Political Law

2008 Political Law and Public International Law Personal Review Notes (taken fro
m various sources: Sandoval lectures, Nachura, Bernas, Cruz, Agpalo, SBC & SSC-R
review materials, www.pinoylaw.net, etc.) Ma. Luisa Angeles Ramos
POLITICAL LAW
That branch of public law which deals with the organization and operations of th
e governmental organs of the State and defines the relations of the State with t
he inhabitants of its territory. Scope/Divisions of Political Law: 1. Constituti
onal Law—the study of the maintenance of the proper balance between authority as
represented by the three inherent powers of the state and liberty as guaranteed
by the Bill of Rights. 2. Administrative Law-- That branch of public law which
fixes the organization, determines the competence of administrative authorities
who executes the law, and indicates to the individual remedies for the violation
of his right. 3. Law on Municipal Corporations 4. Law of Public Officers 5. Ele
ctions Law Basis: 1. 1987 Constitution 2. 1973 and 1935 Constitutions 3. Organic
laws made to apply to the Philippines— a. Philippine Bill of 1902 b. Jones Law
of 1916 c. Tydings-McDuffie Law of 1934 4. Statutes, executive orders and decree
s, and judicial decisions 5. US Constitution Constitution
legislation direct from the people; states general principles;
Statute
legislation from the people’s representative; provides the details of the subj
ect matter of which it treats;
intended not merely to meet existing intended primarily to meet existing condi
tions conditions; only; it is the fundamental law of the State it conforms to
the Constitution
PHILIPPINE CONSTITUTION
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Constitution—it is the document which serves as the fundamental law of the State
; that body of rules and maxims in accordance with which the power of sovereignt
y are habitually exercised. That written instrument enacted by direct action of
the people by which the fundamental powers of the government are established, li
mited and defined, and by which those powers are distributed among the several d
epartments for their safe and useful exercise for the benefit of the body politi
c. It is the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer. No
act shall be valid, however noble its intention, if it conflicts with the Consti
tution. The Constitution must ever remain supreme. All must bow to the mandate o
f this law. Right or wrong, the Constitution must be upheld as long as the sover
eign people have not changed it. Classification: 1. Written or unwritten Written
Unwritten -one whose precepts are embodied in one -consists of rules which have
not been document or set of documents integrated into a single, concrete form b
ut are scattered in various sources Examples: a. statutes of fundamental charact
er; b. judicial decisions; c. commentaries of publicists; d. customs and traditi
ons; e. certain common law principles 2. Enacted (conventional) or Evolved (Cumu
lative) Enacted (conventional) Evolved (Cumulative) -formally struck off at a de
finite time and -the result of political evolution, not place following a consci
ous or deliberate inaugurated at any specific time but effort taken by a constit
uent body or ruler changing by accretion rather than by any systematic method 3.
Rigid or Flexible Rigid
Flexible
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-one that can be amended only by a formal -one that can be changed by ordinary a
nd usually difficult process legislation The Philippine Constitution is written,
conventional and rigid. It is embodied in one document and can be amended only
by a formal and usually difficult process. Interpretation: 1. Verba Legis—whenev
er possible, the words used in the Constitution must be given their ordinary mea
ning except where technical terms are employed.
2. When there is Ambiguity—ratio legis et anima--A doubtful provision shall be
examined in the light of the history of the times and the conditions and circums
tances under which the Constitution was framed. (Civil Liberties Union vs. Execu
tive Secretary, 194 SCRA 317)
3. Ut magis valeat quam pereat—the Constitution has to be interpreted as a
whole. (Francisco vs. HR, G.R. No. 160261, November 10, 2003) If the plain meani
ng of the word is not found to be clear, resort to other aids is available—const
rue the Constitution from what “appears upon its face”. The proper interpretatio
n, therefore, depends more on how it was understood by the people adopting it th
an in the framers’ understanding thereof. In case of doubt, the provision should
be considered as self-executing; mandatory rather than directory; and prospecti
ve rather than retroactive. Self-executing provision—one which is complete in it
self and becomes operative without the aid of supplementary or enabling legislat
ion, or that which supplies a sufficient rule by means of which the right it gra
nts may be enjoyed or protected. Essential Qualities of the Written Constitution
: 1. Broad; 2. Brief; and 3. Definite.
Essential parts of a good written Constitution:
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a. Constitution of Liberty—sets forth the fundamental civil and political rights
of the
b. MODERN VIEW—Courts simply refuse to recognize the law and determine
the rights of the parties as if the statute had no existence. Certain legal effe
cts of the statute prior to its declaration of unconstitutionality may be recogn
ized. Thus, a public officer who implemented an unconstitutional law prior to th
e declaration of unconstitutionality cannot be held liable (Ynot vs. IAC). Parti
al Unconstitutionality Requisites: a. The legislature must be willing to retain
the valid portion(s), usually shown by the presence of a separability clause in
the law—INTENT OF THE LEGISLATIVE; and b. The valid portion can stand independen
tly as law—INDEPENDENCE OF THE PROVISIONS.
PREAMBLE
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Effects of Declaration of Unconstitutionality: 2 Views: a. ORTHODOX VIEW— i. an
unconstitutional act is not a law; ii. it confers no rights; iii. it imposes no
duties; iv. it affords no protection; v. it creates no office; vi. it is inopera
tive, as if it had not been passed at all.
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citizens and imposes limitations on the powers of the government as a means of s
ecuring the enjoyment of those rights. e.g. Bill of Rights b. Constitution of Go
vernment—outlines the organization of the government, enumerates its powers, lay
s down certain rules relative to its administration and defines the electorate.
e.g. Legislative, Executive and Judicial Departments, Constitutional Commissions
c. Constitution of Sovereignty—the provisions pointing out the mode or procedur
e in accordance with which formal changes in the fundamental law may be brought
about. e.g. Art. XVII-Amendments or Revisions
The identification of the Filipino people as the author of the constitution call
s attention to an important principle: that the document is not just the work of
representatives of the people but of the people themselves who put their mark a
pproval by ratifying it in a plebiscite. 1. It does not confer rights nor impose
duties. 2. Indicates authorship of the Constitution; enumerates the primary aim
s and aspirations of the framers; and serves as an aid in the construction of th
e Constitution.
ARTICLE I NATIONAL TERRITORY
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The Preamble is not a source of power or right for any department of government.
It sets down the origin, scope, and purpose of the Constitution. It bears witne
ss to the fact that the Constitution is the manifestation of the sovereign will
of the Filipino people.
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WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER T
O BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY O
UR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP OUR PAT
RIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPENDENCE
AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOV
E, EQUALITY, AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.
The national territory comprises the Philippine archipelago, with all the island
s and waters embraced therein, and all other territories over which the Philippi
nes has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and
aerial domains, including its territorial sea, the seabed, the subsoil, the insu
lar shelves, and other submarines areas. The waters around, between and connecti
ng the islands of the archipelago, regardless of their breadth and dimensions, f
orm part of the internal waters of the Philippines.” Two (2) Parts of the Nation
al Territory: 1. The Philippine archipelago with all the islands and waters embr
aced therein; and 2. All other territories over which the Philippines has sovere
ignty or jurisdiction.
Spratlys Group of Islands was only discovered sometime in the 1950’s by a Filipi
no, Tomas Cloma. The latter waived his rights over the islands in favor of the P
hilippine Government. In effect, the government stepped into the shoes of the di
scoverer. By then President Marcos, what he did the moment Tomas Cloma waived hi
s rights over the Spratlys Group of Islands, is to have the islands immediately
occupied by Philippine troops. He then issued PD 1596, constituting the Spratlys
Group of Islands as a regular municipality claiming it the Municipality of Kala
yaan placing it under the Province of Palawan. And then he had the elections imm
ediately held in the islands so from that time on until now, we continue to hold
elections there. The Philippine exercises not only jurisdiction but also sovere
ignty over the Spratlys Group of Islands, yet it is not part of the Philippine A
rchipelago. Geographically, it is too far away from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN Secretariat. T
he Philippine claim to the islands is justified by reason of history, indispensa
ble need,
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Do you consider the Spratlys Group of Islands as part of Philippine Archipelago?
Spratlys Group of Islands is not part of the Philippine Archipelago because it
is too far away from the three main islands of the Philippines. It is found, ge
ographically, almost in the middle of the South China Sea. It is not part of the
Philippine Archipelago. Historically, when we talk about Philippine Archipelago
, we refer to those islands and waters that were ceded by the Spain to the Unite
d States by virtue of Treaty of Paris in 1898. And that did not include the Spra
tlys Group of Islands yet. Under the treaty, the islands that were ceded by Spai
n were identified—the main islands—Luzon, Visayas and Mindanao. Clearly, it did
not include the Spratlys Group of Islands.
¥say
and effective occupation and control. Thus, in accordance with the international
law, the Spratlys Group of islands is subject to the sovereignty of the Philipp
ines. Do you consider the Spratlys group of Islands as part of our National Ter
ritory? Yes. Article I of the Constitution provides: “The national territory co
mprises the Philippine archipelago, x x x, and all other territories over which
the Philippines has sovereignty or jurisdiction, x x x.” The Spratlys Group of i
slands falls under the second phrase “and all other territories over which the P
hilippines has sovereignty or jurisdiction”. It is part of our national territor
y because Philippines exercise sovereignty (through election of public officials
) over Spratlys Group of Islands. What was the basis of the Philippines’ claim
over the Spratlys? Through discovery of Tomas Cloma and occupation Modes of acq
uiring territories: 1. Discovery and Occupation—which are terra nullius (land be
longing to no one)
Doctrine of Effective Occupation—discovery alone is not enough. Mere discovery g
ives
only an inchoate right to the discoverer. For title to finally vest, discovery m
ust be followed by effective occupation in a reasonable time and attestation of
the same.
2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and US
ceding Louisiana to the latter and treaty between Russia and US ceding Alaska t
o the latter; 3. Prescription—which is a concept under the Civil Code. Territory
may also be acquired through continuous and uninterrupted possession over a lon
g period of time. However, in international law, there is no rule of thumb as to
the length of time for acquisition of territory through prescription. In this c
onnection, consider the Grotius Doctrine of immemorial prescription, which speak
s of uninterrupted possession going beyond memory. 4. Conquest or Subjugation (c
onquistadores)—this is no longer recognized, inasmuch as the UN Charter prohibit
s resort to threat or use of force against the territorial integrity or politica
l independence of any state; and 5. Accretion—another concept in the Civil Code.
It is the increase in the land area of the State, either through natural means,
or artificially, through human labor.
Philippine Archipelago: 1. Treaty of Paris, December 10, 1898—Cession of the
Philippine Islands by Spain to the United States; 2. Treaty between Spain and U
S at Washington, November 7, 1900—inclusion of Cagayan, Sulu and Sibuto;
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3. Treaty between US and GB, January 2, 1930—inclusion of Turtle and Mangsee Isl
ands. Other territories over which the Philippines has sovereignty or jurisdicti
on: 1. Batanes—(1935 Constitution); 2. Those contemplated under Article I, 1973
Constitution—belonging to the Philippines by historic right or legal title; 3. P
D 1596, June 11, 1978-- constituting the Spratly’s Group of Islands as a regular
municipality claiming it the Municipality of Kalayaan, placing it under the Pro
vince of Palawan.
“xxx The waters around, between and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of
the Philippines.” This second sentence of Article I is not the Archipelago Doct
rine. This is only our restatement/reaffirmation of our adherence to the Archipe
lago Doctrine simply because we are an archipelago consisting of 7,107 islands.
It is essential for our national survival that we adhere to the archipelago prin
ciple. Archipelago Doctrine—merely emphasizes the unity of lands and waters. It
is a body of waters interconnected with other natural features. Under the United
Nation Convention on the Law of Sea (UNCLOS), it consists of drawing imaginary
baseline connecting the outermost islands of the archipelago in which all waters
, islands is considered as one integrated whole. An archipelago is defined as gr
oup of islands, interconnecting waters and other natural features which are so c
losely interrelated that such islands, waters and natural features form an intri
nsic geographical, economical and political entity, or which historically been r
egarded as such. Correlate this doctrine to right of innocent of passage, right
of arrival under stress and UNCLOS requiring the designation of archipelagic sea
ways so that foreign vessels may pas through an archipelago.
2 Kinds of Archipelago:
1. Coastal
Archipelago—situated close to a mainland and may be considered a part thereof. A
rchipelago—situated in the ocean at such distance from the coasts of firm land.
The Philippines is classified as mid-ocean archipelago just
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like Indonesia. The Philippines is not in any way connected physically with the
Asia mainland. Components of National Territory:
I. Terrestrial—land mass on which the inhabitants live; II. Fluvial—maritime
;
among them are: i. Rivers—which may be: 1. National 2. Boundary—divides the terr
itories of States 3. International—flows thru various States a. Thalweg Doctrine
—for boundary rivers, in the absence of an agreement between the riparian states
, the boundary line is laid on the middle of the main navigable channel. b. Midd
le of the Bridge Doctrine—where there is a bridge over a boundary river, the bou
ndary line is the middle or center of the bridge.
ii. Bays and gulfs—a bay is a well-marked indentation whose
penetration is in such proportion to the width of its mouth as to contain a land
-locked waters and constitutes more than a curvature of the coast. Also referred
to as juridical bay. The area must be as large as, or larger than, a semi-circl
e whose diameter is a line drawn across the mouth of such indentation, or if the
mouth is less than 24 miles wide. e.g. Hudson Bay in Canada, one whose waters a
re considered internal because of the existence of a historic title.
iii. Straits—narrow passageways connecting 2 bodies of water. If the
distance between the 2 opposite coast is not more than 6 miles, they are conside
red internal waters.
In international law, when a strait within a country has a width of more than
six (6) miles, the center lane in excess of the three (3) miles on both sides is
considered international waters.
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a. Internal or national waters—bodies of water within the land mass,
iv. Canals—the most famous is the Suez Canal, which is neutralized,
and the Panama Canal, which is open to everyone in times of war or peace.
b. Archipelagic waters—are the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the coast.
Vessels may be allowed innocent passage within the archipelagic waters, but thi
s right may be suspended, after publication, in the interest of international se
curity. The coastal state may also designate archipelagic sea lanes for continuo
us, unobstructed transit of vessels.
c. Territorial Sea—the belt of the sea located between the coast and the
internal waters of the coastal state on the other hand, and the high seas on the
other, extending up to 12 nautical miles from the low-water mark, or in the cas
e of archipelagic states, from the baselines.
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Straight Archipelagic Baseline—to determine the archipelagic waters, the state s
hall draw straight baselines connecting the outermost points of the outermost is
lands and drying reefs, provided that the ratio of the area of the water to the
area of the land, including atolls, is between 1:1 and 9:1. The length of such b
aselines shall not exceed 100 nautical miles, except up to 3% of the total numbe
r of baselines enclosing any archipelago may exceed that length, up to a maximum
125 miles. The baselines drawn should not depart, to any appreciable extent, fr
om the general configuration of the archipelago. All the waters within the basel
ines shall then be considered internal waters. The breadth of the 12-mile territ
orial sea, the contiguous zone, the exclusive economic zone and the continental
shelf shall then be measured from the archipelagic baselines.
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Archipelagic State—a state made up wholly of one or two archipelagos. It may inc
lude other islands.
Baseline—is a line from which the breadth of the territorial sea, the contiguous
zone and the exclusive economic zone is measured in order to determine the mari
time boundary of the coastal state. Types of baseline: i. Normal Baseline Method
ii. Straight Baseline method
e. Exclusive Economic Zone—shall not extend beyond 200 nautical miles
from the archipelagic baselines.
f.
Continental shelf—it is the seabed and subsoil of the submarine areas extending
beyond the Philippine territorial sea throughout the natural prolongation of the
land territory. It extends up to: i. The outer edge of the continental margin;
or ii. A distance of 200 nautical miles from the archipelagic baselines, whichev
er is the farthest.
The continental shelf does not form part of the Philippine territory. The Philip
pines has the sovereign rights over the continental shelf for the purpose of exp
loring it and exploiting its natural resources. g. High Seas—treated as res comm
unes, thus, not territory of any particular State. These are the waters which do
not constitute the internal waters, archipelagic waters, territorial sea and ex
clusive economic zones of a state. They are beyond the jurisdiction and sovereig
n rights of States. Freedom of navigation—refers to the right to sail ship on th
e high sea, subject to international law and the laws of the flag of the state.
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sea; this shall not exceed 24 nautical miles from the archipelagic baselines. Th
e coastal state may exercise limited jurisdiction over the contiguous zone: 1. T
o prevent infringement of customs, fiscal immigration or sanitary laws and regul
ations within its territory or territorial sea; and 2. To punish infringement of
the above laws and regulations committed within its territory.
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d. Contiguous Zone—extends up to 12 nautical miles from the territorial
(See also discussion on UNCLOS)
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III.Aerial—this refers to the air space above the land and waters of the State.
(See Discussions under International Law)
ARTICLE II
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DECLARATION OF PRINCIPLES AND STATE POLICIES
Sec. 1, Article II The Philippines is a democratic and republican State. Soverei
gnty resides in the people and all government authority emanates from them.
(Relate this to Article XI)
1. Essential features: Representation and Renovation.
2. Manifestations: Ours is a government of law and not of men (Villavicencio v
s. Lukban, 39 Phil 778). Rule of the majority. (Plurality in elections) Acco
untability of public officials Bill of rights Legislature cannot pass irrepe
alable laws. Separation of powers.
Republicanism
What is a republican form of government? It is a government of the people, by
the people, and for the people, a representative government wherein the powers a
nd duties of government are exercised and discharged for the common good and wel
fare.
Characteristics of a republican form of government: 1. The people do not govern
themselves directly but through their representatives; 2. It is founded upon po
pular suffrage; 3. There is the tripartite system of the government, the mutual
interdependence of the three departments of the government. STATE—a community of
persons, more or less numerous, permanently occupying a definite portion of ter
ritory, independent of external control, and possessing a government to which a
great body of inhabitants render habitual obedience. (CIR vs. Campos Rueda, 42 S
CRA 23)
State -is a legal or juristic concept
Nation -is an ethnic or racial concept
State Government -possesses a government to which a great -merely an instrumenta
lity of the State
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body of inhabitants obedience
render
habitual through which the will of the State is implemented and realized.
Republican state—one constructed on the principle that the supreme power resides
in the body of the people. Its purpose therefore is to guarantee against two (2
) extremes: 1. On the one hand, monarchy and oligarchy; 2. On the other, pure de
mocracy. Elements of State:
1. People —the
inhabitants of the State; the # of which is capable for selfsufficiency and self
-defense; of both sexes for perpetuity. a. Inhabitants; b. Citizens; c. Electors
. fixed portion of the surface of the earth inhabited by the people of the State
.
2. Territory—a
3. Government—the agency or instrumentality through which the will of the State
is formulated, expressed and realized.
Government of the Philippines—refers to the corporate governmental entity throug
h which the functions of the government are exercised throughout the Philippines
, including, save as the contrary appears from the context, the various arms thr
ough which political authority is made effective in the Philippines, whether per
taining to the autonomous regions, the provincial, city, municipal or barangay s
ubdivisions or other forms of local government. De Jure vs. De Facto De Jure De
Facto Has a rightful title but no power or Actually exercises the power or co
ntrol control, either because the same has but without legal title. been withdra
wn from it or because it a. De facto proper—government has not yet actually ente
red into the that gets possession and control exercise thereof. of, or usurps, b
y force or by the voice of the majority, the rightful legal government and maint
ains itself against the will of the latter; b. Government of Paramount
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It embodies interdependence separation and coordination. Unitary vs. Federal G
overnment
by It embodies integration.
interdependence
by
Functions of the government: a. Constituent—compulsory because constitutive of t
he society; b. Ministrant—undertaken to advance the general interest of the soci
ety; merely optional. Doctrine of Parens Patriae—the government as guardian of t
he rights of the people may initiate legal actions for and in behalf of particul
ar individual. (Government of the Philippine Islands vs. Monte de Piedad, 35 SCR
A 738; Cabañas vs. Pilapil, 58 SCRA 94)
4. Sovereignty—the supreme and uncontrollable power inherent in a State by which
that State is governed.
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Presidential vs. Parliamentary Presidential There is separation of legislative
and executive powers. The first is lodged in the President and the second is ve
sted in Congress.
Parliamentary There is fusion of both executive and legislative powers in Parli
ament, although the actual exercise of the executive powers is vested in a Prime
Minister who is chosen by, and accountable to, Parliament.
¥say
Forces—established and maintained by the military forces who invade and occupy a
territory of the enemy in the course of war; c. Independent Government— establi
shed by the inhabitants of the country who rise in insurrection against the pare
nt State.
