing to sue because of
violations of an erga omnes obligation is
premised on the idea that the maintenance of
some norms are of interest to the entire
world community, their violation being an injury
to the interest, not only of the state directly
offended, but of all states (i.e. outlawing acts of
genocide or aggression).
132
Chapter IV. The LAW of TREATIES
I. DEFINITION
II. REQUISITES FOR VALIDITY
III. THE TREATY-MAKING PROCESS
A. NEGOTIATION
B. ADOPTION
C. CONSENT
1. SIGNATURE
2. RATIFICATION
D. EXCHANGE OF INSTRUMENTS OF
RATIFICATION
E. REGISTRATION WITH THE UN
IV. PHILIPPINE LAW ON TREATIES
V. AMENDMENT OR MODIFICATION OF TREATY
VI. RESERVATIONS
VII. INVALID TREATIES
VIII. GROUNDS FOR TERMINATION
I.
Definition
A 'treaty' is:
an international agreement
concluded between States
in written form and
governed by international law,
whether embodied in a single instrument or
in two or more related instruments and
whatever its particular designation(Art.2(1),
VCLOT)
Under the VCLOT, the term treaty includes

all agreements between states, regardless
of how they are called. Thus, for purposes
of international law, treaties, executive
agreements, exchanges of notes, etc. are all
treaties. Note, however, that Philippine law
makes a distinction between treaties and
executive agreements.
Both are equally
binding, but only treaties require the
concurrence of the Senate to be effective.
Subject
Matter
Ratification
Treaty
Executive
Agreements
1. Political
Issues
2. Changes in
national
policy
3. Involves
international
agreements
of a
permanent
character
Requires
ratification
by
the 2/3 of the
Senate to be
valid
and
effective
(Art.
VII, Sec. 21)
1. Transitory
effectivity
2. Adjusts details to
carry out wellestablished
national policies
and traditions
3. Temporary
4. Implements
treaties, statutes,
policies
Does not require
concurrence
by
Senate to be binding
II. Requisites for Validity

A. Treaty Making Capacity
Possessed by all states as an attribute of

sovereignty. International organizations also
possess treaty-making capacity, although
limited by the organizations purpose.
B. Competence
of
Representative/Organ
Making
Treaty
the
the
Generally exercised by the head of state.
Full Powers refers to the authority of a person

to sign a treaty or convention on behalf of a
state.
Plenipotentiary - Persons other than the head
of state, head of government or foreign minister
must produce such instrument in order to sign a
treaty binding their government. Such a person
is called a plenipotentiary.
C. Parties Must Freely Give Consent
If consent was given erroneously, or it was

induced by fraud, the treaty shall be
voidable.

Lawful
Concerned
III. The Treaty-Making Process

A. Negotiation
State representatives discuss the terms and
provisions of the treaty.
B. Adoption (Article 9, VCLOT)

It means that the form and content have been
settled by the negotiating States. It is
preparatory to the authentication of the text of
the treaty and to its signature.
133
Chapter IV. The Law of Treaties

VCLOT)
It means that the stage where the definitive text
of the treaty is established as the correct and
authentic one.
D. Expression of Consent to be bound by

the Treaty (Article 11, VCLOT)
Consent to be bound by the terms of a treaty
may be expressed through:
1. Signature, when the negotiator is authorized
to sign the treaty;
Art.12(1), VCLOT.Signature alone would be
sufficient to bind the state to the obligations
under the 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 that effect; or
(c) if the State can be shown to have had the
intention to be bound by the signature (look
at full powers of its representative)
2. Ratification, the formal consent to the treaty
given by the Head of State, sometimes in
conjunction with the legislature; or
3.
4.
5.
6.
7.
Under international law, ratification is

necessary 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
that
ratification should be required;
(c) the representative of the State has
signed the treaty subject to ratification
(Art.14(1), VCLOT), that is, when the
intent was to make it subject to
ratification.
Exchange of instruments Constituting the
Treaty
Acceptance
Approval
Accession
- the method by which a State, under
certain conditions, becomes a party to a
treaty of which it is not a signatory and in
the negotiation of which it did not take
part.
By any other means agreed by the parties
Doctrine of Transformation.
In Philippine Law, treaties have to be
transformedin order to be part of Philippine law.
A treaty is transformed when a treaty is

ratified after it has been concurred in by the
Senate (Art.VII, Sec.21, Constitution).
After ratification, a treaty shall be deemed as
if legislated by our Legislature.
134
E. Registration with the UN
IV. Philippine Law

In the Philippines, the negotiation of treaties and
their ratification are executive functions,
subject to concurrence of the Senate. Under
Art.VII,
Sec.21(Treaty
Clause)
of
the
Constitution,
treaties
must
receive
the
concurrence of the Senate before they may be
effective.

General Rule: Consent of all parties is required.
Exception:If the treaty itself so allows, two
States may modify a provision only insofar as
their relationship inter se.
VI. Reservations
Definition:A unilateral statement made by a
state upon entering a treaty whereby it purports
to exclude or modify the legal effect of certain
provision/s of the treaty in their application to the
reserving state (Art.19. VCLOT).
Exceptions:
A reservation shall not operate to modify or
exclude the provisions of a treaty:
1. Where the treaty expressly prohibits
reservations in general;
2. Where the treaty expressly prohibits that
specific reservation being made; or
3. Where the reservation is incompatible with
treatys object and purpose (Reservation to
the
Genocide
Conventions
Advisory
Opinion).
VII. Invalid Treaties

1. If the treaty violates a jus cogens norm of
international law (void);
2. If the conclusion of a treaty is procured by
threat or use of force (void);
3. Error of fact, provided that such fact formed
an essential basis of a states consent to be
bound;
4. If the representative of a state was corrupted
to consent by another negotiating state;
5. If consent was obtained through fraudulent
conduct of another negotiating state;
6. If the representative consented in violation
of specific restrictions on authority, provided:
the restriction was notified to the other
negotiating States
prior to the representative expressing
such consent;
7. If consent was given in violation of
provisions of internal law regarding
competence to conclude treaties that is
manifest and of fundamental importance.
VIII.
Grounds for Termination
1. Expiration of the term, or withdrawal of a

party in accordance with the treaty;
2. Extinction of a party to the treaty, when the
treaty rights and obligations would not
devolve upon the successor-state;
3. Mutual agreement of parties;
4. Denunciation or desistance by a party;
5. Supervening impossibility of performance;
6. Conclusion of a subsequent inconsistent
treaty;
7. Loss of subject matter;
8. Material breach or violation of 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 fundamental
change of circumstance occurs such that the
foundation upon which its consent to be bound
initially rested has disappeared.
Requisites:
i. Change is so substantial that the
foundation of the treaty has altogether
disappeared
ii. Change
was
unforeseen
or
unforeseeable at the time of the treatys
perfection
iii. Change was not caused by the party
invoking the doctrine
iv. Doctrine
was
invoked
within
a
135
La Chemise Lacoste v. Fernandez: Lacoste, a

French corporation, sued local counterfeiters
before Philippine courts. When the counterfeiters
challenged its legal personality to sue before
Philippine courts, the Court held that the
Philippines has ratified international conventions
for the protection of intellectual property, and it
would frustrate the object of these conventions if
Lacoste is barred from filing its claims directly in
Philippine courts.
reasonable time
v. Treatys duration is indefinite
vi. Doctrine cannot operate retroactively (it
must not adversely affect provisions
which have already been complied with
prior to the vital change)
136
10. Outbreak of war between the parties, unless

the treaty relates to the conduct of war (ex.
The Four Geneva Conventions).
11. Severance of diplomatic relations (if such
relationship is indispensable for the treatys
application).
12. Jus Cogens Application: Emergence of a
new
peremptory
norm
of
general
international law which renders void any
existing, conflicting treaty.
I.
BREACH
A. IS FAULT OR MALICE NECESSARY?
B. THE STANDARD OF DILIGENCE
II. ATTRIBUTION
A. DIRECT AND INDIRECT ATTRIBUTION
B. CONDUCT ATTRIBUTABLE TO THE
STATE
III. CONSEQUENCES
OF
STATE
RESPONSIBILITY
A. DUTY TO MAKE REPARATION
B. FORMS OF REPARATION
1. RESTITUTION
2. COMPENSATION
3. SATISFACTION
4. DECLARATORY RELIEF
IV. CIRCUMSTANCES
PRECLUDING
WRONGFULNESS
V. DIPLOMATIC PROTECTION (ESPOUSAL OF
CLAIM)
A. MATERIAL DATES
B. EXHAUSTION OF LOCAL REMEDIES
Every internationally wrongful act of a State

entails the international responsibility of that
State.
Whether an act is international wrongful or not
depends upon international law, and its
wrongfulness is not affected by a contrary
characterization in domestic law.
Requisites to Engage the Responsibility of a
State
A binding obligation and a failure to fulfill
that obligation (breach)
The act or omission is attributable to the she
state
I.
Breach
A. Is Fault or Malice Necessary?
The issue of whether the failure to fulfill a

binding obligation must be coupled with fault
or malice is a contested area in international
law.
Those who subscribe to the Doctrine or
Objective (or Strict) Liability hold that fault
or malice is unnecessary to engage the
responsibility of the state, it being sufficient
that there is a causal connection between
the act done and the injury suffered (or
how remote the injury suffered is from the
act perpetrated).
Though the general rule for determining liability

is objective responsibility, the theory of culpa
may be relevant in certain special situations,
such as:
i.
When the breach results from acts of

individuals not employed by the state or
from the activities of licensees or
trespassers on its territory;
ii. When a state engages in lawful activities, in
which case responsibility may result from
culpa in executing these lawful activities;
iii. When determining the amount of the
damages;
iv. When due diligence or liability for culpa is
stipulated in a treaty.
B. The Standard of Diligence
A state breaches its international obligation

if it fails to exercise the due diligence which
could reasonably have prevented the
conduct that caused the injury.
Where due diligence is relevant, is a states

ability to fulfill an obligation relevant?
The Relativist view holds that circumstances

affecting a States ability to perform its duties
would be relevant in determining the degree of
diligence that must characterize its performance
of its obligations. Thus, a State breaches its
obligation only if:
i. It is aware of its obligation;
ii. It had the means to fulfill them;
iii. Yet it failed to do so (Tehran Hostages
Case).
The Objective view holds that the States ability
to fulfill is irrelevant.
II. Attribution
A State becomes liable for the acts of
individuals,
(1) when they are State organs or agent acting
under color of authority.
(2) If they are not officers, the State is
nonetheless liable when the state adopts
the acts of individuals or
(3) when it is negligent in preventing or in
punishing the acts.
EXAMPLE: When a State is bound by a duty to
prosecute, or has an international obligation to
exert efforts to prevent certain acts, and the
State maliciously or negligently fails to do so.
137
Chapter V. International Responsibility
Chapter V. INTERNATIONAL RESPONSIBILITY
A. Direct and Indirect Attribution
B. Conduct Attributable to the State

1. Conduct of State organs (Art.4, Articles
of State Responsibility (ASR))
Refers to any person or entity that is
considered as such under its domestic
law.
The conduct of a State organ is an act of
that State, whatever the function of that
organ, whatever position it holds in the
organization of the State, whether it is
the organ of the central government or a
local unit of the State.
2. Conduct of persons or entities not being
state organs but exercising elements of
government
authority
(Para-Statal
Entities) (Art.5, ASR)
3. Conduct of organs placed at the disposal
of a State by another State (Art.6, ASR)
4. Ultra vires conduct (Art.7, ASR)
The acts of public officials, when done
withapparent authority or in their official
capacity, are imputable to their State,
even when these acts are beyond their
authority or contravene superior orders
5. Conduct directed or controlled by a State
(Art.8, ASR)
6. Conduct carried out in the absence or
default of official authorities (Levee en
masse) (Art.9, ASR)
7. Conduct of an insurrectional movement
that becomes the new government of the
State (Art.10, ASR)
9. Failure to Exercise Due Diligence

A State becomes indirectly responsible
when it has an international obligation to
prevent the internationally wrongful acts
of individuals under its control, and the
State maliciously or negligently fails to
do so.
III. Consequences
Responsibility
State
The responsible State is under the obligation:

1. To cease the act, if it is continuing; and
2. To offer appropriate assurances and
guarantees of non-repetition(Art.30, ASR).
A. Duty to Make Reparation

Every breach on an international obligation
involves the duty to make reparations. The
responsible State is under the obligation to make
full reparation for the injury cause by the
internationally wrongful act. Injury includes any
damage, whether material or moral.
NOTE: While a breach gives rise to state
responsibility, the duty to make reparations is
the consequence of state responsibility.
B. Forms of Reparation
Full reparation for the injury caused by the

internationally wrongful act shall take the
form of restitution, compensation and
satisfaction, either singly or in combination
(Art.34, ASR).
1. Restitution (Art.35, ASR)
Wiping out all the consequences of the

breach.
Re-establishing the situation which
would probably have existed had
the
wrongful
act
not
been
committed.
Restitution could take the form of:

(i) Legal Restitution the declaration
that an offending treaty, law,
executive act, or other, is invalid;
and
(ii) Specific Restitution restitution in
kind.
NOTE: Where the insurrectional movement

does not succeed, its conduct shall not be
attributable to the State.
8. Conduct acknowledged and adopted by a
State as its own (Art.11, ASR)
When a State adopts the acts of
individuals as its own, it becomes
responsible therefor.
Adoption occurs when
(i) the State encourages these acts,
(ii) the individuals effectively act as
of
138
1. Direct State is liable for an act imputable

to it that breaches an international
obligation.
2. Indirect the State becomes liable for
being negligent in preventingor punishing
the internationally wrongful conduct, not for
the act itself.
agents in performing the offending

acts, and
(iii) the State endorses as its own the
acts of the individuals.
The payment of money as valuation of

the wrong done. The amount thereof
must correspond to:
i. The value in which a restitution in
kind would bear; and
ii. The award of damages for loss
sustained which would not be
covered by restitution in kind or
payment in place of it (Chorzow
Factory Case).
3. Satisfaction (Art.37, ASR)
Insofar as the injury suffered by the

offended State is not made good by
restitution
or
compensation,
the
responsible State is under the obligation
to render satisfaction. It may consist of:
i. Apology and other acknowledgment
of wrongdoing;
ii. Punishment
of
individuals
concerned; and
iii. Taking measures to prevent a
recurrence of the wrong.
Satisfaction may also be in pecuniary

form.
Pecuniary satisfaction, however, is

distinguishable from compensation on
the basis of their intention.
Pecuniary satisfaction is meant to
be a token of regret and
acknowledgement of wrongdoing (a
monetary
"sorry"),
while
compensation is intended to repair
the injury caused.
4. Act done in compliance with the offender

State's obligations under a peremptory norm
(Art.23, ASR)
5. Author of the wrongful act has no other
reasonable way, in a situation of distress, to
save his life or the life of a person entrusted
to his case.
Exception: When the State caused the
distress or the act in question will cause a
greater peril (Art.23, ASR). In such cases,
the act shall remain wrongful.
6. Act was done due to force majeure (Art.24,
ASR)
7. Act was done in due to a state of necessity
(Art. 25)
As a general rule, necessity may not be

invoked by a State as a ground for
precluding the wrongfulness of an act
not in conformity with an international
obligation of that State.
Except when:
a. The act was the only way to
safeguard an essential interest from
a grave and imminent peril
b. Act must not seriously impair an
essential interest of the State or
States to which the obligation
breached is owed, or of the
international community as a whole
c. The existence and imminence of
such a peril must be duly
established
d. The means to avert the peril must
be absolutely necessary to avert the
danger
e. The obligation violated must not be
of peremptory character.
4. Declaratory Relief
Tribunals may give declaratory judgments
when:
1. It is, or the parties deem it to be, the
proper way to deal with a dispute (ex.
disputes over territory); or
2. The object is not to give satisfaction for
the wrong received (BROWNLIE)
IV. Circumstances
Wrongfulness
Precluding
1. Wronged State consented to the act that

caused injury (Art.20, ASR)
2. Act was done in self-defense (Art.21, ASR)
3. Act was a countermeasure taken against the
another State (Art.22, ASR)

Claim)
DEFINITIONS.
A procedure whereby the State asks relief
for the violation of the rights of the State
through the harm done to its citizens, and
the tribunal would award damages to the
State(OPPENHEIM).
Consists of the invocation by a State, through
diplomatic action or other means of peaceful
settlement,
of the responsibility of another State
for an injury caused by an internationally
wrongful act of that State
139
2. Compensation (Art.36, ASR)
nationality by 2 states, the case now goes

into the realm of international law.
to a natural or legal person that is a national

of the former State
with a view to the enforcement of such
responsibility (Sec.1, Draft Articles on
Diplomatic Protection).
The test for the nationality of a person is the

most significant link.
In this case,
Nottebohm failed to satisfy the test. Even
though he was a national of Liechtenstein,
Guatemala was not bound to recognize such
citizenship because he merely had a
citizenship
of
convenience
(not
a
genuinelink to Liechtenstein).
The State entitled to exercise diplomatic

protection is the State of Nationality
(Sec.3(1), DADP).
1. A natural persons State of nationality

pertains to the State whose nationality that
person has acquired, in accordance with the
law of that State, by birth, descent,
naturalization, succession of States or in any
other manner, not inconsistent with
international law (Sec.4, DADP).
B. Exhaustion of Local Remedies
Local remedies refers to the legal remedies

which are open to an injured person before
the judicial or administrative courts or
bodies, whether ordinary or special, of the
State alleged to be responsible for causing
the injury.
The exhaustion of local remedies is a precondition before a State may present an

international claim in behalf of its injured
national.
2. A Corporations State of nationality

pertains to the State under whose law the
corporation was incorporated.
However, when the corporation is
controlled by nationals of another State
or States and
has no substantial business activities in
the State of incorporation, and
the seat of management and the
financial control of the corporation are
both located in another State,
that State shall be regarded as the State of
nationality (Sec.4, DADP).
A. Material Dates
A State is entitled to exercise diplomatic

protection in respect of a person who was a
national of that State continuously from the
(1) date of injury to the date of the (2) official
presentation of the claim.
Continuity is presumed if that nationality
existed at both these dates (Sec.5, DADP).
Mavromattis case: the primary nexus for

diplomatic protection is nationality. An injury
to the national is also an injury to the State
Amvatielos case: Since individuals are not

within the jurisdiction of an international
court, it is only through a States espousal of
its nationals claims that the individual to the
international scene upon its discretion. The
decision whether to espouse a claim or not
is entirely for the State to determine.
Nottebohm Case: Other states are not

bound by another's claim of nationality.
Determining nationality is a matter of
domestic law.
When
person,
however,
is
given
Exceptions:
i. There are no reasonably available local
remedies to provide effective redress, or the
local remedies provide no reasonable
possibility of such redress;
ii. There is undue delay in the remedial
process which is attributable to the State
alleged to be responsible;
iii. There was no relevant connection between
the injured person and the State alleged to
be responsible at the date of injury;
iv. The injured person is manifestly precluded
from pursuing local remedies; or
v. The State alleged to be responsible has
waived the requirement that local remedies
be exhausted.
140
I.
II.
SOVEREIGNTY
A. CHARACTERISTICS
B. SOVEREIGN EQUALITY OF STATES
C. CORROLARIES
JURISDICTION
A. BASES OF CRIMINAL JURISDICTION
B. RESERVED DOMAIN OF DOMESTIC
JURISDICTION
C. DOCTRINE OF STATE IMMUNITY
I.
Sovereignty
Sovereignty
is
the
supreme
and
uncontrollable power inherent in a State by
which that State is governed (CRUZ).
Sovereignty has also been used to refer to
the general legal competence of states,
including its power to exercise legislative
jurisdiction, and the power to acquire title to
territory (BROWNLIE).
A. Characteristics
(CRUZ):
1. Permanent
2. Exclusive
3. Comprehensive
4. Absolute
5. Inalienable
6. Imprescriptible
II. Jurisdiction
State jurisdiction is the power of a state

under international law to govern persons
and property by its municipal law.
This may be criminal or civil, and may
be exclusive or concurrent with other states
(HARRIS).
A. Criminal Jurisdiction
BASES:
1. Territoriality Principle jurisdiction is
determined by reference to the place
where the crime is committed.
2. Protective Principle court is vested
with jurisdiction if a national interest is
injured.
3. Nationality Principle court has
jurisdiction if the offender is a national of
the forum state.
4. Passive Personality Principle a
court has jurisdiction if the victim is a
national of the forum state.(S.S. Lotus
Case)
5. Universality Principle jurisdiction is
asserted with respect to crimes
considered committed against the whole
of humanity (hostes humani generis).For
example, piracy in the high seas.
(People v. Lo-lo and Saraw, 1922)
B. Sovereign Equality of States
B. Reserved
Domain
Jurisdiction
All States enjoy sovereign equality. They have

equal rights and duties and are equal members
of the international community, notwithstanding
differences of an economic, social, political or
other nature (Principle 6, Declaration on
Principles of International Law Concerning
Friendly Relations and Co-operation Among
States [UN GA Res.2625(XXV)]).
The domain of state activities where the

jurisdiction of states is not bound by international
law: the extent of this domain depends on
international law and varies according to its
development (i.e. when a norm crystallizes into
custom).
C. Corollaries
1. States are juridically equal;
2. Each State enjoys the rights inherent in full
sovereignty;
3. Each State has the duty to respect the
personality of other States;
4. The territorial integrity and political
independence of the State are inviolable;
5. Each State has the right freely to choose
and develop its political, social, economic
and cultural systems;
6. Each State has the duty to comply fully and
in good faith with its international obligations
and to live in peace with other States.
of
Domestic
The reservation of this domain, however, is

without prejudice to the use of enforcement
measures under Chapter VII of the Charter.
C. Doctrine of State Immunity

This refers to a principle by which a State, its
agents, and property are immune from judicial
process of another state. (MAGALLONA)
Domestic courts must decline to hear cases
against foreign sovereigns out of deference to
their roles as sovereigns.
This principle is premised on juridical equality of
states, according to which a state may not
141
Chapter VI. Sovereignty and Jurisdiction
Chapter VI. SOVEREIGNTY and JURISDICTION
Chapter VI. SOVEREIGNTY and JURISDICTION
impose its authority or extend its jurisdiction on

another state without the consent of the latter
through a waiver of immunity. (Par in parem non
habet imperium).
This doctrine is embodied under Article XVI,
Sec. 3 of the 1987 Constitution, to wit:
Application:(Asked 1 time in the Bar)

1. Absolute Sovereign Immunity - a State
cannot be sued in a foreign court no matter
what act it is sued for.
2. Restrictive Sovereign Immunity a State
is immune from suits involving governmental
actions (jure imperii), but not for those
arising from purely commercial or nongovernmental activity (jure gestionis).
The Philippine Supreme Court recognizes the
second theory, and has established certain rules
in its application.
Test: Whether, assuming the public officer is
found liable, enforcement of the decision will
require an affirmative act on the part of the
State. If the answer is yes, then the act in
question would be covered by State immunity.
Acts characterised by the Supreme Court as
Acts Juri Imperii:
1. The lease by a foreign government of
apartment buildings for use of its military
officers (Syquia v. Lopez, 1949)
2. The conduct of public bidding for the repair
of wharf at a United States Naval Station
(USA v. Ruiz, 1985)
3. The change of employment status of military
base employees (Sanders v. Veridiano,
1988)
Acts characterised as Acts Juri Gestionis:
1. The hiring of cook in the recreation center,
consisting of 3 restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry
shop at John Hay Air Station in Baguio City,
to cater to American servicemen and the
general public (USA v. Guinto, 1990)
2. The bidding for the operation of barber
shops in Clark Air Base (USA v. Guinto,
supra)
142
The State may not be sued without its consent.
Chapter VII. The LAW of the SEA
I.
CONCEPTS
A. DISTINGUISHED FROM M
MARITIME OR
ADMIRALTY LAW:
B. BASELINE
II. WATERS
A. INTERNAL WATERS
B. TERRITORIAL WATERS
C. CONTIGUOUS ZONE
D. EXCLUSIVE ECONOMIC ZONE
ONE
E. HIGH SEAS
III. ARCHIPELAGIC STATE
IV. CONTINENTAL SHELF
A. LIMITS OF THE CONTINENTAL
ENTAL SHELF
B. RIGHTS OF THE COASTAL STATE OV
OVER
THE CONTINENTAL SHELF
C. RIGHTS
WITH
RESPECT
TO
CONTINENTAL SHELF VS.. EEZ
V. SETTLEMENT OF DISPUTES
A. PEACEFUL SETTLEMENT OF DISPUTES
B. COMPULSORY
SETTLEMEN
SETTLEMENT
OF
DISPUTES
C. JURISDICTION OF COURT
T OR TRIBUNAL
D. COMPOSITION OF THE INTERNATIONAL
NTERNATIONAL
TRIBUNAL
NAL FOR THE LAW OF T
THE SEA
(ITLOS)
E. JURISDICTION OF ITLOS
F. APPLICABLE LAWS IN SETTLEMENT
ETTLEMENT OF
DISPUTES BY THE ITLOS
I.
Concepts
The Law of the Sea (LOS) is the body of treaty

rules and customary norms governing the use of
the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes
(MAGALLONA).
It is the branch of PIL which regulates the
relations
tions of states with respect to the use of the
oceans.(Asked 1 time in the Bar)
A. Distinguished
Admiralty Law
from
Maritime
or
1. Content: Maritime law is (traditionally)

associated with private law context of rights
and obligations pertaining to carriage of
persons and goods by sea.
2. Scope: Maritime law concerns the rights
and duties of individual private persons in
commercial transactions. LOS deals with
rights and duties of states.
B. Baseline
The
e line from which a breadth of the territorial
sea and other maritime zones, such as the
contiguous zone and the exclusive economic
zone is measured.
Its purpose is to determine the starting point to

begin measuring maritime zones.boundary of
the coastal state.(See Appendix 1)
1. Normal baseline the territorial sea is the
low-water
water line along the coast as marked on
large-scale
scale charts officially recognized by
the coastal state (Art. 5, UN Convention on
the Law of the Sea, or UNCLOS).
2. Straight baseline where the coastline is
deeply indented or cut into, or if there is a
fringe of islands along the coast in its
immediate vicinity, the method of straight
lines joining the appropriate points may be
employed in drawing the baseline from
which the breadth
th of the territorial sea is
measured (Art. 7, UNCLOS)
II. Waters
The waters of a state can be classified generally
as internal, territorial, contiguous, or belonging
to the exclusive economic zone (EEZ). The
extent of these waters depend on their distance
from the states baseline
143
Chapter VII. The Law of the Sea
A. Internal Waters
INNOCENT PASSAGE

These are waters of lakes, rivers, and bays
landward of the baseline of the territorial sea.
However, in case of archipelagic states, waters
landward of the baseline other than those rivers,
bays and lakes, are archipelagic waters.
Internal waters are treated as part of a State's
land territory, and is subject to the full exercise
of sovereignty. Thus, the coastal state may
designate which waters to open and which to
close to foreign shipping.
B. Territorial Waters
These waters stretch up to 12 miles from the
baseline on the seaward direction.
They are subject to the jurisdiction of the coastal
state, which jurisdiction almost approximates
that which is exercised over land territory.
Except that the coastal state must respect the
rights to (1) innocent passage and, in the case
of certain straits, to (2) transit passage.(Asked 1
time in the Bar)
1. Innocent passage navigation through the
territorial sea w/o entering internal waters,
going to internal waters, or coming from
internal waters and making for the high
seas.
It must (a) involve only acts that are
required by navigation or by distress, and (b)
not prejudice the peace, security, or good
order of the coastal state.
2. Transit passage the right to exercise
freedom of navigation and overflight solely
for the purpose of continuous and
expeditious transit through the straights
used for international navigation.
The right cannot be unilaterally
suspended by the coastal state.
INNOCENT PASSAGE
Pertains to navigation of
ships only
Requires submarines and
other underwater vehicles
to navigate on the surface
and show their flag.
Can be suspended, but
under the condition that it
does
not
discriminate
among foreign ships, and
TRANSIT
PASSAGE
Includes the right of
overflight
Submarines are allowed to
navigate in normal mode
i.e. submerged
Cannot be suspended
such
suspension
is
essential for the protection
of
its
security,
and
suspension is effective
only after having been duly
published
(Art.
25,
UNCLOS)
In the designation of sea
lanes and traffic separation
schemes, the coastal state
shall only take into account
the recommendations of
the competent international
organization.
TRANSIT
PASSAGE
Designation of sea lanes

and
traffic
separation
schemes is subject to
adoption by competent
international organization
upon the proposal and
agreement
of
states
bordering the straits.
C. Contiguous Zone
This is the maritime zone (up to 24 nautical
miles) adjacent to the territorial sea where the
coastal state may exercise certain protective
jurisdiction.
Thus, the coastal state may exercise the control
necessary to:
a. Prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations
within its territory or territorial sea;
b. Punish infringement of the above laws and
regulations committed within its territory or
territorial sea.
The coastal state must not extend its
contiguous zone beyond 24 nautical miles from
the baseline. Note that the contiguous zone is
merely a zone of jurisdiction for a particular
purpose. It is not a zone of sovereignty.
D. Exclusive Economic Zone

A coastal state may establish an EEZ that may
stretch up to 200 miles from its baselines.
Within this zone, a State may regulate nonliving
and living resources, other economic resources,
artificial installations, scientific research, and
pollution control.
Under the UNCLOS, states have the sovereign
right to exploit the resources of this zone, but
shall share that part of the catch that is beyond
its capacity to harvest.
1. Resources covered by sovereign rights of
coastal states in the EEZ include living and
144
non-living resources in the waters of the

seabed and its subsoil.
2. Coastal
states
have
the
primary
responsibility to utilize, manage and
conserve the living resources within their
EEZ, i.e. ensuring that living resources are
not endangered by overexploitation, and the
duty to promote optimum utilization of living
resources by determining allowable catch.
3. If after determining the maximum allowable
catch, the coastal state does not have the
capacity to harvest the entire catch, it shall
give other states access to the surplus
by means of arrangements allowable
under the UNCLOS.
Note however that the UNLCOS does
not specify the method for determining
allowable catch. Hence, states may
establish illusory levels.
4. Geographically disadvantaged states (those
who have no EEZ of their own or those
coastal states whose geographical situations
make them dependent on the exploitation of
the living resources of the EEZ of other
states) and land-locked stateshave the
right to participate, on equitable basis, in
the exploitation of the surplus of the
living resources in the EEZ of coastal
states of the same subregion or region.
Note: a coastal state whose economy is
overwhelmingly
dependent
on
the
exploitation of its EEZ is not required to
share its resources.
5. The coastal state has jurisdiction over the
i. establishment and use of artificial
islands, installations and structures,
ii. scientific research,
iii. the preservation and protection of
marine environment.
6. Under Art. 58 of the UNCLOS, all states
enjoy the freedom of navigation, overflight,
and laying of submarine cables and
pipelines in the EEZ of coastal states.
7. The coastal state has the right to enforce
all laws and regulations enacted to
conserve and manage the living
resources in its EEZ. It may board and
inspect a ship, arrest a ship and its crew and
institute judicial proceedings against them.
Note: In detention of foreign vessels, the
coastal state has the duty to promptly notify
the flag state of the action taken.
Conflicts regarding the attribution of rights and

jurisdiction in the EEZ must be resolved on the
basis of
equity and in the light of all relevant
circumstances,
taking
into
account
the
respective
importance of the interests involved to the
parties as well as to the international
community as a whole. (Art. 59, UNCLOS).
E. High Seas
These are all parts of the sea that are not
included in the EEZ, in the territorial sea, or in
the internal waters of a state, or are in the
archipelagic waters of the archipelagic state.
They are beyond the jurisdiction and sovereign
rights of states.
a. High seas are open to all states, whether
coastal or land-locked, and no state may
validly purport to subject any of the high
seas to its sovereignty.
b. It is the right of every state to sail ships
flying its flag on the high seas, and thus
no state can prevent ships or other states
from using the high seas for lawful
purposes. The high seas, however, is
reserved for peaceful purposes.
c.
Freedom of the high seas comprises the

(a) freedom of navigation,
(b) freedom of overflight,
(c) freedom of fishing,
(d) freedom to lay submarine cables and
pipelines,
(e) freedom to construct artificial islands
and installations, and
(f) freedom of scientific research.
All states must exercise these freedoms with
due regard for the interests of other states.
d. In the high seas, a state has exclusive

jurisdiction over ships sailing under its
flag, hence it is called a flag state.
Warships and ships owned and operated by
a State also enjoy immunity from the
jurisdiction of any other state other than the
flag state.
Exceptions to this rule include collision of ships,
where the master or any person in the service of
the ship is subject to concurrent jurisdiction of
the flag state and the state of which such person
is a national. Also, every state may seize a
pirate ship, or ships taken by pirates. In cases of
hot pursuit, a warship or aircraft of a state may
stop and arrest a foreign ship on the high seas.
145
It is a state up made up of wholly one or more

archipelagos. It may include other islands.
An archipelago is a group of islands, including
parts of islands, interconnecting waters and
other natural features which are so closely
related that such islands, waters and natural
features form an intrinsic geographical,
economic and political entity, or
which historically have been regarded as such.
Baselines
of
archipelagic
states.Straight
baselines join the outermost points of the
outermost islands and drying reefs of an
archipelago, provided that within such baselines
are included the main islands and an area in
which the ratio of the water to the area of the
land, including atolls, is between 1 to 1 and 9 to
1. Such are called straight archipelagic
baselines.
Two Kinds of Archipelagoes
1.Coastal situated close to a mainland and
may be considered part thereof, i.e. Norway
2.Mid-ocean situated in the ocean at such
distance from the coasts of firm land, i.e.
Indonesia (note: The Archipelagic State
provisions apply only to mid-ocean
archipelagos composed of islands, and NOT
to a partly continental state.)
Territorial sea and other maritime zones

the breadth of the territorial sea, the
contiguous zone, and the EEZ is measured
from the straight archipelagic baselines.
Archipelagic waters these are the waters

enclosed by the straight archipelagic
baselines, regardless of their depth or
distance from the coast.
It is subject to the sovereignty of the
archipelagic state, but subject to the right of
innocent passage for the ships of all states.
Other Rights with Respect to Archipelagic

Waters
1. Rights under existing agreement on the part
of third states should be respected by the
archipelagic state.
2. Within
its
archipelagic
waters,
the
archipelagic state shall recognize traditional
fishing rightsand other legitimate activities of
immediately adjacent neighboring states.
3. The archipelagic state shall respect existing

submarine cables laid by other states and
passing through its waters without making a
landfall.
4. Right of archipelagic sea lanes passage:
It is the right of foreign ships and aircraft to
have
continuous,
expeditious,
and
unobstructed passage in sea lanes and air
routes through or over archipelagic waters
and the adjacent territorial sea of the
archipelagic state.
Note: the archipelagic state designates the
sea lanes as proposals to the competent
international organization. It is the
International Marine Organization (IMO)
which adopts them through Art. 53(9) of the
UNCLOS
which
states
that
the
Organization may adopt only sea lanes and
traffic separation schemes as may be
agreed with the archipelagic state, after
which such state may designate, prescribe
or substitute them.
Special Issue:
Under Art. 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are
characterized as forming part of the internal
waters of the Philippines. However, under the
UNCLOS, archipelagic waters consist mainly of
the waters around, between, and connecting
the islands of the archipelago, regardless of
breadth or dimension.
Thus, conversion from internal waters under
the Constitution into archipelagic waters under
the
UNCLOS
gravely
derogates
the
sovereignty
of
the
Philippine
state.
Remember that sovereignty over internal waters
precludes the right of innocent passage and
other rights pertaining to archipelagic waters
under the UNCLOS.
IV. Continental Shelf

(See Appendix 2)
Definition it is the seabed and subsoil of the
submarine areas extending beyond the territorial
sea of the coastal state throughout the natural
prolongation of its lands territory up to
1. the outer edge of the continental margin, or
2. a distance of 200 nautical miles from the
baselines of the territorial sea where the
outer edge of the continental margin does
not extend up to that distance.
Continental
margin
the
submerged
prolongation of the land mass of the continental
146
III. Archipelagic State
state, consisting of the continental shelf proper,

the continental slope, and the continental rise.
147
A. Limits of the Continental Shelf
Juridical or Legal Continental Shelf: 0

0-200
nautical miles from baselines
Extended Continental Shelf: 200
200-350
nautical miles from baselines depending on
geomorphological or geological data and
information
When the continental shelf extends beyond
200 nautical miles, the coastal state shall
establish its outer limits.
At any rate, the continental shelf shall not

extend beyond 350 nautical miles from the
baseline of the territorial sea,, or 100 nautical
miles from the 2500-meter
meter isobath (or the point
where the waters are 2500 meters deep).
B. Rights of the Coastal

al State over the
Continental Shelf
The continental shelf does not form part of

the territory of the coastal state.
It only has sovereign rights with
respect
to
the
exploration
and
exploitation of its natural resources
resources,
including the mineral and other no
non-living
resources of the seabed and subsoil
together with living organisms belonging to
*
the sedentary species.
For example, the coastal state has the
exclusive right to authorize and regulate oil
oildrilling on its continental shelf.
These rights are exclusive in the sense that
when the coastal state does not explore
Sedentary species are organisms which, at the harvestable

state, are either immobile on or under the seabed, or are
unable to move except in constant physical contact with the
seabed or subsoil.
its continental shelf or exploit its resources,

no one may undertake these activities
without the coastal states consent.
Note:: In instances where the continental margin
is more than 200 nautical miles from the
baselines, and hence extends beyond the EEZ,
the coastal state has the exclusive right to
exploit mineral and non-living
living resources in the
excess area.

Shelf vs. EEZ
Duty
to
manage
and
conserve
living
resources
Rights
of
the coastal
state as to
natural
resources
Rights
of
the coastal
state as to
living
resources
Continental
Shelf
No duty
EEZ
Relate
to
mineral
and
other non-living
resources of the
seabed and the
subsoil
Have to do with
natural resources of
both
waters
superadjacent
to
the seabed and
those of the seabed
and subsoil
Do not pertain to
sedentary species
Apply only to
sedentary
species of such
living resources
Coastal state is
obliged to manage
and conserve living
resources in the
EEZ
148
V. Settlement of Disputes
E. Jurisdiction of ITLOS
A. Peaceful Settlement of Disputes
Its jurisdiction covers all disputes submitted to it

in accordance with the UNCLOS. It also includes
matters submitted to it under any other
agreement.
Under par. 3, Art. 2 of the UN Charter, States

have the duty to settle disputes by peaceful
means. This obligation extends to State Parties
of the UNCLOS, underscoring the right of the
parties to resort to peaceful means of their own
choice on which they can agree any time.

Where no successful settlement can be
achieved, or if the parties are unable to agree on
the means of settlement of a dispute concerning
the application of UNCLOS, such dispute may
be governed by the principle of compulsory
settlement, where procedures entail binding
decisions.
Compulsory Procedures that States Parties Can
Choose From:
i. International Tribunal for the Law of the
*
Sea ;
ii. International Court of Justice;
*
iii. Arbitral Tribunal ;
*
iv. Special Arbitral Tribunal ;
The choice of the State Parties must be
expressed in a written declaration, which is
revocable and replaceable.
C. Jurisdiction of Court or Tribunal

The court or Tribunal has jurisdiction over:
1. any dispute submitted to it concerning the
application or interpretation of UNCLOS
2. any dispute concerning the interpretation or
application of an international agreement:
related to the purposes of the UNCLOS
when such dispute is submitted to it in
accordance with that agreement.

Tribunal for the Law of the Sea (ITLOS)
It is composed of 21 independent members
elected from among persons enjoying the
highest reputation for fairness and integrity and
of recognized competence in the field of the law
of the sea.
The composition shall also be representative of
the worlds principal legal systems and of
equitable geographical distribution.
as established under the UNCLOS.
F. Applicable Laws in
Disputes by the ITLOS
Settlement
of
The Tribunal shall apply the UNLCOS and other

rules of international law not incompatible with
the UNCLOS.
It may also decide a case ex aequo et bono
(what is equitable and just) if the parties so
agree.
149

International Law
Chapter VIII. The USE of FORCE in INTERNATIONAL LAW
a. Self-Defense
I.
II.
I.
JUS AD BELLUM v JUS IN BELLO

RULES ON THE USE OF FORCE
A. GENERAL RULE
B. EXCEPTIONS
1. EXCEPTIONS UNDER THE CHARTER
a. SELF-DEFENSE
b. AUTHORIZED
ENFORCEMENT
ACTION
2. EXCEPTIONS UNDER CUSTOM
a. RESPONSIBILITY TO PROTECT
(R2P)
b. HUMANITARIAN INTERVENTION
c. GENERAL
ASSEMBLY
RESOLUTION
d. WARS
OF
NATIONAL
LIBERATION
Jus in bello
The laws that govern the conduct of war by
States. (To be discussed further in the Chapter
on International Humanitarian Law)
II. Rules on the Use of Force

A. General Rule
States are to refrain in their international
relations from the threat or use of force against
the territorial integrity or political independence
of any state, or in any manner inconsistent with
the purposes of the United Nations.
This norm is of dual character, existing both in
treaty law (Art.2[4], UN Charter) and customary
international law.
B. Exceptions
1. Exceptions under the Charter
Requisites:
i. There be an armed attack;
An armed attack is understood as including
not merely action by regular armed forces
across an international border, but also "the
sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries,
which carry out acts of armed force against
another State of such gravity as to amount
to" (inter alia) an actual armed attack
conducted by regular forces, "or its
substantial involvement therein" (Art.3(g),
Definition of Aggression annexed to General
Assembly resolution 3314 [XXIX])
Jus Ad Bellum v Jus in Bello
Jus ad bellum
Refers to the body of norms that govern the
conditions when a State may have recourse to
war or other uses of force.
The Charter provides two exceptions to the

general prohibition against the use of force.
Nothing in the present Charter shall

impair the inherent right of individual or
collective self-defence if an armed
attack occurs against a Member of the
United Nations, until the Security
Council has taken measures necessary
to maintain international peace and
security (Art.51, UN Charter).
ii.
The use of force must be necessary to

defend against an armed attack
(Necessity);
iii. The forcible response must be promptly
after the attack (Immediacy);
iv. The force used must be proportional to
the attack made (Proportionality)
(Nicaragua v. US Case).
b. Authorization Enforcement Action by
Security Council acting under its Chapter
VII Powers
The collective security apparatus

contained in Chapter VII of the Charter,
which allows for a successive process of
conflict resolution, culminating in armed
enforcement actions carried out under
the aegis of the Security Council.
2. Exceptions under Custom

a. Responsibility to Protect (R2P)
A recently developed concept in

international relations which relates to:
(a) a state's responsibilities towards its
population and to
(b) the
international
community's
responsibility in case a state fails to
fulfill its responsibilities.
150
One important aim, among many others,

is to provide a legal and ethical basis for
humanitarian intervention.
b. Humanitarian Intervention
The forcible intervention by external

actors (ex. the international community
through the UN) into a state that is
unwilling or unable to prevent or rectify
massive violations of human rights (ex.
Genocide).
Humanitarian intervention, it has been
argued, finds legal support under
Art.1(3), UN Charter may provide a
basis for the use of force to.
c. Peacekeeping Operations through

General Assemblys Uniting for Peace
Resolution
This was necessitated by the paralysis

of the Security Council that resulted
from the disagreement of the latter's
veto-wielding members, and was
inaugurated by the Uniting for Peace
Resolution.
The peacekeeping operations initiated
by the General Assembly constitute an
interpretation of the Charter that creates
another exception to the rule against the
use of force.
d. Wars of National Liberation
Wars by peoples against racist, colonial

and
alien
domination
"for
the
implementation of their right to selfdetermination and independence is
legitimate and in full accord with
principles of international law," and that
any attempt to suppress such struggle is
unlawful (Resolution 3103 [XXVIII]).
When peoples subjected to alien
domination resort to forcible action in
order to exercise their right to selfdetermination, they "are entitled to seek
and to receive support in accordance
with the purposes and principles of the
Charter (1970 Resolution 2625 [XXV]).
Chapter VIII. The USE of FORCE in INTERNATIONAL LAW
These declarations constitute either an

authoritative interpretation of the Charter, being
the subsequent practice of the parties, or an
irregular amendment of the Charter's provisions
through the creation of new norms of customary
law (Art.31(3), VCLOT; Case concerning the
Interpretation of the Air Transport Agreement
Between the United States and Italy)
151
Chapter IX. INTERNATIONAL HUMAN RIGHTS LAW
Chapter IX. International Human Rights

Law
I. DEFINITION OF HUMAN RIGHTS
II. CLASSIFICATION OF HUMAN RIGHTS
III. INTERNATIONALIZATION
OF
HUMAN
RIGHTS
IV. SOURCES OF HUMAN RIGHTS
A. CONVENTION
B. CUSTOM
V. INTERNATIONAL BILL OF HUMAN RIGHTS
A. UNIVERSAL DECLARATION OF HUMAN
RIGHTS (UDHR)
B. INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (ICCPR)
C. INTERNATIONAL
COVENANT
ON
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS (ICESCR)
D. COMMON PROVISIONS IN THE ICCPR
AND ICESCR AND DIFFERENCES
VI. SPECIFIC NORMS IN HUMAN RIGHTS
A. GENOCIDE
B. TORTURE
C. RIGHTS OF THE CHILD
D. LAW AGAINST DISCRIMINATION
E. REFUGEE LAW
I.
Derogation/
Restriction,
when
allowed
may only be
derogated in a
public
emergency
III. Internationalization
Rights
available
resources
may be restricted
for the general
welfare, with or
without
an
emergency
that
threatens
the
independence or
security of a State
Party.
of
Human
The international community, through the

UN Charter, has accepted the regulation of
human rights, and has therefore shifted
matters or questions pertaining to human
rights
from
exclusive
domestic
jurisdiction to international regulation.
IV. Sources of Human Rights
Definition of Human Rights
A. Convention
The first important multilateral convention

protecting human rights was the United
Nations Charter, which imposes the
obligation to promote and protect human
rights (UN Charter, Art 1(1), par. 2).
Two
important
general
conventions
protecting human rights in international law
are the International Covenant on Civil and
Political
Rights
(ICCPR),
and
the
International Covenant on Economic, Social,
and Cultural Rights (ICESCR).
Human rights are those fundamental and

inalienable rights which are essential for life
as a human being.
They pertain to rights of an individual as a
human being which are recognized by the
international community as a whole through
their protection and promotion under
contemporary international law.
These are considered to be authoritative

interpretations of the UN Charter
II. Classification of Human Rights

A. First generation consists
political rights;
B. Second generation consists
social and cultural rights;
C. Third generation refers
development, right to peace,
environment.
Obligatory
Force under
International
Law
First
generation
strictly
(or
objectively)
obligatory,
whatever
the
economic
or
other conditions
of the states
obligated
of civil and
B. Custom
of economic,
to right to
and right to
Second
generation
relatively
obligatory: States
are required to
progressively
achieve the full
realization of these
rights
to
the
maximum of their
It has been proposed that the protection of

human rights now exists even in customary
law.
This is evidenced by the widespread
acceptance of numerous international
conventions and instrumentsthat require or
signify assent to the protection of human
rights.
Widespread acceptance of the UN
Declaration of Human Rights as a
codification of international human rights law
is evidence that international custom
protects human rights (MERON).
152
a. The right to social security;

b. The right to work and protection against
unemployment;
c. The right to equal pay for equal work;
d. The right to form and join trade unions;
e. The right to rest and leisure.
The International Bill of Human Rights is a

convenient designation of the three main
instruments of human rights on the
international plane.
These are
1.) the Universal Declaration of Human
Rights,
2.) the International Covenant on Civil and
Political Rights, and
3.) the
International
Covenant
on
Economic, Social and Cultural Rights.
A. Universal Declaration of Human Rights

(UDHR)
The UDHR is the first comprehensive

catalogue of human rights proclaimed by an
international organization.
It must be noted, however, that the UDHR is
not a treaty.
It has no obligatory character because it was
adopted by the UN GA as Resolution 217A
(III). As a resolution, it is merely
recommendatory.
Despite this, the UNDHR is considered a
normative instrument that creates binding
obligations for all States because of the
consensus evidenced by the practice of
States that the Declaration is now binding as
part of international law (Juan Carillo
Salcedo,
Human
Rights,
Universal
Declaration).
The UDHR embodies both first and second

generation rights. The civil and political
rights enumerated include:
1. The right to life, liberty, privacy and
security of person;
2. Prohibition against slavery;
3. The right not to be subjected to arbitrary
arrest, detention or exile;
4. The right to fair trial and presumption of
innocence;
5. The right to a nationality;
6. The right to freedom of thought,
conscience and religion;
7. The right to freedom of opinion and
expression;
8. Right to peaceful assembly and
association;
9. The right to take part in the government
of his country.
Economic, social and cultural
enumerated in the UDHR include:
rights

Political Rights (ICCPR)
The ICCPR is an international covenant and

is binding on 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
enjoy their own culture, to profess and
practice their own religion, or to use their
own language;
4. The right to compensation in case of
unlawful arrest;
5. The right to legal assistance in criminal
prosecution;
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
to respect and to ensure to all individuals
within their territory the rights enumerated
therein, without distinction of any kind, such
as race, color, sec, language, religion,
political or other opinion, national or social
origin, birth or other status.
2. State Parties are required to take the
necessary steps to adopt legislative or other
measures 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 have
an effective remedy, notwithstanding that
153
V. International Bill of Human Rights
4. State Parties must ensure that any person

claiming such remedy shall have his right
thereto
determined
by
competent
judicial, administrative or legislative
authority, and that they shall enforce the
remedy when granted.
VI. Specific Norms in Human Rights

A. Genocide

Social and Cultural Rights (ICESCR)
Obligations of State Parties
1. Killing members of the group;

2. Causing serious bodily or mental harm
to the members of the group;
3. Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole or
in part;
4. Imposing measures intended to prevent
births within the group; and
5. Forcibly transferring children of the
group to another group (Article 6,
Statute of the International Criminal
Court)
The ICESCR, like the ICCPR, is an

international covenant and is binding on the
respective State Parties.
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 and
creativity.
Nature of the Prohibition
State Parties are required to undertake the

necessary steps to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
enumerated in the covenant by all
appropriate means.
D. Common Provisions in the ICCPR and

the ICESCR and differences
Note these rights are not covered by the

UDHR.
Genocide is covered by the Convention on

the Prevention and Punishment of the Crime
of Genocide.
The ICJ, in its advisory opinion, explained
the nature of genocide as a crime under
international law involving a denial of the
right of existence of entire human groups, a
denial which shocks the conscience of
mankind and results in great losses to
humanity.
The ICJ also recognized the customary
nature of the proscription, stating that the
principle under the Convention are
recognized by civilized nations as binding on
States even without conventional obligation.
Note unlike the ICCPR, the states under the

ICESCR merely agree to take steps to the
maximum of its available resources.
The common provisions of the two Covenants

deal with collective rights, namely:
1. The right of self-determination of peoples;
2. the right of peoples to freely dispose of their
natural wealth and resources;
3. the right not of peoples not to be deprived of
their own means of subsistence
Under international law, genocide refers to

any of the following acts (actus reus), when
such acts are committed with intent to
destroy, in whole or in part, a national,
ethnical, racial or religious group, as such
(dolus specialis):
Acts Punishable
The Convention defines the following acts

as punishable:
1. Genocide;
2. Conspiracy to commit genocide;
3. Direct and public incitement to commit
genocide;
4. Complicity in genocide.
The Genocide convention provides that the

crime of genocide shall be tried by a
competent tribunal of
the State in which the act was
committed, or
154
the violation has been committed by persons

action in an official capacity.
by such international tribunal as may

have jurisdiction with respect to the
State Parties which shall have accepted
its jurisdiction.
C. Rights of the Child
One such tribunal is the International

Criminal Court (Art 5, Rome Statute).
Concerns pertaining to his personhood,

legal protection and in general human rights
standards have come under the regime of
international law and are no longer confined
to the exclusive domestic jurisdiction of
States that are parties to the CRC.
Notes Individual criminal liability is provided for

the crime of genocide, whether such individual is
a public official or a private person.
Genocide may be committed during war/armed
conflict or during time of peace.
B. Torture
The Convention Against Torture and Other
Cruel, Inhumane or Degrading Punishment
defines torture as any act by which severe pain
or suffering, whether physical or mental, is
intentionally inflicted on a person for such
purposes as
1. Obtaining from him or a third person
information or a confession;
2. Punishing him for an act he or a third person
has committed, or is suspected of having
committed;
3. Intimidating or coercing him or a third
person;
4. For any reason based on discrimination of
any kind
When such pain or suffering is inflicted by or

at the instigation of or with consent or
acquiescence of a public official or person
acting in an official capacity.
Nature of the prohibition

As a principle of international law, prohibition
against torture is created by an obligation erga
omnes, an obligation of every state towards the
international community as a whole.
It forms part of the principles and rules
concerning the basic rights of the human person.
Salient Features
Under the Convention, the prohibition against
torture is non-derogable. No exceptional
circumstance, such as war or public emergency,
may be invoked to justify torture nor a superiors
order or other authority be used as a justification
for torture.
It is an obligation for State Parties to take
measures to prevent torture and to ensure that
the acts of torture are legally punishable in their
jurisdiction.
The Convention on the Rights of the Child

(CRC) is the primary international instrument
concerning the legal status of the child in
international law.
Substantive Rights of the Child Under the

CRC:
1. The inherent right to life
2. To have a name from birth;
3. To acquire a nationality, adequate standard
of living, social security and health care;
4. Political, civil, economic, social and cultural
rights, including freedom of thought,
conscience,
religion,
expression,
association,
education,
access
to
information, minority rights, and civil and
criminal procedural rights;
5. Prohibition against discrimination;
6. Protection during armed conflict and refugee
right;
7. Right to family environment and the right to
know the parents and be cared for by them.
D. Law against Discrimination
The International Convention on the

Elimination of All Forms of Racial
Discrimination
defines
racial
discrimination as
any distinction, exclusion, restriction
or preference based on race, color,
gender, descent, or national or ethnic
origin
which has the purpose or effect of
nullifying or impairing the recognition,
enjoyment or exercise on an equal
footing,
of
human
rights
and
fundamental freedoms
in the political, economic, social,
cultural, or any other field of public life.
Notes: the definition of racial discrimination is

considered as an authoritative interpretation of
the non-discrimination clause of the UN Charter
(Art. 55 and 56). Also, affirmative action, or
positive discrimination, are not considered as
contrary to the Convention.
155
E. Refugee Law
A refugee is a person who,

owing to a well founded fear of being
persecuted
for reasons of race, religion, nationality,
membership in a particular social group
or political opinion,
is outside the country of his nationality
and is unable or owing to such fear, is
unwilling to avail himself of the
protection of that country; or
who, not having a nationality and being
outside the country of his former
habitual residence,
is unable or, owing to such fear, is
unwell to return to it (Convention
Relating to the Status of Refugees)
Cessation of Status as Refugee

A refugee ceases to be such when:
1. He has voluntarily re-availed himself of the
protection of the country of his nationality;
2. He has voluntarily acquired his nationality,
having lost it;
3. He has acquired a new nationality and
enjoys the protection of the state of his new
nationality;
4. He has voluntarily re-established himself in
the country which he has left or outside
which he remained owing to fear of
persecution;
5. He can no longer continue to refuse the
protection of the country of his nationality
because the circumstance by which he has
acquire the status of refugee no longer
exists.
Who May Not Qualify as Refugees
A status of a refugee may not apply to the

following persons with respect to whom
there are serious reasons for considering
that:
1. He has committed a crime against peace, a
war crime, or a crime against humanity;
2. He has committed a serious, non-political
crime outside the country of refuge prior to
his admission to that country as a refugee;
3. He has been guilty of acts contrary to the
purposes and principles of the UN.
The Right of Non-Refoulment
It is the right of the refugee no to be expelled

or returned in any manner whatsoever to the
frontiers of territories where his life or
freedom would be threatened on account of
his of race, religion, nationality, membership
in a particular social group or political
opinion.
Note: the Convention requires that the refugee

conform to the laws and regulations, as well as
measures taken for the maintenance of public
order, of the country of refuge.
156
I.
II.
III.
IV.
ARMED CONFLICT
FUNDAMENTAL PRINCIPLES OF IHL
APPLICATION OF IHL
THE FOUR GENEVA CONVENTIONS AND THE
TWO ADDITIONAL PROTOCOLS
V. APPLICATION
VI. CONCEPTS
A. COMBATANTS
B. HORS DE COMBAT
C. PROTECTED PERSONS
D. THE MARTENS CLAUSE
E. MILITARY OBJECTIVE
F. BELLIGERENCY STATUS
VII. IHL AND WEAPONS OF MASS DESTRUCTION
VIII. NON-INTERNATIONAL ARMED CONFLICT
A. COMMON ARTICLE 3 AND PROTOCOL II
B. CONTROL OF TERRITORY
C. WAR OF NATIONAL LIBERATION
IX. NEUTRALITY
X. PROTECTIVE EMBLEMS
A. WHO MAY USE
B. MISUSE OF EMBLEM
C. PUNISHMENT
XI. THE INTERNATIONAL CRIMINAL COURT
(ICC)
A. CRIMES WITHIN THE COURTS
JURISDICTION
B. MODES OF INCURRING CRIMINAL
LIABILITY
C. SOURCES OF LAW
D. OTHER KEY CONCEPTS
E. LANDMARK CASES
IHL is the branch of public international law

which governs armed conflicts to the end
that the use of violence is limited and that
human suffering is mitigated or reduced by
regulating or limiting the means of military
operations and by protecting those who do
not or no longer participate in the hostilities.
IHL has Two Branches: (1) Law of The
Hague, which establishes the rights and
obligations of belligerents in the conduct of
military operations, and limits the means of
harming the enemy; and the (2) Law of
Geneva, which is designed to safeguard
military personnel who are no longer taking
par in the fighting and people not actively
engaged in hostilities (i.e. civilians)
(INTERNATIONAL COMMITTEE OF THE
RED CROSS [ICRC]).
Note: The two branches draw their names
from the cities where each was initially
codifies. With the adoption of the Additional
Protocols of 1977, which combine both
branches, that distinction is now of merely
historical and instructive value (ICRC).
HUMANITARIAN LAW V. HUMAN RIGHTS

LAW
IHL and IHR are complementary. Both strive to
protect the lives, health and dignity of human
persons, albeit from different angle. The
following distinctions may be noted (ICRC):
1. Application. IHL applies in situations of
armed conflict, whereas IHR applies both in
times of peace and in war.
2. Derogation. Some human rights treaties
permit governments to derogate from certain
rights in times of public emergency (Art.4,
ICCPR). No derogations are permitted under
IHL as it was conceived precisely to
emergency situations, such as an armed
conflict.
3. Holder of Obligation. IHL imposes duties
only upon those who are parties to an armed
conflict. Human rights apply to all State
governments.
I.
Definition of Armed Conflict

(Prosecutor vs. Tadic, Para.70).
An Armed Conflict exists when there is

resort to the use of force
between two states (international armed
conflict), or
between government authorities and an
organized armed group, or
between such groups within the same
territory
(non-international
armed
conflict)
Note: Wars of National Liberation have been
classified as international armed conflicts
(ICRC)
Mere internal disturbances and tensions, or
riots or isolated or sporadic acts of armed
violence does not amount to an armed
conflict (Tadic)
Note: Cases of this type are governed by the
provisions of human rights law and the
relevant domestic laws.
II. Fundamental Principles of IHL

1. Parties to an armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive suffering.
2. Parties to an armed conflict shall, at all
times, distinguish between civilian
population and the combatants (Principle
157
Chapter X. International Humanitarian

