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POLITICAL LAW PRE-WEEK 2

PRE-WEEK
POLITICAL LAW
CONSTITUTIONAL LAW 1
Q:What is the power of judicial review?
A: The judiciary has the power to determine the
nature, scope and extent of powers of each
branch of the government. As enunciated by
Justice Laurel in Angara vs. Electoral
Commission (1936), The Constitution itself has
provided for the instrumentality of the judiciary
as the rational way. And 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 power of judicial review is limited to actual
cases and controversies to be exercised after
full opportunity of argument by the parties, and
limited further to the constitutional question
raised or the very lis mota presented In cases
of conflict, the judicial department is the only
constitutional organ which can be called upon to
determine the proper allocation of powers
between the several departments and among
the integral or constituent units thereof.
Q:What are the requisites of Judicial
Review?
A: the following are the requisites of judicial
review:
(1) The existence of an actual and appropriate
case;
(2) A personal and substantial interest of the
party raising the constitutional question;
(3) The exercise of judicial review is pleaded at
the earliest opportunity; and
(4) The constitutional question is the lis mota of
the case.
(Philippine Constitution Association vs Enriquez,
1994)
Taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue,
provided that the following requirements are
met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the
official action complained of infringes upon
their prerogatives as legislators. (David vs
Macapagal-Arroyo, 2006)
Or in general, there is a liberal application of the
standing to sue if the issue involved is of
transcendental importance.
Q:What is the principle of separation of
powers? (Angara vs. Electoral Commission)
A: The separation of powers is a fundamental
principle in our system of government. It obtains
not through express provision but by actual
division in our Constitution. Each department of
the government has exclusive cognizance of
matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from
the fact that the three powers are to be kept
separate and distinct that the Constitution
intended them to be absolutely unrestrained and
independent of each other. The Constitution has
provided for an elaborate system of checks and
balances to secure coordination in the workings
of the various departments of the government.
But in the main, the Constitution has blocked out
with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the
judicial departments of the government. The
overlapping and interlacing of functions and
duties between the several departments,
however, sometimes makes it hard to say just
where the one leaves off and the other begins.
Q: What is a non self-executing provision?
A: It is a provision which calls for the enactment
of a law to make its particular provisions
operative. In the case of Manila Prince Hotel vs
GSIS, it was held that A provision which lays
down a general principle, such as those found in
Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete
POLITICAL LAW PRE-WEEK 3
in itself and becomes operative without the aid of
supplementary or enabling legislation, or that
which supplies sufficient rule by means of which
the right it grants may be enjoyed or protected,
is self-executing. Thus a constitutional provision
is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed
by the constitution itself, so that they can be
determined by an examination and construction
of its terms, and there is no language indicating
that the subject is referred to the legislature for
action.
Q: Can Senate, in proposing amendments to a
revenue bill, introduce an entirely new version of
the bill passed to it by the House of
Representatives for approval?
A: Yes. Tolentino vs Sec of Finance provides
that The power of the Senate to propose or
concur with amendments is apparently without
restriction. It would seem that by virtue of this
power, the Senate can practically re-write a bill
required to come from the House and leave only
a trace of the original bill The above-
mentioned bills are supposed to be initiated by
the House of Representatives because it is more
numerous in membership and therefore also
more representative of the people. Moreover, its
members are presumed to be more familiar with
the needs of the country in regard to the
enactment of the legislation involved. The
Senate is, however, allowed much leeway in the
exercise of its power to propose or concur with
amendments to the bills initiated by the House of
Representatives. Thus, such is not a violation of
Sec. 24, Art VI of the Constitution which
provides that all revenue bills shall originate from
the lower house.
Q:Distinguish: Pardon and Amnesty.
(Barrioquinto vs Fernandez, 1949)
A:
Pardon Amnesty
Granted by the Chief
Executive
A proclamation of the
Chief Executive with
the concurrence of the
majority of all
members of the
Congress (Sec 19, Art
VII)
A private act which
must be pleaded and
proved by the person
pardoned
A public act
No judicial notice Courts should take
judicial notice
Looks forward and
relieves the offender
from the consequences
of an offense of which
he has been convicted,
that is, it abolishes or
forgives the
punishment, and for
that reason it does "nor
work the restoration of
the rights to hold public
office, or the right of
suffrage, unless such
rights be expressly
restored by the terms
of the pardon," and it
"in no case exempts
the culprit from the
payment of the civil
indemnity imposed
upon him by the
sentence"
Looks backward and
abolishes and puts
into oblivion the
offense itself, it so
overlooks and
obliterates the offense
with which he is
charged that the
person released by
amnesty stands
before the law
precisely as though he
had committed no
offense.
Granted to one after
conviction
Granted to classes of
persons or
communities who may
be guilty of political
offenses, generally
before or after the
after the institution of
the criminal
prosecution and
sometimes after
conviction
Q: What are the requirements for the
establishment of foreign military bases, troops or
facilities in the Philippines?
A: Art. XVIII, Sec. 25 of the Constitution provides
has three requirements:
1. It must be under a treaty
2. The treaty must be duly concurred in by
the Senate, and when so required by
Congress, ratified by a majority of the
votes cast in a national referendum
3. Recognized as a treaty by the other
contracting state
In the case of Bayan vs. Zamora, it was held that
the VFA, an executive agreement, would suffice
as a treaty, since in international law, executive
agreements have the same force and effect as
treaties.
Q: What is the effect of an act subsequently
declared unconstitutional? De Agbayani vs
PNB, 1971
POLITICAL LAW PRE-WEEK 4
A: The orthodox view on an unconstitutional act
is that it cannot be the source of any legal rights
or duties. Nor can it justify any official act taken
under it. Its repugnancy to the fundamental law
once judicially declared results in its being to all
intents and purposes a mere scrap of paper.
However, such a view may not be sufficiently
realistic. It does not admit of doubt that prior to
the declaration of nullity such challenged
legislative or executive act must have been in
force and had to be complied with. This is so as
until after the judiciary, in an appropriate case,
declares its invalidity, it is entitled to obedience
and respect. Parties may have acted under it
and may have changed their positions The
actual existence of a statute, prior to such a
determination [of unconstitutionality], is an
operative fact and may have consequences
which cannot justly be ignored. The past cannot
always he erased by a new judicial
declarationIt would be to deprive the law of its
quality of fairness and justice then, if there be no
recognition of what had transpired prior to such
adjudication.
Q: Does the appointment of the
Commissioner of Bureau of Customs need
approval from Commission of
Appointments? Sarmiento vs Mison, 1987
A: No. Art VII, Sec 16 provides for 4 groups of
officers whom the President shall appoint, viz:
First, the heads of the executive departments,
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 in
this Constitution;
Second, all other officers of the Government
whose appointments are not otherwise provided
for by law;
Third, those whom the President may be
authorized by law to appoint;
Fourth, officers lower in rank whose
appointments the Congress may by law vest in
the President alone.
The first group of officers is clearly appointed
with the consent of the Commission on
Appointments. Appointments of such officers are
initiated by nomination and, if the nomination is
confirmed by the Commission on Appointments,
the President appoints.
In the 1987 Constitution, the clear and
expressed intent of its framers was to exclude
presidential appointments from confirmation by
the Commission on Appointments, except
appointments to offices expressly mentioned in
the first sentence of Sec. 16, Article VII.
In this case, the position of Commissioner of the
Bureau of Customs (a bureau head) is not one
of those within the first group of appointments
where the consent of the Commission on
Appointments is required. Moreover, the
President is expressly authorized by law to
appoint the Commissioner of the Bureau of
Customs.
Q: Is the requirement of annual submission
of a Statement of Assets and Liabilities a
valid exercise of police power? Morfe vs
Mutuc, 1968
A: Yes. The measure was aimed at curtailing
and minimizing the opportunities for official
corruption and maintaining a standard of
honesty in the public service. It is intended to
further promote morality in public administration.
A public office must indeed be a public trust. The
conditions then prevailing called for norms of
such character. The times demanded such a
remedial device.
Police power is defined as embracing the power
to prescribe regulations to promote the health,
morals, education, good order, safety, or the
general welfare of the people. It is the power
1. to promote the general welfare and
public interest;
2. to enact such laws in relation to
persons and property as may promote
public health, public morals, public
safety and the general welfare of each
inhabitant;
3. to preserve public order and to prevent
offenses against the state and to
establish for the intercourse of citizen
with citizen those rules of good manners
and good neighborhood calculated to
prevent conflict of rights.
It would be to dwell in the realm of abstractions
and to ignore the harsh and compelling realities
of public service with its ever-present temptation
to heed the call of greed and avarice to
condemn as arbitrary and oppressive a
requirement as that imposed on public officials
and employees to file such sworn statement of
assets and liabilities every two years after
having done so upon assuming office. The due
process clause is not susceptible to such a
reproach. There was therefore no
unconstitutional exercise of the police power.
POLITICAL LAW PRE-WEEK 5
Q: Can government validly take over
privately owned public utility or business
affected with public interest?
A: Yes, subject to the requirement laid down in
Art. XII, Sec. 17, that it
1. be during a time of national emergency,
2. when the public interest so requires; and
3. under reasonable terms prescribed by it.
In the case of David vs Macapagal-Arroyo
(2006), the Supreme Court held that:
Generally, Congress is the repository of
emergency powers. This is evident in the tenor
of Section 23 (2), Article VI authorizing it to
delegate such powers to the President.
Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during
grave emergencies, it may not be possible or
practicable for Congress to meet and exercise
its powers, the Framers of our Constitution
deemed it wise to allow Congress to grant
emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other
emergency.
(2) The delegation must be for a limited
period only.
(3) The delegation must be subject to such
restrictions as the Congress may
prescribe.
(4) The emergency powers must be
exercised to carry out a national policy
declared by Congress.
Section 17, Article XII must be understood as an
aspect of the emergency powers clause. The
taking over of private business affected with
public interest is just another facet of the
emergency powers generally reposed upon
Congress. Thus, when Section 17 states that
the the State may, during the emergency and
under reasonable terms prescribed by it,
temporarily take over or direct the operation of
any privately owned public utility or business
affected with public interest, it refers to
Congress, not the President. While the
President alone can declare a state of national
emergency, however, without legislation, he has
no power to take over privately-owned public
utility or business affected with public interest.
The President cannot decide whether
exceptional circumstances exist warranting the
take over of privately-owned public utility or
business affected with public interest. Nor can
he determine when such exceptional
circumstances have ceased. Likewise, without
legislation, the President has no power to point
out the types of businesses affected with public
interest that should be taken over. In short, the
President has no absolute authority to exercise
all the powers of the State under Section 17,
Article VII in the absence of an emergency
powers act passed by Congress.
Note: The term Emergency is not limited to
typhoons, tsunami, hurricane and similar
occurrences, but, as a generic term, connotes
the existence of conditions suddenly intensifying
the degree of existing danger to life or well-being
beyond that which is accepted as normal.
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CONSTITUTIONAL LAW 2
I. Bill of Rights - In General
Q: What is the Bill of Rights?
A: 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.
Q: What relationship does it govern?
A: 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. (People v.
Marti)
Q: What are Civil Rights?
A: 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.)
Q: What are Political Rights?
A: 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.)
Q: What are social and Economic Rights?
A: Rights which are intended to insure the well-
being and economic security of the individual
Q: What are the bases of the Bill of Rights?
A:
1. Importance accorded to the dignity and
worth of the individual.
2. Protection against arbitrary actions of
government and other members of
society
Q: What are the purposes of the Bill of
Rights?
A:
1. To preserve democratic ideals
2. To safeguard fundamental rights
3. To promote the happiness of an
individual
The Bill of Rights is designed to preserve the
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." (Philippine Blooming Mills
Employees Org v. Phil. Blooming Mills Co. Inc)
II. Due Process
Q: What is due process of law?
A: 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 v. IAC, 1987)
It covers any governmental action which
constitutes a deprivation of some person's life,
liberty, or property.
Q: What are the basic guarantees of due
process?
A: Notice and opportunity to be heard to persons
who would be affected by the order or act
contemplated.
Q: What are the exceptions to due process?
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.
Pornographic materials, contaminated
meat and narcotic drugs are inherently
pernicious and may be summarily
destroyed.
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.
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
POLITICAL LAW PRE-WEEK 7
2) the urgency of the need to protect the general
welfare from a clear and present danger. (Ynot
v. IAC)
Q: What is substantive due process?