It is the right to exercise the functions of a State to the exclusion of any oth
er State. While sovereignty has traditionally been deemed absolute and all-encom
passing on the domestic level, it is however subject to restrictions and limitat
ions voluntarily agreed to by the Philippines, expressly or impliedly, as a memb
er of the family of nations. In its Declaration of Principles and State Policies
, the Constitution adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality, j
ustice, freedom, cooperation and amity, with all nations. By the doctrine of inc
orporation, the country is bound by generally accepted principles of internation
al law, which are considered to be automatically part of our own laws. “Governme
nt of Laws and Not of Men.”—sovereignty of the people also includes the concept
that government officials have only the authority given them by law and defined
by law, and such authority continues only with the consent of the people. Kinds
of Sovereignty: a. Legal—the power to issue final commands; b. Political—the s
um total of all the influences which lie behind the law; c. Internal—the supreme
power over everything within its territory; d. External—also known as independe
nce—freedom from external control. Characteristics: a. Permanence b. Exclusivene
ss c. Comprehensiveness d. Absoluteness e. Indivisibility f. Inalienability g. I
mprescriptibility Sovereignty, often referred to as Imperium—is the State’s auth
ority to govern; it includes passing laws governing a territory, maintaining pea
ce and order over it, and defending it against foreign invasion. It is the gover
nment authority possessed by the State expressed in the concept of sovereignty.
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Dominium—is the capacity of the State to own or acquire property such as lands a
nd natural resources. (Lee Hong Hok vs. David, No. L-30389, December 27, 1972; S
eparate Opinion of Justice Kapunan in Cruz vs. Secretary of DENR, G.R. No. 13538
5, December 2000) It necessarily includes the power to alienate what is owned. I
t was the foundation for the early Spanish decrees embracing the feudal theory o
f jura regalia that all lands were held from the Crown. Effect of Belligerent Oc
cupation—there is no change in sovereignty. However, political laws, except thos
e of treason, are suspended; municipal laws remain in force unless changed by th
e belligerent occupant. Principle of Jus Postliminium—at the end of the occupati
on, when the occupant is ousted from the territory, the political laws which hav
e been suspended shall automatically become effective again. (Peralta vs. Direct
or of Prisons, No. L049, November 12, 1945) Effect of Change of Sovereignty—poli
tical laws of the former sovereign are abrogated unless they are expressly reena
cted by the affirmative act of the new sovereign. Municipal laws remain in force
. (Macariola vs. Asuncion, Adm. Case No. 133-J, May 31, 1982) Effect of Revoluti
onary Government—it is bound by no constitution. However, it did not repudiate t
he Covenant or Declaration in the same way it repudiated the Constitution. As th
e de jure government, the revolutionary government could not escape responsibili
ty for the State’s good faith compliance with its treaty obligations under inter
national law. During the interregnum when no constitution or Bill of Rights exis
ted, directives and orders issued by government officers did not exceed the auth
ority granted them by the revolutionary government. The directives or orders sho
uld not have also violated the Covenant or the Declaration. (Republic vs. Sandig
anbayan, G.R. No. 104768, July 21, 2003) Jurisdiction—is the manifestation of so
vereignty. a. Territorial—power of the State over persons and things within its
territory subject to its control and protection.
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b. Personal—power of the State over its nationals, which may be exercised by
the state even if the individual is outside the territory of the State. c. Extra
territorial—power of the State over persons, things or acts beyond its territori
al limits by reason of their effects to its territory. Sec. 2, Article II (Incor
poration Clause) The Philippine renounces war as an instrument of national polic
y, adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations. Three (3) parts: 1. Renunciation of war
—the power to wage a defensive war is of the very essence of sovereignty; 2. Ado
ption of the principles of international law; 3. Adherence to a policy of peace,
equality, justice, freedom, cooperation & amity. The second part is nothing mor
e than a formal acceptance of a principle to which all civilized nations must co
nform. The third part is called the “selfish policy”—the guiding principle of Ph
ilippine foreign policy is the national interest. However, this is tempered with
concern for “equality, peace, freedom and justice. Section 23 (1), Article VI:
The Congress, by a vote of two-thirds of both Houses in join session assembled,
voting separately, shall have the sole power to declare the existence of a state
of war. Doctrine of Incorporation—the doctrine where the generally accepted pri
nciples of international law are made part of the law of the land either by expr
ess provision of the Constitution or by means of judicial declaration or fiat. T
he doctrine is applied whenever municipal tribunals or local courts are confront
ed with situations in which there appears to be a conflict between a rule of int
ernational law and the provisions of the Constitution or statute of a State. Eff
orts should first be exerted to harmonize them so as to give effect to both. In
case of conflict between international law and municipal law, the latter shall p
revail. However, the doctrine dictates that rules of international law are given
equal standing with, and are not superior to, national legislative enactments.
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Lex posterior derogate priori—in States where the constitution is the highest la
w of the land, both statutes and treaties may be invalidated if they are in conf
lict with the Constitution. (Secretary of Justice vs. Lantion, G.R. No. 139465,
January 18, 2000) Philip Morris, Inc. vs. CA, the fact that the international la
w has been made part of the law of the land does not by any means imply the prim
acy of international law over national law in the municipal sphere. Doctrine of
Autolimitation— It is the doctrine where the Philippines adheres to principles o
f international law as a limitation to the exercise of its sovereignty.
Sec. 3, Article II (Civilian Supremacy Clause) Civilian authority is, at all tim
es, supreme over the military. The Armed Forces of the Philippines is the protec
tor of the people and the State. Its goal is to secure the sovereignty of the St
ate and the integrity of the national territory. Civilian Supremacy Clause Sec.
18, Art. VII—installation of the President as the highest civilian authority, as
the commander-in-chief of the AFP—external manifestation that civilian authorit
y is supreme over the military. Sec. 5(1), Art. XVI—members of the AFP swear to
uphold and defend the Constitution, which is the fundamental law of the civil go
vernment. Civilian supremacy is not a guaranteed supremacy of civilian officers
who are in power but of supremacy of the sovereign people. The Armed Forces, in
this sense, “is the protector of the people and the State”. Sec. 6, Article XVI—
The State shall establish and maintain one police force, which shall be national
in scope and civilian in character, to be administered and controlled by a nati
onal police commission. The authority of local executives over the police units
in their jurisdiction shall be provided by law. IBP vs. Zamora, G.R. No. 141284
, August 15, 2000, the deployment of the
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What war does the Philippines renounce? The Philippines renounces an aggressiv
e war because of its membership in the United Nations whose charter renounces wa
r as an instrument of national policies of its member States.
¥say
Marines does not constitute a breach of the civilian supremacy clause. The calli
ng of the marines in this case constitutes permissible use of military asset for
civilian law enforcement. x x x The limited participation of the Marines is evi
dent in the provisions of the Letter of Instruction (LOI) itself, which sufficie
ntly provides the metes and bounds of the Marines’ authority. It is noteworthy t
hat the local police forces are the ones charge of the visibility patrols at all
times, the real authority belonging to the PNP. In fact, the Metro Manila Polic
e Chief is the overall leader of the PNP-Marines joint visibility patrols. Under
the LOI, the police forces are tasked to brief or orient the soldiers on police
patrol procedures. It is their responsibility to direct and manage the deployme
nt of the marines. It is, likewise, their duty to provide the necessary equipmen
t to the Marines and render logistic support to these soldiers. In view of the f
oregoing, it cannot be properly argued that military authority is supreme over c
ivilian authority. It is worth mentioning that military assistance to civilian a
uthorities in various forms persists in Philippine jurisdiction. The Philippine
experience reveals that it is not averse to requesting the assistance of the mil
itary in the implementation and execution of certain traditionally “civil” funct
ions. x x x Some of the multifarious activities wherein military aid has been re
ndered, exemplifying the activities that bring both the civilian and the militar
y together in a relationship of cooperation are: 1. Elections; 2. Administration
of the Philippine National Red Cross; 3. Relief and rescue operations during ca
lamities and disasters; 4. Amateur sports promotion and development; 5. Developm
ent of the culture and the arts; 6. Conservation of the natural resources; 7. Im
plementation of the agrarian reform program; 8. Enforcement of customs laws; 9.
Composite civilian-military law enforcement activities; 10. Conduct of licensure
examinations; 11. Conduct of nationwide test for elementary and high school stu
dents; 12. Anti-drug enforcement activities; 13. Sanitary inspections; 14. Condu
ct of census work; 15. Administration of the Civil Aeronautic Board; 16. Assista
nce in installation of weather forecasting devices; 17. Peace and order policy f
ormulation in local government units. This unquestionably constitutes a gloss on
executive power resulting from a systematic, unbroken, executive practice, long
pursued to the knowledge of Congress and, yet, never before questioned. What we
have here is a mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy. Sec. 4, Article II The prime
duty of the Government is to serve and protect the people. The
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Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to rend
er personal military or civil service.
Does the Philippines renounce defensive war? No, because it is duty bound to d
efend its citizens. Under the Constitution, the prime duty of the government is
to serve and protect the people.
Posse Commitatus—it is the power of the state to require all able-bodied citizen
s to perform civic duty to maintain peace and order. In People vs. Lagman, 66 Ph
il. 13, the accused in this case, prosecuted for failure to register for militar
y service under the National Defense Act, assailed the validity of the Act. The
Supreme Court upheld the law on the basis of the compulsory military and civil s
ervice provision of then 1935 Constitution. It said that: “x x x. The duty of th
e Government to defend the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens would be to make t
his duty to the Government excusable should there be no sufficient men who volun
teer to enlist therein…x x x the right of the Government to require compulsory m
ilitary service is a consequence of its duty to defend the State and is reciproc
al with its duty to defend the life, liberty, and property of the citizen. x x x
.”
Sec. 5, Article II The maintenance of peace and order, the protection of life, l
iberty, and property, and the promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of democracy. Right to bear ar
ms: It is statutory and not a constitutional right. The license to carry a firea
rm is neither a property nor a property right. Neither does it create a vested r
ight. Even if it were a property right, it cannot be considered absolute as to b
e placed beyond the reach of police power. The maintenance of peace and order, a
nd the protection of the people against violence are constitutional duties of th
e State, and the right to bear firearm is to be construed in connection and in h
armony with these constitutional duties. (Chavez vs. Romulo, G.R. No. 157036, Ju
ne 9, 2004) Sec. 6, Article II The separation of Church and State shall be invio
lable.
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The State should not use its money and coercive power to establish religion. It
should not support a particular religion. The State is prohibited from interferi
ng with purely ecclesiastical affairs. But it does not mean that there is total
or absolute separation. The better rule is symbiotic relations between the churc
h and State. Constitutional provisions evidencing the Separation of Church and S
tate: 1. Sec. 6, Art. II 2. Sec. 5, Art. III—No law shall be made respecting an
establishment of religion, or
3. Sec. 2 (5), Art. IX-C—religious sect cannot be registered as political party
4. Sec. 5 (2), Art. VI—no sectoral representative from the religious sector 5. S
ec. 28 (3), Art. VI—Charitable institutions, churches and parsonages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, a
nd improvements, actually, directly, and exclusively used for religious, charita
ble, or educational purposes shall be exempt from taxation. 6. Sec. 29 (2), Art.
VI—No public money or property shall be appropriated, applied, paid, or employe
d, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, p
reacher, minister, or 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. 7. Sec. 3 (
3), Art. XIV—At the option expressed in writing by the parents or guardians, rel
igion shall be allowed to be taught to their children or wards in public element
ary 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. 8. Sec. 4 (2), Art. XIV
—Filipino ownership requirement for educational institutions,
except those established by religious groups and mission boards.
Austria vs. NLRC and CPU Mission Corp. of the 7th Day Adventists, G.R. No. 12438
2, August 16, 1999, an ecclesiastical affair involves the relationship between t
he church and its members and relates to matter of faith, religious doctrines, w
orship and governance of the congregation. Examples of these affairs in which th
e State cannot meddle are proceedings for excommunication, ordination of religio
us ministers, administration of sacraments, and other activities to which is att
ached religious significance. In this case, what is involved is the relationship
of the church as an employer and the minister as an employee. It is purely secu
lar and has no relation whatsoever with the practice of faith, worship or doctri
ne of the church.
STATE POLICIES
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¥say
prohibiting the free exercise thereof. The free exercise and enjoyment of religi
ous profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil and po
litical rights.
Sec. 7, Article II (Independent Foreign Policy) The State shall pursue an indepe
ndent foreign policy. In its relations with other states the paramount considera
tion shall be national sovereignty, territorial integrity, national interest, an
d the right to self-determination. The word “relations” covers the whole gamut o
f treaties and international agreements and other kinds of intercourse. This is
the closest reference to military bases. There is a marked antipathy in the Cons
titution towards foreign military presence in the country, or of foreign influen
ce in general. (Lim vs. Executive Secretary, G.R. No. 151445, April 11, 2002) Se
c. 8, Article II (Policy of Freedom from Nuclear Weapons) The Philippines, consi
stent with the national interest, adopts and pursues a policy of freedom from nu
clear weapons in its territory. Clearly, the ban is on nuclear arms—that is, the
use and stockpiling of nuclear weapons, devices, and parts thereof. And this in
cludes not only possessing, controlling and manufacturing nuclear weapons, but a
lso nuclear test in our territory, as well as the use of our territory as dumpin
g ground for radioactive waste. The provision, however, is not a ban on the peac
eful uses of nuclear energy. Nor is it a ban on all “nuclear-capable vessels.” F
or a vessel to be banned, it is not enough that it is capable of carrying nuclea
r arms; it must actually carry nuclear arms. Nuclear weapons, if stored in our t
erritory, may invite threats of foreign invasion and there is a danger to the li
fe and limbs of the people because of the threat of explosion. Sec. 9, Article I
I (Just and Dynamic Social Order) The State shall promote a just and dynamic soc
ial order that will ensure the prosperity and independence of the nation and fre
e the people from poverty through policies that provide adequate social services
, promote full employment, a rising standard of living, and an improved quality
of life for all. It reflects a preoccupation with poverty as resulting from stru
ctures that mire the people in a life of dependence. Sec. 10, Article II
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(Social Justice) The State shall promote social justice in all phases of nationa
l development. (Read Sections 1 and 2 of Article XIII) Sections 1&2 of Article X
III: Section 1—The Congress shall give highest priority to the enactment of meas
ures that protect and enhance the right of all the people to human dignity, redu
ce social, economic, and political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for the common good. To this e
nd, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments. Section 2—The promotion of social justice shall in
clude the commitment to create economic opportunities based on freedom of initia
tive and self-reliance. The Constitution covers all phases of national developme
nt but with more emphasis not only on economic inequities but also on political
and cultural inequities. Sec. 11, Article II (Personal Dignity and Human Rights)
The State values the dignity of every human person and guarantees full respect
for human rights. (Read Sections 17-19 of Article XIII)
Section 12, Article II (The Family as Basic Social Institution) The State recogn
izes the sanctity of family life and shall protect and strengthen the family as
a basic autonomous social institution. It shall equally protect the life of the
mother and the life of the unborn from conception. The natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and the de
velopment of moral character shall receive the support of the government. (Read
Article XV) The family here is to be understood as a stable heterosexual relatio
nship whether formalized by civilly recognized marriage or not. Calling the fami
ly “a basic social institution” is an assertion that the family is anterior to t
he State and is not a creature of the State. The categorization of the family as
“autonomous” is meant to
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Page 257/12/2008
¥say
protect the family against instrumentalization by the State. Protection of the U
nborn— The unborn’s entitlement to protection begins “from conception”, i.e., fr
om the moment of conception. The intention is to protect life from its beginning
, and the assumption is that human life begins at conception and that conception
takes place at fertilization. The provision is intended to prevent the State fr
om adopting the doctrine in US Supreme Court decision of Roe vs. Wade, 410 US 11
3, which liberalized abortion laws up to the 6th month of pregnancy by allowing
abortion at the discretion of the mother any time during the first 6 months when
it can be done without danger to the mother. Natural Right and Duty of Parents
Parents are entitled to the support of laws designed to aid them in the discharg
e of their responsibility. The provision also highlights the inherent duty of th
e State to act as parens patriae and to protect the right of persons and individ
uals who, because of age or inherent incapacity, are in an unfavorable position
vis-à-vis other parties. People vs. Larin, G.R. No. 128777, October 7, 1998, RA
7610, which penalizes child prostitution and other sexual abuses, was enacted in
consonance with the policy of the State to “provide special protection to child
ren from all forms of abuse”, thus, the Court grants the victim full vindication
and protection granted under the law.
Section 13, Article II Vital Role of the Youth in Nation-Building The State reco
gnizes the vital role of the youth in nation-building and shall promote and prot
ect their physical, moral, spiritual, intellectual, and social wellbeing. It sha
ll inculcate in the youth patriotism and nationalism, and encourage their involv
ement in public and civic affairs. Section 14, Article II (Equality of Women and
Men) The State recognizes the role of women in nation-building, and shall ensur
e the fundamental equality before the law of women and men. (Read Section 14, Ar
ticle XIII) PT&T Co. vs. NLRC, G.R. No. 118978, May 23, 1997, the SC held that t
he petitioner’s
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Page 267/12/2008
¥say
policy of not accepting or considering as disqualified from work any woman worke
r who contracts marriage, runs afoul of the test of, and the right against, disc
rimination, which is guaranteed all women workers under the Constitution. While
a requirement that a woman employee must remain unmarried may be justified as a
“bona fide occupational qualification” where the particular requirements of the
job would demand the same, discrimination against married women cannot be adopte
d by the employer as a general principle. Section 15, Article II (Right to Healt
h) The State shall protect and promote the right to health of the people and ins
till health consciousness among them. (Read Sections 11-13 of Article XIII as an
aspect of Social Justice) Section 16, Article II (Right to A Balanced and Healt
hful Ecology) The State shall protect and advance the right of the people to a b
alanced and healthful ecology in accord with the rhythm and harmony of nature.
Oposa vs. Factoran, Jr., 224 SCRA 792, it was held that the 34 minors duly joine
d by their respective parents pleading the cause of “inter-generational responsi
bility” and “inter-generational justice”, had a valid cause of action in questio
ning the grant of Timber Licensing Agreements (TLAs) for commercial logging purp
oses. The minors filed the action for themselves as representing “their generati
on as well as generations yet unborn”. The SC, on the basis of Section 16, Artic
le II linked with the right to health, recognized a “right to a balanced and hea
lthful ecology” and “the correlative duty to refrain from impairing the environm
ent”. C&M Timber Corporation vs. Alcala, G.R. No. 111088, June 13, 1997, on the
issue that the “total log ban” is a new policy which should be applied prospecti
vely and not affect the rights of petitioner vested under the Timber Licensing A
greement (TLA), the Sc held that this is not a new policy but a mere reiteration
of the policy of conservation and protection the right to a balanced and health
ful ecology.
Section 17, Article II The State shall give priority to education, science and t
echnology, arts, culture, and sports to foster patriotism and nationalism, accel
erate social progress, and promote total human liberation and development.
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¥say
(Read also Section 2, Article XIV)
In PRC vs. De Guzman, G.R. No. 144681, June 21, 2004, while it is true that the
SC has upheld the constitutional right of every citizen to select a profession o
r course of study subject to fair, reasonable, and equitable admission and acade
mic requirements, the exercise of this right may be regulated pursuant to the po
lice power of the State to safeguard health, morals, peace, education, order, sa
fety and general welfare. Thus, persons who desire to engage in the learned prof
essions requiring scientific or technical knowledge may be required to take an e
xamination as a prerequisite to engaging in their chosen careers. This regulatio
n assumes particular pertinence in the field of medicine, in order to protect th
e public from the potentially deadly effects of incompetence and ignorance. PMMS
, Inc. vs. CA, 244 SCRA 770, the Court said that the requirement that a school m
ust first obtain government authorization before operating is based on the State
policy that educational programs and/or operations shall be of good quality and
, therefore, shall at least satisfy minimum standards with respect to curricula,
teaching staff, physical plant and facilities and administrative and management
viability.
Section 18, Article II The State affirms labor as a primary social economic forc
e. It shall protect the right of the workers and promote their welfare. In the c
ase of Bernardo vs. NLRC, G.R. No. 122917, July 12, 1999, the SC held that the M
agna Carta for Disabled Persons mandates that qualified disabled persons be gran
ted the same terms and conditions of employment as qualified ablebodied employee
s; thus, once hey have attained the status of regular workers, they should be ac
corded all the benefits granted by law, notwithstanding written or verbal contra
cts to the contrary. This treatment is rooted not merely in charity or accommoda
tion, but in justice for all.
Section 19, Article II The State shall develop a self-reliant and independent na
tional economy effectively controlled by Filipinos.