Law
Chapter X. INTERNATIONAL HUMANITARIAN LAW
of Distinction). Civilians shall be spared from

military attacks which shall be directed only
against military objectives.
IV. The Four Geneva Conventions and

the Two Additional Protocols
5. The wounded and the sick shall be

protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports and
material.
6. Combatants and civilian who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence or reprisals. (Legality of the
Threat or Use of Nuclear Weapons,
Advisory Opinion by the ICJ)
III. Application of IHL

IHL is not concerned with the lawfulness or
unlawfulness of armed conflict.
The application of IHL in armed conflict,
whether such is the result of an unlawful
threat or use of force, pertains solely to the
fact of armed conflict, even if the use of
force remains unlawful.
As such, IHL applies to all armed
conflicts, regardless of whether resort to
threat or the use of force was lawful or
unlawful
IHL governs in both international and

non-international armed conflicts.
Common Article 2 and 3 of the four Geneva
Conventions states that the Convention shall
apply in all cases of declared war or any
other armed conflict between to or more
[Contracting Parties] even if the state of war
is not recognized by one of them.
As used in Article 3, armed conflict pertains
to non-international armed conflicts in that it
deals with armed confrontation between the
The four Geneva Conventions and the

Additional Protocols are the primary legal
instruments that embody IHL.
Namely, they are:
1. The Geneva Convention for the
Amelioration of the Condition of the
Wounded and Sick in Armed Forces
st
in the Field (1 Geneva Convention,
Aug. 12, 1949);
2. The Geneva Convention for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea
nd
(2
Geneva Convention, Aug. 12,
1949);
3. The Geneva Convention Relative to the
rd
Treatment of Prisoners of War (3
Geneva Convention, Aug. 12, 1949);
4. The Geneva Convention Relative to the
Protection of Civilian Persons in Time
th
of War (4 Geneva Convention, Aug.
12, 1949);
5. Protocol Additional to the Geneva
Conventions of 12 August 1949 and
Relating to the Protection of Victims
of International Armed Conflicts
(Protocol I, June 8, 1977);
6. Protocol Additional to the Geneva
Conventions of 12 August 1949 and
Relating to the Victims of NonInternational
Armed
Conflict
(Protocol II, June 8, 1977).
4. It is prohibited to kill or injure an enemy who

is hors de combat or who surrenders.
insurgent

Conventions
and the Two
Additional Protocols
The principles under the four Geneva

Conventions are regarded by the
international community as a whole as
having a character of general or
customary international law, and therefore
binding on all states.
In the ICJ advisory opinion in the Legality of
the Threat or Use of Nuclear Weapons, the
Court expressed that the fundamental
rules of IHL are to be observed by all
states whether or not they have ratified
the conventions that contain them,
158
3. Persons hors de combat are those who

have been injured in the course of hostile
battle action and are no longer able to
directly take part in hostilities. They shall be
protected and treated humanely without
any adverse distinction. Their right to life
and physical and moral integrity shall be
respected.
government and a rebel or

movement, not between states.
The four Conventions are applicable only to

international armed conflicts,
C. Protected Persons
Protected persons are those who enjoy or are
entitled to protection under the Geneva
Conventions.
EXCEPT common Article 3 which applies in

the case of armed conflict not of an
international character occurring in the
territory of one of the State Parties.
Categories of protected persons include:
As to the Protocols, Protocol I is designed

for the protection of victims of international
armed conflicts, while Protocol II pertains to
the protection of victims of non-international
armed conflicts.
a. The wounded, the sick, and shipwrecked;

b. Prisoners of War
c. Civilians
VI. Definition of Concepts and Phrases
For purposes of protection, civilians are

further classified as:
a. Civilians who are victims of conflict in
countries involved
b. Civilians in territories of the enemy;
c. Civilians in occupied territories;
d. Civilians internees
A. Combatants
D. Martens clause
Combatants are members of the armed

forces of a Party to a conflict (Art. 3(2),
Protocol 1).
In fact, only combatants are allowed to

engage in hostilities.
B. Hors de combat
Under Art. 41(2) of Protocol I, a person is

hors de combat if he:
a. Is in the power of an adverse party to
the conflict;
b. He clearly expresses an intention to
surrender; or
c. He has been rendered unconscious or is
otherwise incapacitated by wounds or
sickness, and is therefore incapable of
defending himself, provided that in any
of these cases, he abstains from any
hostile act 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 integrity shall be respected
is
an
umbrella
In cases not covered by Protocol I, or by

any other international agreements, civilians
and combatants remain under the protection
and authority of the principles of
international law derived from established
custom, from the principles of humanity, and
from the dictates of public conscience.
They have the right to participate directly

and indirectly in hostilities (Art 43(2) Protocol
1).
According to one commentator, a combatant

is allowed to use force, even to kill, and will
not be held personally responsible for his
acts, as he would be where he to the same
as a normal citizen (Gasser, IHL-An
Introduction)
The Martens Clause

provision which reads:
Where gaps or loopholes arise in the

interpretation and application of international
agreements or treaties of humanitarian law,
resort to the Martens Clause may be made.
E. Military Objective
An object, which by its nature, purpose, use,

or location,
makes an effective contribution to
military action, and
whose total or partial destruction,
neutralization or capture makes an
effective contribution to military action.
F. Belligerency Status
It is the formal acknowledgement by a third

party of the existence of a state of war
between the central government and a
portion of such state.
Belligerency exists when

a sizeable portion of the territory of a
state is under the effective control of an
insurgent community,
which seeks to establish a separate
government and
159
because they constitute intransgressible

principles of customary international law.
VII. IHL
and
Destruction
Weapons
of
Mass
Art. 51(4) of Protocol I provide that as a

measure of protection of civilian population,
indiscriminate attacks are prohibited.
Attacks
which
are
considered
indiscriminate, or those that do not
distinguish between military objectives and
civilians or civilian objects, are:
1. Those which are not directed at a
specific military objective;
2. Those which employ a method or means
of combat which cannot be directed at a
specific military objective; or
3. Those that employ a method or means
of combat the effect of which cannot be
limited as required by the protocol.
An attack is also considered indiscriminate if

it may be expected to cause incidental
loss to human life, injury to civilians,
damage to civilian objects, or a
combination thereof, which would be
excessive in relation to the concrete and
direct military advantage anticipated (Art. 54,
para. 5(b), Protocol I)
Nuclear Weapons
In its advisory opinion in Legality of the Threat or
Use of Nuclear Weapons, the ICJ expressed
that nuclear weapons, having been developed
after most of the principles and rules of IHL
applicable to armed conflicts, are governed by
such principles and rules.
VIII. IHL and Non-International Armed

Conflict
those placed hors de combat, shall in all

instances be treated humanely without
any adverse distinction founded on race,
color, religion or faith, sex, birth or
wealth, or any other similar criteria.
2. With respect to the persons mentioned
above, the following acts shall remain
prohibited:
i. Violence to life and person, in
particular, murder of all kinds,
mutilation, cruel treatment and
torture;
ii. Taking of hostages;
iii. Outrages upon personal dignity, in
particular humiliating and degrading
treatment;
iv. The passing of sentences and the
carrying out of executions without
previous judgment pronounced by a
regularly constituted court, affording
all the judicial guarantees which are
recognized as indispensable by
civilized peoples.
3. The wounded and the sick shall
becollected and cared for.
the insurgents are in de facto control of

a portion of the territory and population,
have a political organization,
are able to maintain such control, and
conduct themselves according to the
laws of war (Asked 1 time in the Bar).
Common Article 3 of the four Geneva

Conventions is the only provision applicable
to non-international armed conflicts.
The application of provisions above does not

affect the legal status of the parties to the
conflict. Hence, an insurgent or a rebel group
does not assume belligerency status.
Article 3 is indifferent to the legal character of
such group.
It must be noted that Article 3 is to be applied as
a minimum.
A. Common Article 3 and Protocol II
Protocol II develops and supplements

common Article 3 (Art. 1, Protocol II).
It applies to:
all armed conflicts which take place in
the territory of a State Party,
between its armed forces and dissident
armed forces or other organized groups
which, under responsible command,
exercise such control over a part of
its territory
as to enable to carry out sustained and
concerted military operations and to
implement the Protocol.
It defines the following obligations:
Application of Article 3 and Protocol II
1. Persons taking no active part in the

hostilities, including members of the
armed forces who have laid down their
arms and
The rules in Article 3 are recognized as

customary norms of international law, and
therefore applicable to all States. However,
Protocol II is a treaty and binding only States
that are parties to it.
160
Its rules, however, may still develop into

customary norms binding on all states, by the
general practice of states coupled with their
acceptance of them as law (opinio juris).
B. Control-of-Territory
The test of whether a dissident armed force

has control of territory is when such armed
force can (1) carry out sustained and
concerted military operations, and whether it
has (2) the capacity to comply with the
provisions of the Protocol.
In a non-international armed conflict where
the dissident armed forces do not exercise
such control over territory, Article 3, and not
Protocol II may be applicable. The result is
that this situation may give rise to two
categories of non-international armed
conflicts: one where only Article 3 applies,
and the other where both Article 3 and
Protocol II apply.
C. War of National Liberation
An armed conflict may be of such nature in

which peoples are fighting against colonial
domination and alien occupation and against
racist regimes in the exercise of their right to
self-determination.
This conflict, however, is considered an
international armed conflict under Art. 1, par.
3 and 4 of Protocol I.
Article 2 common to the four Geneva
conventions provides that all cases of
declared war or any other armed conflict
which may arise between two or more of the
High Contracting Parties, even if the state of
war is not recognized by one of them.
Hence, the Geneva conventions and
Protocol I govern wars of national liberation.
IX. Neutrality
Neutrality is the legal status of a State in times of
war,
by which it adopts impartiality in relation to
the belligerents with their recognition.
The Hague Convention Respecting the Rights
and Duties of Neutral Powers (Oct. 18, 1907)
governs the status of neutrality by the following
rules:
a. The territory of the neutral Power is
inviolable;
b. Belligerents are forbidden to move troops or

munitions of war and supplies across the
territory of a neutral Power;
c. A neutral power is forbidden to allow
belligerents to use its territory for moving
troops, establishing communication facilities,
or forming corps of combatants.
d. Troops of belligerent armies received by a
neutral Power in its territory shall be interned
by away from the theatre of war;
e. The neutral Power may supply them with
food, clothing or relief required by humanity;
f. If the neutral Power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in its
territory;
g. The neutral power may authorize the
passage into its territory of the sick and
wounded if the means of transport bringing
them does not carry personnel or materials
of war
The Third Geneva Convention (Prisoners of
War) allows neutral Powers to cooperate with
the parties to the armed conflict in making
arrangements for the accommodation in the
formers territory of the sick and wounded
prisoners of war.
Interned persons among the civilian population,
in particular the children, the pregnant women,
the mothers with infants and young children,
wounded and sick, may be accommodated in a
neutral state in the course of hostilities, by
agreement between the parties to the conflict.
Protecting Power
A protecting power is a State or an organization
not taking part in the hostilities,
which may be a neutral state,
designated by one party to an armed conflict
with the consent of the other
to safeguard or protect its humanitarian
interests in the conflict, the performance of
which IHL defines specific rights and duties.
X. Protective Emblems
Emblems:
1. Red Cross (Geneva Conventions)
2. Red Crescent (Geneva Conventions)
3. Red Crystal (Third Additional Protocol to the
Geneva Conventions)
Note: Protocol III is an amendment to the
Geneva Conventions relating to the Adoption of
an Additional Distinctive Emblem for use by
161
national societies. It entered into force on 14

January 2007, six months after the second
ratification.
A. Who May Use

During armed conflict, the emblem may be used
as a protective device by:
1. Medical services of armed forces;
2. National Red Cross, Red Crescent or Red
Crystal societies duly recognized and
authorized by their governments to lend
assistance to the medical services of armed
forces;
3. Civilian hospitals and other medical facilities
recognized as such by the government (i.e.
first-aid posts, ambulances);
4. Other voluntary relief agencies, subject to
the same conditions as national societies
(ICRC).
B. Misuse of the Emblem

Any use not expressly authorized by IHL
constitutes a misuse. They include:
1. Imitation the use of a sign which, by its
shape and/or color, may cause confusion
with the emblem.
2. Usurpation the use of the emblem by
bodies or persons not entitled to do so.
3. Perfidy making use of the emblem in time
of conflict to protect combatants or military
equipment.
C. Punishment
State Parties to the Geneva Conventions are
required to take steps to prevent and punish
misuse of the emblem both in time of peace and
in war.
Art.8(2)(b)(vii) of the ICC Statute makes the
improper use of the distinctive emblems of the
Geneva Conventions a War Crime.
XI. The International Criminal Court

The ICC is a permanent criminal tribunal
established to prosecute individuals who have
violated laws applicable during armed conflict.
Requisites to be held criminally liable:
1. Act constituting a crime within the Courts
jurisdiction; and that
2. Requisite standards for incurring criminal
liability are satisfied.

(Art.5, ICC Statute)
The jurisdiction of the Court shall be limited to
the most serious crimes of concern to the
international community as a whole. The Court
has jurisdiction in accordance with this Statute
with respect to the following crimes:
1. Genocide (Art.6, ICC Statute)
Genocide refers to any of the following acts
(actus reus) which are committed with intent
to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such
(dolus specialis):
1. Killing members of the group;
2. Causing serious bodily or mental harm
to the members of the group;
3. Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole or
in part;
4. Imposing measures intended to prevent
births within the group; and
5. Forcibly transferring children of the
group to another group (Art.6, ICC
Statute).
2. Crimes Against Humanity (CAH) (Art.7,
ICC Statute)
Refers to acts (actus reus) committed
knowingly as part of a widespread or
systematic attack directed against any
civilian population. In any case, the attack
must involve the multiple commission of
such acts, made pursuant to or in
furtherance of a State or organizational
policy.
3. War Crimes (Art.8, ICC Statute)
Refer to grave breaches of the 1949 Geneva
Conventions and other violations of the laws
and customs applicable in international and
non-international armed conflict.
4. The Crime of Aggression
The ICC shall exercise jurisdiction over the
crime of aggression once a provision
defining the crime and setting out the
conditions under which the Court shall
exercise jurisdiction with respect to this
crime.
Such provision shall be adopted

pursuant to the rules on amendment
(Art.121, ICC Statute). This amendment
may be proposed in the Review
Conference to be convened by the UN
Secretary General seven years after the
Statute has entered into force (Art.123,
ICC Statute).
162
legal systems of the world including, as

appropriate, the national laws of States that
would normally exercise jurisdiction over the
crime, provided that those principles are not
inconsistent with this Statute and with
international
law
and
internationally
recognized norms and standards.

1. Individual
Criminal
Responsibility
(Direct)(Art.25, ICC Statute)
A person shall be criminally responsible and
liable for punishment for a crime within the
jurisdiction of the Court if that person
commits, orders, solicits or induces the
commission of such a crime, or aids, abets
or otherwise assists in the its commission.
2. Command and Superior Responsibility
(Indirect)(Art.28, ICC Statute)
The responsibility of military commanders
and civilian superiors for crimes committed
by subordinate members of their armed
forces or other persons subject to their
control.
Requisites:
1. The commander or superior must
exercise effective control over those
who committed the crime;
2. The commander knew or should have
known
of
the
violations
being
perpetrated
by
his
subordinates
(Art.28(a)(i), ICC Statute);
or
thatthe
Superior
knew
or
consciously disregarded information
that indicate that the subordinates were
committing or about to commit such
crimes (Art.28(b)(ii), ICC Statute);
Note: A civilian superior may not be held
criminally liable upon the basis of
imputed knowledge (should have
known). He must have consciously
disregarded information which would
have notified him of the violations being
perpetrated by his subordinates.
3. Failure to prevent or to punish said
violations.
C. Sources of Law
The Court shall apply:
1. In the first place, this Statute, the Elements
of Crimes and its Rules of Procedure and
Evidence;
2. In the second place, applicable treaties and
the principles and rules of international law,
including the established principles of the
international law of armed conflict;
3. Failing that, General principles of law
derived by the Court from national laws of
D. Other Key Concepts

Principle of Complementarity (Art.17, ICC
Statute)
The ICC is intended as a court of last resort,
investigating and prosecuting only where
national courts have failed. The ICC shall
assume jurisdiction over a case only where
national criminal jurisdictions are genuinely
unwilling or unable to investigate and prosecute
most serious crimes of international concern.
Where a State is able or willing, a case is not
admissible to the Court (CASSESE).
Nullum crimen nullum poena sine lege
(Art.22, ICC Statute)
A general principle in criminal law which
provides that a person shall not be criminally
responsible (under the ICC Statute) unless the
conduct in question constitutes, at the time it
takes place, a crime within the jurisdiction of the
Court.
As in any criminal proceeding, the accused

shall be presumed innocent until proved
guilty. The iota of evidence required to
convict an accused is proof beyond
reasonable doubt (Art.66, ICC Statute).
Applicable Penalties: The ICC may impose
(a) imprisonment for a specified number of
years, which may not exceed a maximum of
30 years; or (b) a term of life imprisonment
when justified by the extreme gravity of the
crime and the individual circumstances of
the convicted person. In no case may the
Court impose capital punishment.
E. Landmark Cases
1. The Case of Thomas Lubanga Dyilo
Thomas Lubanga Dyilo is a former rebel leader
from the Democratic Republic of the Congo. He
founded and led the Union of Congolese Patriots
(UPC) and was a key player in the Ituri conflict.
Rebels under his command have been accused
of massive human rights violations, including
ethnic massacres, murder, torture, rape,
mutilation, and forcibly conscripting child
soldiers.
163
Note: The ICC Statute entered into force in

2002. The Review Conference is scheduled
to be convened this year (2009).
On 17 March 2006, Lubanga became the first

person ever arrested under a warrant issued by
the International Criminal Court. He is on trial for
the war crime of enlisting children under the age
of fifteen years and using them to participate
actively in hostilities.
2. Sudan President Omar Al Bashir

On March 2009, the ICC Pre-Trial Chamber
issued a warrant for the arrest of Omar Al
Bashir, President of Sudan. Al Bashir is charged
of war crimes and crimes against humanity. He
is suspected of being criminally responsible, as
an indirect (co-)perpetrator, for intentionally
directing attacks against an important part of the
civilian population of Darfur, Sudan, murdering,
exterminating, raping, torturing and forcibly
transferring large numbers of civilians, and
pillaging their property.
Significance: This is the first warrant of arrest
ever issued for a sitting Head of State by the
ICC.
Under Article 27 0f the ICC Statute, Omar Al
Bashirs official capacity as sitting Head of State
does not exclude his criminal responsibility, nor
does it grant him immunity against prosecution
before the ICC. Immunities or special procedural
rules which may attach to the official capacity of
a person, whether under national or international
law, shall not bar the Court from exercising its
jurisdiction over such a person.
164
Status: The Pre-Trial Chamber I committed

Thomas Lubanga Dyilo for trial. The Chamber
found that there is sufficient evidence to
establish substantial grounds to believe that
Thomas Lubanga Dyilo is criminally responsible
as co-perpetrator for the war crimes he is
charged of.
Chapter XI. Diplomatic Intercourse

I.
AGENTS OF DIPLOMATIC INTERCOURSE

A. HEAD OF STATE
B. THE FOREIGN OFFICE
C. THE DIPLOMATIC CORPS
II. FUNCTIONS AND DUTIES
III. DIPLOMATIC IMMUNITIES AND PRIVILEGES
A. PERSONAL INVIOLABILITY
B. INVIOLABILITY OF PREMISES AND
ARCHIVES
C. RIGHT OF OFFICIAL COMMUNICATION
D. IMMUNITY FROM LOCAL JURISDICTION
E. EXEMPTION FROM TAXES AND
CUSTOMS DUTIES
IV. CONSULAR RELATIONS
A. RANKS
B. NECESSARY DOCUMENTS
C. IMMUNITIES AND PRIVILEGES
I.
Diplomatic Intercourse, also referred to as

the Right of Legation, is the right of the
State to send and receive diplomatic
missions, which enables States to carry on
friendly intercourse.
Agents of Diplomatic Intercourse
Chapter XI. DIPLOMATIC INTERCOURSE
It is composed of:
1. Head of Mission classified into: (a)
Ambassadors or nuncios accredited to
Heads of State, and other heads of mission
of equivalent rank; (b) Envoys, Ministers and
Internuncios accredited to Heads of State;
(c) Charges daffaires accredited to
Ministers of Foreign Affairs.
2. Diplomatic Staff those engaged in
diplomatic activities and are accorded
diplomatic rank.
3. Administrative and Technical Staff thise
employed in the administrative and technical
service of the mission.
4. Service Staff those engaged in the
domestic service of the mission(NACHURA
REVIEWER)
II. Functions and Duties
A. Head of State
The head of State represents the sovereignty of
the State, and enjoys the right to special
protection for his physical safety and the
preservation of his honor and reputation.
Upon the principle of exterritoriality, his
quarters, archives, property and means of
transportation are inviolate.
He is immune from criminal and civil jurisdiction,
except when he himself is the plaintiff, and is not
subject to tax or exchange or currency
restrictions.
B. 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, in
proper cases, may make binding declarations on
behalf of his government (Legal Status of
Eastern Greenland Case).
C. The Diplomatic Corps

Refers to the collectivity of all diplomatic
envoys accredited to a State.
In the Philippines, the President appoints

(Art.VII,Sec.16, Constitution), sends and
instructs the diplomatic and consular
representatives.
The main functions of a diplomatic mission

are the following:
1. Represent the sending State in the
receiving State;
2. Protect in the receiving State the
interests of the sending State and its
nationals, within the limits allowed by
international law;
3. Negotiate with the government of the
receiving State;
4. Ascertain, by all lawful means, the
conditions and developments in the
receiving State and reporting the same
to the sending State;
5. Promote friendly relations between the
sending State and receiving State, and
developing their economic, cultural and
scientific relations.
III. Diplomatic Immunities and Privileges

A. Personal Inviolability
The receiving State shall treat him with due

respect and take all steps to prevent any
attack on his person, freedom or dignity.
The diplomatic representative shall not be
liable to any form of arrest or detention.
The diplomatic envoy, however, may be
arrested temporarily in case of urgent
danger, such as when he commits an act of
165
His properties are not subject to

garnishment, seizure for debt, execution and
the like.
The diplomatic agent also cannot be
compelled to testify, not even by
deposition,
before
any
judicial
or
administrative tribunal in the receiving State
without the consent of his government.
The premises occupied by a diplomatic

mission, including the private residence of
the diplomatic agent, are inviolable.
Such premises cannot be entered or
searched, and neither can the goods,
records and archives be detained by local
authorities even under lawful process.

Duties
The envoy must consent to such entry,

except in extreme cases of necessity (ex.
When there is imminent danger that a crime
of violence is to be perpetrated in the
premises; when the premises are on fire).
He is also exempt from all customs

duties of articles for the official use of
the mission and those for the personal
use of the envoy or members of the
family forming part of his household,
including articles intended for his
establishment.
The service of writs, summons, orders or

processes within 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 premises to apprehend the same.
The
fugitive
should,
however,
be
surrendered upon demand by local
authorities, except when the right of asylum
exists.
C. Right of Official Communication
The envoy is entitled to fully and freely

communicate with his government.
The mission may employ all appropriate
means to send and receive messages by
any of the usual modes of communication or
by diplomatic courier, which shall enjoy
inviolability.
D. Immunity from Local Jurisdiction
A diplomatic agent enjoys immunity from

criminal jurisdiction of the receiving State.
He may not be arrested, prosecuted,

prosecuted or punished for any offense he
may commit, unless his immunity is waived.
This privilege, however, only exempts a
diplomatic agent from local jurisdiction; it
does not import immunity from legal liability.
The diplomatic agent also enjoys immunity

from the civil and administrative jurisdiction
of the receiving State, even with respect to
his private life.
Diplomatic agents are exempt from all

dues and taxes, whether personal or
real, national, regional or municipal.
Baggage and effects are entitled to free

entry and are usually exempt from
inspection.
Exception to Tax Exemption:
i.
Indirect taxes incorporated in the price of

goods purchased or services availed
ii. Dues and taxes on private immovable
property situated in the receiving State
iii. Estate, succession or inheritance taxes
levied by the receiving State
iv. Dues and taxes on private income
sourced within the receiving State
v. Capital
taxes
on
investments
in
commercial ventures in the receiving State
Duration of Immunities and Privileges.
These privileges are enjoyed by the envoy from
the moment he enters the territory of the
receiving State, and shall cease when he leaves
the country.
With respect to official acts, immunity shall
continue indefinitely.
Waiver of Immunities.
Diplomatic privileges may be waived. Such
waiver may be made only by the government of
the sending State if it concerns the immunities of
the head of the mission. In other cases, the
waiver may be made either by the government
or by the chief of the mission.
166
violence which makes it necessary to put

him under restraint for the purpose of
preventing similar acts.
IV. Consular Relations
A. Ranks
1. Consul General: heads several consular
districts, or one exceptionally large consular
district.
2. Consul: in charge of a small district or town
or port.
3. Vice Consul: assists the consul.
4. Consular agent:one entrusted with the
performance of certain functions by the
consul.
B. Necessary Documents
The following documents are necessary for

the assumption of Consular functions:
1. Letters Patent(letter de provision)
the letter of appointment or commission
which is transmitted by the sending state
to the Secretary of Foreign Affairs of the
country where the consul is to serve.
2. Exequatur the authorization given to
the consul by the sovereign of the
receiving State, allowing him to exercise
his function within the territory.
C. Immunities and Privileges

1. Freedom of communication;
2. Inviolability of archives, but not of the
premises where legal processes may be
served and arrests made;
3. Exemption from local jurisdiction for
offenses committed in the discharge of
official functions, but not for other offense
except for minor infractions;
4. Exemption from testifying on official
communications or on matters pertaining to
consular functions;
5. Exemption from taxes, customs duties,
military or jury service.
167
Consuls are State agents residing abroad for

various purposes but mainly
in the interest of commerce and navigation,
issuance of visa (permit to visit his country),
and
such other functions as are designed to
protect nationals of the appointing State.
Chapter XII. Recent International Law

Issues in Philippine Law
I.
II.
DANIEL SMITH AND THE VFA

CONSTITUTIONALITY OF THE BASELINES
LAW
III. VIOLENCE AGAINST WOMEN AS TORTURE
I.

Agreement
The issue of the constitutionality of the Visiting

Forces Agreement (VFA) was once again raised
in Nicolas v. Romulo (G.R. No. 175888)
involving the custody of convicted rapist Lance
Corporal Daniel Smith after the Philippine
Supreme Court had already ruled in favor of its
constitutionality in Bayan v. Zamora.
The controversy centers on a specific transitory
provision in the 1987 Constitution which states
that:
After the expiration in 1991 of the
Agreement between the Philippines and
the United States of America concerning
Military Bases, foreign military bases,
troops, or facilities shall not be allowed
in the Philippines except under a treaty
duly concurred in by the Senate and,
when the Congress so requires, ratified
by a majority of the votes cast by the
people in a national referendum held
for that purpose, and recognized as a
treaty by the other contracting State.
(Art. XVIII, sec. 25).
In particular, the main problem lies on what it
means for the VFA to be recognized as a
treaty by the United States.
There is apparently an international law issue in
this case involving, as it does, the recognition of
a treaty.
This seems to be the mindset of the Supreme
Court in Bayan v. Zamora when it affirmed the
constitutionality of the VFA saying that the
phrase recognized as a treaty means that the
other
contracting
party
accepts
or
acknowledges the agreement as a treaty even
without the US following its constitutional
requirements (i.e. Senate concurrence) for the
acceptance of a treaty.
Notably, the Court in Bayan said that it is
inconsequential whether the United States treats
the VFA only as an executive agreement
because, under international law, an executive
Chapter XII. RECENT INTERNATIONAL LAW ISSUES
agreement is as binding as a treatyin other

words, treating the controversy as an
international law issue.
Dean Merlin Magallona argues that the Bayan
Court should have treated the issue as a
domestic case because it is a constitutional
attack against the VFA, not a case in
international law.
The petitioners in the recent case of Nicolas v.
Romulo
contended
that
the
Philippine
Government should have custody of Daniel
Smith because the VFAwhich will govern such
issue
of
custodyis
void
for
being
unconstitutional.
They said this in the wake of Medellin v. Texas
(552 U.S. ___ (2008)) decided by the US
Supreme Court which held that treaties entered
into by the United States are not automatically
part of US domestic law unless:
these treaties are self-executing or
there is an implementing legislation to make
them enforceable.
The Philippine Supreme Court answered that the
VFA is enforceable because it is considered as
an implementation of the RP-US Mutual Defense
Treaty and the VFA is covered by an
implementing legislationi.e. the Case-Zablocki
Act, USC Sec. 112(b)which treats VFA as an
executive agreement to be immediately
implemented 60 days from its ratification.
The dissenting opinion of Chief Justice Reynato
Puno follows his dissent in Bayan. He says that
there is an anomalous asymmetry in the legal
treatment of the VFA between the US and the
Philippines because the VFA can never be
considered as a binding treaty in the US if it has
no concurrence of the US Senate; indeed, the
acknowledgement of the US President of the
VFA as a treaty is not enough.
Moreover, nowhere in the text of the VFA states
that it is self-executory both in the US and the
Philippines.
The dissent of Justice Carpio follows the same
line of reasoning. He points out that the CaseZablocki Act operates merely as a timely
notification to the U.S. Congress of the executive
agreements, other than a treaty, that the U.S.
President has entered into with foreign States
as clearly stated in its provisions.
Art. XVIII, sec. 25 of the Philippine Constitution,
he says, bars the efficacy of such a treaty that
is enforceable as domestic law only in the
168
II. The Constitutionality of the Baselines

Law
Republic Act 9522 was enacted to comply with
the deadline set by the United Nations
Convention of the Law of the Sea (UNCLOS) for
member states to draw its baselines as a result
of the Third United Nations Conference on the
Law of the Sea in 1973 (the UNCLOS III
regime).
The statute amended Republic Act 3046 entitled
An Act to Define the Baselines of the Territorial
Sea of the Philippines by changing the
baselines of the Philippines and specifically
excluding the Kalayaan Island Group and the
Scarborough Shoal (also known as Bajo de
Masinloc) from such baselines.
Instead they are considered as a regime of
islands under Article 121 of the UNCLOS which
can have its own territorial sea, contiguous zone
and exclusive economic zone and a continental
shelf in accordance with the provisions of the
Convention (Sec. 2, RA 9522).
There is currently a petition in the Supreme
Court questioning its constitutionality for it
allegedly violates Article 1 of the 1987
Constitution which used the Treaty of Paris,
the Treaty of Washington and the 1930
Convention between the US and Great Britainas
its basis in defining the national territory of
the Philippines.
The baselines set by RA 9522 is said to be a
radical departure from the baselines set by such
treaties on which our Constitution is based.
Moreover, by disregarding Article 1 of the
Philippine Constitution, the new baselines law
allegedly converts the internal waters of the
Philippinesthe waters around, between, and
connecting the islands of the archipelago into
archipelagic waters under the UNCLOS III
regime thus rendering nugatory the reservations
of the Philippines under the UNCLOS and
allowing ships of all states the right of innocent
passage (UNCLOS Art. 52) and the right of
archipelagic sea lanes passage, i.e., the rights of
navigation and overflight solely for the purpose
of continuous, expeditious, and unobstructed
transit between one part of the high seas or an
exclusive economic zone and another part of the
high seas or an exclusive economic zone
(UNCLOS Art. 53).
Other provisions of the Constitution that are said

to be violated are:
1. Art. II, sec. 7 on the pursuit of independent
foreign policy;
2. Art. II. Sec. 8 on the policy of freedom from
nuclear weapons in Philippine territory
since foreign ships of all kinds to navigate in
Philippine waters including nuclear-powered
submarines, nuclear-powered warships and
other ships carrying weapons-grade nuclear
substances (UNCLOS Art. 52 in relation to
Arts. 20, 22, 23);
3. Art. II, sec, 16 on the policy of a balanced
and healthful ecology;
4. Art. XII, sec. 2 on marine wealth and
5. Art. XIII, sec. 7 on the protection on offshore
fishing grounds for fishermen.

AS A FORM OF TORTURE*
State acquiescence in domestic violence can
take many forms, some of which may be subtly
disguised. For instance, Civil laws that appear to
have little to do with violence also have an
impact on womens ability to protect themselves
and assert their rights.
Laws that restrict womens right to divorce or
inheritance, or that prevent them from gaining
custody of their children, receiving financial
compensation or owning property, all serve to
make women dependent upon men and limit
their ability to leave a violent situationStates
should be held accountable for complicity in
violence against women, whenever they create
and implement discriminatory laws that may trap
women in abusive circumstances
State responsibility may also be engaged if
domestic laws fail to provide adequate protection
against any form of torture and ill-treatment in
the home.
International law has developed considerably
over the years to become more genderinclusive. In 1996, the Special Rapporteur on
violence against women stated that: the
argument that domestic violence should be
*
Nowak, Manfred, Special Rapporteur, Report on

Torture and Other Cruel, Inhuman or Degrading
Treatment Or Punishment for Item 3 of the
Provisional Agenda: Promotion and Protection of All
Human Rights, Civil, Including The Right To
Development during the Seventh Session of the United
Nations Human Rights Council last January 15, 2008.
169
Philippines but unenforceable as domestic law in

the other contracting State.
understood and treated as a form of torture and,

when less severe, ill-treatment, is one that
deserves consideration by the rapporteurs and
treaty bodies that investigate these violations
together perhaps with appropriate NGO experts
and jurists.
In line with this statement the Committee has

mentioned the need for States to adopt specific
legislation
combating
domestic
violence,
including
legislation
criminalizing
marital
rape.More specifically, it has called upon States
to ensure that their justice systems incorporate
restraining orders to protect women from violent
family members, provide shelters and other
support to victims, establish measures to
encourage women to report domestic violence to
the
authorities,and
offer
material
and
psychological relief to the victims.
170
In 2000, the Human Rights Committee

indicated that domestic violence can give
rise to violations of the right not to be
subjected to torture or ill-treatment under
article 7 of the ICCPR.
APPENDICES
171
For States A and B, normal baselines

baselinesthe lines depicting the low water lineare
are used.
For State C, combinations of normal and straight baselines are used. Straight baselines are employed on
the part of the coastwhich is fringed with islets.
Appendix 2 - Continental Shelf and the Maritime Zones
- end of Public International Law -
TABLE of CONTENTS
ADMINISTRATIVE LAW
Table of Contents

Agencies .......................................................176
A. Quasi-Legislative (Rule-making) Powers
176
1.
Definition .......................................176
2.
Non-delegation doctrine................176
3.
Legislative Delegation...................176
B. Quasi-Judicial (Adjudicatory) Powers178
C. Determinative Powers .......................183
Chapter III. Judicial Review and Enforcement
of Agency Action..........................................184
A. Considerations ..................................184
1.
Basis .............................................184
2.
Factors to Consider in Judicial
Review: ..................................................184
3.
The doctrines of forum shopping, litis
pendentia and res judicata also apply to
administrative agencies. ........................184
4.
General Rule.................................184
5.
Exceptions ....................................184
6.
When judicial review is valid despite
finality of administrative decisions: ........185
7.
Availability
of
Judicial
Review
depends on:...........................................185
Review .......................................................185
1.
Doctrine of Primary Jurisdiction or
Preliminary Resort .................................185
2.
Doctrine
of
Exhaustion
of
Administrative Remedies.......................186
3.
Doctrine of Qualified Political Agency
187
4.
Ripeness .......................................187
C. Extent of Judicial Review ..................188
1.
General Rule.................................188
2.
General Principles ........................188
3.
Law-fact Distinction.......................188
4.
Question of Law............................188
5.
Question of Fact ...........................188
6.
Question of Discretion ..................189
D. Modes of Judicial Review..................190
1.
Certiorari .......................................190
2.
Prohibition .....................................190
3.
Mandamus ....................................191
4.
Declaratory Relief .........................192
5.
6.
7.
8.
Habeas Corpus............................. 192

Writ of Amparo.............................. 193
Habeas Data................................. 193
Injunction as Provisional Remedy 193
E. Enforcement of Agency Action ......... 194
1.
Res Judicata; Finality of Judgment
194
2.
Writ of Execution; Mandamus....... 194
173
ADMINISTRATIVE LAW
Chapter I. Preliminary Considerations.......174

A. Definitions .........................................174
B. Historical Considerations ..................174
Agencies ....................................................174
D. When is an agency administrative? ..175
E. Types of Administrative Agencies .....175
Prof. Rodolfo Noel Quimbo

Faculty Editor
Diana Lutgarda Bonilla

Lead Writer
POLITICAL LAW
Jennifer Go
Subject Editor
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

Kae Guerrero
DESIGN & LAYOUT

Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya
LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Heads
Volunteers
MOCK BAR COMMITTEE

Lilibeth Perez

Dahlia Salamat
LOGISTICS
Charisse Mendoza
Jill Hernandez
Head
Members
Chapter I. Preliminary Considerations

A.
B.
C.
D.
E.
DEFINITIONS
HISTORICAL CONSIDERATIONS
MODES OF CREATION OF ADMINISTRATIVE
AGENCIES
WHEN IS AN AGENCY ADMINISTRATIVE?
TYPES OF ADMINISTRATIVE AGENCIES
A. Definitions
1. Administrative Law is that branch of
modern law under which the executive
department of the government, acting in
a quasi-legislative or quasi-judicial
capacity, interferes with the conduct of
the individual for the purpose of promoting
the well-being of the community (DEAN
ROSCOE POUND)
2. Administrative Agencies are the organs of
government, other than a court and other
than the legislature, which affect the rights of
private parties either through adjudication or
through rule-making.
B. Historical Considerations
1. Why did administrative agencies come
about?
Growing complexities of modern life
Multiplication of number of subjects
needing government regulation; and
Increased difficulty of administering laws
[Pangasinan Transportation vs Public
Service Commission (1940)]
2. Why are administrative agencies needed?
Because the government lacks:
Time
Expertise and
Organizational aptitude for effective and
continuing
regulation
of
new
developments in society (STONE)

Agencies
1. 1987 Constitution
(e.g. CSC, COMELEC, COA, CHR, Commission
on Appointments, Judicial and Bar Council and
NEDA)
2. Legislative Enactment
(e.g. NLRC, SEC, PRC, Social Security
Commission, Commission on Immigration and
Deportation, Philippine Patent Office, Games and
174
ADMINISTRATIVE LAW
ADMINISTRATIVE LAW TEAM
Chapter I. PRELIMINARY CONSIDERATIONS
ADMINISTRATIVE LAW

Amusement Board, Board
Insurance Commission)
Chapter I. PRELIMINARY CONSIDERATIONS

of
Energy,
and
3. Executive Order/ Authority of law

(e.g. Fact-finding Agencies)
D. When is an agency administrative?
2. On its rule-making authority, it is

administrative when it does not have
discretion to determine what the law shall be
but merely prescribes details for the
enforcement of the law.
E. 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,
Land Registration Authority);
3.
Service for public benefit (e.g. Philpost, PNR,

MWSS, NFA, NHA);
4.
Regulation of businesses affected with

public interest (e.g. Insurance Commission,
LTFRB, NTC, HLURB);
5.
Regulation of private
individuals (e.g. SEC);
businesses
and
6. Adjustment of individual controversies

because of a strong social policy involved
(e.g. ECC, NLRC, SEC, DAR, COA).
175
ADMINISTRATIVE LAW
1. Where its function is primarily regulatory

EVEN IF it conducts hearings and
determines controversies to carry out its
regulatory duty.
Chapter II. POWERS of ADMINISTRATIVE AGENCIES
i.

Agencies
A.
B.
C.
QUASI-LEGISLATIVE (RULE-MAKING)
POWERS
1. DEFINITION
2. NON-DELEGATION DOCTRINE
3. LEGISLATIVE DELEGATION
a. REQUISITES
OF
A
VALID
DELEGATION
b. A SUFFICIENT STANDARD
c. FORM
OF
THE
SUFFICIENT
STANDARD
d. PERMISSIBLE DELEGATION
QUASI-JUDICIAL (ADJUDICATORY) POWERS
1. DEFINITION
2. SOURCE
3. REQUISITES FOR VALID EXERCISE
4. GENERAL RULE
5. WHAT
QUASI-JUDICIAL
POWERS
INCLUDE
6. INVESTIGATIVE POWERS
7. SUBPOENA POWERS
8. POWER TO CITE IN CONTEMPT
9. WARRANTS OF ARREST
10. ADMINISTRATIVE SEARCHES
11. DUE PROCESS
12. NOTICE AND HEARING
13. ADMINISTRATIVE
AND
JUDICIAL
PROCEEDINGS ARISING FROM THE
SAME FACTS
14. RULES OF EVIDENCE
DETERMINATIVE POWERS
The powers of administrative agencies are:

Quasi-legislative (Rule-making)
Quasi-judicial (Adjudicatory) and
Determinative
A. Quasi-Legislative
Powers
ii.
The law must be complete in itself and

must set forth the policy to be executed
The law must fix a standard, the limits
of which are sufficiently determinate or
determinable, to which the delegate
must conform
b. A sufficient standard:
i. Defines legislative policy, marks its
limits, maps out its boundaries and
specifies the public agency to apply it;
and
ii. Indicates the circumstances under
which the legislative command is to be
effected. [Santiago v COMELEC (1997);
ABAKADA Guro List vs Ermita (2005)]
c.
Form of the sufficient standard:

i. Express
ii. Implied [Edu vs Ericta (1970)]
iii. Embodied in other statutes on the same
matter and not necessarily in the same
law being challenged. [Chiongbian vs
Orbos (1995)]
d. Permissible Delegation
i. Ascertainment of Fact
ii. Filling in of Details
iii. Fixing of Rates, Wages, Prices
iv. Licensing Function, and
v. Administrative Rule-Making
i.
Ascertainment of Fact. A statute may

give to non-judicial officers:
the power to declare the existence
of facts which call into operation the
statutes provisions and
may
grant
them
and
their
subordinate officers the power to
ascertain and determine appropriate
facts as a basis of procedure in the
enforcement of laws.
Such functions are merely incidental
to the exercise of power granted by
law to clear navigable streams of
unauthorized obstructions. They can
be conferred upon executive
officials provided the party affected
is given the opportunity to be heard.
[Lovina vs. Moreno(1963)]
ii.
Filling in of details
For necessity and as a means of
enforcement and execution [Alegre
vs Collector of Customs (1920)]
(Rule-making)
1. Definition
The authority delegated by the law-making body
to the administrative agency to adopt rules and
regulations intended to carry out the provisions
of a law and implement legislative policy.
2. Non-delegation doctrine
Potestas delegata non delegare potest. What
has been delegated cannot be delegated.
3. Legislative Delegation
a. Requisites for a valid delegation
iii. Fixing of rates, wages, prices

Sec. 2(3), 1987 Administrative Code.
Rate means any charge to the public for a
176
ADMINISTRATIVE LAW
service open to all and upon the same

terms, including individual or joint rates, tolls,
classification or schedules thereof, as well
as communication, mileage, kilometrage and
other special rates which shall be imposed
by law of regulation to be observed and
followed by any person.
determined by the agency.

License includes the whole or any part of
any agency permit, certificate, passport,
clearance, approval, registration, charter,
membership, statutory exemption or other
form of permission, or regulation of the
exercise of a right or privilege.
Sec. 9, 1987 Administrative Code. Public

Participation.
(2) In the fixing of rates, no rule or final order
shall be valid unless the proposed rates
shall have been published in a newspaper of
general circulation at least 2 weeks before
the first hearing thereon.
Generally, the power to fix rates is a

quasi-legislative function. However,
it becomes judicial when the rate
is
applicable
only
to
an
individual.
Can the power to fix rates be
delegated to a common carrier or
other public service? NO. The latter
may propose new rates, but these
will not be effective without the
approval of the administrative
agency. [KMU vs Garcia (1994)]
What are considered in the fixing of
rates? (1) the present valuation of
all the property of a public utility,
and (2) the fixed assets. The
property is deemed taken and
condemned by the public at the time
of filing the petition, and the rate
should go up and down with the
physical valuation of the property.
[Ynchausti
vs
Public
Utility
Commissioner (1922)]

Licensing
includes
agency
process
involving the grant, renewal, denial,
revocation,
suspension,
annulment,
withdrawal,
limitation,
amendment,
modification or conditioning or a license.
v.
When are notice and hearing

required in licensing? Only if it is a
contested case. Otherwise, it can
be dispensed with.(e.g. drivers
licenses).
No expiry date does not mean the
license is perpetual.
A license
permit is a special privilege, a
permission or authority to do what is
within its terms.
It is always
revocable. [Gonzalo Sy Trading vs
Central bank (1976)]
Administrative Rule-making
o Types of Administrative Rules:
a. Supplementary legislation
b. Interpretative legislation
c. Contingent legislation
a. Supplementary legislation
Pertains to rules and regulations to fix
details in the execution of a policy in the
law. e.g. IRRs of the Labor Code.
iv. Licensing Function

Sec. 17, 1987 Administrative Code.
Licensing Procedure. (1) When the grant,
renewal, denial or cancellation of a license is
required to be preceded by notice and
hearing, the provisions concerning contested
cases shall apply insofar as practicable.
(2) Except in cases of willful violation of
pertinent laws, rules and regulations or when
public security, health, or safety requires
otherwise, no license may be withdrawn,
suspended, revoked or annulled without
notice and hearing.
Sec. 18, 1987 Administrative Code. Nonexpiration of License. Where the licensee
has made timely and sufficient application for
the renewal of a license with reference to
any activity of a continuing nature, the
existing license shall not expire until the
application
shall
have
been
finally
b. Interpretative legislation
Pertains to rules and regulations
construing or interpreting the provisions
of a statute to be enforced and they are
binding on all concerned until they are
changed, i.e. BIR Circulars.
GENERAL DISTINCTIONS FROM

LEGISLATIVE RULES
Legislative Rules
Promulgated pursuant
to its quasi-legislative /
rule-making functions.
Create a new law, a
new policy, with the
force and effect of law.
Need publication.
So long as the court
finds that the legislative
rules are within the
Interpretative Rules
Passed pursuant to
quasi-judicial capacity.
its
Merely clarify the meaning of

a
pre-existing law by
inferring its implications.
Need not be published.
The court may review their
correctness
of
the
interpretation of the law
177
ADMINISTRATIVE LAW
Legislative Rules
power
of
the
administrative agency to
pass, as seen in the
primary law, then the
rules bind the court.
The
court
cannot
question the wisdom or
correctness of the policy
contained in the rules.
of the Admin Code in relation to

the Civil Code.
EO 200 requires publication of
laws in the Official Gazette or in
a
newspaper
of
general
circulation.
Publication
is
indispensable, especially if the
rule is general.
EXCEPTIONS:
Interpretative rules
Internal regulations (i.e.
regulating personnel)
Letters
of
instructions
issued by administrative
superior to subordinates
Effectivity: 15 days after publication,
not 15 days from date of filing with
the UP Law Center.
EXCEPTIONS:
Different date is fixed by law or
specified in the rule.
In case of imminent danger to
public health, safety and
welfare.
Restrictions
on
interpretative
regulations: (a) does not change the
character of a ministerial duty, (b)
does not involve unlawful use of
legislative or judicial power.
Administrative interpretations: may
eliminate
construction
and
uncertainty in doubtful cases.
When laws are susceptible of two or
more
interpretations,
the
administrative agency should make
known its official position.
Administrative
construction/
interpretation not controlling as to
the proper construction of a statute,
but generally it is given great weight,
has a very persuasive influence
and may actually be regarded by the
courts as the controlling factor.
Administrative
interpretation
is
merely advisory; Courts finally
determine what the law means.
c. Contingent legislation
Pertains to rules and regulations made
by an administrative authority on the
existence of certain facts or things upon
which the enforcement of the law
depends.
o
Requisites of a valid administrative

rule (WRAP)
Authorized by law
Within the scope or authority of
law
Reasonableness
promulgated in accordance with
prescribed Procedure
Penal Rules
Sec. 6, 1987 Administrative Code.
Omission of Some Rules. (2) Every
rule establishing an offense or defining
an act which, pursuant to law is
punishable as a crime or subject to a
penalty shall in all cases be published in
full text.
a) The law itself must declare the

act as punishable and must
also define or fix the penalty
for the violation.
b) Can administrative bodies make
penal rules? NO. Penal statutes
are exclusive to the legislature
and cannot be delegated.
Administrative
rules
and
regulations must not include,
prohibit or punish acts which the
law does not even define as a
criminal act. [People vs Maceren
(1977)]
c) If a rule is penal, it must be
published before it takes effect.
[People vs Que Po Lay (1954)]
B. Quasi-Judicial (Adjudicatory) Powers

Publication Rules
Administrative
rules
and
regulations are subject to the
publication and effectivity rules
1. Definition. The power of the administrative

agency to determine questions of fact to
which the legislative policy is to apply, in
178
ADMINISTRATIVE LAW
Due process involves

whether the parties
were
afforded
the
opportunity
to
be
notified
and
heard
before the issuance of
the ruling.
Interpretative Rules
given by the administrative
body, and substitute its own
view of what is correct to the
administrative body. If it is
not within the scope of the
administrative agency, court
can only invalidate the same
but
not
substitute
its
decision or interpretation or
give its own set of rules.
Due process means that the
body observed the proper
procedure in passing rules.
accordance with the standards laid down by

the law itself.
2. Source. Incidental to the power of regulation
but is often expressly conferred by the
legislature through specific provisions in the
charter of the agency.
DISTINCTIONS FROM JUDICAL

PROCEEDINGS
Kind
of
Proceedings
Nature
of
Proceedings
Administrative
Judicial
Inquisitorial
Adversarial
Rules
of
Procedure
Liberally applied
Nature
and
Extent
of
Decision
Decision limited to
matters of general
concern
Parties
The agency itself

may be a party to
the proceedings
before it
Follow
technical
rules in the
Rules
of
Court
Decision
includes
matters
brought
as
issue by the
parties
The
parties
are only the
private
litigants
3. Requisites for a Valid Exercise:

a. Jurisdiction
b. Due process
4. General Rule: A tribunal, board or officer
exercising judicial functions acts without
jurisdiction if no authority has been
conferred to it by law to hear and decide
cases.
a. Jurisdiction to hear is explicitly or by
necessary
implication,
conferred
through the terms of the enabling
statute.
b. Effect of administrative acts outside
jurisdictionVOID.
5. Quasi-judicial powers include: (SF-SWIP)
a. Investigative
b. Subpoenas
c. Power to Cite in Contempt
d. Warrants of Arrest (only upon final order
of deportation)
e. Administrative Searches
f. Imposition of Fines and penalties
6. Investigative
powers.
Administrative
agencies power to conduct investigations
and hearings, and make findings and
recommendations thereon is inherent in
their functions as administrative agencies
Findings of facts by administrative

bodies which observed procedural
safeguards (e.g. notice and hearing
parties, and a full consideration of
evidence) are accorded the greatest
respect by courts
7. Subpoena powers. All agencies with

quasi-judicial functions have the power to
issue subpoena even if the charter is silent
as to such power.
Why? Adjudicative power will be rendered
inutile if there is no subpoena power.
Test for valid enforcement of subpoena:

[Evangelista vs Jarencio (1975)]
(a) Within the authority of the agency.
(b) Demand not too indefinite.
(c) Information reasonably relevant.
8. Power to cite in contempt. This power must

be expressly granted in the charter (ex. PD
902-A creating the SEC).
If there is no grant, the agency must go
to the RTC. Why? Because the power to
cite in contempt is inherently judicial.
Contempt power can be used for quasijudicial functions (but NOT ministerial
ones) [Guevarra vs COMELEC (1958)]
9. Warrants of arrest. Administrative agencies
cannot issue warrants of arrest. Only a
judge may issue warrants.
[Salazar v
Achacoso (1990)]
EXCEPTION: Deportation of illegal and
undesirable aliens following a final order of
deportation. [Qua Chee Gan v Deportation
Board (1963)]
Two ways of deporting:

i. Commissioner of Immigration (Sec
37 of CA 618)
ii. President after due investigation
(Sec 69 of Administrative Code)
Can the Commissioner issue warrants
of arrest?
Issuance of the warrants of arrest by the
Commissioner, solely for the purpose of
investigation and before a final order of
deportation is issued, conflicts with
paragraph 3, Sec. 1, Art. III of the 1935
Constitution, which states that the power
to determine probable cause for
warrants of arrest is limited to judges.
Warrants of arrest issued solely for the
purpose of investigation and before a
final order of deportation is issued are
therefore null and void. Notice and
179
ADMINISTRATIVE LAW
bonds are sufficient to ensure that the

subject will appear at the hearing
without prejudice to more drastic
measures in case of recalcitrant
respondents. [Vivo v Montesa (1968)]
The cases of Harvey and Lucien Tran

Van Nghia, however, diverge from the
Qua Chee Gan ruling.
Harvey v Defensor-Santiago (1988].
The Commissioner can arrest aliens
upon a warrant issued by him and
deported upon warrant issued by the
same after a determination of the
existence of a ground for deportation by
the
Board
of
Commissioners.
Deportation
proceedings
are
administrative in nature, not penal, but
merely preventive. Thus, it need not be
conducted strictly in accordance with
ordinary
court
proceedings.
The
requirement
of
probable
cause,
determined by a judge, does not extend
to deportation proceedings. What is
essential however is that (1) there be a
specific charge against the alien, (2)
there be a fair hearing conducted, and
(3) the charge be substantiated by
competent evidence
Lucien Tran Van Nghia v Liwag

(1989).
In this case, the arrest and detention by
the CID preparatory to the deportation
proceedings was illegal.
Here, the
particular circumstances place doubt on
the propriety of the arrest. The Mission
Order was issued on the basis of sworn
complaints of a single individual. The
essential requisite of probable cause is
absent (Implication: the Commissioner
may issue warrants of arrest upon
finding of probable cause).
The Qua Chee Gan ruling is reinforced

by a case more recent than the Harvey
and Lucien cases.
Salazar v Achacoso (1990)
Art. 38 of the Labor Code allowing the
Secretary of Labor the power to issue
warrants of arrest is unconstitutional.
Only a judge may issue search or
arrest warrants. The SC reaffirms the
following principles: (1) Under Sec.2,
Art. III of the Constitution, only judges
may issue search warrants and warrants
of arrest; and (2) the exception is in
cases of deportation of illegal and
undesirable aliens, whom the President

or the Commissioner may order
arrested, following a final order of
deportation, for the purpose of the
same.
Harvey or Qua Chee Gan? Qua Chee

Gan prevails. It is supported by more
recent cases. Note also that Salazar
was decided en banc, while Harvey was
decided by a division.
10. Administrative Searches. Warrantless nonemergency inspection of residential and

commercial
premises
are
significant
intrusions upon the interests protected by
th
the 4 Amendment.
It is surely anomalous to say that the

individual and his private property are
fully protected by the constitution only
when he is suspected of criminal
behavior. Warrants should normally be
sought only after entry is refused unless
there is a citizen complaint or other
satisfactory
reason
for
securing
immediate entry.
th
There is no justification for relaxing 4
Amendment safeguards for commercial
establishments.
Warrants
are
a
necessary and tolerable limitation on the
right to enter upon and inspect places of
business. [Camara vs Municipal Court
(1967)]
Limitations on administrative subpoenas of

corporate books and documents are:
i. Limited in scope.
ii. Relevant in purpose.
iii. Specific directives so compliance will
not be unreasonably burdensome.
iv. Subpoena must designate the needed
documents.
v. Subpoena may not be made and
enforced in the field.
vi. Subpoenaed party may obtain judicial
review of reasonableness of demand
prior to suffering penalties for refusal to
comply.
vii. The particular agencys demand for
access will be measured against a
flexible standard of reasonableness that
takes into account the public need for
effective enforcement of regulations.
[See vs Seattle (1967)]
180
ADMINISTRATIVE LAW
[Nos. 11-14 cover Administrative Procedure

(Asked 9 times in the Bar)]
11. Due Process.
Ang Tibay v CIR (1950) lays down the
cardinal primary rights:
i. Right to a hearing (Includes the right
of a party to present his own case
and submit evidence in support
thereof)
ii. The tribunal must consider the
evidence presented
iii. Decision must be supported by
evidence.
iv. Evidence must be substantial.
Substantial
Evidence:
such
relevant evidence as a reasonable
mind might accept as adequate to
support a conclusion, even if other
minds equally reasonable would
opine otherwise
v. Decision must be rendered on the
evidence presented at the hearing
or at least contained in the record
and disclosed to the parties affected
vi. Independent consideration of judge
(Must not simply accept the views of
a subordinate)
vii. Decision rendered in such a manner
as to let the parties know the
various issues involved and the
reasons for the decision rendered.
Due process does not always entail

notice and hearing prior to the
deprivation of a right. Hearing may
occur after deprivation, as in emergency
cases, in which case, there must be a
chance to seek reconsideration. [UP
Board of Regents vs CA (1999)]
Presence of a party at a trial is not

always the essence of due process. All
that the law requires is the element of
fairness; that the parties be given
notice of trial and
i. an opportunity to be heard
ii. in administrative proceedings, an
opportunity to seek reconsideration
iii. an opportunity to explain ones side
The law, in prescribing a process of

appeal to a higher level, contemplates
that the reviewing officer is a person
different from the one who issued the
appealed decision.
Otherwise, the
review becomes a farce; it is rendered
meaningless. [Rivera vs CSC (1995)]
Is a trial necessary? NO. WON to hold

an adversarial trial is discretionary.
Parties cannot demand it as a matter of
right. [Vinta Maritime v NLRC (1978)].
The right of a party to confront and

cross-examine opposing witness is a
fundamental right which is part of due
process. If without his fault, this right is
violated, he is entitled to have the direct
examination stricken off the record.
[Bachrach Motors vs CIR (1978)]
Evidence on record must be fully

disclosed to the parties. [American InterFashion vs Office of the President
(1991)]
BUT
respondents
in
administrative cases are not entitled to
be informed of findings of investigative
committees but only of the decision of
the administrative body. [Pefianco v
Moral (2000)]
Due process is violated when:

i. There is failure to sufficiently explain
the reason for the decision
rendered; or
ii. If not supported by substantial
evidence;
iii. And imputation of a violation and
imposition of a fine despite absence
of due notice and hearing. [Globe
Telecom v NTC (2004)].
Self-incrimination. The right against selfincrimination may be invoked by the

respondent at the time he is called by the
complainant as a witness. However, if he
voluntarily takes 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 an
offense other than that charged. [People vs
Ayson (1989)]
12. Notice and Hearing.