A: 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.
Q: What is the scope of substantive due
process?
A:
1. Substantive due process is an
aspect of due process which serves
as a restriction on the law-making
and rule-making power of the
government.
2. The law itself, not merely the
procedures by which the law would
be enforced, should be fair,
reasonable, and just.
Q: What are the requisites of substantive due
process?
A:
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.
Q: What is the Void for Vagueness doctrine?
A: 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
Q: When is a statute repugnant to the
constitution under the void for vagueness
doctrine?
A:
1. It violates due process for failure to
accord persons, especially the parties
targeted by it, fair notice of what conduct
to avoid.
2. It leaves law enforcers an unbridled
discretion
Q: What is the overbreadth doctrine?
A: A governmental purpose may not be achieved
by means which sweep unnecessarily broadly
and thereby invade the area of protected
freedoms. "A law is facially invalid if men of
common intelligence must necessarily guess at
its meaning and differ as to its application."
1. 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.
2. 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.
3. Also, the challenger must establish that
there can be no instance when the
assailed law may be valid. (David v.
Arroyo)
Q: What is the scope of procedural due
process?
A: 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.
Q: What are the types of Judicial Due
process?
A: Civil Due Process and Criminal Due Process
Q: What is Civil due process?
A:
1. An impartial court of tribunal clothed with
judicial power to hear and determine the
matter before it.
2. Jurisdiction must be lawfully acquired
over the person of the defendant and
over the property subject matter of the
proceeding
3. The defendant must be given an
opportunity to be heard
4. Judgment must be rendered upon lawful
hearing and must clearly explain its
factual and legal bases... (Sec. 14, Art.
8, 1987 Constitution; Banco Espaol-
Filipino vs Palanca)
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Q: What is criminal due process?
A:
1. Accused is heard by a court of
competent jurisdiction;
2. Accused is proceeded against under the
orderly process of law;
3. Accused is given notice and opportunity
to be heard; (People v. Vera)
4. Judgment rendered is within the
authority of a constitutional law. (Mejia v.
Pamaran)
Q: What is administrative due process?
A:
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 a basis
4. Evidence which supports the finding or
conclusion is substantial (such relevant
evidence as a reasonable mind must
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. (Ang Tibay case)
III. Equal Protection Clause
Q: What is equal protection clause?
A:
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.
Q: What is the scope of the equal protection
clause?
A:
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).
o A corporation is also protected
against unreasonable searches
and seizures. (See Stonehill vs.
Diokno, 1967.)
o It can only be proceeded
against by due process of law,
and is protected against
unlawful discrimination. (Bache
& Co. vs. Ruiz, 1971)
Q: What are the requisites of a valid
classification?
A:
1. It must rest on substantial distinctions;
2. It must be germane to the purpose of
the law;
3. It must not be limited to existing
conditions only.
4. It must apply equally to all members of
the same class. (People v. Cayat)
Q: How does the equal protection clause
apply to aliens?
A:
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.
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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.
Q: How does the equal protection clause
apply to Filipino female domestics working
abroad?
A: They are a class by themselves because of
the special risks to which their class was
exposed (Phil Association of Service Exporters
vs. Drilon).
Q: How does the equal protection clause
apply to land-based v. sea-based Filipino
overseas workers?
A: 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).
Q: How does the equal protection clause
apply to the disqualification for elective
office?
A: 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).
Q: How does the equal protection clause
apply to the office of the ombudsman?
A: 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).
Q: How does the equal protection clause
apply to print v. broadcast media?
A: There are substantial distinctions between the
two to warrant their different treatment under BP
881 (Telecommunications and Broadcast
Attorneys of the Phil vs. COMELEC).
Q: What are the standards of Judicial
Review?
A:
1. Rational Basis Test
The classification should bear a
reasonable relation to government's
purpose.
Important when there is no plausible
difference between the disadvantaged
class and those not disadvantaged.
Also important when the government
attaches a morally irrelevant and
negative significance to a difference
between the advantaged and the
disadvantaged.
2. Strict Scrutiny Test
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).
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.)
3. Intensified Means Test
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.
Q: What is the Immediate Scrutiny test?
A: Immediate Scrutiny Test:
White Light Corporation v. City of Manila (2009):
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the
POLITICAL LAW PRE-WEEK 10
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.
IV. Freedom of Expression
Q: What is the concept of freedom from
censorship or Prior restraint?
A:
Censorship conditions the exercise of freedom
of expression upon the prior approval of the
government.
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.
Q: What are the general rules on prior
restraint?
A:
1. 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 v. United States (1971)
2. There need not be total suppression.
Even restriction of circulation constitutes
censorship (Grosjean vs. American
Press Co. 297 US 233)
Q: What is the concept of freedom from
Subsequent punishment?
A:
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.
Q: What is the dangerous tendency test?
A:
Cabansag v. Fernandez:
If the words uttered create a dangerous
tendency of an evil which the State has
the right to prevent, then such words are
punishable.
People v. Perez, (45 Phil 599):
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.
Q: What is the clear and present danger test?
A:
Schenck v. 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 v. COMELEC, (27 SCRA
835):
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 test most applied to cases re:
freedom of expression.
Q: What is the balancing of interest test?
A:
American Communications Assoc. v.
Douds, (339 US 282):
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 v. Comelec:
The test is applied when two legitimate
values not involving national security
crimes compete.
Q: What is the direct incitement test?
A: The American case of Brandenburg v. Ohio
(395 U.S. 444) states that the constitutional
POLITICAL LAW PRE-WEEK 11
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.
Q: What is the Grave-but-improbable danger
test?
A:
Grave-But-Improbable Danger Test: To
determine the clear and present danger of the
utterances bringing about the evil within 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.
V. Freedom of Association
Q: Is the freedom to associate absolute?
A: No. (People v. Ferrer)
VI. Freedom of Religion and the Non-
Establishment Clause
Q: What is the concept of non-establishment
clause?
A: 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).
Q: What is the basis of non-establishment
clause?
A: Rooted in the separation of Church and State
(Sec. 2(5), Art. 9-C; Sec. 5(2), Sec. 29(2) Art. 6,
1987 Consti).
Q: What are the acts permitted by the
Establishment clause?
A:
Tax exemption, operation of sectarian schools,
religious instruction in public schools, public aid
to religion, postage stamps depicting Philippines
as a site of a significant religious event (Aglipay
v. Ruiz)
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.
Sec. 4(2), Art. 6. 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
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
approved by the religious authorities of the
religion to which the children or wards belong,
without additional cost to the Government.
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.
Q: What is the lemon test?
A:
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.
POLITICAL LAW PRE-WEEK 12
Q: What is the benevolent neutrality stance?
A:
Compelling State Interest Test (from a
benevolent neutrality stance):
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
Estrada v Escritor, (2003): 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.
Q: what is the Conscientious Objector Test?
A:
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.
VI. Privacy
Q: When is intrusion allowed?
A:
1. By lawful order of the court
2. When public safety or public order
requires otherwise, as may be provided
by law
Q: What are the forms of correspondence
covered by this rule?
A:
1. letters
2. messages
3. telephone calls
4. telegrams, and the like (BERNAS)
Q: What must the contents of a lawful order
of the court?
A:
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.
VII. Liberty of Abode
Q: What is liberty of abode?
A:
Rubi vs. Provincial Board (1919):"Liberty" as
understood in democracies, is not license; it is
"Liberty regulated by law."
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.
None of the rights of the citizen can be taken
away except by due process of law
Q: Is the right to travel absolute?
A: No.
Manotok vs. CA (1986):
RIGHT NOT ABSOLUTE: The Constitutional
Right to Travel under Sec. 5, Art. IV of the 1973
Constitution 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, as 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.
POLITICAL LAW PRE-WEEK 13
Q: What is the right to return to one's
country?
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 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.
VIII. Searches and Seizures
Q: What are the requisites of a valid search
warrant?
A:
1. Existence of probable cause
2. Determination of probable cause
personally by the judge.
3. After personal examination under oath
or affirmation of the complainant and the
witnesses he may produce.
4. On the basis of their personal
knowledge of the facts they are
testifying to.
5. The warrant must describe particularly
the place to be searched and the
persons or things to be seized.
Q: What is probable cause?
A:
1. Such facts and circumstances;
2. which would lead a reasonably discreet
and prudent man to believe
3. that an offense has been committed and
4. That the objects sought in connection
with the offense are in the place sought
to be searched. (Burgos vs. Chief of
Staff 1984)
Q: What are the rules in the personal
examination requirements?
A: It must be in the form of searching questions
and answers, in writing and under oath (Sec. 6
Rule 126, ROC)
Mere affidavits of the complainant and
his witnesses are thus not sufficient.
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 v. Gonzales, 1984)
Q: What is a general search warrant?
A: 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)
Q: What are the exceptions to a general
search warrant as to its invalidation?
A: General descriptions will not invalidate the
entire warrant if other items have been
particularly described. (Uy v. BIR, 2000)
Q: How must search be conducted?
A: (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. 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
POLITICAL LAW PRE-WEEK 14
immediately handcuffed to a chair after being
informed that they are policemen with a warrant
to search the premises.
Q: When is a warrantless search valid?
A:
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).
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
Q: What are the requisites of a search
incident to a lawful arrest?
A:
Item to be searched was within the
arresters custody;
Search was contemporaneous with the
arrest
Q: Why is a search of moving vehicles an
exception the rule that a search must be
accompanied by a valid search warrant?
A: 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 v. Mago 1968)
Q: What are the requisites of the Plain view
doctrine?
A:
1. Prior valid intrusion into a place;
2. Evidence:
a. inadvertently discovered
b. by police who had the right to be
where they were;
3. Evidence must be immediately apparent
and
Noticed without further search
Q: What is the rule for a stop and frisk search
to be valid?
A: There should be a genuine reason to stop-
and-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)
Q: What are the requisites for a valid express
waiver of a search warrant?
A:
People v. Peralta:
Must appear that right exists;
Person involved had actual/ constructive
knowledge of the existence of such
right;
Said person had an actual interest to
relinquish the right;
Waiver is limited only to the arrest;
Waiver does not extend to search made
as an incident thereto, or to any
subsequent seizure of evidence found in
the search.
IX. Requirements for Fair Procedure
Q: What is the nature of the right under Art.
III Sec. 2?
A: Personal
It may be invoked only by the person entitled to
it. (Stonehill vs. Diokno)
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)
B. Directed Against the Government & its
Agencies (State Action Requirement)
The right cannot be set up against acts
committed by private individuals (People v.
Marti)
Q: What is the scope of the right under Art.
III. Sec. 2?
A: Natural Persons
It protects all persons including aliens (Qua
Chee Gan vs. Deportation Board 1963).
B. 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.
Q: What are the requisites for the issuance of
a valid warrant of arrest?
A:
1. Existence of probable cause:
POLITICAL LAW PRE-WEEK 15
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)
2. Determination of probable cause
personally by the judge.
3. On the basis of their personal
knowledge of the facts they are
testifying to.
4. The arrest warrant must describe
particularly the person to be seized.
How done:
i. By stating the name of the person to
be arrested.
ii. If not known, then a John Doe
warrant may be issued, with some
description persona that will enable
the officer to identify the accused.
Q: How is probable cause determined?
A: Personally by a judge.
1. 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
2. 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 v.
Judge Areola 2002).
Beltran v. 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
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:
i. He may disregard the fiscal's report
and
ii. Require the submission of
supporting affidavits of witnesses to
aid him in arriving at a conclusion as
to the existence of probable cause.
Q: When is a John Doe Warrant considered a
general warrant, thus void?
A:
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.
Q: When is a warrantless arrest valid?
A:
1. When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
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;
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.
Q: What is hot pursuit in the case of a
warrantless arrest?
A:
People vs. De Lara (1994): The arrest of the
accused inside his house following hot pursuit of
the person who committed the offense in
flagrante was held valid.
Q: What is buy-bust operation in the case of
a warrantless arrest?
A:
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
POLITICAL LAW PRE-WEEK 16
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. This is an unlawful arrest.
X. Rights during Trial
Q: What are the rights of the accused during
trial?
A:
1. Presumption of Innocence
2. Right to be Heard Personally or by
Counsel
3. Right to be Informed of Nature and
Cause of Accusation
4. Right to speedy, impartial and public trial
5. Right of Confrontation
6. Right to Compulsory Processes
7. Right Against self-incrimination
Q: What is the presumption of innocence?