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The Constitution does not necessarily rule out the entry of foreign investments,
goods and services. It contemplates neither “economic seclusion” nor “mendicanc
y in the international community”. Aside from envisioning a trade policy based o
n “equality and reciprocity”, the fundamental law encourages industries that are
“competitive in both domestic and foreign markets,” thereby demonstrating a cle
ar policy against a sheltered domestic trade environment, but one in favor of th
e gradual development of robust industries that can compete with the best in the
foreign markets. (Tañada vs. Angara, 272 SCRA 18) Section 20, Article II The St
ate recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments. (Read Article XII) Do
ctrine of Free Enterprise— Association of Philippine Coconut Desiccators vs. PCA
, G.R. No. 110526, February 10, 1998, the SC said that although the Constitution
enshrines free enterprise as a policy, it nevertheless reserves to the Governme
nt the power to intervene whenever necessary for the promotion of the general we
lfare as reflected in Sections 6 & 19 of Article XII. Pest Management Associatio
n of the Philippines vs. Fertilizer and Pesticide Authority, G.R. No. 156041, Fe
bruary 21, 2007 and Pharmaceutical and Health Care Association of the Philippine
s vs. Sec. Duque III, G.R. No. 173034, October 9, 2007, it was held that despite
the fact that “our present Constitution enshrines free enterprise as a policy”,
it nevertheless reserves to the Government the power to intervene whenever nece
ssary to promote the general welfare. Free enterprise does not call for removal
of ‘protective regulations’. It must be clearly explained and proven by competen
t evidence just exactly how such protective regulation would result in the restr
aint of trade. Section 21, Article II The State shall promote comprehensive rura
l development and agrarian reform. Rural development encompasses a broad spectru
m of social, economic, human, cultural, political and even industrial developmen
t. (See the case of Association of Small Landowners of the Philippines vs. Secre
tary of Agrarian Reform, 175 SCRA 343)
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Section 22, Article II The state recognizes and promotes the rights of indigenou
s cultural communities within the framework of national unity and development. [
Read Section 5(2), Article VI; Section 5, Article XII; Section 17, Article XIV]
Section 23, Article II The State shall encourage non-governmental, community-bas
ed, or sectoral organizations that promote the welfare of the nation. (Read Sect
ions 15-16 of Article XIII) Section 24, Article II The State recognizes the vita
l role of communication and information in nationbuilding. (Read Sections 10-11,
Art. XVI; Sec. 23, Art. XVIII) Section 25, Article II The State shall ensure th
e autonomy of local governments. (Read Article X) Basco vs. PAGCOR, 197 SCRA 52,
The SC held that the local autonomy under the 1987 Constitution simply means “d
ecentralization”, and does not make the local governments sovereign within the S
tate or an imperium in imperio.
Limbonas vs. Mangelin, 170 SCRA 786
Decentralization of Administration Decentralization of Power -delegation of admi
nistrative powers to the -abdication by the national government of local governm
ent unit in order to broaden governmental powers the base of governmental powers
.
Lina vs. Pano, G.R. No. 129093, August 30, 2001, the Sc said that the basic rela
tionship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the poli
cy of local autonomy. Without meaning to detract from that policy, Congress reta
ins control of the LGUs although in a significantly reduced degree now under our
previous Constitutions. The power to create still includes the power to destroy
. The power to
30
Page 307/12/2008
¥say
grant still includes the power to withhold or recall. True there are notable inn
ovations in the Constitution, like the direct conferment on the LGUs of the powe
r to tax which cannot now be withdrawn by mere statute. By and large, however, t
he national legislature is still the principal of LGUs, which cannot defy its wi
ll or modify or violate it. Ours is still a unitary form of government, not a fe
deral state. Being so, any form of autonomy granted to local governments will ne
cessarily be limited and confined within the extent allowed by the central autho
rity.
Section 26, Article II The State shall guarantee equal access to opportunities f
or public service, and prohibit political dynasties as may be defined by law.
Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004, the SC said that this pro
vision does not bestow a right to seek the Presidency; it does not contain a jud
icially enforceable constitutional right and merely specifies a guideline for le
gislative action. The provision is not intended to compel the State to enact pos
itive measures that would accommodate as many as possible into public office. Th
e privilege may be subjected to limitations. One such valid limitation is the pr
ovision of the Omnibus Election Code on nuisance candidates.
Section 27, Article II The State shall maintain honesty and integrity in the pub
lic service and take positive and effective measures against graft and corruptio
n.
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Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002, even as we recognize th
at the Constitution guarantees autonomy to LGUs, the exercise of local autonomy
remains subject to the power of control by Congress and the power of general sup
ervision by the President. xxx The President can only interfere in the affairs a
nd activities of a LGU if he finds that the latter had acted contrary to law. Th
e President or any of his alter egos, cannot interfere in local affairs as long
as the concerned LGU acts within the parameters of the law and the Constitution.
Any directive, therefore, by the President or any of his alter egos seeking to
alter the wisdom of a law-conforming judgment on local affairs of a LGU is a pat
ent nullity, because it violates the principle of local autonomy, as well as the
doctrine of separation of powers of the executive and legislative departments i
n governing municipal corporations.
¥say
Section 28, Article II Subject to reasonable conditions prescribed by law, the S
tate adopts and implements a policy of full public disclosure of all its transac
tions involving public interest. ----PRINCIPLE OF TRANSPARENCY—
DOCTRINE OF SEPARATION OF POWERS This principle operated as an implicit limitati
on on legislative powers as on the two other powers. In essence, separation of p
owers means the legislation belongs to Congress, execution to the executive, set
tlement of legal controversies to the judiciary. Each is prevented from invading
the domain of the others. But the separation is not total. The system allows fo
r “checks and balances” the net effect of which being that, in general, no one d
epartment is able to act without the cooperation of at least one of the other de
partments. Purpose: To prevent concentration of powers in one department and the
reby to avoid tyranny. The purpose was not to avoid friction, but, by means of t
he inevitable friction incident to the distribution of governmental powers among
the three departments, to save the people from autocracy. 1. To secure action 2
. To forestall overaction 3. To prevent despotism 4. To obtain efficiency In La
Bugal-B’Laan Tribal Association vs. Ramos, G.R. No. 127882, December 1, 2004, th
e court restrained itself from intruding into policy matters to allow the Presid
ent and Congress maximum discretion in using mineral resources of our country an
d in securing the assistance of foreign groups to eradicate the grinding poverty
of our people and answer their cry for viable employment opportunities in the c
ountry. “The Judiciary is loath to interfere with the due exercise by co-equal b
ranches of government of their official functions.” Let the development of minin
g industry be the responsibility of the political branches of the government. Th
e questioned provisions of RA 7942 (Philippine Mining Act of 1995) are not uncon
stitutional. In Maceda vs. Vasquez, 221 SCRA 464, in the absence of any administ
rative action taken against the RTC Judge by the SC with regard to the former’s
certificate of service, the investigation conducted by the Ombudsman encroaches
into the SC’s power of administrative supervision over all courts and its person
nel, in violation of the
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Page 327/12/2008
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doctrine of separation of powers. Principle of Blending of Powers: Instances whe
n powers are not confined exclusively within one department but are assigned to
or shared by several departments. Principle of Checks and Balances: This allows
one department to resist encroachments upon its prerogative or to rectify mistak
es or excesses committed by the other departments. The first and safest criteri
on to determine whether a given power has been validly exercised by a particular
department is whether or not the power has been constitutionally conferred upon
the department claiming its exercise—since the conferment is usually done expre
ssly. However, even in the absence of express conferment, the exercise of the po
wer may be justified under the doctrine of necessary implication. The grant of e
xpress power carried with it all other powers that may be reasonably inferred fr
om it. Justiciable question- implies a given right, legally demandable and enfor
ceable, an act or omission violative of such right, and a remedy granted and san
ctioned by law for said breach of right. (Casibang vs. Aquino, 92 SCRA 642)
THE INHERENT POWERS OF THE STATE
1. Police Power 2. Power of Eminent Domain 3. Power of Taxation Similarities: 1.
Inherent in the State, exercised even without need of express constitutional gr
ant. 2. Necessary and indispensable; State cannot be effective without them. 3.
Methods by which State interferes with private property. 4. Presupposes equivale
nt compensation. 5. Exercised primarily by the legislature. Distinctions: Police
Power Eminent Domain Regulates both liberty and Affects property rights prope
rty
Taxation affects property rights
may be exercised only by may even be exercised by may be exercised only by
33
Page 337/12/2008
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government; cannot be private entities delegated to administrative body
government; cannot be delegated to administrative body
These powers must not be exercised arbitrarily, to the prejudice of Bill of Righ
ts. In Ericta vs. City Government of Quezon City, 122 SCRA 759, the City Governm
ent of QC was not exercising police power when they required private cemetery ow
ners to reserve 6% of the burial lots for pauper’s burial ground. The SC held th
at in police power, the property to be taken is to be destroyed. The 6% are priv
ate property of the cemetery owners. This is a taking of private property. Sec.
9, Art. III: “Private property shall not be taken for public use without just co
mpensation.” Clearly, this is an invalid exercise of police power. The City was
made to pay the owners just compensation. In Philippine Press Institute vs. COME
LEC, 244 SCRA 272, Sec. 2 of COMELEC Resolution No. 2772, which mandates newspap
ers of general circulation in every province or city to provide free print space
of not less than ½ page as COMELEC space, was held to be an invalid exercise of
police power there being no showing of the existence of a national emergency or
imperious public necessity for the taking of print space, nor that the resoluti
on was the only reasonable and calibrated response to such necessity. This was h
eld to be an exercise of the power of eminent domain, albeit
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Page 347/12/2008
compensation is the compensation is the full it is the protection and/or inta
ngible, altruistic feeling and fair equivalent of the public improvements that t
he individual has property taken instituted by government for contributed to the
public the taxes paid good Limitations: Generally, the Bill of Rights, although
in some cases the exercise of the power prevails over specific constitutional g
uarantees. The courts may annul the improvident exercise of police power.
¥say
property taken is usually the property is wholesome the property is wholesome
noxious(unpleasant and and devoted to public use and devoted to public use harm
ful) or intended for or purpose or purpose noxious purpose and may thus be destr
oyed
invalid, because the COMELEC would not pay for the space to be given to it by th
e newspapers.
Police power and power of taxation—cannot be delegated to administrative bodies
. Police power and power of eminent domain both involved taking. They differ in
purpose. Police power—to destroy; because the property is harmful, obnoxious,
poses a risk to the public. Power of eminent domain—only private property is th
e subject of taking; the purpose is to convert the private property to public us
e.
POLICE POWER— It is the power of promoting public welfare by restraining and reg
ulating the use of liberty and property. It is the power vested by the Constitut
ion in the legislature to make, ordain, and establish all manner of wholesome an
d reasonable laws, statutes and ordinances, either with penalties or without, no
t repugnant to the Constitution, as they shall judge to be for the good and welf
are of the commonwealth, and for the subjects of the same. The power is plenary
and its scope is vast and pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general welfare. It is the power
to prescribe regulations to promote the health, morals, peace, education, good o
rder or safety and general welfare of the people (now common good). (Binay vs. D
omingo, 201 SCRA 508) It has been described as “the most essential, insistent an
d the least limitable of powers, extending as it does to all the great public ne
eds.” It is the power vested in the legislature to make, ordain, and establish a
ll manner of wholesome and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and for the subjects of the sa
me. (Carlos Superdrug Corp. vs. DSWD, G.R. No. 166494, June 29, 2007) Cabrera vs
. Lapid, G.R. No. 129098, December 6, 2006, a careful reading of the questioned
Resolution reveals that the Ombudsman dismissed petitioner’s criminal
35
Page 357/12/2008
¥say
complaint because respondents had validly resorted to the police power of the St
ate when they effected the demolition of the illegal fishpond in question follow
ing the declaration thereof as a nuisance per se. in the words of the Ombudsman,
“those who participated in the blasting of the subject fishpond were only impel
led by their desire to serve the best interest of the general public; for the go
od and the highest good. Requisites (Limitations): 1. Lawful subject—the interes
ts of the public in general as distinguished from those of a particular class, r
equire the exercise of this power. 2. Lawful means—the means employed are reason
ably for the accomplishment of the purpose, and not unduly oppressive on individ
uals. “Affected with public interest”—an industry is subject to control for the
public good; it has been considered as the equivalent of “subject to the exercis
e of police power”. Construction: construed strictly and any doubt must be resol
ved against the grant. Scope/Characteristics: It is the most pervasive, least li
mitable, and the most demanding of the three powers. The justification is found
in: salus populi est suprema lex (the welfare of the people is the supreme law)
and sic utere tuo ut alienum non laedas (use your property so as not to impair o
thers). 1. It cannot be bargained away through the medium of a treaty or a contr
act. 2. The taxing power may be used as an implement of police power 3. Eminent
domain may be used as an implement to attain the police power objective (Associa
tion of Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343). 4. In Ortiga
s & Co. vs. CA, G.R. No. 126102, December 4, 2000, nonimpairment of contracts or
vested rights clauses will have to yield to the superior and legitimate exercis
e by the State of the police power. 5. In PRC vs. De Guzman, G.R. No. 144681, Ju
ne 21, 2004, the exercise of the constitutional right of every citizen to select
a profession or course of study may be regulated pursuant to the police power o
f the State to safeguard health, morals, peace, education, order, safety, and th
e general welfare of the people. This regulation assumes particular pertinence i
n the field of medicine,
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Page 367/12/2008
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to protect the public from the potentially dead effects of incompetence and igno
rance. In Chavez vs. Romulo, 431 SCRA 534, the right to bear arms is merely stat
utory privilege. The license to carry firearm is neither a property nor a proper
ty right. Neither does it create a vested right. A permit to carry outside one’s
residence may be revoked at any time. Even if it were a property right, it cann
ot be considered as absolute as to be beyond the reach of the police power. Who
may exercise police power? The power is inherently vested in Congress. However,
they may validly delegate this power to the following: 1. the President 2. admin
istrative bodies—public and quasi-public corporations 3. the lawmaking bodies of
local government units Local government units exercise the power under the gene
ral welfare clause. CANORECO vs. Torres, G.R. no. 127249, February 27, 1998, whi
le police power may be delegated to the President by law, RA 6939 and PD 260, as
amended, do not authorize the President or any other administrative body, to ta
ke over the internal management of a cooperative. Accordingly, Memorandum Order
No. 409, issued by the President, constituting an ad hoc committee to temporaril
y take over and manage the affairs of CANORECO is invalid. In MMDA vs. Bel-Air V
illage Association, G.R. No. 135962, March 27, 2000, there is no provision in RA
7924 that empowers the MMDA or its council to “enact ordinance, approve resolut
ions and appropriate funds for the general welfare” of the inhabitants of Metro
Manila. Thus, MMDA may not order the opening of Neptune St. in the Bel-Air Subdi
vision to public traffic, as it does not possess delegated police power. Section
11, Article X—the Congress may, by law, create special metropolitan political s
ubdivisions, subject to a plebiscite as set forth in Section 10 hereof. The comp
onent cities and municipalities shall retain their basic autonomy and shall be e
ntitled to their own local executives and legislative assemblies. The jurisdicti
on of the metropolitan authority that will thereby be created shall be limited t
o basic services requiring coordination. MMDA is not a special metropolitan poli
tical subdivision.
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For municipal ordinance to be valid: 1. it must not contravene the Constitution
or any statute; 2. it must not be unfair or oppressive; 3. it must not be partia
l or discriminatory; 4. it must not prohibit, but may regulate, trade; 5. it mus
t not be unreasonable; and 6. it must be general in application and consistent w
ith public policy. In City of Manila vs. Judge Laguio, G.R. No. 118127, April 12
, 2005, the SC declared as an invalid exercise of the police power the City of M
anila Ordinance No. 7783, which prohibited “the establishment or operation of bu
sinesses providing certain forms of amusement, entertainment, services and facil
ities in the Ermita-Malate area”, for being contrary to the Constitution, infrin
ging the guarantees of due process and equal protection of the laws. In Centeno
vs. Villalon-Pornillos, 236 SCRA 197 (1994), solicitation for religious purposes
may be subject to proper regulation by the State in the exercise of police powe
r. In Acebedo Optical Company, Inc. vs. CA, 329 SCRA 314 (2000), the issuance of
business licenses and permits by a municipality or city is essentially
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Page 387/12/2008
However, in MMDA vs. Garin, G.R. No. 130230, April 15, 2005, although the law (R
A 7924) does not grant the MMDA the power to confiscate and suspend or revoke dr
ivers’ licenses without need of any legislative enactment, the same law vests th
e MMDA the duty to enforce existing traffic rules and regulations. Thus, where t
here is a traffic law or regulation validly enacted by the legislature or those
agencies to whom legislative power has been delegated, the MMDA is not precluded
—and in fact is dutybound—to confiscate and suspend or revoke drivers’ licenses
in the exercise of its mandate of transport and traffic management, as well as t
he administration and implementation of all traffic enforcement operations, traf
fic engineering services and traffic education programs. Additional Limitations
(When exercised by delegate): a. express grant by law b. within territorial limi
ts (for local government units, except when exercised to protect water supply) c
. must not be contrary to law
¥say
regulatory in nature. The authority, which devolved upon local government units,
to issue or grant such licenses or permits, is essentially in the exercise of t
he police power of the State within the contemplation of the general welfare cla
use of the LGC. The implementation of the Comprehensive Agrarian Reform Law (CAR
L) is an exercise of police power and the power of eminent domain. To the extent
that the CARL prescribes retention limits to the landowners, there is an exerci
se of police power for the regulation of private property in accordance with the
Constitution. But where, to carry out such regulation, the owners are deprived
of lands they own in excess of the maximum area allowed, there is also taking un
der the power of eminent domain. The taking contemplated is not a mere limitatio
n of the use of the land. What is required is the surrender of the title to and
physical possession of the said excess and all beneficial rights accruing to the
owner in favor of the farmer beneficiary. The Bill of rights provides that “no
person shall be deprived of life, liberty and property without due process of la
w.” The CARL was not intended to take away property without due process of law.
The exercise of power of eminent domain requires that due process be observed in
the taking of private property. [Roxas and Co., vs. CA, 321 SCRA 106 (1999)] Re
public vs. Manila Electric Company, G.R. No. 141314, November 15, 2002, the regu
lation of rates to be charged by public utilities is founded upon the police pow
er of the State and statutes prescribing rules for the control and regulations o
f public utilities are a valid exercise thereof. When a private property is used
for a public purpose and is affected with public interest, it ceases to be juri
s privati only and becomes subject to regulation. The regulation is to promote t
he common good. Submission to regulation may be withdrawn by the owner by discon
tinuing use; but as long as the use of the property is continued, the same is su
bject to public regulation. In regulating rates charged by public utilities, the
State protects the public against arbitrary and excessive rates while maintaini
ng the efficiency and quality of services rendered. However, the power to regula
te rates does not give the State the right to prescribe rates which are so low a
s to deprive the public utility of a reasonable return on investment. Philippine
Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC Resolutio
n No. 2772, which mandates newspapers of general circulation in every province o
r city to provide free print space of not less than ½ page as COMELEC space, was
held to be invalid exercise of police power there being no showing of the exist
ence of national emergency or imperious public necessity for the taking of print
39
Page 397/12/2008
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space, nor that the resolution was the only reasonable and calibrated response t
o such necessity. Public purpose and use has broader concept now. It now include
s VICARIOUS BENEFITS that society may derive from a particular measure. e.g. CON
CERN FOR THE POOR—SC recognized this as one for public purpose and use.
POWER OF EMINENT DOMAIN— also known as the power of expropriation The power of e
minent domain is the power of the State to forcibly take private property for pu
blic use upon payment of just compensation. It is the right or power of a sovere
ign state to appropriate private property to particular uses to promote public w
elfare. It is government’s right to appropriate, in the nature of a compulsory s
ale to the State, private property for public use or purpose. (Moday vs. CA, 268
SCRA 586) The ultimate right of the sovereign power to appropriate, not only th
e public, but even the private property of all citizens within the territorial s
overeignty, for public purpose.
Power of Eminent Domain involves public rights
Destruction Due to Necessity involves private rights such as selfpreservation a
nd self-defense there is no need for the conversion to public use just no need
for just compensation
the property is converted to public use
there must compensation
be
payment
of
undertaken by the State
may be validly undertaken even by private individuals
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Page 407/12/2008
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Object of Expropriation: 1. anything that comes under the dominion of man 2. rea
l, personal, tangible and intangible 3. property right 4. churches and other rel
igious properties 5. property already devoted to public use Except: money- becau
se compensation is also money Who may exercise? Generally, the legislature, but
also upon valid delegation to: 1. the President; 2. lawmaking bodies of LGUs; 3.
administrative bodies—public and quasi-public corporations 4. Private enterpris
es performing public services. In the case of Republic vs. CA, G.R. No. 146587,
July 2, 2002, the power of eminent domain must, by enabling law, be delegated to
local governments by the national legislature, and thus, can only be as broad a
s the real authority would want it to be. The grant of the power to local govern
ment units under RA 7160 cannot be understood as equal to the pervasive and all
encompassing power vested in the legislative branch of government. JIL School Fo
undation vs. Municipality of Pasig, G. R. No. 152230, August 9, 2005—Sec. 19, of
the LGC requires the LGU to tender a prior written definite and valid offer to
acquire the property before the filing of the complaint for eminent domain. Fils
tream Int’l Inc. vs. CA, 284 SCRA 716—the exercise of the power of eminent domai
n is clearly superior to the final and executor judgment rendered by the court i
n an ejectment case. RP vs. PLDT, 26 SCRA 620—services were considered embraced
in the concept of property subject to taking under the power of eminent domain.