When required:
i. When the law specifically requires it.
ii. When it affects a persons status
and liberty.
When not required:
i. Urgent reasons.
ii. Discretion is exercised by an officer
vested with it upon an undisputed
fact.
iii. If it involves the exercise of
discretion and there is no grave
abuse.
181
ADMINISTRATIVE LAW
iv. When rules to govern future conduct

of persons or enterprises, unless
law provides otherwise.
v. In the valid exercise of police power.
13. Administrative and judicial proceedings
arising from the same facts.
The practice in the Philippines has been
to allow an administrative proceeding
and a judicial proceeding to take place
at the same time so long as the 2
actions are independent of each other.
The difference in the proceeding (one

administrative, the other criminal) is not
legal incompatibility, but merely physical
incompatibility. They involve different
causes of action and therefore can
proceed simultaneously. [Galang vs CA
(1961)]
Material matters in an administrative
case are not necessarily relevant in the
criminal case. Findings in criminal cases
cannot be conclusive for administrative
purposes. There are defenses, excuses,
and attenuating circumstances of value
in administrative proceedings that are
not admissible in criminal cases which
can have a blunting effect on the
conviction. Due process should be
upheld. Conviction does not ex proprio
vigore justify automatic suspension.
[Villanos vs Subido (1971)]
Acquittal in the criminal case does not
carry with it relief from administrative
liability. Different standards apply. The
administrative case requires only a
preponderance of evidence to establish
administrative guilt; the criminal case
requires proof beyond reasonable doubt
of the criminal charge.
[Police
Commission vs Lood (1980)]
administrative agencies to act with

speed and flexibility.
The Pervasive Principle applies in at least
three areas:
i. Admissibility: Generally, agencies are
not bound by the technical rules of
admissibility.
ii. Judicial Notice: Administrative bodies
may take into account not only such
evidence as may be presented by the
parties in the determination of the case.
They may also make their inquiry into
facts at issue, and take judicial notice of
certain other matters.
iii. Quantum of Evidence: Only substantial
evidence is required to support a
decision.
Ocular inspection is not equivalent to a

trial or presentation of evidence, as it is
only an auxiliary remedy. Parties are
still entitled to a hearing. But if the issue
can be resolved through ocular
inspection, there is no prohibition. [Phil.
Movie Pictures Workers Association vs
Premiere Productions (1953)]
Can the order of testimony be changed?

YES, it is within the discretion of the
court. Such a relaxed procedure is
especially true in administrative bodies.
In the broad interest of justice, the
administrative body may except itself
from technical rules and apply such
suitable procedure as shall promote the
objectives. [Maceda v ERB (1991)]
When are findings of fact of

administrative agencies not conclusive
upon the courts?
i.
When the decision was rendered

by an almost evenly divided court
and the division was precisely on
the facts as borne out by the
evidence. [Gonzales vs Victory
Labor Union (1969)]
ii.
When the decision was rendered in

consequence of fraud, imposition
or mistake, other than error of
judgment in estimating the value or
effect of the evidence. [Ortua vs
Singson (1934)]
There can be a conviction in a criminal

case and an acquittal in the
administrative case. [Villanos vs Subido
(supra)]
14. Rules of Evidence. Generally, apply the

specific rules of the administrative agency.
In the absence thereof, apply the general
rules on procedure.
However, administrative agencies are

not bound by the technical rules of
evidence of ordinary courts, so long as
due process is observed. (the
Pervasive Principle) Why? To allow
iii. When
the
supported
decision
is
not
by
substantial
182
ADMINISTRATIVE LAW
evidence.
(1988)]
[Manahan
People
iv. When the findings are based

merely on their position papers.
There is no trial through position
papers where the adversarial
process would ensure a better
presentation and appreciation of the
evidence. [PAL vs Confessor
(1994)]
The SC will intervene only when the
standard appears to have been
misapprehended or grossly misapplied.
[Universal Camera vs NLRC (1951)]
C. Determinative Powers
Determinative powers are: (DEEDS)
a. Enabling to permit or allow something
which the law undertakes to regulate, e.g.
licenses
b. Directing i.e. assessment by the BIR or
Customs
c. Dispensing to exempt from a general
prohibition, or relieve an individual or
corporation from an affirmative duty, e.g.
authority of zoning
d. Examining investigatory power; consists
in requiring production of books, papers, and
the attendance of witnesses and compelling
their testimony
e. Summary power to apply compulsion or
force to effect a legal purpose without a
judicial warrant to authorize such action, e.g.
fields of health inspection, abatement of
nuisances.
183
ADMINISTRATIVE LAW
Chapter III. JUDICIAL REVIEW and ENFORCEMENT of AGENCY ACTION
Chapter III. Judicial Review

Enforcement of Agency Action
A.
B.
C.
D.
E.
and
CONSIDERATIONS
1. BASIS
2. FACTORS TO CONSIDER IN JUDICIAL
REVIEW
3. DOCTRINES
APPLICABLE
TO
ADMINISTRATIVE AGENCIES
4. GENERAL RULE
5. EXCEPTIONS
6. WHEN JUDICIAL REVIEW IS VALID
DESPITE FINALITY OF ADMINISTRATIVE
DECISIONS
7. AVAILABILITY OF JUDICIAL REVIEW
FOUR IMPORTANT DOCTRINES IN JUDICIAL
REVIEW
1. PRIMARY JURISDICTION
2. EXHAUSTION
OF
ADMINISTRATIVE
REMEDIES
3. QUALIFIED POLITICAL AGENCY
4. RIPENESS
EXTENT OF JUDICIAL REVIEW
1. GENERAL RULE
2. GENERAL PRINCIPLES
3. LAW-FACT DISTINCTION
4. QUESTION OF LAW
5. QUESTION OF FACT
6. QUESTION OF DISCRETION
MODES OF JUDICIAL REVIEW
1. CERTIORARI
2. PROHIBITION
3. MANDAMUS
4. DECLARATORY RELIEF
5. HABEAS CORPUS
6. AMPARO
7. HABEAS DATA
8. INJUNCTION AS PROVISIONAL REMEDY
ENFORCEMENT OF AGENCY ACTION
1. RES JUDICATA; FINAL JUDGMENT
2. WRIT OF EXECUTION; MANDAMUS
2. Factors to Consider in Judicial Review:

a. If what is involved is a question of
constitutionality, judicial review is available.
b. Intention of Congress prevails.
EXCEPTION:
when
the
Constitution
requires or allows it, judicial review may be
granted or withheld as Congress chooses.
Thus, the law may provide that a
determination made by an administrative
agency shall be final and irreviewable. In
such a case, there is no violation of due
process.
However, Art. 8 Sec. 1 par. 2 of the 1987
Constitution, which provides that the judicial
power includes the power of the courts of
justice to determine WON there has been a
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
government agency or instrumentality,
clearly means that judicial review of
administrative decisions cannot be
denied the courts when there is an
allegation of grave abuse of discretion.
c.
Nature of problem involved:

i. Right (should be protected by law) v
Privilege (can be unilaterally withdrawn)
ii. Question of Law v Question of Fact
(refer to discussion on Extent of Judicial
Review on page 147)
d. Finality of the administrative decision.
3. The doctrines of forum shopping, litis

pendentia and res judicata also apply
to administrative agencies.
A. Considerations
4. General Rule
1. Basis
Courts will refuse to interfere with proceedings

undertaken by administrative bodies or officials
in the exercise of administrative functions.
There is an underlying power in the courts to

scrutinize the acts of administrative agencies
exercising quasi-judicial power on questions of
law and jurisdiction even though no right of
review is given by the statute.
Judicial review keeps the administrative agency
within its jurisdiction and protects substantial
rights of parties affected by its decisions.
Judicial review is proper in cases of lack of
jurisdiction, error of law, grave abuse of
discretion, fraud or collusion, or in case the
administrative decision is corrupt, arbitrary or
capricious. [San Miguel Corp. v Labor Secretary
(1975)]
5. Exceptions
Administrative proceedings may be reviewed by
the courts upon a showing that the board or
official:
a. Has gone beyond his statutory authority;
b. Exercised unconstitutional powers;
c. Clearly acted arbitrarily and without regard
to his duty, or with grave abuse of discretion;
or
d. The decision is vitiated by fraud, imposition
or mistake. [Manuel vs Villena (1971)]
184
ADMINISTRATIVE LAW
6. When judicial review is valid despite

finality of administrative decisions:
a. Decision is wrong;
b. Manifestly arbitrary, capricious, unjust
decision;
c. Not
based
upon
any
reasonable
interpretation of law;
d. Vitiated by fraud, imposition or mistake;
e. Violates or fails to comply with some
mandatory provision of law;
f. Administrative body or officer has gone
beyond its/his statutory authority;
g. Administrative
agency
exercised
unconstitutional powers;
h. Lack of jurisdiction; Grave abuse of
discretion.

Review
1.
2.
3.
4.
1. Doctrine of Primary Jurisdiction or

Preliminary Resort
a. General rule. Courts will not intervene if the
question to be resolved is one which
requires the expertise of administrative
agencies and the legislative intent on the
matter is to have uniformity in the rulings.
It can only occur where there is a
concurrence of jurisdiction between the
court and the administrative agency.
7. Availability of Judicial Review depends

on:
Whether the enabling statute permits
judicial review. There is no problem when
the statute itself expressly grants or prohibits
judicial review. But when it is silent,
generally, judicial review is available
j. Whether the plaintiff has standing.
k. Whether the defendant is the proper
defendant. The defendant could be either a
private party, or the very administrative
agency before whom the right is being
applied.
l. Whether the forum is the proper forum.
The forum is usually provided for in the
enacting statute. In its absence, the
Uniform Appeals Act is applicable. It is
very seldom that the forum is in the RTC,
since administrative agencies are usually
given the rank equal to or higher than the
RTC.
m. Whether the time for the filing of the case
is proper. The period for filing the case
must also be considered in view of the
statute of limitations, as well as the period
required by the statute or rules for the filing
of appeals.
n. Whether the case is ripe for adjudication.
When a person has not exhausted all the
administrative remedies available to him, his
case is said to be not ripe for judicial review
yet. He is said to have invoked the
intervention of the court prematurely.
Although this is not a jurisdictional
requirement, failure to abide by the doctrine
affects petitioners cause of action.
Primary Jurisdiction
Exhaustion of Administrative Remedies
Qualified Political Agency
Ripeness
i.
It is a question of the court yielding to the

agency because of the latters expertise,
and does not amount to ouster of the court.
[Texas & Pacific Railway v Abilene (1907)]
o
It is the recent jurisprudential trend to

apply the doctrine of primary jurisdiction
in many cases that demand the special
competence of administrative agencies.
It may occur that the Court has jurisdiction
to take cognizance of a particular case,
which means that the matter involved is also
judicial in character. However, if the
determination of the case requires the
expertise, specialized skills and knowledge
of the proper administrative bodies because
technical matters or intricate questions of
facts are involved, then relief must first be
obtained in an administrative proceeding
before a remedy will be supplied by the
courts even though the matter is within
the proper jurisdiction of a court.
[Industrial Enterprises v CA (1990)]
Well-entrenched is the rule that courts will

not interfere in matters which are addressed
to the sound discretion of the government
agency entrusted with the regulation of
activities coming under the special and
technical training and knowledge of such
agency. Administrative agencies are
given a wide latitude in the evaluation 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)]
185
ADMINISTRATIVE LAW
The doctrine of primary jurisdiction

applies where a claim is originally
cognizable in the courts, and comes into
play whenever enforcement of the claim
requires the resolution of issues which,
under a regulatory scheme, have been
placed within the special competence of
an administrative body; in such case, the
judicial process is suspended pending
referral of such issues to the administrative
body for its view. And, in such cases, the
court cannot arrogate into itself the authority
to resolve a controversy, the jurisdiction
over which is initially lodged with an
administrative body of special competence.
[Sherwill vs Sitio Sto Nino (2005)]
Reason: In this era of clogged docket
courts,
the
need
for
specialized
administrative boards with the special
knowledge and capability to hear and
determine promptly disputes on technical
matters
has
become
well
nigh
indispensable. Between the power lodged in
an administrative body and a court, the
unmistakable trend has been to refer it to
the former. (GMA vs ABS CBN (2005)]
b. 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 vs NTC (2003)]
Rationale: It is presumed that an

administrative agency, if afforded an
opportunity to pass upon a matter,
would decide the same correctly, or
correct
any
previous
error
committed in its forum [Caballes v
Sison (2004)]
When the Doctrine is Inapplicable:

i. If the agency has exclusive
jurisdiction
ii. When the issue is not within the
competence
of
the
administrative body to act on.
iii. When the issue involved is

clearly a factual question that
does not require specialized
skills
and
knowledge
for
resolution to justify the exercise
of primary jurisdiction.
Effect. The case is not dismissed,

but merely suspended until after the
matters within the competence of
the administrative agency are
threshed out and determined.
[Vidad vs RTC (1993)]
2. Doctrine
of
Exhaustion
Administrative Remedies
of
1. General Rule:
Where the law has
delineated the procedure by which
administrative appeal or remedy could be
effected, the same should be followed
before recourse to judicial action can be
initiated. [Pascual vs Provincial Board
(1959)]
2. Requisites:
i. The administrative agency is performing
a quasi-judicial function.
ii. Judicial review is available.
iii. The court acts in its appellate
jurisdiction.
3. Rationale:
i. Legal reason: The law prescribes a
procedure.
ii. Practical reason: To give the agency a
chance to correct its own errors [and
prevent unnecessary and premature
resort to the courts ;
iii. Reasons
of
comity:
Expedience,
courtesy, convenience.
4. Exceptions to the Doctrine of Exhaustion of
Remedies:
Purely legal questions. [Castro vs
Secretary (2001)]
Steps to be taken are merely matters of
form. [Pascual vs Provincial Board
(1959)]
Administrative remedy not exclusive but
merely cumulative or concurrent to a
judicial remedy. [Pascual vs Provincial
Board (1959)]
Validity and urgency of judicial action or
intervention. [Paat vs CA (1997)]
No other plain, speedy, adequate
remedy in the ordinary course of the
law. [Paat v CA (1997)t; Information
186
ADMINISTRATIVE LAW
Technology Foundn v COMELEC

(2004)]
Resort to exhaustion will only be
oppressive and patently unreasonable.
[Paat vs CA (1997); Cipriano vs
Marcelino (1972)]
Where the administrative remedy is only
permissive or voluntary and not a
prerequisite to the institution of judicial
proceedings. [Corpuz vs Cuaderno
(1962)]
Application of the doctrine will only
cause great and irreparable damage
which cannot be prevented except by
taking the appropriate court action. [Paat
vs CA (1997); Cipriano vs Marcelino
(1972)]
When it involves the rule-making or
quasi-legislative
functions
of
an
administrative agency. [Smart vs NTC
(2003)]
Administrative agency is in estoppel.
[Republic vs Sandiganbayan (1996)]
Doctrine of qualified political agency
Subject of controversy is private land in
land case proceedings. [Paat vs CA
(1997)]
Blatant violation of due process. [Paat
vs CA (1997); Pagara vs CA]
Where there is unreasonable delay or
official
inaction.
[Republic
vs
Sandiganbayan (1996)]
Administrative action is patently illegal
amounting to lack or excess of
jurisdiction. [Paat vs CA (1997)]
Resort to administrative remedy will
amount to a nullification of a claim. [DAR
vs Apex Investment (2003); Paat vs CA
(1997)]
No administrative review provided for by
law. [Estrada vs CA (2004)]
Issue
of
non-exhaustion
of
administrative remedies rendered moot.
[Estrada vs CA (2004)]
In quo warranto proceedings. [Corpus vs
Cuaderno (1962)]
Law expressly provides for a different
review
procedure.
[Samahang
Magbubukid vs CA (1999)]
5. Effect of Failure to Exhaust Administrative

Remedies:
It does not affect jurisdiction of the court.
The only effect of non-compliance is it that
will deprive complainant of a cause of
action, which is a ground for a motion to
dismiss.
But if not invoked at the proper time, this

ground is deemed waived.[Republic vs
3. Doctrine of Qualified Political Agency

1. The act of the department head is
presumptively the act of the President (as
his alter ego), unless revoked by the latter.
2. Example: The President - through his duly
constituted political agent and alter ego, the
DOTC Secretary - may legally and validly
decree
the
reorganization
of
the
Department. [Sec of DOTC v Mabalot
(2002)]
3. Exception: Where the law expressly
provides for exhaustion via an appeal to the
President. [Tan v Director of Forestry
(1983)]
4. Ripeness
1. When applied:
i. Administrative agencys decision is final.
ii. Judicial review is available/appropriate
iii. Administrative agency exercising its
rule-making or quasi-legislative function
a. Purpose [Abbot Laboratories v Gardner
(1967)]
i. To prevent courts, thru avoidance of
premature adjudication, from entangling
themselves in abstract agreement over
administrative policies.
ii. To protect agencies from judicial
interference until a decision has been
formalized and its effect is felt in a
concrete way or the imminence of the
effect is demonstrable.
b. Two-fold test for a controversy to be ripe
[Abbot Laboratories v Gardner (1967)]
Fitness of the issue for judicial decision.
Hardship to the parties of withholding
such court action.
187
ADMINISTRATIVE LAW
C. Extent of Judicial Review

1.
2.
3.
4.
General Rule
General Principles
Law-fact Distinction
Question of Law
a. General rule
b. What may be questioned?
c. Examples
5. Question of Fact
a. Definition
b. General Rule
c. Examples
6. Question of Discretion
a. Discretionary Acts v Ministerial Acts
b. Judicial review of administrative
discretion v Substitution of judicial
discretion for administrative discretion
c. General rule
d. Rationale
e. Exception
f. Examples
1. General Rule
Laws creating administrative agencies and
providing for judicial review may indicate the
scope of that review. Whether the courts may
inquire into questions of law, of fact or of both as
well as of administrative discretion will depend
on the enabling act.
2. General Principles
a. Questions of law are always reviewable by
the courts;
b. Substantial Evidence Rule: Findings of
fact, if based on substantial evidence, are
conclusive and binding on the courts;
c. If the decision of a case is discretionary on
the part of the agency, courts can review if
the decision is attended with capriciousness;
and
d. Questions of jurisdiction are always
reviewable as they go into the question of
authority to decide.
3. Law-fact Distinction
a. There is no clear-cut line that separates
questions of law from questions of fact.
There may be cases where the issues
raised may easily be classified under one or
the other, but some cases may involve
mixed questions of law and fact;
b. Brandeis Doctrine of Assimilation of Facts:
Where what purports to be a finding upon a
question of fact is so involved with and

dependent upon a question of law as to be
in substance and effect a decision on the
latter, the court will, in order to decide the
legal question, examine the entire record
including the evidence if necessary.
4. Question of Law
a. General rule: Questions of law are subject to
judicial review.
b. What may be questioned?
i. Constitutionality
of
the
statute
creating the agency and granting its
powers;
ii. Validity of the agency action if this
transcends the limit established by law;
or
iii. Correctness
of
the
agencys
interpretation and application of the
law.
c. Examples:
i. Administrative officials action which is
based on a misconstruction of law can
be corrected and is not conclusive upon
the courts.
ii. When the conclusion drawn by an
administrative official from the facts
found is erroneous or not warranted by
law.
iii. Where the act of the administrative
official constitutes not only an excess of
regulatory power conferred upon him,
but also an exercise of legislative power
which he does not have.
iv. The issue of WON an EmployerEmployee relationship exists is a
question of law. [Ysmael vs CIR (1960)]
5. Question of Fact
a. Definition. A question of fact exists if the
issue involved is the existence of a fact, the
happening of an event, or which of the two
versions of the happening of an event is
correct.
b. General Rule: Finality is attached to findings
of fact of some agencies when these
findings are supported by substantial
evidence and as long as there is no grave
abuse of discretion.
188
ADMINISTRATIVE LAW
c.
Examples:
GENERAL RULE:
i.
It is not for the reviewing court to weigh

the conflicting evidence, determine the
credibility of witnesses, or otherwise
substitute its judgment for that of the
administrative agency on the sufficiency
of evidence.
The court recognizes that the trial court

or administrative body, as a trier of facts, is
in a better position to assess the demeanor
of the witnesses and the credibility of their
testimonies as they were within its proximal
view during the hearing or investigation.
[Mollaneda vs Umacob (2001)]
ii. Administrative
proceedings
are
governed by the substantial evidence
rule.
A finding of guilt in an administrative
case would have to be sustained for as long
as it is supported by substantial evidence
that the respondent has committed the acts
stated in the complaint or formal charge.
This is different from the quantum of
proof required in criminal proceedings which
necessitates a finding of guilt of the accused
beyond reasonable doubt.
Ergo, the dismissal of the criminal
case will not foreclose administrative
action against respondent. [Velasco vs
Hernandez (2004)]
iii. The substantial evidence standard is not
modified in any way when officials of an
administrative agency disagree in their
findings. [Universal Camera vs NLRC
(1951)]
EXCEPTIONS:
i. One circumstance where the court may
not accept the agencys findings of fact
is when the decision rendered by an
almost evenly divided court and the
division was precisely on the facts as
borne out by the evidence.
In such a situation the court, in order to
determine the substantiality of the evidence,
must consider evidence not only in its
quantitative but also in its qualitative
aspects. For, to be substantial, evidence
must first of all be credible. [Gonzales vs
Victory Labor Union (1969)]
ii.
When there is grave abuse of

discretion amounting to lack of
jurisdiction, there is a justification for
the courts to set aside the administrative
determination.
[ Banco Filipino vs
Central Bank (1991)]
iii. The court is inclined to review the

findings of fact of an administrative
official if they are not based on a
thorough examination of the parties
contending
claims
wherein
the
adversarial process would ensure a
better presentation and appreciation
of evidence. [PAL v. Confessor (1994)]
6. Question of Discretion
a. Discretionary Acts v Ministerial Acts
Discretionary
When applied to public
functionaries, discretion
may be defined as the
power or right conferred
upon them by law to act
officially under certain
circumstances,
according to the dictates
of their own judgment
and conscience and not
controlled
by
the
judgment of others.
Ministerial
A ministerial act has been
defined as one performed
in response to a duty
which has been positively
imposed by law and its
performance required at
a time and in a manner or
upon
conditions
specifically designated,
the duty to perform under
the conditions specified
not being dependent
upon
the
officers
judgment or discretion.
Discretion is the power

to make a choice among
permissive actions or
policies.
The
very
essence of discretionary
power is that the person
or persons exercising it
may choose which of
several courses of action
should be followed.
Ministerial duty is one in

respect to which nothing
is left to discretion. It is a
simple,
definite
duty
arising under conditions
admitted or proved to
exist, and imposed by
law.
b. Judicial review of administrative discretion

vs. Substitution of judicial discretion for
administrative discretion
o Questions of policy or discretion are
reviewable only for unreasonableness,
departure from statutory standards, or
lack of evidentiary support; and
questions of wisdom, propriety or
expediency are for the agency and not
for the courts.
189
ADMINISTRATIVE LAW
The court will not substitute its discretion

or judgment for that of the administrative
agency,
but
will
determine
the
lawfulness of its action.
The ruling of an administrative agency,
on questions of law, while not as
conclusive as its findings of facts, is
nevertheless persuasive and given much
weight especially if the agency is one of
special competence and experience.
c.
General rule: In the exercise of discretion

lawfully given, the court will not interfere.
d. Rationale: Recognition of the expertise of

the agency.
b. Requisites
i. Involves question of lack of jurisdiction
or grave abuse of discretion
ii. No plain, adequate, and speedy remedy
available
iii. The administrative agency must be
performing a quasi-judicial function.
Certiorari cannot be invoked if what is
involved is merely a ministerial function.
c.
NOTE: Certiorari for COMELEC decisions is

limited to Rule 65. For CSC and COA
decisions, the rules on ordinary appeal
apply.
d. The special civil action of certiorari is still the
proper vehicle for judicial review of the
decision of the NLRC.
e. Exception: If discretion was exercised in a

capricious, whimsical, arbitrary, abusive,
partial, and hostile manner.
f.
Examples:
i. The erroneous appreciation of the
significance of the facts before the
administrative agency does not mean
that the administrative agency had
abused its discretion. [Laguna Tayabas
vs PSC (1957)]
ii.
Courts should not intervene in that

administrative process, save upon a
very clear showing of serious violation of
law or of fraud, personal malice or
wanton oppression.
A special civil action for certiorari

however is within the concurrent original
jurisdiction of the SC and CA and it would
be advantageous to the aggrieved party to
recourse from the NLRC to CA as an initial
step in the process of judicial review. [St.
Martin Funeral Homes vs NLRC (1998)]
e. A motion for reconsideration is a remedy
and since Purefoods filed a motion for
reconsideration beyond the reglementary
period, it should suffer the consequences of
its own negligence. [Purefoods Corp. vs
NLRC (1989)]
f.
Courts have none of the technical and

economic or financial competence which
specialized administrative agencies have at
their disposal. [PLDT vs NTC (1995)]
Failure of a party to perfect its appeal in the

manner and within the period fixed by law
renders the decision sought to be appealed
final, with the result that no court can
exercise appellate jurisdiction to review the
decision. [Azores vs SEC (1996)]
2. Prohibition
D. Modes of Judicial Review

The Modes of Judicial Review are:
1. Certiorari
2. Prohibition
3. Mandamus
5. Habeas Corpus
6. Amparo
7. Habeas Data
8. Injunction as provisional remedy
1. Certiorari
a. Purpose: The purpose of a certiorari is to set
aside or nullify proceedings.
a. Nature. This action is preventive and not for

acts already performed. Issues on the same
grounds as certiorari must be timely availed
of.
b. Purpose. The purpose of prohibition is to
prohibit or stop proceedings.
c.
Prohibition is broader in scope compared to

Certiorari because it applies to agencies
performing both quasi-judicial and ministerial
functions.
d. Requisites
i. Ground raised is lack of jurisdiction or
grave abuse of discretion;
ii. No plain, adequate and speedy remedy
available;
190
ADMINISTRATIVE LAW
iii. Applies to agencies performing both

quasi-judicial and ministerial functions.
f.
e. When the evidence submitted is conclusive

of his citizenship, the courts should promptly
enjoin the deportation proceedings.
When the evidence is not conclusive on
either side, the citizenship issue should be
allowed to be decided first in a judicial
proceeding, suspending the administrative
proceedings in the meantime that the
alienage or citizenship is being determined
in the courts. [Chua Hiong vs Deportation
Board, (1955)]
f.
The exception stated in Chua Hiong should

be allowed only in the sound discretion of a
competent court in a proper proceeding [Co
vs Deportation Board, (1977)]
g. CHR had no jurisdiction to issue the writ of

preliminary injunction since what is involved
is neither political nor civil rights. CHRs
contention that prohibition is moot and
academic cannot be sustained.
While it is true that prohibition as a
preventive remedy is not intended as a
remedy to restrain what has already
accomplished, the CHR, in this case, has
yet to promulgate its resolutions, and the
prohibition is intended to prevent just that.
[Simon, Jr. vs CHR, (1994)]
g. Mandamus will lie only to compel the board

to take some action when it refuses but it will
not prescribe the action to be taken.
Mandamus will not lie to review or control
the action or decision of the Board where
such action or decision is one resting in the
discretion of the Board and involves the
construction of the law and the application of
the facts thereto. [Policarpio vs Phil.
Veterans Board, (1956)]
h. The Backpay Law enumerates those not
entitled to backpay, and no prohibition is
made against aliens in receiving backpay.
Having been satisfied that Tan is not among
those excluded from the coverage of said
law, it becomes the ministerial duty of the
Commission to give due course to
petitioners application. [Tan vs Veterans
Backpay Commission, (1959)]
i.
If one seeks to settle contractual rights and

obligations and to regulate a course of
conduct, the remedy in this case is specific
performance. The difference between the 2
remedies lies in their basis: mandamus is
based on the ministerial duty imposed by
law, while specific performance is based on
contract. [Province of Pangasinan v.
Reparations Commission, (1977)]
j.
Tax assessment is discretionary; therefore,

mandamus will not lie. The Commissioner
cannot be compelled to impose tax
assessment not found by him to be due for
that would be tantamount to a usurpation of
an executive function. [Meralco Securities
Corporation v. Savellano, (1982)]
k.
Mandamus will not issue to:

o compel an official to do anything which
is not his duty to do or
o give the applicant anything to which he
is not entitled by law.
It is simply a command to exercise a power
already possessed and to perform a duty
already imposed. [Cruz v. CA, (1996)]
l.
Mandamus is a command issuing from a

court of competent jurisdiction, in the name
of the state or the sovereign, directed to
some inferior court, tribunal, or board, or to
some corporation or person requiring the
3. Mandamus
a. Nature. Mandamus is an order compelling a
party to perform an act arising out of a
positive duty imposed by law.
b. Mandamus will lie against a ministerial duty
when the official/agency refuses to exercise
its ministerial duty to act on its quasi-judicial
functions.
c.
Mandamus will not lie to enforce a

contractual obligation. The remedy will be
specific performance.
d. Requisites:
i. Duty is ministerial.
ii. Petitioner has a clear, controlling right.
iii. No other plain, speedy and adequate
remedy.
e. Mandamus will not issue to control or review
the exercise of discretion of a public officer.
The act of confirming is not a ministerial
duty. [Blanco vs Board of Examiners,
(1924)]
The issuance of a visa is a discretionary

function on the part of the consul and carries
with it the concern of public safety.
Mandamus only lies to compel the
performance of a ministerial duty. [Ng Gloc
Liu vs Sec. of Foreign Affairs, (1950)]
191
ADMINISTRATIVE LAW
performance of a particular duty therein

specified, which duty results from the official
station of the party to whom the writ is
directed, or from operation of law. [PRC v.
De Guzman, (2004)]
m. MMDAs obligation to perform their duties as
defined by law, on one hand, and how they
are to carry out such duties, on the other,
are two different concepts. While the
implementation of the MMDAs mandated
tasks may entail a decision-making process,
the enforcement of the law or the very act of
doing what the law exacts to be done is
ministerial in nature and may be compelled
by mandamus. [MMDA v. Concerned
Citizens of Manila Bay (2008)]
4) There must be an actual justiciable

controversy between persons with
adverse interests.
5) Petitioner must have legal interest in the
controversy.
6) Controversy
must
be
ripe
for
adjudication
7) All administrative remedies have been
exhausted.
8) Adequate relief is not available through
other means or other forms of action or
proceeding.
n. 2 Situations when a writ of mandamus may

issue: When any tribunal, corporation,
board, officer or person unlawfully:
i. Neglects the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust, or
station; or
ii. Excludes another from the use and
enjoyment of a right or office to which
the other is entitled.
d. When Not Applicable

In securing a judicial declaration of
citizenship.
Where petition for declaratory relief is
filed after the breach of law took place.
Where petitioner never acquired any
interest in the object of the controversy,
and enjoyed no rights which were
violated.
Where declaratory relief would not
terminate the uncertainty of the
controversy.
Where the relief sought would be
determinative of issues rather than a
construction of definite stated rights,
status and other relations commonly
expressed in written instruments
since this remedy is available only if it is
limited to a declaration of rights, and not
to a determination, trial or judicial
investigation of issues.
5. Habeas Corpus
a. Purpose: To determine the construction,

validity and declaration of rights.
a. Nature: The great writ of liberty is intended

as a speedy remedy to secure the release of
a person deprived of his liberty.
A continuing mandamus is a mandamus

issued by the court under extraordinary
circumstances with directives with the end of
ensuring that its decision would not be set to
naught by administrative inaction or
indifference.
b. An action for declaratory relief must

brought in the RTC. It is not among
actions within the original jurisdiction of
SC even if only questions of law
involved.
c.
be
the
the
are
Requisites.
1) Subject matter must be a deed, will,
contract or written instrument in which
petitioner is legally interested, or law or
governmental regulation which affects
his rights.
2) The terms of the written instrument are,
or the validity of the law or regulation is
doubtful
and
requires
judicial
construction.
3) Petition is filed before breach or violation
of the instrument or regulation.
A person detained upon the orders of an

agency may test the validity of his detention
through the privilege of the writ of habeas
corpus,
which
is
a
constitutionally
guaranteed right. (Art. III, sec. 15, 1987
Constitution)
b. Requisites
i. There is illegal confinement or detention.
ii. There is illegal restraint of liberty.
iii. Rightful custody of any person is
withheld from the person entitled
thereto.
c.
Purpose: Secure the release of a person

deprived of his liberty, and test the validity of
detention as ordered by an agency.
192
ADMINISTRATIVE LAW
d. The writ of habeas corpus will issue when:

an alien has been detained by the DOJ
for an unreasonably long period of time
after it has become apparent that the
deportation order cannot be effectuated;
and
no criminal charges have been formally
made or a judicial order issued for his
detention.
In such case, the order of deportation which
was not executed is functus officio and the
alien is being held without authority of law.
[Mejoff vs Director of Prisons, (1951)]
e. Bail renders a writ of habeas corpus moot
and academic, as the bail bond gives
petitioner liberty. [Co v Deportation Board,
(1977)]
f.
people are already enforced through

different remedies.
iii. It covers both actual and threatened
violations of such rights.
iv. It covers violations committed by public
officials or employees and private
individuals or entities. (Annotation to the
Writ of Amparo)
7. Habeas Data
a. Nature and Purpose: The writ of habeas
data is an independent remedy to protect
the right to privacy, especially the right to
informational privacy.
The writ of habeas data is also a remedy to
protect the right to life, liberty or security of a
person from violation or threatened violation
by an unlawful act or omission of a public
official or employee or of a private individual
or entity. It complements the writ of amparo
and writ of habeas corpus. (Annotation to
the Writ of Habeas Data)
The release of a detained person, whether

permanent or temporary, renders a petition
for the writ of habeas corpus moot and
academic, unless there are restraints
attached which preclude his freedom.
[Lucien Tran Van Nghia v. Liwag, (1989)]
8. Injunction as Provisional Remedy

6. Writ of Amparo
a. Nature: Amparo, literally to protect, is
designed to protect those other fundamental
rights in the Constitution not covered by
habeas corpus. (The Rationale for the Writ
of Amparo)
b. Purposes/Types:
i. For the protection of personal freedom,
equivalent to the habeas corpus writ
(called amparo libertad);
ii. For the judicial review of the
constitutionality of statutes (called
amparo contra leyes);
iii. For the judicial review of the
constitutionality and legality of a judicial
decision (called amparo casacion);
iv. For the judicial review of administrative
actions (called amparo administrativo);
and
v. For the protection of peasants rights
derived from the agrarian reform
process (called
amparo agrario).
(Annotation to the Writ of Amparo)
c.
Philippine Version:
i. Rights protected: (1) right to life, (2)
liberty and (3) security of persons.
ii. The reason for limiting the coverage of
its protection only to the three rights is
that other constitutional rights of our
a. Nature: An ancillary remedy provided to

preserve the petitioners rights while main
action is pending.
b. Purpose.
i. To prevent the commission of certain
acts complained of; or
ii. To order the continued performance of
some act for the purpose of preventing
further injury.
c.
Requisites:
i. Plaintiff is entitled to relief demanded.
The right to the writ is clear when:
There is willful invasion of the
petitioners right, and the injury is a
continuing one; and effect of the
writ is to re-establish the preexisting relation. [Lemi vs. Valencia
(1966)]
Commission or continuance of an
act complained of would probably
work injustice to him.
Defendant, is doing, threatens or
about to do an act in violation of
petitioners rights which may render
the judgment ineffective.
d. Injunction can only be issued by superior to

an inferior body; if co-equals, the injunction
cannot prosper. [Honda vs San Diego,
(1966)]
193
ADMINISTRATIVE LAW
e. Types
i. Preliminary
Mandatory
Injunction:
Plaintiff wants to compel defendant to do
something.
ii. Preliminary Injunction: To prevent or
stop defendant from doing something
iii. Restraining Order: Life span of 20 days,
after which hearing is then held to
decide propriety of the injunction.
iv. Permanent Injunction: If plaintiff wins the
case, injunction becomes permanent
(otherwise, the writ is dissolved).
f.
The general rule is that injunction cannot be

issued in tax collection. An exception is that
if the collection of the tax is prejudicial to the
interest of the government and of the
taxpayer, the CTA is authorized to restrain
the Collector from proceeding with its
collection. [Collector vs. Reyes, (1957)]
ii.
It must have been rendered by a court

having jurisdiction over the subject
matter and the parties;
iii. It must be a judgment on the merits; and
iv. There must be identity of parties, subject
matter and cause of action [Ipekdijan
Merchandising vs CTA (1963), Firestone
Ceramics vs CA (1999), DBP vs CA
(2001)]
c.
Effect.
Decisions
and
orders
of
administrative bodies rendered pursuant to
their quasi-judicial authority have, upon their
finality, the force and effect of a final
judgment within the purview of the doctrine
of res judicata, which forbids the reopening
of matters once judicially determined by
competent authorities.
2. Writ of Execution; Mandamus
g. Sec. 11, RA 1125 (An Act Creating the

Court of Tax Appeals): Who may appeal;
effect of appeal. xxx
a. General rule: Administrative agencies

performing quasi-judicial functions have the
implied power to issue writs of execution.
No appeal taken by the Court of Appeals

from the decision of the Collector of Internal
Revenue or the Collector of Customs shall
suspend the payment, levy, distraint, and or
sale of any property of the taxpayer for the
satisfaction of his tax liability as provided by
existing law; Provided, however, That when
in the opinion of the Court the collection by
the Bureau of Internal Revenue or the
Commissioner of Customs may jeopardize
the interest of the Government and/or the
taxpayer the Court at any stage of the
proceeding may suspend the said collection
and require the taxpayer either to deposit
the amount claimed or to file a surety bond
for not more than double the amount with
the Court.
b. EXCEPT: If the enabling law expressly

provides otherwise.
E. Enforcement of Agency Action

1. Res Judicata; Finality of Judgment
a. When it applies. The doctrine of res judicata
applies only to judicial or quasi-judicial
proceedings and not to the exercise of
purely
administrative
functions.
Administrative proceedings are non-litigious
and summary in nature; hence, res judicata
does not apply. [Nasipit Lumber Co. vs
NLRC (1989)]
b. Requisites:
i. The former judgment must be final;
c.
If the law is silent, presume that the agency

has the power to enforce its decisions
emanating from its quasi-judicial powers.
[Apolega vs Hizon, (1968)]
d. The legislature may aid the enforcement of

administrative determination by providing for
a penalty for failure to comply therewith.
Also, direct and positive sanctions (grant
of subpoena power and contempt powers)
are
afforded
by
provisions
for
administrative or judicial processes to
compel obedience or prevent violation of the
determination.
e. Administrative enforcement includes:
i. Revocation;
ii. Suspension;
iii. Refusal to renew license;
iv. Refusal to grant clearance paper to
ships;
v. Withholding or denying benefits;
vi. Imposing conditions, seizure and sale or
destruction of property;
vii. Exclusion and deportation;
viii. Imposition and collection of fines and
penalties; and
ix. Summary enforcement without need for
adjudication:
Distraint of personal property or levy
on real property (Commissioner of
Internal Revenue);
194
ADMINISTRATIVE LAW
Abatement of nuisance (Secretary

of Health); and
Sequestration of ill-gotten wealth
(PCGG);
What is the remedy if officials refuse to

implement a final and executory judgment?
Mandamus.
[Vda. De Corpuz vs The
Commanding General of the Philippine Army
(1978)]
g. Execution must conform to that ordained or

decreed in the dispositive part of the
decision.
Where the order of execution is not in
harmony with and exceeds the judgment
which gives it life, the order pro tanto has no
validity. [Clavano v HLURB, (2002)]
- end of Administrative Law -
195
ADMINISTRATIVE LAW
f.
TABLE of CONTENTS
ELECTION LAW
Table of Contents
Chapter II. COMELEC...................................200

A. Composition ......................................200
B. Qualifications.....................................200
C. Powers and Functions.......................200
1.
Constitutional powers and functions
[Art. IX-C, Sec. 2]...................................200
2.
Statutory powers ...........................201
D. Rendition of Decision ........................201
1.
Composition ..................................201
2.
Time Period and Votes Required .202
3.
COMELEC decisions reviewable by
the Supreme Court ................................202
Independence ............................................202
Registration ..................................................203
A. Qualifications.....................................203
B. Registration of Voters........................203
1.
Definition .......................................203
2.
System of Continuing Registration of
Voters ....................................................204
3.
Illiterate or disabled voters............204
4.
Election Registration Board ..........204
5.
Change of residence or address ..204
6.
Challenges to right to register.......204
7.
Deactivation of Registration..........205
8.
Reactivation of Registration..........205
9.
Certified List of Voters ..................205
C. Inclusion and Exclusion Proceedings205
D. Annulment of Book of Voters ............205
E. Overseas Absentee Voter .................206
1.
Definitions .....................................206
2.
Coverage ......................................206
3.
Qualifications ................................206
4.
Disqualifications ............................206
5.
Personal
Overseas
Absentee
Registration ...........................................206
6.
Inclusion and Exclusion Proceedings
206
7.
National Registry of Overseas
Absentee Voters ....................................206
Chapter IV. Pre-Election Requirements .....207
A. Certificates of Candidacy ..................207
1.
Candidate, Definition ....................207
2. Qualifications .....................................207
3.
Disqualifications............................ 207
4.
Filing and withdrawal of certificate of
candidacy .............................................. 208
5.
Effect of filing certificate of candidacy
209
6.
Substitution of Candidates............ 209
7.
Duty of COMELEC ....................... 209
8.
Petition to declare a duly registered
candidate as a nuisance candidate....... 209
9.
Petition to Deny Due Course or to
Cancel Certificate .................................. 210
10.
Effect of disqualification case... 210
B. Registration of Political Parties ......... 210
1.
Party System ................................ 210
2.
Definitions ..................................... 210
3.
Purpose ........................................ 211
4.
Procedure for Registration............ 211
5.
Who May Not be Registered ........ 211
6.
Grounds
for
refusal
and/or
cancellation of registration .................... 211
7.
Parameters in Allocation of Seats for
Party-List Representatives .................... 212
8.
Effect of Change of Affiliation... 212
9.
Nomination
of
Party-List
Representative ...................................... 212
C. Party-list and District Representatives
Distinguished ............................................. 213
Chapter
V.
Election
Campaign
and
Expenditures ................................................ 214
A. Election Campaign............................ 214
1.
Election Campaign or Partisan
Political Activity...................................... 214
2.
Campaign Period .......................... 214
3.
Lawful Election Propaganda......... 215
4.
Prohibited Acts ............................. 215
5.
Equal Access to Media Time and
Space .................................................... 215
7.
Election Surveys ........................... 216
8.
Application for Rallies, Meetings and
Other Political Activity............................ 216
B. Election Contributions and Expenditures
216
1.
Definitions ..................................... 216
2.
Prohibited Contributions ............... 217
3.
Prohibited Fund-raising Activities . 217
4.
Limitations on Expenses............... 217
5.
Statement of Contributions and
Expenses............................................... 217
6.
Requisites of a Prohibited Donation
218
Chapter VI. Election Proper ........................ 219
A. In General ......................................... 219
197
ELECTION LAW
Chapter I. General Principles ......................198

A. Definitions .........................................198
1.
Suffrage ........................................198
2.
Scope............................................198
B. Constitutional Mandate on Congress 199
C. Election Period ..................................199
What Constitutes an Election........219

Failure of Elections .......................219
Postponement of Elections ...........219
Special Elections ..........................220
B. Board of Election Inspectors .............220
C. Casting of Votes................................220
1.
Voting Hours .................................220
2.
Voting............................................220
3.
Challenge of Illegal Voters............221
4.
Challenge based on certain illegal
acts 221
D. Counting of Votes..............................222
1.
Counting Proper............................222
2.
Election Returns ...........................222
E. Canvassing of Votes .........................222
1.
Definitions .....................................222
2.
Composition of Board of Canvassers
223
3.
Prohibitions on BOC .....................223
4.
Canvass by the BOC ....................223
5.
Certificate of Canvass and Statement
of Votes .................................................223
6.
Proclamation .................................224
Chapter VII. Modes of Challenging Candidacy
and Election Results....................................225
A. Cancellation of Certificate of Candidacy
225
1.
Grounds ........................................225
2. Nature of Proceedings.......................225
3.
Procedure .....................................225
B. Pre-Proclamation Controversies .......225
1.
Jurisdiction ....................................225
2.
When Not Allowed ........................225
3.
Nature of Proceedings ..................225
4.
Issues That May Be Raised..........225
5.
Issues That Cannot Be Raised .....226
6.
Procedure .....................................226
7.
Effect of Filing of Pre-Proclamation
Controversy ...........................................226
8.
Effect of Proclamation of Winning
Candidate ..............................................226
9.
Petition to Annul or Suspend
Proclamation..........................................227
10.
Declaration of Failure of Election
227
C. Disqualification Cases.......................227
1.
Procedure .....................................227
2. Effect .................................................227
Chapter VIII. Election Offenses...................228
A. Jurisdiction over Election Offenses...228
B. Prosecution of Election Offenses......228
Offenses.....................................................228
D. Election Offenses ..............................228
1.
Registration...................................228
2.
Certificate of Candidacy................228
3.
Election Campaign........................228
4.
5.
6.
7.
Voting............................................ 228
Counting of Votes ......................... 229
Canvassing ................................... 229
Acts of Government or Public Officers
229
8.
Coercion, Intimidation, Violence ... 229
9.
Other Prohibitions ......................... 229
10.
Penalties................................... 229
Campaign .................................................. 230
F.
Prescription ....................................... 230
G. Prohibited Acts Under R.A. 9369 ...... 230
3
ELECTION LAW
1.
2.
3.
4.
TABLE of CONTENTS
Prof. Rodolfo Noel Quimbo

Faculty Editor
Ria Dooc
Lead Writer
Dianne Patawaran
Mike Rivera
Writers
POLITICAL LAW
Jennifer Go
Subject Editor
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

Kae Guerrero
DESIGN & LAYOUT

Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya
LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Chapter I. General Principles

A.
DEFINITIONS
1. SUFFRAGE
2. SCOPE
a. ELECTION
b. PLEBISCITE
c. REFERENDUM
d. INITIATIVE
e. RECALL
B. CONSTITUTIONAL MANDATE ON CONGRESS
C. ELECTION PERIOD
A. Definitions
1. Suffrage
2. Scope
i. Election: the means by which the people
choose their officials for a definite and fixed
period and to whom they entrust for the time
being the exercise of the powers of
government.
Heads
Volunteers
Lilibeth Perez
Dahlia Salamat
LOGISTICS
Charisse Mendoza
Jill Hernandez
Kinds:
Regular: one provided by law for the
election of officers either nation-wide or
in certain subdivisions thereof, after the
expiration of the full term of the former
officers.
MOCK BAR COMMITTEE

The right to vote in the election of officers

chosen by the people and in determination
of questions submitted to the people.
Special: one held to fill a vacancy in

office before the expiration of the full
term for which the incumbent was
elected.
ii. Plebiscite: election at which any proposed

amendment to, or revision of, the
Constitution is submitted to the people for
their ratification.
iii. Referendum: submission of a law pass by
the national or local legislative body to the
registered voters at an election called for the
purpose for their ratification or rejection.
Head
Members
iv. Initiative: the power of the people to propose

amendments to the Constitution or to
propose and enact legislation through an
election called for the purpose. [Sec. 3a,
R.A. 6735, The Initiative and Referendum
Act]
3 systems of initiative:
Initiative on the Constitution: petition
198
ELECTION LAW
ELECTION LAW TEAM
Chapter I. GENERAL PRINCIPLES
ELECTION LAW
proposing
amendments
Constitution.
Chapter I. GENERAL PRINCIPLES
to
the
Initiative on statutes: petition proposing

to enact a national legislation.
Initiative on local legislation: petition
proposing to enact a regional, provincial,
city, municipal or barangay law,
resolution or ordinance.
The constitutional provision on people's initiative

to amend the Constitution can only be
implemented by law to be passed by Congress.
No such law has been passed. R.A. No. 6735 is
incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on
amendments to the Constitution is concerned.
Note: Section 2 of Art. XVII Constitution is
limited to proposals to AMEND not to REVISE
the Constitution. [Santiago vs COMELEC
(1997)]
v. Recall: the termination of official relationship
of a local elective official for loss of
confidence prior to the expiration of his term
through the will of the electorate.
B. Constitutional Mandate on Congress

[Art. V, Sec. 2, Constitution]
i. To provide a system for securing the
secrecy and sanctity of the ballot as well as
a system for absentee voting by qualified
Filipinos abroad.
Laws providing for absentee voting:

Sec. 12, R.A. 7166, An Act Providing for
Synchronized National and Local
Elections and Electoral Reforms:
applies only to elections for the
President, Vice President and
Senators
limited to members of the AFP and
PNP and other government officers
and employees who are:
o duly registered voters and
o on election day, may be
temporarily
assigned
in
connection
with
the
performance of election duties
to places where they are not
registered voters.
R.A. 9189 (The Overseas Absentee

Voting Act of 2003)
Please refer to page 206 for a more

detailed discussion The Overseas
Absentee Voting Act of 2003.
ii. To design a procedure for the disabled and
the illiterate to vote without the assistance of
other persons.
C. Election Period
Unless otherwise fixed by the COMELEC in
special cases, the election period shall
commence 90 days before the day of the
election and shall end 30 days thereafter. [Art.
IX-C, Sec. 9, Const.]
199
ELECTION LAW
A.
B.
C.
COMPOSITION
QUALIFICATIONS
POWERS AND FUNCTIONS
1. CONSTITUTIONAL
POWERS
AND
FUNCTIONS
2. STATUTORY POWERS
D. RENDITION OF DECISION
1. COMPOSITION
2. TIME PERIOD AND VOTES REQUIRED
3. COMELEC DECISIONS REVIEWABLE BY
THE SUPREME COURT
E. MEASURES DESIGNED FOR COMELECS
INDEPENDENCE
C. Powers and Functions

1. Constitutional powers and functions
[Art. IX-C, Sec. 2]
i.
A. Composition
1 chairman and 6 Commissioners

Appointed by the President with the consent
of the Commission on Appointments for a
term of 7 years without reappointment.
No member shall be appointed or
designated in a temporary or acting
capacity. [Art. IX-C, Sec. 1, Constitution]
Enforce and administer all laws relative to

the conduct of an election, plebiscite,
initiative referendum and recall
ii.
Quasi-Judicial Powers
B. Qualifications
1.
2.
3.
4.
Natural born Filipino citizens

At least 35 years old
Holders of a college degree
Not candidates for any elective position in
the immediately preceding election
5. Majority, including the chairman, must be
members of the Bar who have been
engaged in the practice of law for at least 10
years. [Art. IX-C, Sec. 1, Const.]
Promulgate rules and regulations in the

enforcement of laws relative to
elections.
Fix
appropriate
periods
for
accomplishment of pre-election acts.
Annul/cancellation illegal registry lists of
voters and order the preparation of a
new one.
Cancel canvass of election returns and
annul proclamation based on incomplete
results. (Note: COMELEC does not have
the power to annul an election which
may not have been free, orderly, and
honest;
such
power
is
merely
preventive, not curative.)
Exclusive original jurisdiction over all

contests relating to the election, returns
and qualifications of all elective regional,
provincial and city officials.

Elections and Electoral Reforms,
which
prohibits
pre-proclamation
controversies in national offices.
Inhibitions/Disqualifications:
1. Shall not, during tenure, hold any other
office or employment.
2. Shall not engage in the practice of any
profession.
3. Shall not engage in the active
management or control of any business
which in any way may be affected by the
functions of his office.
4. Shall not be financially interested,
directly or indirectly, in any contract with,
or in any franchise or privilege granted
by the Government, any of its
subdivisions,
agencies
or
instrumentalities, including GOCCs or
their subsidiaries.
The possibility of a conflict of

jurisdiction between the COMELEC
and the Electoral Tribunal regarding
contests
involving
congressional
elections has been foreclosed by Sec.
15, R.A. 7166, An Act Providing for
Jurisdiction of the Electoral Tribunal is

exercised over the members of the
House or Senate. A party to the
election controversy is a member of
the House or Senate only after he has
been proclaimed, has taken his oath
and has assumed the functions of the
office. [Aquino vs COMELEC (1995)]
Exclusive appellate jurisdiction over all

contests involving municipal officials
decided by the RTC, or involving elective
barangay officials decided by the MTC. In
these cases, the decisions therein shall be
final, executory and unappealable.
The fact that decisions, final orders or

rulings of the COMELEC in contests
200
ELECTION LAW
Chapter II. COMELEC
Chapter II. COMELEC
iii. Decide all questions affecting elections

Including:
Determination of the number and
location of polling places
Appointment of election officials and
inspectors
Registration of voters
However, it has no jurisdiction over
questions involving the right to vote (i.e.
disqualifications of voters, right of a
person to be registered, etc.)
iv. Deputize, with the concurrence of the

President, law enforcement agencies and
instrumentalities, including the AFP, for the
exclusive purpose of ensuring free, orderly,
honest, peaceful and credible elections.
v.
Register political parties, organizations or

coalitions.
vi. Accredit citizens' arms.

vii. File, upon a verified complaint, or on its own
initiative, petitions in court for the inclusion
or exclusion of votes.
x.
ix. Recommend
to Congress effective measures
to minimize election spending
to prevent and penalize all forms of
election
frauds,
offenses,
malpractices,
and
nuisance
candidates
to the President
removal of any officer or employee it
has deputized
imposition of disciplinary action for
violation
or
disregard
of,
or
disobedience to its directive, order, or
decision
to ensure equal opportunity, time, and space,

and the right to reply for the holding of free,
orderly, honest and peaceful elections
i.
Sec. 52 and 57, B.P. 881, Omnibus

Election Code
ii.
Power to postpone election [Sec. 5, B.P.