A:
People v. Dramavo, (1971): The requirement of
proof beyond reasonable doubt is a
necessary corollary of
the constitutional right to be presumed innocent.
Alejandro v. 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 v. 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.
Q: What is the Equipoise Rule?
A:
Corpus v. People: Where the evidence adduced
by the parties are evenly balanced, the
constitutional presumption of innocence should
tilt the balance in favor of the accused.
Q: What are the elements of the right to
counsel?
A:
1. Courts duty to inform the accused of
right to counsel before being arraigned;
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.
Q: What is the right to be informed of the
nature and cause of accusation?
A:
Vera v. People: Procedural due process requires
that the accused must be informed why he is
being prosecuted and what charge he must
meet.
Q: What is the right to speedy, impartial and
public trial?
A:
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. II. Sec. 3: Civilian authority is, at all times,
supreme over the military. xxx
Olaguer v. Military Commission, (1987): A
civilian cannot be tried by a military court so
long as the civil
courts are open and operating, even during
Martial Law.
Acevedo v. Sarmiento, (1970): Dismissal based
on the denial of the right to speedy trial
amounts to an
acquittal.
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.
Q: What is the right of confrontation?
A: it is the basis of the right to cross-
examination.
Q: What is the right to compulsory
processes?
A:
1. Right to Secure Attendance of Witness
2. Right to Production of Other Evidence
Q: When can a trial in absentia be done?
A: 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
POLITICAL LAW PRE-WEEK 17
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.
Q: What is the scope of the right against self-
incrimination?
A:
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.
Q: To what kind of proceedings is the right
against self-incrimination applicable?
A:
General rule: The privilege is available in any
proceedings, even outside the court, for they
may eventually lead to a criminal prosecution.
1. 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 v. Board
of Medical Examiners, 1969)
2. 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 v.
Pamaran, 1985)
Q: What is transactional immunity?
A:
1987 Constitution, Art. XIII, Section 18: 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;
Q: What is the use and fruit of immunity?
A:
Galman v. 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.
Q: What is the effect of the denial of the
privilege of a person against self-
incrimination?
A:
EXCLUSIONARY RULE under Art. III,
s17 in relation to s12: When the
privilege against self-incrimination is
violated outside of court (e.g. police),
then the testimony, as already noted, is
not admissible.
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 v. CA, 1968)
XI. Post Trial
Q: What are the rights of a person post-trial?
A: Right against double jeopardy, right against
excessive fines and cruel, degrading and
inhuman punishment.
Q: What are the elements of double
jeopardy?
A:
Rule 117, Sec 7; People v. Obsania, 23
SCRA 249 (1968):
1. Court of competent jurisdiction;
2. A Complaint/Information sufficient in
form and substance to sustain a
conviction;
3. Arraignment and plea by the accused;
4. Conviction, acquittal, or dismissal of the
case without the express consent, of the
accused.
Q: When is subsequent prosecution barred?
A:
1. Same offense
2. Attempt of the same offense
3. Frustration of the same offense
4. Offense necessarily included in the 1st
offense (All the elements of the 2nd
POLITICAL LAW PRE-WEEK 18
constitute some of the elements of the
1st offense)
5. Offense that necessarily includes the 1st
offense (All the elements of the 1st
constitute some of the elements of the
2nd offense)
Q: What are the exceptions?
A:
1. The graver offense developed due to
"supervening facts" arising from the
same act or omission constituting the
former charged.
2. The facts constituting the graver charge
became known or were discovered only
after the filing of the former complaint or
information.
3. The plea of guilty to the lesser offense
was made without the consent of the
fiscal and the offended party.
Q: When is the defense of double jeopardy
available?
A:
1. Dismissal based on insufficiency of
evidence;
2. Dismissal because of denial of right to
speedy trial;
3. Accused is discharged to be a state
witness.
Q: When is the defense of double jeopardy
not available?
A:
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 dismissal is regarded
as with express consent of the accused, who is
therefore deemed to have waived the right to
plea double jeopardy.
Q: How is jeopardy terminated?
A:
1. By acquittal
2. By final conviction
3. By dismissal without express consent of
accused
4. By dismissal on the merits
XII. Police Power
Q: What is Police Power?
A: 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.
(Ermita-Malate Hotel and Motel Operators
Association Inc v. Mayor of Manila)
Q: What is the general scope of police
power?
A: The police power of the State," one court has
said, "is a power coextensive with self-
protection, 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." (Rubi v.
Provincial Board)
It 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. (Ermita-Malate Hotel
and Motel Operators Association Inc v. Mayor of
Manila)
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. (Ortigas & Co. Ltd. v. Feati Bank)
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. (Ichong v. Fernandez)
Q: What is the specific scope of police
power?
A:
Public Health
Public Morals
Public Safety
Public Welfare
Q: What are the limitations of Police Power?
A: 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
POLITICAL LAW PRE-WEEK 19
the court. (US v. Toribio)
...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. (Churchill v.
Rafferty)
Q: Who may exercise police power?
A:
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).
Q: Does MMDA have the authority to exercise
police power?
A: No.
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
precluded and in fact is duty-bound to
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) (MMDA v.
Garin)
Q: What are the tests for the validity of the
exercise of police power?
A:
LAWFUL SUBJECT: Interest of the general
public (as distinguished from a particular class
required exercise)
LAWFUL MEANS: Means employed is
reasonably necessary for the
accomplishment of the purpose, and is
not unduly oppressive.
XIII. Eminent Domain
Q: What is eminent domain?
A: It is the right of the government to take private
property with just compensation.
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.
(Visayan Refining Co. v. Camus)
Q: Who may exercise the power of eminent
domain?
A:
Inherently:
Executive and legislative. 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." (Visayan Refining v.
Camus)
By delegation:
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.
POLITICAL LAW PRE-WEEK 20
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. (City of Manila v. Chinese
Community of Manila)
Q: Can a private property already devoted to
public use be subject to expropriation by a
delegate?
A: NO
Q: What are the general Requisites for the
exercise of the power of eminent domain?
A:
1. Taking of Private Property
2. for Public Use,
3. with Just Compensation, and
4. Due Process.
Q: What are the specific requirements?
A:
LGUs, Sec. 19, Local Government Code:
1. Ordinance by a local legislature council
is enacted authorizing local chief
executive to exercise eminent domain,
2. for public use, purpose or welfare or for
the benefit of the poor and of the
landless,
3. Payment of just compensation,
4. Valid and definite offer has been
previously made to owner of the
property sought to be expropriated but
such offer was not accepted
(Municipality of Paraaque v VM Realty,
1998)
Q: What is taking?
A: 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.
Q: What are the requisites for a valid taking?
A:
1. The expropriator must enter a private
property
2. Entry must be for more than a
momentary period
3. Entry must be under warrant or color of
legal authority
4. Property must be devoted to public use
or otherwise informally appropriated or
injuriously affected
5. 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 v. 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)
Q: Is the determination of Just compensation
a judicial function?
A: YES.
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. (EPZA v. Dulay)
Q: What is public use?
A: 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 v. 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 v. CA, 284 SCRA 716)
Q: What is Just compensation?
A:
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.
Q: What is the basis of Just compensation?
A:
Fair Market Value:
Price fixed by a buyer (desirous but not
compelled to buy) and a seller (willing
but not compelled to sell).
POLITICAL LAW PRE-WEEK 21
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)
XIV. Taxation
Q: What is Taxation?
A: 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.
Q: What are the purposes of taxation?
A:
1. To raise revenue
2. Tool for regulation
3. Protection/power to keep alive
Q: Who may exercise the power to tax?
A:
1. legislature (primarily)
2. local legislative bodies (Sec. 5 Art. 10,
1987 Consti)
3. President (o a limited extent, when
granted delegated tariff powers under
Sec. 28 (2) Art. 6, 1987 Consti)
Q: What are the general limitations to the
power to tax?
A:
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 individual
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
Q: What are the specific limitations to the
power to tax?
A:
1. Uniformity of taxation: simply
geographical uniformity, meaning it
operates with the same force and effect
in every place where the subject of it is
found:
i. But does not prohibit classification
for purposes of taxation
ii. Requisites:
standards used are
substantial and not arbitrary
categorization is germane to
achieve the legislative
purpose
the law applies, all things
being equal to both present
and future conditions
applies equally to members
of the same class
2. 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)
3. Progressive system of taxation:
The rate increases as the tax base
increases
Basis is social justice
Taxation as an instrument for a
more equitable distribution of wealth
4. Delegated tax legislation
Congress may delegate law-making
authority when the constitution itself
specifically authorizes it.
Q: What is the rule on taxation and
prohibition against impairment of obligations
of contracts?
A:
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;
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
Q: What are tax exemptions?
A:
1. A corollary power but must be for a
public purpose, uniform and equitable
and in conformity with the equal
protection clause
POLITICAL LAW PRE-WEEK 22
2. Tax exemptions are granted gratuitously
and may be revoked at will, except when
it was granted for valuable consideration
May either be constitutional or
statutory :
If statutory, it has to have been
passed by majority of all the
members of Congress (Art. VI, sec.
28 (4))
3. Constitutional exemptions (1987 CONST.,
art. VI, sec. 28(3))
i. Educational institutions (both
profit and non-profit)
Benefits redound to
students
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
Q: What is double taxation?
A: Occurs when additional taxes are laid on the
same subject by the same taxing jurisdiction
during the same taxing period for the same
purpose
Q: Is double taxation prohibited?
A: No provision in the Constitution specifically
prohibiting double taxation, but will not be
allowed if it violates equal protection clause.
POLITICAL LAW PRE-WEEK 23
LOCAL GOVERNMENTS
1. Did the Local Government Code
withdraw the jurisdiction of the
Ombudsman to investigate illegal acts of
local elective officials?
No. 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)
2. What are the qualifications of an elected
public officer?
An elective local official must be a citizen of the
Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan,
sangguniang panlungsod, or sanggunian bayan,
the district where he intends to be elected; a
resident therein for at least one (1) year
immediately preceding the day of the election;
and able to read and write Filipino or any other
local language or dialect.
The following are the age requirements:
Candidates for the position of governor, vice-
governor or member of the sangguniang
panlalawigan, or Mayor, vice-mayor or member
of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-three
(23) years of age on election day.
Candidates for the position of Mayor or vice-
mayor of independent component cities,
component cities, or municipalities must be at
least twenty-one (21) years of age on election
day.
Candidates for the position of member of the
sangguniang panlungsod or sangguniang bayan
must be at least eighteen (18) years of age on
election day.
Candidates for the position of punong barangay
or member of the sangguniang barangay must
be at least eighteen (18) years of age on
election day.
Candidates for the sangguniang kabataan must
be at least fifteen (15) years of age but not more
than twenty-one (21) years of age on election
day. (Sec 39, LGC)
3. What are the disqualifications?
The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment
for an offense involving moral
turpitude or for an offense
punishable by one (1) year or more
of imprisonment, within two (2)
years after serving sentence;
(b) Those removed from office as a
result of an administrative case;
(c) Those convicted by final judgment
for violating the oath of allegiance to
the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or
nonpolitical cases here or abroad;
(f) 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 Code; and
(g) The insane or feeble-minded. (Sec.
40, LGC)
4. What is the second placer rule? Is
there an exception to this rule?
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, 19920)
5. What are the requirements for the validity
of an ordinance?
First, the subject matter of the ordinance should
be within the delegated legislative powers
vested upon the LGU. Second, the requirements
of notice and publication should be met. Finally,
it should comply with the following substantive
requirements:
1. Not contrary to the Constitution and/or
statute
2. Not unfair or oppressive
POLITICAL LAW PRE-WEEK 24
3. Must not be partial or discriminatory
4. Not prohibit but may regulate trade
5. General and consistent with public policy
6. Not unreasonable (Tatel v. Virac)
6. Define the police power of LGUs.
The police power of the LGU is enshrined in
Section 16 of the LGC, or the General Welfare
Clause. It provides: Every local government unit
shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for
its efficient and effective governance, and those
which are essential to the promotion of the
general welfare. Within their respective territorial
jurisdictions, local government units shall ensure
and support, among other things, the
preservation and enrichment of culture, promote
health and safety, enhance the right of the
people to a balanced ecology, encourage and
support the development of appropriate and self-
reliant scientific and technological capabilities,
improve public morals, enhance economic
prosperity and social justice, promote full
employment among their residents, maintain
peace and order, and preserve the comfort and
convenience of their inhabitants. (Sec 16, LGC)
7. Can elective officials be appointed to
government positions?