Republic, in the exercise of the sovereign power of eminent domain, may require
the telephone company to permit interconnection of the government telephone syst
em and that of the PLDT, as the needs of government service may require, subject
to the payment of just compensation to be determined by the court.
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Where Expropriation Suit Is Filed: In the Regional Trial Court—because it is inc
apable of pecuniary estimation
The RTC has the power to inquire to the legality of the exercise of the right of
eminent domain and to determine whether there is a genuine necessity for it (Ba
rdillon vs. Brgy. Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003). L
agcao vs. Judge Labra, G.R. No. 155746, October 13, 2004—there was no showing at
all why petitioners’ property was singled out for expropriation by the city ord
inance or what necessity impelled the particular choice or selection. The ordina
nce stated no reason for the choice of petitioners’ property as the site of a so
cialized housing project.
2. Private property—all private property capable of ownership may be
expropriated except money and choses in action; may include services. (Republic
vs. PLDT, 26 SCRA 620) In City of Manila vs. Chinese Community, 40 Phil. 349, a
cemetery open to the public was already in public use and no part of the ground
could be taken for other public uses under a general authority. The City of Mani
la was without authority to expropriate the property. (The Congress itself shoul
d expropriate or there must be special grant.)
3. Taking— there is taking when:
a. The owner is actually deprived or dispossessed of his property; b. There is p
ractical destruction or material impairment of the value of the property; c. The
owner is deprived of the ordinary use of his property;
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Page 427/12/2008
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Requisites: 1. Necessity—when exercised by: a. Congress—it is a political questi
on; (Municipality of Meycauayan, Bulacan vs. IAC, 157 SCRA 640) b. Delegate—the
determination of whether there is a genuine necessity for the exercise is a just
iceable question (Republic vs. La Orden de Po. Benedictinos, 1 SCRA 649).
d. The owner is deprived of jurisdiction, supervision and control of his propert
y. Requisites for a valid taking: (EMADO) a. The expropriator must enter a priva
te property; b. Entry must be for more than a momentary period; c. Entry must be
under warrant or color of authority; d. Property must be devoted to public use
or otherwise informally appropriated or injuriously affected; e. Utilization of
the property must be in such a way as to oust the owner and deprive him of benef
icial enjoyment of the property. (Republic vs. Castelvi, 58 SCRA 336) The taking
of private property may include the impairment of the use of the property for w
hich it was intended. In US vs. Causby, 328 US 256, the flight of planes from a
nearby military airport over plaintiff’s property below the navigable airspace r
esulting in the ruin of plaintiff’s chicken farm was considered compensable taki
ng. So also were low landing and take-off flights which made nearby residential
area unlivable (Griggs vs. Allegheny County, 369 US 84). This is taking in the c
onstitutional sense.
Avenida, Rizal used to be the commercial center of Manila. However, when the Li
ght Railway Transit (LRT) was built, the commercial value of Avenida was greatly
diminished. The shops and stores had to close. The owners of these establishmen
ts suffered losses because of the operation of the LRT along Avenida, Rizal. Are
they entitled to be paid just compensation? No. SC held that the kind of injur
y or loss that one must suffer that will justify the payment of just compensatio
n must be a special kind of injury or loss as in the case of Causby. If the inju
ry or loss that one suffered is one which he suffered together with the rest of
the community, his only compensation in such a case is the altruistic feeling th
at somehow he is able to contribute to the common good.
CANORECO vs. CA, G.R. No. 109338, November 20, 2000, The owner of the property c
ut the electric lines alleging that it impaired him of the use of his property.
The SC held that the property owner was not justified in cutting the electric li
nes. His property becomes the servient estate subject to the encumbrance, and th
e acquisition of an easement of right of way filed by an electric power company
for the construction of transmission lines falls within the purview of the power
of eminent domain. However,
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Page 437/12/2008
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since there was an impairment of the use of the property, he is entitled to the
payment of just compensation. The establishment of an easement is a form of comp
ensable taking. In NAPOCOR vs. Sps. Gutierrez, G.R. No. 60077, January 18, 1991,
the owner of the land was awarded full compensation against the NAPOCOR’s argum
ent that the owners were not totally deprived of the use of the land and could s
till plant the same crops as long as they did not come into contact with the wir
es. The Court said: “the right of way easement perpetually deprives defendants o
f their proprietary rights as manifested by the imposition by the plaintiff upon
defendants that below said transmission lines no plant higher than 3 meters is
allowed. Furthermore, because of the high-tension current conveyed through the t
ransmission lines, danger to life and limbs that may be caused beneath said wire
s cannot altogether be discounted, and to cap it all, plaintiff only pays the fe
e to defendant once, while the latter shall continually pay the taxes due on sai
d affected portion of their property. In People vs. Fajardo, 104 Phil. 44, a mun
icipal ordinance prohibiting a building which would impair the view of the plaza
from the highway was considered taking. The property owner was held to be entit
led to payment of just compensation. In Velarma vs. CA, 252 SCRA 400, the owner
of the property can recover possession of the property from squatters, even if h
e agreed to transfer the property to the Government, until the transfer is consu
mmated or the expropriation case is filed.
Taking under Eminent Domain Proceeding Only private properties may be taken
Taking under Police Power All properties are subject to taking
The private property is taken in order to The purpose of taking is to destroy
the convert it to public use property because it is harmful or obnoxious to the
public.
Philippine Press Institute (PPI) vs. COMELEC, 244 SCRA 272, Section 2 of COMELEC
Resolution No. 2772, which mandates newspapers of general circulation in every
province or city to provide free print space of not less than ½ page as COMELEC
space, was held to be an exercise of power of eminent domain, albeit invalid, be
cause the COMELEC would not pay for the space to be given to it by the newspaper
s.
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PPI vs. COMELEC there was taking of property newspaper space is the private pr
operty of the newspaper owners print media do not enjoy privilege
TELEBAP vs. COMELEC there was no taking of private property airwaves are scarc
e resources, the use is regulated by the State franchise (privilege) is issued
by the State (Art. XII, Sec. 11)
Shifting argument alleged in TELEBAP: both PPI and TELEBAP are media of communi
cation and information. Equal protection clause was raised as an issue. The SC r
uled that equal protection clause does not guarantee absolute equality. There ma
y be classification. Persons or things ostensibly similarly situated may, noneth
eless, be treated differently if there is a basis for valid classification.
4. Public use—“public interest”; “public benefit”; “public welfare”; “public
convenience” (Reyes vs. NHA, G.R. No. 147511, January 20, 2003). The general con
cept—meeting public need or public exigency; may include indirect public benefit
or advantage.
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Page 457/12/2008
TELEBAP, Inc. vs. COMELEC, 289 SCRA 1998, the constitutionality of Sec. 92 of BP
881 (requiring radio and television station owners and operators to give to the
COMELEC radio and television time free of charge) was challenged on the ground
that it violated the due process clause and the eminent domain provision of the
Constitution by taking airtime from radio and television broadcasting stations w
ithout payment of just compensation. The SC held that all broadcasting, whether
by radio or by television stations, is licensed by the government. Airwaves freq
uencies have to be allocated as there are more individuals who want to broadcast
than there frequencies to assign. A franchise is thus a privilege subject, amon
g other things, to amendment by Congress in accordance with the constitutional p
rovision that “any such franchise or right granted x x x shall be subject to ame
ndment, alteration or repeal by the Congress when the common good so requires” (
Art. XII, Sec.11). In the granting of the privilege to operate broadcast station
s and thereafter supervising radio and television stations, the State spends con
siderable public funds in licensing and supervising such stations. It would be s
trange if it cannot even require the licensees to render public service by givin
g free airtime. x x x As radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement that they provide airt
ime to the COMELEC.
¥say
In Estate of Salud Jimenez vs. PEZA, 349 SCRA 240, public use is whatever may be
beneficially employed for the general welfare. It has been broadened to include
not only uses directly available to the public but also those which redound to
their indirect benefit; that only a few would actually benefit from the expropri
ation of the property does not necessarily diminish the essence and character of
public use. (Manosca vs. CA, 252 SCRA 412) In Filstream Int’l Inc. vs. CA, 284
SCRA 716, the fact that the property is less than ½ hectare and that only a few
could actually benefit from the expropriation does not diminish its public use c
haracter, inasmuch as “public use” now includes the broader notion of indirect p
ublic benefit or advantage, including, in particular, urban land reform and hous
ing. By express legislative authority granted by Congress in Sec. 19, RA 7160, L
GUs may expropriate private property for public use, or purpose, or welfare, for
the benefit of the poor and the landless. Thus, in Moday vs. CA, 268 SCRA 568,
the SC held that the Sangguniang Panlalawigan of Agusan del Sur was without auth
ority to disapprove Bunawan Municipal Resolution No. 43-89 because, clearly, the
Municipality of Bunawan has authority to exercise the power of eminent domain a
nd its Sanggguniang Bayan the capacity to promulgate the assailed resolution. Ho
wever, in the case of Municipacility of Parañaque vs. V.M. Realty Corporation, 2
92 SCRA 676, the SC declared that there was lack of compliance with Sec. 19 of R
A 7160, where the Municipal Mayor filed a complaint for eminent domain over two
(2) parcels of land on the strength of the resolution passed by the Sangguniang
Bayan, because what is required by law is an ordinance and not mere resolution.
In Francia, Jr. vs. Municipality of Meycauayan, G.R. No. 170432, March 24, 2008,
the Supreme Court held that the determination of a public purpose for the expro
priated property is not a condition precedent before a court may issue a writ of
possession. Once the requisite in Sec. 19 of the Local Government Code are sati
sfied, the issuance of the writ becomes a ministerial matter for the court.
5. Just Compensation—the full and fair market value of the property taken; it is
the fair market value of the property. It is settled that the market value of th
e
46
Page 467/12/2008
¥say
property is “that sum of money which a person, desirous but not compelled to buy
, and an owner, willing but not compelled to sell, would agree on a price to be
given and received therefor.” Medium: money except: payment other than money (As
sociation of Small Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343), p
ayment is allowed to be made partly in bonds, because under the CARP it deals wi
th the revolutionary kind of expropriation. The determination of just compensati
on in eminent domain cases is a judicial function and factual findings of the CA
are conclusive on the parties and reviewable only when the case falls within th
e recognized exceptions. (NAPOCOR vs. San Pedro, G.R. No. 170945, September 26,
2006) Land Bank vs. CA (and DAR vs. CA), 249 SCRA 149—Sec. 16(e), RA 6657— the d
eposit of compensation must be in “cash” or in “Land Bank bonds” not in any othe
r form, and certainly not in a “trust account”. Reckoning point of market value
of the property: FMV at the date of: a) filing of the complaint; or b) the takin
g –whichever is earlier. Rules in Just Compensation-Rule 67, Sec. 6: 1. Determin
e the actual or basic value of the property. 2. If entire property not expropria
ted: Value of property - consequential benefits damages (basic or actual) (CB)
+ (CD)
consequential
If consequential benefits exceed consequential damages, CB and CD should be dis
regarded because the BASIC VALUE of the property should be paid in every case. B
asic/market value—the price that may be agreed upon by the parties willing but n
ot compelled to enter into a contract of sale. Factors to be considered: Cost
of acquisition
Actual or potential uses
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Page 477/12/2008
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Current value of like properties
in particular case: size of lands, shape, location and tax declaration
Consequential damages—injuries directly caused on the residue of the private pro
perty taken by reason of expropriation Example: the property left is in odd shap
e or with area virtually unusable
DARAB determines just compensation (exception to the general rule that courts d
ecide the value) DAR may make initial valuation; owner goes to court if not sat
isfied. Expropriation may be initiated by court action or by legislation. In bo
th instances, just compensation is determined by the courts. In Republic vs. Sa
lem Investment Corporation, et al., G.R. No. 137569, June 23, 2000, the Supreme
Court held that it is only upon payment of just compensation that title over the
property passes to the government. Therefore, until the action for expropriatio
n has been completed and terminated, ownership over the property being expropria
ted remains with the registered owner. Consequently, the latter can exercise all
rights pertaining to an owner, including the right to dispose of his property,
subject to the power of the State ultimately to acquire it through expropriation
. The Dela Ramas make much of the fact that ownership of the land was transferre
d to the government because the equitable and the beneficial title were already
acquired by it in 1983, leaving them with only the naked title. However, xxx the
recognized rule, indeed, is that title to the property expropriated shall pass
from the owner to the expropriator only upon full payment of just compensation.
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Page 487/12/2008
Association of Small Landowners vs. DAR, 175 SCRA 343 (1989)— the power of emine
nt domain could be used as an implement of police power. The expressed objective
of the law was the promotion of the welfare of the farmers, which came clearly
under the police power of the state. To achieve this purpose, the law provided f
or the expropriation of agricultural lands (subject to minimum retention limits
for the landowners) to be distributed among the landless peasantry.
¥say
Consequential Benefits—the remainder is, as a result of the expropriation, place
d in a better location, such as fronting a street where it used to be an interio
r lot.
Legal interest for expropriation cases—6% -from the time of taking until just co
mpensation is actually paid -interest must be claimed, otherwise, it is deemed w
aived Title to the property shall not be transferred until after actual payment
of just compensation is made to the owner. Genuine Necessity— National legislat
ion—question of necessity is POLITICAL; judiciary has no power to inquire. Deleg
ate—liberally in favor of the private property owner; judiciary can inquire into
whether the authority conferred upon such delegate correctly and properly exerc
ised/ whether expropriation contemplated by the delegate necessary or wise. May
eminent domain be barred by “res judicata” or “law of the case”? The principle
of res judicata, which finds application in generally all cases and proceedings,
cannot bar the right of the State or its agents to expropriate private property
. The very nature of eminent domain, as an inherent power of the State, dictates
that the right to exercise the power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent domain is plenary and, like poli
ce power, can “reach every form of property which the State might need for publi
c use”. All separate interests of individuals in property are held of the govern
ment under this tacit agreement or implied reservation. Notwithstanding the gran
t to individuals, the eminent domain, the highest and most exact idea of propert
y, remains in the government, or in the aggregate body of the people in their so
vereign capacity; and they have the right to resume the possession of the proper
ty whenever the public interest requires it. Thus, the State or its authorized a
gents cannot be forever barred from exercising said right by reason alone of pre
vious non-compliance with any legal requirement. While the principle of res judi
cata does not denigrate the right of the State to exercise eminent domain, it do
es not apply to specific issues decided in a previous case. For example, a final
judgment dismissing an expropriation suit on the ground that there was no prior
offer precludes another suit raising the same issue; it cannot, however, bar th
e State or its agent, from thereafter complying with this requirement, as prescr
ibed by law, and subsequently exercising its power of eminent domain over the sa
me property. [Municipality of Parañaque vs. V.M. Realty Corp., 292 SCRA 678 (199
8)]
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Right of landowner in case of non-payment of just compensation—as a rule, it doe
s not entitle the landowners to recover possession of the expropriated lots, but
only to demand payment of the fair market value of the property. (Republic vs.
CA, G.R. No. 146587, July 2, 2002; Reyes vs. NHA, G.R. No. 147511, January 20, 2
003). However, in RP vs. Vicente Lim, G.R. No. 161656, June 29, 2005, the SC sai
d that the facts of the case do not justify the application of the rule. In this
case, the Republic was ordered to pay just compensation twice; the first was in
the expropriation proceedings, and the second, in the action for recovery of po
ssession. Fifty-seven (57) years have passed since then. The Court construed the
Republic’s failure to pay just compensation as a deliberate refusal on its part
. Under such circumstances, recovery of possession is in order. It was then held
that where the government failed to pay just compensation within 5 years from t
he finality of the judgment in the expropriation proceedings, the owners concern
ed shall have the right to recover possession of their property.
Plaintiff’s right to dismiss the complaint in Eminent Domain In expropriation ca
ses, there is no such thing as the plaintiff’s “matter-of-right” to dismiss the
complaint, precisely because the landowner may have already suffered damages at
the start of the taking. The plaintiff’s right to dismiss the complaint has alwa
ys been subject to court approval and to certain conditions. (NAPOCOR & Pobre vs
. CA, G.R. No. 106804, August 12, 2004) Right to repurchase or re-acquire the pr
operty The property owner’s right to repurchase the property depends upon the ch
aracter of the title acquired by the expropriator, e.g., if the land is expropri
ated for a particular purpose with a condition that when the purpose is ended or
abandoned, the
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Page 507/12/2008
¥say
When may the property owner be entitled to the return of the expropriated proper
ty in eminent domain cases? In Provincial Government of Sorsogon vs. Villaroya
, the unpaid landowners were allowed the alternative remedy of recovery of the p
roperty. The Court ruled that “under ordinary circumstances, immediate return to
the owners of the unpaid property is the obvious remedy.” However, in cases whe
re land is taken for public use, public interest must be considered. (Estate of
Salud Jimenez vs. PEZA, 349 SCRA 240)
property shall revert to the former owner, then the former owner can re-acquire
the property. In this case, the terms of the judgment in the expropriation case
were very clear and unequivocal, granting title to the lot in fee simple to the
Republic. No condition on the right to repurchase was imposed. (Mactan-Cebu Inte
rnational Airport Authority vs. CA, G.R. No. 139495, Novermber 27, 2000) Republi
c vs. CA, G.R. No. 146587, July 2, 2002, in arguing for the return of their prop
erty on the basis of non-payment, respondents ignored the fact that the right of
the expropriatory authority is far from that of an unpaid seller in ordinary sa
les to which the remedy is rescission may perhaps apply. Expropriation is an in
rem proceeding, and after condemnation, the paramount title is in the public und
er a new and independent title.
POWER OF TAXATION—is the power to demand from the members of society their propo
rtionate share/contribution in the maintenance of the government.
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It is the power by which the State raises revenue to defray the necessary expens
es of the Government. Scope: covers persons, property or occupation to be taxed
within the taxing jurisdiction. It is so pervasive; it reaches even the citizens
abroad and their income outside the Philippines; all the income earned in the P
hilippines by a citizen or alien.
Importance of Taxation: 1. No constitutional government can exist without it; 2.
It is one great power upon which the whole national fabric is based; 3. It is n
ecessary for the existence and prosperity of the nation; and 4. It is the lifebl
ood of the nation. Who may exercise? Generally, the legislature, but also upon v
alid delegation: 1. Lawmaking bodies of LGUs (Sec. 5, Art. X); 2. President (lim
ited extent-delegated tariff powers), under Sec. 28 (2), Art. VI of the Constitu
tion or as an incident of emergency powers that Congress may grant to him under
Sec. 23 (2), art. VI. Purpose: unavoidable obligation of the government to prote
ct the people and extend them benefits in the form of public projects and servic
es. Public purpose—proceeds must be devoted to public use. It includes INDIRECT
public advantage/benefits. The mere fact that the tax will be directly enjoyed b
y private individual does not make it INVALID so long as the same link to public
welfare is established. Requisites: 1. It must be for public purpose; 2. It sha
ll be uniform; 3. Person or property taxed shall be within the jurisdiction of t
he taxing authority; 4. In assessment & collection, notice and hearing shall be
provided. Limitations on the Power of Taxation Inherent limitations: 1. Public p
urpose;
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Page 527/12/2008
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Basis: power emanating from necessity (lifeblood doctrine)
2. 3. 4. 5.
Non-delegability of power; Territoriality or Situs of taxation; Exemption of gov
ernment from taxation; International comity—generally accepted principles of int
ernational law
Constitutional limitations: 1. Due process of law—tax should not be confiscatory
. Due process does not require previous notice and hearing before a law prescri
bing fixed/specific taxes on certain articles may be enacted. If the tax to be
collected is to be based on the value of the taxable property—ad valorem tax—the
taxpayer is entitled to be notified of the assessment proceeding and to be hear
d on the correct valuation. 2. Equal protection of law—taxes should be uniform a
nd equitable. 3. Uniformity—persons/things belonging to the same class shall be
taxed at the same rate Equitability—taxes should be apportioned among the people
according to their capacity to pay Progressivity— 4. Non-impairment of contract
s 5. Non-imprisonment for non-payment of poll tax 6. Revenue and tariff bills mu
st originate in the HOR 7. Non-infringement of religious freedom 8. Delegation o
f legislative authority to the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues 9. Tax exemption of properties actually, direc
tly and exclusively used for religious, charitable and educational purposes 10.
Majority vote of all the members of Congress required in case of legislative gra
nt of tax exemptions 11. Non-impairment of the SC’s jurisdiction in tax cases 12
. Tax exemption of revenues and assets of, including grants, endowments, donatio
ns, or contributions to, educational institutions. Double taxation—additional ta
xes are laid: 1. On the same subject; 2. By the same taxing authority; 3. During
the same taxing period; and 4. For the same purpose.