881]
iii. Power to declare failure of elections [Sec. 6,

B.P. 881]
iv. Power to call a special election [Sec. 4, R.A.
7166]
Please refer to page 219 for a more detailed
discussion of power to postpone election,
declare failure of elections and to call a
special election.
of election laws
The COMELEC has the power of a
public prosecutor with the exclusive
authority to conduct the preliminary
investigation and the prosecution of
election offenses punishable under the
election law. The power may be
exercised upon complaint or motu
proprio.
transportation and other public utilities

media of communication or information
all
grants,
special
privileges,
or
concessions granted by the Government
or any instrumentality thereof
2. Statutory powers
viii. Investigate and prosecute cases of violation
Supervise or regulate during the election

period the use or enjoyment of all franchises
or permits for operation of:
pardon,
amnesty,
parole
or
suspension of sentence for violation of
election laws, rules and regulations
D. Rendition of Decision
1. Composition
The COMELEC may sit en banc or in 2
divisions.
General Rule: Election cases, including preproclamation controversies, shall be heard

and decided in division
The rule applies only when COMELEC
exercises its adjudicatory or quasijudicial functions, not when it exercises
purely administrative functions.
Exceptions: Decisions that must be

rendered by the COMELEC en banc include:
i. Decisions
on
motions
for
reconsideration [Art. IX-C, Sec. 3,
Const.]
ii. Petitions for correction of manifest
201
ELECTION LAW
involving elective municipal and

barangay officials are final, executory
and not appealable, does not preclude
a recourse to the Supreme Court by
way of a special civil action for
certiorari.
Chapter II. COMELEC
errors in the tabulation or tallying of

results [Sec. 5, Rule 27 of the 1993
Rules of the COMELEC]
iii. Questions pertaining to proceedings of
the Board of Canvassers [(Mastura v.
Comelec, (1998)]
iv. Postponement of election [Sec. 4, R.A.
7166,
An
Act
Providing
for

Elections and Electoral Reforms]
v. Declaration of failure of election [Sec. 4,
R.A. 7166]
vi. Calling of special elections [Sec. 4, R.A.
7166]
2. Time Period and Votes Required

Decide by majority vote of all its members any
case or matter brought before it within 60 days
from the date of its submission for decision or
resolution. [Art. IX-A, Sec. 7 Const.]
3. COMELEC decisions reviewable by the

Supreme Court
Only decisions of the COMELEC en banc

may be brought to the Supreme Court by
petition on certiorari within 30 days from
receipt of a copy thereof. [Art. IX-A, Sec. 7,
Const.]
By certiorari, a party raises questions of
law in the Supreme Court. Findings of
fact made by the COMELEC are
conclusive upon the Supreme Court.
Only decisions of the COMELEC made
in the exercise of its adjudicatory or
quasi-judicial power may be brought to
the Supreme Court on certiorari.
Determinations made by the COMELEC
which are merely administrative (not quasijudicial) in character, may be challenged in
an ordinary civil action before the RTC.
The Supreme Court has no power of
supervision over the COMELEC except to
review its decisions on petitions by certiorari.
Chapter II. COMELEC

Independence
1. Constitutionally created, may not be
abolished by statute.
2. Conferred certain powers and functions
which cannot be reduced by statute.
3. Chairmen and members cannot be removed
except by impeachment.
4. Chairman and Commissioners are given
fixed terms of 7 years.
5. Chairmen and members may not be
reappointed or appointed in an acting
capacity.
6. Salaries shall not be decreased during their
continuance in office.
7. Enjoy fiscal autonomy.
8. May promulgate its own procedural rules,
provided they do not diminish, increase or
modify substantive rights (though subject to
disapproval by the SC).
9. Chairmen and members are prohibited from
engaging in the practice of any other
profession or management of any business,
or to be financially interested in any contract
with the Government during their tenure in
office.
10. May appoint their own officials and
employees in accordance with the Civil
Service Law.
202
ELECTION LAW
Chapter III. Voters: QUALIFICATION and REGISTRATION
It is not necessary that a person should

have a house in order to establish his
residence or domicile in a municipality. It is
enough that he should live there, provided
that his stay is accompanied by his intention
to reside therein permanently. [Marcos vs
COMELEC (1995)]

Registration
A.
B.
C.
D.
E.
QUALIFICATIONS
REGISTRATION OF VOTERS
1. DEFINITION
2. SYSTEM
OF
CONTINUING
REGISTRATION
3. DISQUALIFICATION
4. ELECTION REGISTRATION BOARD
5. CHANGE OF RESIDENCE OR ADDRESS
6. CHALLENGES TO RIGHT TO REGISTER
7. DEACTIVATION OF REGISTRATION
8. REACTIVATION OF REGISTRATION
9. CERTIFIED LIST OF VOTERS
INCLUSION AND EXCLUSION PROCEEDINGS
1. JURISDICTION
2. PETITION FOR INCLUSION
3. PETITION FOR EXCLUSION
ANNULMENT OF BOOK OF VOTERS
OVERSEAS ABSENTEE VOTER
1. DEFINITIONS
2. COVERAGE
3. QUALIFICATIONS
4. DISQUALIFICATIONS
5. PERSONAL
OVERSEAS
ABSENTEE
REGISTRATION
6. INCLUSION
AND
EXCLUSION
PROCEEDINGS
7. NATIONAL REGISTRY OF OVERSEAS
ABSENTEE VOTERS
ii.
A. Qualifications
[Art. V, Sec. 1, 1987 Const.]
1. Citizenship: Filipino citizen by birth or
naturalization
Note: These are the same 3 grounds for

disqualification to register as a voter
under Sec. 11, R.A. 8189, Voters
Registration Act of 1996.
5.
Registered voter: In order that a qualified

elector may vote in any election, plebiscite
or referendum, he must be registered in the
Permanent List of Voters for the city or
municipality in which he resides. [Sec. 115,
B.P. 881, Omnibus Election Code]
No literacy, property or other substantive

requirement shall be imposed on the
exercise of suffrage
2. Age: at least 18 at the time of the election

3. Residency:
i. Resident of the Philippines for at least 1
year and
ii. Resident of the place wherein they
propose to vote for at least 6 months
immediately preceding the election
Note: Any person who temporarily
resides in another city, municipality or
country solely by reason of his:
employment in private or public
service
educational activities
work in the military or naval
reservations within the Philippines
service in the AFP, PNP or
confinement
or
detention
in
government
institutions
in
accordance with law shall not be
deemed to have lost his original
residence [Sec. 9, R.A. 8189,
Voters Registration Act of 1996]
Not otherwise disqualified by law:

i. Sentenced by final judgment to suffer
imprisonment for not less than 1 year
(unless granted a plenary pardon or an
amnesty)
shall automatically reacquire right to
vote upon the expiration of 5 years
after the service of sentence
ii. Adjudged by final judgment for having
committed any crime involving disloyalty
to the duly constituted government (e.g.
rebellion, sedition, violation of the
firearms law) or any crime against
national security (unless restored to full
civil and political rights in accordance
with law)
shall automatically reacquire the
right to vote upon the expiration of 5
years after the service of sentence
iii. Insane or incompetent persons as
declared by competent authority
B. Registration of Voters
1. Definition
Act of accomplishing and filing of a sworn

application for registration by a qualified
voter before the election officer of the city or
municipality wherein he resides and
including the same in the book of registered
voters upon approval by the Election
Registration Board. [Sec. 3a, R.A. 8189]
203
ELECTION LAW
2. System of Continuing Registration of

Voters
The personal filing of application of

registration of voters shall be conducted
daily in the office of the Election Officer
during regular office hours.
3. Illiterate or disabled voters
Illiterate person - may register with the

assistance of the Election Officer or any
member of an accredited citizens arms
Physically disabled person application for

registration may be prepared by:
any relative within the 4th civil degree of
consanguinity or affinity or
by the Election Officer or
any member of an accredited citizens
arm [Sec. 14, R.A. 8189]
Period of registration:
No registration shall be conducted within
120 days before a regular election
90 days before a special election
[Sec. 8, R.A. 8189]
PALATINO VS COMELEC
G.R. No. 189868, December 15. 2009
Facts: COMELEC Resolution 8585 set the
deadline for voter registration to 31 October
2009. Petitioners asked the SC to declare the
resolution null and void, and to require
COMELEC to extend the voter registration until
9 January 2010, the day before the 120-day
period prior to the 10 May 2010 regular
elections. COMELEC argued that it is authorize
under the law to fix other dates for pre-election
acts which include voter registration and in
Akbayan-Youth vs. COMELEC, the SC denied a
similar prayer for extension of deadline for voter
registration for the 14 May 2001 elections.
4. Election Registration Board
Issue: WON COMELEC Resolution 8585 should

be declared void.
Ruling: Yes. By Sec. 8 R.A. 8189, Congress
itself has determined that the period of 120 days
before a regular election and 90 days before a
special election is enough time for the
COMELEC to make ALL the necessary
preparations with respect to the coming
elections. COMELEC is granted the power to fix
other periods and dates for pre-election activities
only if the same cannot be reasonably held
within the period provided by law. There is no
ground to hold that the mandate of continuing
voter registration cannot be reasonably held
within the period provided by Sec. 8 of R.A.
8189.
The case is different from Akbayan-Youth vs.
COMELEC, wherein the petitioners filed their
petition with the Court and sought the conduct of
a two-day registration all within the 120-day
prohibitive period. In this case, both the dates of
filing of the petition and the extension sought are
prior to the 120-day prohibitive period.
R.A. 9369 The Poll Automation Law now

defines a disabled voter as a person
with impaired capacity to use the
Automated Election System (AES)
(Sec. 2, Par. 11)
Composition:
Chairman: Election Officer
If disqualified, COMELEC shall
designate an acting Election Officer
Members:
Public school official most senior in
rank
Local civil registrar, or in his
absence, the city or municipal
treasurer. If neither are available,
any other appointive civil service
official from the same locality as
designated by the COMELEC.
Disqualification: relation to each other or to

any incumbent city or municipal elective
th
official within the 4
civil degree of
consanguinity or affinity. [Sec. 15, R.A.
8189]
5. Change of residence or address
Change of residence to another city or

municipality the registered voter may apply
with the Election Officer of his new
residence for the transfer of his registration
records. [Sec. 12, R.A. 8189]
Change of address in the same municipality
or city voter shall immediately notify the
Election Officer in writing. [Sec. 13, R.A.
8189]
6. Challenges to right to register
Who may challenge application for

registration: Any voter, candidate or
representative of a registered political party
Form:
In writing
204
ELECTION LAW
State the grounds therefor

Under oath and
Attached to the application, together
with the proof of notice of hearing to the
challenger and the applicant
9. Certified List of Voters
nd
When: must be filed not later than the 2

Monday of the month in which the same is
scheduled to be heard or processed by the
ERB [Sec. 18, R.A. 8189]
C. Inclusion and Exclusion Proceedings
7. Deactivation of Registration
The ERB shall prepare and post a certified

list of voters 90 before a regular election and
60 days before a special election. [Sec. 30,
R.A. 8189]
The board shall remove the registration

records of the following persons from the
corresponding precinct book of voters and
place the same in the inactive file:
i. Sentenced by final judgment to suffer
imprisonment for not less than 1 year
(unless granted a plenary pardon or an
amnesty)
shall automatically reacquire right to
vote upon the expiration of 5 years
after the service of sentence as
certified by clerks of courts
ii. Adjudged by final judgment for having
committed any crime involving disloyalty
to the duly constituted government (e.g.
rebellion, sedition, violation of the
firearms law) or any crime against
national security (unless restored to full
civil and political rights in accordance
with law)
shall automatically reacquire the
right to vote upon the expiration of 5
years after the service of sentence
iii.
Insane or incompetent persons as
declared by competent authority
iv.
Did not vote in the 2 successive
preceding regular elections (excluding
SK elections)
v.
Registration has been ordered excluded
by the Court and
vi.
Lost his Filipino citizenship. [Sec. 27,
R.A. 8189]
Jurisdiction in inclusion and exclusion case:

The Municipal and Metropolitan Trial Courts
shall have original and exclusive jurisdiction
over all cases of inclusion and exclusion of
voters in their respective cities or
municipalities. [Sec. 33, R.A. 8189]
Appeal: Decisions of the MTC or MeTC may

be appealed by the aggrieved party to the
RTC within 5 days from receipt of notice
thereof. No motion for reconsideration shall
be entertained. [Sec. 33, R.A. 8189]
Petition for Inclusion of Voters in the List:

When: any time except 105 days prior to
a regular election or 75 days prior to a
special election.
Who may file:
One
whose
application
for
registration has been disapproved
by the Board of Election Inspectors
or
One whose name has been stricken
out from the list [Sec. 34, R.A.
8189]
Petition for Exclusion of Voters in the List:

When: any time except 100 days prior to
a regular election or 65 days prior to a
special election.
Who may file:
Any registered voter;
Any representative of a political
party;
the Election Officer
8. Reactivation of Registration
D. Annulment of Book of Voters
Any voter whose registration has been

deactivated may file with the Election Officer
a sworn application for reactivation of his
registration in the form of an affidavit stating
that the grounds for the deactivation no
longer exist.
When: Any time not later than 120 days
before a regular election and 90 days before
a special election. [Sec. 28, R.A. 8189]
The COMELEC shall, upon verified petition

of any voter or election officer or duly
registered political party, and after notice
and hearing, annul any book of voters that
is:
i.
ii.
iii.
not prepared in accordance with R.A. 8189

or the Voters Registration Act of 1996
prepared through fraud, bribery, forgery,
impersonation, intimidation, force, or any
similar irregularity
contains data that are statistically improbable
205
ELECTION LAW
No order, ruling or decision annulling a book

of voters shall be executed within 90 days
before an election. [Sec. 39, R.A. 8189]
v.
E. Overseas Absentee Voter

1. Definitions
Absentee Voting: process by which qualified

citizens of the Philippines abroad exercise
their right to vote. [Sec. 3a, R.A. 9189, The
Overseas Absentee Voting Act]
Overseas Absentee Voter: citizen of the
Philippines who is qualified to register and
vote under this Act, not otherwise
disqualified by law, who is abroad on the
day of elections. [Sec. 3f, R.A. 9189]
Effect of failure to return: cause for the

removal of his/her name from the
National Registry of Absentee Voters
and his/her permanent disqualification to
vote in absentia
Previously declared insane or incompetent
by competent authority in the Philippines or
abroad, as verified by the Philippine
embassies, consulates or foreign eservice
establishments concerned. [Sec.5, R.A.
9189]
5. Personal
Registration
Overseas
Absentee
Registration as an overseas absentee voter

shall be done in person. [Sec.5, R.A. 9189]
6. Inclusion and Exclusion Proceedings

2. Coverage
Petition for Inclusion of Voters in the List:
Elections for president, vice-president,

senators and party-list representatives [Sec.
3f, R.A. 9189]
3. Qualifications
Petition for Exclusion:
All Filipino citizens abroad

Not otherwise disqualified by law
At least 18 years of age on the day of
elections [Sec. 3f, R.A. 9189]
When: within 5 days from receipt of the

notice of disapproval
Who may file: applicant or his authorized
representative [Sec. 6.7, R.A. 9189]
When: any time not later than 210 days

before the day of the elections
Who may file: any interested person [Sec.
6.7, R.A. 9189]
4. Disqualifications
7. National
Registry
Absentee Voters
i.
Definition: the consolidated list prepared,

approved and maintained by the COMELEC,
of overseas absentee voters whose
applications for registration as absentee
voters, including those registered voters who
have applied to be certified as absentee
voters, have been approved by the Election
Registered Board. [Sec. 3e, R.A. 9189]
Grounds for cancellation/amendment

entries therein:
have lost their Filipino citizenship in

accordance with Philippine laws
ii. have expressly renounced their Philippine
citizenship and who have pledged allegiance
to a foreign country
iii. have committed and are convicted in a final
judgment by a court or tribunal of an offense
punishable by imprisonment of not less than
1 year, including those who have committed
and been found guilty of Disloyalty as
defined under Article 137 of the RPC
iv. immigrant or a permanent resident who is
recognized as such in the host country
unless
he/she
executes,
upon
registration, an affidavit prepared for the
purpose by the Commission declaring
that:
he/she shall resume actual physical
permanent
residence
in
the
Philippines not later than 3 years
from approval of his/her registration
and
he/she has not applied for
citizenship in another country
i.
ii.
of
Overseas
of
When the overseas absentee voter files a

letter under oath addressed to the Comelec
that he/she wishes to be removed from the
Registry of Overseas Absentee Voters, or
that his/her name be transferred to the
regular registry of voters.
When an overseas absentee voters name
was ordered removed by the Comelec from
the Registry of Overseas Absentee Voters
for his/her failure to exercise his/her right to
vote under R.A. 9189 for 2 consecutive
national elections. (Sec. 9, R.A. 9189)
206
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A.
B.
C.
CERTIFICATES OF CANDIDACY
1. CANDIDATE, DEFINITION
2. QUALIFICATIONS
3. DISQUALIFICATIONS
4. FILING AND WITHDRAWAL
5. EFFECT OF FILING
6. SUBSTITUTION OF CANDIDATES
7. DUTY OF COMELEC
8. PETITION TO DECLARE NUISANCE
CANDIDATE
9. PETITION
TO
DENY
DUE
COURSE/CANCEL CERTIFICATE
10. EFFECT OF DISQUALIFICATION CASE
REGISTRATION OF POLITICAL PARTY
1. PARTY SYSTEM
2. DEFINITIONS
3. PURPOSE
4. PROCEDURE FOR REGISTRATION
5. WHO MAY BE REGISTERED
6. GROUNDS
FOR
REFUSAL/CANCELLATION
7. PARAMETERS IN ALLOCATION OF
SEATS
8. EFFECT OF CHANGE OF AFFLIATION
9. NOMINATION
PARTY-LIST AND DISTRICT
REPRESENTATIVES DISTINGUISHED
A. Certificates of Candidacy
1. Candidate, Definition
Any person who files his certificate of

candidacy within prescribed period shall only
be considered as a candidate at the start of
the campaign period for which he filed his
certificate of candidacy. [Sec. 15, R.A. 9369,
Poll Automation Law]
Unlawful acts or omissions applicable to a
candidate shall take effect only upon the
start of the aforesaid campaign period. [Sec.
15, R.A. 9369]
Any registered national, regional, or sectoral
party, organization or coalition thereof that
has filed a manifestation to participate under
the party-list system which has not
withdrawn or which has not been
disqualified before the start of the campaign
period. [Comelec Res. 8758, Feb. 4, 2010]
2. Qualifications
Qualifications prescribed by law are

continuing requirements and must be
possessed for the duration of the officer's
active tenure [Frivaldo v. COMELEC
(1989); Labo v. COMELEC (1989)].
3. Disqualifications
Under the Omnibus Election Code

i. Declared incompetent or insane by
competent authority (Sec. 12)
ii. Permanent resident of or an immigrant
to a foreign country
unless he has waived such status
(Sec. 68)
iii. Sentenced by final judgment for:
Subversion, insurrection, rebellion
Any offense for which he has been
sentenced to a penalty of more than
18 months imprisonment
A crime involving moral turpitude
(Sec. 12)
iv. Given money or other material
consideration to influence, induce or
corrupt voters or public officials
performing electoral functions (Sec. 68)
v. Committed acts of terrorism to enhance
his candidacy (Sec. 68)
vi. Spent in his election campaign an
amount in excess of that allowed (Sec.
68)
vii. Solicited, received or made prohibited
contributions (Sec. 68)
viii. Engaged in election campaign or
partisan political activity outside the
campaign period and not pursuant to a
political party nomination (Sec. 80)
ix. Removed, destroyed, defaced lawful
election propaganda (Sec. 83)
x. Engaged in prohibited forms of election
propaganda (Sec. 85)
xi. Violated election rules and regulations
on election propaganda through mass
media (Sec. 86)
xii. Coerced, intimidated, compelled, or
influenced any of his subordinates,
members, or employees to aid,
campaign or vote for or against any
candidate or aspirant for the nomination
or selection of candidates (Sec. 261.d)
xiii. Threatened,
intimidated,
caused,
inflicted or produced any violence,
injury, punishment, damage, loss or
disadvantage upon any person or of the
immediate members of his family, his
honor or property, or used fraud to
compel, induce or
prevent the
registration of any voter, or the
participation in any campaign, or the
casting of any vote, or any promise of
such registration, campaign, vote, or
omission therefrom (Sec. 261.e)
xiv. Unlawful electioneering (Sec. 261.k)
xv. Violated the prohibition against release,
disbursement or expenditure of public
207
ELECTION LAW
Chapter IV. Pre-Election Requirements
Chapter IV. PRE-ELECTION REQUIREMENTS
funds 45 days before a regular election

or 30 days before a special election
(Sec. 261.v)
xvi. Solicited votes or undertook propaganda
on election day for or against any
candidate or any political party within
the polling place or within a 30m radius
(Sec. 261.cc.6)
Under Section 40 of the LGC

i. Sentenced by final judgment for an
offense punishable by at least 1 year
imprisonment within 2 years after
serving sentence
ii. Removed from office as a result of an
administrative case
iii. Convicted by final judgment for violating
the oath of allegiance to the Republic of
the Philippines
iv. 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 who becomes a
naturalized citizen of another
country is allowed to retain his
Filipino citizenship by swearing to
the supreme authority of the
Republic of the Philippines. The act
of taking an oath of allegiance is an
implicit renunciation of a naturalized
citizens foreign citizenship.
Dual citizenship is not a ground for
disqualification from running for
elective position. Like any other
natural-born Filipino, it is enough for
a person with dual citizenship who
seeks public office to (1) file his
certificate of candidacy and (2)
swear to the Oath of Allegiance
contained therein. [Cordora vs.
COMELEC, (February 2009)]
With respect to a person with dual
allegiance, the Court held that
candidates oath of allegiance to the
Republic of the Philippines and his
Certificate of Candidacy do not
substantially comply with the
requirement of a personal and
sworn renunciation of foreign
citizenship. Section 5(2) of R.A. No.
9225 compels natural-born Filipinos,
who have been naturalized as
citizens of a foreign country, but
who reacquired or retained their
Philippine citizenship (1) to take the
oath of allegiance under Section 3

of Republic Act No. 9225, and (2)
for those seeking elective public
offices in the Philippines, to
additionally execute a personal and
sworn renunciation of any and all
foreign
citizenship
before
an
authorized public officer prior or
simultaneous to the filing of their
certificates of candidacy, to qualify
as
candidates
in
Philippine
elections.
[Jacot
vs.
Dal,
(November 2008)]
v. Fugitive from justice in criminal and nonpolitical cases here and abroad
vi. Insane or feeble-minded
4. Filing and withdrawal of certificate of

candidacy
No person shall be eligible for any elective

public office unless he files a sworn
certificate of candidacy within the period
fixed herein. [Sec. 73, B.P. 881]
The certificate of candidacy shall be
filed by the candidate personally or by
his duly authorized representative.
When:
any
day
from
the
commencement of the election period
but not later than the day before the
beginning of the campaign period.
In cases of postponement or failure of
election, no additional certificate of
candidacy shall be accepted except in
cases of substitution of candidates.
[Sec. 75, B.P. 881]
Filing of 2 certificates of candidacy:

No person shall be eligible for more than
one office to be filled in the same
election.
If he files a certificate of candidacy for
more than one office he shall not be
eligible for either.
Before the expiration of the period for
the filing of certificates of candidacy, the
person who has filed more than one
certificate of candidacy, may declare under oath the office for
which he desires to be eligible and
cancel the certificate of candidacy
for the other office/s [Sec. 73, B.P.
881]
A person who has filed a certificate of

candidacy may, prior to the election,
withdraw the same by submitting to the
208
ELECTION LAW
6. Substitution of Candidates
If after the last day for filing of the

certificates of candidacy, an official
candidate of a registered political party dies,
withdraws or is disqualified for any cause:
He may be substituted by a candidate
belonging to and nominated by the
same political party.
No substitute shall be allowed for any
independent candidate.
The substitute must file his certificate of
candidacy not later than mid-day of the
election day
If the death, withdrawal or disqualification

should happen between the day before the
election and mid-day of the election day,
certificate may be filed with:
any Board of Election Inspectors in the
political subdivision where he is a
candidate or
with the COMELEC if it is a national
position [Sec. 77, B.P. 881]
Effect of filing or withdrawal of a certificate of

candidacy: shall not affect whatever civil,
criminal or administrative liabilities which a
candidate may have incurred.
5. Effect of filing certificate of candidacy
Any person holding a public appointive office

or position including active members of the
AFP, and other officers and employees in
GOCCs, shall be considered ipso facto
resigned from his office upon the filing of his
certificate of candidacy. [Sec. 66(1), B.P.
881]
Any person holding an elective office or
position shall not be considered resigned
upon the filing of his certificate of candidacy
for the same or any other elective office or
position. [Sec. 4, Comelec Resolution No.
8678 Guidelines on the Filing of Certificates
of Candidacy and Nomination of Official
Candidates of Registered Political Parties in
Connection with the May 10, 2010 National
and Local Elections]
Sec. 67 B.P. 811 which deemed elective
officials automatically resigned from
office upon filing of their certificate of
candidacy was repealed by 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 in election laws Sec. 13(3) R.A.
9369, Sec. 66 B.P. 881 and Sec. 4(a)
COMELEC Resolution 8678 - that deemed
appointive officials automatically resigned once
they filed their certificates of candidacy.
Ratio: By repealing Section 67 but retaining
Section 66 of B.P. 881, the legislators deemed it
proper to treat these two classes of officials
differently with respect to the effect on their
tenure in the office of the filing of the certificates
of candidacy for any position other than those
occupied by them. It is not within the power of
the Court to pass upon or look into the wisdom
of this classification. Since the classification
justifying Section 14 of R.A. 9006 is anchored
upon material and significant distinctions and all
the persons belonging under the same
classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed.
7. Duty of COMELEC
[Sec. 76, B.P. 881]
General rule: The COMELEC shall have the
ministerial duty to receive and acknowledge
receipt of the certificates of candidacy
provided said certificates are: under oath
and contain all the required data and in the
form prescribed by the Commission.
Exception: COMELEC may go beyond the
face of the certificate of candidacy
i. Nuisance candidates
ii. Petition to deny due course or to cancel
a certificate of candidacy
The COMELEC has no discretion to give or
not to give due course to a certificate of
candidacy filed in due form. While the
COMELEC may look into patent defects in
the certificate, it may not go into matters not
appearing on their face. [Abcede v.
Imperial, (1958)]
8. Petition to declare a duly registered

candidate as a nuisance candidate
[Sec. 5, R.A. 6646, The Electoral Reforms
Law of 1987]
Who may file: any registered candidate for
the same office
When: within 5 days from the last day for the
filing of certificates of candidacy
How: personally or through duly authorized
representative with the COMELEC
209
ELECTION LAW
office concerned a written declaration under

oath.
Grounds: certificate of candidacy has been

filed To put the election process in mockery
or disrepute or
To cause confusion among the voters
by the similarity of the names of the
registered candidates or
Clearly demonstrate that the candidate
has no bona fide intention to run for the
office for which the certificate of
candidacy has been filed and thus
prevent a faithful determination of the
true will of the electorate [Sec. 69, B.P.
881]
Proceeding: summary in nature
9. Petition to Deny Due Course or to

Cancel Certificate
1) Who may file: Any person
2) When: Any time not later than 25 days from
the time of the filing of the certificate of
candidacy
3) Exclusive
ground:
any
material
representation contained in the certificate of
candidacy is false.
4) Decision: Shall be decided, after due notice
and hearing, not later than 15 days before
the election. [Sec. 78, B.P. 881]
SALIC MARUHOM VS COMELEC

GR NO. 179430, July 27. 2009
Held: The false representation must pertain to a
material fact that affects the right of the
candidate to run for the election for which he
filed his COC. Such material fact refers to a
candidates eligibility or qualification for elective
office like citizenship, residence or status as a
registered voter. Aside from the requirement of
materiality, the false representation must consist
of a deliberate attempt to mislead, misinform, or
hide a fact that would otherwise render a
candidate ineligible. In other words, it must be
made with the intention to deceive the electorate
as to the would-be candidates qualifications for
public office.
10. Effect of disqualification case
Any candidate who has been declared by

final judgment to be disqualified
shall not be voted for and
the votes cast for him shall not be
counted
If a candidate is not declared by final
judgment before an election to be
disqualified and he is voted for and receives

the winning number of votes in such election
The Court or COMELEC shall continue

with the trial and hearing of the action,
inquiry, or protest and
Upon motion of the complainant or any

intervenor, may during the pendency
thereof, order the suspension of the
proclamation
of
such
candidate
whenever 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:
i. before the election and proclamation of
the respondent and the case is not
resolved before the election
the trial and hearing of the case
shall continue and referred to the
Law Department for preliminary
investigation
ii. after the election and before the
proclamation of the respondent
the trial and hearing of the case
shall be suspended and referred to
the Law Department for preliminary
investigation
In either case, if the evidence of guilt is
strong, the COMELEC may order the
suspension of
the
proclamation
of
respondent, and if proclaimed, to suspend
the effects of proclamation. [Sec. 4,
Resolution No. 8678]
B. Registration of Political Parties

1. Party System
A free and open party system shall be

allowed to evolve 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
for those registered under the party-list
system. [Art. IX-C, Sec. 7, Const.]
2. Definitions
i.
Party-List
System:
Mechanism
of
proportional representation in the election of
representatives
to
the
House
of
Representatives from national, regional and
sectoral parties or organizations or coalitions
registered with the COMELEC.
ii.
Political party: An organized group of

citizens advocating an ideology or platform,
principles and policies for the general
210
ELECTION LAW
3 kinds:
National party - constituency is spread
over the geographical territory of at least
a majority of the regions.
Regional party - constituency is spread
over the geographical territory of at least
a majority of the cities and provinces
comprising the region.
Sectoral party organized group of
citizens belonging to any of the following
sectors: labor, peasant, fisherfolk, urban
poor, indigenous cultural communities,
elderly, handicapped, women, youth,
veterans,
overseas
workers
and
professionals whose principal advocacy
pertains to the special interests and
concerns of their sector.
iii. Sectoral organization: group of citizens or a

coalition of groups of citizens who share
similar physical attributes or characteristics,
employment, interests or concerns.
iv. Coalition: an aggrupation of duly registered
national, regional, sectoral parties or
organizations for political and/or election
purposes. [Sec. 3, R.A. 7941, Party-List
System Act]
3. Purpose
To enable Filipino citizens belonging to
marginalized and underrepresented sectors,
organizations and parties, and who lack welldefined political constituencies but who could
contribute to the formulation and enactment of
appropriate legislation that will benefit the nation
as a whole, to become members of the House of
Representatives. [Sec. 2, R.A. 7941]
4. Procedure for Registration

i.
File with the COMELEC not later than 90

days before the election
a petition verified by its president or
secretary stating its desire to participate
in the party-list system as a national,
regional or sectoral party or organization
or a coalition of such parties or
organizations
attaching thereto its constitution, bylaws,
platform
or
program
of
government, list of officers, coalition
agreement
and
other
relevant
information as the COMELEC may
require
ii.
COMELEC shall publish the petition in at

least 2 national newspapers of general
circulation
iii. COMELEC shall, after due notice and

hearing, resolve the petition within 15 days
from the date it was submitted for decision
but in no case not later than 60 days before
election [Sec. 5, R.A. 7941]
5. Who May Not be Registered

i.
ii.
Religious denominations and sects

Those which seek to achieve their goals
through violence or unlawful means
iii. Those which refuse to uphold and adhere to
the Constitution
iv. Those supported by foreign governments
[Art. IX-C, Sec. 2 (5), Constitution]
6. Grounds for refusal and/or cancellation

of registration
The COMELEC may, motu propio or upon

verified complaint of any interested party,
refuse or cancel, after due notice and
hearing, the registration of any national,
regional or sectoral party, organization or
coalition on any of the following grounds:
i. Religious
sect
or
denomination,
organization or association, organized
for religious purposes
ii. Advocates violence or unlawful means
to seek its goal
iii. Foreign party or organization
iv. Receives support from any foreign
government, foreign political party,
foundation,
organization,
whether
directly or through any of its officers or
members or indirectly through third
parties for partisan election purposes
v. Violates or fails to comply with laws,
rules or regulations relating to elections
vi. Declares untruthful statements in its
petition
vii. Ceased to exist for at least 1 year
viii. Fails to participate in the last 2
preceding elections or
ix. Fails to obtain at least 2% of the votes
cast under the party-list system in the 2
preceding elections for the constituency
in which it has registered [Sec. 6, R.A.
7941]
211
ELECTION LAW
conduct of government and which, as the

most immediate means of securing their
adoption, regularly nominates certain of its
leaders and members as candidates for
public office.
7. Parameters in Allocation of Seats for

Party-List Representatives
i.
Formula for percentage of votes garnered by

each party-list candidate =
20% allocation the combined number of

all party-list congressmen shall not exceed
20% of the total membership of the House of
Representatives, including those elected
under the party-list.
Number of seats
available to
legislative districts
.80
Number of seats
available to
x .20 =
party-list
representatives
No. of votes
garnered by
each party
Total no. of
votes cast for
party-list
candidates
2) Assign one party-list seat to each of the

parties next in rank until all available seats
are completely distributed.
8. Effect of Change of Affiliation

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 seat each.
iii. Proportional
representation
the
additional seats shall be computed in
proportion to their total number of votes.
iv. 3-seat limit each party, regardless of the
number of votes it actually obtained, is
entitled to a maximum of 3 seats; one
qualifying and 2 additional seats.
BANAT VS. COMELEC
GR NO. 179271, July 8. 2009
9. Nomination
Representative
Held: In computing the allocation of additional

seats, the continued operation of the 2%
threshold for the distribution of the additional
seats as found in the second clause of Sec.
11(b) of R.A. 7941 which provides that those
garnering more than 2% of the votes shall be
entitled to additional seats in proportion to their
total number of votes is unconstitutional. The
2% threshold frustrates the attainment of the
permissive ceiling that 20% of the members of
the HR shall consist of party-list representatives.
There are 2 steps in the second round of seat

allocation:
1) The percentage of votes garnered by each

party-list candidate is multiplied by the
remaining available seats. The whole integer
of the product corresponds to a partys
share in the remaining available seats
Formula for remaining available seats =
No. of seats available
to party-list
representatives
Guaranteed
seats of the twopercenters
Any elected party-list representative who

changes his 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 partylist representative under his new party
or organization [Sec. 15, R.A. 7941]
of
Party-List
Each registered party, organization or

coalition shall submit to the COMELEC not
later 45 days before the election a list of at
least 5 names from which party-list
representatives shall be chosen in case it
obtains the required number of votes.
A person may be nominated:
in 1 list only
if he/she has given their consent in
writing
is not a candidate for any elective office
or
has not lost his bid for an elective office
in the immediately preceding election
No change of names or alteration of the
order of nominees shall be allowed after the
same shall have been submitted to the
COMELEC except where the nominee:
dies
withdraws in writing his nomination or
becomes incapacitated in which case
the name of the substitute nominee shall
be placed last in the list
Incumbent sectoral representatives in the
HR who are nominated in the party-list
system shall not be considered resigned.
[Sec.
8,
R.A.
7941]
212
ELECTION LAW
ii.
C. Party-list and District Representatives Distinguished
Manner of election
Effect of disaffiliation with
party
Effect of vacancy
Effect
of
change
in
affiliation within 6 months
prior to election
Effect of loss during
previous election
Party-list representative
National
None
Voted
upon
by
party
or
organization.
Loses his seat, will be substituted
by another
Substitution will be made within the
party
Prohibited
from
sitting
as
representative under his new party
or organization.
Cannot sit
District representative
Legislative district
Resident of his legislative district for at
least 1 year immediately before the
election
Elected personally
Does not lose seat
Special elections provided that the
vacancy takes place at least 1 year
before the next election.
Does not prevent a district representative
from running under his new party.
Can run again
213
ELECTION LAW
Scope of electorate
Residence requirement
Chapter V. Election
Expenditures
A.
B.
Chapter V. ELECTION CAMPAIGN and EXPENDITURES
Campaign
and
ELECTION CAMPAIGN
1. ELECTION CAMPAIGN OR PARTISAN
POLITICAL ACTIVITY
2. CAMPAIGN PERIOD
3. LAWFUL ELECTION PROPAGANDA
4. PROHIBITED ACTS
5. EQUAL ACCESS TO MEDIA TIME AND
SPACE
6. ELECTION SURVEYS
7. RALLIES,
MEETINGS
AND
OTHER
POLITICAL ACTIVITY
ELECTION
CONTRIBUTIONS
AND
EXPENDITURES
1. DEFINITIONS
2. PROHIBITED CONTRIBUTIONS
3. PROHIBITED FUND-RAISING ACTIVITIES
4. LIMITATIONS ON EXPENSES
5. STATEMENT OF CONTRIBUTIONS AND
EXPENSES
6. REQUISITES
FOR
PROHIBITED
DONATION
A. Election Campaign
1. Election Campaign or Partisan Political
Activity
An act designed to promote the election or

defeat of a particular candidate or
candidates to a public office. [Sec. 79, B.P.
881]
Exclusions:
i. Acts performed for the purpose of
enhancing the chances of aspirants for
nomination for candidacy to a public
office by a political party, aggroupment,
or coalition of parties.
ii. Public expressions of opinions or
discussions of probable issues in a
forthcoming election or on attributes or
criticisms of probable candidates
proposed to be nominated in a
forthcoming political party convention.
[Sec. 79, B.P. 881]
Persons Prohibited from Campaigning:
i. Members of the board of election
inspections [Sec. 173, B.P. 881]
ii. Civil service officers or employees [Art.
IX-B, Sec. 2 (4), Const.]
iii. Members of the military [Art. XVI, Sec.
5 (3), Const.]
iv. Foreigners, whether juridical or natural
persons.
2. Campaign Period
i.
ii.
For President, Vice-President and Senators

- 90 days before the day of the election.
For Members of the HR and elective
provincial, city and municipal officials - 45
days before the day of the election. [Sec. 5,
R.A. 7166]
General rule: Any election campaign or
partisan political activity for or against any
candidate outside of the campaign period is
prohibited and shall be considered as an
election offense. [Sec. 80, B.P. 881]
Exception: Political parties may hold political
conventions to nominate their official
candidates within 30 days before the start of
the period for filing a certificate of candidacy.
[Sec. 15, R.A. 9369, Poll Automation Law]
Prohibited campaigning days: It is unlawful
for any person to engage in an election
campaign or partisan political activity on:
Maundy Thursday
Good Friday
eve of Election Day and
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

the COMELECs decision to disqualify Penera
as mayoralty candidate in Sta. Monica, Surigao
del Norte, for engaging in election campaign
outside the campaign period, in violation of Sec.
80 of B.P. 881. Penera moved for
reconsideration, arguing that she was not yet a
candidate at the time of the supposed premature
campaigning, since under Sec. 15 of R.A. 9369
one is not officially a candidate until the start of
the campaign period.
Issue: WON Peneras disqualification for
engaging in premature campaigning should be
reconsidered.
Held: At the time the supposed premature
campaigning took place, Penera was not
officially a candidate albeit she already filed her
certificate of candidacy. Under Section 15 of
R.A. 9369, a person who files his certificate of
candidacy is considered a candidate only at the
start of the campaign period, and unlawful acts
applicable to such candidate take effect only at
the start of such campaign period. Thus, a
candidate is liable for an election offense only for
acts done during the campaign period, not
before. Before the start of the campaign period,
214
ELECTION LAW
such election offenses cannot be committed and

any partisan political activity is lawful.
ii.
Take part or influence in any manner

any election
iii. Contribute or make any expenditure in
connection with any election campaign
or partisan political activity [Sec. 81,
B.P. 881]
3. Lawful Election Propaganda

i.
ii.
Pamphlets, leaflets, cards, decals, stickers,

or other written or printed materials not
larger than 8.5x14 inches
iv. 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 name and address of
the candidate or party for whose benefit
the election propaganda was printed or
aired. [Sec. 4.1, R.A. 9006]
If the broadcast is given free of charge
by the radio or TV station, identified by
the words "airtime for this broadcast
was provided free of charge by"
followed by the true and correct name
and address of the broadcast entity.
[Sec. 4.2, R.A. 9006]
Print,
broadcast
or
outdoor
advertisements
donated
to
the
candidate or political party shall not be
printed,
published,
broadcast
or
exhibited without the written acceptance
by said candidate or political party.
Written acceptance must be attached
to the advertising contract and
submitted to the COMELEC within 5
days after its signing. [Sec. 4.3, R.A.
9006, cf. Sec. 6.3, R.A. 9006]
All other forms of election propaganda not
prohibited by the Omnibus Election Code or
the Fair Election Act of 2001. [Sec. 3, R.A.
9006, The Fair Election Act]
4. Prohibited Acts
For any person during the campaign period

to:
i. Remove, destroy, obliterate or in any
manner deface or tamper with lawful
election propaganda
ii. Prevent the distribution of lawful election
propaganda [Sec. 83, B.P.881]
For
any
candidate,
political
party,
organization or any person to:
i. Give or accept, directly or indirectly, free
of charge, transportation, food or drinks
or things of value during the five hours
before and after a public meeting, on the
day preceding the election, and on the
day of the election;
ii. Give or contribute, directly or indirectly,
money or 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.
Handwritten or printed letters urging voters

to vote for or against any political party or
candidate
iii. Cloth, paper or cardboard posters, framed or

posted, not larger than 2x3 feet
Streamers not larger than 3x8 feet are
allowed at a public meeting or rally or in
announcing the holding of such. May be
displayed 5 days before the meeting or
rally and shall be removed within 24
hours after such
v.
For any foreigner to:

i. Aid any candidate or political party,
directly or indirectly
5. Equal Access to Media Time and Space
Print advertisements shall not exceed 1/4

page, in broad sheet and 1/2 page in
tabloids thrice a week per newspaper,
magazine or other publications.
Bona fide candidates and registered political

parties running for nationally elective office
are entitled to not more than 120 mins of
TV advertisement and 180 mins of radio
advertisement whether by purchase or by
donation.
Bona fide candidates and registered political

parties running for locally elective office are
entitled to not more than 60 mins of TV
advertisement and 90 mins of radio
advertisement whether by purchase or by
donation.
Broadcast stations or entities are required to

submit copies of their broadcast logs and
certificates of performance to the COMELEC
for the review and verification of the
frequency, date, time and duration of
advertisement broadcast for any candidate
or political party.
215
ELECTION LAW
All mass media entities are required to

furnish the COMELEC with a copy of all
contracts for advertising, promoting or
opposing any political party or the candidacy
of any person for public office within 5 days
after its signing.
No franchise or permit to operate a radio or

TV station shall be granted or issued,
suspended or cancelled during the election
period.
Any mass media columnist, commentator,

announcer, reporter, on-air correspondent or
personality who is a candidate for any
elective public office or is a campaign
volunteer for or employed or retained in any
capacity by any candidate or political party
shall:
be deemed resigned, if so required by
their employer or
take a leave of absence from his/her
work as such during the campaign
period
No movie, cinematograph or documentary

shall be publicly exhibited in a theater,
television station or any public forum during
the campaign period which:
portrays the life or biography of a
candidate
is portrayed by an actor or media
personality who is himself a candidate.
[Sec. 6, R.A. 9006]
ii. Pollsters shall wear distinctive clothing

iii. Pollsters shall inform the voters that they
may refuse to answer and
iv. The result of the exit polls may be
announced after the closing of the polls
on election day and must clearly identify
the total number of respondents, and the
places where they were taken. Said
announcement shall state that the same
is unofficial and does not represent a
trend. [Sec. 5, R.A. 9006]
8. Application for Rallies, Meetings and

Other Political Activity
All applications for permits must immediately

be posted in a conspicuous place in the city
or municipal building, and the receipt thereof
acknowledged in writing.
Applications must be acted upon in writing

by local authorities concerned within 3 days
after their filing. If not acted upon within said
period, deemed approved.
The only justifiable ground for denial of the

application is when a prior written
application by any candidate or political
party for the same purpose has been
approved.
Denial of any application for said permit is

appealable to the provincial election
supervisor or to the COMELEC whose
decision shall be made within 48 hours and
which shall be final and executory. [Sec. 87,
B.P. 881)]
7. Election Surveys
The measurement of opinions and

perceptions of the voters as regards a
candidate's
popularity,
qualifications,
platforms or a matter of public discussion in
relation to the election, including voters'
preference for candidates or publicly
discussed issues during the campaign
period.
Surveys affecting national candidates shall

not be published 15 days before an election
and surveys affecting local candidates shall
not be published 7 days before an election.
Exit polls may only be taken subject to the

following requirements:
i. Pollsters shall not conduct their surveys
within 50m from the polling place,
whether said survey is taken in a home,
dwelling place and other places
B. Election
Contributions
Expenditures
and
1. Definitions
Contribution: gift, donation, subscription,

loan, advance or deposit of money or
anything of value, or a 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 their time in behalf of a
candidate or political party
includes the use of facilities voluntarily
donated by other persons, the money
value of which can be assessed based
on the rates prevailing in the area. [Sec.
94, B.P. 881]
216
ELECTION LAW
Expenditures: payment of money or

anything of value or a contract, promise or
agreement to make an expenditure
for the purpose of influencing the results
of the election
includes the use of facilities personally
owned by the candidate, the money
value of the use of which can be
assessed based on the rates prevailing
in the area. [Sec. 94, B.P. 881]
2. Prohibited Contributions
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
From Public or private financial institutions

Unless:
the financial institutions are legally
in the business of lending money
the loan is made in accordance with
laws and regulations AND
the loan is made in the ordinary
course of business
Natural and juridical persons operating a
public utility or in possession of or exploiting
any natural resources of the nation
Natural and juridical persons who hold
contracts or sub-contracts to supply the
government or any of its divisions,
subdivisions or instrumentalities, with goods
or services or to perform construction or
other works
Grantees
of
franchises,
incentives,
exemptions, allocations or similar privileges
or concessions by the government or any of
its
divisions,
subdivisions
or
instrumentalities, including GOCCs
Grantees, within 1 year prior to the date of
the
election,
of
loans
or
other
accommodations in excess of P100,000 by
the government or any of its divisions,
subdivisions or instrumentalities including
GOCCs
Educational institutions which have received
grants of public funds amounting to no less
than P100,000
Officials or employees in the Civil Service, or
members of the Armed Forces of the
Philippines
Foreigners
and
foreign
corporations,
including foreign governments. [Sec. 95 and
96, B.P. 881]
3. Prohibited Fund-raising Activities
The following are prohibited if held for

raising campaign funds or for the support of
any candidate from the start of the election
period up to and including election day:
Dances
Lotteries
Cockfights
Games
Boxing bouts
Bingo
Beauty contests
Entertainments, or cinematographic,
theatrical or other performances
For any person or organization, civic or
religious, directly or indirectly, to solicit
and/or accept from any candidate or from
his
campaign
manager,
agent
or
representative, or any person acting in their
behalf, any gift, food, transportation,
contribution or donation in cash or in kind
from the start of the election period up to
and including election day
Except: normal and customary religious
stipends, tithes, or collections on
Sundays and/or other designated
collection days [Sec. 97, B.P. 881]
4. Limitations on Expenses
For Candidates
President and VP: P10 for every voter
currently registered
Other candidates: P3 for every voter
currently registered in the constituency
where he filed his certificate of
candidacy
Candidates Without a Political Party: P5 for

every voter
For Political Parties: P5 for every voter

currently registered in the constituency or
constituencies where it has official
candidates [Sec. 13, R.A. 7166, Act
Providing for Synchronized National and
Local Elections and Electoral Reforms]
5. Statement
Expenses
of
Contributions
and
Every candidate and treasurer of the political

party shall file:
in duplicate with the COMELEC
the full, true and itemized statement of
all contributions and expenditures in
connection with the election
within 30 days after the day of the
election
Effect of failure to file statement:
No person elected to any public offices
shall enter upon the duties of his office
until he has filed the statement of
contributions and expenditures
217
ELECTION LAW
The same prohibition shall apply if the

political party which nominated the
winning candidate fails to file the
statements
6. Requisites of a Prohibited Donation

Who: By candidate, spouse, relative within
2nd civil degree of consanguinity or affinity,
campaign manager, agent or representative;
treasurers, agents or representatives of
political party
When: During campaign period, day before

and day of the election
Directly or indirectly:
donation, contribution or gift in cash or in

kind
undertake
or
contribute
to
the
construction or repair of roads, bridges,
school buses, puericulture centers,
medical clinics and hospitals, churches
or chapels cement pavements, or any
structure for public use or for the use of
any religious or civic organization.
Exceptions:
Normal and customary religious dues or
contributions
Periodic
payments
for
legitimate
scholarships established and school
contributions habitually made before the
prohibited period [Sec. 104, B.P. 881]
218
ELECTION LAW
Chapter VI. ELECTION PROPER
election may occur before or after the

casting of votes or on the day of the
election. [Sec. 4, R.A. 7166]
A.
B.
C.
D.
E.
IN GENERAL
1. WHAT CONSTITUTES AN ELECTION
2. FAILURE OF ELECTIONS; GROUNDS
3. POSTPONEMENT OF ELECTIONS
4. SPECIAL ELECTIONS
BOARD OF ELECTION INSPECTORS
CASTING OF VOTES
1. VOTING HOURS
2. VOTING
3. CHALLENGE OF ILLEGAL VOTERS
4. CHALLENGE
BASED
ON
CERTAIN
ILLEGAL ACTS
COUNTING OF VOTES
1. COUNTING PROPER
2. ELECTION RETURNS
CANVASS(ING OF VOTES)
1. DEFINITIONS
2. COMPOSITION
OF
BOARD
OF
CANVASSERS
3. PROHIBITION ON BOC
4. CANVASS BY THE BOC
5. CERTIFICATE
OF
CANVASS
AND
STATEMENT OF VOTES
6. PROCLAMATION
The postponement, declaration of failure of

election and the calling of special elections
shall be decided by the COMELEC sitting en
banc by a majority vote of its members.
[Sec. 4, R.A. 7166]
The COMELEC shall call for the holding or

continuation of the election not held,
suspended or which resulted in a failure to
elect:
upon a verified petition by any interested
party and
after due notice and hearing [Sec. 6,
B.P. 881]
A. In General
When: on a date reasonably close to the

date of the election not held, suspended or
which resulted in a failure to elect
but not later than 30 days after the
cessation of the cause of such
postponement or suspension of the
election or failure to elect. [Sec. 6, B.P.
881]
1. What Constitutes an Election
Plurality of votes sufficient for:

a choice conditioned on the plurality of
valid votes or
a valid constituency regardless of the
actual number of votes cast.
3. Postponement of Elections
Grounds:
i. Violence
ii. Terrorism
iii. Loss or destruction of election
paraphernalia or records
iv. Force majeure
v. Other analogous cause of such a nature
that the holding of a free, orderly and
honest election becomes impossible in
any political subdivision. [Sec. 5, B.P.
881]
The COMELEC shall postpone the election

therein motu proprio or upon a verified
petition by any interested party and after due
notice and hearing.
Decided en banc by a majority vote of
its members. [Sec. 4, R.A. 7166]
When: on a date reasonably close to the

date of the election not held, suspended or
which resulted in a failure to elect
but not later than 30 days after the
cessation of the cause of such
postponement or suspension of the
election or failure to elect. [Sec. 5, B.P.
881]
2. Failure of Elections
Grounds: in any of such cases the failure or

suspension of election must affect the result
of the election
i. Election in any polling place has not
been held on the date fixed due to
force majeure, violence, terrorism, fraud,
or other analogous causes.
ii. Election in any polling place had been
suspended before the hour fixed for
the closing of the voting due to force
majeure, violence, terrorism, fraud, or
other analogous causes.
iii. After the voting and during the
preparation and transmission of the
election returns or in the custody or
canvass thereof such election results
in a failure to elect due to force
majeure, violence, terrorism, fraud or
other analogous causes. [Sec. 6, B.P.
881]
Causes for the declaration of failure of
219
ELECTION LAW
Chapter VI. Election Proper
4. Special Elections
Ground: permanent vacancy in the Senate

or House of Representatives at least 1 year
before the expiration of the term. [Sec. 4,
R.A. 7166]
The COMELEC shall call and hold a special

election to fill the vacancy.
When:
Vacancy
in
HR
(House
of
Representatives) not earlier than 60
days nor longer than 90 days after the
occurrence of the vacancy.
Vacancy in the Senate simultaneous
with the succeeding regular election.
[Sec. 4, R.A. 7166]
electronically the election results,

through the use of the PCOS machine,
to the:
City/Municipal Board of Canvassers
Dominant majority party, dominant
minority party, accredited citizens'
arm and KBP and
Central server
iii. Act as deputies of the COMELEC in the
supervision and control of the election in
the polling places wherein they are
assigned
iv. Perform such other functions prescribed
by the Omnibus Election Code or by the
rules and regulations promulgated by
the Comelec. [Art. 1, Sec. 10, Comelec
Res. 8739]
Prohibitions:
B. Board of Election Inspectors
Constituted by COMELEC for each precinct

at least 30 days before the date when the
voters list is to be prepared (regular
election) or 15 days before a special
election.
Composition:
Chairman, poll clerk and member
All of whom shall be public school
teachers, with priority given to those
with permanent appointments
If there are not enough public school
teachers, the following may be
appointed, provided that the Chairman
shall be a public school teacher:
i. teachers in private schools
ii. employees in the civil service or
iii. citizens of known probity and
competence who are registered
voters of the city or municipality
at least 1 member shall be an ITcapable person as certified by the
DOST after the training of the same.
[Art. 1, Sec. 1, COMELEC Res. 8739]
Disqualification: He or his spouse is related
th
within the 4 civil degree of consanguinity or
affinity to any member of the Board, or to
any candidate to be voted for or to the
latters spouse. [Art. 1, Sec. 3, Comelec
Res. 8739]
Powers:
i. Conduct the voting in the polling place
and administer the electronic counting of
votes
ii. Print the election returns and transmit
No member of the Board shall engage in

any partisan political activity or take part
in the election except to discharge his
duties as such and to vote. [Sec. 173,
BP 881]
No member of the Board shall, before
the termination of the voting, make any
announcement as to whether a certain
registered voter has already voted or
not, as to how many have already voted
or how many so far have failed to vote,
or any other fact tending to show or
showing the state of the polls, nor shall
he make any statement at any time as
to how any person voted, except as
witness before a court. [Sec. 205, BP
881]
C. Casting of Votes
1. Voting Hours
The voting period is from 7AM to 6PM.

However, if after 6PM there are still voters
within 30 meters from the polling place who
have yet to cast their votes, such voters may
still be allowed to vote. [Art. IV, Sec. 21,
Comelec Res. 8739]
2. Voting
Manner of voting:
i.
Using a ballot secrecy folder and the

marking
pen
provided
by
the
COMELEC, fill his ballot by fully shading
the oval beside the names of the
candidates and political party of his
choice.
220
ELECTION LAW
ii.
Rejected ballots:
In the event of a rejected ballot, the
voter shall be allowed to re-insert the
ballot. If the PCOS still rejects the ballot,
the voter shall return the ballot to the
Chairman who shall:
i. Distinctly mark the back thereof as
Rejected
ii. Require all members of the BEI to
sign at the back thereof, and place
inside the Envelope for Rejected
Ballots.
No replacement ballot shall be issued to
a voter whose ballot is rejected by the
PCOS.
Any party objecting to the rejection of
the ballot shall reduce his objection in
writing, which the board shall attach and
note in the Minutes. [Art. V, Sec. 36,
COMELEC Res. 8739]
No voter shall be allowed to:

i. Bring the ballot, ballot secrecy folder or
marking pen outside of the polling place
ii. Speak with anyone other than as herein
provided while inside the polling place
iii. Prepare his ballot without using the
ballot secrecy folder or exhibit its
contents
iv. Fill his ballot accompanied by another,
except in the case of an illiterate or
person with disability/disabled voter
v. Erase any printing from the ballot, or put
any distinguishing mark on the ballot
vi. Use carbon paper, paraffin paper or
other means of making a copy of the
contents of the ballot, or otherwise make
use of any other scheme to identify his
vote, including the use of digital
cameras, cellular phones with camera or
similar gadgets
vii. Intentionally tear or deface the ballot
viii. Disrupt or attempt to disrupt the normal

operation of the Precinct Count Optical
Scan (PCOS). [Art. IV, Sec. 29,
COMELEC Res. 8739]
Preparation of ballots for illiterates and

disabled persons:
i. No voter shall be allowed to vote as an
illiterate or as a physically disabled
unless it is so indicated in his
registration record.
ii. He may be assisted in the preparation of
his ballot by:
A
relative
by
affinity
or
th
consanguinity within the 4 civil
degree
Any person of his confidence who
belongs to the same household
Any member of the board of election
inspectors.
iii. In no case shall an assistor assist more
than 3 times, except the members of the
BEI.
iv. The person assisting shall:
Prepare the ballot using a ballot
secrecy folder
Bind himself in writing and under oath
to fill the ballot strictly in accordance
with the instructions of the voter and
not to reveal the contents thereof.
v. A person with physically impaired
capacity to use the AES may also be
assisted in feeding his ballot into the
PCOS. The assistor shall ensure that
the contents of the ballot are not
displayed during the feeding of the
same into the PCOS. [Art. IV, Sec. 30,
Comelec Res. 8739]
3. Challenge of Illegal Voters
Any voter or watcher may challenge any

person offering to vote for:
i. not being registered
ii. using the name of another
iii. suffering from existing disqualification
In such case, the board of election

inspectors shall satisfy itself as to whether or
not the ground for the challenge is true by
requiring proof of registration, identity or
qualification of the voter. [Sec. 199, B.P.
881]
4. Challenge based on certain illegal acts
Any voter or watcher may challenge any

voter offering to vote on the ground that he:
221
ELECTION LAW
The voter shall approach the PCOS,

insert his ballot in the ballot entry slot
and wait until the ballot is dropped into
the ballot box.
iii. The BEI shall monitor the PCOS screen
to make sure that the ballot was
successfully accepted.
iv. The chairman shall apply indelible ink at
the right forefinger nail of the voter, or
any other nail if there be no forefinger
nail.
v. The voter shall affix his thumbmark on
the corresponding space in the Voters
List. [Art. V, Sec. 35, Comelec Res.
8739]
Received or expects to receive, has

paid, offered or promised to pay, has
contributed, offered or promised to
contribute money or anything of value
as consideration for his vote or for the
vote of another.
ii. Made or received a promise to influence
the giving or withholding of any such
vote.
iii. Made a bet or is interested directly or
indirectly in a bet which depends upon
the result of the election. [Sec. 200,
B.P. 881]
The challenged person shall take an oath

before the BEI that he has not committed
the acts alleged. Upon the taking of oath,
the challenge shall be dismissed and the
voter allowed to vote, but in case of his
refusal to take such oath, challenge shall be
sustained and he shall not be allowed to
vote. [Sec. 200, B.P. 881]
D. Counting of Votes
1. Counting Proper
Unless
otherwise
ordered
by
the
COMELEC, the BEI shall not stop or
postpone the counting until it has been
completed.
the PCOS shall automatically count the
votes
After all the votes have been counted, the
PCOS shall automatically print 30 copies of
the Election Returns for the national and
local positions. [Art. V, Sec. 38, Comelec
Res. 8739]
2. Election Returns
A document in electronic and printed form

directly produced by the counting or voting
machine. [Sec. 2(4), R.A. 9369]
Contents:
the date of the election
the province, municipality and the
precinct in which it is held and
the votes in figures for each candidate
[Sec. 2(4), R.A. 9369]
Number of copies and their distribution:

30 copies
Sec. 19, R.A. 9369 for manner of
transmittal and distribution
Announcement of results:
The chairman shall publicly announce

the total number of votes received by
each
candidate,
stating
their
corresponding offices.
The poll clerk shall announce the
posting of a copy of the second copy of
the ER both for national and local
positions on a wall within the premises
of the polling place/counting center
which must be sufficiently lighted and
accessible to the public, and proceed to
post such copies. [Sec. 19, R.A. 9369]
Transmittal of ERs:
Within 1 hour after the printing of the
election returns, the chairman or any
official authorized by COMELEC shall,
in the presence of watchers and
representatives of the accredited
citizen's
arm,
political
parties/candidates, if any, electronically
transmit the precinct results to:
i. the respective levels of board of
canvasser
ii. to the dominant majority and
minority party
iii. to the accredited citizen's arm and
iv. Kapisanan ng mga Broadcasters ng
Pilipinas (KBP) [Sec. 19, R.A. 9369]
E. Canvassing of Votes
1. Definitions
Canvass - the process by which the results

in the election returns are tallied and
totalled.
Certificates of canvass - official tabulations
of votes accomplished by district, municipal,
city and provincial canvassers based on the
election returns, which are the results of the
ballot count at the precinct level.
222
ELECTION LAW
i.
2. Composition of Board of Canvassers

[Sec. 20, R.A. 6646]
Vice Chairman
Member
Province
Provincial
election
supervisor or lawyer in the
COMELEC regional office
Provincial fiscal
Provincial superintendent
of schools
City
City election registrar or a
lawyer of COMELEC;
In cities with more than 1
election
registrar,
COMELEC shall designate
City fiscal
City superintendent of
schools
Municipality
Election
registrar
or
COMELEC representative
Municipal treasurer
Most senior district school
supervisor or in his
absence, a principal of the
school
district
or
elementary school
In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of
any of the members, COMELEC may appoint the following as substitutes, in the order named:
Chairman
Vice Chairman
Member
Province
City
Municipality
Ranking lawyer of the

COMELEC
a. Provincial auditor
b. Registrar of Deeds
c. Clerk
of
Court
nominated by the
Executive Judge of
the RTC;
d. Any other available
appointive provincial
official

COMELEC
a. City
auditor
or
equivalent;
b. Registrar of Deeds;
c. Clerk
of
Court
nominated by the
Executive Judge of
the RTC;
appointive city official
Same as
Chairman
Same
as
Chairman

COMELEC
a. Municipal
Administrator;
b. Municipal Assessor;
c. Clerk
of
Court
nominated
by
the
Executive Judge of the
MTC;
appointive
municipal
official
Same
as
for
ViceChairman
for
Vice-
for
Vice-
3. Prohibitions on BOC
4. Canvass by the BOC
Chairman and members shall not be related

th
within the 4 civil degree of consanguinity or
affinity to any of the candidates whose votes
will be canvassed by said board, or to any
member of the said board. [Sec. 222, B.P.
881]
No member or substitute member shall be

transferred, assigned or detailed outside of
his official station, nor shall he leave said
station without prior authority of the
COMELEC during the period beginning
election day until the proclamation of the
winning candidates. [Sec. 223, B.P. 881]
No member shall feign illness to be

substituted on election day until the
proclamation of the winning candidates.
Feigning of illness constitutes an election
offense. [Sec. 224, B.P. 881]
The BOC shall canvass the votes by

consolidating the electronically transmitted
results or the results contained in the data
storage devices used in the printing of the
election returns. [Sec. 20, R.A. 9369]
5. Certificate of Canvass and Statement

of Votes
Within one hour after the canvassing, the

Chairman of the district or provincial BOC or
the city BOC of those cities which comprise
one or more legislative districts shall
electronically transmit the certificates of
canvass to:
COMELEC sitting as the National BOC
for
senators
and
party-list
representatives and
Congress as the National BOC for the
president and vice president, directed to
223
ELECTION LAW
Chairman
the President of the Senate. [Sec. 20,

R.A. 9369]
The certificates of canvass transmitted
electronically and digitally signed shall be
considered as official election results and
shall be used as the basis for the
proclamation of a winning candidate. [Sec.
20, R.A. 9369]
30 copies shall be distributed in accordance
to Sec. 21, R.A. 9369.
a. When proclamation void:

When it is based on incomplete returns
[Castromayor v. Comelec (1995)] or
When there is yet no complete canvass.
[Jamil v. Comelec (1997)]
A void proclamation is no proclamation
at all, and the proclaimed candidates
assumption into office cannot deprive
the COMELEC of its power to annul the
proclamation.
National BOC for president and vicepresident

Composition: The Senate and the
House of Representatives in joint public
session.
Upon receipt of the certificates of
canvass, the President of the Senate
shall, not later than 30 days after the
day of the election, open all the
certificates in the presence of the
Senate
and
the
House
of
Representatives in joint public session.
Congress upon determination of the
authenticity and the due execution
thereof in the manner provided by law
shall:
i. canvass all the results for president
and vice-president and
ii. proclaim the winning candidates.
[Sec. 22, R.A. 9369]
National BOC for Senators and Party-List
Representatives
Composition:
The
chairman
and
members of the COMELEC sitting en
banc
It shall canvass the results by
consolidating the certificates of canvass
electronically transmitted. Thereafter,
the national board shall proclaim the
winning candidates for senators and
party-list representatives. [Sec. 23, R.A.
9369]
b. Partial
proclamation:
Notwithstanding
pendency
of
any
pre-proclamation
controversy, COMELEC may summarily
order proclamation of other winning
candidates whose election will not be
affected by the outcome of the controversy.
[Sec. 21, R.A. 7166]
6. Proclamation
Proclamation shall be after the canvass of

election returns, in the absence of a
perfected appeal to the COMELEC, proclaim
the candidates who obtained the highest
number of votes cast in the province, city,
municipality or barangay, on the basis of the
certificates of canvass.
Failure to comply with this duty constitutes

an election offense. [Sec. 231, B.P. 881]
c.
Election resulting in a tie: BOC, by

resolution, upon 5 days notice to all tied
candidates, shall hold a special public
meeting at which the board shall proceed to
the drawing of lots of tied candidates and
shall proclaim as elected the candidates
who may be favored by luck. [Sec. 240, B.P.
881]
There is a tie when:
2 or more candidates receive an
equal and highest number of votes;
or
2 or more candidates are to be
elected for the same position and 2
or more candidates received the
same number of votes for the LAST
PLACE in the number to be elected.
d. Proclamation of a lone candidate: Upon the

expiration of the deadline for the filing of
certificates of candidacy in a special election
called to fill a vacancy in an elective position
other than for President and VP, when there
is only 1 qualified candidate, he shall be
proclaimed elected without holding the
special election upon certification by the
COMELEC that he is the only candidate for
the office and is therefore deemed elected.
[Sec. 2, R.A. 8295, Law on Proclamation
of Solo Candidates]
224
ELECTION LAW
Chapter VII. MODES of CHALLENGING CANDIDACY and ELECTION RESULTS
Chapter VII. Modes of Challenging

Candidacy and Election Results
A.
B.
C.
CANCELLATION
OF
CERTIFICATE
OF
CANDIDACY
1. GROUNDS
2. NATURE OF PROCEEDINGS
3. PROCEDURE
PRE-PROCLAMATION CONTROVERSIES
1. JURISDICTION
2. WHEN NOT ALLOWED
3. NATURE OF PROCEEDINGS
4. ISSUES THAT MAY BE RAISED
5. ISSUES THAT CANNOT BE RAISED
6. PROCEDURE
7. EFFECT
OF
FILING
OF
PREPROCLAMATION
8. EFFECT
OF
PROCLAMATION
OF
WINNING CANDIDATE
9. PETITION
TO
ANNUL/SUSPEND
PROCLAMATION
10. DECLARATION
OF
FAILURE
OF
ELECTION
DISQUALIFICATION CASES
1. PROCEDURE
2. EFFECT
A. Cancellation
Candidacy
of
Certificate
of
any matter raised under Sec. 233-236 of BP

881 (see below) in relation to the
preparation, transmission, receipt, custody
and appreciation of the election returns.
[Sec. 241, BP 881]
1. Jurisdiction
COMELEC has exclusive jurisdiction over preproclamation cases. It may order, motu proprio
or upon written petition, the partial or total
suspension of the proclamation of any
candidate-elect or annul partially or totally any
proclamation, if one has been made. [Sec. 242,
BP 881]
2. When Not Allowed

For the positions of President, VP, Senator, and
Member of the House of Representatives [Sec.
15, R.A. 7166]
3. Nature of Proceedings
Heard summarily by the COMELEC after due
notice and hearing. This is because canvass and
proclamation should be delayed as little as
possible.
1. Grounds
i.
ii.
False material representation in the

certificate of candidacy;
If the certificate filed is a substitute
Certificate of Candidacy, when it is not a
proper case of substitution under Sec. 77
of BP 881.
2. Nature of Proceedings
Summary
3. Procedure
Who may file: any citizen of voting age, or a

duly registered political party, organization,
or coalition of political parties
When filed: Within 5 days from the last day
for the filing of certificates of candidacy
Where filed: With the Law Department of the
COMELEC
B. Pre-Proclamation Controversies
(asked in 1987, 1988, 1996)
Any question or matter pertaining to or affecting:
the proceedings of the board of canvassers,
or
4. Issues That May Be Raised
This enumeration is restrictive and

exclusive:
i. Illegal composition or proceedings of the
board of election canvassers;
ii. Canvassed election returns are either:
Incomplete;
Contain material defects;
Appear to be tampered with or
falsified;
Contain discrepancies in the same
returns or in other authentic copies;
iii. The election returns were:
a) Prepared under duress, threats,
coercion, intimidation or
b) Obviously manufactured or not
authentic
iv. Substituted or fraudulent returns in
controverted
polling
places
were
canvassed, the results of which
materially affected the standing of the
aggrieved candidate(s).
v. Manifest errors in the Certificates of
Canvass or Election Returns [Sec. 15,
R.A. 7166; Chavez v. COMELEC]
225
ELECTION LAW
5. Issues That Cannot Be Raised

i.
Appreciation of ballots, as this is performed

by the BEI at the precinct level and is not
part of the proceedings of the BOC
[Sanchez v. Comelec, (1987)]
ii. Technical examination of the signatures and
thumb marks of voters [Matalam v.
Comelec (1997)]
iii. Prayer for re-opening of ballot boxes
[Alfonso v. Comelec, (1997)]
iv. Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
[Ututalum v. Comelec (1990)]
v. Challenges directed against the Board of
Election Inspectors [Ututalum v. Comele
(supra)]
vi. Fraud, terrorism and other illegal electoral
practices. These are properly within the
office of election contests over which
electoral tribunals have sole, exclusive
jurisdiction. [Loong v. Comelec, (1992)]
b. Matters relating to the preparation,

transmission,
receipt,
custody
and
appreciation of the election returns and
certificates of canvass
Where:
Only with the Board of Canvassers
When:
At the time the questioned return
presented for inclusion in the canvass.
Who:
Any candidate, political party or coalition of
political parties
Note: Non-compliance with any of the steps
above is fatal to the pre-proclamation
petition.
7. Effect of Filing of Pre-Proclamation

Controversy
The period to file an election contest

shall be suspended during the pendency of
the pre-proclamation contest in the
COMELEC or the Supreme Court.
The right of the prevailing party in the preproclamation contest to the execution of
COMELECs decision does not bar the
losing party from filing an election
contest.
Despite the pendency of a pre-proclamation

contest, the COMELEC may order the
proclamation
of
other
winning
candidates whose election will not be
affected by the outcome of the controversy.
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 directly
with the COMELEC. [Sec. 17, R.A. 7166]
When:
1. a
petition
involves
the
illegal
composition or proceedings of the
board, must be filed immediately when
the board begins to act as such
[Laodeno v. Comelec], or at the time of
the appointment of the member whose
capacity to sit as such is objected to if it
comes after the canvassing of the
board, or immediately at the point where
the proceedings are or begin to be
illegal. Otherwise, by participating in the
proceedings, the petitioner is deemed to
have acquiesced in the composition of
the BOC.
2. If the petition is for correction, it must be
filed not later than 5 days following the
date of proclamation, and must implead
all candidates who may be adversely
affected thereby. [Sec. 5(b), Rule 27,
COMELEC Rules of Procedure]
is
8. Effect of Proclamation of Winning

Candidate
General
rule:
A
pre-proclamation
controversy shall no longer be viable after
the proclamation and assumption into office
by the candidate whose election is
contested.
The remedy is an election
protest before the proper forum.
Exceptions: The prevailing candidate may

still be unseated even though he has been
proclaimed and installed in office if:
The opponent is adjudged the true
winner of the election by final judgment
of court in an election contest;
The prevailing party is declared
ineligible or disqualified by final
judgment of a court in a quo warranto
case; or
226
ELECTION LAW
The incumbent is removed from office

for cause.
9. Petition
to
Proclamation
Annul
or
Suspend
The filing of the petition suspends the

running of the period to file an election
protest. [Alangdeo v. Comelec, (1989)]
No law provides for a reglementary period

within which to file a petition for the
annulment of an election if there is as yet no
proclamation. [Loong v. Comelec (supra)]
10. Declaration of Failure of Election
It is neither an election protest nor a preproclamation controversy.