No. The Constitution provides:
No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by
the primary functions of his position, no
appointive official shall hold any other
office or employment in the Government
or any subdivision, agency or
instrumentality thereof, including
Government-owned or controlled
corporations or their subsidiaries. (Sec.
7, Art. 9B, Consti)
This was also addressed in the case of Flores v.
Drilon, 1993.
8. Who shall exercise power in case of
permanent vacancy?
The LGC provides that:
If a permanent vacancy occurs in the office of
the governor or Mayor, the vice-governor or
vice-mayor concerned shall become the
governor or Mayor. If a permanent vacancy
occurs in the offices of the governor, vice-
governor, Mayor, or vice-mayor, the highest
ranking sanggunian member or, in case of his
permanent inability, the second highest ranking
sanggunian member, shall become the
governor, vice-governor, Mayor or vice-mayor,
as the case may be. Subsequent vacancies in
the said office shall be filled automatically by the
other sanggunian members according to their
ranking as defined herein.
If a permanent vacancy occurs in the office of
the punong barangay, the highest ranking
sanggunian barangay member or, in case of his
permanent inability, the second highest ranking
sanggunian member, shall become the punong
barangay.
A tie between or among the highest ranking
sanggunian members shall be resolved by the
drawing of lots.
The successors as defined herein shall serve
only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent
vacancy arises when an elective local official (1)
fills a higher vacant office, (2) refuses to assume
office, (3) fails to qualify, (4) dies, (5) is removed
from office, (6) voluntarily resigns, or is (7)
otherwise permanently incapacitated to
discharge the functions of his office.
For purposes of succession as provided in this
Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of
votes obtained by each winning candidate to the
total number of registered voters in each district
in the immediately preceding local election.
(SEC. 44, LGC)
Permanent vacancies in the sanggunian where
automatic successions provided above do not
apply shall be filled by appointment in the
following manner:
(1) The President, through the Executive
Secretary, in the case of the sangguniang
panlalawigan and the sangguniang
panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the
sangguniang panlungsod of component
cities and the sangguniang bayan;
(3) The city or municipal Mayor, in the case
of sangguniang barangay, upon
POLITICAL LAW PRE-WEEK 25
recommendation of the sangguniang
barangay concerned.
Except for the sangguniang barangay, only the
nominee of the political party under which the
sanggunian member concerned had been
elected and whose elevation to the position next
higher in rank created the last vacancy in the
sanggunian shall be appointed in the manner
hereinabove provided. The appointee shall come
from the same political party as that of the
sanggunian member who caused the vacancy
and shall serve the unexpired term of the vacant
office. In the appointment herein mentioned, a
nomination and a certificate of membership of
the appointee from the highest official of the
political party concerned are conditions sine qua
non, and any appointment without such
nomination and certification shall be null and
void ab initio and shall be a ground for
administrative action against the official
responsible therefor.
In case the permanent vacancy is caused by a
sanggunian member who does not belong to any
political party, the local chief executive shall,
upon recommendation o;O7 of the sanggunian
concerned, appoint a qualified person to fill the
vacancy.
In case of vacancy in the representation of the
youth and the barangay in the sanggunian, said
vacancy shall be filled automatically by the
official next in rank of the organization
concerned. (SEC. 45, LGC)
9. Who shall exercise powers in case of
temporary vacancy?
When the governor, city or municipal Mayor, or
punong barangay is temporarily incapacitated to
perform his duties for physical or legal reasons
such as, but not limited to, leave of absence,
travel abroad, and suspension from office, the
vice-governor, city or 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 concerned, except the power to
appoint, suspend, or dismiss employees which
can only be exercised if the period of temporary
incapacity exceeds thirty (30) working days.
Said temporary incapacity shall terminate upon
submission to the appropriate sanggunian of a
written declaration by the local chief executive
concerned that he has reported back to office. In
cases where the temporary incapacity is due to
legal causes, the local chief executive
concerned shall also submit necessary
documents showing that said legal causes no
longer exist.
When the incumbent local chief executive is
traveling within the country but outside his
territorial jurisdiction for a period not exceeding
three (3) consecutive days, he may designate in
writing the officer-in-charge of the said office.
Such authorization shall specify the powers and
functions that the local official concerned shall
exercise in the absence of the local chief
executive except the power to appoint, suspend,
or dismiss employees.
In the event, however, that the local chief
executive concerned fails or refuses to issue
such authorization, the vice-governor, the city or
municipal vice-mayor, or the highest ranking
sangguniang barangay member, as the case
may be, shall have the right to assume the
powers, duties, and functions of the said office
on the fourth (4th) day of absence of the said
local chief executive, subject to the limitations
provided in subsection (c) hereof.
Except as provided above, the local chief
executive shall in no case authorize any local
official to assume the powers, duties, and
functions of the office, other than the vice-
governor, the city or municipal vice- Mayor, or
the highest ranking sangguniang barangay
member, as the case may be. (SEC. 46, LGC)
10. What is the ground for recall?
The power of recall for loss of confidence shall
be exercised by the registered voters of a local
government unit to which the local elective
official subject to such recall belongs. (Sec. 69,
LGC)
11. How is recall performed/done?
Recall may be initiated by the registered voters
of the local government unit to which the local
elective official subject to such recall belongs.
Recall of any elective provincial, city, municipal,
or barangay official may be validly initiated upon
petition of at least twenty-five percent (25%) of
the total number of registered voters in the local
government unit concerned during the election in
which the local official sought to be recalled was
elected.
(1) A written petition for recall duly signed
before the election registrar or his
representative, and in the presence of a
POLITICAL LAW PRE-WEEK 26
representative of the petitioner and a
representative of the official sought to be
recalled, and in a public place in the province,
city, municipality, or barangay, as the case may
be, shall be filed with the Comelec through its
office in the local government unit concerned.
The Comelec or its duly authorized
representative shall cause the publication of the
petition in a public and conspicuous place for a
period of not less than ten (10) days nor more
than twenty (20) days, for the purpose of
verifying the authenticity and genuineness of the
petition and the required percentage of voters.
(2) Upon the lapse of the aforesaid period, the
Comelec or its duly authorized representative
shall announce the acceptance of candidates to
the position and thereafter prepare the list of
candidates which shall include the name of the
official sought to be recalled. (Sec. 70, LGC)
Upon the filing of a valid resolution or petition for
recall with the appropriate local office of the
Comelec, the Commission or its duly authorized
representative shall set the date of the election
on recall, which shall not be later than thirty (30)
days after the filing of the resolution or petition
for recall in the case of the barangay, city, or
municipal officials, and forty-five (45) days in the
case of provincial officials. The official or officials
sought to be recalled shall automatically be
considered as duly registered candidate or
candidates to the pertinent positions and, like
other candidates, shall be entitled to be voted
upon. (Sec. 71, LGC)
RA 9244 removed the Preparatory Recall
Assembly as a mode of recall.
12. When is recall effective?
The recall of an elective local official shall be
effective only 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. Should the
official sought to be recalled receive the highest
number of votes, confidence in him is thereby
affirmed, and he shall continue in office. (Sec.
72, LGC)
13. What are the limitations on the exercise
of the General Welfare Clause?
They are:
a. Territoriality. Police power can be
exercised only within its territorial
jurisdiction except for the protection of
water supply;
b. The Equal Protection Clause. This
means that the interest of the public as
against private interest is required;
c. The Due Process Clause. It simply
means that the means employed are
reasonably necessary for the attainment
of the purposes. It must not be unduly
opporessive.
d. The exercise must not be contrary to
law. Prohibited acts cannot be made
legal under the guise of regulation.
(Albano, Political Law Reviewer, 2004,
p. 765)
14. Should a governor who was previously
removed from office pending an
administrative case, but who was
subsequently reelected, be removed from
office?
No. 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 re-election 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. (Aguinaldo v. Santos, 1992)
15. What are the requisites of resignation?
Of abandonment?
The requisites to constitute resignation are:
1. Intention to relinquish a part of the term,
2. Act of relinquishment, and
3. Acceptance by the proper authority
The essential elements of abandonment are:
1. Intent to abandon
2. Overt act by which the intention is to be
carried into effect (Sangguniang Bayan
of San Andres v. CA, 1998)
16. What is devolution in LGUs ?
Devolution 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); it is 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).
POLITICAL LAW PRE-WEEK 27
17. What is the LGUs power of eminent
domain?
A local government unit may, through its chief
executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just
compensation, pursuant to the provisions of the
Constitution and pertinent laws: Provided,
however, That the power of eminent domain
may not be exercised unless a valid and definite
offer has been previously made to the owner,
and such offer was not accepted: Provided,
further, That the local government unit
may immediately take possession of the
property upon the filing of the expropriation
proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of
the fair market value of the property based on
the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount
to be paid for the expropriated property shall be
determined by the proper court, based on the
fair market value at the time of the taking of the
property. (Sec 19, LGC)
18. What happens if the Sangguniang
Panlalawigan disapproves the resolution
of the Sangguniang Bayan?
If the sangguniang panlalawigan finds that such
an ordinance or resolution is beyond the power
conferred upon the sangguniang panlungsod or
sangguniang bayan concerned, it shall declare
such ordinance or resolution invalid in whole or
in part. The sangguniang panlalawigan shall
enter its action in the minutes and shall advise
the corresponding city or municipal authorities of
the action it has taken.
If no action has been taken by the sangguniang
panlalawigan within thirty (30) days after
submission of such an ordinance or resolution,
the same shall be presumed consistent with law
and therefore valid. (Sec. 56, LGC)
19. Is the authorization of the DAR required
in expropriation by the LGU?
There is no need to get DAR approval before
expropriation (Camarines Sur vs CA, 1993)
20. What is preventive suspension?
The LGC provides that:
Preventive suspension may be imposed:
(1) By the President, if the
respondent is an elective official
of a province, a highly urbanized
or an independent component
city;
(2) By the governor, if the
respondent is an elective official
of a component city or
municipality; or
(3) By the mayor, if the respondent
is an elective official of the
barangay.
Preventive suspension may be imposed at any
time after the issues are joined, when the
evidence of guilt is strong, and given the gravity
of the offense, there is 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: Provided, That, any single preventive
suspension of local elective fficials shall not
extend beyond sixty (60) days: Provided, further,
That in the event that several administrative
cases are filed against an elective official, he
cannot be preventively suspended for more than
ninety (90) days within a single year on the
same ground or grounds existing and known at
the time of the first suspension.
Upon expiration of the preventive suspension,
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 one hundred
twenty (120) days from the time he was formally
notified of the case against him. However, if the
delay in the proceedings of the case is due to his
fault, neglect, 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.
Any abuse of the exercise of the power of
preventive suspension shall be penalized as
abuse of authority. (Sec. 63, LGC)
21. What are an LGUs corporate powers?
Every local government unit, as a corporation,
shall have the following powers:
(1) To have continuous succession in its
corporate name;
(2) To sue and be sued;
(3) To have and use a corporate seal;
(4) To acquire and convey real or personal
property;
POLITICAL LAW PRE-WEEK 28
(5) To enter into contracts; and
(6) To exercise such other powers as are
granted to corporations, subject to the
limitations provided in this Code and
other laws.
Local government units may continue using,
modify, or change their existing corporate seals:
Provided, That newly established local
government units or those without corporate
seals may create their own corporate seals
which shall be registered with the Department of
the Interior and Local Government: Provided,
further, That any change of corporate seal shall
also be registered as provided herein.
Unless otherwise provided in this Code, contract
may be entered into by the local chief executive
in behalf of the local government unit without
prior authorization by the sanggunian
concerned. A legible copy of such contract shall
be posted at a conspicuous place in the
provincial capitol or the city, municipal or
barangay hall.
Local government units shall enjoy full autonomy
in the exercise of their proprietary functions and
in the management of their economic
enterprises, subject to the limitations provided in
this Code and other applicable laws. (Sec. 22,
LGC)
22. How can an LGU enter into contracts?
Unless otherwise provided in the Local
Government Code, contracts may be entered
into by the local chief executive in behalf of the
local government unit without prior authorization
by the sanggunian concerned. A legible copy of
such contract shall be posted at a conspicuous
place in the provincial capitol or the city,
municipal or barangay hall. (Sec 22(c))
23. What is the term of office of LGU
officials?