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Page 537/12/2008
¥say
Double taxation is allowed by law. However, it will not be allowed if the same w
ill result in violation of the equal protection clause. What is prohibited is di
rect double taxation. In Punzalan vs. Municipal Board of Manila, 95 Phil. 46, th
ere is no double taxation if one tax is imposed by the LGU and the other by the
National Government.
TAX 1. AS TO BASIS Power of taxation—to raise revenue 2. AS TO LIMITATION
LICENSE Police power—to regulate
Rate or amount to be collected is unlimited Amount is limited to cost of: a)issu
ing the provided it is not confiscatory license; and b)necessary inspection of p
olice surveillance 3. AS TO OBJECT Imposed on persons or property 4. AS TO EFFEC
T OF NON-PAYMENT Business or activity does not become Business becomes illegal i
llegal Tax Debt due to the government in its sovereign due to the government i
n its corporate capacity capacity Taxes cannot be subject to off-setting or comp
ensation for the simple reason that the government and the taxpayers are not cre
ditors and debtors of each other.
(Philex Mining Corp. vs. CIR, 294 SCRA 687)
Paid for privilege of doing something but privilege is revocable
Tax exemptions: -discretion of the legislature 1. Sec. 28 (4), Art. VI 2. Sec. 2
8 (3), Art. VI
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Page 547/12/2008
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Taxes—the enforced proportional contributions from persons and property levied b
y the State by virtue of its sovereignty for the support of the government and f
or all public needs.
3. Sec. 4 (3), Art. XIV 4. Sec. 4 (4), Art. XIV 5. Where tax exemption is grante
d gratuitously, it may be revoked at will; but not if granted for a valuable con
sideration—deemed to partake of the nature of contract and obligation thereof—pr
otection against impairment. In Lladoc vs. CIR, 14 SCRA 292, a parish priest acc
epted a donation to be used for the construction of a church. The money was spen
t for the purpose. The CIR imposed tax. The objection was based on constitutiona
l exemption of church properties from taxes. The SC rejected. Exemption referred
only to property taxes imposed on lands, buildings and improvements used for re
ligious purposes. The tax in this case is not an ad valorem tax on the church it
self but an excise tax imposed on the priest (not on the properties) for his exe
rcise of the privilege to accept the donation. Territoriality in Taxation—the po
wer to tax operates only within the territorial jurisdiction of the taxing autho
rity. It cannot be exercised beyond the boundaries except under certain circumst
ances. Taxable Situs of Real Properties—the place where they are situated Mobili
a Sequntur Personam—the intangible personal property such as credits, bank depos
its, bonds, corporate stocks which do not admit of actual location and do not ha
ve inherent value but mere evidence of debts or property are usually taxable in
the state of residence of the owner. Uniformity in Taxation—all taxable articles
, or kinds of property of the same class, shall be taxed at the same rate. There
is uniformity when a tax operates in taxation with the same force and effect on
its subject wherever found. Equality of Taxation—taxes shall be strictly propor
tional to the relative value of the taxable property.
Article III BILL OF RIGHTS
Significance. Government is powerful. When limited, it becomes tyrannical. It is
a guarantee that there are certain areas of person’s life, liberty or property
which
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Page 557/12/2008
¥say
government power may not touch. All the powers of the government (police power,
power of eminent domain and power of taxation) are limited by the Bill of Right
s. Classification of Rights: 1. Political Rights—granted by law to members of a
community in relation to their direct or indirect participation in the establish
ment or administration of government. 2. Civil Rights—rights which municipal law
will enforce at the instance of private individuals for the purpose of securing
them the enjoyment of their means of happiness. 3. Social and Economic Rights—t
hese are the rights which generally require implementing legislation. (Article X
III) Doctrine of Preferred Freedom (Hierarchy of Rights)—some rights are prefer
red
Property and property rights can be lost thru prescription; but human rights are
imprescriptible.
In the hierarchy of civil liberties, the rights of free expression and of assem
bly occupy a preferred position as they are essential to the preservation and vi
tality of our civil and political institutions; and such priority “gives these l
iberties the sanctity and the sanction not permitting dubious intrusions.” The s
uperiority of these freedoms over property rights is underscored by the fact tha
t a mere reasonable or rational relation between the means employed by the law a
nd its object or purpose—that the law is neither arbitrary nor discriminatory no
r oppressive—would suffice to validate a law which restricts or impairs property
rights. On the other hand, a constitutional or valid infringement of human ri
ghts requires a more stringent criterion, namely existence of a grave and immedi
ate danger of a substantive evil which the State has the right to prevent.
Sec. 1, Art. III

56
Page 567/12/2008
PBM Employees Org. vs. PBM Co., Inc., 51 SCRA 189 While the Bill of Rights als
o protects property rights, the primacy of human rights over property is recogni
zed. Because these freedoms are “delicate and vulnerable, as well as supremely p
recious in our society” and the “threat of sanctions may deter their exercise al
most as potently as the actual application of sanctions,” they “need breathing s
pace to survive,” permitting government regulation only “with narrow specificity
.”
¥say
No person shall be deprived of life, liberty or property without due process of
law nor shall any person be denied the equal protection of the laws. LIMITATIONS
OF SOVEREIGNTY Inherent in sovereignty, and therefore not even required to be c
onferred by the Constitution, are the police, eminent domain, and taxation power
s. The Bill of Rights, notably the due process, equal protection and non-impairm
ent clauses, is a means of limiting the exercise of these powers by imposing on
the State the obligation to protect individual rights. The Bill of Rights is add
ressed to the State, notably the government, telling it what it cannot do to the
individual. A. DUE PROCESS OF LAW That which hears before it condemns, which pr
oceeds upon inquiry and renders judgment only after trial. Applies to all perso
ns, without regard to any difference in race, color or nationality Artificial p
ersons—covered but only insofar as their property is concerned. Extends to alie
ns Includes the means of livelihood “Responsiveness to the supremacy of reason,
obedience to the dictates of justice.” (Ermita-Malate Hotel & Motel Operators A
ssociation vs. City of Manila, 20 SCRA 849) Life—includes the right of an indivi
dual to his body in its completeness, free from dismemberment, and extends to th
e use of God-given faculties which make life enjoyable. Liberty—includes the rig
ht to exist and the right to be free from arbitrary personal restraint or servit
ude. x x x It includes the right of the citizen to be free to use his faculties
in all lawful ways. (Rubi vs. Provincial Board of Mindoro, 39 Phil 660) Property
—is anything that come under the right of ownership and be the subject of contra
ct. It represents more than the things a person owns; it includes the right to s
ecure, use and dispose of them. Public office is not a property which one may ac
quire a vested right, it is nevertheless a protected right. (Bince vs. COMELEC,
218 SCRA 782) Scope/Aspects of Due Process:
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Page 577/12/2008
¥say
1. Procedural Due Process—the method or manner by which the law is enforced.
It serves as a restriction on actions of judicial and quasi-judicial agencies of
the government. Requisites: (non-criminal cases) a. An impartial court or tribu
nal clothed with judicial power to hear and determine matter before it; b. Juris
diction properly acquired over person of defendant and over property which is th
e subject matter of the proceeding; c. Opportunity to be heard; and d. Judgment
rendered upon lawful hearing and based on evidence adduced. Impartial Court or T
ribunal—Judges must not only be impartial but must also appear to be impartial a
s an added assurance to the parties that his decision will be just. In Anzaldo v
s. Clave—Jacobo Clave, acting as Chairman of CSC, rendered a decision against pe
titioner. When petitioner appealed to the Office of the President, the same Jaco
bo Clave, but this time acting as Presidential Executive Assistant, upheld his o
wn earlier decision. The SC held that this violates fundamental fairness require
d by due process. A public officer who decided the case should not be the same p
erson to decide it on appeal because he cannot be an impartial judge. People vs.
Mendenilla (2001), judges have as much interest as counsel in the orderly and e
xpeditious presentation of evidence, and have the duty to ask questions that wou
ld elicit the facts on the issues involved, clarify ambiguous remarks by witness
es and address the points overlooked by counsel. Questions which merely clear up
dubious points and elicit relevant evidence are within the prerogative of a jud
ge to ask. Sec. 14 (1), Art. III—No person shall be held to answer for a crimina
l offense without due process of law. ---This is procedural due process in crimi
nal cases Requisites of Criminal Due Process: a. Accused has been heard in a cou
rt of competent jurisdiction; b. Accused is proceeded against under the orderly
processes of law; c. Accused is given notice and opportunity to be heard; d. Jud
gment rendered within authority of constitutional law
If the prosecution produces the conviction based on untrue evidence, then it is
guilty of depriving the accused of due process. Thus false testimony can be que
stioned by the accused regardless of the time that lapsed.
(Mejia vs. Pamaran, No. L-56741, April 15, 1988)
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Page 587/12/2008
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2. Substantive Due Process—it requires that the law itself, not merely the
procedures by which the law would be enforced, is fair, reasonable and just. Thi
s serves as a restriction on the government’s law and rule-making powers; a proh
ibition of arbitrary laws. The heart to substantive due process is the “reasona
bleness”, or the absence of exercise of arbitrary power. These are necessarily r
elative concepts which depend on the circumstances of every case. As a general
rule, when the State acts to interfere with life, liberty, or property, the pres
umption is that the action is valid. In rare cases, as in “prior restraint”, the
re is a presumption of invalidity. Requisites: a. Interest of the public; b. Mea
ns employed are reasonably necessary for accomplishment of purpose and not undul
y oppressive. The legislature may not, under the guise of protecting the public
interest, arbitrarily interfere with private business or impose unusual and unn
ecessary restrictions upon lawful occupations. Void-for-vagueness Rule—a crimina
l statute that fails to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden by the statute, or is so indefinite that i
t encourages arbitrary and erratic arrests and convictions is void for vagueness
. The constitutional vice in a vague or indefinite statute is the injustice to t
he accused in placing him on trial for an offense, the nature of which he is giv
en no fair warning. A law is “vague” as not to satisfy the due process need for
notice when it lacks comprehensible standards that “men of common intelligence m
ust necessarily guess as to its meaning and differ as to its application” or is
so indefinite that “it encourages arbitrary and erratic arrests and convictions.
” It is injustice to the accused in placing him on trial for an offense, the nat
ure of which he is given no fair warning. It is repugnant to the Constitution in
2 aspects: 1. It violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and 2. It leav
es law enforcers unbridled discretion in carrying out its provisions and become
an arbitrary flexing of the Government muscle. The act must be utterly vague on
its face, that is to say, it cannot be clarified by either saving clause or by c
onstruction. (People vs. Dela Piedra, 350 SCRA 163, January 24, 2001) Overbreadt
h Doctrine—decrees that a governmental purpose may not be
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Page 597/12/2008
¥say
achieved by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms. Facial Challenge—a facial challenge is allowed to be made
to a vague statute and to one which is overbroad because of possible “chilling
effect” upon protected speech. “On its face” invalidation of statutes results in
striking them down entirely on the ground that they might be applied to parties
not before the Court whose activities are constitutionally protected. It consti
tutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in steril
e abstract contexts. Tanada vs. Tuvera, 146 SCRA 446 (1986), Motion for reconsid
eration. xxx [T]he clause "unless it is otherwise provided" refers to the date o
f effectivity and not to the requirement of publication itself, w/c cannot in an
y event be omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date, w/o its previous
publication. Publication is indispensable in every case, but the legislature may
in its discretion provide that the usual 15-day period shall be shortened or ex
tended. It is not correct to say that under the disputed clause publication may
be dispensed w/ altogether. The reason is that such omission would offend due pr
ocess insofar as it would deny the public knowledge of the laws that are suppose
d to govern it. Conclusive presumption of knowledge of the law.-- The conclusive
presumption that every person knows the law presupposes that the law has been p
ublished if the presumption is to have any legal justification at all. The term
laws should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some
that do not apply to them directly. An example is a law granting citizenship to
a particular individual, like a relative of Pres. Marcos who was decreed instan
t naturalization. RULE: All statutes, including those of local application and p
rivate laws, shall be published as a condition for their effectivity, w/c shall
begin 15 days after publication unless a different effectivity date is fixed by
the legislature. Coverage: Covered by this rule are PDs and EOs promulgated by t
he Pres. in the exercise of legislative powers. Administrative rules and regulat
ions must also be published if their purpose is to enforce or implement existing
law pursuant to a valid delegation.
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Page 607/12/2008
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Publication of laws is part of substantive due process. It is imperative to the
validity of laws, PDs, EOs, Administrative rules and regulations except interpr
etative legislations. (Tañada vs. Tuvera, No. L-63915, December 29, 1986)
Notes: In the original case Tanada vs. Tuvera, 136 SCRA 27 (1985), the SC ruled
that as a matter of substantive due process, any law must be published before th
e people can be expected to observe them. But, according to a split decision, pu
blication need not be made in the Official Gazette. It is enough that it be publ
ished in a newspaper of general circulation. After the EDSA revolution, upon the
reconstitution of the SC, the original judgment was reconsidered, and the SC no
w ruled that publication must be made in the Official Gazette, pursuant to CA 63
8 and the Civil Code, unless a law "provides otherwise" that is, a different mod
e of publication. What must be published are (1) all laws of general application
, and even those not of general application like (2) private laws affecting only
particular individuals, e.g., legislative grant of citizenship, (3) laws of loc
al application, and (4) rules and regulations of a substantive character. This m
eans not only the title but the entire law. When? Forthwith, that is, immediatel
y. Where? Only in the Official Gazette
Secretary of Justice vs. Lantion (2000), an extraditee is not entitled to notice
and hearing during the evaluation stage of the extradition process. PD 1069 aff
ords an extraditee sufficient opportunity to meet the evidence against him once
the petition is filed in court. During the evaluation stage, right to know is wi
thheld to accommodate the more compelling interest of the State—to prevent escap
e of potential extradite which may be precipitated by premature information on t
he basis of the request for extradition. Roxas vs. Vasquez (2001), lack of notic
e to, participation of complainants at the REINVESTIGATION does not render the r
esolution of the Ombudsman null and void. (But in preliminary investigation, the
ir participation is needed.) Exceptions to Notice and Hearing Requirements Philc
omsat vs. Alcuaz (1989)—without conducting any hearing, NTC ordered PHILCOMSAT t
o reduce its rates by 15%. PHILCOMSAT challenged the validity of the order on th
e ground that it is an exercise of a quasi-judicial power without the required
61
Page 617/12/2008
¥say
Interpretative regulations and those merely internal in nature, i.e., regulating
only the personnel of the administrative agency and not the public, need not be
published. Neither is publication required of the so-called letters of instruct
ions issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. Publication
must be in full or it is no publication at all since its purpose is to inform th
e public of the contents of the laws. The mere mention of the number of the PD,
the title of such decree, its whereabouts, the supposed date of effectivity, and
in a mere supplement of the OG cannot satisfy the publication requirement. This
is not even substantial compliance.
hearing. NTC replied that the order was merely interlocutory. The SC held that f
ixing rates is quasi-judicial in nature. Hence, unlike in the exercise of quasi-
legislative power, it must be preceded by a hearing. The fact of the order being
merely interlocutory does not alter the situation because for all practical pur
poses it is final as to the period covered. BUT, in Radio Communications vs. NTC
(1990)—the Court upheld the temporary rates granted by the NTC asserting that t
he law allows the NTC to approve temporary rate requested by public service agen
cy provided hearings are held within 30 days thereafter. As a general rule, not
ice and hearing, as the fundamental requirements of procedural due process, are
essential only when an administrative body exercises its QUASIJUDICIAL function.
In the exercise of its EXECUTIVE or LEGISLATIVE functions, such as issuing rule
s and regulations, an administrative body need not comply with the requirements
of notice and hearing.
Suntay vs. People (1957)—the passport of a person sought for the commission of a
crime may be cancelled without notice and hearing. Equitable Banking Corp. vs.
Calderon, G.R. No. 156168, December 14, 2004, the Sc ruled that no malice or bad
faith attended the Bank’s dishonor of Calderon’s credit card, inasmuch as the d
ishonor was justified under its Credit Card Agreement which provided that the ca
rdholder agreed not to exceed his approved credit limit, otherwise the card priv
ilege would be automatically suspended without notice to the cardholder. Appeal
and due process— Appeal is not a natural right nor is it a part of due process;
generally, it may be allowed or denied by the legislature in its discretion. But
where the Constitution gives a person the right to appeal, denial of the right
to appeal constitutes a violation of due process. Where there is statutory grant
of the right to appeal, denial of that remedy also constitutes a denial of due
process. Preliminary Investigation and due process— Preliminary investigation is
not a constitutional right, but is merely a right conferred by statute (Serapio
vs. Sandiganbayan, G.R. No. 148468, January 28, 2003). It may be waived express
ly or by failure to invoke it (Benedicto vs. CA, G.R. No. 125359, September 4, 2
001). The right may be forfeited by inaction, and cannot be invoked for the firs
t time on appeal (People vs. Lagao, G.R. No. 118457, April 8, 1997). Go vs. CA,
206 SCRA 138, when there is statutory grant of the right to preliminary investig
ation, denial of the same is an infringement of the due process clause. The righ
t to preliminary investigation is substantive, not merely formal or
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Page 627/12/2008
¥say
technical. To deny it to the petitioner would deprive him of the full measure of
his right to due process. (Yusop vs. Sandiganbayan, G.R. No. 138859-60, Februar
y 22, 2001) Prejudicial Publicity— To warrant a finding of prejudicial publicity
there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. Petitioners cannot
just rely on the subliminal effects of publicity… because these are basically un
beknown and beyond knowing. (Webb vs. De Leon, 1995)
While investigations conducted by an administrative body may at times be akin to
a criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of t
he nature of charges and of the respondent’s capacity to represent himself, and
no duty rests on such body to furnish the person being investigated with counsel
. In an administrative proceeding, a respondent has the option of engaging the s
ervices of counsel or not. Thus, the right to counsel is not imperative in admin
istrative investigations because such inquiries are conducted merely to determin
e whether there are facts that merit disciplinary measures against erring public
officers and employees, with the purpose of maintain the dignity of government
service. The right to counsel is not indispensable to due process unless require
d by the Constitution or law. (Lumiqued vs. Exevea, 282 SCRA 125) Is an extradi
tee entitled to notice and hearing before the issuance of a warrant of arrest on
ce the petition for extradition is filed in court? Both on statutory and const
itutional grounds, the answer is “no”. In Government of USA vs. Hon. Puruganan,
G.R. No. 148571, September 24, 2002: 1. On the basis of Extradition Law Sec. 6 o
f PD 1069—Extradition Law, uses the word “immediate” to qualify the arrest of th
e accused. This qualification would be rendered nugatory by setting for hearing
the issuance of the arrest warrant. Hearing entails sending notices to the oppos
ing parties, receiving facts and arguments from them, and giving them time to pr
epare and present such facts and arguments. Arrest subsequent to a hearing can n
o longer be considered “immediate”. The law could not have
63
Page 637/12/2008
Does the due process clause encompass the right to be assisted by counsel durin
g an administrative inquiry? No. The right to counsel, which cannot be waived
unless the waiver is in writing and in the presence of counsel, is a right affor
ded a suspect or an accused during custodial investigation. It is not an absolut
e right and may, thus, be invoked or rejected in a criminal proceeding and, with
more reason, in an administrative inquiry.
¥say
intended the word as a mere superfluity but, on the whole, as a means of impairi
ng a sense of urgency and swiftness in the determination of whether a warrant or
arrest should be issued. By using the phrase “if it appears”, the law further c
onveys that accuracy is not as important as speed at such an early stage. The tr
ial court is not expected to make an exhaustive determination to ferret out the
true and actual situation, immediately upon the filing of the petition. From the
knowledge and the material then available to it, the court is expected merely t
o get a good first impression—a prima facie finding—sufficient to make a speedy
initial determination as regards the arrest and detention of the accused. 2. On
the basis of the Constitution Even Sec. 2 of Article III does not require a noti
ce and hearing before the issuance of a warrant of arrest. To determine probable
cause for the issuance of arrest warrants, the Constitution itself requires onl
y examination--under oath or affirmation—of complainants and the witnesses they
may produce. There is no requirement to notify and hear the accused before the i
ssuance of warrant of arrest.
B. EQUAL PROTECTION CLAUSE—
The equal protection of the law is embraced in the concept of due process, as ev
ery unfair discrimination offends the requirements of justice and fair play. It
has nonetheless been embodied in a separate clause in Section 1 of Article III t
o provide for a more specific guaranty against any form of undue favoritism or h
ostility from the government. Arbitrariness in general may be challenged on the
basis of the due process clause. But if the particular act assailed partakes of
an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause. It simply requires that all persons or things, similar
ly situated should be treated alike, both as to rights conferred and responsibil
ities imposed. Similar subjects, in other words, should not be treated different
ly, so as to give undue favor to some and unjustly discriminate against others.