[Borja v.
Comelec, (1998)]
Jurisdiction: COMELEC, sitting en banc,

may declare a failure of election by a
majority vote of its members.
Requisites: The following conditions must

concur:
a. No voting has taken place in the
precincts concerned on the date fixed by
law, or even if there was voting, the
election nonetheless resulted in a failure
to elect; and
b. The votes cast would affect the results
of the election.
Procedure:
1) Petitioner files verified petition with the
Law Department of the COMELEC.
2) Unless a shorter period is deemed
necessary by circumstances, within 24
hours, the Clerk of Court concerned
serves notices to all interested parties,
indicating therein the date of hearing,
through the fastest means available.
3) Unless a shorter period is deemed
necessary by the circumstances, within
2 days from receipt of the notice of
hearing, any interested party may file an
opposition with the Law Department of
the COMELEC.
4) The COMELEC proceeds to hear the
petition. The COMELEC may delegate
the hearing of the case and the
reception of evidence to any of its
officials who are members of the
Philippine Bar.
5) The COMELEC then decides whether to
grant or deny the petition. This lies
within the exclusive prerogative of the
COMELEC.
C. Disqualification Cases
1. Procedure
i.
Who may file: Any citizen of voting age, or

any
duly
registered
political
party,
organization or coalition of political parties
ii. Where: Law Department of the COMELEC
iii. When: Any day after the last day for filing of
certificates of candidacy, but not later than
the date of proclamation
2. Effect
(asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by final
judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be
counted. The fact that the candidate who
obtained the highest number of votes is later
declared to be disqualified or not eligible for the
office to which he was elected, does not
necessarily entitle the candidate who
obtained the second highest number of votes
to be declared the winner of the elective
office.
227
ELECTION LAW
A.
B.
C.
JURISDICTION OVER ELECTION OFFENSES

PROSECUTION OF ELECTION OFFENSES
PREFERENTIAL DISPOSITION OF ELECTION
OFFENSES
D. ELECTION OFFENSES
1. REGISTRATION
2. CERTIFICATE OF CANDIDACY
3. ELECTION CAMPAIGN
4. VOTING
5. COUNTING OF VOTES
6. CANVASSING
7. ACTS OF GOVERNMENT AND PUBLIC
OFFICERS
8. COERCION, INTIMIDATION, VIOLENCE
9. OTHER PROHIBITIONS
10. PENALTIES
E. ARRESTS IN CONNECTION WITH ELECTION
CAMPAIGN
F. PRESCRIPTION
G. PROHIBITED ACTS UNDER R.A. 9369
A. Jurisdiction over Election Offenses
RTCs have exclusive original jurisdiction to

try and decide any criminal actions or
proceedings for violation of election laws.
[Sec. 268, B.P. 881]
to post the list of voters in each precinct.

[Sec. 9, R.A. 7166];
2) Change or alteration or transfer of a
voter's precinct assignment in the
permanent list of voters without the express
written consent of the voter [Sec. 4, R.A.
8189]
2. Certificate of Candidacy
1) Continued misrepresentation or holding
out as a candidate of a disqualified
candidate or one declared by final and
executory judgment to be a nuisance
candidate [Sec. 27f, R.A. 6646]
2) Knowingly inducing or abetting such
misrepresentation of a disqualified or
nuisance 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
or
disadvantage
to
discourage any other person or persons
from filing a certificate of candidacy in
order to eliminate all other potential
candidates from running in a special election
[Sec. 5, R.A. 8295]
B. Prosecution of Election Offenses
3. Election Campaign
1) Appointment
or
use
of
special
policemen, special agents or the like during
the campaign period [Sec. 261m, B.P. 881]
2) Use of armored land, water or aircraft
during the 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 the campaign period (Sec. 261t, B.P.
881)
5) Removal, destruction, obliteration, or
tampering of lawful election propaganda,
or preventing the distribution thereof (Sec.
83, B.P. 881 vis--vis Sec. 262, B.P. 881)
The COMELEC has the exclusive power to

investigate and prosecute cases involving
violations of election laws. [Sec. 2 (6), Art.
IX-C, 1987 Const]
However, it may validly delegate the power
to the Provincial Prosecutor or to the
Ombudsman.
In the event that the COMELEC fails to act
on any complaint within 4 months from its
filing, the complainant may file the complaint
with the fiscal or the Department of Justice,
if warranted. [Sec. 265, B.P. 881]

Offenses
The investigating officer shall resolve the

case within 5 days from submission.
The courts shall give preference to election
cases over all other cases except petitions
for writ of habeas corpus.
D. Election Offenses
1. Registration
1) Failure of the Board of Election Inspectors
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 proof that at least 1 voter in
different precincts representing at least
20% of the total precincts in any
municipality, city or province has been
228
ELECTION LAW
Chapter VIII. Election Offenses
Chapter VIII. ELECTION OFFENSES
5. Counting of Votes
1) Tampering, increasing, decreasing votes, or
refusal to correct tampered votes after
proper verification and hearing by any
member of the board of election inspectors
[Sec. 27b, R.A. 6646]
A special election offense to be known
as electoral sabotage and the penalty to
be imposed shall be life imprisonment.
[Sec. 42, RA 9369]
2) Refusal to issue to duly accredited watchers
the certificate of votes cast and the
announcement of the election, by any
member of the board of election inspectors
[Sec. 27c, R.A. 6646]
6. Canvassing
Any chairperson of the board of canvassers

who fails to give notice of meeting to
other members of the board, 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
new positions, promotion, or giving salary
increases within the election period (Sec.
261g, B.P. 881)
2) Transfer of officers and employees in the
civil service within the election period
without the prior approval of the COMELEC
(Sec. 261h, B.P. 881)
3) Intervening of public officers and employees
in the civil service in any partisan political
activity (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 after
election (Sec. 261n, B.P. 881)
6) Release, disbursement or expenditure of
public funds during the prohibited period
(Sec. 261v, B.P. 881)
7) Construction of public works, etc. during the

prohibited period (Sec. 261w, B.P. 881)
8) Suspension of elective local officials during
the election period without prior approval of
the COMELEC (Sec. 261x, B.P. 881)
8. Coercion, Intimidation, Violence

1) Coercion of election officials and employees
2) Threats, intimidation, terrorism, use of
fraudulent devices or other forms of coercion
(Sec. 261e, B.P. 881)
3) Use of undue influence (Sec. 261j, B.P.
881)
4) Carrying deadly weapons within the
prohibited area (Sec. 261p, B.P. 881)
5) Carrying firearms outside residence or place
of business (Sec. 261q, B.P. 881)
6) Organization or maintenance of reaction
forces, strike forces, or similar forces during
the election period (Sec. 261u, B.P. 881)
9. Other Prohibitions
1) Unauthorized printing of official ballots and
election returns with printing establishments
that 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
fixed by law for the registration of voters in
the polling place, or the day before the
election or on election day (Sec. 261dd (1),
B.P. 881)
4) Opening booths or stalls within 30 meters of
any polling place (Sec, 261dd (2), B.P. 881)
5) Holding fairs, cockfights, etc. on election day
(Sec. 261dd (3), B.P. 881)
6) Refusal to carry election mail during the
election period (Sec. 261dd (4), B.P. 881).
In addition to the prescribed penalty, such
refusal constitutes a ground for cancellation
or revocation of certificate of public
convenience or franchise.
7) Discrimination in the sale of air time (Sec.
261dd (5), B.P. 881) In addition to the
prescribed penalty, such refusal constitutes
a ground for cancellation or revocation of the
franchise.
Good faith is not a defense, as election

offenses are generally mala prohibita.
10. Penalties
For individuals
Imprisonment of not less than 1 year but
not more than 6 years, without probation
229
ELECTION LAW
offered, promised or given money,

valuable
consideration
or
other
expenditure by a candidate's relatives,
leaders and/or sympathizers for the purpose
of promoting the election of such candidate.
(Sec. 28, R.A. 6646)
3) Coercion of subordinates to vote for or
against any candidate (Sec. 261d, B.P. 881)
4) Dismissal of employees, laborers, or
tenants for refusing or failing to vote for any
candidate (Sec. 261d(2), B.P. 881)
5) Being a flying voter (Sec. 261z (2), B.P.
881)
[Sec. 264, B.P. 881]

Disqualification to hold public office
Deprivation of the right of suffrage
For a Foreigner
Imprisonment of not less than 1 year but
not more than 6 years (without
probation);
Deportation after service of sentence
For a Political Party
Payment of a fine not less than P10,000
after a criminal conviction
3.
4.
5.
Persons Required by Law to Keep Prisoners

in their Custody: For prisoners illegally
released from any penitentiary or jail during
the prohibited period, where such prisoners
commit any act of intimidation, terrorism or
interference in the election, prison mayor in
its maximum period. [Sec. 264, B.P. 881]
6.

Campaign
Only upon a warrant of arrest issued by a

competent judge after all the requirements
of the Constitution have been strictly
complied with.
F. Prescription
5 years from the date of their commission. If the
discovery of the offense be made in an election
contest proceeding, the period of prescription
shall commence on the date on which the
judgment in such proceedings becomes final
and executory. [Sec. 267, B.P. 881]
G. Prohibited Acts Under R.A. 9369

1. Utilizing without authorization, tampering
with, damaging, destroying or stealing:
i. Official ballots, election returns, and
certificates of canvass of votes used in
the system; and
ii. Electronic devices or their components,
peripherals or supplies used in the AES
such as counting machine, memory
pack/diskette, memory pack receiver
and computer set
2. Interfering with, impeding, absconding for
purpose of gain, preventing the installation
or use of computer counting devices and the
processing,
storage,
generation
and
7.
transmission of election results, data or

information
Gaining or causing access to using, altering,
destroying or disclosing any computer data,
program, system software, network, or any
computer-related
devices,
facilities,
hardware or equipment, whether classified
or declassified
Refusal of the citizens' arm to present for
perusal its copy of election return to the
board of canvassers
Presentation by the citizens' arm of
tampered or spurious election returns
Refusal or failure to provide the dominant
majority and dominant minority parties or the
citizens'' arm their copy of election returns
and
The failure to post the voters' list within the
specified time, duration and in the
designated location shall constitute an
election offense on the part the election
officer concerned."
PENALTY
i. imprisonment of 8 years and one day to
12 years without possibility of parole
ii. perpetual disqualification to hold public
and any non-elective public office and
iii. deprivation of the right of suffrage.
Exception: Those convicted of the crime of
electoral sabotage, which includes acts or
offenses committed in any of the following
instances:
National elective office:

a. When the tampering, increase
and/or
decrease
of
votes
perpetrated or the refusal to credit
the correct votes or to deduct
tampered votes
b. is/are committed in the election of a
national elective office which is
voted upon nationwide and
c. the tampering, increase and/ or
decrease votes refusal to credit the
correct votes or to deduct tampered
votes, shall adversely affect the
results of the election to the said
national office to the extent that
losing candidate/s is /are made to
appear the winner/s;
230
ELECTION LAW
Regardless of the elective office

involved, when the tampering, increase
and/or decrease of votes committed or
the refusal to credit the correct votes or
to deduct tampered votes perpetrated
a. is accomplished in a single election
document or in the transposition of
the figure / results from one election
document to another and
b. involved in the said tampering
increase and/or decrease or refusal
to credit correct votes or deduct
tampered votes exceed 5,000 votes,
and that the same adversely affects
the true results of the election
Any and all other forms or tampering

increase/s and/ or decrease/s of votes
perpetuated or in cases of refusal to
credit the correct votes or deduct the
tampered votes, where the total votes
involved exceed 10,000 votes
PENALTY - Any and all other persons

or individuals determined to be in
conspiracy or in connivance with the
members of the BEIs or BOCs involved,
shall be meted the same penalty of life
imprisonment.
- end of Election Law -
231
ELECTION LAW
TABLE of CONTENTS

Table of Contents
Chapter II. Eligibility and Qualifications ....243

A. Definition ...........................................243
B. Power to Prescribe Qualifications .....243
C. Time of Possession of Qualifications 244
D. Eligibility is Presumed .......................244
E. Qualifications
Prescribed
By
Constitution ................................................244
F.
Religious Test or Qualification is not
Required ....................................................245
G. Disqualifications to Hold Public Office
245
Chapter III. Formation of Official Relation .248
A. Modes of Commencing Official Relation
248
B.
C.
Election ............................................. 248

Appointment...................................... 248
1.
Definition....................................... 248
2.
Nature of Power to Appoint .......... 248
3.
Classification of Appointments ..... 248
4.
Steps in Appointing Process......... 249
5.
Presidential Appointees................ 249
D. Qualification
Standards
and
Requirements under the Civil Service Law250
1.
Qualification Standards ................ 250
2.
Political Qualifications for an Office
250
3.
No Property Qualifications............ 250
4.
Citizenship .................................... 250
5.
Effect of Removal of Qualifications
During the Term .................................... 251
6.
Effect
of
Pardon
upon
the
Disqualification to Hold Public Office .... 251
E. Discretion of Appointing Official ........ 251
F.
Effectivity of Appointment ................. 251
Irrevocable Appointment............................ 252
Jurisdiction................................................. 252
I.
Appointments to the Civil Service ..... 252
233
Chapter I. Public Office and Officers .........234

A. Public Office ......................................234
1.
Definition .......................................234
2.
Purpose.........................................235
3.
Nature ...........................................235
4.
Elements .......................................235
5.
Public Office v. Public Employment
235
6.
Public Office v. Public Contract ....236
7.
No vested right to public office. ....236
8.
Public Office is not Property. ........236
9.
Creation of Public Office ...............236
10.
Methods of Organizing Public
Offices 237
11.
Modification and Abolition of Public
Office 237
12.
Estoppel in Denying Existence of
Office 237
B. Public Officer.....................................237
1.
Definition .......................................237
2.
A Person Cannot be Compelled to
Accept a Public Office. ..........................238
3.
Public Officers Power is Delegated
(not Presumed)......................................238
Public Officers............................................239
D. De Facto Officers ..............................239
1.
De Facto Doctrine.........................239
2.
De Facto Officer Defined ..............239
3.
Elements of a De Facto Officership
240
4.
Office
created
under
an
unconstitutional statute..........................241
5.
Legal Effect of Acts of De Facto
Officers ..................................................241
6.
Liabilities of De Facto Officers ......241
7.
Right to Compensation of De Facto
Officer ....................................................241
Prof. Gisella Dizon-Reyes

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Head
Members
Chapter I. Public Office and Officers

A.
B.
C.
D.
PUBLIC OFFICE
1. DEFINITION
2. PURPOSE
3. NATURE
4. ELEMENTS
5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT
6. PUBLIC OFFICE V. PUBLIC CONTRACT
7. NO VESTED RIGHT TO PUBLIC OFFICE
8. PUBLIC OFFICE V. PROPERTY
9. CREATION OF PUBLIC OFFICE
10. METHODS OF ORGANIZING PUBLIC
OFFICE
11. MODIFICATION AND ABOLITION OF
PUBLIC OFFICE
12. ESTOPPEL IN DENYING EXISTENCE OF
OFFICE
PUBLIC OFFICER
1. DEFINITION
2. A PERSON CANNOT BE COMPELLED TO
ACCEPT PUBLIC OFFICE; EXCEPTIONS
3. PUBLIC
OFFICERS
POWER
IS
DELEGATED, NOT PRESUMED
CLASSIFICATION OF PUBLIC OFFICES AND
PUBLIC OFFICERS
DE FACTO OFFICERS
1. DE FACTO DOCTRINE
2. DEFINITION OF DE FACTO OFFICER
A. DE FACTO V. DE JURE
B. OFFICER DE FACTO V. INTRUDER
3. ELEMENTS OF DE FACTO OFFICERSHIP
4. OFFICE
CREATED
UNDER
AN
UNCONSTITUTIONAL STATUTE
5. LEGAL EFFECT OF ACTS OF DE FACTO
OFFICERS
6. LIABILITIES OF DE FACTO OFFICERS
7. RIGHT TO COMPENSATION OF DE
FACTO OFFICER
A. Public Office
1. Definition
The term "public office" is frequently used to

refer to the right, authority and duty, created
and conferred by law, by which, for a given
period either fixed by law or enduring at the
pleasure of the creating power, an individual
is invested with some portion of the
sovereign functions of government, to be
exercised by that individual for the benefit of
the public. [Fernandez v. Sto. Tomas
(1995)]
Breakdown of the definition:

(nature) right, authority and duty
(origin) created and conferred by law
(duration) by which for a given period
either:
1) fixed by law or
234
LAW ON PUBLIC OFFICERS TEAM
Chapter I. PUBLIC OFFICE and OFFICERS
inferior or subordinate office that created or

authorized by the Legislature and which
inferior or subordinate office is placed under
the general control of a superior office or
body
Defined as unhindered performance.
v.
Must have permanence and continuity
2. Purpose
to effect the end for the governments

institution : common good;
NOT profit, honor, or private interest of any

person, family or class of persons [63 Am
Jur 2d 667]
Note: The elements of permanence and

continuity are dispensable.
On the dispensability of the element of
permanence: an example is the public office
of the Board of Canvassers, yet its duties
are only for a limited period of time.
On the dispensability of the element of
continuance: Mechem in one case states
that
the
the
most
important
characteristic
in
characterizing
a
position as a public office is the
DELEGATION to the individual of some
of
the
sovereign
functions
of
government.
Here, the court held that Laurel, as chair
of the National Centennial Commission
(NCC), is a public officer. The public
office of NCC was delegated and is
performing executive functions: it
enforces
the
conservation
and
promotion of the nations historical and
cultural heritage.
Such delegated function is a policy
embodied in the Constitution. It is
inconsequential that Laurel was not
compensated during his tenure. A salary
is a usual (but not necessary) criterion
for determining the nature of a position.
Also, the element of continuance is not
indispensable. [Laurel v. Desierto
(2002)]
3. Nature
Philippine Constitution
Art. XI
Sec. 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.
Public office is a responsibility, not a right.

[Morfe v. Mutuc (1968)]
4. Elements
i.
Created by law or by authority of law

Public office must be created by:
Constitution
National Legislation
Municipal or other bodys legislation,
via authority conferred by the
Legislature
The first element defines the mode of

creation of a public office while the other
elements illustrate its characteristics.
ii.
Possess a delegation of a portion of the

sovereign powers of government, to be
exercised for the benefit of the public
There are certain GOCCs which, though

created by law, are not delegated with a
portion of the sovereign powers of the
government (those that are purely
proprietary in nature), and thus may not be
considered as a Public Office.
5. Public Office v. Public Employment
Public employment is broader than public

office. All public office is public employment,
but not all public employment is a public
office.
Public employment as a position lacks either

one or more of the foregoing elements of a
public office.
(Bernard v. Humble [182 S.W. 2d. 24.
1
Cited by De Leon, page 8-9])
iii. Powers conferred and duties imposed must

be defined, directly or impliedly
iv. Duties must be performed independently
and without the control of a superior power
other than the law, UNLESS for duties of an
as in the case of Ad Hoc Bodies or

commissions
created by contract rather than by force of

law
ALL DE LEON CITATIONS BASED ON: De Leon, Hector.

THE LAW ON PUBLIC OFFICERS AND ELECTION LAW.
Rex Bookstore (2000).
235
2) 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.
the most important characteristic which

distinguishes an office from an employment
is that:
the creation and conferring of an office
involves a delegation to the individual of
some of the sovereign functions of
government, to be exercised by him for
the benefit of the public, and
that the same portion of the sovereignty
of the country, either legislative,
executive or judicial, attached, for the
time being, to be exercised for the public
benefit.
Unless the powers so conferred are of this
nature, the individual is not a public officer.
[Laurel v. Desierto (2002)]
sense, a right to his office. If that right is to

be taken away by statute, the terms
should be clear. [Segovia v. Noel (1925)]
8. Public Office is not Property.
6. Public Office v. Public Contract

How
Created
Object
Subject
Matter
Scope
Where
duties
are
defined
Public Office
Incident
of
sovereignty.
Sovereignty
is
omnipresent.
To carry out the
sovereign as well as
governmental
functions affecting
even persons not
bound
by
the
contract.
A
public
office
embraces the idea
of tenure, duration,
continuity, and the
duties
connected
therewith
are
generally continuing
and permanent.
Duties
that
are
generally continuing
and permanent.
The law
Public Contract
Originates
from
will of contracting
parties.
Obligations
imposed only upon
the persons who
entered into the
contract.
Limited duration and

specific in its object.
Its terms define and
limit the rights and
obligations of the
parties, and neither
may
depart
therefrom
without
the consent of the
other.
Duties are very
specific to the
contract.
Contract
7. No vested right to public office.
Exceptions:
In quo warranto proceedings relating
to the question as to which of 2 persons
is entitled to a public office
In an action for recovery of
compensation accruing by virtue of the
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:
where the offices are created by the
Constitution;
where the Legislature validly
delegates such power.
Legislature should Validly Delegate the

Power to Create a Public Office
EXCEPTION: When the law is vague, the

persons holding of the office is protected and he
should not be easily deprived of his office.
A public office is neither property nor a
public contract. Yet the incumbent has, in a
It is personal. Public office being

personal, the death of a public officer
terminates his right to occupy the
contested office and extinguishes his
counterclaim for damages. His widow
and/or heirs cannot be substituted in the
counterclaim suit. [Abeja v. Taada
(1994)]
9. Creation of Public Office
GENERAL RULE: A public office, being a mere

privilege given by the State, does not vest any
right in the holder of the office. This rule applies
when the law is clear.
A public office is not the property of the

public officer within the meaning of the due
process clause of the non-impairment of the
obligation of contract clause 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
within
the
constitutional
guaranties of due process. It is a
public trust or agency. As public
officers are mere agents and not rulers
of the people, no man has a proprietary
or contractual right to an office.
[Cornejo v. Gabriel (1920)]
236
Or else, the office is inexistent. The

Presidents authority to "reorganize
within one year the different executive
departments,
bureaus
and
other
instrumentalities of the Government" in
order to promote efficiency in the public
service is limited in scope and cannot be
extended to other matters not embraced
therein. [UST v. Board of Tax Appeals
(1953)]
Therefore, an executive order
depriving the Courts of First Instance of
jurisdiction
over
cases
involving
recovery of taxes illegally collected is
null and void, as Congress alone has
the "power to define, prescribe and
apportion the jurisdiction of the various
courts."
[Art. VIII sec. 2, 1987
Constitution]
But note: No law shall be passed
increasing the appellate jurisdiction of
the Supreme Court as provided in this
Constitution without its advice and
concurrence. [Art. VI, sec. 30, 1987
Constitution]
10. Methods of Organizing Public Offices

Method
Singlehead
Composition
one head assisted
by subordinates
Board
System
collegial body for

formulating polices
and implementing
programs
Efficiency
Swifter decision and
action
but may sometimes
be hastily made
Mature studies and
deliberations
but
may be slow in
responding to issues
and problems
11. Modification and Abolition of Public

Office
GENERAL RULE: The power to create an

office includes the power to modify or
abolish it (i.e. Legislature generally has this
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 legislatures
abolition of an office (i.e. court) also
abolishes the unexpired term. The
legislative power to create a court
carries with it the power to abolish it.

[Ocampo v. Sec. of Justice (1955)]
Is Abandonment equivalent to Abolition?

When a public official voluntarily accepts an
appointment to an office newly created by
law -- which new office is incompatible
with the former -- he will be considered to
have abandoned his former office.
Except when the public official is
constrained to accept because the nonacceptance of the new appointment would
affect public interest. (no abandonment)
[Zandueta v. De La Costa (1938)]
12. Estoppel
Office
in
Denying
Existence
of
A person is estopped from denying that he

has occupied a public office when he has
acted as a public officer; more so when he
has received public monies by virtue of such
office. [Mendenilla v. Onandia (1962)]
B. Public Officer
1. Definition
(What he is) He performs governmental

public functions / duties which involve the
exercise of discretion ( not clerical or
manual)
(How he became Public Officer) by virtue of

direct provision of law, popular election, or
appointment by competent authority.
(Who ARE Public Officers)

Administrative Code
Sec. 2.
(14) The term officer includes any government
employee, agent, or body authorized to
exercise governmental power in performing
particular acts or functions
Revised Penal Code
Art 203. Who are public officersfor the
purpose of applying the provisions of this and
the preceding titles of this book, any person
who, by direct provision of the law, popular
election or appointment by competent authority,
shall take part in the performance of public
functions in the Government of the Philippine
Islands, or shall perform in said Government or
in any of its branches public duties as an
employee, agent or subordinate official of any
rank or class, shall be deemed to be a public
officer
Persons in authority and their agents.

Article 152, Revised Penal Code.
237
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
chairpersons
are
included.
o For RPC Articles 148 [Direct
Assaults] and 151 [Resistance
and Disobedience], teachers,
professors,
and
persons
charged with the supervision of
public or duly recognized private
schools,
colleges
and
universities are included.
An AGENT of a person in authority
is charged with the maintenance of
public order and the protection and
security of life and property.
o They become such either by
direct provision of law, by
election or by a competent
authoritys appointment.
o Examples are barrio captain,
barrio
councilman,
barrio
policeman, barangay leader,
and any person who comes to
the aid of persons in authority.
According to the Court, the law is

comprehensive:
who,
by
direct
provision of law, popular election or
appointment by competent authority,
shall take part in the performance of
public functions in the Philippine
Government, or shall perform in said
government or any of its branches,
public duties as an employee, agent or
subordinate official or any rank or class
[Maniego v. People (1951)]
Money order-sorter and filer.
A person sorting and filing money orders
in the Auditor's Office of the Bureau of
Posts is obviously doing a public
function or duty. Such person here was
convicted for infidelity in the custody of
documents. [People v. Paloma (1997)]
(Who are NOT Public Officers)

Special policemen salaried by a private
entity and patrolling only the premises of
such private entity [Manila Terminal
Co. v. CIR (1952)]
Concession forest guards [Martha
Lumber Mill v. Lagradante (1956)]
Company
cashier
of
a
private
corporation owned by the government
[Tanchoco v. GSIS (1962)]
2. A Person Cannot be Compelled to

Accept a Public Office.
Temporary performer of public functions.

A person performing public functions
- even temporarily is a public
official. Here, a laborer temporarily in
charge of issuing summons and
subpoenas for traffic violations in a
judge's sala was convicted for bribery
under RPC 203.
EXCEPTIONS:
When citizens are required, under
conditions provided by law, to render
personal military or civil service (see
Sec. 4, Art. II, 1987 Const.);
When a person who, having been
elected by popular election to a public
office, refuses without legal motive to be
sworn in or to discharge the duties of
said office. This is a felony.
Art 234, RPC: Refusal to discharge
elective office- the penalty of arresto
mayor or a fine not exceeding 1,000
pesos, or both, shall be imposed upon
any person who, having been elected by
popular election to a public office, shall
refuse without legal motive to be sworn
in or to discharge the duties of said
office.
3. Public Officers Power is Delegated

(not Presumed)
A public official exercises power, not rights.

The government itself is merely an agency
through which the will of the state is
expressed and enforced.
Its officers
therefore are likewise agents entrusted with
the responsibility of discharging 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 a valid grant, they are devoid of power.
[Villegas v. Subido (1971)]
238

Public Officers
Creation
Public Body Served
Department of government to
which their functions pertain
Nature of functions
Exercise
of
Judgment
Discretion
Legality of Title to office
or
Compensation
Constitutional
Statutory
National
Local
Legislative
Executive
Judicial
Civil
Military
Quasi-judicial
Ministerial
De Jure
De Facto
Lucrative
Honorary
D. De Facto Officers
1. De Facto Doctrine
It is the doctrine that a person who is

admitted and sworn into office by the proper
authority is deemed 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.
Doctrines Purpose: to ensure the orderly

functioning of government. The public
cannot afford to check the validity of the
officer's title each time they transact with
him.
2. De Facto Officer Defined
One who has the reputation of being the

officer that he assumes to be, and yet is not
a good officer in point of law. [Torres v.
Ribo (1948)]
He must have:
acted as an officer for such length of
time,
under color of title and under such
circumstances
of
reputation
or
acquiescence by the public and public
authorities,
as to afford a presumption of election or
appointment, and
induce people, without inquiry, and
relying on the supposition that he is the
officer he assumes to be, to submit to or
invoke his action.
A person is a de facto officer when the

duties of his office are exercised under ANY
of the following circumstances:
1. There is no known appointment or
election, but people are induced by
circumstances
of
reputation
or
acquiescence to suppose that he is the
officer
he
assumes
to
be.
Consequently, people do not to
inquire into his authority, and they
submit to him or 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 precedent
requirement or condition (e.g., taking an
oath or giving a bond);
3. He possessed public office under color
of a known election or appointment, but
such is VOID because:
Hes ineligible;
The electing or appointing body is
not empowered to do such;
His exercise of his function was
defective or irregular;
(Important) The public does NOT
KNOW of such ineligibility, want of
power, or defect being.
He possessed public office under color
of an election or an appointment by or
pursuant to a public, unconstitutional
law, before the same is adjudged to
be such.
What is unconstitutional is the
officers appointment to an office not
legally existing, (not creation of an
unconstitutional office). [Norton v.
County of Shelby (1886)]
239
a. Officer De Jure v. Officer De Facto

(Asked in 2000, 2004)
Requisites
De Jure
A de jure office exists;
De Facto
De jure office;
He is legally qualified for the office;
He assumed office under color of right or

general acquiescence by the public;
He is lawfully chosen to such office;
of
How ousted
Cannot be ousted.
Validity of official
acts
Rule
on
Compensation
Valid, subject to exceptions (e.g., acting

beyond his scope of authority, etc.)
Rightfully entitled to compensation;
The principle "No work, no pay" is
inapplicable to him.
He actually and physically possessed

the office in good faith.
Reputation: He possesses office and

performs its duties under color of right,
but he is not technically qualified to act
in all points of law
In a direct proceeding (quo warranto);
( collaterally)
Valid as to the public until his title to the
office is adjudged insufficient.
Conditionally
entitled
to
receive
compensation: only when no de jure
officer is declared;
He is paid only for actual services
rendered.
b. Officer De Facto v. Intruder
Basis of authority
De Facto
He becomes officer under any of the 4
circumstances discussed under Part II
(above).
Color of right or title to office
Validity
"official" acts
of
Valid as to the public until his title to the

office is adjudged insufficient
Rule
on
compensation
Entitled to receive compensation only

when no de jure officer is declared and
only for actual services rendered.
Nature
An intruder / usurper may be presumed a de

facto officer with the passage of time, when
the public presumes in their minds IN GOOD
FAITH that the intruder is rightfully acting as
a public officer.
3. Elements of a De Facto Officership

i.
ii.
A validly existing public office;

Actual physical possession of the office in
good faith;
iii. Color of title to the office:
a. Reputation or acquiescence;
Intruder
He possesses office and performs
official acts without actual or apparent
authority.
None. Neither lawful title nor color of
right to office.
Absolutely void;
His acts can be
impeached at any time in any
proceeding (unless and until he
continues to act for a long time, creating
a presumption of his right to act) (De
Leon, 119)
Not entitled to compensation at all.
b. Known and valid appointment or election

but the officer failed to conform to a
legal requirement
c. Known appointment or election but void
because of ineligibility of the officer, or
want of authority of the appointing or
electing authority, or because of an
irregularity in his appointment or
election, such ineligibility, want of
authority or irregularity being unknown
to the public
240
Basis
Authority
He undertakes to perform the duties of

such office according to laws prescribed
mode.
Right:
He has the lawful right / title to the office
d. Known appointment or election pursuant

to an unconstitutional law before
declaration of unconstitutionality
Who are NOT considered De Facto
Officers?
A judge who has accepted an
appointment as finance secretary and
yet renders a decision after his
acceptance: if he has ceased to be
judge by actually accepting and entering
into some other office and has actually
entered upon the performance of the
duties of the other office, it is difficult to
understand how he can still be
considered as actually occupying and
performing the duties of the office which
he had abandoned and vacated. An
abandonment and a vacation of an
office is inconsistent and repugnant
to the idea of actually continuing to
perform the duties of such office;
[Luna v. Rodriguez (1917)]
A judge whose position has already
been lawfully abolished, and yet
promulgates a decision in a criminal
case after the abolition and over the
fiscals objection [People v. So (1995)]
4. Office
created
under
unconstitutional statute
6. Liabilities of De Facto Officers

(De Leon, 130-131)
an
The prevalent view is that a person appointed

or elected in accordance with a law later
declared to be unconstitutional may be
considered de facto at least before the
declaration of unconstitutionality.
7. Right to Compensation of De Facto

Officer
5. Legal Effect of Acts of De Facto
Officers
[Monroy v. CA (1967)]
As regards the officers themselves: A party

suing or defending in his own right as a public
officer must show that he is an officer de jure.
It is not sufficient that he be merely a de
facto officer.
As regards the public and third persons: The
acts of a de facto officer are valid as to third
persons and the public until his title to
office is adjudged insufficient.
RATIONALE: The doctrine is intended not
for the protection of the public officer, but
for the protection of the public and
individuals who get involved in the official
acts of persons discharging the duties of a
public office.
De Facto Officers Official Acts are not subject
to collateral attack
A de facto officer generally has the same

degree of liability in accountability for official
acts like a de jure officer.
The de facto officer may be liable for all
imposable penalties for ANY of the following
acts:
usurping or unlawfully holding office;
exercising the functions of public office
without lawful right;
ineligibility for the public office as required
by law
The de facto officer cannot excuse
responsibility for crimes committed in his
official capacity by asserting his de facto
status.
GENERAL RULE: None. A de facto officer

cannot sue for the recovery of salary, fees or
other emoluments attached to the office, for
the duties he has performed. His acts, as far
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 during his wrongful tenure, even
though he entered into the office in good
faith and under color of title.[ Monroy v CA
(1967)]
EXCEPTIONS
Where there is no de jure public officer, the
officer de facto who in good faith has had
possession of the office and has
discharged the duties pertaining thereto is
legally entitled to the emoluments of the
office. [Monroy v. CA [1967])
In Civil Liberties Union v. Executive
Secretary (1991), even as EO No. 284 was
declared unconstitutional because it
allowed Cabinet members to hold multiple
offices in direct contravention of the
241
RULE: A de facto officers and his acts

validity cannot be collaterally questioned
(in proceedings where he is not a party, or
were not instituted to determine the very
question).
REMEDY: Quo warranto proceedings
filed by:
The person claiming entitlement
to the office;
The Republic of the Philippines
(represented by the SolicitorGeneral or a public prosecutor).
Constitution, it was held that during their

tenure in the questioned positions, the
respondents may be considered de facto
officers and as such entitled to the
emoluments of the office/s for actual
service rendered.
A de facto officer, not having good title,
takes the salaries at his risk and must
account to the de jure officer (when there is
one) for whatever salary he received during
the period of his wrongful tenure, even if he
occupied the office in good faith.
BUT when the de jure officer assumed
another position under protest, for
which she received compensation:
while her assumption to the said
position and her acceptance of the
corresponding emoluments do not
constitute abandonment of her rightful
office, she cannot recover full back
wages for such. She is only entitled to
back pay differentials between the
salary rates for the lower position she
assumed and the position she is
rightfully entitled to. [Gen. Manager,
Philippine
Ports
Authority
v.
Monserate (2002)]
242
Chapter II. Eligibility and Qualifications

A.
B.
C.
D.
E.
F.
DEFINITIONS
POWER TO PRESCRIBE QUALIFICATIONS
TIME OF POSSESSION OF QUALIFICATIONS
PRESUMPTION OF ELEGIBILITY
QUALIFICATIONS USUALLY PRESCRIBED
RELIGIOUS TEST/QUALIFICATION IS NOT
REQUIRED
G. DISQUALIFICATIONS TO HOLD PUBLIC
OFFICE
A. Definition
Eligibility: endowment / requirement /

accomplishment that fits one for a public
office.
Qualification: endowment / act which a

person must do before he can occupy a
public office.
Note: Failure to perform an act required by

law could affect the officers title to the given
office. Under BP 881, the office of any
elected official who fails or refuses to take
his oath of office within six months from his
proclamation shall be considered vacant
unless said failure is for cause or causes
beyond his control.
An oath of office is a qualifying
requirement for a public office. Only
when the public officer has satisfied this
prerequisite can his right to enter into
the position be considered plenary and
complete. Until then, he has none at all,
and for as long as he has not qualified,
the holdover officer is the rightful
occupant. [Lecaroz v. Sandiganbayan
(1999)]
Once proclaimed and duly sworn in
office, a public officer is entitled to
assume office and to exercise the
functions thereof. The pendency of an
election protest is not sufficient basis to
enjoin him from assuming office or from
discharging his functions. [Mendoza v.
Laxina (2003)]
B. Power to Prescribe Qualifications
GENERAL RULE: Congress is empowered

to prescribe the qualifications for holding
public office.
In the absence of constitutional inhibition,

Congress has the same right to provide
disqualifications that it has to provide
qualifications for office. (De Leon, 23)
Chapter II. ELIGIBILITY and QUALIFICATIONS
RESTRICTIONS on the Power of Congress

to Prescribe Qualifications:
Congress
cannot
exceed
its
constitutional powers;
Congress cannot impose conditions of
eligibility inconsistent with constitutional
provisions;
The qualification must be germane to
the position ("reasonable relation" rule);
Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive, and
Congress cannot add to them except if
the Constitution expressly or impliedly
gives the power to set qualifications.
Congress cannot prescribe qualifications
so detailed as to practically amount to
making a legislative appointment: it is
unconstitutional and therefore void for
being a usurpation of executive power
examples:
Extensions of the terms of office of
the incumbents;
A proviso which limits the choices of
the appointing authority to only one
eligible, e.g. the incumbent Mayor of
Olongapo City; [Flores v. Drilon
(1993)]
Designating an unqualified person.
The People's Court Act, which
provided that the President could
designate Judges of First Instance,
Judges-at-large of First Instance or
Cadastral Judges to sit as substitute
Justices of the Supreme Court in
treason
cases
without
them
necessarily having to possess the
required constitutional qualifications
of a regular Supreme Court Justice.;
[Vargas v. Rilloraza (1948)]
Automatic transfer to a new office. A
legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent
officer to a new office created;
[Manalang v. Quitorano (1954)]
Requiring inclusion in a list. A
provision that impliedly prescribes
inclusion in a list submitted by the
Executive Council of the Phil.
Medical Association as one of the
qualifications for appointment; and
which confines the selection of the
members of the Board of Medical
Examiners to the 12 persons
included in the list; [Cuyegkeng v.
Cruz (1960)]
243
C. 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 must

exist throughout the holding of the public
office. Once the qualifications are lost, the
public officer forfeits the office.
No estoppel in ineligibility. Knowledge of
ineligibility of a candidate and failure to
question such ineligibility before or
during the election is not a bar to
questioning such eligibility after such
ineligible candidate has won and been
proclaimed. Estoppel will not apply in
such a case. [Castaneda v. Yap (1952)]
Citizenship requirement should be
possessed on start of term (i.e. on
filing candidacy). The Local Government
Code does not specify any particular
date or time when the candidate must
possess the required citizenship, unlike
for residence and age. The requirement
is to ensure that no alien shall govern
our people and country or a unit of
territory thereof. An official begins to
govern or discharge his functions only
upon proclamation and on start of his
term. This liberal interpretation gives
spirit, life and meaning to our law on
qualifications consistent
with its
purpose. [Frivaldo v. COMELEC
(1996)]
D. Eligibility is Presumed
IN FAVOR of one who has been elected or

appointed to public office.
The right to public office should be strictly
construed against ineligibility.
(De Leon, 26)
E. Qualifications
Constitution
Prescribed
By
1. For President
(Sec. 2, Art. VI, Constitution) and Vice
President (Sec. 3, Art. VII, Constitution)
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)
registered voter
resident of the Philippines for not less
than two years immediately preceding
election day
3. For Congressmen
(Sec. 6, Art. VI, Constitution)
registered voter in district in which he
shall be elected
resident thereof for not less than one
year immediately preceding election day
4. Supreme Court Justice
Natural born citizen
at least 40 years old
15 years or more as a judge or engaged
in law practice
of proven competence, integrity, probity
and independence (C.I.P.I.)
5. Civil Service Commissioners
(Sec. 1 [1], Art. IXB. Constitution)
35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position
in election immediately preceding
appointment
6. COMELEC Commissioners
(Sec. 1[1], Art. IXC)
college degree holder
not a candidate for elective position in
election
immediately
preceding
appointment
chairman and majority should be
members of the bar who have been
engaged in the practice of law for at
least 10 years
7. COA Commissioners
CPA with >10 year of auditing
experience or
Bar member engaged in practice of law
for at least 10 years
244
Not candidates for any elective position

in election immediately preceding
appointment.
Practice of Law defined. Practice of law

means any activity, in or out of court,
which requires the application of law,
legal procedure, knowledge, training and
experience. Generally, to practice law is to
give notice or render any kind of service
which requires the use in any degree of
legal knowledge or skill. [Cayetano v.
Monsod (1991)]
In the dissenting opinion of Justice Padilla in
the case of Cayetano v. Monsod, citing
Agpalo, he stated that engaging in the
practice of law presupposes the existence of
lawyer-client relationship. Hence, where a
lawyer undertakes an activity which requires
knowledge of law but involves no attorneyclient relationship, such as teaching law or
writing law books or articles, he cannot be
said to be engaged in the practice of his
profession or a lawyer
Residency defined. In election law,
residence refers to domicile, i.e. the place
where a party actually or constructively has
his permanent home, where he intends to
return. To successfully effect a change of
domicile, the candidate must prove an actual
removal or an actual change of domicile.
[Aquino v. COMELEC (1995)]
Presumption in favor of domicile of origin.
Domicile requires the twin elements of
actual habitual residence and animus
manendi (intent to permanently remain).
Domicile of origin is not easily lost; it is
deemed to continue absent a clear and
positive proof of a successful change of
domicile. [Marcos v. COMELEC (1995)]
F. Religious Test or Qualification is not

Required
Philippine Constitution
Art. III
Sec. 5. No religious test shall be required for the
exercise of civil or political rights.
G. Disqualifications
Office
to
Hold
Public
IN GENERAL: Individuals who lack ANY of

the qualifications prescribed by the
Constitution or by law for a public office are
ineligible (i.e. disqualified from holding such

office).
Authority: The legislature has the right to

prescribe disqualifications in the same
manner that it can prescribe qualifications,
provided that the prescribed disqualifications
do not violate the Constitution.
General Constitutional Disqualifications

1. Losing candidates cannot be appointed
to any governmental office within one
year after such election. (Art. IX-B Sec.
6)
2. Elective officials during their tenure are
ineligible for appointment or designation
in ANY capacity to ANY public office or
position (Art. IX-B Sec. 7(1))
3. Appointive officials shall not hold any
other governmental position.
Unless otherwise allowed by law or
his positions primary functions (Art.
IX-B Sec 7 (2))
Note: There is no violation when

another office is held by a public
officer in an ex officio capacity (where
one cant receive compensation or other
honoraria anyway), as provided by law
and as required by the primary functions
of his office. [ National Amnesty
Commission v. COA (2004)]
Specific Constitutional Disqualifications

Public Officer
The President, Vice
President, the Members
of the Cabinet and their
deputies or assistants
Senator or Member of
the
House
of
Representatives
Disqualifications
shall not hold any other
office or employment
during
their
tenure,
UNLESS
otherwise
provided
in
the
Constitution, (Art. VII,
Sec. 13)
may not hold during his
term any other office or
employment
in
the
Government,
or
any
subdivision, agency or
instrumentality
thereof,
including government owned
or
-controlled
corporations
or
their
subsidiaries
effect: or else he forfeits
his seat
shall
also
not
be
appointed to any office
when such was created or
its
emoluments
were
increased during his term.
(Art. VI, Sec 13)
245
Members
of
Constitutional
Commission
the
Ombudsman and
Deputies
Members
Constitutional
Commissions,
Ombudsman and
Deputies
his
of
the
his
Members
of
Constitutional
Commissions,
the
Ombudsman and his
Deputies
The Presidents spouse
and
relatives
by
consanguinity or affinity
within the fourth civil
degree
shall not be designated to

any agency performing
quasi-judicial
or
administrative functions.
(Art. VIII, Sec. 12)
shall not hold any other
office or employment
[during their tenure]. (Art.
IX-A, Sec. 2)
(Art. XI, Sec. 8)
must not have been
candidates
for
any
elective position in the
elections
immediately
preceding
their
appointment (Art IX-B,
Sec. 1; Art. IX-C, Sec. 1;
Art. IX-D, Sec. 1; Art XI,
Sec. 8)
are appointed to 7-year
term,
without
reappointment (Sec. 1(2)
of Arts. IX-B, C, D; Art.
XI, Sec. 11)
shall not be appointed
during Presidents tenure
as Members of the
Constitutional
Commissions,
or
the
Office of the Ombudsman,
or
as
Secretaries,
Undersecretaries,
chairmen or heads of
bureaus
or
offices,
including
governmentowned-or
-controlled
corporations. (Art. VIII,
Sec. 13)
iii. Representative = 3 consecutive

terms
iv. Elective
local
officials
=
3
consecutive terms (Sec. 8, Art. X,
Constitution)
7. Holding more than one office: to prevent

offices of public trust from accumulating
in a single person, and to prevent
individuals from deriving, directly or
indirectly, any pecuniary benefit by
virtue of their holding of dual positions.
Civil Liberties Union v. Executive
Secretary (1991):
Section 7, Article IX-B of the
Constitution
generally
prohibits
elective and appointive public
officials from holding multiple offices
or employment in the government
unless they are otherwise allowed
by law or by the primary functions of
their position.
This provision does NOT cover the
President,
Vice-President
and
cabinet members they are
subject to a stricter prohibition
under Section 13 of Article VII.
To apply the exceptions found in

Section 7, Article IX-B to Section 13,
Article VII would obliterate the
distinction set by the framers of
the Constitution as to the highranking officials of the Executive
branch.
However, public officials holding

positions
without
additional
compensation
in
ex-officio
capacities as provided by law and
as required by their offices primary
functions are not covered by the
Section 13, Article VII prohibition.
Other Disqualifications
1. Mental or physical incapacity
2. Misconduct or crime: persons convicted
of crimes involving moral turpitude are
USUALLY disqualified from holding
public office.
3. Impeachment
4. Removal or suspension from office: not
presumed non-imposable when such
ineligibility is not constitutional or
statutory declared.
5. Previous tenure of office: for example,
an appointed Ombudsman is absolutely
disqualified for reappointment (Article
XI, Constitution).
6. Consecutive terms limit:
i. Vice-President = 2 consecutive
terms
ii. Senator = 2 consecutive terms
Public
officers
voluntary
renunciation of office for any length
of time an interruption in the
continuity of his service for the full
term for which he was elected.
8. Holding of office in the private sector:
Section 7 (b)(1)of RA 6713 considers

unlawful for public officials and
employees during their incumbency to
own, control, manage, or accept
employment as officer employee,
consultant, counsel, broker, agent,
trustee or nominee in any private
enterprise regulated, supervised or
246
Members
of
the
Supreme Court and
other courts established
by law
licensed by their office unless expressly

allowed by law.
Section 7 of RA 6713 also generally
provides for the prohibited acts and
transactions of public officials and
employees. Subsection (b)(2) prohibits
them from engaging in the private
practice of their profession during their
incumbency. As an exception, a public
official or employee can engage in the
practice of his or her profession under
the following conditions: first, the private
practice is authorized by the Constitution
or by the law; and second, the practice
will not conflict, or tend to conflict, with
his or her official functions.
9. Relationship with the appointing power

General Rule on Nepotism: The Civil
Service Decree (PD 807) prohibits
all appointments in the national and
local governments or any branch or
instrumentality thereof made in favor
of the relative of:
i. appointing authority;
ii. recommending authority;
iii. chief of the bureau office; or
iv. person exercising immediate
supervision over the appointee
Relative: related within the third
degree of either consanguinity or of
affinity.
Exceptions to rule on nepotism:
persons
employed
in
a
confidential capacity
teachers
physicians
members of the Armed Forces
of the Philippines
10. Under the Local Government Code (sec.
40)
i. Sentenced by final judgment for an
offense involving moral turpitude or
for an offense punishable by 1 year
or more of imprisonment, within 2
years after serving sentence;
ii. Removed from office as a result of an
administrative case;
iii. Convicted by final judgment for
violating the oath of allegiance to
the Republic;
iv. Dual citizenship;
Mercado v. Manzano (1999):
Dual citizenship is different from
dual allegiance. The former
arises when, as a result of the
concurrent application of the
Dual allegiance, on the other

hand, refers to the situation in
which a person simultaneously
owes, by some positive act,
loyalty to
two
or
more
states. While dual citizenship is
involuntary, dual allegiance is
the result of an individuals
volition.
[I]n including 5 in Article IV on

citizenship, the concern of the
Constitutional Commission was
not with dual citizens per se but
with naturalized citizens who
maintain their allegiance to their
countries of origin even after
their naturalization.
v.
Hence, the phrase dual

citizenship in R.A. No. 7160,
40(d) and in R.A. No. 7854,
20 must be understood as
referring
to
dual
allegiance.
Fugitive from justice in criminal or

non-political cases here or abroad;
vi. Permanent residents in a foreign
country or those who have acquired
the right to reside abroad and
continue to avail of the same right
after the effectivity of the Local
Government Code;
vii. Insane or feeble-minded.
247
different laws of two or more

states,
a
person
is
simultaneously considered a
national by the said states.
Chapter III. FORMATION of OFFICIAL RELATION
A.
MODES OF COMMENCING OFFICIAL

RELATION
B. ELECTION
C. APPOINTMENT
1. DEFINITION
2. NATURE OF POWER TO APPOINT
3. CLASSIFICATION OF APPOINTMENTS
4. STEPS IN APPOINTING PROCESS
5. PRESIDENTIAL APPOINTEES
D. QUALIFICATION
STANDARDS
AND
REQUIREMENTS
UNDER
THE
CIVIL
SERVICE LAW
1. QUALIFICATION STANDARDS
2. POLITICAL QUALIFICATIONS FOR AN
OFFICE (I.E. MEMBERSHIP IN A
POLITICAL PARTY)
3. NO PROPERTY QUALIFICATIONS
4. CITIZENSHIP
5. EFFECT
OF
REMOVAL
OF
QUALIFICATIONS DURING THE TERM
6. EFFECT OF PARDON UPON THE
DISQUALIFICATION TO HOLD PUBLIC
OFFICE
E. DISCRETION OF APPOINTING OFFICIAL
F. EFFECTIVITY OF APPOINTMENT
G. EFFECTS OF A COMPLETE, FINAL AND
IRREVOCABLE APPOINTMENT
H. CIVIL SERVICE COMMISSIONS (CSCS)
JURISDICTION
I. APPOINTMENTS TO THE CIVIL SERVICE
A. Modes of
Relation
Commencing
Security
of
tenure?
Is
prior/1st
office
abandoned
when
Selection or designation by popular vote
Vacancy for Validity. For the appointment to

be valid, the position must be vacant
[Castin v. Quimbo (1983)]
2. 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 officer or impose upon the President
the duty to appoint any particular person to
an office. The appointing power is the
exclusive prerogative of the President,
upon which no limitations may be
imposed by Congress, EXCEPT those:
requiring the concurrence of the
Commission on Appointments; and
resulting from the exercise of the limited
legislative power to prescribe the
qualifications to a given appointive
office. [Manalang v. Quitoriano (1954)]
The Presidents power to appoint under the

Constitution should necessarily have a
reasonable measure of freedom, latitude, or
discretion
in
choosing
appointees.
[Cuyegkeng v. Cruz (1960)]
Where only one can qualify for the posts in

question, the President is precluded from
exercising his discretion to choose whom to
appoint.
Such
supposed
power
of
appointment, sans the essential element of
choice, is no power at all and goes against
the very nature of appointment itself. [Flores
v. Drilon (1993)]
1. Definition
Designation
Imposition
of
additional
duties
upon
existing office
Extent
Powers
of
Limited
Appointment
Appointing
authority
selects
an
individual who
will occupy a
certain
public
office
Comprehensive
a
2nd
appointive
position
is
assumed?
Usually YES
C. Appointment
Definition
a
2nd
designated
position
is
assumed?
NO
Political. Appointment is generally a political

question so long as the appointee fulfills the
minimum
qualification
requirements
prescribed by law.
B. Election
Yes.
Official
1. Election
2. Appointment
3. Others:
i. Succession by operation of law;
ii. Direct provision of law, e.g. ex-officio
officers
No.
3. Classification of Appointments
Permanent:
the permanent appointee:
must be qualified
must be eligible
248
Chapter III. Formation of Official Relation
is constitutionally guaranteed
security of tenure
(Duration) until lawful termination.
Note: Conditional appointments are not
permanent.
Temporary:
an acting appointment;
the temporary appointee NEED NOT be
qualified or eligible;
(No Security of Tenure) revocable at
will: just cause or valid investigation
UNNECESSARY;
an acting appointment is a
temporary
appointment
and
revocable
in
character.
[Marohombsar v. Alonto (1991)]
A temporary appointee is like a
designated officer they:
o occupy a position in an acting
capacity and
o do not enjoy security of tenure.
[Sevilla v. CA (1992)]
Even a Career Service Officer
unqualified for the position is
deemed
temporarily-appointed.
Thus he does not enjoy security of
tenure he is terminable at will.
A public officer who later accepts a
temporary appointment terminates
his relationship with his former
office. [Romualdez III v. CSC
(1991)]
EXCEPT Fixed-Period Temporary
Appointments: may be revoked
ONLY at the periods expiration.
Revocation before expiration must
be for a valid cause.
(Duration)
until
a
permanent
appointment is issued.
4. Steps in Appointing Process
For Appointments requiring confirmation:
Regular Appointments (NCIA)

1. President nominates.
2. Commission
on
Appointments
confirms.
3. Commission issues appointment.
4. Appointee accepts.
Ad-Interim Appointments (NIAC)

1. President nominates.
4. Commission
on
Appointments
confirms.
For Appointments Not Requiring

Confirmation (AIA)
1. Appointing authority appoints.
Note: If a person is appointed to the career

service of the Civil Service, the Civil Service
Commission must bestow attestation.
5. Presidential Appointees
Who can be nominated and appointed only

WITH the Commission on Appointments
consent? (Art. VII, Sec. 16, 1987 Const.)
Heads of the executive departments;
Ambassadors;
Other public ministers and consuls;
Officers of the armed forces from the
rank of colonel or naval captain;
Other officers whose appointments are
vested in him by the Constitution,
including Constitutional Commissioners
(Art. IX-B, Sec. 1 (2) for CSC; Art. IXC, Sec. 1 (2) for COMELEC; Art. IX-D,
Sec. 1 (2) for COA).
Who can the President appoint WITHOUT

CAs approval?
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 confirmed by the
Commission of Appointments, and
continues until the end of the term.
Ad interim: made while Congress is not
in session, 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 a
permanent appointment and it being
subject to confirmation does not alter its
permanent character.
Efficient.
Recess
appointment
power
keeps
in
continuous
operation
the
business
of
government when Congress is not
in session. The individual chosen
249
Duration. The appointment shall

cease to be effective upon rejection
by
the
Commission
on
Appointments, or if not acted upon,
at the adjournment of the next
session, regular or special, of
Congress.
Permanent.
It
takes
effect
immediately and can no longer be
withdrawn by the President once the
appointee has qualified into office.
The fact that it is subject to
confirmation by the Commission on
Appointments does not alter its
permanent character.
The Constitution itself makes an
ad interim appointment permanent
in character by making it effective
until
disapproved
by
the
Commission on Appointments or
until the next adjournment of
Congress. [Matibay v. Benipayo
(2002)]
Not
Acting.
An
ad
interim
appointment is distinguishable from
an acting appointment which is
merely temporary, good until
another permanent appointment is
issued.
Applicable
to
COMELEC
Commissionsers, being permanent
appointments, do not violate the
Constitutional
prohibition
on
temporary or acting appointments of
COMELEC Commissioners.
By-passed Appointee may be

Reappointed.
Commission
on
Appointments failure to confirm an
ad interim appointment is NOT
disapproval.
An
ad
interim
appointee disapproved by the COA
cannot be reappointed. But a bypassed appointee, or one whose
appointment was not acted upon the
merits by the COA, may be
appointed again by the President.
D. Qualification
Standards
and
Requirements under the Civil Service
Law
1. Qualification Standards
It enumerates the minimum requirements for

a class of positions in terms of education,
training and experience, civil service
eligibility, physical fitness, and other
qualities
required
for
successful
performance.
(Sec.
22,
Book
V,
Administrative Code)
The Departments and Agencies are
responsible for continuously establishing,
administering
and
maintaining
the
qualification standards as an incentive to
career advancement. (Sec. 7, Rule IV,
Omnibus Rules)
Such establishment, administration, and
maintenance shall be assisted and approved
by the CSC and shall be in consultation with
the Wage and Position Classification Office
(ibid)
It shall be established for all positions in the
1st 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 public office.
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 is

necessarily implied that the right to vote and
to be voted should not be dependent upon a
candidates wealth. Poor people should also
be allowed to be elected to public office
because social justice presupposes equal
opportunity for both rich and poor. [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
250
may thus qualify and perform his

function without loss of time.
To hold that the Civil Service Law requires

filling up any vacancy by promotion, transfer,
reinstatement, reemployment, or certification
IN THAT ORDER would be tantamount to
legislative appointment which is repugnant
to the Constitution. What it does purport to
say is that as far as practicable the
person next in rank should be promoted,
otherwise the vacancy may be filled by
transfer, reinstatement, reemployment or
certification, as the appointing power sees
fit, provided the appointee is certified to be
qualified and eligible. [Pineda v. Claudio
(1969)]
5. Effect of Removal of Qualifications

During the Term
Termination from office.
6. Effect
of
Pardon
upon
the
Disqualification to Hold Public Office
(Asked in 1999)
GENERAL RULE: Pardon will not restore

the right to hold public office. (Art. 36,
Revised Penal Code)
EXCEPTIONS:
When the pardons 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)]
Promotion of next-in-rank career officer is

not 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 of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to issue said
appointments. [Gesolgon v. Lacson
(1961)]
Upon recommendation
Advisory.
E. Discretion of Appointing Official
Presumed.
Administrators of public officers, primarily
the department heads should be entrusted
with plenary, or at least sufficient, discretion.
Their position most favorably determines
who can best fulfill the functions of a
vacated office. There should always be full
recognition of the wide scope of a
discretionary 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. It must be performed by the officer in
whom it is vested, the only condition being
that the appointee should possess the
qualifications required by law. [Lapinid v.
CSC (1991)]
Scope. The discretion of the appointing

authority is not only in the choice of the
person who is to be appointed but also in
the nature and character of the appointment
intended (i.e., whether the appointment is
permanent or temporary).
Inclusive Power. The appointing authority

holds the power and prerogative to fulfill a
vacant position in the civil service.
The exercise of the power to transfer,

reinstate, reemploy or certify is widely used
(need not state reason)
is
not
Merely
Sec. 9. Provincial/City Prosecution Offices. [par.