The term of office of elective local officials,
except barangay officials, which shall be
determined by law, shall be three years and no
such official shall serve for more than three
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be
considered as an interruption in the continuity of
his service for the full term for which he was
elected (Sec. 8, Art. X, Constitution).
The term of office of all local elective officials
elected after the effectivity of this Code shall be
three (3) years, starting from noon of June 30,
1992 or such date as may be provided for by
law, except that of elective barangay officials:
Provided, That 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 local elective official shall serve for more
than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for
any length of time shall not be considered as an
interruption in the continuity of service for the full
term for which the elective official concerned
was elected.
The term of office of barangay officials and
members of the sangguniang kabataan shall be
for three (3) years, which shall begin after the
regular election of barangay officials on the
second Monday of May 1994. (Sec. 43, LGC)
24. What is the 3 term limit rule?
No local elective official shall serve for more
than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for
any length of time shall not be considered as an
interruption in the continuity of service for the full
term for which the elective official concerned
was elected. (Sec. 43(b), LGC)
The Constitution contemplates service by local
officials for three consecutive terms as 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. (Borja v. COMELEC, 1998)
25. Are local government officials liable for
damages for the death or injury to
persons or damage to property?
Yes. Under the LGC, local government units and
their officials are not exempt from liability for
death or injury to persons or damage to
property. (Sec. 24, LGC)
26. May the LGU appropriate funds for
religious projects?
No. No public money or property shall be
appropriated or applied for religious or private
purposes. (Sec. 335, LGC)
POLITICAL LAW PRE-WEEK 29
27. May a greencard holder who uses such
for medical check ups in the U.S. hold a
local elective position? (Caasi vs CA)
No. A Filipino citizens acquisition of a
permanent resident status abroad constitutes an
abandonment of his domicile and residence in
the Philippines. An officials 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, the Philippines, to a new
domicile of choice, which is the USA. (Caasi vs
CA and Ugdoracion v. COMELEC, 2008)
28. Is the Sangguniang Panglungsod
empowered to issue subpoenas and cite
non-members in contempt?
No. The Sangguniang Panlungsod has no
authority to issue subpoenas and punish non-
members 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 non-members 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)
29. What is an independent component city?
An independent component city is one whose
charter prohibits its voters from electing
provincial officials. Likewise, voters from an
independent component city are prohibited from
running for an elective provincial office of the
province where it is a part. (Abella v. Comelec)
30. Is the MMDA a local government unit?
Does it have police power?
No. 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)
31. What is the LGUs power of taxation?
Local government units shall have the power
and authority to create their own sources of
revenue and to levy taxes, fees, and charges
which shall accrue exclusively for their use and
disposition and which shall be retained by them
(Sec. 18, LGC).
32. What are the fundamental governing the
exercise of the taxing and other revenue-
raising powers of LGUs?
The following are the fundamental principles:
(a) Taxation shall be uniform in each local
government unit;
(b) Taxes, fees, charges and other impositions
shall: (some substantial requirements)
(1) be equitable and based as far as
practicable on the taxpayer's ability to
pay;
(2) be levied and collected only for
public purposes;
(3) not be unjust, excessive,
oppressive, or confiscatory;
(4) not be contrary to law, public policy,
national economic policy, or in restraint of trade;
(c) The collection of local taxes, fees, charges
and other impositions shall in no case be let to
any private person;
(d) The revenue collected pursuant to the
provisions of this Code shall inure solely to the
benefit of, and be subject to disposition by, the
local government unit levying the tax, fee,
charge or other imposition unless otherwise
specifically provided herein; and,
(e) Each local government unit shall, as far as
practicable, evolve a progressive system of
taxation. (Sec. 130, LGC)
33. How are the IRAs released? (A10, S6)
Local government units shall have a just share,
as determined by law, in the national taxes
which shall be automatically released to them
(Sec. 6, Art. X, Consti)..
POLITICAL LAW PRE-WEEK 30
34. Are local government units liable for the
acts of their public officers?
Yes. LGUs are liable for the acts of their public
officers, only when they have acted by authority
of law and in conformity with the requirements
thereof. (Correa v. CFI, 1979)
35. When may a private lawyer represent the
municipality in any suit?
First, when the municipality is an adverse party
in a case involving the provincial government or
another municipality or city within the province,
thus, the provincial fiscal would be disqualified.
(Alinsug v. RTC)
Second, When the provincial fiscal, his wife, or
child has pecuniary interest in a suit involving
the municipality as heir, legatee, creditor or
otherwise. (Enriquez v. Jimenez)
POLITICAL LAW PRE-WEEK 31
ADMINISTRATIVE LAW
1. Define the quasi-legislative power of
administrative agencies
It is 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. What is the meaning of Potestas delegata
non delegare potest?
What has been delegated cannot be
delegated. It is the non-delegation
doctrine in administrative law.
3. What are the requisites for a valid
delegation of legislative power to
administrative agencies?
The law must be complete in itself, must
set forth the policy to be executed and
must fix a standard, the limits of which
are sufficiently determinate or
determinable, to which the delegate
must conform.
4. What are instances of permissible
delegation to administrative agencies?
Ascertainment of fact, filling in of details,
fixing of rates, wages, prices, licensing
function, and administrative rule-making
5. As an instance of permissible delegation,
what is the power of ascertainment of
fact?
It is the power given to non-judicial
officers to declare the existence of
facts which call into operation the
statutes provisions. It is also the
power to ascertain and determine
appropriate facts as a basis of
procedure in the enforcement of
laws.
6. What is the nature of the power to fix
rates?
Generally, the power to fix rates is a
quasi-legislative function. However, it
becomes judicial when the rate is
applicable only to an individual.
7. Can the power to fix rates be delegated
to a common carrier or other public
service?
No. The common carrier or public
service may only propose new rates, but
these will not be effective without the
approval of the administrative agency.
8. When are notice and hearing required in
the exercise of licensing function by
administrative agencies?
Only if it is a contested case.
Otherwise, it can be dispensed with.
9. What are the types of administrative
rules promulgated in the exercise of the
administrative rule-making power of
agencies? Define each.
Supplementary legislation, interpretative
legislation and contingent legislation.
Supplementary legislation pertains to
rules and regulations fixing the details in
the execution of a policy in the law.
Interpretative legislation pertains to rules
and regulations construing or
interpreting the provisions of a statute to
be enforced, binding on all concerned
until changed. 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.
10. Define the quasi-judicial power of
administrative bodies.
It is the power of the administrative
agency to determine questions of fact to
which the legislative policy is to apply, in
accordance with the standards laid
down by the law itself.
11. May an administrative agency with quasi-
judicial functions issue subpoena even if
its charter is silent as to such power?
Why?
Yes. All agencies with quasi-judicial
functions have the power to issue
subpoena even if the charter is silent as
to such power because adjudicative
power will be rendered inutile if there is
no subpoena power.
12. Do administrative agencies have an
implied power to cite in contempt?
No, this power must be expressly
granted in the charter of the agency
because the power to cite in contempt is
inherently judicial.
13. May administrative agencies issue
warrants of arrest?
No. Only a judge may issue warrants of
arrest. The only exception where such
is allowed is the case of deportation of
illegal and undesirable aliens following a
final order of deportation.
POLITICAL LAW PRE-WEEK 32
14. What is substantial evidence?
Substantial evidence is such relevant
evidence which a reasonable mind
might accept as adequate to support a
conclusion.
15. What is the substantial evidence rule?
The substantial evidence rule provides
that findings of fact of administrative
agencies, if based on substantial
evidence, are conclusive and binding on
the courts.
16. Is trial or hearing a mandatory part of
administrative procedure?
No. Whether or not to hold an
adversarial trial is discretionary so that
parties cannot demand it as a matter of
right.
17. Is a respondent in an administrative case
entitled to the findings of investigative
committees?
No. While evidence on record must be
fully disclosed to the parties,
respondents in administrative cases are
not entitled to be informed of findings of
investigative committees but only of the
decision of the administrative body.
18. What is the basis of judicial review of
administrative decisions?
Courts have the underlying power 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.
19. What is the Doctrine of Primary
Jurisdiction or Preliminary Resort?
The doctrine provides that even if the
court has jurisdiction to take cognizance
of a particular case, 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.
20. What is the rationale for the Doctrine of
Primary Jurisdiction?
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.
21. What is the effect of the Doctrine of
Primary Jurisdiction?
The case is not dismissed, but merely
suspended until after the matters within
the competence of the administrative
agency are threshed out and
determined.
22. In what cases is the Doctrine of Primary
Jurisdiction inapplicable?
If the agency has exclusive jurisdiction
or when the issue is not within the
competence of the administrative body
to act on or when the issue involved is
clearly a factual question that does not
require specialized skills and knowledge
for resolution.
23. What are the requisites for the Doctrine
of Primary Jurisdiction to apply?
First, the administrative body and the
regular court must have concurrent and
original jurisdiction. Second, the
question to be resolved must require
expertise of administrative agency.
Third, the legislative intent on the matter
must be to have uniformity in rulings.
Finally, the administrative agency must
be performing a quasi-judicial or
adjudicatory function.
24. What is the Doctrine of Exhaustion of
Administrative Remedies?
The doctrine provides that 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.
25. What is the rationale for the Doctrine of
Exhaustion of Administrative Remedies?
The legal reason is that the law
prescribes a procedure which must be
followed. The practical reason is to give
the agency a chance to correct its own
errors and prevent unnecessary and
POLITICAL LAW PRE-WEEK 33
premature resort to the courts and also,
for reasons of comity, expedience,
courtesy and convenience.
26. What is the effect of failure to exhaust
administrative remedies?
It 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. It
does not affect jurisdiction of the court.
27. What is the difference between the
Ripeness Doctrine and the Doctrine of
Exhaustion of Administrative Remedies?
The Ripeness Doctrine applies to the
exercise of the rule-making functions
while the Doctrine of Exhaustion of
Administrative Remedies pertains to the
exercise of adjudicative functions.
28. What is the purpose of the Ripeness
Doctrine?
It is to prevent courts, thru avoidance of
premature adjudication, from entangling
themselves in abstract agreement over
administrative policies and 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.
29. What is the two-fold test for a
controversy to be ripe?
The fitness of the issue for judicial
decision and hardship to the parties of
withholding such court action.
30. What is the Doctrine of Qualified Political
Agency?
It provides that the act of the department
head is presumptively the act of the
President (as his alter ego), unless
revoked by the latter.
31. What is a question of fact?
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.
32. When does res judicata apply?
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.
33. Do administrative agencies performing
quasi-judicial functions have the power
to issue writs of execution?
The general rule is that administrative
agencies performing quasi-judicial
functions have the implied power to
issue writs of execution. The exception
is that if the enabling law expressly
provides otherwise.
34. What is the remedy if officials refuse to
implement a final and executory
judgment?
Mandamus.
35. When are questions of discretion or
policy reviewable by courts?
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.
POLITICAL LAW PRE-WEEK 34
LAW ON PUBLIC OFFICERS
Q: What is a public office?
A: 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.
Q: What is the difference between public
office and public employment?
A: Public employment is broader than public
office. All public office is public employment, but
not all public employment is a public office. 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. Public
employment as a position lacks either one or
more of the foregoing elements of a public office.
Q: What are the modes of creating public
office?
A: Public office may be created by the
Constitution, by statute / law or by a tribunal or
body to which the power to create the office has
been delegated.
Q: Who is a public officer?
A: A public officer is one who performs
governmental public functions / duties which
involve the exercise of discretion by virtue of
direct provision of law, popular election, or
appointment by competent authority. Sec 2 of
the Administrative Code defines a public officer
as a term which includes any government
employee, agent, or body authorized to exercise
governmental power in performing particular
acts or functions. Article 203 of the Revised
Penal Code defines a public officer as 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.
Q: What are the classification of public
offices and public officers?
A: As to creation, public offices or officers may
be constitutional or statutory. As to public body
served, they may be national or local. They may
also be classified as either legislative, executive
or judiciary depending on department of
government which they serve. As to nature of
their functions, they may be military or civil. As to
exercise of discretion or judgment they may
either be ministerial or quasi-judicial. An officer
may also be considered as either de jure or de
facto officer, the legality of his title to office being
the basis for classification. Lastly, they may be
classifies as either lucrative or honorary
depending on whether they receive
compensation or not in holding the office.