It does not require the universal application of the laws on all persons or thin
gs without distinction. This might in fact sometimes result in unequal protectio
n, as where, for example, a law prohibiting mature books to all persons, regardl
ess of age, would benefit the morals of the youth but violate the liberty of adu
lts. What the clause requires is equality among equals as determined according t
o a valid classification. By classification is meant the grouping of persons or
things similar to each other in certain particulars and different from all other
s in these same particulars. (Philippine Judges Association vs. Prado, 227 SCRA
703)
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Who are protected—all persons or things similarly situated should be treated ali
ke, both as to rights conferred and responsibilities imposed. Natural and juridi
cal persons are entitled to this guarantee; but with respect to artificial perso
ns, they enjoy the protection only insofar as their property is concerned. Scope
: Political, Economic and Social Equality Art. XIII, Secs. 1&2 (social justice)—
political & economic Section 1—The Congress shall give highest priority to the e
nactment of measures that protect and enhance the right of all the people to hum
an dignity, reduce social, economic, and political inequalities, and remove cult
ural inequities by equitably diffusing wealth and political power for the common
good. To this end, the State shall regulate the acquisition, ownership, use, an
d disposition of property and its increments. Section 2—The promotion of social
justice shall include the commitment to create economic opportunities based on f
reedom of initiative and self-reliance. Art. XIII, Sec. 3 (protection to labor)—
Article XII, Section 10 (nationalization of business) FILIPINO FIRST POLICY—The
Congress shall, upon recommendation of the economic and planning agency, when t
he national interest dictates, reserve to citizens of the Philippines or to corp
orations or associations at least sixty per centum (60%) of whose capital is own
ed by such citizens, or such higher percentage as Congress may prescribe, certai
n areas of investments. The Congress shall enact measures that will encourage th
e formation and operation of enterprises whose capital is wholly owned by Filipi
nos. In the grant of rights, privileges, and concessions covering the national e
conomy and patrimony, the State shall give preference to qualified Filipinos. Th
e State shall regulate and exercise authority over foreign investments within it
s national jurisdiction and in accordance with its national goals and priorities
. Art. XII, Sec. 2(2) (reservation of marine resources)—economic The State shall
protect the nation’s marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to F
ilipino citizens. Art. III, Sec. 11 (free access to the courts)—political & econ
omic Free access to the courts and quasi-judicial bodies and adequate legal assi
stance shall
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not be denied to any person by reason of poverty. Art. VIII, Sec. 5(5) (legal ai
d to the poor)—xxx Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the adm
ission to the practice of law, the IBP, and legal assistance to the underprivile
ged. Such rules shall provide a simplified and inexpensive procedure for the spe
edy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective unless disapp
roved by the Supreme Court. Art. IX-C, Sec. 10 (protection of candidates)—politi
cal Bona fide candidates for any public office shall be free from any form of ha
rassment and discrimination. Art. II, Sec. 26 (public service)—The State shall g
uarantee equal access to opportunities for public service, and prohibit politica
l dynasties as may be defined by law. Art. II, Sec. 14 (equality of women and me
n)—The State recognizes the role of women in nation-building, and shall ensure t
he fundamental equality before the law of women and men. There are areas of econ
omic activity which can be limited to Filipinos. The Constitution itself acknowl
edges this in various places - exploitation of marine wealth (Article XII, Secti
on 2, paragraph 2), certain areas of investment (Article XII, Section 10), to na
me a few. In Ichong v. Hernandez, 201 Phil. 1155 (1937), the SC upheld the valid
ity of the law which nationalized the retail trade. For the protection of the la
w can be observed by the national interest. But there are areas where aliens can
not be kept away for the simple reason that they cannot be deprived of a common
means of livelihood, especially when they are admitted to the country as immigra
nts. Valid Classification: Persons or things ostensibly similarly situated may,
nonetheless, be treated differently if there is a basis for valid classification
. The requisites are: 1. Classification must be based on substantial distinction
s which make for real differences;
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Page 667/12/2008
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2. The distinction must be germane to the purpose of the law—the distinctions wh
ich are the bases for the classification should have a reasonable relation to th
e purpose of the law;
3. Not limited to existing conditions only; and 4. It must apply to all members
of the same class. Philippine Judges Association vs. Prado, 227 SCRA 703, The wi
thdrawal of franking privileges formerly granted to the judiciary but remained w
ith the executive and legislative departments, was declared unconstitutional, be
cause the three branches of government are similarly situated. Villegas vs. Hui
Chiong, the ordinance imposing a work permit fee of P50.00 upon all aliens desir
ous of obtaining employment in the City of Manila was declared unconstitutional,
because the fee imposed was unreasonable and excessive, and it failed to consid
er valid substantial differences in situation among individual aliens who were r
equired to pay it. Sexual Discrimination Phil. Association of Service Exporters
vs. Drilon, 163 SCRA 386, female domestic working abroad were in a class by them
selves because of the special risks to which their class was exposed. Administra
tion of Justice Chavez vs. PCGG, G.R. No. 130716, December 9, 1988, Special gran
t of exemption in favor of the Marcoses as contained in the agreement entered in
to by PCGG with Marcos Family to compromise the ill-gotten wealth cases (exempt
from all taxes) filed by the former against the latter is a CLASS LEGISLATION, v
ilative of the equal protection clause. Lacson vs. Executive Secretary, G.R. No.
128096, January 20, 1999, petitioner’s and intervenor’s right to equal protecti
on was not violated by the enactment of RA 8249 because the law was not directed
only to Kuratong Baleleng cases. Every classification made by law is presumed r
easonable, and the party who challenges the law must present proof of arbitrarin
ess. Public Policy Ceniza vs. COMELEC, 95 SCRA 763, The law excluding residents
of Mandaue City from voting for provincial candidates was justified “as a matter
of legislative discretion” and that equal protection would be violated only if
group within the city were allowed to vote while others were not.
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Olivares vs. Sandiganbayan, 248 SCRA 700, when the mayor issued permit in favor
of unidentified vendors while imposing numerous requirements upon Baclaran Credi
t Cooperatives, he violated the equal protection clause when failed to show that
the two were not similarly situated. Tiu vs. CA, G.R. No. 127410, January 20, 1
999, the executive order granting tax and duty incentives only to business and r
esidents within the “secured area” of Subic Special Economic Zone and denying th
em to those who live within the zone but outside such “fenced in” territory is V
ALID. The Constitution does not require absolute equality among residents. It is
enough that all persons under like circumstances or conditions are given the sa
me privileges and required to follow the same obligations. Classification based
on valid and reasonable standards does not violate the equal protection clause.
International School Alliance of Educators vs. Quisumbing, G.R. No. 128845, June
1, 2000, there were no reasonable distinctions between the services rendered by
“foreign-hires” and “local-hires” as to justify the disparity in salaries paid
to those teachers. Relative Constitutionality: Central Bank Employees Associatio
n vs. BSP, G.R. No. 148208, December 15, 2004, the constitutionality of a statut
e cannot, in every instance, be determined by a mere comparison of its provision
s of the Constitution since the statute may be constitutionally valid as applied
to one set of facts and invalid in application to another. A statute valid at o
ne time may become void at another time because of altered circumstances. Thus,
if a statute in its practical operation becomes arbitrary or confiscatory, its v
alidity, even though affirmed by a former adjudication, is open to inquiry and i
nvestigation in the light of changed conditions. In Dumlao v. Comelec, 95 SCRA 3
92 (1980), the SC upheld the validity of sec. 4 of Batas Blg. 52 disqualifying r
etired elective local officials who have received retirement benefits and would
have been 65 years old at the start of the term. It does not violate equal prote
ction, for it gives younger blood the opportunity to run the local government. I
n Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candidat
es convicted or simply charged with national security offenses was struck down a
s unconstitutional, for violating the presumption of innocence and thus ultimate
ly the equal political protection.
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SEARCH WARRANT—may be said to particularly describe the things to be seized when
the description therein is as specific as the circumstances will ordinarily all
ow; or when the description expresses a conclusion of fact, not of law, by which
the warrant officer may be guided in making the search and seizure; or when the
things described are limited to those which bear direct relation to the offense
for which the warrant is being issued. WARRANT OFARREST—said to particularly de
scribe the person to be seized if it contains the name of the person to be arres
ted. Requisites of a valid warrant: 1. It must be based upon probable cause—such
facts and circumstances antecedent to the issuance of the warrant that in thems
elves are sufficient to induce a cautious man to rely on them and act in pursuan
ce thereof. It consists of a reasonable ground of suspicion supported by circums
tances sufficiently strong in themselves to warrant a cautious man in believing
accused to be committing the offense or to be guilty of the offense. For a sea
rch warrant—such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the objec
ts sought in connection with the offense are in the place sought to
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Page 697/12/2008
Scope: The protection is available to all persons, including aliens, whether acc
used of crime or not. Artificial persons are also entitled to the guarantee, alt
hough they may be required to open their books of accounts for examination by th
e State in the exercise of police and taxing powers. The right is personal; it m
ay be invoked only by the person entitled to it (Stonehill vs. Diokno, 20 SCRA 3
83). As such, the right may be waived either expressly or impliedly, but the wai
ver must be made by the person whose right is invaded, not by one who is not dul
y authorized to effect such waiver. (People vs. Damaso, 212 SCRA 457)
¥say
Sec. 2, Article III Searches and Seizures The right of the people to be secure i
n their persons, houses, papers, and effects against unreasonable searches and s
eizures of whatever nature and for any purpose shall be inviolable, and no searc
h warrant or warrant of arrest shall issue except upon probable cause to be dete
rmined personally by the judge after examination under oath or affirmation of th
e complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
be searched. (Burgos v. Chief of Staff, 133 SCRA 800) For a warrant of arrest—
such facts and circumstances which would lead a reasonably and prudent man to be
lieve that an offense has been committed by the person sought to be arrested (We
bb vs. De Leon, G.R. No. 121234, August 23, 1995) In Stonehill v. Diokno, 20 SCR
A 385 (1967), 42 search warrants were issued for alleged violation of Central Ba
nk Laws, the Tariff and Customs Code, the NIRC, and the Revised Penal Code. The
SC voided the warrants on the ground that it was impossible for the judge to hav
e found probable cause in view of the number of laws alleged to have been violat
ed by the petitioner. How could he even know what particular provision of each l
aw had been violated? If he did not know this, how could it be determined if the
person against whom the warrant was issued was probably guilty thereof? In trut
h, this was a fishing expedition, which violated the sanctity of domicile and pr
ivacy of communications. To establish the requirement of probable cause, the rul
e is: One crime, one warrant.
The judge shall: a. Personally evaluate the report and the supporting documents
submitted by the public prosecutor regarding the existence of probable cause and
on the basis thereof, issue a warrant of arrest; or b. If the basis thereof he
finds no probable cause, he may disregard the prosecutor’s report and require th
e submission of supporting affidavits of witnesses to aid him in arriving at a c
onclusion as to the existence of probable cause. Under the 1987 Constitution, on
ly a judge can issue a warrant; the offensive and much abused phrase "and other
responsible officer as may be authorized by law" in the 1973 Constitution has be
en removed. Search warrant The judge must personally examined in the form of s
earching Q&As, in writing and under oath, the complainant and any witnesses he m
ay produce on facts personally known to them. Warrant of arrest It is not nece
ssary that the judge should personally examine the complainant and his witnesses
; the judge would simply personally review the initial determination of the pros
ecutor to see if it is supported by substantial evidence.
The determination of probable cause depends to a large extent upon the Judge
determines the probability, not finding or opinion of the judge who the certain
ty, of the guilt of the accused
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Page 707/12/2008
2. The probable cause must be determined personally by the judge.
¥say
conducted the required examination of and, in so doing, he need not conduct a th
e applicant and the witnesses. de novo hearing.
3. The determination must be made after examination under oath or affirmation of
The determination of the reasonableness of the judicial warrant must be based on
the affidavit of one who has personal knowledge of the facts to which he testif
ies. The testimony cannot be based on mere belief. Neither can it be based on a
report. Otherwise, the warrant is void. Thus, in Burgos v. Chief of Staff, (1984
), reiterating the 1937 case of Rodriguez v. Villamiel, the testimony based on a
military report that the newspaper We Forum was used for subversive were held t
o be not a personal knowledge and so was inadmissible. Likewise, in Corro v. Lis
ing, 137 SCRA 541 (1985), the testimony based on investigation reports that cert
ain items in the Philippine Times were subversive were held to be not personal k
nowledge, and thus the search warrant issued was not valid.
4. It must particularly describe the place to be searched and the persons or thi
ngs
to be seized. Search warrant The description of the property to be seized need
not be technically accurate nor necessarily precise, and its nature will necess
arily vary according to whether the identity of the property or its character is
a matter of concern; the description is Warrant of arrest General warrants ar
e proscribed and unconstitutional. However, a John Doe Warrant (a warrant for th
e apprehension of a person whose true name is unknown) satisfies the constitutio
nal requireme3nt of particularity if there is some descriptio
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Page 717/12/2008
The requirement that the judge must personally examine the complainant and his w
itnesses means that the actual examination cannot be delegated to someone else,
like the clerk of court. So said the Court in Bache and Co. (Phil) v. Ruiz, 37 S
CRA 823 (1971). In this case, when the BIR agent and his witnesses arrived in co
urt in the middle of a hearing, the judge suspended the hearing and directed the
branch clerk to examine and take the testimony of the witnesses in his chambers
. After he was through with the hearing, he went back to his chambers and findin
g that the examination was finished, asked the BIR agent and his witnesses if th
ey affirmed what they what they testified to, after which he issued the search w
arrant in question.
¥say
the complainant and the witnesses he may produce. The examination conducted by t
he judge takes the form of searching questions.
required to be specific only insofar as the personae which will enable the offic
er to circumstances will allow. identify the accused. Failure to state with part
icularity the place to be searched and items to be seized makes the warrant used
for fishing evidence (a general warrant) which is void. In Burgos v. Chief of S
taff, the description which read "subversive documents, leaflets, papers to prom
ote the objective of the Movement for a Free Philippines, the Light a Fire Movem
ent, and the April 6 Movement" were held not to be particular descriptions, thus
making the warrant a general warrant. In Corro v. Lising, the search and seizur
e of "printed copies and dummies of Philippine Times, subversive documents, arti
cles, printed matters, handbills, leaflets, banners, and typewriters, tape recor
ders, etc." was again invalidated for the description was not at all particular
or specific, thus making the warrants general warrants. When it comes to printed
matters, the offensive material need not be set out in full. It is enough if it
specifies the issues and the title of the articles. The instruction to seize "s
ubversive materials" is not valid because the determination of whether a materia
l is subversive or not is not for the police officer to decide; no unfettered di
scretion must be granted to him. The matter is different if goods were searched
and seized because of their intrinsic quality (as when they are stolen or smuggl
ed), than if the goods were searched for the ideas they contain (as when a "subv
ersive newspaper is sought). In the latter case, a more detailed description of
the physical features of the item is required to avoid delegating the appreciati
on of ideas, and thus threaten free expression. Properties subject to Seizure: 1
. Property subject of the offense; 2. Property stolen or embezzled and other pro
ceeds or fruits of the offense; and 3. Property used or intended to be used as t
he means of committing an offense. Permissible Area of Search In People vs. Hind
oy, G.R. No. 132662, May 10, 2002, the warrantless search and seizure as an inci
dent to a lawful arrest may extend beyond the person of the one arrested to incl
ude the premises or surroundings under his immediate control. Admissibility of I
llegally Seized Evidence Articles illegally seized are not admissible as evidenc
e. The rule has been constitutionally affirmed in Section 3(2), Article III, whi
ch provides that such evidence
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Page 727/12/2008
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“shall be inadmissible for any purpose in any proceeding.” Such evidence is the
fruit of the poisonous tree. However, it is submitted that it may nonetheless be
used in the judicial or administrative action that may be filed against the off
icer responsible for its illegal seizure. It has also been held that where the a
ccused did not raise the issue of the admissibility of the evidence against him
on the ground that it had been illegally seized, such omission constitutes a wai
ver of the protection granted by Section 3, and the illegally seized evidence co
uld then be admitted against him. (People vs. Exala, 221 SCRA 494) WARRANTLESS A
RREST— 1. When a 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 cir
cumstances that the person to be arrested has committed it; and
3. When the person to be arrested is an escapee or a detention prisoner. (Sectio
n
5, Rule 113, Rules of Criminal Procedure) The Rule requires that the accused per
form some overt act that would indicate that he has committed, is actually commi
tting, or is attempting to commit an offense. The officer arresting a person who
has just committed, is committing, or is about to commit an offense must have p
ersonal knowledge of the fact. The offense must also be committed in his presenc
e or within his view. (People vs. Tudtud & Bolong, G.R. No. 144037, September 26
, 2003) WARRANTLESS SEARCHES AND SEIZURES (a) When search is made of moving vehi
cles The reason is the person may escape easily if a warrant has to be applied f
or the mean time. In the Tariff and Customs Code, customs agents are specificall
y authorized to search and seize vehicles even without a warrant. Checkpoints ar
e valid in some instances depending on the purpose (e.g. apprehend a suspected c
riminal) and the circumstances (e.g. probable cause that the criminal is inside
the car). There is no question that when a child has been reported kidnapped in
a community, the police can stop all cars and check if the detained child is in
any one of them. (b) When search is an incident to a valid arrest.
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Page 737/12/2008
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Rule 126, Sec. 12. Search incident to lawful arrest-- A person lawfully arrested
may be searched for dangerous weapons or anything which may be used as proof of
the commission of an offense, without a search warrant. A person arrested may b
e searched for dangerous weapons or anything that proves the commission of the o
ffense. It follows that the search can only be made within the area of control o
f the arrested person, and within the time of the arrest. In Nolasco v. Cruz Pan
o, 139 SCRA 152 (1985), Milagros Roque and Cynthia Nolasco were arrested at the
intersection of Mayon and Margal Streets in QC at 11:30 a.m., having been wanted
as high officers of the CPP. At 12:00 noon, Roque s apartment located 2 blocks
away, was searched and some documents seized. The SC at first held that the sear
ch was valid even if the warrant issued was void for failing to describe with pa
rticularity the things to be seized, because it was an incident of a valid arres
t. But after the EDSA revolution, the reconstituted SC granted the motion for re
consideration and held that just because there was a valid arrest did not mean t
hat the search was likewise valid. To be valid, the search must be "incidental"
to the arrest, i.e., not separated by time or place from the arrest. If the basi
s for allowing incidental searches is looked into, one can see that this situati
on is not one involving a valid incidental search. The law allows the arresting
officer to search a person validly arrested (by frisking him for instance) becau
se (1) a weapon held by the arrested person may be turned against his captor and
(2) he may destroy the proof of the crime, if the arrested officer has to first
apply for a search warrant from a judge. If, in the Nolasco case, the search wa
s conducted 30 minutes after the arrest, there is no longer any danger that the
captured may turn against the captor; and if the documents in the apartment were
2 blocks away, the search would no longer be justified since there is no way fo
r Roque to go back to the apartment and destroy the documents, having been arres
ted already. In People vs. Chua Ho San, 308 SCRA 432, while a contemporaneous se
arch of a person arrested may be effected to discover dangerous weapons or proof
s or implements used in the commission of the crime and which search may extend
to the area within his immediate control where he might gain possession of a wea
pon or evidence he can destroy, a valid arrest must precede the search. The proc
ess cannot be reversed. In a search incidental to a lawful arrest, as the preced
ent arrest determines the validity of the incidental search, the legality of the
arrest is questioned in a large majority of these cases, e.g., whether an arres
t was merely used as a pretext for conducting a
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Page 747/12/2008
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search. In this instance, the law requires that there be first a lawful arrest b
efore a search can be made—the process cannot be reversed. In the case of People
vs. Go, 354 SCRA 338 (2001), the police saw the gun tucked in appellant’s waist
when he stood up. The gun was plainly visible. No search was conducted as none
was necessary. Accused-appellant could not show any license for the firearm, whe
ther at the time of his arrest or thereafter. Thus, he was in effect committing
a crime in the presence of the police officers. No warrant of arrest was necessa
ry in such a situation, it being one of the recognized exceptions under the Rule
s. As a consequence of appellant’s valid warrantless arrest, he may be lawfully
searched for dangerous weapons or anything which may used as proof of the commis
sion of an offense, without a search warrant, as provided in Rule 126, Section 1
2. This is a valid search incidental to a lawful arrest. The subsequent discover
y in his car of drug paraphernalia and the crystalline substance, which, was lat
er identified as shabu, though in a distant place from where the illegal possess
ion of firearms was committed, cannot be said to have been made during an illega
l. As such, the seized items do not fall within the exclusionary clause. Hence,
not being fruits of the poisonous tree, the objects found at the scene of the cr
ime, such as the firearm, the shabu and the drug paraphernalia, can be used as e
videnced against appellant. Besides, it has been held that drugs discovered as a
result of a consented search is admissible in evidence. In People vs. Molina, 3
52 SCRA 174 (2001), to constitute a valid in flagrante delito arrest, two (2) re
quisites must concur: 1) the person to be arrested must execute an overt act ind
icating that he has just committed, is actually committing, or is attempting to
commit a crime; and 2) such overt act is done in the presence or within the view
of the arresting officer. In People vs. Estrella, G.R. Nos. 138539-40, January
21, 2003, the arresting officer may take from the arrested individual any money
or property found upon the latter’s person that which: 1. Was used in the commis
sion of the crime; 2. Was the fruit of the crime; 3. May provide the person arre
sted with the means of committing violence or escaping; 4. May be used in eviden
ce in the trial of the case. The search, however, must be contemporaneous to the
arrest and made within a permissible area of search. Requisite: the apprehendin
g officer must have been spurred by probable cause in effecting the arrest which
could be considered as one in cadence with the instances of permissible arrest
enumerated in Section 5(a), Rule 113 of the Rules of Court.