3] All provincial and city prosecutors and their
assistants shall be appointed by the President
upon the 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 not
binding or obligatory upon the person to
whom it is made.
F. Effectivity of Appointment
Immediately upon appointing authoritys

issuance. (Rule V, Sec. 10, Omnibus
Rules).
251
owing allegiance to another nation, shall

govern our people and country or a unit of
territory thereof. [Frivaldo v. COMELEC
(1996)]

Irrevocable Appointment
GENERAL RULE:
An appointment, once made, is irrevocable
and not subject to reconsideration.
It vests a legal right. It cannot be taken
away EXCEPT for cause, and with
previous notice and hearing (due
process).
It may be issued and deemed complete
before acquiring the needed assent,
confirmation, or approval of some other
officer or body.
EXCEPTIONS:
Appointment is an absolute nullity
[Mitra v. Subido (1967)];
Appointee commits fraud [Mitra v.
Subido, supra];
Midnight appointments
General Rule: A President or Acting
President shall not appoint 2 months
immediately
before
the
next
presidential elections until his term
ends. (Art. VII, Sec. 15, 1987
Const.)
Exception: Temporary appointments
to
executive
positions
when
continued vacancies will prejudice
public service or will endanger
public safety.

Jurisdiction
Recall is a mode of removal of a public

official by the people before the end of his
term of office. [Garcia v. COMELEC, (1993)]
Review Appointees Qualifications.

The only function of the CSC is to review the
appointment in the light of the requirements
of the Civil Service Law, and when it finds
the appointee to be qualified and all other
legal requirements have been otherwise
satisfied, it has no choice but to attest to the
appointment. [Lapinid v. CSC (1991)]
What it cannot do.

It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified.
[Lapinid v. CSC (1991)]
The CSC cannot co-manage or be a
surrogate administrator of government
offices and agencies.
It cannot change the nature of the
appointment extended by the appointing
officer. [ Luego v. CSC (1986)]
I.
Appointments to the Civil Service
SCOPE:
Embraces
all
branches,
subdivisions, instrumentalities and agencies
of the Government, including GOCCs with
original charters (Art. IX-B Sec. 2(1),
Constitution)
Classes of Service
1. Career Service Entrance based on
merit and fitness determined by
competitive examinations, or based on
highly
technical
qualifications,
opportunity for advancement to higher
career positions and security of tenure.
Exclusive Jurisdiction
Disciplinary cases
Cases involving personnel action
affecting the Civil Service employees
Appointment through certification
Promotion
Transfer
Reinstatement
Reemployment
Detail, reassignment
Demotion
Separation
Employment status
Qualification standards
Recall of appointment. Includes the authority
to recall an appointment which has been
initially approved when it is shown that the
same was issued in disregard of pertinent
CSC laws, rules and regulations.
as opposed to Recall under Sec 69-75 of the
Local Government Code:
2. Non-career Service Entrance on

bases other than those of the usual
tests. Tenure limited to a period
specified by law or which is
coterminous
with
the
appointing
authority or the duration of a particular
project.
(i.e.
elective
officials,
Department Heads and Members of
Cabinet)
Requisites:
Appoint only according to merit and
fitness, to be determined as far as
practicable.
Require a competitive examination.
Exceptions:
(Positions
where
Appointees
are exempt from
252
Competitive
Examination
Requirements)
o Policy determining - in which
the officer lays down principal or
fundamental guidelines or rules;
or formulates a method of action
for government or any of its
subsidiaries
o Primarily Confidential denoting
not only confidence in the
aptitude of the appointee for the
duties of the office but primarily
close intimacy which ensures
freedom of intercourse without
embarrassment or freedom from
misgivings or betrayals on
confidential matters of the state
(Proximity Rule as enunciated
in De los Santos v Mallare
[1950])
o Highly Technical requires
possession of technical skill or
training in a superior degree.
(i.e. City Legal Officer)
o
NOTE: It is the nature of the

position
which
determines
whether a position is policy
determining,
primarily
confidential or highly technical
Other Personnel Actions

Promotion is a movement from one
position to another with increase in
duties and responsibilities as authorized
by law and is usually accompanied by
an increase in pay.
Next-in-rank Rule.
o The person next in rank shall be
given
PREFERENCE
in
promotion when the position
immediately above his is
vacated.
o BUT the appointing authority still
exercises discretion and is not
bound by this rule, although he
is required to specify the
special reason or reasons for
not appointing the officer nextin-rank.
Automatic Reversion Rule.
o All appointments involved in a
chain of promotions must be
submitted simultaneously for
approval by the Commission.
o The
disapproval
of
the
appointment of
a person
proposed to a higher position
invalidates the promotion of

those in the lower positions and
automatically restores them to
their former positions.
However, the affected persons
are entitled to payment of
salaries for services actually
rendered at a rate fixed in their
promotional
appointments.
(Sec. 13 of the Omnibus Rules
Implementing Administrative
Code)
Requisites:
1. series of promotions
2. all
promotional
appointments
are
simultaneously submitted to
the
Commission
for
approval
3. the
Commission
disapproves
the
appointment of a person to
a higher position.
Appointment through Certification is

issued to a person who is:
selected from a list of qualified
persons certified by the Civil Service
Commission from an appropriate
register of eligibles
qualified
Transfer is a movement from one

position to another which is of
equivalent rank, level or salary without
break in service.
This may be imposed as an
administrative remedy.
If UNconsented = violates security
of tenure.
EXCEPTIONS:
o Temporary Appointee
o Career
Executive
Service
Personnel whose status and
salaries are based on ranks (
positions)
Reinstatement. It is technically the
issuance of a new appointment and is
discretionary on the part of the
appointing power.
It cannot be the subject of an
application for a writ of mandamus.
Who may be reinstated to a position
in the same level for which he is
qualified:
o Any permanent appointee of a
career service position
253
No commission of delinquency
or misconduct, and is not
separated.
Same
effect
as
Executive
Clemency,
which
completely
obliterates the adverse effects of the
administrative decision which found
him guilty of dishonesty. He is
restored ipso facto upon grant of
such. Application for reinstatement
= unnecessary.
o
Detail is the movement of an employee

from one agency to another without the
issuance of an appointment.
Only for a limited period.
Only for employees occupying
professional, technical and scientific
positions.
Temporary in nature.
Reassignment. An employee may be

reassigned from one organizational unit
to another in the SAME agency.
It is a management prerogative of
the CSC and any dept or agency
embraced in the Civil Service.
It does not constitute removal
without cause.
Requirements:
o NO reduction in rank, status or
salary.
o Should have a definite date or
duration (c.f. Detail). Otherwise,
a floating assignment = a
diminution in status or rank.
Reemployment. Names of persons who

have been appointed permanently to
positions in the career service and who
have been separated as a result of
reduction in force and/or reorganization,
shall be entered in a list from which
selection for reemployment shall be
made.
- end of Law on Public Officers -
254
TABLE of CONTENTS

Table of Contents
Chapter II. Creation and Dissolution of LGUs

.......................................................................261
I.
Creation.............................................261
A. General Provisions .......................261
B. Specific Requirements..................261
Units 262
D. Creation and Conversion of LGUs 263
E. Plebiscite.......................................264
F.
Beginning of Corporate Existence 264
II.
Division and Merger; Abolition ..........266
A. Division and Merger ......................266
B. Abolition ........................................266
III.
Settlement of Boundary Disputes .267
A. Jurisdictional
Responsibility
for
Settlement of Boundary Dispute............267
B. Appeal...........................................267
C. Maintenance of the Status Quo ....267
Chapter III.
General
Powers
and
Attributes of LGUs .......................................268
I.
Powers in General ...............................268
A. Sources of Powers of LGUs..............268
B. Classification of Powers of LGUs......268
C. Execution of Powers .........................268
II.
Political and Corporate Nature of LGUs
268
III.
Governmental Powers ....................269
A. General Welfare ................................269
1.
Police Power .................................269
2.
Limitations.....................................270
3.
Abatement of Nuisance ................271
4.
Closure of Roads ..........................271
B. Power to Generate Revenue ............272
C. Eminent Domain................................273
D. Basic Services and Facilities ............275
E. Reclassification of Lands ..................276
F.
Corporate Powers .............................277
G. Local Legislative Power ....................278
Chapter IV. Local Initiative and Referendum

....................................................................... 283
A. Definition ........................................... 283
B. Requirements.................................... 283
C. Procedure ......................................... 283
D. Effectivity of Local Propositions ........ 283
E. Limitations on Initiatives.................... 283
F.
Limitations Upon Local Legislative
Bodies ........................................................ 284
Chapter V. Municipal Liability..................... 285
A. Specific Provisions making LGUs Liable
285
B. Liability for Torts, Violation of the Law
and Contracts ............................................ 285
C. Personal Liability of Public Official.... 286
National Government and LGUs................. 287
I.
Executive Supervision....................... 287
A. 1987 Constitution, Art. X, Sec. 2 and
4
287
Chapter I................................................ 287
II.
Consultations .................................... 288
LGC Sec. 2(c), 26, 27 ........................... 288
A. Declaration of Policy..................... 288
288
C. Prior Consultation ......................... 288
III.
Relations with Philippine National
Police 289
LGC, Sec. 28 ........................................ 289
IV.
Other Relations............................. 290
A. Inter-local Relations ...................... 290
B. Relations with Non-Governmental
organizations ......................................... 290
Chapter VII. Local Officials ......................... 291
I.
Elective Local Officials ....................... 291
A. Qualifications .................................... 291
B. Disqualifications ...............................292`
C. Manner of Election ............................ 294
D. Term of Office ................................... 294
E. Rules on Succession ........................ 296
F.
Recall ................................................ 299
G. Discipline........................................... 300
1.
Administrative Action .................... 300
2.
Penalties ....................................... 302
3.
Power of Tribunals........................ 303
II.
Appointive Officials............................. 304
A. Appointments .................................... 304
B. Discipline........................................... 306
C. Removal ............................................ 306
256
Chapter I. Basic Principles..........................258

I.
Nature and Status .............................258
A. Definition .......................................258
B. Dual Nature...................................258
II.
Principles of Local Government Law 259
A. State
Policy,
Principles
of
Decentralization.....................................259
B. Local Autonomy ............................259
C. Decentralization ............................259
C. Devolution .....................................260
III. The Local Government Code ............260
A. Effectivity.......................................260
B. Scope............................................260
C. Rules of Interpretation ..................260
TABLE of CONTENTS
D. Officials Common to All Municipalities,

Cities and Provinces ..................................306
III.
Provisions Applicable to Elective and
Appointive Officials .....................................307
A. Prohibited Interests ...........................307
LGC Sec. 89 ..............................................307
B. Practice of Profession .......................307
C. Prohibition against Appointment .......308
IV. Local Boards and Councils ................308
A. Local School Board ...........................308
B. Local Health Board............................309
C. Local Development Council ..............309
D. Local Peace and Order Council ........309

Provisions .....................................................314
A. Posting and Publication of Ordinances
with Penal Sanctions .................................314
B. Penalties
for
Violation
of
Tax
Ordinances.................................................314
C. Provisions for Implementation...........314
Chapter
X.
Application of LGC to
Autonomous Regions and Other Entities..315
I.
Mindanao ...................................................315
II.
Cordillera Administrative Region.......315
III. The Metropolitan Manila Development
Authority.....................................................316
257
Chapter VIII. Local Government Units .......310

A. The Barangay....................................310
1.
Katarungang Pambarangay..........310
2.
Sangguniang Kabataan ................311
B. The Municipality ................................311
C. The City .............................................312
D. The Province .....................................313
Prof. Gisella Dizon-Reyes

Faculty Editor
Sherwin Ebalo
Lead Writer
Paulyne Caspillan
Karlo Noche
Writers
POLITICAL LAW
Jennifer Go
Subject Editor
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

Kae Guerrero
DESIGN & LAYOUT

Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya
LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Heads
Volunteers
MOCK BAR COMMITTEE

Lilibeth Perez

Dahlia Salamat
LOGISTICS
Charisse Mendoza
Jill Hernandez
Head
Members
Chapter I. Basic Principles

I.
NATURE AND STATUS

A.
Definition
B.
Dual Nature
II. PRINCIPLES OF LOCAL GOVERNMENT LAW
A. State Policy, Principles of Decentralization
B. Decentralization
C. Devolution
III. THE LOCAL GOVERNMENT CODE
A. Effectivity
B. Scope
C. Rules of Interpretation
I.
Nature and Status
A. Definition
A Local Government Unit (LGU) is a political
subdivision of the State which is constituted by
law and possessed of substantial control over its
own affairs. Remaining to be an intra sovereign
subdivision of a sovereign nation, but not
intended to be an imperium in imperio, the LGU
is autonomous in the sense that it is given more
powers, authority, responsibilities and resources.
[ Alvarez vs Guingona (1996)]
Local government is interchangeable with
municipal corporation.
The City of Manila, being a mere municipal
corporation, has no right to impose taxes.
[Basco vs PAGCOR (1991)]
Municipal Corporation vs Quasi-municipal
corporation
A municipal corporation exists by virtue of,
and is governed by, its charter. A quasimunicipal corporation operates directly as
an agency of the state to help in the
administration of public functions. [Singco,
(1955)]
B. Dual Nature
Sec. 15, LGC. Every LGU created or recognized
under this Code is a body politic and
corporate endowed with powers to be exercised
by it in conformity with law. As such, it shall
exercise powers as a political subdivision of the
national government and as a corporate entity
representing the inhabitants of its territory.
The obligations of the old City of Manila

survives the cession of the Phil. to the U.S.
because of the corporate nature of the city.
[Villas vs Manila (1921)]
As a body politic with governmental

functions, the LGU has the duty to ensure
258
LOCAL GOVERNMENT LAW TEAM
Chapter I. BASIC PRINCIPLES
II. Principles of Local Government Law

A. State
Policy,
Decentralization
Principles
of
Art. X, 1987 Constitution

Sec. 2. The territorial and political subdivisions shall
enjoy local autonomy.
Sec. 3. The Congress shall enact a local government
code which shall
o provide for a more responsive and accountable
local government structure
instituted
through
a
system
of
decentralization
with effective mechanisms of recall, initiative,

and referendum,
o allocate among the different local government
units
their powers, responsibilities, and
resources,
o and provide for the qualifications, election,
appointment and removal, term, salaries, powers
and functions and duties of local officials,
o and all other matters relating to the organization
and operation of the local units.
Sec. 4. The President of the Philippines shall

exercise general supervision over local
governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with
respect to component barangays
shall ensure that the acts of their component

units are within the scope of their prescribed
powers and functions.
Sec. 5. Each local government unit shall have the
power to create its own sources of revenues and to
levy taxes, fees and charges,
subject to such guidelines and limitations as the

Congress may provide,
consistent with the basic policy of local

autonomy.
Such taxes, fees, and charges shall accrue
exclusively to the local governments.
Local Government Code (RA 7160)

Sec. 2 (c) It is likewise the policy of the State to
require all national agencies and offices to conduct
periodic consultations with:
appropriate local government units,
nongovernmental and people's organizations,
and other concerned sectors of the community

before any project or program is implemented in
their respective jurisdictions.
B. Local Autonomy
The principle of local autonomy under the

1987
Constitution
simply
means
decentralization (discussed below). [Basco
vs PAGCOR (1991)]
Illustrations
The CSC cannot declare the provision upon
recommendation of the local chief executive
concerned as merely directory. Such
provision is in consonance with local
autonomy. [San Juan vs CSC (1991)]
An A.O. may not compel LGUs to reduce
their total expenditures. Supervising officials
may not lay down or modify the rules. These
rules were made in furtherance of local
autonomy. [Pimentel vs Aguirre (2000)]
HOWEVER, the Constitution did not intend,
for the sake of local autonomy, deprive the
legislature of all authority over LGUs, in
particular, concerning discipline. [Ganzon vs
CA (1991)]
C. Decentralization
NOTE: Decentralization is a means to achieve
local autonomy.
Autonomy is either (1) decentralization of
administration or (2) decentralization of power.
There is decentralization of administration
when the central government delegates
administrative powers to political subdivisions in
order to broaden the base of government power.
Purpose: to relieve the central government

of the burden of managing local affairs and
enable it to concentrate on national
concerns.
The
President
exercises
"general
supervision" over them, but only to
"ensure
that
local
affairs
are
administered according to law." He has
no control over their acts in the sense that
he can substitute their judgments with his
own. [Limbona v. Mangelin (1989)]
Cf. Decentralization of power is the abdication

of political power in favor of LGUs declared to be
autonomous. There is self-immolation where
autonomous government is accountable, not to
the central 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 a valid
exercise of the Presidents power of general
259
the quality of the environment (S16, LGC). It

cannot claim exemption from PD 158 which
imposes the same duty. [Republic vs Davao
(2002)]
C. Devolution
(asked in 1999)
Refers to the act by which the national

government confers power and authority
upon the various local government units to
perform
specific
functions
and
responsibilities (Sec. 17, LGC); the transfer
of power and authority from the National
Government to LGUs to enable them to
perform
specific
functions
and
responsibilities (Art. 24, IRR of the LGC).
III. The Local Government Code

A. Effectivity
LGC, Sec. 536
January 1, 1992, unless otherwise provided;
After complete publication in at least one (1)
newspaper of general circulation.
B. Scope
RA 7160 (LGC), Sec. 4
The LGC shall apply to:
provinces
cities
municipalities
barangays
other political subdivisions as may be
created by law; and
to the extent herein provided, to officials,
offices, or agencies of the national
government.
C. Rules of Interpretation
LGC, Sec. 5
Sec. 5. Rules of Interpretation. - In the
interpretation of the provisions of this Code, the
following rules shall apply:
1. In case of doubt on any provision on a
power of an LGU:
Liberal interpretation
in favor of devolution of powers
in favor of existence of power
2. In case of doubt on any tax ordinance or
revenue measure:
Construed strictly against LGU
Construed liberally in favor of taxpayer

Tax exemption, incentive or relief is
construed
strictly against
person
claiming it
3. General welfare provisions
Liberally interpreted to give more
powers to LGU in accelerating economic
development and upgrading quality of
life for the people of the community
4. Rights and obligations existing on effectivity
of LGC:
Arising from contracts or other source
Shall be governed by
original terms and conditions of
contract, OR
law in force at the time the rights
were vested
5. Resolution of controversies under the LGC:
Where
no
legal
provision
or
jurisprudence applies
Resort to customs and traditions in the
place where the controversies take
place
260
supervision over LGUs as it is advisory only.

Supervisory power, when contrasted with
control, is the power of mere oversight over
an inferior body; it does not include any
restraining authority over such body.
[Pimentel v. Aguirre, supra]
Chapter II. Creation and Dissolution of

LGUs
I.
CREATION
A. GENERAL PROVISIONS
B. SPECIFIC REQUIREMENTS
1. METROPOLITAN
POLITICAL
SUBDIVISIONS
2. HIGHLY URBANIZED CITIES AND
INDEPENDENT COMPONENT CITIES
3. AUTONOMOUS REGIONS
C. AUTHORITY TO CREATE LGUS
D. CREATION AND CONVERSION OF LGUS
E. PLEBISCITE
F. BEGINNING OF CORPORATE EXISTENCE
II. DIVISION AND MERGER; ABOLITION
A. DIVISION AND MERGER
B. ABOLITION
III. SETTLEMENT OF BOUNDARY DISPUTES
A. JURISDICTIONAL RESPONSIBILITY FOR
SETTLEMENT OF BOUNDARY DISPUTE
B. APPEAL
C. MAINTENANCE OF THE STATUS QUO
I.
Creation
(Art. X, 1987 Consti.)
A. General Provisions
Sec. 10. No province, city, municipality, or barangay
may be created, divided, merged, abolished, or its
boundary substantially altered, except:
in accordance with the criteria established in the

Local Government Code and
subject to approval by a majority of the votes cast

in a plebiscite in the political units directly
affected.
Sec. 13. Local government units may:
group themselves,
consolidate or coordinate their efforts, services,

and resources
for purposes:
commonly beneficial to them
in accordance with law.

Sec. 14. The President shall provide for regional
development councils or other similar bodies
composed of local government officials, regional
heads of departments and other government offices,
and
representatives
from
non-governmental
organizations within the regions:
for purposes of administrative decentralization
to strengthen the autonomy of the units therein

and
to accelerate the economic and social growth and

development of the units in the region.
Chapter II. CREATION and DISSOLUTION of LGUs
B. Specific Requirements
1) Metropolitan Political Subdivisions
Sec. 11. The Congress may, by law, create special
metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof.
The component cities and municipalities:
shall retain their basic autonomy and
shall be entitled to their own local executive and

legislative assemblies.
The jurisdiction of the metropolitan authority that will
thereby be created shall be limited to basic services
requiring coordination.
2) Highly Urbanized Cities and Independent

Component Cities
Sec.12. Cities that are highly urbanized, as
determined by law, and component cities whose
charters prohibit their 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 not
be deprived of their right to vote for elective provincial
officials.
3) Autonomous Regions
Sec. 15. There shall be created autonomous regions
in Muslim Mindanao and in the Cordilleras consisting
of provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical
and cultural heritage, economic and social
structures, and other relevant characteristics
within the framework of this Constitution and the

national sovereignty as well as territorial integrity
of the Republic of the Philippines.
Sec. 16. The President shall exercise general
supervision over autonomous regions to ensure that
laws are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not
granted by this Constitution or by law to the
autonomous regions
shall be vested in the National Government.

Sec.18. The Congress shall enact an organic act for
each autonomous region with the assistance and
participation of the regional consultative commission
composed of representatives appointed by the
President from a list of nominees from multi-sectoral
bodies.
The organic act shall define the basic structure of
government for the region consisting of the
executive department and legislative assembly,
both of which shall be elective and representative of
the constituent political units.
The organic acts shall likewise provide for special
courts with personal, family, and property law
jurisdiction consistent with the provisions of this
Constitution and national laws.
261
LGC, Sec. 6
A local government unit may be
o 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
other political subdivision, OR
by ordinance passed by the sangguniang

panlalawigan or sangguniang panlungsod
concerned in the case of a barangay located
within its territorial jurisdiction,
o subject to such limitations and requirements
prescribed in this Code.
The
authority
to
create
municipal
corporations is essentially legislative in
nature [Pelaez v. Auditor General (1965)]
Requisites: (LACA)
(a) valid law authorizing incorporation;
(b) attempt in good faith to organize it;
(c) colorable compliance with law; and
(d) assumption of corporate powers.
There can be no color of authority in an

unconstitutional statute. An unconstitutional
act confers no rights, imposes no duties,
affords no protection, and creates no office.
However, even if the EO was invalid, it does
not mean that the acts done by the
municipality of Balabagan in the exercise of
its corporate powers are a nullity. This is
because the existence of the EO is an
operative fact which cannot justly be
ignored. [Malabanan v Benito (1969)]
The Municipality of Sinacban1 possesses

legal personality. Where a municipality
created as such by executive order is later
impliedly recognized and its acts are
accorded legal validity, its creation can no
longer be questioned.
The enactment of a LGC is not a

condition sine qua non for the creation of
a municipality, and before the enactment of
such code, the power remains plenary
except that the creation should be approved
by the people concerned in a plebiscite
called for the purpose. [Torralba v. Sibagat
(1987)]
Sinacban has attained de jure status2 by

virtue of the Ordinance appended to the
1987 Constitution, apportioning legislative
districts throughout the country, which
considered Sinacban part of the Second
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.
The SC held that sec. 19 of RA 9054 insofar

as it grants ARMM Regional Assembly the
power to create provinces and cities is void.
(Constitution allows delegation of creating
municipalities and barangays only.) [Bai
Sema v. COMELEC (2008)]
Since Sinacban had attained de facto

status at the time the 1987 Constitution took
effect on February 2, 1987, it is not subject
to the plebiscite requirement. This
requirement applies only to new
municipalities created for the first time
under the Constitution.
Creations under Sec. 68, Admin Code

The alleged power of the President to create
municipalities under Sec. 68 of the Admin
Code amounts to an undue delegation of
legislative power. The authority to create
municipal
corporations
is
essentially
legislative in nature. The power of control of
the President over executive departments,
bureaus or offices implies no more than the
authority to assume directly the functions
thereof or to interfere in the exercise of
discretion by its officials. It does not include
the authority either to abolish or create such.
[Pelaez v. Auditor General (1965)]
Effect if created under Sec 68, Admin Code:
The municipality is non-existent. It cannot be
a party to any civil action [Mun. of Kapalong
v. Moya (1988)]
Attack Against Validity of Incorporation

When the inquiry is focused on the legal
existence of a body politic, the action is
reversed to the state in a proceeding for quo
De Facto Corporations
De facto municipal corporation: There is defect
in creation; legal existence has been recognized
and acquiesced publicly and officially.
Sec. 442(d), LGC: Municipalities existing as of the date of

the effectivity of this Code shall continue to exist and operate
as such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which have
their respective set of elective municipal officials holding
office at the time of the effectivity of this Code shall
henceforth be considered as regular municipalities.
Sinacban was created by EO 258 of then President Elpidio

Quirino, pursuant to Sec. 68 of the Revised Administrative
Code of 1917.
2
De jure: by virtue of the ordinance appended to the 1987

Constitution; Sec. 442 (d), LGC curative.
262

Units
The municipality can still be considered to

have attained at least a status closely
approximating that of a de facto corporation
despite the invalidity of the EO creating it.
This is because the State itself recognized
the continued existence of San Andres when
th
it classified it as a 5 class municipality.
And, more importantly, Sec.442(d) of the
LGC cured whatever defect there was in its
creation. [Municipality of San Narciso v.
Mendez]
Municipal Corporation by Prescription

Existence is presumed where the community
has claimed and exercised corporate functions
with the knowledge and acquiescence of the
legislature, and without interruption or objection
for a period long enough to afford title by
prescription. [Martin, Public Corporations (1977)]
The municipality was created under a void
law (S68, AC). But it should be considered a
de jure personality because it existed 1 year
before the Pelaez case, and various
governmental acts indicate the States
recognition of its existence. [Mun. of
Candijay v. CA (1995)]
D. Creation and Conversion of LGUs

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 to favor a
particular candidate or party) and
creation or abolition of units for purely
political purposes.
Criteria
LGC, Sec. 7
As a general rule, the creation of a local
government unit or its conversion from one level
to another level shall be based on verifiable
indicators of viability and projected capacity to
provide services, to wit: (IPL)
1. Income. - must be sufficient, based on
acceptable standards, to provide for all

essential government facilities and services
and special functions commensurate with
the size of its population.
2. Population. - total number of inhabitants
within the territorial jurisdiction of the local
government unit cozncerned.
3. Land Area. - must be:
Contiguous
o unless it comprises two or more
islands or is separated by a LGU
independent of the others;
Properly identified by metes and bounds
with technical descriptions; and
Sufficient to provide for such basic
services and facilities to meet the
requirements of its populace.
Compliance attested to by:

Department of Finance (DOF)
National Statistics Office (NSO)
Lands Management Bureau (LMB) of
the Department of Environment and
Natural Resources (DENR).
Illustrations
The requirement on metes and bounds was
meant merely as a tool in the establishment
of LGUs. So long as the territorial jurisdiction
of a city may be reasonably ascertained, the
intent behind the law
(i.e., the
determination of the territorial jurisdiction
over which governmental powers may be
exercised) has been sufficiently served. A
cadastral type description is not necessary.
[Mariano v. COMELEC (1995)]
NOTE: The ruling in Mariano is an exception
to the general rule of proper identification
because of its peculiar facts: (1) the
legislature
deliberately
omitted
the
description in metes and bounds because of
the pending litigation between Makati and
Taguig over Fort Bonifacio; (2) RA 7854
provided that the territory of the City of
Makati will be the same as that of the
Municipality of Makati, thus making the
territorial jurisdiction of Makati ascertainable
(subject, of course, to the result of the
unsettled boundary dispute).
Compliance with population OR land area, in

addition to income, is sufficient to satisfy the
requirements in the creation of a city.
[Samson v. Aguirre (1999)]
Internal Revenue Allocations (IRAs) form

part of the income of LGUs. The funds
generated from local taxes, IRAs and
national wealth utilization proceeds accrue
263
warranto or any other direct proceeding.

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)]
economically
dislocated
by
the
separation of a portion thereof have the
right to vote in said plebiscite. What is
contemplated by the phrase political units
directly affected is the plurality of political
units which would participate in the
plebiscite. [Padilla v. COMELEC (1992)]
As such, for purposes of budget preparation,

which budget should reflect the estimates of
the income of the LGU, among others, the
IRAs and the share in the national wealth
utilization proceeds are considered items of
income. [Alvarez v. Guingona (1996)]
NOTES:
For provinces and cities, the income
requirement must be satisfied; and EITHER
population OR territory.
In the creation of barangays, there is no

minimum requirement for area and income.
As to the income requirement, average

annual income shall include the income
accruing to the general fund, exclusive of
special funds, transfers, and non-recurring
income.
Effects of downgrading: (ART)

(a) the city mayor will be placed under the
Administrative supervision of the
governor;
(b) resolutions and ordinances will have to
be Reviewed by the provincial board;
(c) Taxes will have to be shared with the
province. [Miranda v. Aguirre (1999)]
E. Plebiscite
LGC, Sec. 10
No creation, division, merger, abolition, or
substantial alteration of boundaries of local
government units shall take effect unless
there is:
Law or ordinance
Approved by a majority of the votes cast
in a plebiscite called for the purpose
in the political unit or units directly
affected.
Said plebiscite shall be conducted by
the
commission
on
elections
(COMELEC)
- Within one hundred twenty (120) days from
the date of effectivity of the law or ordinance
effecting such action, unless said law or
ordinance fixes another date.
Illustrations
When the law states that the plebiscite shall
be conducted in the political units
directly affected, it means that the
residents of the political entity who would be
The downgrading of Santiago City from an

ICC to a component city falls within the
meaning of creation, division, merger,
abolition, or substantial alteration of
boundaries; hence, ratification in a plebiscite
is necessary. There is material change in
the political and economic rights of the
LGUs directly affected as well as the budget
preparation, which budget should reflect the
estimates of people therein. It is therefore
but reasonable to require the consent of the
people to be affected.
The creation of a separate congressional

district of Mandaluyong is not a subject
separate and distinct from the subject of its
conversion into a highly-urbanized city but is
a natural and logical consequence of its
conversionThe Court found no need for
the people of San Juan to participate in the
plebiscite. They had nothing to do with the
change
of
status
of
neighboring
Madaluyong. [Tobias v. Abalos (1994)]
F. Beginning of Corporate Existence

LGC, Sec. 14
Sec. 14. When a new local government unit is
created,
its corporate existence

o shall commence upon the election and
qualification of its chief executive and a
majority of the members of its sanggunian,
o unless some other time is fixed therefor by
the law or ordinance creating it.
264
to the general fund of the LGU and are used

to finance its operations subject to specified
modes of spending the same as provided for
in the LGC and its implementing rules and
regulations.
Summary: Creation of Specific LGUs3
Income
Population
Territory
Manner of
Creation
Province
LGC 460-461
Average annual
income,
as
certified by the
Department of
Finance, of not
less
than
P20,000,000
based on 1991
constant prices
City
RA 9009 (2001)
Average
annual
income,
as
certified by the
Department
of
Finance, of at least
P100,000,000 for
the
last
2
consecutive years
based on 2000
constant prices
Municipality
LGC 441-442
Average
annual
income, as certified
by the provincial
treasurer, of at
least
P2,500,000.00 for
the
last
two
consecutive years
based on 1991
constant prices
Barangay
LGC 385-386
No
minimum
requirement
for
income
250,000
inhabitants
150,000
inhabitants
25,000 inhabitants
2,000 inhabitants
5,000 inhabitants, in
cities
and
municipalities
within
MM
and
other
metropolitan political
subdivisions
or in
highly urbanized cities
No
minimum
requirement for area
contiguous
territory of at least
2
2,000 km
contiguous territory
2
of at least 100 km
contiguous territory
2
of at least 50 km
territory need not

be contiguous if it
comprises 2 or
more islands or is
separated by a
chartered city or
cities which do
not contribute to
the income of the
province
requirement
on
land area shall not
apply where the
city proposed to be
created
is
composed of 1 or
more islands; the
territory need not
be contiguous if it
comprises 2 or
more islands
By an Act
Congress
By an Act
Congress
requirement
on
land area shall not
apply where the
municipality
proposed to be
created
is
composed of 1 or
more
islands;
territory need not
be contiguous if it
comprises 2 or
more islands
By an Act of
Congress
of
of
For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461
Territory need not be

contiguous
if
it
comprises 2 or more
islands
By law or by an
ordinance
of
the
sangguniang
panlalawigan
or
panlungsod; In case of
the
creation
of
barangays
by the
sangguniang
panlalawigan,
the
recommendation
of
the
sangguniang
bayan concerned shall
be necessary
265
Requirements
Requirements
Province
LGC 460-461
City
RA 9009 (2001)
Municipality
LGC 441-442
Plebiscite
(in LGUs
directly
affected)
Approval must be
by majority of the
votes cast; except
otherwise
provided in the
Act of Congress,
the
plebiscite
shall
be
held
within 120 days
from effectivity of
the
law
or
ordinance
effecting
such
action
Approval must be
by majority of the
votes cast; except
otherwise provided
in the Act of
Congress,
the
plebiscite shall be
held within 120
days
from
effectivity of the
law or ordinance
effecting
such
action
Approval must be
by majority of the
votes cast; except
otherwise provided
in the Act of
Congress,
the
plebiscite shall be
held within 120
days from effectivity
of the law or
ordinance effecting
such action
II. Division and Merger; Abolition

A. Division and Merger
LGC, Sec. 8.
Division and merger of existing local
government units shall comply with the
same requirements herein prescribed for
their creation:
Provided, however, That such division
shall not reduce the income, population,
or land area of the local government unit
or units concerned to less than the
minimum requirements prescribed in
this Code:
Provided, further, That the income
classification of the original local
government unit or units shall not fall
below its current classification prior to
such division.
The
income
classification
of
local
government units shall be updated within six
(6) months from the effectivity of this Code
to reflect the changes in their financial
position resulting from the increased
revenues as provided herein.
Effects of Merger
1.
2.
3.
4.
5.
Legal existence of LGU to be annexed is

dissolved
Laws and ordinance of the annexing LGU
prevails
The right of office in the annexed LGU is
terminated
Title to property is acquired by the annexing LGU
Debts are assumed by the annexing LGU [Martin,
supra]
Barangay
LGC 385-386
By
an
Act
of
Congress, to enhance
the delivery of basic
services
in
the
indigenous
cultural
communities
Approval must be by
majority of the votes
cast; plebiscite shall
be held within such
period of time as may
be determined by the
law
or
ordinance
creating
said
barangay.
Effects of division
1. The legal existence of the original
municipality is extinguished
2. Property, rights and powers are acquired by
the dividing LGUs [Martin, supra]
B. Abolition
LGC, Sec. 9
A local government unit may be abolished:
when its income, population, or land
area has been irreversibly reduced to
less than the minimum standards
prescribed for its creation under Book III
of this Code, as certified by the national
agencies mentioned in Section 7 hereof
to Congress or to the sangguniang
concerned, as the case may be.
The law or ordinance abolishing a local
government unit shall specify the province,
city, municipality, or barangay with which
the local government unit sought to be
abolished will be incorporated or
merged.
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
266
appeal within one (1) year from the filing

thereof. Pending final resolution of the
disputed area prior to the dispute shall be
maintained and continued for all legal
purposes.
III. Settlement of Boundary Disputes

(asked in 2005)
A. Jurisdictional
Responsibility
Settlement of Boundary Dispute
LGC, Sec. 118
If the LGUs involved
are:
for
two (2) or more

municipalities
within
the same province
municipalities
component cities
different provinces
jointly referred to the

sanggunians of the
provinces concerned.
or
of
a component city or
municipality on the one
hand and a highly
urbanized city on the
other; or two (2) or
more highly urbanized
cities,
jointly referred
settlement
to
respective
sanggunians of
parties.
IRR of LGC, Sec. 18

Pending final resolution of the dispute: status of
the affected area prior to the dispute shall be
maintained and continued for all purposes.
Boundary disputes
shall be referred for
settlement to:
sangguniang
panlungsod
or
sangguniang
bayan
concerned.
sangguniang
panlalawigan
concerned.
two (2) or more

barangays in the same
city or municipality
C. Maintenance of the Status Quo
for
the
the
In the event the sanggunian fails to effect an

amicable settlement within sixty (60) days
from the date the dispute was referred
thereto, it shall issue a certification to that
effect.
Thereafter, the dispute shall be formally tried

by the sanggunian concerned which shall
decide the issue within sixty (60) days from
the date of the certification referred to
above.
B. Appeal
LGC, Sec. 119.
Within the time and manner prescribed by
the Rules of Court, any party may elevate
the decision of the sanggunian concerned to
the proper Regional Trial Court having
jurisdiction over the area in dispute.
The Regional Trial Court shall decide the
The power of provincial boards to settle

boundary disputes is limited to implementing
the law creating a municipality. Thus,
provincial boards do not have the authority
to approve agreements which in effect
amend 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 suspended or cancelled in view of
a pending boundary dispute between two
local governments. Precisely because
territorial jurisdiction is an issue raised in the
pending boundary dispute, until and unless
such issue is resolved with finality, to define
the territorial jurisdiction of the proposed
barangays would only be an exercise in
futility. [City of Pasig v. COMELEC(1999)]
267
LGC, Sec. 118-119

Boundary disputewhen a portion or the
whole of the territorial area of an LGU is
claimed by two or more LGUs.
Policy: Boundary disputes between or
among LGUs shall, as much as possible, be
settled amicably.
Chapter III. General

Attributes of LGUs
Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs
Powers
and
I.
POWERS IN GENERAL
A. SOURCES
B. CLASSIFICATION
C. EXECUTION OF POWERS
II. POLITICAL AND CORPORATE NATURE OF
LGUs
III. GOVERNMENTAL POWERS
A. GENERAL WELFARE (POLICE POWERS)
B. POWER TO GENERATE REVENUE
(POWER TO TAX)
C. EMINENT DOMAIN
D. BASIC SERVICES AND FACILITIES
E. RECLASSIFICATION OF LANDS
F. CORPORATE POWERS
G. LOCAL LEGISLATIVE POWER
I.
Powers in General
A. Sources of Powers of LGUs
1987 Consti., Sec. 25, Art. II ; Sec. 5-7, Art.

X
Statutes, e.g. LGC
Charter (particularly of cities)
Doctrine of the right of self-government, but
applies only in States which adhere to the
doctrine
B. Classification of Powers of LGUs
Express, Implied, Inherent

Public or Governmental, Private
Proprietary
Intramural, Extramural
Mandatory, Directory; Ministerial,
Discretionary
Municipal Corporations
or
LGC Sec. 14. Beginning of Corporate Existence
C. Execution of Powers
Where statute prescribes the manner of

exercise, the procedure must be followed
Where statute is silent, LGUs have
discretion to select reasonable means and
methods of exercise
LGC Sec. 15. Political and Corporate Nature of Local

Government Units
LGC Sec.18
Local government units shall have the power

and authority to generate and apply
resources
Establish an organization responsible for
implementation of development plans,
program objectives, and priorities.
The election and qualification of

chief executive AND
majority of the members of the
Sanggunian
unless some other time is fixed therefore by
the law or ordinance creating it.
Note: Art.14 applies when the law creating it is

SILENT as to the beginning of its corporate
existence.
II. Political and Corporate Nature of

LGUs
Own sources of revenues (Sec.5, Art.X,

Constitution; Sec.18 LGC) which include:
Power to create own sources
Levy taxes, fees and charges
o Shall accrue exclusively for their
own use and disposition
o Limitation: guidelines Congress may
provide
Just share in national taxes (Sec.6,
Art.X, Constitution; Sec.18 LGC)
o Determined by law
o Automatically and directly released
Equitable share in utilization and
development of national wealth (Sec.7,
Art.X Constitution; Sec.18 LGC)
o Within
respective
territorial
jurisdictions
o In the manner provided by law
o Sharing with inhabitants by way of
direct benefits
Acquire, develop, lease, encumber,
alienate, or otherwise dispose of
property (Sec.18 LGC)
o Real or personal property
o Made in a proprietary capacity
Apply resources and assets (Sec.18
LGC)
o Purpose: productive, development,
or welfare purposes
o In the exercise of their governmental
or proprietary powers and functions
Local government unit created or recognized

under this Code is a
Body politic AND
Corporate endowed with powers to be
exercised by it in conformity with law
Exercise of power (as a):
Political subdivision of the national
government AND
Corporate entity representing the
inhabitants of its territory
268
Implications
A municipal corporation performs twin
functions. Firstly, it serves as an
instrumentality of the State in carrying out
the functions of a government. Secondly, it
acts as an agency of the community in the
administration of local affairs. It is in the
latter character that it is a separate entity
acting for its own purposes and not a
subdivision of the state. [Lidasan v
COMELEC (1967)]
The holding of a town fiesta is a proprietary
function, though not for profit, for which a
rd
municipality is liable for damages to 3
persons ex contractu or ex delicto. [Torio v
Fontanilla (1978)]
Difference Between the Political Nature and

Corporate Nature of LGUs
Political/
Governmental
Political subdivision of
national government
Includes the legislative,
judicial,
public
and
political
LGU cannot be held
liable except:
o If statute provides
otherwise
Art.2189, Civil Code
Examples:
Regulations against
fire, disease
Preservation of public
peace
Maintenance of
municipal plaza
Establishment of
schools, post offices,
etc.
Corporate/
Municipal
Corporate
entity
representing inhabitants
of its territory
Includes those which
are ministerial, private
and corporate
Can be held liable ex
contractu or ex delicto
Examples:
Municipal waterworks
Slaughterhouses
Markets
Stables
Bathing
establishments
Wharves
Fisheries
Maintenance of parks,
golf courses,
cemeteries, airports
III. Governmental Powers

A. General Welfare
LGC Sec.16
This includes: Police Power, Abatement of
Nuisance and Closure of Roads
1. Police Power
Preservation of peace and order within

respective regions (Sec.21, Art. X,
Constitution)
1. Responsibilities of local police agencies
2. Local police shall be organized,

maintained, supervised and utilized in
accordance with applicable laws.
Defense and security of regions (Sec.21,
Art.X, Constitution)
o Responsibility of National Government
General Welfare Clause (Sec.16 LGC)
1. Powers expressly 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:
Preservation and enrichment of
culture
Promotion of health and safety
Enhancement of the right of the
people to a balance ecology
Development of self reliant scientific
and technological capabilities
Improvement of public morals
Economic prosperity and social
justice
Promotion of full employment
among residents
Maintenance of peace and order
Preservation of the comfort and
convenience of inhabitants
Nature
The police power of a municipal corporation
extends to all the great public needs, and, in
a broad sense includes all legislation and
almost every function of the municipal
government. Public purpose is not
unconstitutional
merely
because
it
incidentally benefits a limited number of
persons. The drift is towards 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
facility involved on the same terms
The number of users is not the yardstick
in determining whether property is
properly reserved for public use or
public benefit [Republic v. Gonzales]
2 Branches of the GWC

The General Welfare Clause has 2
branches:
(1) the general legislative power which
authorizes municipal councils to enact
269
ordinances and make regulations not

repugnant to law as may be necessary
to carry into effect and discharge the
powers and duties conferred upon it by
law;
(2) the police power, which authorizes the
municipality to enact ordinances as may
be proper and necessary for the health
and safety, prosperity, morals, peace,
good order, comfort and convenience of
the municipality and its inhabitants, and
for the protection of their property.
Here, the ordinances imposing the licenses
and
permits
for
any
business
establishments, for purposes of regulation
enacted by the municipal council of Makati,
st
falls under the 1 branch. [Rural Bank of
Makati, Inc v Municipality of Makati (2004)]
2. 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 (LGC Sec.16)
Powers expressly granted to the LGU
Power necessarily implied therefrom
Powers necessary, appropriate, or
incidental for its efficient and effective
governance
3. For ordinance to be valid exercise of police
power [Tatel v. Mun. of Virac (1992)]:
1. Not contrary to the Constitution
and/or statute
2. Not unfair or oppressive
3. Must not be partial or discriminatory
4. Not prohibit but may regulate trade
5. General and consistent with public
policy
6. Not unreasonable
Illustrations: Police Power Applies
A municipal ordinance prescribing the
zonification
and
classification
of
merchandise and foodstuff sold in the public
market [Eboa v Municipality of Daet (1950)]
A proclamation reserving parcels of the

public domain for street widening and
parking space purposes [Republic v
Gonzales]
Condemnation and demolition of buildings
found to be in a dangerous or ruinous
condition within the authority provided for by
municipal ordinances [Chua Huat vs CA
(1991)]
Regulation and operation of tricycles-for-hire

and to grant franchises for the operation
thereof. However, this power is still subject
to the guidelines prescribed by the DOTC.
Moreover, the newly delegated powers
pertain to the franchising and regulatory
powers therefore exercised by the LTFRB.
[LTO vs City of Butuan (2000)]
The declaration of an area as a commercial

zone through a municipal ordinance.
Corollary thereto, the state may interfere
with personal liberty with property, business,
and occupations. [Patalinhug vs CA (1994)]
Demolition of stalls causing traffic and

deteriorated sanitation [Villanueva vs
Castaneda (1987)]
Deny an application for permit or avoid the

injury 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 because

stored inflammable materials created a
danger
to
the
people
within
the
neighbourhood [Tatel vs Mun. of Virac
(1992)]
Rescind contracts [Tamin vs CA (1994)]
Enforcement of fishery laws in municipal

waters including the conservation of
mangroves. [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 or
pursuit of occupation. It may only regulate.
[De La Cruz vs Paras (1983)]
Anxiety, uncertainty and

among stallholders and traders
ground to revoke the mayors
General Welfare claim is too
[Greater Balanga vs Mun.
(1994)]
Butuan city board passes an ordinance

requiring that the sale of tickets to movies,
exhibitions or other performances to children
between 7-12 years of age should be at half
price. The said ordinance was declared
void. The theater operators are merely
conducting their legitimate business.
restiveness
cannot be a
permit. The
amorphous.
of Balanga
270
There is nothing immoral or injurious in

charging the same price for both children
and adults. In fact, no person is under
compulsion to purchase a ticket. [Balacuit v
CFI (1988)]
Permanently close or open

Ordinance: Vote of at least 2/3 of all
members of the Sanggunian
When
necessary,
an
adequate
substitute for the public facility should be
provided
Make provision for public safety
If permanently withdrawn from public
use
May be used or conveyed for any
purpose for which other real property
belonging in LGU may be lawfully used
or conveyed
Freedom park: must have provision for
relocation to new site
Temporary close or open

Ordinance
May be done:
During actual emergency
Fiesta celebrations
Public rallies
Agricultural or industrial fairs
Undertaking of public works and
highways, telecommunications, and
waterworks projects
Duration specified in written order by
local chief executive
If for athletic, cultural, or civic activities:
must
be
officially
sponsored,
recognized, or approved by LGU.
The power of the municipal government to

issue fishing privileges is only for revenue
purposes. BUT the power of the LLDA to
grant permits is for the purpose of effectively
regulating and monitoring activities in the
lake region and is in the nature of police
power. [Laguna Lake Development Authority
v. CA (1995)]
3. Abatement of Nuisance
LGC sec.447 and 458
Sangguniang
Bayan
and
Sangguniang
Panlungsod have:
Power to regulate activities relative to the
use of land, buildings and structures within
their jurisdiction
To promote the general welfare and
For said purpose declare, prevent or
abate any nuisance
Coverage
Respondents cannot seek cover under the
General Welfare Clause authorizing the
abatement of nuisances without judicial
proceedings. That tenet applies to a
nuisance per se, or one which affects the
immediate safety of persons and property
and may be summarily abated under the
undefined law of necessity [Monteverde v
Generoso (1928)].
NOTES:
The provisions of the Code DO NOT make a
distinction between nuisance per se and
nuisance per acccidens, thus creating a
presumption that LGUs can abate all kinds of
nuisances without need of a judicial order.
However, the jurisprudence holds that LGUs
can abate extrajudicially only nuisances per
se.
4. Closure of Roads
LGC Sec.21
What roads are

jurisdiction of LGU
Local road
Alley
Park
Square
subject,
those
within
Temporary closure and regulation of any

local street, road, thoroughfare, or any other
public place
By any city, municipality, or barangay
Where shopping malls, Sunday, flea or
night markets, or shopping areas may
be established
Where goods, merchandise, foodstuffs,
commodities, or articles of commerce
may be sold
Illustrations
A public street is property for public use
hence, outside the commerce of man. It may
not be the subject of lease or other contract.
Such leases are null and void for being
contrary to law. The right of the public to use
the city street may not be bargained away
through contract. The authorization given for
the use of the city street as a vending area
for stallholders who were granted licenses
by the City Government contravenes the
general law that reserves city streets and
roads for public use. It may not infringe upon
the vested right of the public to use city
streets for the purpose they were intended
to serve. [Dacanay vs Asistio (1992)]
271
The provincial council has the authority to

determine whether or not a certain property
(in this case a provincial road) is still
necessary for public use [Cabrera vs CA
(1991)]
The power of the LGU to enact zoning
ordinances for the general welfare prevails
over the deed of restrictions. [Sangalang vs
IAC(1989)]
The closure of roads under police power is
not eminent domain. No grant of damages
are awarded. [Cabrera vs CA (1991)]
Effect: The determination of the location of
the camino vecinal through an ordinance will
defeat the testimonies of witnesses as to the
location of said passageway. [Pilapil vs CA
(1992)]
The MMDA does not have police power, but
the LGUs do. There should have been an
ordinance by the LGU to effect an opening
of roads. [MMDA vs Bel Air (2000)]
B. Power to Generate Revenue

LGC Sec.18
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 and
which shall be retained by them
3. Just share in national taxes which shall be
automatically and directly released to them
without need for any further action (Internal
Revenue Allotments)
4. Equitable share in the proceeds from the
utilization and development of the national
wealth and resources within their respective
territorial jurisdictions including sharing the
same with the inhabitants by way of direct
benefits
Fundamental principles governing the exercise
of the taxing and other revenue-raising powers
of LGUs LGC Sec 130
(PE-PUB)
1. Taxation shall be uniform in each LGU;
2. Taxes, fees, charges and other impositions
shall be equitable and based as far as
practicable on the taxpayers ability to
pay; levied and collected only for public
purposes;
not
unjust,
excessive,
oppressive, or confiscatory; not contrary
to 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 be left
to any private person;
4. The revenue shall inure solely to the

benefit of, and be subject to disposition
by, the LGU, unless otherwise specifically
provided herein; and
5. Each LGU shall, as far as practicable,
evolve a progressive system of taxation.
Common Limitations on the Taxing Powers of
LGUs Sec 133. LGC
1. Income tax (except when levied on banks
and financial institutions)
2. Documentary stamp tax
3. Estate tax
4. Customs duties, registration fees of vessels
and all other kinds of customs fees and
charges
5. Taxes, fees and charges and other
impositions upon goods carried in or out of,
or passing through, the territorial jurisdiction
of local government units in the guise of
charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees or charges in
any form whatsoever upon such goods or
merchandise
6. Taxes, fees or charges on agricultural and
aquatic products when sold by marginal
farmers or fishermen
7. Taxes on business enterprises certified by
the BOI as pioneer or non-pioneer for a
period of 6 and 4 years, respectively, from
date of registration
8. Excise taxes
9. Percentage taxes or VAT
10. Taxes on the gross receipts of transportation
contractors and persons engaged in the
transportation of passengers or freight, and
common carriers
11. Taxes on premiums paid by way of
reinsurance or retrocession
12. Taxes, fees, charges for the registration of
motor vehicles and for the issuance of all
kinds of licenses or permits for the driving
thereof, except tricycles
13. Taxes, fees, or other charges in Phil.
products actually exported, except as
otherwise provided therein
14. Taxes, fees or charges, on Countryside and
Barangay Enterprises and cooperatives duly
registered under RA 6810 and the
Cooperative Code
15. Taxes, fees, or charges of any kind on the
National Government, its agencies and
instrumentalities
272
Fundamental principles governing the financial

affairs, transactions and operations of LGUs
LGC sec 305
1. No money shall be paid out of the local
treasury except in pursuance of an
appropriations ordinance or law;
2. Local government funds and monies shall
be spent solely for public purposes;
3. Local revenue is generated only from
sources expressly authorized by law or
ordinance, and collection thereof shall at all
times be acknowledged properly;
4. All monies officially received by a local
government officer in any capacity or on any
occasion shall be accounted for as local
funds, unless otherwise provided by law;
5. Trust funds in the local treasury shall not be
paid out except in fulfillment of the purpose
for which the trust was created or the funds
received;
6. Every officer of the LGU whose duties
permit or require the possession or custody
of local funds shall be properly bonded, and
such officer shall be accountable and
responsible for said funds and for the
safekeeping thereof in conformity with the
provisions of law;
7. Local governments shall formulate sound
financial plans, and the local budgets shall
be based on functions, activities, and
projects, 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 of
their component units and provide for
equitable allocation of resources among
these component units;
10. National planning shall be based on local
planning to ensure that the needs and
aspirations of the people as articulated by
the local government units in their respective
local development plans are considered in
the formulation of budgets of national line
agencies or offices;
11. Fiscal responsibility shall be shared by all
those exercising authority over the financial
affairs, transactions, and operations of the
local government units; and
12. The LGU shall endeavor to have a balanced
budget in each fiscal year of operation
Cases
Sec 234 withdrew all exemptions from real
property taxes, even GOCCs when the
beneficial use of the property has been
granted
to
a
taxable
person
for
consideration or otherwise. MCIAA is a
GOCC and an instrumentality, therefore,
RPT exemption granted under its charter is

withdrawn [MCIAA vs Marcos (1997)]
Tax exemption of property owned by the
Republic refers to properties owned by the
Government and by its agencies which do
not have separate and distinct personalities
(unincorporated entities). The properties of
NDC belong to the Government. [NDC vs
Cebu, (1992)]
LGUs, in addition to administrative
autonomy, also enjoy fiscal autonomy. LGUs
have the power to create their own sources
and revenue, in addition to their equitable
share in the national taxes as well as the
power to allocate resources in accordance
with their own priorities. A basic feature of
local fiscal autonomy is the automatic
release of the shares of the LGUs in the
national internal revenue. This is mandated
by no less than the constitution. Any
retention is prohibited. [Pimentel v Aguirre
(2000)]
C. Eminent Domain
LGC Sec.19
Eminent Domain -- It is the ultimate right of the
sovereign power to appropriate not only public
but private property of citizens within the
territorial sovereignty to public purpose [Charles
River Bridge vs. Warren Bridge, (1837)]
Requisites for a Valid Exercise of Eminent
Domain (COP-JO)
a. Through the Chief Executive of LGU
b. Acting pursuant to an ordinance
c. For the purposes of:
Public use or welfare
For the benefit or the poor and the
landless
d. Payment of just compensation
Amount determined by proper court
Based on fair market value at the time of
the taking
e. Valid and definite offer made
Right by the State to immediately take
possession:
Upon filing of expropriation proceedings
Upon deposit with proper court of at least
15% of the fair market value of the property
Article 35 IRR of LGC
Offer to buy private property for public use
or purpose shall be in WRITING. It shall
specify the property sought to be acquired,
the reasons for the acquisition, and the price
offered.
273
If the owners accept the offer in its entirety,

a contract of sale shall be executed and
payment made
If the owner/s are willing to sell their property
but at a price higher than that offered to
them, the local chief executive shall call
them to a conference for the purpose of
reaching an agreement on the selling price.
The chairman of the appropriation or finance
committee of the Sanggunian, or in his
absence, any member of the Sanggunian
duly chosen as its representative, shall
participate in the conference. When an
agreement is reached by the parties, a
contract of sale shall be drawn and
executed.
The contract of sale shall be supported by
the following documents:
Resolution
of
the
Sanggunian
authorizing the local chief executive to
enter into a contract of sale. The
resolution shall specify the terms and
conditions to be embodied in the
contract.
Ordinance appropriating the amount
specified in the contract, and
Certification of the local treasurer as to
availability of funds together with a
statement that such fund shall not be
disturbed or spent for any purpose other
than to pay for the purchase of the
property involved.
Illustrations of Eminent Domain