Q: What is the nature of an acting
appointment to a government office? Does
it give the appointee the right to claim that
the appointment will, in time, ripen into a
permanent one?
A: An acting appointment is merely temporary.
A temporary appointment cannot become a
permanent appointment, unless a new
appointment which is permanent is made, This
holds true unless the acting appointment was
made because of a temporary vacancy. In such
a case, the temporary appointee holds office
until the assumption of office by the permanent
appointee.
Q: What is the purpose of the de facto
doctrine?
A: Since the public cannot afford to check the
validity of the officers title each time they
transact with him, the de facto doctrine is applied
to ensure the orderly functioning of government.
Q: What is a de facto officer?
A: A de facto officer is 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. 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.
POLITICAL LAW PRE-WEEK 35
Q: What are the elements of de facto
officership?
A: For an officer to be considered a de facto
officer, there must be a validly existing public
office, he must have actual physical possession
of the office in good faith and color of title to the
office which may be based on: a) Reputation or
acquiescence; b) a 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; or d) known appointment or election
pursuant to an unconstitutional law before
declaration of unconstitutionality.
Q: What is the difference between a de facto
and de jure officer?
A: A de jure officer is one who is legally qualified
for the office, lawfully chosen to such office and
undertakes to perform the duties of such office
according to laws prescribed mode. A de facto
officer on the other hand, is one who assumed
office under color of right or general
acquiescence by the public and actually and
physically possessed the office in good faith. A
de jure officer has the lawful right / title to the
office but the de facto officer merely possesses
office and performs its duties under color of
right, but he is not technically qualified to act in
all points of law. A de jure officer cannot be
ousted even while a de facto officer can be
ousted in a direct proceeding through a quo
warranto proceeding. A de jure officer is
rightfully entitled to compensation while a de
facto officer is entitled to receive compensation:
only when no de jure officer is declared and is
paid only for actual services rendered.
Q: What are the legal effects of the acts of a
de facto officer?
A: 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. However, as to third parties and to the
public, the acts of a de facto officer are valid until
his title to office is adjudged insufficient
Q: What is the difference between eligibility
and qualification?
A: Eligibility is the endowment, requirement or
accomplishment that fits one for a public office
while Qualification is the endowment or act
which a person must do before he can occupy a
public office.
Q: What are the categories of officials
subject to the appointing power of the
President?
A: Under section 16 Article VII of the
Constitution, the six categories of officials who
are subject to the appointing power of the
president are the following:
a. Head of executive departments
b. Ambassadors, other public ministers
and consuls
c. Officers of the armed forces from the
rank of colonel or naval captain
d. Other officers whose appointments are
vested in him by the Constitution
e. All other officers of the government
whose appointments are not otherwise
provided by law and
f. Those whom he may be authorized by
law to appoint
Q: Who are the public officials whose
appointments are required to be confirmed
by the Commission of Appointments?
A: According to the case of Sarmiento v. Mison,
the only officers whose appointments need
confirmation by the commission of appointments
are the head of executive departments,
ambassadors, other public ministers and
consuls, officers of the armed forces from the
rank of colonel or naval captain and other
officials whose appointments are vested in the
President by the Constitution
Q: What are the qualifications for President
and Vice President as prescribed by the
Constitution?
A: Sec 2 of Article VII and Sec 3 of the same
Article states that the president and the Vice
president must be a natural-born citizen, at least
40 years old on election day and a Philippine
resident for at least 10 years immediately
preceding election day
Q: What are the qualifications for Senator as
prescribed by the Constitution?
A: Sec 3 of Article VI states that a senator
must be a natural-born citizen, atleast 35 years
old on election day , is able to read and write, a
registered voter and a resident of the Philippines
for not less than two years immediately
preceding election day.
Q: What are the qualifications prescribed by
the Constitution for members of the House of
Representatives?
A: Sec 6 Article VI of the Constitution provides
No person shall be a Member of the House of
Representatives unless he is a natural-born
citizen of the Philippines and, on the day of the
POLITICAL LAW PRE-WEEK 36
election, is at least twenty-five years of age, able
to read and write, and, except the party-list
representatives, a registered voter in the district
in which he shall be elected, and a resident
thereof for a period of not less than one year
immediately preceding the day of the election.
Q: What are the qualifications prescribed by
the Constitution for Supreme Court Justices
and judges of the lower courts?
A: Sec 7 of Article VIII of the Constitution
requires that a Member of the Supreme Court or
any lower collegiate court must be a natural-born
citizen of the Philippines. It further provides that
a member of the Supreme Court must be at
least forty years of age, and must have been for
fifteen years or more, a judge of a lower court or
engaged in the practice of law in the Philippines.
The Congress shall prescribe the qualifications
of judges of lower courts, but no person may be
appointed judge thereof unless he is a citizen of
the Philippines and a member of the Philippine
Bar. A Member of the Judiciary must also be a
person of proven competence, integrity, probity,
and independence.
Q: What are the qualifications prescribed by
the Constitution for Civil Service
Commissioners?
A: Sec 1(1) of Art IX-B of the constitution
provides that a Civil Service Commissioner
should be a natural-born citizen of the
Philippines, atleast 35 years old at time of
appointment, with proven capacity for public
administration and has not been a candidate for
any elective position in election immediately
preceding appointment
Q: What are the qualifications prescribed by
the Constitution for Commission on
Elections Commissioners?
A: Sec 1(1) Art IX-C of the Constitution requires
that a Commissioner of the COA must be a
natural-born citizen, atleast 35 years old at time
of appointment, a college degree holder, has not
been a candidate for elective position in election
immediately preceding appointment. The
chairman and majority of the Commissioners
should be members of the bar who have been
engaged in the practice of law for at least 10
years
Q: What are the qualifications prescribed by
the Constitution for Commission of Audit
Commissioners?
A: Sec 1 (1) Article IX-D of the Constitution
states that a Commissioner of the COA must be
a natural-born citizen of the Philippines, atleast
35 years old at time of appointment, a certified
public accountant with more than 10 years of
auditing experience or a member of the Bar who
has been engaged in practice of law for at least
10 years. He must not have been a candidate for
any elective position in election immediately
preceding appointment.
Q: What is the difference between
appointment and designation?
A: Appointment is one through which the
Appointing authority selects an individual who
will occupy a certain public office while
designation is the imposition of additional duties
upon existing office
Q: Differentiate regular appointments from
ad interim appointments?
A: Regular appointments are those 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. While ad interim appointments are those
made while Congress is not in session, before
confirmation by the Commission on
Appointments. They are immediately effective
and ceases to be valid if disapproved or
bypassed by the Commission on Appointments.
An ad interim appointment is a permanent
appointment and it being subject to confirmation
does not alter its permanent character.
Q: What is the effect of pardon granted in
favor of a public officer?
A: Pardon granted after conviction frees the
individual from all the penalties and legal
disabilities and restores him to all his civil rights.
But unless the right to public office (or the right
of suffrage) is expressly restored by the pardon
or unless it is expressly grounded on the
persons innocence, pardon does not ipso facto
restore a convicted felon to public office
necessarily relinquished or forfeited by reason of
the conviction although such pardon restores his
eligibility for appointment to that office. Stated
differently, a pardon of a public officer merely
removes the disqualification from holding public
employment but it cannot go beyond that. The
person pardoned may apply for reappointment to
the office which was forfeited by reason of his
conviction and undergo the usual procedure
required for a new reappointment.
Q: What is the next-in-rank rule?
A: This rule provides that the person next in rank
shall be given PREFERENCE in promotion
when the position immediately above his
position is vacated but this does not necessarily
follow that he alone and no one else can be
appointed. The qualified next in rank refers to an
POLITICAL LAW PRE-WEEK 37
employee appointed on a permanent basis to a
position previously determined to be next in rank
to the vacancy proposed to be filled and who
meets the requisites for appointment thereto as
previously determined by the appointing
authority and approved by the commission.
However, It is a settled rule that the appointing
authority is not limited to promotion in filling up
vacancies but may choose to fill them by the
appointment of persons with civil service
eligibility appropriate to the position, Even if a
vacancy were to be filled by promotion, the
concept of next in rank does not import any
mandatory requirement that the person next in
rank must be appointed to the vacancy. What
the civil service law provides is that if a vacancy
is filled by promotion, the person holding the
position next in rank shall be considered for
promotion.
Q: What is the automatic reversion rule?
A: This rule provides that 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. For an employee to be
automatically restored to his position there must
be: a) series of promotions; b) all appointments
are simultaneously submitted to the CSC for
approval and c) CSC disapproves the
appointment of a person proposed to a higher
position.
Q: What characterizes the career service and
what are included in the career service?
A: According to Sec 7, Chapter 2, Title I, Book V
of the Administrative Code of 1987, the career
service is characterized by: a) entrance based
on merit and fitness to be determined as far as
practicable by competitive examination or based
on highly technical qualifications; b) opportunity
for advancement to higher career positions and
c) security of tenure.
The career service includes:
1) open career positions for appointment to
which prior qualifications in an
appropriate examination is required
2) closed career positions which are
scientific or highly technical in nature
3) positions in the career executive service
4) career officers other than those in the
career executive service, who are
appointed by the president
5) commissioned officers and enlisted men
of the Armed forces
6) personnel of GOCCs, whether
performing governmental or proprietary
functions,, who do not fall under the
non-career service
7) permanent laborers, whether skilled,
semi-skilled or unskilled
Q What is nepotism?
A: Nepotism refers to the act of issuing an
appointment in favor of a relative within the third
civil degree of consanguinity or affinity of the
appointing authority, recommending authority,
chief of the bureau or officer or person
exercising immediate supervision over the
appointee. When the appointment is issued in
favor of a relative of a chief of the bureau or
officer or person exercising immediate
supervision over the appointee, it is immaterial
who is the appointing or recommending
authority.
Q: Who are exempted from the operation of
rules on nepotism?
A: The following are exempted from the
operation of the rules on nepotism:
a) persons employed in a confidential
capacity
b) teachers;
c) physicians and
d) members of the Armed Forces of the
Philippines
In each particular instance, full report of such
appointment is required to be made to the Civil
Service Commission.
Q: Is a public officer entitled to salary while
he is on preventive suspension?
A: It depends. The present Civil Service Law
and Administrative Code provides for two kinds
of preventive suspension: a) preventive
suspension pending investigation and b)
preventive suspension pending appeal if the
penalty imposed by the disciplinary authority is
suspension or dismissal and after review, the
respondent is exonerated. Preventive
suspension pending investigation is not a
penalty but a measure intended to enable the
disciplinary authority to investigate charges
against the public officer by preventing the latter
from intimidating/influencing witnesses against
him. If the investigation is not finished and a
decision is not rendered within the period
authorized by law for preventive suspension
pending investigation, the suspension will be
lifted and the public officer will automatically be
reinstated. If after investigation, he is exonerated
of the charges, he should also be reinstated.
During this period, no compensation is due.
Section 35 of the Civil Service Act of 1959,
provided for payment of salaries in case of
POLITICAL LAW PRE-WEEK 38
exoneration. The law was revised in 1975 and
this provision on payment of salaries was
deleted. This provision is reproduced in Sec 52
of the present Civil Service Law and Sec 24 of
the Ombudsman Act categorically provides that
preventive suspension shall be without pay. It is
clear that the purpose of the amendment is to
disallow the payment of salaries for the period of
suspension. It is not enough that the employee
is exonerated of the charges against him, it must
also be shown that the suspension is unjustified
to justify the payment of salaries during the time
he was preventively suspended pending
investigation.
However, the rule is different during the period
that the public officer is preventively suspended
during the pendency of appeal. Preventive
suspension pending appeal is actually punitive
and considered illegal if the public officer is
exonerated of the charges. Hence, he should be
reinstated with full pay for the period of his
suspension but if his conviction is affirmed, the
period of his suspension becomes part of the
final penalty of suspension or dismissal. (Gloria
v. CA)
Q: May a public officer be held liable for
damages in the performance of his official
functions?
A: The extant rule is that a public officer shall
not be liable by way of moral and exemplary
damages for acts done in the performance of his
official duties, unless there is clear showing of
bad faith, malice or gross negligence. No
judgment can be rendered to make them
personally liable in their private capacity, unless
there is an allegation in the complaint that such
officials have maliciously and in bad faith acted
outside the scope of their official authority or
jurisdiction. Absent any showing of bad faith or
malice, every public official is entitled to
presumption of good faith as well as regularity in
the performance or discharge of official duties.