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Page 757/12/2008
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In the case of People vs. Montilla, G.R. No. 123872, January 30, 1998, the offic
er could reasonably assume—since the informant was by their side and had so info
rmed them and pointed out the culprit—that the drugs were in the appellant’s lug
gage, and it would have been irresponsible, if not downright absurd, for them to
adopt a “wait-and-see” attitude at the risk of eventually losing their quarry.
(c) When things seized are within plain view of a searching party People vs. Hed
ishi Suzuki, G.R. No. 120670, October 23, 2003, whenever the right against unrea
sonable search and seizure is challenged, an individual may choose between invok
ing the constitutional protection or waiving his right by giving consent to the
search and seizure. A reasonable search is not to be determined by any fixed for
mula but is to be resolved according to the facts of the case. Plain View Doctri
ne—finds application only when the incriminating nature of the object is in the
“plain view” of the police officer. The law enforcement officer must lawfully ma
ke an intrusion or properly be in a position from which he can particularly view
the area. In the course of such lawful intrusion, he came inadvertently across
a piece of evidence incriminating the accused. The object must be open to eye an
d hand and its discovery inadvertent. It is clear that an object is in plain vie
w if the object itself is plainly exposed to sight. The difficulty arises when t
he object is inside a closed container. Where the object seized was inside a clo
sed package, the object itself is not in plain view and therefore cannot be seiz
ed without a warrant. However, if the package proclaims its contents, whether by
its distinctive configuration, its transparency, or if its contents are obvious
to an observer, then the contents are in plain view and may be seized. In other
words, if the package is such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the article is deemed
in plain view. It must be immediately apparent to the police that the items that
they observe may be evidence of a crime, contraband or otherwise subject to sei
zure. (People vs. Doria, 301 SCRA 668) Requisites: 1. Valid intrusion based on a
valid warrantless arrest in which the police are legally present in the pursuit
of their official duties; 2. The evidence was inadvertently discovered by the p
olice who have the right to be where they are; 3. The evidence must be immediate
ly apparent; and 4. Plain view justified mere seizure of evidence without furthe
r search. (d) Stop-and-Frisk It is defined as the vernacular designation of the
right of a police officer to stop a
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Page 767/12/2008
¥say
The interest of effective crime prevention and detection allows a police officer
to approach a person, in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is insufficient proba
ble cause to make an actual arrest. Requisites for Stop-and-Frisk 1. The police
officer should properly introduce himself and make the initial inquiries, approa
ch and restrain a person who manifests unusual and suspicious conduct, in order
to check the latter’s outer clothing for possibly concealed weapons. 2. The appr
ehending officer must have a genuine reason to warrant the belief that the perso
n to be held has weapons or contraband concealed about him. It should, therefo
re, be emphasized that a search and seizure should precede the arrest for the pr
inciple of stop-and-frisk to apply. (e) When there is a valid express waiver mad
e voluntarily and intelligently. Waiver cannot be implied from the fact that the
person consented or did not object to the search, for it many happen that he di
d so only out of respect for the authorities. The waiver must be expressly made.
It must be given by the person whose right is violated. In People vs. Bongcaraw
an, G.R. No. 143944, July 11, 2002, the shabu in the baggage of the accused was
found by (private) security officers of the interisland passenger vessel who the
n reported the matter to the Philippine Coast Guard. The search and seizure of t
he suitcase and contraband items were carried out without government interventio
n. Accordingly, the exclusionary rule may not be invoked. (f) Searches of vessel
and aircraft for violation of fishery, immigration and customs law (g) Searches
of automobiles at borders or constructive borders for violation of immigration
and smuggling laws
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Page 777/12/2008
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citizen on the street, interrogate him, and pat him for weapons where a police o
fficer observes an unusual conduct which leads him reasonably to conclude in lig
ht of his experience that criminal activity may be afoot and that the persons wi
th whom he is dealing may be armed and presently dangerous, where in the course
of investigating this behavior he identified himself as a policeman and make rea
sonable inquiries, and where nothing in the initial stages of the encounter serv
es to dispel his reasonable fear for his own or others’ safety, he is entitled f
or the protection of himself or others in the area to conduct a carefully limite
d search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him.
(h) Inspection of buildings and other premises for the enforcement of fire, sani
tary and building regulations (i) Conduct of “areal target zoning” and “saturati
on drive” in the exercise of military powers of the President (j) Visual search
at checkpoints Constitutionality of checkpoints and "areal target zonings"; doct
rine of exigent circumstances The constitutional right against unreasonable sear
ches and seizures is a personal right and can be invoked only by those whose rig
hts have been infringed, or threatened to be infringed. Not all searches and sei
zures are prohibited. Those which are reasonable are not forbidden. Those which
are warranted by the exigencies of public order and are conducted in a way least
intrusive to motorists are allowed. For, admittedly, routine checkpoints do int
rude, to a certain extent, on motorists’ right to “free passage without interrup
tion,” but it cannot be denied that, as a rule, it involves only a brief detenti
on of travellers during which the vehicle’s occupants are required to answer a b
rief question or two. For as long as the vehicle is neither searched nor its occ
upants subjected to a body search and the inspection of the vehicle is limited t
o a visual search, said routine checks cannot be regarded as violative of an ind
ividual’s right against unreasonable search. In fact, these routine checks, when
conducted in a fixed area, are even less intrusive. The checkpoint herein condu
cted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would
be hard put to implement the ban if its deputized agents were limited to a visua
l search of pedestrians. It would also defeat the purpose for which such ban was
instituted. Those who intend to bring a gun during said period would know that
they only need a car to be able to easily perpetrate their malicious designs. Th
ere is no need for checkpoints to be announced. Not only it would be impractical
, it would also forewarn those who intend to violate the ban. Even so, badges of
legitimacy of checkpoints may still be inferred from their fixed location and t
he regularized manner in which they are operated. (People vs. Usana, 323 SCRA 75
4) Knock and Announce Principle— General Rule: Police officers are obliged to gi
ve notice, show their authority and demand that they be allowed entry. They may
only break open any outer or inner door or window of a house to execute the sear
ch warrant if, after such notice and demand, such officers are refused entry to
the place of directed search. Exceptions: Unannounced intrusion into the premise
s is permissible when:
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G.R. No. 139301, September 29, 2004) In People vs. Marti, 193 SCRA 57, the const
itutional protection against unreasonable searches and seizures refers to the im
munity of one’s person from interference by government and it cannot be extended
to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion.
Do the ordinary right against unreasonable searches and seizures apply to searc
hes conducted at the airport pursuant to routine airport security procedures?
In the case of People vs. Leila Johnson, G.R. No. 138881, December 18, 2000, p
ersons may lose the protection of the search and seizure clause by exposure of t
heir persons or property to the public in a manner reflecting a lack of subjecti
ve expectation of privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security procedures. With i
ncreased concern over airplane hijacking and terrorism has come increased securi
ty at the nation’s airports. Passengers attempting to board an aircraft routinel
y pass through metal detectors; their carry-on baggage as well as checked luggag
e, are routinely subjected to x-ray scans. Should these procedures suggest the p
resence of suspicious objects, physical searches are conducted to determine what
the objects are. There is little question that such searches are reasonable, gi
ven their minimal intrusiveness, the gravity of the safety interests involved, a
nd the reduced privacy expectations associated with airline travel. Indeed, trav
elers are often notified through airport public address systems, signs, and noti
ces in their airline tickets that they are subject to search and, if any prohibi
ted materials or substances are found, such would be subject to seizure. These a
nnouncements place passengers on notice that ordinary constitutional protection
against warrantless searches and seizures do not apply to routine airport proced
ures. People vs. Susan Canton, G.R. No. 148825, December 27, 2002, a search made
pursuant to a routine airport security procedure is allowed under RA 6235, whic
h provides that every airline ticket shall contain a condition that hand-carried
luggage, etc., shall be subject to search, and this condition shall form part o
f the contract between the passenger and the air carrier. To limit the action of
the airport security personnel to simply refusing the passenger entry into the
aircraft and sending her home (as suggested by the appellant), and thereby depri
ving the security personnel of “ability and facility to act accordingly, includi
ng to further search without warrant, in light of such circumstances, would be s
anctioned impotence and ineffectiveness in law enforcement,
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1. A party whose premises or is entitled to the possession thereof refuses, upon
demand, to open it; 2. When such person already knew of the identity of the off
icers and of their authority and persons; 3. When the officers are justified in
the honest belief that there is an imminent peril to life or limb; 4. When those
in the premises, aware of the presence of someone outside, are then engaged in
an activity which justifies the officers to believe that an escape or the destru
ction of evidence is being attempted. (People vs. Huang Zhen Hua and Lee,
to the detriment of the society.” The strip search in the ladies’ room was justi
fied under the circumstances. Procedure for Seizure of Pornographic Materials: T
o justify a warrantless search as an incident to a lawful arrest, the arrest mus
t be on account of a crime having been committed; 1. There must be a criminal ch
arge against the person for purveying the porno materials; 2. Application for se
arch warrant must be obtained from the judge; 3. Materials must be brought to co
urt in the prosecution of the accused for the crime charged; 4. Determination wh
ether the items confiscated are pornographic materials; 5. Judgment rendered by
the court. (Pita vs. CA, 178 SCRA 362) Sec. 3, Article III (1) The privacy of co
mmunication and correspondence shall be inviolable except upon lawful order of t
he court, or when public safety or order requires otherwise as prescribed by law
. (2) Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding. The guarantee includes within
the mantle of its protection tangible, as well as intangible objects. (See RA 4
200 below) Exceptions to inviolability: 1. Lawful order of the court; 2. When pu
blic safety or orders requires otherwise, as may be provided by law. Is there a
constitutional right to privacy? Yes. The essence of privacy is “the right to
be left alone”. It is expressly recognized in Section 3(1) of Article III. Other
facts of the right to privacy are protected in various provisions of the Bill o
f Rights, i.e., Sections 1 (right to due process clause), 2 (right against unrea
sonable searches and seizures), 6 (right to liberty of abode and of changing the
same, as well as the right to travel), 8 (freedom of association) and 17 (right
against self-incrimination). (Ople vs. Torres, G.R. No. 127685, July 23, 1988)
Zones of privacy recognized and protected in our laws:
1. The Civil Code provides that “every person shall respect the dignity, persona
lity,
privacy and peace of mind of his neighbors and other persons” and punishes as
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actionable torts several acts by a person of meddling and prying into the privac
y of another. It also holds a public officer or employee or any private individu
al liable for damages for any violation of the rights and liberties of another p
erson, and recognizes the privacy of letters and other private communications.
2. The Revised Penal Code makes a crime the violation of secrets by an officer,
the
revelation of trade and industrial secrets, and trespass to dwelling.
4. Secrecy of Bank Deposits (RA 1405) 5. Intellectual Property Law (RA 8293) 6.
Rules of Court—on privileged communication likewise recognize the privacy of cer
tain information [Sec. 24, Rule 130(c), Revised Rules on Evidence] RA 4200 Anti-
Wire Tapping Act It prohibits any person not being authorized by all parties to
any private communication or spoken word, to tap any wire or cable, or by using
any other device or arrangement to secretly overhear, intercept or record the sa
me, or to communicate the content thereof to any person. The use of said record
may be permitted in the following instances: 1. In civil or criminal proceedings
involving certain specified offenses principally affecting national security; a
nd 2. When authorized by the court which may be issued under the following condi
tions: a. The constitutional requirements for the issuance of a warrant should b
e complied with; and b. The authority shall be effective only for sixty (60) day
s. Any evidence obtained in violation of this law is not admissible in any proce
eding. RA 4200 clearly and unequivocally makes it illegal for any person, not au
thorized by all parties to any private communication, to secretly record such co
mmunications by means of a tape recorder. The law does not make any distinction.
A telephone extension is not among the devices covered by this law. (Gaanan vs.
IAC, 145 SCRA 112) Navarro vs. CA, G.R. No. 121087, August 26, 1999, two local
media men in Lucena City went to the police station to report alleged indecent s
how in one night establishment in the City. At the station, there was a heated a
rgument between police
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3. Anti-Wiretapping Law (RA 4200)—invasion of privacy.
officer Navarro and Lingan, one of the two media men, which led to fisticuffs. L
ingan fell and his head hit the pavement which caused his death. During the tria
l, Jalbuena, the other media man, testified. Presented in evidence to confirm hi
s testimony was a voice recording he had made of the heated discussion at the po
lice station between accused police officer Navarro and the deceased, Lingan, wh
ich was taken without the knowledge of the two. The SC held that Jalbuena’s test
imony is confirmed by the voice recording he had made. It may be asked whether t
he tape is admissible in view of RA 4200, which prohibits wire tapping. The answ
er is in the affirmative. The law prohibits the overhearing, intercepting or rec
ording of private communications. Since the exchange between petitioner Navarro
and Lingan was not private, its tape recording is not prohibited. Exempted acts:
A. Use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned below: [Secs. 1, par. 2] B. Any pea
ce officer, who is authorized by the written order of the Court (RTC within whos
e territorial jurisdiction the acts for which authority is applied for are to be
executed), to execute any of the acts declared to be unlawful in cases involvin
g the crimes of: [Sec. 3, par. 1] 1. treason 2. espionage 3. provoking war and d
isloyalty in case of war 4. piracy 5. mutiny in the high seas 6. rebellion 7. co
nspiracy and proposal to commit rebellion 8. inciting rebellion 9. sedition 10.
conspiracy to commit sedition 11. inciting to sedition 12 kidnapping as defined
by the RPC 13. violations of CA 616, punishing espionage and other offenses agai
nst national security The WRITTEN ORDER shall only be issued or granted upon wri
tten application with the examination under oath or affirmation of the applicant
and the witnesses he may produce and must show: a) That there are reasonable gr
ounds to believe that any of the crimes enumerated herein has been committed or
is being committed provided, that in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, co
nspiracy to commit sedition, such authority shall be granted only upon prior pro
of that a rebellion or acts of sedition, as the case may be, have actually been
or are being committed;
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b) That there are reasonable grounds to believe that evidence may be obtained es
sential to the conviction of any person for, or to the solution of, or to the pr
evention of, any of such crimes; c) That there are no other means readily availa
ble for obtaining such evidence. Contents: 1. The identity of the person or pers
ons whose communications, conversations, discussions, or spoken words are to be
overheard, intercepted, or recorded and, in the case of telegraphic or telephoni
c communications, the telegraph line and the telephone number involved and its l
ocation; 2. The identity of the peace officer authorized to overhear, intercept,
or record the communications, conversations, discussions, or spoken words; 3. T
he offense or offenses sought to be committed or prevented; and 4. The period of
the authorization. Effectivity: The authorization shall be effective for the pe
riod specified in the order which shall not exceed 60 days from the date of issu
ance of the order, unless extended or renewed by the court upon being satisfied
that such extension or renewal is in the public interest. Procedure: All recordi
ngs made under court authorization within 48 hours after the expiration of the p
eriod fixed in the order: 1. Shall be deposited with the court in a sealed envel
ope or sealed package; 2. shall be accompanied by an affidavit of the peace offi
cer granted such authority stating the number of recordings made, the dates and
times covered by each recording, the number of tapes, discs, or records included
in the deposit and certifying that no duplicates or copies are included in the
envelope or package deposited with the court; 3. shall not be opened, or the rec
ordings replayed, or used in evidence or their contents revealed, except upon or
der of the court, which shall not be granted except upon motion, with due notice
and opportunity to be heard to the person or persons whose conversations or com
munications have been recorded. PENALTY Any person who violates the provisions o
f this Act, shall, upon conviction, be punished by: 1. imprisonment for not less
than 6 months or more than 6 years; and 2. with the accessory penalty of perpet
ual absolute disqualification from public office if the offender be a public off
icial at the time of the commission of the offense; and
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3. If the offender is an alien, he shall be subject to deportation proceedings.
Exclusionary Rule Art. III, Sec. 3. xxx (2) Any evidence obtained in violation o
f this (privacy of communication and correspondence) or the preceding section (u
nreasonable searches and seizures) shall be inadmissible for any purpose in any
proceeding. One of the remedies of one who was victimized by an illegal search i
s to ask for the suppression of the things seized and the evidence illegally tak
en. The exclusionary rule prohibits the use of any evidence obtained in violatio
n of Sections 2 and 3 (1), Art. III for "any purpose" and in "any proceeding." T
he evidence is absolutely useless. This has not always been the case. In Moncado
v. People s Court (1948), the SC, following the U.S. case of Wolf V. Colorado,
rules that evidence illegally obtained is not necessarily excluded if is otherwi
se admissible under the rules of evidence. In such case, the evidence admitted,
without prejudice to any criminal, civil or administrative liability of the offi
cer who illegally seized it. In other words, the admissibility of the evidence i
s not effected by the illegality of the means by which it was acquired. It was i
n Stonehill v. Diokno, supra, following the U.S. case of Maop v. Ohio 1969, when
the exclusionary rule was first adopted in the Philippines, the SC noting that
the total suppression of the thing seized is the only effective means of ensurin
g the constitutional right which it seeks to preserve. The Court noted, the insu
fficiency of the other remedies (e.g. action for damages, criminal punishment, r
esistance), especially in the Philippines where violations were committed by tho
se in power and were thus equipped with the pardoning power to water down the gr
avity of the other penalties imposed to violators of those constitutional rights
. The victim may or may not get back the thing seized, depending on whether it i
s contraband or not. It the thing is contraband, it would not be returned, and o
nly its suppression can be asked for. But if the thing is legal, the party can a
sk for its return, even if no criminal prosecution has yet been filed, as in the
Stonehill case.
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ADMISSIBILITY Any communication or spoken word, or the existence contents, subst
ance, purport, effect or meaning of the same or any part thereof, or any informa
tion therein contained, obtained or secured by any person in violation of this A
ct shall not be admissible in evidence in any judicial, quasi-judicial, or admin
istrative hearing or investigation.
Civil Action for Damages A civil case for damages can also be filed pursuant to
Article 32 of the Civil Code. In Aberca v. Ver, the SC held that even if the pri
vilege of the writ is suspended, the court can nevertheless entertain an action
not only against the task force but even against the top ranking officials who o
rdered the seizure, to recover damages for the illegal searches and seizures mad
e in a despotic manner. By so doing, one can indirectly inquire into the validit
y of the suspension of the privilege. Ramirez vs. CA, 248 SCRA 590, RA 4200 clea
rly and unequivocally makes it illegal for any person, not authorized by all par
ties to any private communication, to secretly record such communications by mea
ns of a tape recorder. The law does not make a distinction. Zulueta vs. CA, 253
SCRA 699, the right may be invoked against the wife who went to the clinic of he
r husband and there took documents consisting of private communications between
her husband and his alleged paramour. Should in camera inspection of bank accou
nts be allowed? Before an in camera inspection may be allowed, there must be a
pending case before a court of competent jurisdiction. Further, the account mus
t be clearly identified, the inspection limited to the subject matter of the pen
ding case before the court of competent jurisdiction. The bank personnel and the
account holder must be notified to be present during the inspection, and such i
nspection may cover only the account identified in the pending case. In Union Ba
nk vs. CA, Section 2 of the Law on Secrecy of Bank Deposits, as amended, declare
s bank deposit to be absolutely confidential except: 1. In an examination made i
n the course of special or general examination of a bank that is specifically au
thorized by the Monetary Board after being satisfied that there is reasonable gr
ound to believe that a bank fraud or serious irregularity has been or is being c
ommitted and that it is necessary to look into deposit to establish such fraud o
r irregularity; 2. In an examination made by an independent auditor hired by the
bank to conduct its regular audit provided that the examination is for audit pu
rposes only and the results thereof shall be for the exclusive use of the bank;
3. Upon written permission of the depositor; 4. In case of impeachment; 5. Upon
order of a competent court in cases of bribery or dereliction of duty of public
officials; or 6. In cases where the money deposited or invested is the subject m
atter of the litigation. In the case of Marquez vs. Desierto, G.R. No. 135882, J
une 27, 2001, there is
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yet no pending litigation before any court of competent authority. What is exist
ing is an investigation by the Office of the Ombudsman. In short, what the Offic
e of the Ombudsman would wish to do is to fish for additional evidence to formal
ly charge Amado Lagdameo, et al., with the Sandiganbayan. Clearly, there was no
pending case in court which would warrant the opening of the bank account for in
spection.