There is no need to get DAR approval
before expropriation [Camarines Sur vs CA
(1993)]
There must be genuine necessity of a public
character. There is no genuine necessity if
another road more ideal is available.
[Meycauyan vs IAC (1988)]
The ordinance which requires cemeteries to
set aside a portion of their lots to paupers is
not an exercise of police power, but a taking
without compensation. [QC vs Ericta (1983)]
Eminent domain may be exercised over
easements (property rights), not just lands
or personal property. [NPC vs Jocson
(1992)]
Necessity does not contemplate the
economic relief of a few families devoid of
any other public advantage [Manila vs
Arellano (1950)]
Eminent domain requires an ordinance, not
just a resolution. Res judicata does not
apply to expropriation cases [Paranaque vs
VM Realty (1998)]
Just compensation shall be determined at
the time of taking, NOT at the time of filing
complaint Although the general rule in

determining just compensation in eminent
domain is the value of the property as of the
date of filing of the complaint, the rule
admits of an exception: where the SC fixed
the value of the property as of the date it
was taken and not at the date of the
commencement
of
the
expropriation
proceedings. Finally, while sec.4, Rule 67 of
the Rules of Court provides that just
compensation shall be determined at the
time of the filing of the complaint for
expropriation, such law cannot prevail over
the Local Government Code, which is
substantive law. [Cebu vs Apolonio (2002)]
It is possible that the purpose for
expropriation is changed after such is
granted. [Republic vs CA (2002)]
Immediate Entry by the LGU

Requisites for immediate entry of LGU:
1. Filing of complaint for expropriation sufficient
in form and substance
2. The deposit of the amount equivalent to
15% of the fair market value of the property
to be expropriated based on the current tax
declaration [Bardilion v Masili (2003)]
Upon compliance with the requirements
for immediate entry, the issuance of a
writ of possession becomes ministerial.
No hearing is required for the
issuance of the writ. The LGC did not
put a time limit as to when a LGU may
immediately take possession of the
property. As long as the expropriation
proceedings have been commenced
and the deposit made, the LGU cannot
be barred from praying for the issuance
of writ of possession. [City of Iloilo v
Legaspi (2004)]
Socialized Housing
The UDHA and the Expropriation by the
LGUs i.e. Sec.9 of the Urban Land and
Housing Act, which speaks of PRIORITIES
in acquisition) should be read in connection
with Sec.10 (MODES of acquisition).
If the land sought to be expropriated is
located in urban areas and fall under the
UDHA, the LGU must allege compliance
with Secs.9 and 10 for their suit to prosper.
Otherwise, it would be premature.
Cases
Under the Urban Land and Housing Act,
there is a priority in expropriation of which
the properties of the government or any of
its subdivision rank number one and
274
privately owned properties ranked last. Also,

the said act provides that expropriation
should be the last alternative, giving way to
other modes of acquisition like community
mortgage and swapping. Otherwise it would
be deprivation of property. [Filstream
International Inc v CA (1998)]
socialized housing. It exempted small

property owners. The elements of small
property owners are: 1. Those owners of
real property which consists of residential
lands with an area of not more than 300
sq.meters in highly urbanized cities (800 in
other urban cities); 2. They do not own real
property other than the same. [City of
Manadaluyong v Aguilar (2001)]
The UDHA introduced a limitation on the

size of the land sought to be expropriated for
D. Basic Services and Facilities

LGC Sec . 17
support
Municipality
Agriculture and fishery
extension and on-site
research services and
facilities
Health services
Same; health centers

and clinics
Social welfare services
Same
General hygiene and

sanitation
Solid waste collection
Same
Katarungang
Pambarangay
Maintenance of roads,
bridges
and
water
supply systems
Infrastructure facilities
(e.g.
plaza,
multipurpose hall)
Information and reading
center
Satellite
market
or
public
Solid waste disposal

system
or
environmental
management system
N/A
Road,
bridges,
communal
irrigation,
artesian wells, drainage,
flood control
Municipal
buildings,
cultural centers, public
parks
Information services, tax
and
marketing
information systems and
public library
Public
markets,
slaughterhouses
Implementation
of
community-based
forestry projects
Province
Agricultural
extension
and on-site research
services and facilities;
organization of farmers
and
fishermens
cooperatives
Same,
including
hospitals and tertiary
health services
Same, including rebel
returnees
and
evacuees,relief
operations
population
development services
N/A
Similar to those
municipality
City
See municipality
province
and
275
See municipality
province
and
See municipality
province
and
See municipality
province
and
N/A
for
Upgrading
and
modernization of tax
information
and
collection services
Enforcement of forestry
laws,
limited
to
community-based
forestry
projects,
pollution control law,
small-scale mining law,
mini-hydroelectric
See municipality
province
and
See municipality
province
and
See municipality
province
and
See municipality
province
See municipality
province
and
and
Barangay
Agricultural
services
Barangay
Municipality
Province
projects
purposes
City
for
local
School Buildings
Public cemetery
Tourism facilities
Police, fire station, jail
E. Reclassification of Lands
Tourism
development
and
promotion
programs
Same
Industrial research and
development services
Low cost housing and
other mass dwellings
Investment
support
services
Inter-municipal
telecommunication
services
By a City or Municipality
Through an ordinance passed by
Sanggunian
After conducting public hearings
Provide manner of disposition
Land ceases to be economically
feasible and sound for agricultural
purposes as determined by the
Department of Agriculture
Land shall have substantially
greater
economic
value
for
residential, commercial, or industrial
purposes, as determined by the
Sanggunian
Limited to the following percentage of
the total agricultural land area at the
time of passage of the ordinance
For
highly
urbanized
and
independent component cities: 15%
For component cities and first to the
third class of municipalities: 10%
For
fourth
to
sixth
class
municipalities: 5%
Limited
by
RA
6657
or
the
Comprehensive Agrarian Reform Law
Agricultural lands distributed to
agrarian reform beneficiaries shall
not be affected
Conversion into other purposes
governed by sec.56 RA6657
Nothing repealing, amending or
modifying RA6657
and
and
and
Same
Same
Same
Same
Adequate
communication
and
transportation facilities.
By the President
When public interest so requires
Upon recommendation of the NEDA
May authorize a city or municipality to
reclassify lands in excess of the limits
Approval of national agency

When
required,
shall
not
be
unreasonably withheld
Failure to act: deemed approval
Within 3 mos. from receipt
Proper and complete application for
reclassification
Comprehensive Land Use Plans
Enacted through zoning ordinances
Shall be the primary and dominant
bases for the future use of land
resources
Factors to consider-requirements for
o Food production
o Human settlements
o Industrial expansion
LGC Sec. 20
See municipality
province
See municipality
province
See municipality
province
NOTES:
Land use conversion: the act or process of
changing the current use of a piece of
agricultural land into some other use as
approved by the DAR
Reclassification: designation of intended
use of land within the territory. The land is
not currently used as agricultural, although it
is classified as such
Requisites for Reclassification of Land:
(PAO)
1. Ordinance passed by Sanguniang Bayan or
Panglungsod
after
public
hearings
conducted for the purpose
276
2. Agricultural land must either:

a. cease to be economically feasible
and sound for agricultural purposes as
determined by the Department of
Agriculture, OR
b. have substantially greater economic
value for residential, commercial, or
industrial purposes, as determined by
the Sanggunian concerned
3.
Reclassification shall be limited to the
percentages of the total agricultural land
area at the time of the passage of the
ordinance as prescribed by the LGC
Cases
The authority of a municipality to fix and
collect rents for water supplied by its
waterwork system is expressly granted by
law. However, even without these provisions
the authority of the municipality to fix and
collect fees from its waterworks would be
justified from its inherent power to
administer what it owns privately. [NAWASA
v Dator (1967)]
Take note however, of:

o LGU need not obtain approval of DAR to
convert or reclassify land from agri to nonagri [Fortich v Corona (1998)]
o DAR is mandated to approve or disapprove
applications for conversion [Roxas v CA
(1999)]
F. Corporate Powers
LGC Sec 22
Every LGU, as a corporation has the

following powers: (SC-PCSO)
a. To have continuous succession in its
corporate name
b. To sue and be sued
c. To have and use a corporate seal
d. To acquire and convey real or personal
property
e. To enter into contracts
f. To exercise such other powers as are
granted to corporations
Limitations: as provided in LGC and
other laws
Corporate Seal
LGUs may continue using, modify, or
change their existing corporate seals
Newly established LGUs or those
without corporate seals
May create own corporate seals
Registered with the DILG
Change of corporate seal shall be
registered with the DILG
Contract entered into by local chief
executive un behalf of LGU
Prior authorization by Sanggunian
Legible copy of contract posted at a
conspicuous place in the
Provincial capitol or
City, municipal or barangay hall
If the property is owned by the municipality

in its public and governmental capacity, the
property is public and Congress has
absolute control over it; if the property is
owned in its private or proprietary capacity,
then it is patrimonial and Congress has no
absolute control. In which case, the
municipality cannot 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 Grants
LGC Sec.23
Who may negotiate:

Local Chief Executive (upon authority of
Sanggunian)
What are negotiated
Financial grants or donations in kind in
support of basic services or facilities
From local and foreign assistance
agencies
Approval by national agency concerned
No necessity of securing clearance from
national agency
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 to both Houses of Congress and the
President
Nature
Amount
Terms
Within 30 days upon signing of grant
agreement or deed of donation
277
G. Local Legislative Power

LGC Sec.48-59
Presided by (Sec.49):
Vice-governor or vice-mayor or punong
barangay will vote only in case of a tie
because he is not a member of the
Sanggunian. [Perez vs Dela Cruz
(1969)]
Exercised by (Sec.48)
Sangguniang panlalawigan for the
province
Sangguniang panglungsod for the city
Sangguniang bayan for the municipality
Sangguniang barangay for the barangay
The incumbent local chief executive

acting as the chief executive may not
preside over the sessions of the
Sanggunian. Why? To ensure better
delivery of public services and provide a
system of checks and balances between
the executive and legislative. [Gamboa
vs Aguirre]
Inability of the above: members present

and constituting a quorum shall elect
from among themselves a temporary
presiding officer
Who shall certify within 10 days from the

passage of the ordinances enacted and
resolutions adopted by the sanggunian
in the session over which he temporarily
presided
Internal Rules of Procedure (Sec.50):

st
Adopted/update on the 1
regular
session following election of its
members- within 90 days
Provides for:
Organization of the Sanggunian and
the election of its officers
Standing Committees
o Creation
(Including
the
committees on appropriations,
women and family, human
rights,
youth
and
sports
development,
environmental
protection, and cooperatives;
the general jurisdiction of each
committee
o Election of the chairman and
members of each committee
Order and calendar of
business for each session
Legislative process
Parliamentary procedures (including

the conduct of members during
sessions)
Discipline of members for disorderly
behavior and absences (without
justifiable cause for 4 consecutive
sessions)
Penalty: censure, reprimand, or
exclusion
from
the
session,
suspension for not more than 60
days or expulsion
o Suspension
or
expulsion:
requires concurrence of at least
2/3 vote of all Sanggunian
members
o A member convicted by final
judgment to imprisonment of at
least 1 year for any crime
involving moral turpitude shall
be automatically expelled from
the Sanggunian
Other
rules
as
the
Sanggunian may adopt
Quorum (Sec.53)
Quorum. Majority of all members of the
Sanggunian who have been elected and
qualified
Questions of quorum is raised: the
presiding officer shall immediately
proceed to call the roll of the members
and announce the results
No quorum: the presiding officer may
declare a recess until such time as a
quorum is constituted
OR a majority of the members
present may adjourn from day to
day and may compel the immediate
attendance of any member absent
without justifiable cause by arresting
the absent member and present him
at the session
No business shall be transacted
Sessions (Sec.52)
Regular sessions: fixed by resolution on
st
1 day of the session immediately
following the election of its members
Minimum numbers of regular
sessions:
once
a
week
(panlalawigan, panlungsod, bayan)
and twice a month for the
Sangguniang Barangay
Special session: may be called by the
local chief executive or by a majority of
the members of the Sanggunian-cause:
when public interest demands
Written notice: served personally at
the members usual place of
278
residence at least 24 hours before

the session
Unless otherwise concurred in by
2/3 vote of the Sangguniang
members present, there being a
quorum, no other matters may be
considered except those stated in
the notice
Open to the public
UNLESS a closed-door session is
ordered by an affirmative vote of a
majority of the members present
(there being a quorum)
In the public interest or for reasons
of secrecy, decency or morality
No 2 sessions may be held in a single
day
Journal and record of its proceedings
which may be published upon resolution
of the Sanggunian concerned
How many votes required

General Rule: Majority of the members
constituting a quorum
When the enactment itself specifies the
number of votes required, such
requirement will govern over the general
rule specified in the charter or the LGC,
when such enactment is to be amended.
Why? Because the municipal authorities
are in a better position to determine the
votes required. [Casino vs CA (1991)]
Approval, Veto and Review of Ordinances

Every ordinance shall be presented to
the governor or mayor, as the case may
be
Approves: affix his signature on
each and every page
Disapproves: veto it and return the
same with his objections to the
Sanggunian
o Override: 2/3 vote of all its
members making the ordinance
effective even without the
approval of the local chief
executive concerned
o Veto communicated to the
Sanggunian within 15 days in
the case of a province, and 10
days in the case of a city or a
municipality; otherwise, the
ordinance shall be deemed
approved
Veto (Sec.55): local chief executive may
veto any ordinance on the ground that it
is ultravires or prejudicial to the public
welfare, stating his reasons for writing
Veto an ordinance or resolution only

once
Local chief executive (except the
punong barangay) power to veto
any particular item or items
o An appropriations ordinance
o Ordinance
or
resolution
adopting a local development
plan and public investment
program
o Ordinance
directing
the
payment of money or creating
liability
o (where the veto shall not affect
the item or items which are not
subjected to)
Review of (component) City or
Municipal Ordinances
o Within 3 days after approval, the
secretary shall forward to the
Sangguniang Panlalawigan for
review, copies of approved
ordinances and the resolutions
approving the local development
plans and public investment
programs formulated by the
local development councils
o Within 30 days after the receipt
of copies, the Sangguniang
Panlalawigan shall examine the
documents or transmit them to
the provincial attorney, or if
there be none, to the provincial
prosecutor for examination.
Provincial attorney or prosecutor
shall: within 10 days from
receipt, inform the Sanggunian
in writing of his comments or
recommendations
Finding:
beyond
the
power
conferred, it shall declare such
ordinance or resolution invalid in
whole or in part--action entered in
the minutes and shall advise the
corresponding city or municipal
authorities of the action(sec 58).
Any attempt to enforce any
ordinance
or
any
resolution
approving the local development
plan and public investment program,
after the disapproval, shall be
sufficient ground for the suspension
or dismissal of the official or
employee
o No action within 30 days after
submission:
presumed
consistent with the law and valid
Ordinance enacted by the Sangguniang
barangay shall upon approval by the
279
majority of all its members, be signed by

the punong barangay
Review by Sangguniang Panglungsod
or Bayan
o Within 10 days after its enactment,
the sangguniang barangay shall
furnish copies to
o The sangguniang panglungsod or
sangguniang bayan concerned for
review as to whether the ordinance
is consistent with law and city or
municipal ordinances
No action for 30 days from receipt:

ordinance
shall
be
deemed
approved
o Finding: inconsistent with law or city
or
municipal
ordinancesthe
sanggunian shall, within 30 days
from receipt, return the same with its
comments and recommendations to
the sangguniang barangay for
adjustment,
amendment,
or
modification
Effectivity: suspended until such time as
the revision called for is effected
o
Summary of Review of Ordinances
Reviewed by
Furnish
copies
of
ordinances or resolution
within
3 days after approval of ordinance or

resolution
approving
the
local
development
plans
and
public
investment programs formulated by the
local development councils
Period
to
documents
30 days after receipt of copies, after

which the ordinance or resolution is
presumed valid if no action is taken.
Within 30 days, it may also be
transmitted to the provincial attorney or
prosecutor for examination; said atty. or
prosecutor shall give his written
recommendations within 10 days from
receipt of document
Ordinance or resolution is beyond the
power conferred upon the Sanggunian
concerned
examine
Ground
to
invalidate
ordinance or resolution
Barangay Ordinances
Sangguniang panglungsod or
sangguniang bayan
10 days after enactment of ALL
ordinances
280
Component City or Municipality

Ordinances and Resolutions
Sangguniang panlalawigan
30 days after receipt of copies,

after
which
ordinance
is
presumed valid if no action is
taken
Ordinance is inconsistent with

law and city or municipal
ordinances
In such case, the sangguniang
barangay may adjust, amend or
modify the ordinance within 30
days from receipt from the
sangguniang panglungsod or
sangguninang bayan
Effectivity of Ordinances or Resolutions Sec

59
General rule: the same shall take effect
after 10 days from the date a copy is posted
Exception: unless otherwise stated in
the ordinance or the resolution
approving the local development and
public investment program
Ordinances with penal sanctions: gist
shall be published in a newspaper of
general circulation within the province
where the local legislative body
concerned belongs
Absence of any newspaper: posting
shall be made in all municipalities and
cities of the province where the
sanggunian of origin is situated.
Highly urbanized and independent
component cities: the main features of
the ordinance or resolution in addition to
being posted, shall be published in a
local newspaper of general circulation
within the city
Absence of local newspaper: any
newspaper of general circulation
Cases
The LGC does not mandate that no other
business may be transacted on the first regular
session except to take up the matter of adopting
or updating rules. All that the law requires is that
on the 1 regular sessionthe sanggunian
concerned shall adopt or update its existing
rules or procedures. Until the completion of the
adopted or updated rules, the rules of the
previous year may be used. [Malonzo v Zamora
(1999)]
Full disclosure of Financial and Business

Interests of Sanggunian Members
* Conflict of interest
Sec 50
Upon assumption of office, make a full
disclosure of:
His business and financial interests
Professional relationship or any
relation by affinity or consanguinity
within the fourth civil degree
Which he may have with any person,
firm, or entity affected by any ordinance
or resolution which relationship may
result in conflict of interest including:
Ownership of stock or capital, or
investment, in the entity or firm to
which the ordinance or resolution
may apply
Contracts or agreements with any
person or entity which the ordinance
or resolution under consideration
may affect conflict of interest.
TEST: One where it may be reasonably
deduced that a member of a sanggunian may
not act in the public interest due to some private,
pecuniary, or other personal considerations that
may tend to affect his judgment to the prejudice
of the service or the public
Disclosure shall be made in writing and

submitted to the secretary of the sanggunian
Form part of the record of the proceedings
and shall be made in the following manner:
Made before the member participates in
the deliberations on the ordinance or
resolution under consideration
o If the member did not participate
during
the
deliberations,
the
disclosure shall be made before
voting on the ordinance or resolution
on second and third readings
o Made when a member takes a
position or makes a privilege speech
on a matter that may affect the
business
interest,
financial
connections,
or
professional
relationship
Updated rules, the rules of the previous year
may be used.
The signature of the mayor is not a

mere ministerial act, but involves the
exercise of discretion on the part of the
local chief executive. [Delos Reyes v
Incidents of Law-Making (Legislative) Power:
Posting and Publication of:

Tax ordinances and Revenue measures
Sec188
Within 10 days after approval
Certified true copies of all provincial,
city, or municipal tax ordinances or
revenue measures
Published in full for 3 consecutive
days
In a newspaper of local circulation
Where no such newspaper:
posted in at least 2 conspicuous
and publicly accessible places
Ordinance with penal sanctions Sec 511
At prominent places in the provincial
capitol, city, municipal or barangay
hall
281
Minimum period: 3 consecutive

weeks
Publication
In a newspaper of a general
circulation
Within territorial jurisdiction
Except: barangay ordinances
Effectivity:
unless
otherwise
provided on the day following its
publication or at the end of period of
posting, whichever is later
Violation by public officer or
employee
o May be meted administrative
disciplinary action
o Without prejudice to filing of
appropriate civil or criminal
action
Duty of Secretary of Sanggunian:
o Shall transmit official copies to
the chief executive of Official
Gazette
o Within 7 days following approval
of ordinance
o Purpose for publication
o If with penal sanction: for
archival and reference purposes
Judicial Intervention
Rules of Court, Rule 63, Sec.4
Actions involving the validity of a local

government ordinance:
Prosecutor or attorney of the LGU
involved shall be notified and entitled to
be heard;
Alleged to be unconstitutional: Solicitor
General shall also be notified and
entitled to be heard.
The failure of the SolGen to appear in the lower

court to defend the constitutionality of an
ordinance is not fatal to the case. The
determination of the question of WON the
SolGen should be required to appear in any
action involving the validity of any treaty,
law, executive order, rule or regulation is a
matter left to the discretion of the Court.
Inasmuch as the said requirement is not
mandatory, but discretionary, noncompliance
therewith affected neither the jurisdiction of the
trial court nor the validity of the proceedings.
[Homeowners Association of the Phil. Inc. v
Municipal Board of Manila (1968)]
282
A.
B.
C.
D.
E.
F.
Local
Initiative
and
DEFINITION
REQUIREMENTS
PROCEDURE
EFFECTIVITY OF LOCAL PROPOSITIONS
LIMITATIONS ON INITIATIVES
LIMITATIONS UPON LOCAL LEGISLATIVE
BODIES
A. Definition
NOTE:
Garcia v COMELEC (1994): Both a resolution
and an ordinance may be the proper subjects
of an initiative or a referendum
(Based on LGC Sec. 120-127 and RA 6735:
AN ACT PROVIDING FOR A SYSTEM OF
INITIATIVE AND REFERENDUM)
Initiative: legal process whereby the

registered voters of a LGU may directly
propose, enact, or amend any ordinance
Referendum: legal process whereby the

registered voters of the LGUs may approve,
amend or reject any ordinance enacted by
the sanggunian.
Who may exercise all registered voters

of the provinces, cities, municipalities and
barangays
B. Requirements
a. Referendum or initiative affecting a
resolution or ordinance passed by the
legislative assembly of a province or city:
o petition must be signed by at least 10%
of the registered voters in the province
or city,
o of which every legislative district must
be represented by at least 3% of the
registered voters therein;
o Provided, however, that if the province
or city is composed only of 1 legislative
district, then at least each municipality in
a province or each barangay in a city
should be represented by at least 3% of
the registered voters therein.
b. Referendum or initiative on an ordinance
passed in a municipality: petition must be
signed by at least 10% of the registered
voters in the municipality, of which every
barangay is represented by at least 3% of
the registered voters therein
c.
Referendum or initiative on a barangay

resolution or ordinance: must be signed
by at least 10% of the registered voters in
said barangay
C. Procedure
a. Not less than 1,000 registered voters in case
of provinces and cities, 100 in case of
municipalities, and 50 in case of barangays,
may file a petition with the local legislative
body, respectively, proposing the adoption,
enactment, repeal, or amendment, of any
law, ordinance or resolution
b. If no favorable action thereon is made by
local legislative body within 30 days from its
presentation, the proponents through their
duly
authorized
and
registered
representative may invoke their power of
initiative, giving notice thereof to the local
legislative body concerned
c. 2 or more propositions may be submitted in
an initiative
d. Proponents shall have 90 days in case of
provinces and cities, 60 days in case of
municipalities, and 30 days in case of
barangays, from notice mentioned in
subsection (b) hereof to collect the required
number of signatures
e. The petition shall be signed before the
Election Registrar, or his designated
representative, in the presence of a
representative of the proponent, and a
representative of the regional assemblies
and local legislative bodies concerned in a
public place in the LGU
f. If the required number of signatures are
obtained, the COMELEC shall then set a
date for the initiative for approval of the
proposition within 60 days from the date of
certification by the COMELEC in case of
provinces and cities, 45 days in case of
municipalities, and 30 days in case of
barangays
D. Effectivity of Local Propositions

If the proposition is approved by a majority of the
votes cast, it shall take effect 15 days after
certification by the COMELEC
E. Limitations on Initiatives
a. The power of local initiative shall not be
exercised more than once a year.
283
Chapter
IV.
Referendum
Chapter IV. LOCAL INITIATIVE and REFERENDUM
b. Initiative shall extend only to subjects or

matters which are within the legal powers of
the local legislative bodies to enact.
c. If at any time before the initiative is held, the
local legislative body shall adopt in toto the
proposition presented, the initiative shall be
cancelled. However, those against such
action may, if they so desire, apply for
initiative in the manner herein provided.
F. Limitations Upon Local Legislative

Bodies
Any proposition or ordinance or resolution
approved through the system of initiative and
referendum as herein provided shall:
a. not be repealed, modified or amended, by
the local legislative body concerned within 6
months from the date therefrom, and
b. may be amended, modified or repealed by
the local legislative body within 3 years by a
vote of 3/4 of all its members:
c. Provided, however, that in case of
barangays, the period shall be 18 months
after the approval.
Local Referendum Any local legislative

body may submit to the registered voters of
autonomous region, provinces, cities,
municipalities and barangays for the
approval or rejection, any ordinance or
resolution duly enacted or approved.
Courts are not precluded from declaring null

and void any proposition approved for
violation of the Constitution or want of
capacity of the local legislative body to enact
the said measure.
Chapter IV. LOCAL INITIATIVE and REFERENDUM
Cases
A resolution may be the subject of an

initiative or referendum. [Garcia vs
COMELEC (1994)]
Initiative: power of the people to propose

bills and laws, and to enact or reject them at
the polls independent of the legislative
assembly.
Referendum is the right reserved to the
people to adopt or reject any act or measure
which has been passed by a legislative body
and which in most cases would without
action on the part of electors become law.
These law-making powers belong to the
people and the COMELEC only exercises
administration and supervision of the
process. Hence, COMELEC cannot control
or change the substance or the content of
the legislation.
COMELEC should have prepared for an
initiative, not a referendum. [SBMA v.
COMELEC (1996)]
284
Chapter V. MUNICIPAL LIABILITY
Chapter V. Municipal Liability

(asked in 1994)
A.
B.
C.
SPECIFIC PROVISIONS MAKING LGUS

LIABLE
LIABILITY FOR TORTS, VIOLATION OF THE
LAW AND CONTRACTS
PERSONAL LIABILITY OF PUBLIC OFFICIAL
A. Specific Provisions making LGUs

Liable
LGC, Sec. 24
LGUs and their officials are not exempt from
liability for death or injury to persons or damage
to property.
Civil Code, Art. 34
When a member of a city or municipal police
force refuses or fails to render aid or protection
to any person in case of danger to life or
property, such peace officer shall be primarily
liable for damages, and the city or municipality
shall be subsidiarily responsible therefor.
Civil Code, Art. 2180, par. 6
The obligation imposed by Article 2176 is
demandable not only for ones own acts or
omissions, but also for those of persons for
whom one is responsible. X X X The State is
responsible in like manner when it acts through
a special agent; but not when the damage has
been caused by the official to whom the task
done properly pertains, in which case what is
provided in Article 2176 shall be applicable.
Civil Code, Art. 2189
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 of roads, streets, bridges,
public buildings, and other public works under
their control or supervision.
B. Liability for Torts, Violation of the

Law and Contracts
WHEN LGU IS LIABLE
CASE
(1) If the LGU fails to
perform a governmental
function
(e.g., maintenance of
roads under CC Art.
2189, rendering aid and
protection under CC Art.
34)
(2)
If
engaged
in
proprietary functions,
DEFENSE
Exercise of due diligence
in the selection and
supervision is not a
defense.
Defense of due diligence

in the selection and
supervision available only
if the function involved is

a corporate function.
RATIO: because this
defense is available only
to private employers.
WHEN LGU IS NOT LIABLE
If damage resulted from an act of LGU in the
performance of governmental functions
Illustrations
1. On Contract
RULE: The LGU is liable only for contracts that
are intra vires.
The Doctrine of Implied Municipal Liability
provides that an LGU may become obligated
upon an implied contract to pay reasonable
value of the benefits accepted by it as to
which it has the general power to contract
[Cebu vs IAC (147 S 447)]
BUT the LGU may not be estopped in order
to validate a contract which the LGU is not
authorized to make EVEN IF it has accepted
the benefits thereunder [San Diego vs Mun.
Of Naujan (107 P 112)]
A private individual who deals with a LGU is
imputed with constructive knowledge of the
extent of the power or authority of the LGU
to enter into contracts. Thus, ordinarily, the
doctrine of estoppel does not lie against the
LGU.
2. On Tort
If in the performance of a governmental
function, the LGU is NOT liable
o The prosecution of crimes, even if injury
occurs [Palafox vs Ilocos Norte (1958)]
If in the performance of a proprietary
function, the LGU is liable
o The improper grant of a ferry service
franchise [Mendoza vs de Leon (1916)]
o NOTE: Municipal corporations liability to
private persons for the wrongful
exercise of the corporate powers is the
same as that of a private corporation or
individual [Mendoza vs de Leon (1916)]
o Deaths caused by a collapsed stage in a
town fiesta [Torio vs Fontanilla (1978)]
o Back pay or wages of employees
illegally dismissed, including those
involving
primary
governmental
functions (eg policemen) [Guillergan v
Ganzon (1966)]
3. By Express Provision of Law
Article 2189, CC
o When a person falls in an open manhole
in the city streets [Manila vs Teotico
(198)]
285
When a person steps on a rusted nail in

a flooded public market [Jimenez vs
Manila (150 S 510)]
o When accidents are caused by defective
roads even if the road does not belong
to the LGU as long as it exercises
control or supervision over said road
[Guilatco vs Dagupan (171 S 382)]
o Damages suffered through accidents in
national roads under the control and
supervision of an LGU (cause is unsafe
road conditions, especially when there is
gross negligence [Municipality of San
Juan v. CA (2005)]
o Also exemplary damages may be
granted when public officials acted with
gross negligence [Quezon City v
Dacana (2005)]
Article 2180, CC
o When the State acts through a special
agent [Merritt vs Government (34 P
311)]
Chapter V. MUNICIPAL LIABILITY
4. On Violation of Law
When the Mayor refused to abide by a TRO
issued by the court, he may be held in
contempt [Moday v CA (1997)]
When the LGU does not pay the statutory
minimum wage (mandated by law) even if
there is lack of funds [Racho vs Ilagan,
Isabela (198)]
C. Personal Liability of Public Official

RULE: The public official is personally liable if he
acts beyond the scope of his powers OR if he
acts with bad faith
Illustrations
Mayor exceeding authority in vetoing a
resolution passed by the Sanggunian [Pilar v
Sangguniang Bayan ng Dasol (1984)]
o [Note that under CC27, a public servant
is personally liable for damages for his
refusal or neglect to perform his official
duty]
When the officials incorrectly ordered the

construction of a drug rehabilitation center
[Angeles vs CA (21 S 90)]
When officials illegally dismiss an employee

[Rama vs CA (148 S 49)]
When the official defies an order of

reinstatement of an illegally dismissed
employee [Correa vs CFI (92 S 312)]
The Mayor pays for the back salaries of

an
illegally
dismissed
employee
[Nemenzo vs Sabillano (25 S 1)]
The Governor pays for moral damages
for refusing the reinstatement of an
employee [San Luis vs CA (1989]
A public officer, whether judicial, quasijudicial or executive, is not personally liable

to one injured in consequence of an act
performed within the scope of his official
authority, and in line of his official duty.
[Tuzon v. CA (1992)]
The holding of a town fiesta is a proprietary

function, though not for profit, for which a
municipality is liable for damages to 3rd
persons ex contractu or ex delicto.;
o that under the principle of respondeat
superior the principal is liable for the
negligence of its agents acting within the
scope of their assigned tasks; and
o that the municipal councilors have a
personality distinct and separate from
the municipality, [ Torio v. Fontanilla
(1978)]
Hence, as a rule they are not co-responsible

in an action for damages for tort or negligence
unless they acted in bad faith or have directly
participated in the commission of the wrongful
act.
286
I.
II.
III.
IV.
EXECUTIVE SUPERVISION
CONSULTATIONS
RELATIONS WITH PNP
OTHER RELATIONS
I.
Executive Supervision
A. 1987 Constitution, Art. X, Sec. 2 and 4

Sec. 4. The President of the Philippines shall exercise
general supervision over local governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with
respect to component barangays
shall ensure that the acts of their component

units are within the scope of their prescribed
powers and functions.
GENERAL RULE: The President has control of

all executive departments, bureaus and offices.
Doctrine of Qualified Political Agency. All

executive and administrative departments
are adjuncts of the Executive. The acts of
the secretaries of departments, performed
and promulgated in the regular course of
business are presumptively acts of the Chief
Executive.
EXCEPTION: Local Government Units

The President has no power of control over
local governments, unlike in executive
offices, departments and bureaus. [Torre vs
Bayot (1974)]
Illustrations
The constitutional provision limiting the
authority of the President over LGUs to
general Supervision is unqualified. Hence, it
applies to all powers of LGUs, corporate and
political alike [Hebron vs Reyes (1958)]
The Sec. of Justice cannot entertain any

protest involving the election of the
Federation of Barangays. Otherwise, he will
have control over LG officials. Worse,
ordering a new election is contrary to
supervision [Taule vs Santos (1997)]
The Pres. power of general supervision

extends to the Liga ng mga Barangay.
Hence, the DILG Sec, as an alter ego of the
Pres., may not amend the guidelines
promulgated by the National Liga Board
[Bito-Onon vs Fernandez (2001)]
The DILG Sec may not be appointed as

interim caretaker to manage and administer
the affairs of the Liga. Such is tantamount to
control [National Liga ng mga Barangay vs
Paredes (2004)]

Chapter I
(as amended by RA 6975)
The Department of the Interior and Local
Government
DILG has primary role of preserving internal
security
(including
suppression
of
insurgency)
AFP has primary role in preserving external
security
Supportive role of PNP
Upon call of President upon
recommendation of peace and order
council
In areas where there are serious threats
to national security and public order
insurgents
have
gained
considerable
foothold
in
the
community thereby necessitating
the employment of bigger tactical
forces and the utilization of higher
caliber armaments and better
armored vehicles
National Supervision over LGU
Supervision is exercised:
1. To ensure that acts of local
governments and their component
units are within the scope of their
prescribed powers and functions.
(Sec. 4, Art. X, Constitution; Sec.
25(a) LGC)
2. To ensure that laws are faithfully
executed in autonomous regions.
(Sec. 16, Art. X, Constitution)
General Supervision
President of the Philippines shall
exercise general supervision over:
Local governments (Sec.4, Art.
X, Constitution; Sec. 25(a)
LGC)
Autonomous regions (Sec.16,
Art. X, Constitution)
o Direct supervision over
Provinces
Highly urbanized cities
Independent component cities
o Through the province, with respect
to
287

National Government and LGUs
Chapter VI. INTERGOVERNMENTAL RELATIONS
National Agencies
National Agencies (Sec. 25 (b),(c),(d)
LGC)
With
project
implementation
functions: ensure participation of
LGUs
in
planning
and
implementation of national projects;
With field units or branches in an
LGU: furnish the local chief
executive of the LGU concerned
with monthly reports including duly
certified budgetary allocations and
expenditures;
Upon request of LGU, the President
may direct the appropriate national
agency
to
provide
financial,
technical or other forms of
assistance at no extra cost to the
LGU concerned.
The petitioners are under the impression that the
1987 Constitution has left the President mere
supervisory powers, which supposedly excludes
disciplinary authority and the power of
investigation.
It is a mistaken impression because
supervision is not incompatible with
disciplinary authority, and investigating is not
inconsistent with overseeing in supervision,
although it is a lesser power than altering in
control. The Constitution did not, for the sake of
local autonomy, intend to deprive the legislature
or the President of all authority over municipal
corporations,
in
particular,
concerning
discipline. [Ganzon v. CA (supra)]
Sec. 187 of the LGC authorizes the Secretary of
Justice to review only the Constitutionality or
legality of the tax ordinance and, if warranted, to
revoke it on either or both of these grounds. He
is not permitted to substitute his own
judgment for the judgment of the local
government that enacted the measure. An
officer in control may order the act undone, or
redone, or may even decide to do it himself.
Thus, the act of the DOJ Secretary in declaring
the Manila Revenue Code null and void for noncompliance with the requirements of the law was
not an act of control but of mere supervision.
[Drilon v. Lim (1994)]
II. Consultations
LGC Sec. 2(c), 26, 27
A. Declaration of Policy
Policy of the State: require all national

agencies and offices to conduct periodic
consultations (before implementation of any
project or program) with
appropriate local government units
nongovernmental
and
people's
organizations
other concerned sectors of the
community

Sec. 26, LGC
Duty of national agency or governmentowned or controlled corporation

Involved in planning and implementation
of any project
That may cause pollution, climatic
change, depletion of non-renewable
resources, loss of crop land, rangeland,
or forest cover, and extinction of animal
or plant species
Consultation with LGUs, nongovernmental
organizations, and other sectors concerned
C. Prior Consultation
Sec. 27, LGC
No project or program shall be implemented:
1. Without prior consultation
with LGUs, non-governmental and
people's organizations, and other
concerned sectors of the community,
conducted by all national agencies and
offices (Sec. 2(c) LGC)
with
LGUs,
nongovernmental
organizations,
and
other
sectors
concerned (Sec. 26 LGC)
o conducted by the national agency or
government-owned or -controlled
corporation
o authorized or involved in the
planning and implementation of any
project or program that may cause
- pollution
- climatic change
- depletion of non-renewable
resources
- loss of crop land, rangeland, or
forest cover
- extinction of animal or plant
288
Component cities
Municipalities
Through the city and municipality,
with respect to barangays
o
o
species
Explain the goals and objectives
Explain its impact upon the people
and the community in terms of
environmental or ecological balance
Measures that will be undertaken to
prevent or minimize the adverse
effects
2. Without prior approval

concerned
of sanggunian
No project or program shall be implemented

by government authorities unless:
1. the consultations mentioned above are
complied with; and
2. sanggunian concerned gave prior
approval LGC, Sec. 27
Occupants in areas where such projects are
to be implemented shall not be evicted
unless appropriate relocation sites have
been provided, in accordance with the
Const.
3. Without provision for appropriate relocation

sites for occupants who will be evicted
The provisions on consultation apply only to

national programs and/or projects which are
to be implemented in a particular local
community. Moreover, Sec. 27 of the LGC
should be read in conjunction with Sec. 26 thus,
the projects and programs mentioned in Sec. 27
should be interpreted to mean projects and
programs that may:
o cause pollution
o bring about climactic change
o cause the depletion of non-renewable
resources
o result in the loss of crop land, range-land or
forest cover
o eradicate certain animal or plant species
from the face of the planet; and
o call for the eviction of a particular group of
people residing in the locality where the said
project/program will be implemented [Lina v.
Pao (2001)]
NOTES:
It shall be the duty of every national agency
or GOCC authorized or involved in the
planning and implementation of any project
or program that may cause pollution,
climactic change, depletion of nonrenewable resources, loss of crop land,
rangeland or forest cover, extinction of
animal of plant species:
1. To consult with the LGUs, NGOs and
other sectors concerned; and
2. To explain: (a) the goals and objectives of
the project or program (b) its impact upon
the people and the community in terms of
environmental or ecological balance; (c)
the measures that will be undertaken to
prevent or minimize the adverse effects
thereof LGC, Sec. 26
III. Relations with Philippine National

Police
LGC, Sec. 28
Powers of Local Chief Executives over the

Units of the PNP
Extent of operational supervision and
control of local chief executives shall be
governed by RA6975 (DILG Act- of
1991) and other rules and regulations
over the following:
o police force
o fire protection unit
o jail
management
personnel
assigned
in
their
respective
jurisdictions
Participation
of
Local
Government
Executives in the Administration of the PNP
RA 8551, Sec. 62-65
Operational supervision and control: power

to direct, superintend, and oversee the dayto-day functions of police investigation of
crime, crime prevention activities, and traffic
control
includes the power to direct the
employment and deployment of units or
elements of the PNP, through the
station commander, to ensure public
safety and effective maintenance of
peace and order within the locality
City and municipal mayors shall have the

following authority over the PNP units in
their respective jurisdictions:
1) Authority to choose the chief of police
from a list of 5 eligibles recommended
by the provincial police director,
preferably from the same province, city
or municipality
2) Authority to recommend to the provincial
director the transfer, reassignment or
detail of PNP members outside of their
respective city or town residences
3) Authority to recommend from a list of
eligibles previously screened by the
289
MEMORANDUM CIRCULAR NO. 521993

All officers and employees of National
Government agencies and offices, including
GOCCs, to strictly comply with the provisions of
the LGC (and its IRR) on consultation
peace
and
order
council
the
appointment of new members of the
PNP to be assigned to their respective
cities or municipalities without which no
such appointments shall be attested
Control and supervision of anti-gambling
operations shall be within the jurisdiction of
local government executives
Governors and mayors, upon having been

elected and qualified as such, are
automatically deputized as representatives
of the National Police Commission in their
respective jurisdiction
As deputized agents of the Commission,
local government executives can inspect
police forces and units, conduct audit,
and exercise other functions as may be
duly authorized by the Commission
Grounds for suspension or withdrawal of

deputation:
1. frequent unauthorized absences
2. abuse of authority
3. providing material support to criminal
elements
4. engaging in acts inimical to national
security
or
which
negate
the
effectiveness of the peace and order
campaign
Cases
Local executives are only acting as
representatives of NAPOLCOM. Unless
countermanded by NAPOLCOM, their acts
are valid. [Carpio vs Exec Sec (1992)]
The authority of the mayor to choose the

chief of police is very limited. In reality, he
has no power of appointment; he has only
the limited power of selecting one from
among the list of recommendees. In effect,
the power to appoint the chief of police is
vested in the Regional Director. [Andaya v.
RTC (1999)]
IV. Other Relations

A. Inter-local Relations
Sec 23-33
The province, through the governor, shall
ensure that every component city and
municipality within its territorial jurisdiction
acts within the scope of its prescribed
powers and functions. Highly urbanized
cities and independent cities shall be

independent of the province.
The city or municipality, through the city or
municipal mayor, shall exercise general
supervision over component barangays
Review of Executive Orders:
o Governorfor E.O.s of component
cities and municipal mayors
o City or Municipal Mayorfor E.O.s
of punong barangays.
o Task of reviewing executive: ensure
that the E.O.s are within the powers
granted by law and in conformity
with provincial, city or municipal
ordinances
The LGU may secure the opinion of the ff (in
proper order):
1. municipal legal officer,
2. provincial legal officer,
3. provincial prosecutor
LGUs may consolidate their efforts, services
and resources for their common benefit
1. Requisite:
proper
ordinance,
through a public hearing for the said
purpose
B. Relations
with
organizations
Non-Governmental
Sec 34-36
LGUs shall promote the establishment of
peoples
and
nongovernmental
organizations
They may form joint ventures to engage in
the delivery of certain basic services,
capacity building and livelihood projects, etc.
The LGU may provide assistance (financial
or otherwise) for economic, sociallyoriented, environmental or cultural projects
o Requisites: Action by local chief
executive and concurrence of the
sanggunian; The project is to be
implemented within the territorial
jurisdiction of the LGU
290
Chapter VII. LOCAL OFFICIALS
Chapter VII. Local Officials

I.
ELECTIVE LOCAL OFFICIALS

A. QUALIFICATIONS
B. DISQUALIFICATIONS
C. MANNER OF ELECTION
D. TERM OF OFFICE
E. RULES ON SUCCESSION
F. RECALL
G. DISCIPLINE
1. ADMINISTRATIVE ACTION
2. PENALTIES
i) SUSPENSION
ii) REMOVAL
3. POWER OF TRIBUNALS
4. ADMINISTRATIVE APPEALS
5. EFFECT OF RE-ELECTION
II. APPOINTIVE LOCAL OFFICIALS
A. APPOINTMENTS
B. DISCIPLINE
C. REMOVAL
D. OFFICIALS
COMMON
TO
ALL
MUNICIPALITIES,
CITIES
AND
PROVINCES
III. PROVISIONS APPLICABLE TO ELECTIVE
AND APPOINTIVE OFFICIALS
A. PROHIBITED INTERESTS
B. PRACTICE OF PROFESSION
C. PROHIBITION AGAINST APPOINTMENT
IV. LOCAL BOARDS AND COUNCILS
A. LOCAL SCHOOL BOARD
B. LOCAL HEALTH BOARD
C. LOCAL DEVELOPMENT COUNCIL
D. LOCAL PEACE AND ORDER COUNCIL
I.
of Highly Urbanized Cities

- Mayor or
- Vice-mayor of
independent component
cities, component cities,
or municipalities
- Member of the
Sangguniang Panlungsod
or Sangguniang Bayan
- Punong barangay or
member of the
- Sangguniang Kabataan
A. Qualifications
1.
2.
3.
4.
5.
Candidate for
- Governor
- Vice-governor
- Member of the
Sangguniang
Panlalawigan
- Mayor
- Vice-mayor
- Member of the
Minimum Age at
Election Day
23
18
18
at least 15 years of
age but not more than
18 years of age on
election day
(as amended under
RA 9164)
The COMELEC may not deny due course or

cancel
a
certificate
without
proper
proceedings. To receive and acknowledge
receipt of the certificates of candidacy is a
ministerial duty of the COMELEC. The
COMELEC does not have discretion to give
or not to give due course to the certificate. It
may not look into matters not appearing on
their face. [Cipriano v. COMELEC (2004)]
Citizenship
(Asked in 1992)
Elective Local Officials
LGC Sec. 39
(Asked in 1992, 2003, 2005)
(ACRRA)
Citizen of the Philippines
Registered voter in the place where s/he
seeks to be elected
Residency, in place where s/he seeks to be
elected, for at least 1 year immediately
preceding the day of the election
Able to read and write Filipino or any other
local language or dialect
Age requirement:
21
The LGC does not specify any particular

date or time when the candidate must
possess
citizenship,
unlike
the
requirements for residence and age. An
official begins to discharge his functions only
upon his proclamation and on the day the
law mandates his term of office to begin.
Since Frivaldo reassumed his citizenship on
the very day the term of office began, he
was therefore already qualified to be
proclaimed, to hold office and to discharge
the functions and responsibilities thereof.
Nevertheless, qualifications for public office
are continuing requirements which must be
possessed at the time of appointment and
during the entire tenure. [Frivaldo v.
COMELEC (1996)]
A mere application for repatriation does not
amount to automatic reacquisition of Phil.
Citizenship. Official action by the proper
authorities is required. [Labo vs Comelec
(1992)]
Residency
The residence requirement is rooted in the

desire that officials of districts or localities be
acquainted with the needs, difficulties, and
other matters vital to the common welfare of
291
The term residence is to be understood as

referring to domicile or legal residence, i.e.,
the place where a party actually or
constructively has his permanent home,
where he, no matter where he may be found
at any given time, eventually intends to
return and remain (animus manendi).
Unlike citizenship, which may be
complied with even on the day the
candidate assumes office, residency
requires that the candidate must have
been a resident of the municipality for
at least 1 year immediately preceding
the day of the election. [Coquilla v.
COMELEC (2002)]
Age
The SK official must not have turned 21
before his election. The petitioner, being 21
years and 11 mos. old when she assumed
office, was over the age limit. [Garvida vs
Sales (1997)]
B. Disqualifications
(Asked in 1986, 1993, 1994, 1999, 2001)
LGC, Sec. 40
The following persons are disqualified from

running for any elective local position:
FR-ACIDS
1. Sentenced by final judgment for
an offense involving moral turpitude

or for an offense punishable by 1
year or more of imprisonment, within
2 years after serving sentence
2. Removed from office as a result of an
Administrative case
3. Convicted by final judgment for violating
the oath of allegiance to the Republic
4. With Dual citizenship
5. Fugitives from justice in criminal or nonpolitical cases here or abroad
6. Permanent Residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of this LGC
7. Insane or feeble-minded
Second-Placer Rule
(asked in 2003)
The ineligibility of a candidate receiving the

majority of votes does not entitle the
eligible candidate receiving the next
highest number of votes to be declared
winner.
The rule would be different if the electorate,
fully aware of a candidates disqualification
so as to bring such awareness within the
realm of notoriety, would nonetheless cast
the votes in favor of the ineligible candidate.
In such case, the electorate may be said to
have waived the validity and efficacy of their
votes by notoriously applying their
franchises or throwing away their votes in
which case, the eligible candidate obtaining
the next highest number of votes may be
deemed elected. [Labo v. COMELEC
(1992)]
RA 8295: An Act Providing for the Proclamation

of a Lone Candidate for any Elective Office in a
Special Election, and for other purposes
Sec. 4. Disqualification
In addition to the disqualifications in Sec. 12
and 68 of the Omnibus Election Code and
LGC Sec. 40
whenever the evidence of guilt is
strong, the following persons are
disqualified to run in a special election
Any elective official who has
resigned from his office by
accepting an appointive office or for
whatever
reason
which
he
previously occupied but has caused
to become vacant due to his
resignation
Any person who, directly or
indirectly,
coerces,
bribes,
threatens, harasses, intimidates or
actually causes, inflicts or produces
any violence, injury, punishment,
torture,
damage,
loss
or
disadvantage to any person or
persons aspiring to become a
candidate or that of the immediate
member of his family, his honor or
property that is meant to eliminate
all other potential candidate [also
constitutes an election offense
under
Sec.5
RA8295
and
punishable under Sec. 264 of the
Omnibus Election Code]
292
the constituents. The actual, physical and

personal presence is substantial enough
to show his intention to fulfill the duties
of mayor and for the voters to evaluate
his qualifications for the mayorship. A very
legalistic, academic and technical approach
to the residence requirement does not
satisfy the rationale for the said requirement.
[Torayno v. COMELEC (2000)]
Retention
and
Re-
Sec 5. Civil and Political Rights and Liabilities:

(1) Those seeking elective public office in the
Philippines shall meet the qualification for
holding such public office as required by the
Constitution and existing laws and, at the
time of the filing of the certificate of
candidacy, make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer and oath.
(2) Those appointed to any public office shall
subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its
duly constituted authorities prior to
assumption of office. Provided, that they
renounce their oath of allegiance to the
country where they took that oath;
(3) That right to vote or be elected or appointed
to any public office in the Philippines cannot
be exercised by, or extended to, those who
are:
candidates for or are occupying any
public office in the country of which they
are naturalized citizens; and/or
in active service as commissioned
officers in the armed forces of the
country which they are naturalized
citizens.
Grounds for Disqualification
Sec. 40, LGC
Moral Turpitude:
Fencing (Dela Torre v. COMELEC
[1996])
Direct bribery (Magno v. COMELEC
[2002])
Dual Citizenship:
Not an automatic disqualification; filing
of certificate of candidacy is sufficient to
renounce foreign citizenship (declaration
under oath of maintenance of true faith
and allegiance to the Constitution of the
Philippines) [Valles v. COMELEC
(2000)]
Dual citizenship is not equivalent to

dual
allegiance
(a
person
simultaneously owes, by some positive
act, loyalty to 2 or more states). What is
prohibited is the latter. [Mercado v.
Manzano (1999)]
Dual citizenship is the result of the
concurrent application of different laws
of two or more states, wherein a person
is simultaneously considered a national

by the said states.
Fugitive from justice:

Intent to evade must be the compelling
factor which animates ones flight from
a particular jurisdiction. There is intent if
there is knowledge by the fleeing subject
of an already instituted indictment or of a
promulgated judgment of conviction.
[Rodriguez v. COMELEC (1996)]
Green Card holder:

(asked in 1993, 1994)
As provided in Caasi v. Court of Appeals,
a Filipino citizens acquisition of a
permanent resident status abroad
constitutes an abandonment of his
domicile
and
residence
in
the
Philippines. Ugdoracions acquisition of a
lawful permanent resident status in the
United
States
amounted
to
an
abandonment and renunciation of his
status as a resident of the Philippines; it
constituted a change from his domicile of
origin, which was Albuquerque, Bohol, to a
new domicile of choice, which is the USA.
[Ugdoracion v. COMELEC (2008)]
Other grounds:
Vote-buying (upon determination in a
summary administrative proceeding)
[Nolasco v. COMELEC (1997)]
Removal by administrative proceedings:
(perpetual disqualification) [Lingating v.
COMELEC (2002)])
Removal of a candidate prior to LGC
cannot be used as a ground for
disqualification [Grego v. COMELEC
(1997)]
Should be a final determination
[Lingating v. COMELEC (2002)]
Subsequent re-election cannot be
deemed a condonation if there was
already a final determination of his guilt
before the re-election [Reyes v.
COMELEC (1996)]
When
re-election
considered
a
condonation: if the proceedings are
abated due to elections. In this case,
there is no final determination of
misconduct [Malinao v. Reyes (1996)]
Effect of probation:
Probation has no effect to applicability
of Sec. 40(a) as it only suspends the
execution of the sentence [dela Torre
v COMELEC (1996)]
293
RA 9225: Citizenship
acquisition Act of 2003
C. Manner of Election
Regular Members of
Sangguniang
Panlalawigan,
Sangguniang
Panlungsod
and
Sangguniang Bayan
(Asked in 1995, 2001, 2005, 2006, 2008)

Elected at large by
qualified voters in
respective units
Elected by registered
voters
of
the
Katipunan
ng
Kabataan
Elected by district:
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 local

elections
immediately
following
the
ratification of the 1987 Constitution shall
serve until noon of June 30, 1992;
No official shall serve for more than 3
consecutive terms for the same position;
Voluntary renunciation of the office for
any length of time is not an interruption
in the continuity of his service for the full
term for which he was elected
Barangay officials and members of the

Sangguniang Kabataan (Sec. 43 LGC)
Term of office: 3 years
After the regular election of barangay
officials on the second Monday of May
1994
Existing sub-provinces converted into

regular provinces (Sec. 462 LGC)
New legislative districts continue to be
represented in Congress by the dulyelected representatives of the original
districts out of which the new provinces
or districts were created until their own
representatives are elected in the next
regular congressional elections and
qualified
st
nd
1 and 2 -class
provinces= 10
regular members
rd
3 and 4th-class = 8
5th and 6th-class =6
Members
Provided:
If province has more
than 5 districts, each
district shall have 2
sangguniang
panlalawigan
members.
Elected at large
Presidents of Leagues of Sanggunian

Members
of
component
cities
&
municipalities shall serve as ex officio
members of the sangguniang panlalawigan
concerned.
Presidents of Liga ng mga Barangay and
Pederasyon ng SK elected by their
respective chapters shall serve as ex officio
members of the sangguniang panlalawigan,
panlungsod and bayan
There
shall
be
one
(1)
sectoral
representative from the following sectors:
o Women;
o Workers; and
o 1 from any of the following:
urban poor;
indigenous cultural communities;
disabled persons; or
any other sector determined by the
sanggunian within 90 days prior to
holding of next local election
COMELEC shall promulgate rules for
election of such sectoral representatives.
Vacancy in the offices occupied by

incumbent elected officials or resulting
from expiration of their terms of office in
case of a negative vote in the plebiscite
results:
by appointment of the President;
appointees shall hold office until
their successors are elected in the
regular local elections following the
plebiscite
After conversion of the newly-created

province, President shall appoint:
Governor
Vice-governor
Members of the sangguniang
panlalawigan
who shall hold office until their
successors are elected in the next
regular local elections and qualified.
294
Sec. 41, LGC

Governor
Vice-governor, Mayor
Vice-mayor
(city/municipal)
Punong Barangay
SK Chairman
D. Term of Office
reelection or election for another elective

position. On the other hand, Section 66 has
been retained; thus, the limitation on
appointive officials remains - they are still
considered ipso facto resigned from their
offices upon the filing of their certificates of
candidacy.
Qualified
appointive
officials
and
employees in the career service of the
subprovinces at the time of their
conversion into regular provinces shall
continue in office in accordance with
civil service law, rules and regulations.
RA 9164: Synchronized Barangay

Sangguniang Kabataan Elections (2002)
and
Substantial distinctions clearly exist between

elective
officials
and
appointive
officials. The former occupy their office by
virtue of the mandate of the electorate. They
are elected to an office for a definite term
and may be removed therefrom only upon
stringent conditions. On the other hand,
appointive officials hold their office by virtue
of their designation thereto by an appointing
authority. Some appointive officials hold
their office in a permanent capacity and are
entitled to security of tenure while others
serve at the pleasure of the appointing
authority.
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 same
position
Reckoned from the 1994 barangay
elections
Voluntary renunciation of office for any
length of time shall not be considered as
an interruption
RA 9006 Fair Election Act (2001)
Sec. 14
An elective official running for any office
other than the one which he is holding in a
permanent capacity, is no longer considered
ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Note: Sec. 14 of RA 9006 expressly

repealed Sec. 67 of BP 881 or the Omnibus
Election Code which states that any
elective official, whether national or local,
running for any office other than the one
which he is holding in a permanent capacity,
except for President and Vice-President,
shall be considered ipso facto resigned from
his office upon the filing of his certificate of
candidacy.
Section 14 of RA 9006 did not repeal
Section 66 of the Omnibus election Code,
leaving intact Section 66 thereof which
imposes a limitation to appointive officials
and considers them ipso facto resigned from
office upon filing of their certificate of
candidacy
Another substantial distinction between the

two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative
Code of 1987 (Executive Order No. 292),
appointive officials, as officers and
employees in the civil service, are strictly
prohibited from engaging in any partisan
political activity or take part in any election
except to vote. Under the same provision,
elective officials, or officers or employees
holding political offices, are obviously
expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining
Section 66 of the Omnibus Election Code,
the legislators deemed it proper to treat
these two classes of officials differently with
respect to the effect on their tenure in the
office of the filing of the certificates of
candidacy for any position other than those
occupied by them.
Farias v. Executive Secretary (2003):
By the repeal of Section 67, an elective

official who runs for office other than the one
which he is holding is no longer
considered ipso facto resigned therefrom
upon
filing
his
certificate
of
candidacy. Elective officials continue in
public office even as they campaign for
Since the classification justifying Section 14

of Rep. Act No. 9006, i.e., elected
officials vis-a-vis appointive
officials,
is
anchored upon material and significant
distinctions and all the persons belonging
under the same classification are similarly
treated, the equal protection clause of the
Constitution is, thus, not infringed.
What constitutes term of office?
The Constitution contemplates service by

local officials for three consecutive terms as
295
Effect of judicial declaration that the officials

proclamation is void:
His assumption of office in 1995 cannot be
deemed to have been by reason of a valid
election. Also, he did not fully serve the
1995-98 mayoral term by reason of
involuntary relinquishment of office as he
was ordered to vacate his post before the
expiration of the term. Although he served
the greater portion of the said term, he
should not be considered disqualified
because he did not serve three full
consecutive terms. [Lonzanida v. COMELEC
(1999)]
Effect of Recall Elections:
An official has served for three consecutive
terms. He was elected in the recall election
for the term of his predecessor. There was
no violation of the 3-term rule.
The Constitution does not require that
the interruption be a full term of 3 years.
The clear intent of the framers of the law is
that interruption for any length of time is
sufficient to break an elective local
officials continuity of service. [Socrates
v. COMELEC (2002)]
Effect of Conversion of the LGU:
The mayor of a municipality held his post for
three terms. During his last term, the
municipality became a city and he was
declared hold-over mayor by the charter.
The said mayor should not be allowed to run
again. If he were allowed to do so, he would
have served the same people for a term
more than what is allowed by law [Latasa v.
COMELEC (2003)]
E. Rules on Succession
1. Successors in permanent vacancies in office
of local chief executive.
Sec. 44, LGC: (Asked in 1995, 1996, 2002,
2008)
Permanent vacancy entails that an elective
local official:
DR VaReReQI
fills a higher vacant office;
refuses to assume office;
fails to qualify;
dies;
is removed from office;
voluntarily resigns; or
is otherwise permanently incapacitated
to discharge the functions of his office.
Office where
Permanent
Vacancy Occurs
Governor
Mayor
Who Succeeds into Office

Vice-governor
Vice-mayor
Office
of
the
governor or [and]
vice-governor,
mayor or [and] vicemayor
Highest
ranking
sanggunian member;
In case of his permanent
inability, the 2nd highest
ranking
sanggunian
member;
Subsequent vacancies are
filled automatically by the
other
sanggunian
members according to
their ranking.
Office
of
the
Punong Barangay
Highest
ranking
sanggunian
barangay
member;
In case of his permanent
inability, the 2nd highest
ranking
sanggunian
member.
A tie between/ among the highest ranking

sanggunian members is resolved by drawing
of lots.
Successors under S44, LGC serve only for

the unexpired terms of their predecessors.
The ranking in the sanggunian is based on

the immediately preceding local election:
Votes obtained by the winning candidate
-------------------------------------------Total number of registered voters in each district
296
a result of an election. The term limits for

elective local officials must 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 elective local 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)]
If automatic succession as provided in S44

does not apply, vacancy is to be filled in by
appointment made as follows:
Office where Permanent

Vacancy Occurs
Member of Sanggunian
Panlalawigan
or
of highly urbanized cities
and
independent
component cities
Member of Sangguniang
Panlungsod of component
cities
and
the
Sangguniang Bayan
Member
of
the
Representation of the
youth and the barangay in
the sanggunian
3. Temporary vacancy in the office of the local

chief executive.
Sec. 46, LGC.
(Asked in 2002)
Examples of local chief executives

temporary incapacity to perform duties for
physical/legal reasons:
leave of absence;
travel abroad;
suspension from office.
General rule: Vice-governor, city/ municipal

vice-mayor, or the highest ranking
sangguniang barangay member shall
automatically exercise the powers and
perform the duties and functions of the local
chief executive.
Exception:
The
power
to
appoint/suspend/dismiss employees can
be exercised only if the period of
temporary incapacity exceeds 30
working days.
Who Succeeds into

Office
Person appointed by the
President, through the
Executive Secretary

governor

mayor,
upon
recommendation of the
concerned
Official next in rank of
the
organization
concerned
General Rule: The appointee under Sec. 45

must be a nominee of the political party
under which the sanggunian member
(whose elevation to the position next higher
in rank created the vacancy) had been
elected.
Conditions sine qua non: There must be a
nomination and certificate of membership
from the highest official of the political party
or else the appointment is:
null and void ab initio; and
a ground for administrative action
against the responsible official.
If sanggunian member who caused vacancy
does not belong to any political party, the
local chief executive shall appoint a qualified
person, upon recommendation of the
sanggunian.
The appointee under S45 serves the
unexpired term of the vacant office.
Exception: Sangguniang barangay.
If the vacancy pertains to barangay or youth
representation in the sanggunian, the
vacancy is automatically filled by the official
next in rank of the organization concerned.
If the local chief executive is traveling within

the country but outside his territorial
jurisdiction for a period not exceeding 3
consecutive days, he may designate in
writing the officer-in-charge.
General rule: The local chief executive

cannot authorize any local official to assume
the powers/duties/functions of his office,
other than the vice-governor, city/municipal
vice-mayor, or highest ranking sangguniang
barangay member.
The authorization shall specify the powers

and functions that the officer-in-charge shall
exercise.
Exception: The power to appoint,
suspend and dismiss employees.
If the local chief executive fails/refuses to

issue the authorization, the vice-governor,
city/municipal vice-mayor, or highest ranking
sangguniang barangay member has right to
assume the powers, duties, and functions of
the office on the 4th day of absence.
Exception:
The
power
to
appoint/suspend/dismiss employees.
Office where
Temporary
Vacancy
Occurs
Governor
Mayor
Punong
barangay
Who Temporarily Succeeds

into Office
Vice-governor (automatically)
Vice-mayor (automatically)
Highest ranking sanggunian
member (automatically)
297
2. Permanent vacancies in the sanggunian.