Q: How long can a local elective official be
preventively suspended if there is an
administrative investigation conducted
against him?
A: Preventive suspension may be imposed at
any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity
of the offense, there is 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. Any single preventive suspension of
local elective officials shall not extend beyond 60
days. 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.
Q: Does re-election of an elective public officer,
render a pending administrative case against
him moot and academic?
A: Yes. The re-election renders the pending
administrative case against him moot. A local
elective official cannot be removed from office
for misconduct committed during his previous
term, because each term is separate and the
people by re-electing him are deemed to have
forgiven his conduct.
Q; Who may impose preventive suspension
to local elective officials?
A: Preventive suspension may be imposed by
the President if the respondent is an elective
official of a province, highly-urbanized city or an
independent component city. The governor may
impose preventive suspension if the respondent
is an elective official of a component city or
municipality and the mayor may preventively
suspend an elective official of the barangay.
Q: Can a local government official be
subsequently appointed to another public
office (ex. The president appoints a
provincial governor as concurrent
Presidential Assistant for political affairs)
without additional compensation?
A: No. Article IX-B Section 7 of the Constitution
provides that no elective official shall be eligible
for appointment or designation in any capacity to
any public office or position during his tenure. It
is the intention of this provision of the
Constitution that local elective officials should
devote their full time to their constituents. While
the second paragraph of Sec 7 of Article IX-B of
the 1987 Constitution allows appointive officials
to hold other officers when allowed by law or by
the primary functions of their positions, no such
exception is made in the first paragraph, which
deals with elective officials . It is the intention of
the Constitution to be more stringent with
elective officials.
Q: What are the means of terminating public
office?
A: The modes of termination of official relations
include:
1. expiration of term or tenure of office
2. reaching the age limit (retirement)
3. death or permanent disability
4. resignation
POLITICAL LAW PRE-WEEK 39
5. acceptance of an incompatible office
6. abandonment of office
7. prescription of right to office
8. removal
9. impeachment
10. abolition of office
11. conviction of a crime
12. recall
Q: What is the difference between
resignation and abandonment?
A: In the case of ORTIZ v. COMELEC,
resignation was defined as the act of giving up
or the act of an officer by which he declines his
office and renounces the further right to use it. It
is an expression of the incumbent in some form,
express or implied, of the intention to surrender,
renounce, and relinquish the office and the
acceptance by competent and lawful authority.
To constitute a complete and operative
resignation from public office, there must be an:
1) intention to relinquish a part of the term; 2) act
of relinquishment and 3) acceptance by the
proper authority. The last one is required by
reason of Art 238, RPC.
Abandonment of an office, on the other hand,
has been defined as the voluntary
relinquishment of an office by the holder with the
intention of terminating his possession and
control thereof. Indeed abandonment of office is
a species of resignation; while resignation in
general is a formal relinquishment,
abandonment is a voluntary relinquishment
through non-user. Non-user refers to a neglect
to use a privilege or to exercise an easement or
an office. Clear intention to abandon should be
manifested by the officer concerned.. Such
intention may be express or inferred from his
own conduct. Thus the failure to perform the
duties pertaining to the office must be with the
officers actual or imputed intention to abandon
and relinquish the office. Abandonment of an
office is not wholly a matter of intention, it results
from a complete abandonment of duties such a
continuance that the law will infer a
relinquishment. The essential elements of
relinquishment are: 1) an intention to abandon
and 2) an overt or external act by which the
intention is carried into effect
Q: What is impeachment?
A: Impeachment has been defined as a method
of national inquest into the conduct of public
men. Its purpose is to protect the people from
official delinquencies or malfeasances. It is
primarily intended for the protection of the State,
not for the punishment of the offender. The
penalties attached to impeachment are merely
incidental to the primary intention of protecting
the people as a body politic.
Q: What are the grounds for impeachment?
A: The President, Vice president, Members of
the Supreme Court, members of the
Constitutional commissions and the
Ombudsman may be removed from office on
impeachment for and conviction of, culpable
violation of the Constitution, Treason, bribery,
graft and corruption, other high crimes or
betrayal of public trust. ( Art XI Sec 2, 1987
Constitution). Culpable violation of the
Constitution means intentional violation of the
Constitution and not violations committed in
good faith. Treason and bribery have the same
meaning under the RPC. Graft and corruption
refers to prohibited acts enumerated in the Anit-
Graft and Corrupt Practices Act. High crimes
refer to offenses that strike at the very life of
orderly working of the government. Betrayal of
public trust refers to any violation of the oath
office.
Q: Is cronyism a legal ground for
impeachment of the president?
A: yes, cronyism is a legal ground for the
impeachment of the President. Under Section 2,
Article XI of the Constitution, betrayal of public
trust is one of the grounds for impeachment,
This refers to violation of the oath of office and
includes cronyism which involved unduly
favoring a crony to the prejudice of the public
interest.
POLITICAL LAW PRE-WEEK 40
ELECTION LAW
What are the quasi-judicial powers of
COMELEC?
1) Exclusive original jurisdiction over all
contests relating to the election, returns
and qualifications of all elective regional,
provincial and city officials.
2) 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.
What are the qualifications of a voter?
1) Citizenship: Filipino citizen by birth or
naturalization
2) Age: at least 18 at the time of the
election
3) Residency:
a. Resident of the Philippines for at
least 1 year and
b. Resident of the place wherein
they propose to vote for at least
6 months immediately preceding
the election
c. Note: If the transfer of residence
is due to any of the ff. reasons,
the person concerned will not be
deemed to have lost his original
residence:
i. employment in private
or public service
ii. educational activities
iii. work in the military or
naval reservations
within the Philippines
iv. service in the AFP, PNP
or
v. confinement or
detention in government
institutions in
accordance with law
4) Registered voter: must be registered in
the Permanent List of Voters for the city
or municipality in which he resides.
What are the grounds for disqualification of a
voter?
1) Sentenced by final judgment to suffer
imprisonment for not less than 1 year
(unless granted a plenary pardon or an
amnesty). He shall automatically
reacquire right to vote upon the
expiration of 5 years after the service of
sentence.
2) 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). He shall automatically
reacquire the right to vote upon the
expiration of 5 years after the service of
sentence.
3) Insane or incompetent persons as
declared by competent authority.
How is residence established under election
law?
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)]
Who has jurisdiction over
inclusion/exclusion proceedings?
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.
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.
Who is qualified to become an overseas
absentee voter?
A citizen of the Philippines who is qualified to
register and vote under the Overseas Absentee
Voting Act, not otherwise disqualified by law,
who is abroad on the day of elections.
What are the disqualifications of overseas
absentee voters?
1) lost their Filipino citizenship in
accordance with Philippine laws
2) expressly renounced their Philippine
citizenship and pledged allegiance to a
foreign country
3) 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
POLITICAL LAW PRE-WEEK 41
who have committed and been found
guilty of Disloyalty as defined under
Article 137 of the RPC
4) immigrant or a permanent resident who
is recognized as such in the host
country
a. unless he/she executes, upon
registration, an affidavit
prepared for the purpose by the
Commission declaring that:
i. he/she shall resume
actual physical
permanent residence in
the Philippines not later
than 3 years from
approval of his/her
registration and
ii. he/she has not applied
for citizenship in
another country
b. 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
5) 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.
What are the grounds for disqualification of
candidates?
1) Election offenses under the Omnibus
Election Code
1.1. Declared incompetent or insane by
competent authority
1.2. Permanent resident of or an immigrant
to a foreign country unless he has
waived such status
1.3. Sentenced by final judgment for:
1.3.1. Subversion, insurrection,
rebellion
1.3.2. Any offense for which he has
been sentenced to a penalty of
more than 18 months
imprisonment
1.3.3. A crime involving moral
turpitude
1.4. Given money or other material
consideration to influence, induce or
corrupt voters or public officials
performing electoral functions
1.5. Committed acts of terrorism to
enhance his candidacy
1.6. Spent in his election campaign an
amount in excess of that allowed
1.7. Solicited, received or made prohibited
contributions
1.8. Engaged in election campaign or
partisan political activity outside the
campaign period and not pursuant to a
political party nomination
1.9. Removed, destroyed, defaced lawful
election propaganda
1.10. Engaged in prohibited forms of
election propaganda
1.11. Violated election rules and regulations
on election propaganda through mass
media
1.12. 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
1.13. 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
1.14. Unlawful electioneering
1.15. Violated the prohibition against
release, disbursement or expenditure
of public funds 45 days before a
regular election or 30 days before a
special election
1.16. 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
2. Not possessing qualifications and
possessing disqualifications under Section
40 of the LGC
2.1. Sentenced by final judgment for an
offense punishable by at least 1 year
imprisonment within 2 years after
serving sentence
2.2. Removed from office as a result of an
administrative case
2.3. Convicted by final judgment for
violating the oath of allegiance to the
Republic of the Philippines
2.4. Dual citizenship refers to citizens
POLITICAL LAW PRE-WEEK 42
with dual allegiance
a. 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)]
b. 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)]
2.5. Fugitive from justice in criminal and
non-political cases here and abroad
2.6. Insane or feeble-minded
Can a person file more than one certificate 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.
What is the effect of filing a certificate of
candidacy by a person holding a public
appointive office or an elective office?
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.
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.
When is substitution of candidates allowed?
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.
What is the duty of the COMELEC with
respect to certificates of candidacy?
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. The Comelec may go beyond the
face of the certificate of candidacy ONLY in case
of nuisance candidates and petitions 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)
Who may file a petition to declare a
registered candidate a nuisance candidate?
Any registered candidate for the same office
may, within 5 days from the last day for the filing
of certificates of candidacy, personally or
through duly authorized representative with the
Comelec.
What are the grounds for the declaration of a
nuisance candidate?
POLITICAL LAW PRE-WEEK 43
If a certificate of candidacy has been filed -
1) To put the election process in mockery
or disrepute or
2) To cause confusion among the voters by
the similarity of the names of the
registered candidates or
3) 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
Who may file a petition to deny due course or
to cancel certificate?
Any person at any time not later than 25 days
from the time of the filing of the certificate of
candidacy may file a petition to deny due course
or to cancel a certificate of candidacy.
What is/are the grounds for filing a petition to
deny due course or to cancel certificate?
When any material representation contained in
the certificate of candidacy is false.
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. [Salic Maruhom vs Comelec, July
27, 2009]
What is the effect if a candidate is declared
by final judgment to be disqualified?
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.
What is the effect if a candidate is not
disqualified by final judgment before an
election 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.
What is the effect of a disqualification case
filed before the election and proclamation of
the respondent but the case is not resolved
prior to the election?
The trial and hearing of the case shall continue
and referred to the Law Department for
preliminary investigation. 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.
What is the effect of a disqualification case
on the election if it is filed AFTER the
election but BEFORE the proclamation of the
respondent-candidate?
The trial and hearing of the case shall be
suspended and referred to the Law Department
for preliminary investigation. 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.
What parties are disqualified from being
registered under the party-list system?
1) Religious denominations and sects
2) Those which seek to achieve their goals
through violence or unlawful means
3) Those which refuse to uphold and
adhere to the Constitution
4) Those supported by foreign
governments
What are the grounds for the refusal and/or
cancellation of registration of a party-list
group?
1) Religious sect or denomination,
organization or association, organized
for religious purposes
POLITICAL LAW PRE-WEEK 44
2) Advocates violence or unlawful means
to seek its goal
3) Foreign party or organization
4) 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
5) Violates or fails to comply with laws,
rules or regulations relating to elections
6) Declares untruthful statements in its
petition
7) Ceased to exist for at least 1 year
8) Fails to participate in the last 2
preceding elections or
9) 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
Who may be nominated as a party-list
representative?
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:
1) in 1 list only
2) if he/she has given their consent in
writing
3) is not a candidate for any elective office
or
4) has not lost his bid for an elective office
in the immediately preceding election
Note: Incumbent sectoral representatives in the
HR who are nominated in the party-list system
shall not be considered resigned.
What are the parameters in the allocation of
seats for party-list representatives?
1) 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.
2) 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.
3) Proportional representation the
additional seats shall be computed in
proportion to their total number of
votes.
4) 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.
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
2) Assign one party-list seat to each of the
parties next in rank until all available
seats are completely distributed. [Banat
vs. Comelec, July 8. 2009]
What is the effect if an elected party-list
representative changes affiliation?
Any elected party-list representative who
changes his political party or sectoral affiliation
during his term of office shall forfeit his seat. If
he changes his political party or sectoral
affiliation within six (6) months before an
election, he shall not be eligible for nomination
as party-list representative under his new party
or organization.
What is the definition of an 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.
POLITICAL LAW PRE-WEEK 45
Exclusions:
1) 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.
2) 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.
What are the campaign periods for:
a) President, Vice-President and
Senators? 90 days before the day of
the election.
b) Members of the HR and elective
provincial, city and municipal
officials? 45 days before the day of the
election.
What is the consequence of engaging in pre-
mature campaigning?
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. However,
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.
Does a person who files his certificate of
candidacy and begins campaigning before
the start of the campaign period disqualified
for engaging in premature campaigning?
In the case of Penera v. Comelec, the SC
overturned its previous ruling which affirmed
COMELECs decision to disqualify Penera as
mayoralty candidate for engaging in election
campaign outside the campaign period, in
violation of Sec. 80 of B.P. 881. The SC held
that 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,
such election offenses cannot be committed and
any partisan political activity is lawful. [Penera vs
Comelec, November 25, 2009]
What are the requirements for taking exit
polls?
1) 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
2) Pollsters shall wear distinctive clothing
3) Pollsters shall inform the voters that they
may refuse to answer and
4) The result of the exit polls may be
announced after the closing of the polls
on election 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.
What are the grounds to declare a failure of
elections?
1) Election in any polling place has not
been held on the date fixed due to force
majeure, violence, terrorism, fraud, or
other analogous causes
2) 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
3) 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.
In any of such cases, the failure or suspension
of election must affect the result of the election.
The causes for the declaration of failure of
election may occur before or after the casting of
votes or on the day of the election.
What is the remedy in case of a failure of
elections?
The COMELEC shall call for the holding or
continuation of the election which resulted in a
failure to elect upon a verified petition by any
interested party and after due notice and
hearing. The election shall be held on a date
reasonably close to the date of the election
which resulted in a failure to elect but not later
than 30 days after the cessation of the cause of
POLITICAL LAW PRE-WEEK 46
such postponement or suspension of the
election or failure to elect. The 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.
What are the grounds for the postponement
of elections?
1) Violence
2) Terrorism
3) Loss or destruction of election
paraphernalia or records
4) Force majeure
5) Other analogous cause of such a nature
that the holding of a free, orderly and
honest election becomes impossible in
any political subdivision.
The COMELEC shall postpone the election (en
banc by a majority vote of its members) motu
proprio or upon a verified petition by any
interested party and after due notice and
hearing.
The election shall be postponed to 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.
What is a pre-proclamation controversy?
It refers to any question or matter pertaining to
or affecting:
1) the proceedings of the board of
canvassers or
2) any matter raised under Sec. 233-236 of
BP 881 in relation to the preparation,
transmission, receipt, custody and
appreciation of the election returns.
What are the issues that may be raised in
pre-proclamation controversies?
1) Illegal composition or proceedings of the
board of election canvassers
2) Canvassed election returns are either:
i. Incomplete
ii. Contain material defects
iii. Appear to be tampered with or
falsified
iv. Contain discrepancies in the
same returns or in other
authentic copies
3) The election returns were
i. Prepared under duress, threats,
coercion, intimidation or
ii. Obviously manufactured or not
authentic
4) Substituted or fraudulent returns in
controverted polling places were
canvassed, the results of which
materially affected the standing of the
aggrieved candidate(s)
5) Manifest errors in the Certificates of
Canvass or Election Returns
This enumeration is restrictive and exclusive.
Who has jurisdiction over pre-proclamation
controversies?
1) COMELEC has exclusive jurisdiction
over pre-proclamation 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.
2) However, the pre-proclamation case
may be filed either with the Board of
Canvassers or directly with the
COMELEC if the questions raised
involve:
a. the composition or proceedings
of the board of canvassers or
b. correction of manifest errors
3) The pre-proclamation case must be filed
only with the Board of Canvassers if the
questions raised in the controversy
relate to the preparation, transmission,
receipt, custody and appreciation of the
election returns and certificates of
canvass.
Can a pre-proclamation controversy be filed
for any election?
No, pre-proclamation controversies are not
allowed for the elections of President, VP,
Senator, and Member of the House of
Representatives.
Can a pre-proclamation controversy still be
filed after the proclamation of the winning
candidate?
No, 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.
However, the prevailing candidate may still be
unseated even though he has been proclaimed
and installed in office if:
1) The opponent is adjudged the true
winner of the election by final judgment
of court in an election contest
2) The prevailing party is declared
POLITICAL LAW PRE-WEEK 47
ineligible or disqualified by final
judgment of a court in a quo warranto
case or
3) The incumbent is removed from office
for cause.
What is the effect of filing of pre-
proclamation controversy?
1) 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.
2) The right of the prevailing party in the
pre-proclamation contest to the
execution of COMELECs decision does
not bar the losing party from filing an
election contest.
3) 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.
Who has jurisdiction over election offenses?
RTCs have exclusive original jurisdiction to try
and decide any criminal actions or proceedings
for violation of election laws.
What are the election offenses?
A. Registration
1) Failure of the Board of Election
Inspectors to post the list of voters in
each precinct.
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
B. 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
2) Knowingly inducing or abetting such
misrepresentation of a disqualified or
nuisance candidate
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
C. Election Campaign
1) Appointment or use of special
policemen, special agents or the like
during the campaign period
2) Use of armored land, water or aircraft
during the campaign period
3) Unlawful electioneering
4) Acting as bodyguards or security in the
case of policemen and provincial guards
during the campaign period
5) Removal, destruction, obliteration, or
tampering of lawful election propaganda,
or preventing the distribution thereof
D. Voting
1) Vote-buying and vote-selling
2) Conspiracy to bribe voters
3) Coercion of subordinates to vote for or
against any candidate
4) Dismissal of employees, laborers, or
tenants for refusing or failing to vote for
any candidate
5) Being a flying voter
E. 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
2) A special election offense to be known
as electoral sabotage and the penalty to
be imposed shall be life imprisonment.
3) 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
F. Canvassing
1) 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
G. Acts of Government or Public Officers
1) Appointment of new employees,
creation of new positions, promotion, or
giving salary increases within the
election period
2) Transfer of officers and employees in
the civil service within the election
period without the prior approval of the
COMELEC
3) Intervening of public officers and
employees in the civil service in any
partisan political activity
4) Use of public funds for an election
campaign
5) Illegal release of prisoners before and
after election
6) Release, disbursement or expenditure of
public funds during the prohibited period
7) Construction of public works, etc. during
the prohibited period
POLITICAL LAW PRE-WEEK 48
8) Suspension of elective local officials
during the election period without prior
approval of the COMELEC
H. Coercion, Intimidation, Violence
1) Coercion of election officials and
employees
2) Threats, intimidation, terrorism, use of
fraudulent devices or other forms of
coercion
3) Use of undue influence
4) Carrying deadly weapons within the
prohibited area
5) Carrying firearms outside residence or
place of business
6) Organization or maintenance of reaction
forces, strike forces, or similar forces
during the election period
I. Other Prohibitions
1) Unauthorized printing of official ballots
and election returns with printing
establishments that are not under
contract with the COMELEC
2) Wagering upon the results of elections
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
4) Opening booths or stalls within 30
meters of any polling place
5) Holding fairs, cockfights, etc. on election
day
6) Refusal to carry election mail during the
election period
7) Discrimination in the sale of air time
Good faith is not a defense, as election
offenses are generally mala prohibita.
What is the period of prescription for election
offenses?
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.
What are the prohibited acts under R.A. 9369
amending the Automated Election Law?
1) Utilizing without authorization, tampering
with, damaging, destroying or stealing:
a. Official ballots, election returns, and
certificates of canvass of votes used in
the system; and
b. 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
transmission of election results, data or
information
3) 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
4) Refusal of the citizens' arm to present for
perusal its copy of election return to the
board of canvassers
5) Presentation by the citizens' arm of
tampered or spurious election returns
6) Refusal or failure to provide the dominant
majority and dominant minority parties or the
citizens' arm their copy of election returns
and
7) 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.
POLITICAL LAW PRE-WEEK 49
MULTIPLE CHOICE QUESTIONS
1. What are the requisites of judicial due
process?
i. There must be an impartial court or
tribunal clothed with the judicial
power to hear and determine the
matter before it
ii. Jurisdiction must be lawfully
acquired over the person of the
defendant and over the property
which is the subject matter of the
proceeding
iii. The defendant must be given an
opportunity to be heard
iv. Judgment must be rendered upon
lawful hearing
a. i, ii, iii
b. ii, iii, iv
c. i and iii only
d. All of the above
e. None of the above
2. According to the landmark case of
Villavicencio v. Lukban, what constitutional
right/principle was upheld by the Supreme
Court
a. Police power
b. Equal protection of the Law
c. Right against unreasonable search
and seizure
d. Liberty of abode
3. According to jurisprudence, what is/are the
test/s of police power
i. The interest of the public generally,
as distinguished from those of a
particular class, require the exercise
of the police power
ii. The means employed are
reasonably necessary for the
accomplishment of the purpose and
not unduly oppressive upon
individuals
a. i and ii
b. i only
c. ii only
d. none of the above
4. This remedy is 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.
a. Writ of Habeas Corpus
b. Writ of Amparo
c. Writ of Habeas Data
d. None of the above
5. When is an offense not bailable?
a. When it is punishable by reclusion
temporal and evidence of guilt is
strong
b. When it is punishable by death and
the evidence of guilt is strong
c. When it is punishable by reclusion
perpetua and the evidence of guilt is
strong
d. All of the above
6. According to Section 15, Article III of the
1987 Constitution, the privilege of the writ of
habeas corpus shall not be suspended
except in cases of:
a. Invasion or rebellion when the public
safety requires it
b. Lawless violence or rebellion when
the public safety requires it
c. Invasion and sedition when the
public safety requires it
d. Lawless violence and coup detat
when the public safety requires it
7. When is the presence in court of the
accused a duty
a. During presentation of evidence by
the prosecution
b. During presentation of evidence by
the defense
c. During cross-examination of
witnesses
d. None of the above
e. All of the above
8. According to Section 20 Article III of the
1987 Constitution, no person shall be
imprisoned for debt or nonpayment of:
a. Income tax
b. Excise tax
c. Real estate tax
d. Poll tax
9. The elements of a valid classification are:
i. It must be based on substantial
distinctions
ii. It must be germane to the purposes
of the law
iii. It must not contravene public
interest
iv. It must not be limited to existing
conditions only
v. It must apply equally to all members
of the same class
POLITICAL LAW PRE-WEEK 50
a. All except ii
b. All except iii
c. i, ii and iv only
d. All of the above
e. None of the above
10. Tonyo was convicted of robbery with
homicide. He was serving his sentence in
the New Bilibid Prisons. One day, the jail
warden ordered him and his fellow prisoners
to clean their surroundings and tend the
plants in the jail facility. Tonyo objected,
contending that this order is a violation of his
right against involuntary servitude. Is Tonyo
correct?
a. Yes, Section 18, Article III of the
Constitution absolutely prohibits any
form of involutary servitude
b. No, Section 18, Article III of the
Constitution allows involuntary
servitude of prisoners convicted of a
crime punishable by reclusion
temporal and reclusion perpetua
c. Yes, Section 18, Article III of the
Constitution prohibits involuntary
servitude of prisoners
d. No, Section 18, Article III of the
Constitution provides that
involuntary servitude may be
allowed as a punishment for a crime
whereof the party shall have been
duly convicted
11. It is defined as 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
a. Substantial due process
b. Procedural due process
c. Probable cause
d. Plausible cause
12. What is the basis for the payment of just
compensation
a. Fair market value
b. Zonal value
c. Current market price
d. Commercial value
13. 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.
a. Recognizance
b. Bond
c. Bail
d. None of the above
14. What is the basis of the right to cross-
examination?
a. Procedural due process
b. Presumption of innocence
c. Equal protection clause
d. Right of confrontation
15. The rule which states that where the
evidence adduced by the parties are evenly
balanced, the constitutional presumption of
innocence should tilt the balance in favor of
the accused
a. Equitable Rule
b. Equity Rule
c. Equilibrium Rule
d. Equipose Rule

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