Sec. 45, LGC (Asked in 1996, 2002)
1) Person designated in
writing by the said local
chief executive
Authorization shall
specify the powers
and functions that the
designate will
exercise, except the
power to appoint,
suspend, or dismiss
employees
2) Vice-governor, vicemayor or highest
member, if the local chief
executive fails or refuses
to designate
In this case,
assumption into office
th
shall be on the 4
day of absence of the
local chief executive
(automatically)
Cases
The LGC is silent on the mode of
succession when there is a temporary
vacancy in the office of the vice-governor.
In this case, there was a vacancy when the
vice-governor automatically assumed the
governorship pending the determination of
who is the local chief executive. Because of
such circumstances, the President, through
the Secretary of Local Government, may
make the temporary appointment. [Menzon
v. Petilla (1991)]
A vice-governor who is concurrently an

acting governor is actually a quasi-governor.
Being the acting governor, the vice-governor
can no longer continue to simultaneously
exercise the duties of the latter office, since
the nature of the duties of the governor
hinders him from discharging his duties for
such 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 presiding officer.
[Gamboa v. Aguirre (1999)]
The governor has the power to fill a vacancy
in the Sangguniang Bayan caused by a
member not belonging to any political party.
It is the same manner as where the member
belonged to a political party. Where there is
no political party to make the nomination,
the Sanggunian where the vacancy occurs
must be considered authority for making the
recommendation. The appointing authority is

limited to the appointment of those
recommended
to
his
office.
The
recommendation is a condition sine qua non
for the validity of the appointment. [Farias
v. Barba (1996)]
4. Termination of the Temporary Incapacity:
Upon submission to the sanggunian of a

written declaration that he has reported back
to office.
If the temporary incapacity is due to
legal causes, he must also submit the
necessary documents showing that the
legal causes no longer exist.
5. Approval of Leaves of Absence.

Sec. 47, LGC.
LOCAL OFFICIAL
for governors;
mayors of
1)highly urbanized
cities or
2)independent
component cities
for vice-governors;
for city/municipal
vice-mayors
for city/municipal
mayors of
component
cities/municipalities
for the sanggunian
panlalawigan,
panlungsod and
pambayan
members;
its employees
for punong
barangays
for sangguniang
barangay members
LOA APPROVED BY:

The President or his
duly
authorized
representative
The
local
executive
chief
The governor
The Vice-governor or
city/municipal
vicemayor
The
mayor
city/municipal
The punong barangay
If the application for LOA is not acted upon

within 5 working days after receipt, the
application is deemed approved.
298
Local
chief
executive
traveling within
the country but
outside
his
territorial
jurisdiction for a
period
not
exceeding three
(3) consecutive
days
Petition must also be posted for 10 to 20 days at

conspicuous places. PROTEST SHOULD BE
FILED AT THIS POINT and ruled with finality 15
days after filing.
Sec. 69-75, LGC

(Asked in 2002)

official by the people before the end of his
term of office. [Garcia v. COMELEC, (1993)]
Who has the power of recall: Power of recall

for loss of confidence is exercised by the
registered voters of the LGU. [S69, LGC]
Effectivity:
Upon
the
election
and
proclamation of a successor in the person of
the candidate receiving the highest number
of votes cast during the election on recall.
Thus, if the official sought to be recalled
receives the highest number of votes,
confidence in him is affirmed and he shall
continue in office. [S72, LGC]
Prohibition on resignation: An Elective local

official sought to be recalled is not allowed
to resign while the recall process is in
progress. [S73, LGC]
Expenses:
The
Annual
General
Appropriations Act contains a provision for a
contingency fund at the disposal of the
COMELEC. [S75, LGC]
RA 9244: An Act Eliminating the

Preparatory Recall Assembly as a Mode of
Instituting
Recall
of
Elective
Local
Government Officials, Amending for the
Purpose 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 voters during the election in which the
local official sought to be recalled was elected.
(Percentage decreases as population of people
in area increases. Also, the supporting voters
must all sign the petition)
Within 15 days after filing, the COMELEC must

certify the sufficiency of the required number of
signatures.
Failure to obtain the required
number automatically nullifies the petition.
Within 3 days from certification of sufficiency,

COMELEC provides the official with a copy of
the petition and causes its publication for 3
weeks (once a week) in a national newspaper
and a local newspaper of general circulation.
COMELEC verifies and authenticates the

signatures.
COMELEC
candidates
announces
acceptance
of
Sec. 71. Election on Recall
COMELEC sets election within 30 days

upon completion of previous section in
barangay/city/municipality proceedings (45
days in case of provinces)
Officials sought to be recalled are
automatically candidates
Cases
A petition for recall that is signed only by the
petitioner but does not bear the names of
the citizens who have allegedly lost
confidence in the official should be
dismissed. [Angobung vs Comelec (1997)]
Whether or not the electorate of the
municipality has lost confidence in their
incumbent mayor is a political question.
Loss of confidence is the formal withdrawal
by the electorate of their trust in a persons
ability to discharge his office previously
bestowed on him by the same electorate.
[Evardone v. COMELEC (1991)]
official by the people before the end of
his term of office. The peoples prerogative
to remove a public official is an incident of
their sovereign power and in the absence of
constitutional restraint, the power is implied
in all governmental operations. Such power
has been held to be indispensable for the
proper administration of public affairs.
[Garcia v. COMELEC (1993)]
The Liga ng mga Barangay and the
Preparatory Recall Assembly are entirely
different entities even if they may have the
same members. [Malonzo vs Comelec
(1997)]
NOTE: Under RA9244, the Congress removed
the Preparatory Recall Assembly as a mode of
recall.
A Regular local election is necessary in order to
replace the local elective official who is sought to
299
F. Recall
Limitations on the Holding of Recalls

Sec. 74.
a. Any elective official may be the subject of a
recall election only once during his term of
office for loss of confidence.
b. No recall shall take place:
1. Within 1 year from the date of
assumption of office of the official
concerned
Rationale: to provide a reasonable
basis for judging the performance of
an elective local official
2. Within 1 year immediately preceding a
regular local election
Rationale: a recall election is
potentially disruptive of the normal
working of the LGU necessitating
additional expenses
Recall, as used in par. b, sec. 74

prescribing the 1-year limitation, refers to
the election itself (not the process of
initiating the recall proceedings). The
purpose of the 1-year limitation from
assumption is to prevent premature action
without having sufficient time to evaluate the
officials performance.
As long as the election is held outside the 1year period, the preliminary proceedings to
initiate recall can be held even before the
end of 1 year from assumption.
The 1-year period before regular local
election does not include the campaign
period. [Claudio v. COMELEC (2000)]
bayan of cities or municipalities in

Metropolitan Manila
Disciplining Authority The President, who

may act through the Executive Secretary
May
still
constitute
a
Special
Investigating Committee in lieu of the
DILG Secretary;
Nothing shall prevent the President from
assuming jurisdiction at any stage of the
proceedings
over
cases
to
be
preliminarily investigated by the DILG; in
such an event, the same shall
immediately be forwarded to the Special
Investigating Committee after it may
have
been
constituted
by
the
Disciplining Authority.
Investigating Authority DILG Secretary

o may
constitute
an
Investigating
Committee in the DILG for the conduct
of investigation
Grounds for administrative action (discipline,

suspension, removal):
MAD-VAD-CO
1. Disloyalty to the Republic of the
Philippines;
2. Culpable violation of the Constitution;
3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of
duty;
4. Commission of any offense involving
moral turpitude or any offense
punishable by at least 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 chief executives and 4 consecutive
sessions in the case of members of the
sanggunian;
7. Application for, or acquisition of, foreign
citizenship or residence of the status of
an immigrant of another country; and
8. Such other grounds as may be provided
by the Local Government Code of 1991;
Republic Act No. 6713; Republic Act No.
3019; Administrative Code of 1987;
Revised Penal Code; and all other
applicable general and special laws.
How Initiated
1. by any private individual or any
government officer or employee by filing
a sworn written complaint (verified)
2. by the Office of the President or any
government agency duly authorized by
G. Discipline
1. Administrative Action
AO 23, as amended by AO 159 (1994) and AO
66 (1999): Prescribing the Rules and
Procedures
on
the
Investigation
of
Administrative Disciplinary Cases
Coverage:
administrative
disciplinary
charges against
the governors, and members of the
sangguniang panlalawigan;
the mayors, vice mayors, and members
of the sangguniang panlungsod of highly
urbanized
cities,
independent
component cities, and component cities;
and
the mayors, vice mayors, and members
of the sangguniang panlungsod or
300
be recalled. This does not include SK elections.

[Paras v. COMELEC (1996)]
Elective Official against

whom
Administrative
Complaint is Filed
Provincial or city official
Municipal official
Barangay official
Where
Complaint
to
File
Office of the President

Sangguniang
Panlalawigan
Sangguniang
Panlungsod
or
Sangguniang Bayan
Cases
Supervision and discipline. The President is
not devoid of disciplinary powers because
he merely has supervisory powers under the
Constitution. Supervision is not incompatible
with disciplining authority. [Ganzon vs CA
(1991)]
Valid delegation. Under AO 23, the
delegation of the power to investigate to the
Sec of Interior is valid. What cannot be
delegated is the power to discipline. [Joson
vs Torres (290 S 279)]
Prejudicial question? The administrative
investigation can proceed even during the
pendency of an appeal of audit findings to
the Commission on Audit [Salalima vs
Guingona (257 S 55)]
Preventive Suspension Sec. 63, LGC

(Asked in 1990, 1996)
1. Sole Objective: to prevent the accused
official from hampering the investigation
with his influence and authority over
possible witnesses and keep him off the
records and other evidence. [Ganzon v.
CA, (1991)]
[cf. suspension as a penalty]
4. May be imposed at any time after the

issues are joined (after respondent has
answered the complaint)
5. No preventive suspension shall be
imposed within 90 days immediately
prior to any local election. If the
preventive
suspension
has
been
imposed prior to the 90-day period
immediately preceding a local election, it
shall be deemed automatically lifted
upon the start of the period
Expiration: the suspended elective

official shall be deemed reinstated in
office
without
prejudice
to
the
continuation of the proceedings against
him [which shall be terminated within
120 days from formal notice of the
case]. However, if the delay in the
proceeding of the case is due to his
fault, or request, other than the appeal
duly filed, the duration of such delay
shall not be counted in computing the
time of termination of the case. (sec. 63
(c))
Compensation: officer shall receive no

salary or compensation during such
suspension; but, upon subsequent
exoneration and reinstatement, he shall
be paid his full salary or compensation,
including such emoluments accruing
during such suspension. (sec. 64)
Who may impose:

President, through
the DILG Secretary
Provincial Governor
Mayor
3. The governor shall, upon the direct

order of the Disciplining Authority,
preventively suspend an elective official
of a component city, who is under formal
administrative investigation by the Office
of the President.
Period:
Any
single
preventive
suspension of local elective officials
shall not extend beyond 60 days;
Provided that, in the event that several
administrative cases are filed against an
elective official:
he
cannot
be
preventively
suspended for more than 90 days
within a single year
on the same ground or grounds
existing and known at the time of
the first suspension.
2. It may be imposed by the Disciplining

Authority in cases where the respondent
is an elective official:
Local Elective
Official of:
provinces
highly urbanized
cities
independent
component cities
municipalities
component city
barangay
Grounds for Preventive Suspension:

when the evidence of guilt is strong
and,
given the gravity of the offense,
there is a great probability that the
continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the records
and other evidence
The provincial governor is authorized to

preventively suspend the municipal mayor any
301
law to ensure that LGUs act within their

prescribed powers and functions
time after the issues have been joined and any

of the following grounds were shown to exist:
o When there is reasonable ground to believe
that the respondent has committed the act
or acts complained of
o When the evidence of culpability is strong
o When the gravity of the offense so warrants
o When the continuance in office of the
respondent could influence the witnesses or
pose a threat to the safety and integrity of
the records and other evidence.
There is nothing improper in suspending an
officer before the charges are heard and before
he is given an opportunity to prove his
innocence. Preventive suspension is allowed so
that respondent may not hamper the normal
course of the investigation through the use of his
influence and authority over possible witnesses.
When a local government official believes that
he has been wrongfully suspended, the proper
procedure is to exhaust administrative remedies,
i.e. seek relief from the DILG Secretary, and not
to file a case in court. [Espiritu v. Melgar (1992)]
Piecemeal suspensions should not be issued. If
there are several administrative cases against a
public official, these cases should be
consolidated for the purpose of ordering
preventive suspension, instead of issuing an
order of suspension for each case. Elective local
officials should be given the benefit of
simultaneous service of suspension. [Ganzon v.
CA (1991)]
NOTE: The ruling in this case as to
simultaneous service of suspension is more of
an exception than the rule, because of the
following circumstances:
o Three separate orders of 60-day preventive
suspension were issued against Ganzon
o Another order of preventive suspension was
issued before the SC promulgated the
decision ruling that suspension should not
be issued piecemeal
o The simultaneous service of suspension will
lessen the harsh effects of whatever ill
motive may be behind the successive
suspension orders issued
Rights of the Respondent Official Full

opportunity to:
o Appear and defend himself in person or
by counsel
o Confront
and
cross-examine
the
witnesses against him
o Require attendance of witnesses and
the production of documentary evidence
in his favor through subpoena or
subpoena duces tecum. (sec. 65)
Due process. The petitioner has the right to

a formal investigation under AO 23. Where
the Sec denied the motion for a formal
investigation and decided the case on the
basis of position papers, the right of the
petitioner was violated. [Joson vs Torres
(290 S 279)]
Form and Notice of Decision

Shall be terminated within 90 days from
start thereof.
Office of the President or Sanggunian
concerned to render decision
Within 30 days from end of
investigation
In writing
Stating clearly facts and reasons
Furnish copies to respondent and
interested parties. (sec. 66 a)
NOTE: Any abuse of the exercise of the power

of preventive suspension shall be penalized as
abuse of authority (Nachura).
2. Penalties
a. Suspension
Limitations: The penalty of suspension:
shall not exceed the unexpired term of
the respondent
shall not exceed a period of 6 months
for every administrative offense
shall not be a bar to the candidacy of
the respondent so suspended as long
as he meets the qualifications required
for the office. (Sec. 66, LGC)
When the respondent has been meted 2 or

more penalties of suspension for 2 or more
administrative offenses, such penalties shall
be served successively (AO No. 159,
Amending AO 23, Prescribing the Rules and
Procedures on the Investigation of
Administrative Disciplinary Cases Against
Elective Local Officials, 1994)
b. Removal
An elective local official may be removed by

order of the proper court. (sec. 60)
The penalty of removal from office as a

result of administrative investigation shall be
considered a bar to the candidacy of the
respondent for any elective position. (sec.
66 c)
[cf. effect of penalty of suspension]
302
Proper court order
Local legislative bodies and/or the Office of

the President cannot validly impose the
penalty of dismissal or removal from service
on erring local elective officials. It is clear
from Sec. 60 of LGC that an elective local
official may be removed from office on
the grounds enumerated above only by
order of the proper court.
Art. 124 (b), Rule XIX of the Rules and
Regulations Implementing the LGC, which
states that an elective local official may be
removed from office by order of the proper
court or the Disciplining Authority whichever
first acquires jurisdiction to the exclusion of
the other is void for being repugnant to Sec.
60, LGC.
But remember if its appointive, OP may
remove. [Pablico v. Villapando (2002)]
Petitioners contest the administrative action
as being violative of Sec. 60, which
mandates that an elective local official may
be removed from office only by order of the
court, since the duration of the suspension
being 12-20 months exceeded their
remaining terms. The suspension was
allegedly tantamount to a removal.
Held: An administrative offense means
every act or conduct or omission which
amounts to, or constitutes, any of the
grounds for disciplinary action. The offenses
for which suspension may be imposed are
enumerated in Section 60.
Assuming for the moment that the Office of
the President is correct in its decisions in
each of the subject four administrative
cases:
It committed no grave abuse of discretion in
imposing the penalty of suspension,
although the aggregate thereof exceeded six
months and the unexpired portion of the
petitioners term of office.
What is important is that the suspension
imposed for each administrative offense did
not exceed six months. [Salalima v.
Guingona (1996)]
3. Power of Tribunals
The Ombudsman
(Asked in 1999, 2003)
The Ombudsman and the Office of the President

have concurrent jurisdiction to conduct
administrative investigations over local elective
officials. The LGC did not withdraw the power of
the Ombudsman under RA 6770. [Hagad v.
Gozo-Dadole (1993)]

Preventive Suspension
under RA 6770
Requirements:
Preventive Suspension
under the LGC
Requirements:
1. the evidence of guilt is 1. there is reasonable

strong; AND
ground to believe that
2. that any of the
the respondent has
following
committed the act or
circumstances
are
acts complained of
present:
2. the evidence of
o the charge against
culpability is strong
the officer or
3. the gravity of the
employee should
offense so warrants;
involve
or
dishonesty,
4. the continuance in
oppression or
office of the
grave misconduct
respondent could
or neglect in the
influence the
performance of
witnesses or pose a
duty;
threat to the safety
o the charges
and integrity of the
should warrant
records and other
removal from
evidence
office; or
o the respondents
continued stay in
office would
prejudice the case
filed against him
Maximum period:
Maximum period:
6 months
60 days
It is not only the Ombudsman, but also his

Deputy, who may sign an order preventively
suspending officials. Also, the length of the
period of suspension within the limits provided
by law and the evaluation of the strength of the
evidence both lie in the discretion of the
Ombudsman. It is immaterial that no evidence
has been adduced to prove that the official may
influence possible witnesses or may tamper with
the public records. It is sufficient that there exists
such a possibility. [Castillo-Co v. Barbers (1998)]
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 the
particular office in relation to which the official is
charged. The imposition of the suspension,
though mandatory, is not automatic or selfoperative. A pre-condition is the existence of a
valid Information, determined at a presuspension hearing. [Segovia v. Sandiganbayan
(1999)]
303
Sandiganbayan
PD 1606, as amended by RA 8249
It is the officials grade that determines his or

her salary, and not the other way around. An
officials grade is not a matter of proof but a
matter of law which the court must take
judicial notice. Under Sec. 444(d) of the
LGC, the municipal mayor shall receive a
minimum
monthly
compensation
corresponding to SG 27. Thus, the cases
filed against the petitioner are within the
exclusive jurisdiction of the Sandiganbayan.
[Llorente v. Sandiganbayan (2000)]
If the law states that a certain officer is
within the jurisdiction of the Sandiganbayan,
the fact that the officer's SG is below 27
does not divest jurisdiction. [Inding v.
RA 8249 provides that as long as one of the
accused is an official of the executive
branch occupying the position otherwise
classified as SG 27 and higher, the
Sandiganbayan exercises exclusive original
jurisdiction. To vest Sandiganbayan with
jurisdiction, public office must be an element
of the crime OR that without the public
office, the crime could not have been
committed. [Rodriguez v. Sandiganbayan
(2004)]
4.
An appeal shall not prevent a decision from

becoming final or executory.
If respondent wins the appeal:
o He shall be considered as having
been placed under preventive
suspension during the pendency of
the appeal.
o If condoned, he shall be paid his
salary and other emoluments during
the pendency of appeal. (sec. 68)
Sec. 68 of the LGC merely provides that an

appeal shall not prevent a decision from
becoming final or executory. As worded,
there is room to construe the provision as
giving discretion to the reviewing officials to
stay the execution of the appealed decision.
[Berces v. Guingona (1995)]
The phrase final or executory in Secs. 67

and 68 simply means that administrative
appeal will not prevent the enforcement of
the decision. [Mendoza vs Lacsina (2003)]
5. Effect of Re-election
Administrative Appeals
Sec. 67
Within 30 days from receipt of decisions:
Decisions of:
Sangguniang
Panglungsod of
component cities
Sangguniang Bayan
Sangguniang
Panlalawigan
Sangguniang
Panglungsod of:
highly urbanized
cities
independent
component cities
May be appealed before:
Re-election renders the administrative

complaint against the local official moot and
academic. A public official cannot be
removed for administrative misconduct
committed during a prior term, since the reelection to office operates as a condonation
of the officers previous misconduct to the
extent of cutting off the right to remove him
therefore. But this rule is applicable only to
administrative cases, not to criminal cases.
(Asked in 2000) [Aguinaldo v. Santos
(1992)]
Sangguniang
Panlalawigan
II. Appointive Officials

[final and executory; may

not be appealed]
A. Appointments
Under the LGC and RAC, the provincial
governor is not authorized to appoint or even
designate a person in cases of temporary
absence or disability. Power resides in the
President or the Secretary of Finance.
[Dimaandal v. COA (1998)]
NOTE: Difference between designation and
appointment In designation, additional tasks
are assigned, but there is no corresponding
salary increase.
The Bases Conversion Act provides that the

mayor of Olongapo shall be appointed
SBMA chairman for the first year of
operations. This violates the constitutional
prohibition
against
appointment
or
304
designation of elective officials to other

government posts. Appointive officials may
be allowed by law or by the primary
functions of his position to hold multiple
offices whereas elective officials are not
allowed, except as otherwise recognized in
the Constitution. The provision also
encroaches on executive power to appoint.
(Asked in 1995, 2003) [Flores v. Drilon
(1993)]
The fact that Section 14 and Section 16

refer only to appointments within the
Executive Department renders conclusive
that Section 15 also applies only to the
Executive Department. This conclusion is
consistent with the rule that every part of the
statute must be interpreted with reference to
the context, i.e. that every part must be
considered together with the other parts,
and kept subservient to the general intent of
the whole enactment. It is absurd to assume
that the framers deliberately situated Section
15 between Section 14 and Section 16, if
they intended Section 15 to cover all kinds
of presidential appointments. [De Castro v.
JBC (2010)]
Once an appointment has been made and

accepted, the appointee acquires a legal
right to the position--the appointing authority
cannot unilaterally revoke it without cause,
notice and hearing. But the CSC may do so
if it decides that the requirements were not
met. [De Rama v. CA (2001)]
CSCs Role in Appointments

It cannot appoint but it can say if a person is
qualified or unqualified. If unqualified, it can
remove the person from office (basis is the
Omnibus Implementing Rules of RAC).
Grounds for RECALL of appointment
(NO-VP)
1. Non-compliance with procedure or criteria
provided in the agencys merit promotion
plan
2. Failure to pass through the agencys
selection/promotion board
3. Violation of existing collective agreement
between management and employees
relative to promotion
4. Violation of other existing civil service law
rules and regulations
In disapproving or approving appointments,

CSC only examines
the conformity of the appointment with
applicable provisions of law
WON
appointee
possesses
the
minimum qualifications and none of the
disqualifications [Mathay v. CSC (1999)]
CSC has no authority to direct that an
appointment of a specific individual be
made. It can only attest to WON the person
chosen may fill the position. According to BP
337, the power to appoint rests exclusively
with the local chief executive and cant be
usurped by anyone else. [Mathay v. CA
(1999)]
The Constitutional prohibition on midnight
appointments applies only to presidential
appointments. They do not apply to LGUs.
For LGUs, appointments of such nature are
valid as long as these meet all the requisites
of a valid appointment.
The Constitutional prohibition on midnight
appointments is confined to appointments
made in the Executive Department and does
not refer to the Members of the Supreme
Court.
Nepotism (asked in 2008)

Mayor is not allowed to appoint wife as head
of Office of General Services even if shes
qualified because of the prohibition against
nepotic appointments. This is based on
Sec. 59 Book 5 of RAC. This prohibition
covers all appointments and original and
personnel actions (promotion, transfer,
reinstatement, re-employment). [Debulgado
v. CSC (1994)]
The mayors appointment was considered

nepotic and therefore prohibited when he
made permanent the appointment of his
daughters husband, who was appointed a
mere temporary post prior to the latters
marriage. [CSC v. Tinaya (2005)]
The appointment of Montuerlo was void

because the matter was never submitted to
the Sangguniang Bayan for its concurrence
or, even if so submitted, no such
concurrence was obtained. Even if there
was a verbal concurrence by the
Sanggunian, such is not the concurrence
required and envisioned under the law.
The Sanggunian, as a body, acts through a

resolution or an ordinance. Absent such
resolution of concurrence, Montuerlos
appointment failed to comply with the
mandatory requirement of Section 443(a)
and (d) of R.A. No. 7160.
305
Without a valid appointment, Montuerlo

acquired no legal title to the Office of
Municipal Budget Officer, even if she had
served as such for ten years. [Montuerlo v.
Ty (2008)]
B. Discipline
The appointing authority is generally the

disciplining authority.
Disciplinary Jurisdiction (sec. 87)

[Except as otherwise provided by law], the
local chief executive may impose:
Removal from service (cf. elective
officials)
Demotion in rank
Suspension for not more than 1 year
w/o pay
- If not more than 30 daysnot
appealable
- If more than 30 daysappealable to
the CSC
Fine not exceeding 6 months salary
Reprimand
Or otherwise discipline subordinate
officials and employees under his
jurisdiction.
No remedy of appeal if the decision of the

administrative case exonerated the officer or
employee. Party adversely affected in PD
807 or The Philippine Civil Service Law
only refers to the government employee
against which the case is filed. [Mendez v.
CSC (1991)]
The City Treasurer has
discipline his subordinates.
authority
to
The power to discipline is specifically granted by

the Revised Administrative Code to heads of
departments, agencies and instrumentalities,
provinces, and cities.
The power to commence administrative
proceedings against subordinate officers is
granted by the Omnibus Rules to the secretary
of department, head of office, head of LGU,
chief of agency, regional director, or person with
sworn written complaint. The City treasurer may
also
motu
proprio
institute
disciplinary
proceedings against subordinates.
These rules must be reconciled with the LGC,
which gives the mayor the authority to institute
administrative and judicial proceedings
against any official or employee of the city. In
cases involving the employees of the city
treasurers office, the mayor must file his
complaint with the treasurers office or with the

DOF. [Garcia v. Pajaro (2002)]
[Sangguniang Bayan of San Andres v. CA
(1998)]:
Requisites
to
constitute
resignation:
1.Intention
to
relinquish a part of the
term
2.Act of relinquishment
3.Acceptance by the
proper authority
(Asked in 2000)
Essential elements of
abandonment:
1. Intent to abandon
2. Overt act by which
the intention is to
be carried into
effect
C. Removal
In interpreting its own rules as it did, the CSC
was acting within its constitutionally delegated
power to interpret its own rules. The CSC, by
ruling that the employee took an automatic leave
of absence, was merely interpreting its own rule
on requirement of approved leave. [City
Government of Makati City v. CSC (2002)]
D. Officials
Common
to
All
Municipalities, Cities and Provinces
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
Secretary to the Sanggunian

Treasurer
Assessor
Accountant
Budget Officer
Planning and Development Coordinator
Engineer
Health Officer
Civil Registrar
Administrator
Legal Officer
Agriculturist
Social Welfare and Development Officer
Environment and Natural Resources Officer
Architect
Information Officer
Cooperatives Officer
Population Officer
Veterinarian
General Services Officer
Exceptions as to appointments by local chief

executive
secretary (appointed by vice-governor or
vice-mayor)
treasurer (appointed by secretary of
Finance)
306
In the barangay, the mandated appointive

officials are the Barangay Secretary and the
Barangay Treasurer, although other officials
of the barangay may be appointed by the
punong
barangay.
III. Provisions Applicable to Elective and

Appointive Officials
A. Prohibited Interests
LGC Sec. 89
Prohibited business and pecuniary interest.
Unlawful for any local government
official/employee to directly or indirectly:
Engage in any business transaction with
LGU local government unit:
in which he is an official/employee;
over which he has the power of
supervision;
with any of its authorized boards,
officials, agents, or attorneys,
if money/property or any thing of
value is to be indirectly transferred
out of the resources of the LGU to
such person or firm;
Hold interests in any cockpit or other
games licensed by an LGU;
Purchase any realty/property forfeited in
favor of the LGU
for unpaid taxes/assessment; or
by virtue of a legal process at the
instance of the LGU.
Be a surety for any person contracting
or doing business with the LGU which a
surety is required;
Possess/use any public property of the
LGU for private purposes.
Other
prohibitions
governing
the
conduct of national public officers
relating to prohibited business and
pecuniary interest:
RA 6713 (Code of Conduct and
Ethical
Standards
for
Public
Officials/EEs);
Other laws.
The variance doctrine applies here. As

applied in this case, the Variance Doctrine
holds that if the crimes charged include the
crimes proved, then there can be a
conviction for the crimes proved. Also, if
crimes proved include the crimes charged,
then there can be a conviction for the crimes
charged. [Teves v. Sandiganbayan (2004)]
Elements of unlawful
intervention
Accused is public officer
Accused has direct or
indirect
financial
or
pecuniary interest in any
business, contract, or
transaction,
WON
prohibited by law
He intervenes or takes
part in his official capacity
in connection with such
interest
Elements of prohibited
interest
Public Officer
He has direct or indirect
financial or pecuniary
interest in any business,
contract, transaction
He is prohibited from
having such interest by
the Const. or law
B. Practice of Profession
LGC, Sec. 90
All governors and mayors are prohibited
from:
o practicing their profession
o engaging in any occupation other than
the exercise of their functions as local
chief executives.
Sanggunian Members may

o Practice their profession
o Engage in any occupation
o Teach in schools
except during session hours
Provided, a member of the Bar
shall not:
(1) Appear as counsel before any
court in any civil case wherein a
local government unit or any
office, agency, or instrumentality
of the government is the
adverse party;
(2) Appear as counsel in any
criminal case wherein an officer
or employee of the national or
local government is accused of
an offense committed in relation
to his office.
(3) Collect any fee for their
appearance in administrative
proceedings involving the local
government unit of which he is
an official; and
(4) Use property and personnel of
the government except when
the
sanggunian
member
concerned is defending the
interest of the government.
307
Doctors of Medicine may practice their

profession even during official hours of work
o only on occasions of emergency
Provided,
that
the
officials
concerned do not derive monetary
compensation therefrom.
in place of the provincial fiscal who has

declined to handle and prosecute its case in
court. [Pillilla v. CA (1994)]
Private Counsel/Lawyers for Elective Local

Officials
General Rule: A Legal Officer, one of the

appointive local officals common to LGUs, is
tasked to represent the LGU in all civil
actions and special proceedings wherein the
LGU or any official thereof, in his official
capacity, is a party. (sec. 481)
By appearing as counsel for dismissed

employees, the city counsellor violated the
prohibition against engaging in practice if such
practice represents interests adverse to the
government. [Javellana vs DILG (212 S 475)]
A municipality cannot hire private counsel to file
a suit in its behalf. The RAC provides that only
the provincial fiscal and the municipal attorney
can represent a municipality or its official in its
lawsuits, except in cases where:
1) original jurisdiction is vested in the SC
2) where the municipality is a party adverse to
the provincial government or the case is
between two municipalities
3) He or his wife/child is pecuniarily involved as
heir, legatee, creditor, etc.
While a private prosecutor is allowed in criminal
cases, private counsel cannot represent LGU
even if in collaboration with an authorized
government lawyer except that in the interest of
substantial justice, the municipality may adopt
work already performed in good faith by the
private attorney which was beneficial to it
provided.
1) no injustice is heaped on adverse party
2) no compensation of any guise is paid.
[Ramos v. CA (1981)]
The municipalitys authority to employ a

private lawyer is expressly limited only to
situations where the provincial fiscal is
disqualified to represent it. For the exception
to apply, the fact that the provincial fiscal
was
disqualified
to
handle
the
municipalitys case must appear on
record. The refusal of the provincial fiscal to
represent the municipality is not a legal
justification for employing the services of
private counsel. Instead of engaging the
services of a special attorney, the municipal
council should request the Secretary of
Justice to appoint an acting provincial fiscal
In resolving whether a local government

official may secure the services of a private
counsel in an action filed against him in his
official capacity, the nature of the action and
the relief sought are to be considered. In
view of the damages sought, which if
granted, could result in personal liability,
respondents could not be deemed to have
been improperly represented by a private
counsel. [Mancenido v. CA (2000)]
NOTES:
Instances when a private lawyer can
represent a LGU
When the municipality is an adverse
party in a case involving the provincial
government or another municipality or
city within the province
Where original jurisdiction is vested with
the SC
Test as to when a local government
official can secure the services of private
counsel: Nature of the action and the relief
that is sought
C. Prohibition against Appointment
No elective official shall be eligible for

appointment or designation in any capacity
to any public office or position during his
tenure [Flores v Drilon (1993)]
Except for losing candidates in barangay
elections, no candidate who lost in any
election shall, within one year after such
election, be appointed to any office in the
government or any GOCC or their
subsidiaries.
IV. Local Boards and Councils

Sec. 98-116
A. Local School Board
Determines the annual supplementary

budgetary needs for the operation and
maintenance of public schools
Authorizes the disbursal of funds from the
Special Education Fund
Serves as an advisory committee to the
Sanggunian concerned on educational
matters
Recommend changes in the names of public
schools.
308
Cases
The Special Education Fund covers the
salary and benefits of extension classes
teachers but not college scholarship funds.
[COA Cebu Province v. Province of Cebu
(2001)]
The requirement that DECS shall consult the
local school board in Sec 99, LGC applies to
appointments made by DECS, not to
appointments made by the Pres. [Osea vs
Malaya (2002)]
B. Local Health Board
Proposes annual budgetary allocations for

the operation and maintenance of health
facilities and services
Serves as an advisory committee to the
sanggunian concerned on health matters
Creates committees which shall advice local
health agencies on personnel and budgetary
matters
C. Local Development Council
Primary duty: to initiate a comprehensive

multisectoral development plan for the LGU
which is submitted to the sanggunian for
approval and assist the corresponding
sanggunian in setting the direction of
economic and social development, and
coordinating development efforts within its
territorial jurisdiction.
D. Local Peace and Order Council
Formulate and recommend such measures

to improve or enhance peace and order and
public safety
Monitor the implementation
Make periodic assessments of the prevailing
peace and order situation
309
Chapter VIII. LOCAL GOVERNMENT UNITS

the
mediation,
conciliation or arbitration
process
Chapter VIII. Local Government Units
B.
C.
D.
THE BARANGAY
1. KATARUNGANG PAMBARANGAY
2. SANGGUNIANG KABATAAN
THE MUNICIPALITY
THE CITY
THE PROVINCE
Quick Facts about Katarungang Pambarangay

- nature of proceedings is contractual
1)
A. The Barangay
LGC Sec. 384-439
The barangay is the basic political unit. Its roles
are:
1. Primary planning and implementing unit of
government policies, plans, programs,
projects and activities in the community;
2. Forum wherein the collective views may be
expressed, crystallized and considered; and
3. Where disputes may be amicably settled.
(Sec 384, LGC)
A barangay captain is a person in authority

and an attack on him would amount to direct
assault. On the other hand, an attack on a
barangay chief tanod who was a mere
bystander (not in the performance of his
duties) at the time the crime was committed, is
not direct assault as he is merely an agent of a
person in authority. [People v. Recto (2001)]
Other EXCLUSIONS: Cases under Sec 412

(b):
1) where the accused is under detention
2) where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings
3) where actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property
and support pendente lite
4) where the action may otherwise be barred
by the statute of limitations
1. Katarungang Pambarangay
LGC Sec. 399-422
The previous law on Katarungang Pambarangay
has already been revised by the LGC and it has
three significant features:[Uy v. Contreras
(1994)]
PD 1508
Authority over criminal
offenses limited to those
punishable
by
imprisonment
not
exceeding 30 days or a
fine not exceeding P200
No similar provision
No similar provision
Local Government Code

Authority over criminal
offenses limited to those
punishable
by
imprisonment
not
exceeding 1 year or a
fine
not
exceeding
P5,000
Disputes arising from the
workplace where the
contending parties are
employed or at the
institution where such
parties are enrolled for
study, shall be brought in
the brgy where such
workplace or institution is
located
Prescriptive periods of
offenses
suspended
during the pendency of
Subject Matter for Amicable Settlement:

All cases EXCEPT those listed under Sec.
408:
EXCLUSIONS:
a. One party is the government or any
subdivision or instrumentality thereof
b. One party is a public officer or employee,
and the dispute relates to the performance
of his official functions
c. Offenses punishable by imprisonment
exceeding 1 yr or a fine exceeding
P5,000.
d. Offenses where there is no private
offended party
e. Dispute involves real properties located in
different cities or municipalities (UNLESS
they submit their dispute to KP)
f. Dispute where parties who actually reside
in barangays of different cities or
municipalities (UNLESS they submit their
dispute to KP)
g. Cases as determined by the President.
2)
Conciliation is a precondition to filing of

complaint in court.
Initiatory pleadings, if filed without
compliance with the precondition MAY be
dismissed on motion of any interested
party on the ground that it fails to state a
cause of action. [Wingarts vsMejia (1995)]
How should the averments be made?
Failure to specifically allege the fact that
there was no compliance with the
barangay
conciliation
procedure
constitutes a waiver of that defense.
General averments are not enough.
[Corpuz vs CA (1997)]
An undated certification that merely states
that the case was set for hearing before
the barangay but the parties failed to
reach an amicable settlement is not the
310
A.
3)
In all KP proceedings, the parties must appear

IN PERSON without the assistance of counsel
or representative.
EXCEPTION: Minors and incompetents may

be assisted by their next-of-kin who are NOT
lawyers.
The Certification to file was improperly

and prematurely issued. No personal
confrontation before a duly constituted
Pangkat took place. [Bonifacio Law
Office vs Belosillo (2002)]
Officers Involved
1. Lupong Tagapamayapa.
i. It is composed of the punong barangay
as chairman and 10 to 20 members. It is
constituted every 3 years.
ii. Powers:
1. Administrative supervision over the
conciliation panels
2. Meet monthly to provide a forum for
exchange of ideas among its
members and the public of matters
relevant to the amicable settlement
of disputes, and to enable various
conciliation panel members to share
with one another their observations
in effecting speedy resolutions of
disputes
3. Other powers and duties as may be
prescribed by law or ordinance
2. Pangkat ng Tagapagkasundo.
There shall be constituted for each
dispute brought before the lupon a
conciliation panel
Consisting of 3 members who shall be
chosen by the parties to the dispute
from the members of the lupon.
If the parties cannot agree on the
pangkat membership, the same shall be
determined by lots drawn by the lupon
chairmen
REPUDIATION of the settlement agreement

may be made by any party to the dispute
within 10 days from the date of settlement
file with the lupon Chairman a statement

to that effect sworn to before him
may be made when consent is vitiated
by:
a) fraud
b) violence
c) intimidation
it shall be sufficient basis for issuance of
the certification for filing a complaint
2. Sangguniang Kabataan
LGC Sec. 423-439
Creation and Composition
There shall be in every barangay a sangguniang
kabataan to be composed of a chairman, seven
members, a secretary and a treasurer. An official
who, during his term of office, shall have passed
the age of 21 shall be allowed to serve the
remaining portion of the term for which he was
elected.
RA 9164 (2002) amended Sec. 424 and 428 of

the LGC by lowering the maximum age of the
members of the Katipunan ng Kabataan and
elective officials of the Sangguniang Kabataan
from 21 to 18 years of age.
An elective official of the Sangguniang

Kabataan should not be more than 21 years
(now 18 years) of age on the day of his
election. Not more than 21 years old is not
equivalent to less than 22 years old.
[Garvida v. Sales (1997)]
SK membership is not a property right

protected by the Constitution. It is only a
statutory right conferred by law. Congress may
amend at any time the law to change or even
withdraw the statutory right. [Montesclaros vs
Comelec (2002)]
B. The Municipality
Effect of the settlement agreement and
arbitration award
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment unless repudiation of the
settlement has been made or a petition to
nullify the award has been filed before the
proper city or municipal court (Section 416)
LGC Sec. 440-447

Quick Facts about the Municipality
May be created, divided, merged, abolished only by
Congress subject to the approval by a majority of he
votes cast in a plebiscite in the LGU directly affected.
Requisites for creation:

a. Ave. Annual income: 2.5M for the last 2 years;
b. Population: At least 25K
c. Territory: 50 square kilometers
311
contemplated Barangay Certification to

File Action. [Mendova vs Afable(2002)]
d.
Creation must not reduce land area,

population or income of original municipality at
the time of said creation to less than minimum
requirements prescribed therein.
The municipal mayor has the authority to

issue permits and licenses for the holding of
activities for any charitable or welfare
purpose [LGC444(b)(3)].
[Olivarez v.
The municipal mayor does not have the
power to issue warrants of arrest. The power
vested by the previous LGC was repealed
by the Consti. [Munez vs Arino (1995)]
The Sangguniang Bayan has the power to
provide
for
the
establishment
and
maintenance of public markets in the
municipality. Here, the SB merely mentioned
the plan to acquire the lot for expansion of
the public market adjacent thereto. Until
there is proper expropriation, the landowner
cannot be deprived of his right over the land.
[Greater Balanga vs Mun of Balanga (1994)]
C. The City
LGC Sec. 448-458
Quick Facts about the City

(i) Ave. Annual income: at least 100M for the last
2 consecutive years (Section 450 of LGC was
amended by RA 9009)
and either one of the following requisites:
(ii) Population: Not less than 150K
(iii) Territory: 100 square kilometers
*
Creation must not reduce land area,
population
or
income
of
original
municipality at the time of said creation to
less
than
minimum
requirements
prescribed therein.
Authority over Officers

The Sangguniang Panlungsod has no
authority to issue subpoenas and punish nonmembers for legislative contempt. The
contempt power of the legislature is sui
generis and local legislative bodies cannot
correctly claim to possess it for the same
reasons that the national legislature does. The
power to subpoena witnesses and punish nonmembers for contempt may not also be implied
in the delegation of legislative power as such
partake of a judicial nature. [Negros Oriental II
Electric
Cooperative
v.
Sangguniang
Panlungsod (1987)]
DBM cannot control amount a city wants to

give its judges as allowance, as long as city
has money to do so. [Dadole v. COA (2002)]
Licenses and Permits

A permit issued by the mayor to a drugstore
not previously cleared with and licensed by the
FDA will be a nullity. However, the issuance of
a mayors permit is not mandatory once it is
shown that the FDA has licensed the operation
of the applicant. The city mayor may only
revoke the permits issued for violation of the
local requirements imposed, not with the
requirements
of
general
laws
and
implementing administrative rules. [Gordon v.
Veridiano II (1988)]
Distinction must be made between the grant of
a license or permit to do business and the
issuance of a license to engage in the practice
of a particular profession. A business permit
cannot, by the imposition of conditions, be
used to regulate the practice of a profession.
[Acebedo Optical v. CA (2000)]
License/permit to do
business
Granted by the local
authorities
Authorizes the person to
engage in business or
some form of commercial
activity
License to engage in a
profession
Board or Commission
tasked to regulate the
particular profession
Authorizes
a
natural
person to engage in the
practice or exercise of his
or her profession
NOTE: The power to issue licenses and permits

necessarily includes the power to revoke, withdraw
or restrict through the imposition of certain
conditions. However, the conditions must be
reasonable and cannot amount to an arbitrary
interference with the business.
The power to suspend or revoke licenses

and permits is expressly premised on the
violation of the conditions of these permits.
The mayor has the power to inspect and
investigate
private
commercial
establishments for any violation of the
conditions of their licenses and permits, but
he cannot order a police raid in the guise of
inspecting the establishments. [Lim vs
Garaybas (2002)]
Only the Sanggunian, not the mayor of the
city, has the power to allow cockpits, stadiums,
etc. Without an ordinance, he cannot compel
mayor to issue him a business license. [Canet
v. Dacena (2004)]
Cityhood laws
RA 9009 increased the income threshold in
the creation of a city to P100 million, and in
effect amending Sec 450 of the LGC.
A number of municipalities had pending
cityhood bills (stating that they will be
312
exempt from the increase in income

requirement) before the passage of RA
9009.
The Court held that RA 9009 will not apply
to said municipalities. It states that the
intention of the law was to exempt
municipalities: (1) that had pending cityhood
bills before the passage of RA 9009, and (2)
that were compliant with the old income
threshold.
There is a valid classification as between
the municipalities with and without the
cityhood bills.
DISSENT: (1) The new income threshold
should be applied prospectively, (2) the
Constitution requires that Congress shall
prescribe all the criteria for the creation of a
city in the LGC and NOT in any other law,
including Cityhood laws, (3) RA 9009 is
clear and unambiguous (no need to look at
th
intent of 11 Congress), (4) the Cityhood
laws violate the equal protection clause.
[League of Cities vs Comelec (2009)]
D. The Province
LGC Sec. 459-469
Quick Facts about the Province

(i) Ave. Annual income: 20M
(ii) Population: Not less than 250K
(iii) Territory: 2K square kilometers
(iv) Creation must not reduce land area,
population or income of original municipality at
the time of said creation to less than minimum
requirements prescribed therein
313
Chapter IX. MISCELLANEOUS and FINAL PROVISIONS

Provisions
A.
B.
C.
POSTING
AND
PUBLICATION
OF
ORDINANCES WITH PENAL SANCTIONS
PENALTIES FOR VIOLATION OF TAX
ORDINANCES
PROVISIONS FOR IMPLEMENTATION
A. Posting
and
Publication
Ordinances with Penal Sanctions
of
C. Provisions for Implementation

Mandatory review every 5 years.
S521, LGC
Congress shall review LGC at least once
every 5 years and as often as it may deem
necessary;
Primary purpose: Providing a more
responsive
and
accountable
local
government structure.
Transitory Provisions
Exception: Barangay ordinances.
For publication, the secretary to the

sanggunian shall transmit official copies of
ordinances to the Official Gazette chief
executive office, within 7 days following the
approval of the ordinance. OG may publish
ordinances with penal sanctions for archival
and reference purposes.
Effectivity of ordinances with penal

sanctions: On the day following its
publication, or at the end of the period of
posting, whichever occurs later.
Exception: Ordinance provides otherwise.
Effect of public officer/EE violating an

ordinance: Administrative disciplinary action,
without prejudice to civil/criminal action.
B. Penalties for
Ordinances
Violation
of
Tax
Sec. 516, LGC

LGU sanggunian is authorized to prescribe
penalties for violation of tax ordinances:
(1) Fines should be at least P1,000 but not
more than P5,000;
Exception: Sangguniang barangay
may prescribe a fine of at least
P100 but not more than P1,000.
(2) Imprisonment should be at least 1
month but not more than 6 months.
Penalties are imposed at the discretion of
the court.
LGC Sec. 538

Deconcentration of Requisite Authority and
Power
6 months after the effectivity of LGC, the
national government shall effect the
deconcentration of requisite authority and
power
o to appropriate regional offices or field
offices of national agencies or offices
(major functions are not devolved to
LGUs)
LGC Sec. 539
Tax Ordinances or Revenue Measures
All existing tax ordinances or revenue
measures of LGUs shall continue to be in
force and effect after the effectivity of this
Code UNLESS
o amended by the sanggunian concerned
o or inconsistent with, or in violation of,
the provisions of LGC
314
Sec. 511, LGC

General rule: Ordinances with penal
sanctions shall be:
(1) posted at prominent places in the
provincial
capitol
or
city/municipal/barangay hall for at least
3 consecutive weeks; &
(2) published in a newspaper of general
circulation (if available) within the
territorial jurisdiction of the LGU;
Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities
Chapter X. Application of LGC to

Autonomous Regions and Other Entities
I.
AUTONOMOUS
REGION
IN
MUSLIM
MINDANAO
II. CORDILLERA ADMINISTRATIVE REGION
III. THE
METROPOLITAN
MANILA
DEVELOPMENT AUTHORITY
LGC Sec. 526

Application of this Code to Local Government
Units in the Autonomous Regions
LGC applies to all provinces, cities,
municipalities and barangays in the
autonomous regions until such time as the
regional government has enacted its own
LGC.
I.
NOTE: Under Sec. 16, Art. X of the Const.,

The
President
shall
exercise
general
supervision over autonomous regions to ensure
that the laws are faithfully executed.
Effect

Mindanao
Article X Section 15 1987 Constitution: There

shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of
provinces,
cities,
municipalities
and
geographical areas sharing common and
distinctive historical and cultural heritage,
economic and social structures and other
relevant characteristics within the framework of
this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the
Philippines
The autonomous governments of Mindanao

involved in this case were created by PD
1618, even before the 1987 Const. They
were never meant to exercise the kind of
autonomy wherein the central government
commits an act of self-immolation. In fact,
PD 1618 mandates that the President shall
have the power of general supervision and
control over Autonomous Regions. [Limbona
v. Mangelin (1989)]
The idea behind the Consti provisions for

autonomous regions is to allow the separate
development of peoples with distinct
cultures and traditions. [Discomangcop vs
Datumanong (2004)]
The creation of autonomous regions
does not signify the establishment of a
sovereignty distinct from the Republic,
as it can only be installed within the
framework of the Consti and national
sovereignty. [supra]
Through the passage of the Organic Act of

2001 (RA 9054), the devolved powers and
functions under the LGC could now be
applied to the ARMM. This means that the
powers and functions of a Provincial
Governor under the LGC are now enjoyed,
as a minimum, by a Provincial Governor in
the ARMM. [Pandi v. CA (2002)]
315
II. Cordillera Administrative Region
EO. 220: Act Creating the Cordillera
Administrative Region
RA 6766: Organic Act of Cordillera Autonomous
Region
In the plebiscite held pursuant to RA 6766,

the creation of the Cordillera Autonomous
Region was rejected by all the provinces
and city of the Cordillera region except
Ifugao province. Hence, the Cordillera
Autonomous region did not come to be.
[Ordillo vs Comelec (1990)]
The Cordillera Administrative Region is not a

public corporation or a territorial and political
subdivision. It does not have a separate
juridical personality, unlike provinces, cities
and municipalities. Neither is it vested with
the powers that are normally granted to
public corporations, e.g. the power to sue
and be sued, the power to own and dispose
of property, the power to create its own
sources of revenue, etc.
Nature
Regional autonomy refers to the

granting of basic internal government
powers to the people of a particular area
or region with LEAST control and
supervision
from
the
central
government. [supra]
The CAR was created primarily to

coordinate the planning and implementation
of programs and services in the covered
areas. The creation of administrative regions
for the purpose of expediting the delivery of
services. [Cordillera Broad Coalition v. COA
(1990)]
III. The
Metropolitan
Development Authority
Manila
RA 7924 (1995): An act creating the MMDA,

defining its powers and functions, providing
funds therefor and for other purposes
3.
4.
Metro Manila is constituted into a special

development and administrative region
subject to direct supervision of the
President.
5.
6.
Cities covered:
Caloocan
Manila
Mandaluyong
Makati
Pasay
Pasig
Quezon, and
Muntinlupa (marikina? Taguig?)
Municipalities covered:
Las Pias
Malabon
Marikina
Navotas
Paraaque
Pateros
San Juan
Taguig
Valenzuela
The MMDA shall:
perform planning, monitoring and
coordinative functions, and
exercise regulatory and supervisory
authority over the delivery of metro-wide
services within Metro Manila
without diminution of the autonomy of
the LGUs concerning purely local
matters.
7.
The MMDA is not a political unit of the

government. It has no police power. There is
no grant of authority to enact ordinances
and regulations for the general welfare of
the metropolis.
The MMDA is not even a "special

metropolitan
political
subdivision"
as
contemplated in Section 11, Article X of the
Constitution. The creation of a "special
metropolitan political subdivision" requires
the approval by a majority of the votes cast
in a plebiscite in the political units directly
affected. R. A. No. 7924 was not submitted
to the inhabitants of Metro Manila in a
plebiscite. The Chairman of the MMDA is
not an official elected by the people, but
appointed by the President with the rank and
privileges of a cabinet member. In fact, part
of his function is to perform such other
duties as may be assigned to him by the
President, whereas in LGUs, the President
merely exercises supervisory authority. This
emphasizes the administrative character of
the MMDA. [MMDA v. Bel Air Village
Association (2000).]
Sec. 5(f) of RA 7924 grants the MMDA the

duty to enforce existing traffic rules and
regulation. Thus, where there is a traffic law
Scope of MMDA Services

Services which
have metro-wide impact and transcend
local political boundaries or
entail huge expenditures such that it

would not be viable for said services to
be provided by the individual LGUs
comprising MM including:
1. Development planning, investments
programming, and coordination and
monitoring of plan, program and
project implementation
2. Transport and traffic management,
provision for the mass transport
system and the institution of a
system to regulate road users, traffic

engineering services and traffic
education programs, including the
institution of a single ticketing
system in MM
Solid
waste
disposal
and
management
Flood
control
and
sewerage
management
Urban renewal, zoning, and land
use planning, and shelter services
Health
and
sanitation,
urban
protection and pollution control
Public safety which include:
the
formulation
and
implementation of programs and
policies to achieve public safety,
especially preparedness for
preventive or rescue operations
during times of calamities and
disasters,
coordination and mobilization of
resources
and
the
implementation of contingency
plans for the rehabilitation and
relief operations in coordination
with
national
agencies
concerned.
316
or regulation validly enacted by the

legislature or those agencies to whom
legislative powers have been delegated,
MMDA is not precludedand is in fact dutyboundto confiscate and suspend or
revoke drivers license in the exercise of its
mandate
of
transport
and
traffic
management, as well as administration and
implementation of all traffic enforcement
operations, traffic engineering services and
traffic education programs.
This is consistent with the ruling in Bel Air
that the MMDA is a development authority
for the purpose of laying down policies and
coordinating with the various national
government
agencies,
peoples
organizations, NGOs and the private sector,
which may enforce, but not enact,
ordinances. [MMDA v. Garin]
317
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