Human Security Act of 2007 Section 3, HAS of 2007, provides that the authorities
may, upon a written order of the Court of Appeals, listen to, intercept and rec
ord, with the use of any mode, form, kind or type of electronic or other surveil
lance equipment or intercepting and tracking devices, or with the use of any sui
table ways and means for that purpose, any communication, message, conversation,
discussion, or spoken or written words between members of terrorist group. Prov
ided, That surveillance, interception and recording of communications between la
wyers and clients, doctor and patients, journalists and their sources and confid
ential business correspondence shall not be authorized. Sec. 4, Article III No l
aw shall be passed abridging the freedom of speech, of expression, or the press,
or the right of the people peaceably to assemble and petition the government fo
r redress of grievances. The rule on privileged communications has its genesis n
ot in the nation’s penal code but in the Bill of Rights of the Constitution guar
anteeing freedom of speech and of the press. As early as 1918, in US vs. Cañete,
38 Phil 253, the SC ruled that publications which are privileged for reasons of
public policy are protected by the constitutional guaranty of freedom of speech
. This constitutional right cannot be abolished by the mere failure of the legis
lature to give it express recognition in the statute punishing libel. (Borjal vs
. CA, 301 SCRA 1) The freedom to speak includes the right to be silent. This fre
edom includes also includes the right to an audience, in the sense that the Stat
e cannot prohibit the people from hearing what a person has to say, whatever be
the quality of his thoughts. This right, however, is not demandable against thos
e unwilling to listen, who may not be herded by the government into a captive au
dience. Types of Privileged Communications: 1. Absolutely privileged communicati
ons—those which are not actionable even if the author acted in bad faith. An exa
mple is found in Article VI, Section 11 which exempts a member of Congress from
liability for any speech or debate in
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the Congress or in any Committee thereof.
2. Qualifiedly
privileged communications—those contained defamatory imputations are not actiona
ble unless found to have been made without good intention or justifiable motive.
To this genre belong “private communications” and “fair and true report without
any comments or remarks.”
2. Freedom from subsequent punishment. Free speech and free press may be identif
ied with the liberty to discuss publicly and truthfully any matter of public int
erest without censorship and punishment. There is to be no previous restraint on
the communication of views or subsequent liability whether in libel suits, pros
ecution for sedition, or action for damages, or contempt proceedings unless ther
e be a clear and present danger of substantive evil that Congress has a right to
prevent. (Chavez vs. Gonzalez, G.R. No. 168338, February 15, 2008) Restrictions
on Free Speech: 1. Content-based Restrictions—are imposed because of the conten
t of the speech itself; distort public debate, have improper motivation, and are
usually imposed because of fear how people will react to a particular speech.
Subject to the Clear-and-Present danger Rule Test In Sanidad vs. COMELEC, a rule
prohibiting columnists, commentators, and announcers from campaigning either fo
r or against an issue in a plebiscite must have compelling reason to support it,
or it will not pass muster under strict scrutiny. These restrictions are censor
ial and therefore they bear a heavy presumption of constitutional validity. In a
ddition, they will be tested for possible overbreadth and vagueness.
2. Content-neutral Restrictions—are those which are not concerned with the
content of the speech. The clear-and-present danger rule is inappropriate as a
test for determining the constitutional validity of laws. Tests for a valid Gove
rnmental Interference:
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Freedom of Expression— Aspect: 1. Freedom from censorship or prior restraint; an
d
1. Clear and Present Danger Rule—when words are used in such circumstance
and of such nature as to create a clear and present danger that will bring about
substantive evil that state has the right to prevent.
2. Dangerous Tendency Rule—words uttered create a dangerous tendency of an
evil which State has the right to prevent.
3. Balancing of Interest Test—when particular conduct is regulated in interest o
f
Doctrine of Fair Comment— Fair commentaries on matters of public interest are pr
ivileged and constitute a valid defense in an action for libel or slander. It me
ans that while in general every discreditable imputation publicly made is deemed
false, because every man is presumed innocent until his guilt is judicially pro
ved, and every false imputation is deemed malicious, nevertheless, when the disc
reditable imputation is directed against a public person in his public capacity,
it is not necessarily actionable. In order that such discreditable imputation t
o a public official may be actionable, it must either be a false allegation of f
act or a comment based on a false supposition. If the comment is an expression o
f opinion, based on established facts, it is immaterial that the opinion happens
to be mistaken, as long as it might reasonably inferred from the facts. (Borjal
vs. CA, 301 SCRA 1) Right to Assemble and Petition Government The right to asse
mble is not subject to prior restraint and may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities. However,
the right must be exercised in such a way as will not prejudice the public welf
are. If assembly is to be held at a public place, permit for the use of such pla
ce, and
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In the case of Adiong vs. COMELEC, 207 SCRA 713, the SC held that the posting of
decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehi
cles needs the consent of the owner of the vehicle. Hence, the preference of the
citizens becomes crucial in this kind of propaganda, not the financial resource
s of the candidate. The owner can even prepare his own decals or stickers for po
sting on his personal property. To strike down this right and enjoin it is imper
missible encroachment of his liberties. The prohibition on posting of decals and
stickers on “mobile” places whether public or private except in authorized area
s designated by the COMELEC becomes censorship which cannot be justified by the
Constitution.
¥say
public order, and the regulation results in an indirect, conditional, partial ab
ridgment of speech, the duty of the courts is to determine which of the 2 confli
cting interests demand greater protection under the particular circumstances pre
sented.
not for the assembly itself may be validly required. Power of local officials is
merely for regulation and not for prohibition. (Primicias vs. Fugoso, L-1800, J
anuary 27, 1948) Permit for public assembly is not necessary if meeting is to be
held in: a. A private place; b. The campus of a government-owned or operated ed
ucational institution; or c. A freedom park.
Test for Lawful Assembly: 1. Purpose Test—the purpose for which the assembly is
held regardless of the auspices under which it is organized; and 2. Auspices Tes
t. In the case of Bayan vs. Ermita, G.R. No. 169838, April 25, 2006, Calibrated
Pre-emptive Response (CPR) serves no valid purpose if it means the something els
e. Accordingly, what is to be followed is and should be that mandated by the law
itself, namely, maximum tolerance, which specifically means “the highest degree
of restraint that the military, police and other peace keeping authorities shal
l observe during a public assembly or in dispersal of the same. Sec. 5, Article
III No law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious professi
on and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political right
s. Religion—any specific system of belief, worship, conduct, etc., often involvi
ng a code of ethics and a philosophy It is a profession of faith to an active po
wer that binds and elevates man to his Creator. (Aglipay vs. Ruiz, 64 Phil 201)
Freedom of Religion— 1. Non-Establishment Clause Scope: a. State cannot set-up c
hurch; b. Cannot pass laws which aid one religion, all religions or prefer one o
ver another; c. Nor influence a person to go to or remain away from church again
st his will; nor
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The provisions of BP 880 (Public Assembly Act of 1985) are not absolute ban on p
ublic assemblies but a restriction that simply regulates the time, place and man
ner of the assemblies. The Court referred to it as content-neutral regulation.
d. Force him to profess a belief or disbelief in any religion. 2. Freedom of Rel
igious Belief and Worship Dual aspect of Freedom of Religious Belief and Worship
: a. Freedom to believe—absolute as long as the belief is confined within the re
alm of thought; and b. Freedom to act on one’s belief—subject to regulation wher
e the belief is translated into external acts that affect the public welfare. Ec
clesiastical Affair—it involves the relationship between the church and its memb
ers and relates to matters of faith, religious doctrines, worship and governance
of the congregation to which the state cannot meddle. Benevolent Neutrality—rec
ognizes that government must pursue its secular goals and interest but at the sa
me time strive to uphold religious liberty to the greatest extent possible withi
n flexible constitutional limits. Thus, although the morality contemplated by la
ws is secular, benevolent neutrality could allow for accommodation of morality b
ased on religion, provided it does not offend compelling state interests. T hree
(3)-Step process of the compelling State Interest Test 1. Has the statute or go
vernment action created a burden on the free exercise of religion? 2. Is there a
sufficiently compelling state interest to justify this infringement of religiou
s liberty? 3. Has the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more tha
n necessary to achieve the legitimate goal of the state? (Estrada vs. Escritor,
A.M. No. P-021651, June 22, 2006) Ebralinag vs. Division Superintendent, 219 SCR
A 256, to compel students to take part in a flag ceremony when it is against the
ir religious beliefs will violate their religious freedom. Petitioners have the
right to refuse to salute to the Philippine flag on account of their religious f
reedom. Iglesia ni Cristo vs. CA, 259 SCRA 529, the INC’s postulate that its rel
igious freedom is per se beyond review of the MTRCB should be rejected. Its publ
ic broadcast on TV of its religious programs brings it out of the bosom of inter
nal belief. Television is a medium that reaches even the eyes and ears of childr
en. The exercise of religious freedom can be regulated by the State when it will
bring about the clear and present danger of a substantive evil which the State
is duty-bound to prevent, i.e., serious detriment to the more overriding interes
t of public health, public morals, or public welfare. A laissez faire policy on
the exercise of religion can be seductive to the liberal mind but history counse
ls the Court against its blind adoption as religion is and
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continues to be a volatile area of concern in our society today. “For sure, we s
hall continue to subject any act pinching the space for the free exercise of rel
igion to a heightened scrutiny but we shall not leave its rational exercise to t
he irrationality of a man. For when religion divides and its exercise destroys,
the State should not stand still.” Taruc vs. Bishop Dela Cruz, G.R. No. 144801,
March 10, 2005, expulsion/excommunication of members of a religious institution/
organization is a matter best left to the discretion of the officials, and the l
aws and canons, of said institution/organization. It is not for the courts to ex
ercise control over church authorities in the performance of their discretionary
and official functions. Rather, it is for the members of the religious institut
ion/organization to conform to just church regulations. Religious Tests The cons
titutional prohibition against religious tests is aimed against clandestine atte
mpts on the part of the government to prevent a person from exercising his civil
or political rights because of his religious beliefs.
Sec. 6, Article III The liberty of abode and of changing the same within the lim
its prescribed by law shall not be impaired except upon lawful order of the cour
t. Neither shall the right to travel be impaired except in the interest of natio
nal security, public safety, or public health, as may be provided by law. Libert
y of Abode and Travel The purpose of the guaranty is to further emphasize the in
dividual’s liberty as safeguarded in general terms by the due process clause. Li
berty under that clause includes the right to choose one’s residence, to leave i
t whenever he pleases, and to travel where he wills. Limitation on Liberty of Ab
ode: upon Lawful order of the court Restrictions on Right to Travel: 1. Interest
of national security; 2. Public safety; 3. Public health; or 4. Any person on b
ail. In Caunca vs. Salazar, 82 Phil 851, a maid has the right to transfer to ano
ther residence even if she had not yet paid the amount advanced for her transpor
tation from the province by an employment agency which was then effectively deta
ining her.
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Villavicencio vs. Lukban, 39 Phil 778, the Mayor of Manila was not sustained by
the SC when he deported some 170 women of ill-repute to Davao, for the admittedl
y commendable purpose of ridding the city for serious moral and health problems.
These women are nevertheless not chattels but Philippine citizens protected by
the same constitutional guarantees as are other citizens—to change their domicil
e from Manila to another locality. Rubi vs. Board of Mindoro, 39 Phil 660, the r
espondents were justified in requiring the members of certain non-Christian trib
es to reside in a reservation, for their better education, advancement and prote
ction. The measure was held to be a legitimate exercise of police power. Lorenzo
vs. Director of Health, 50 Phil 595, health officers may restrict access to con
taminated areas and also quarantine those already exposed to the disease sought
to be contained. Zemel vs. Rusk, 381 US 1, the Secretary of State may regulate o
r even prohibit the travel of citizens to hostile countries to prevent possible
international misunderstanding and conflict. Section 26 of HAS of 2007—cases whe
re evidence of guilt is not strong, and the person charged with the crime of ter
rorism as therein defined is entitled to bail and if granted the same, the court
, upon application by the prosecutor, shall limit the right to travel of the acc
used to within the municipality or city where he resides or where the case is pe
nding, in the interest of national security and public safety.
Sec. 7, Article III The right of the people to information on matters of public
concerned shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as to g
overnment research data used as basis for policy development, shall be afforded
the citizens, subject to such limitations as may be provided by law.
Right of the People to Information on Matters of Public Concern The citizen has
a right to know what is going on in the country and in his
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government so he can express his views thereon knowledgeably and intelligently.
One cannot question the extravagance of the government, for example, if is denie
d examination of official vouchers. A citizen may not expose anomaly if those re
sponsible for it may validly prevent him from investigating their activities. In
the interest of truth and fairness, the citizen should not be made to guess onl
y at what is being done by public functionaries and to base his views and conclu
sions on mere rumors, half-truths, conjectures and even canards. Recognized rest
rictions: 1. National security matters and intelligence information—this jurisdi
ction recognizes the common law holding that there is a governmental privilege a
gainst public disclosure with respect to state secrets regarding military, diplo
matic and other national security matters;
2. Trade or industrial secrets—(pursuant to the Intellectual Property Code, RA
3. Criminal matters, such as those relating to the apprehension, the prosecution
and the detention of criminals, which courts may not inquire into prior to such
arrest, detention and prosecution; and
4. Other confidential information. The Ethical Standards Act further prohibits
public officials and employees from using or divulging “confidential or classifi
ed information to the public.” [Section 7 (c), RA 6713] Other acknowledged limit
ations to information access include diplomatic correspondence, closed door Cabi
net meetings and executive sessions of either House of congress, as well as the
internal deliberations of the SC. (Chavez vs. PCGG, 299 SCRA 744) Rights guarant
eed: 1. Right to information on matters of public concern; and 2. Corollary righ
t of access to official records and documents BA-RA 7941 vs. COMELEC, G.R. Nos.
177271 and 177314, May 4, 2007, the right to information is a public right where
the real parties in interest are the public, or the citizens to be precise. The
people’s right to know is limited to matters of public concern and is further s
ubject to such limitation as may be provided by law. Similarly, the policy of fu
ll disclosure is confined to transactions involving “public interest’ and is sub
ject to reasonable conditions prescribed by law. Valmonte vs. Belmonte, Jr., 170
SCRa 256—the information sought must be “matters of public concern,” access to
which may be limited by law. The information sought by petitioners is the truth
of reports that certain Members of the Batasan Pambansa
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8293 and other related laws and banking transactions—pursuant to the Secrecy of
Bank Deposits Act, RA 1405);
¥say
belonging to the opposition were able to secure ‘clean’ loans from the GSIS imme
diately before the February 7, 1986 election through the intercession of the for
mer First Lady Imelda Marcos. x x x The public nature of the loanable funds of t
he GSIS and the public office held by the alleged borrowers make the information
sought clearly a matter of public interest and concern. Legaspi vs. Civil Servi
ce Commission, the SC affirmed the right of the petitioner to secure from the Ci
vil Service Commission information regarding the civil service eligibility of ce
rtain persons employed in the health department of the Cebu City government. Sec
. 8, Article III The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for purposes no
t contrary to law shall not be abridged. Right to Form associations—shall not be
impaired without due process of law; guarantees the right not to join an associ
ation. (Sta. Clara Homeowners Association vs. Gaston, G.R. No. 141961, January 2
3, 2002) This right is especially meaningful in a free society because a man is
by nature gregarious. His disposition to mix with others of the same persuasions
, interests or objectives is guaranteed by this provision. It also expressly gua
rantees to those employed in the public and private sectors the right to form un
ions. This right is available also to those in the government sectors. It is a s
ettled in jurisprudence that, in general, workers in the public sectors do not e
njoy the right to strike. The general rule in the past and up to present is that
the ‘terms and conditions of employment in the Government, including any politi
cal subdivision or instrumentality thereof are governed by law.’ x x x. Since th
e terms and conditions of government employment are fixed by law, government wor
kers cannot use the same weapons employed by the workers in the private sector t
o secure concessions from their employers. The principle behind labor unionism i
n private industry is that industrial peace cannot be secured through compulsion
by law. Relations between private employers and their employees rest on an esse
ntially voluntary basis. x x x In government employment, however, it is the legi
slature and, where properly given delegated power, the administrative heads of g
overnment which fix the terms and conditions of employment. And this is effected
through statutes or administrative circulars, rules and regulations, not throug
h collective bargaining agreements. (Alliance of Concerned Government Workers vs
. Ministry of Labor and Employment, 124 SCRA 1) In the case of Jacinto vs. CA, 2
81 SCRA 657, the SC held that petitioners were
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not penalized for the exercise of their right to assemble peacefully and to peti
tion the government for a redress of grievances. Rather, the Civil Service Commi
ssion found them guilty of conduct prejudicial to the best interest of the servi
ce for having absented themselves without proper authority, from their school du
ring regular school days, in order to participate in the mass protest, their abs
ence ineluctably resulting in the nonholding of classes and in the deprivation o
f students of education, for which they were responsible. Had petitioners availe
d themselves of their free time—recess, after classes, weekends or holidays—to d
ramatize their grievances and to dialogue with the proper authorities within the
bounds of law, no one—not the DECS, the CSC or even the SC—could have held them
liable for the valid exercise of their constitutionally guaranteed rights. As i
t was, the temporary stoppage of classes resulting from their activity necessari
ly disrupted public services, the very evil sought to be forestalled by the proh
ibition against strikes by government workers. Their act by their nature was enj
oined by the Civil Service Law, rules and regulations, for which they must, ther
efore, be made answerable. GSIS vs. Kapisanan ng mga Manggagawa sa GSIS, G. R. N
o. 170132, December 6, 2006, it was against the backdrop of the provisions of th
e Constitution that the Court resolved that employees in the public service may
not engage in strikes or in concerted and unauthorized stoppage of work; that th
e right of government employees to organize is limited to the formation of union
s or associations, without including the right to strike. It may be, as the appe
llate court urged, that the freedom of expression and assembly and the right to
petition the government for a redress of grievances stand on a level higher than
economic and other liberties. Sec. 9, Article III Private property shall not be
taken for public use without just compensation. (See discussions Under Eminent
Domain) Sec. 10, Article III No law impairing the obligation of contract shall b
e passed. The freedom to contract is not absolute; all contracts and all rights
are subject to the police power of the State and not only may regulations which
affect them be established by the State, but all such regulations must be subjec
t to change from time to time, as the general well-being of the community may re
quire, or the circumstances may change, or as experience may demonstrate the nec
essity. The purpose of the impairment clause is to safeguard the integrity of va
lid contractual agreements against unwarranted interference by the State. As a r
ule, they should be respected by the legislature and not tampered with by subseq
uent laws that will change the intention of the parties or modify their rights a
nd obligations. The will of
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¥say
the obligor and the obligee must be observed; the obligation of their contract m
ust not be impaired. However, the protection of the impairment clause is not abs
olute. There are instances when contracts valid at the time of their conclusion
may become invalid, or some of their provisions may be rendered inoperative or i
llegal, by virtue of supervening legislation. Limitations: 1. Police power—preva
ils over contracts; 2. Eminent domain—may impair obligation of contracts; and 3.
Taxation—cannot impair obligation of contracts. Impairment—anything that dimini
shes the efficacy of a contract There is impairment when there is change in the
terms of a legal contract between parties, either in the time or mode of perform
ance, or imposes new conditions, or dispenses with those expressed, or authorize
s for its satisfaction something different from that provided in its terms. (Cle
mons vs. Nolting, No. 17959, January 24, 1922) Hon. Heherson Alvarez vs. PICOP R
esources, Inc., G.R. No. 162243, November 29, 2006, in unequivocal terms, the SC
have consistently held that such licenses concerning the harvesting of timber i
n the country’s forests cannot be considered contracts that would bind the Gover
nment regardless of changes in policy and the demands of public interest and wel
fare. Since timber licenses are not contracts, the non-impairment clause cannot
be invoked. Sec. 11, Article III Free access to the courts and quasi-judicial bo
dies and adequate legal assistance shall not be denied to any person by reason o
f poverty. Inspired by t social justice policy and covered by the equal protecti
on clause, this rule has been implemented by several provisions of the Rules of
Court in favor of the pauper litigant. The IBP provides deserving indigents with
free legal aid, including representation in court, and similar services availab
le from the DOJ to litigants who cannot afford retained counsel, like the accuse
d in a criminal case who can ask for the assistance of counsel de officio. There
are also private legal assistance organizations now functioning for the benefit
of penurious clients who otherwise might be unable to resort to the courts of j
ustice because only of their misfortune of being poor. This provision makes them
the equal of the rich before the law. Sec. 12, Article III (1) Any person under
investigation for the commission of an offense shall have the right to be infor
med of his right to remain silent and to have a
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Rights of an Accused under Custodial Investigation Exist only in custodial inte
rrogation Available when the investigation is no longer a general inquiry into
an unsolved crime but has begun to focus on a particular suspect, the suspect ha
s been taken into police custody, the police carry out a process of interrogatio
n that tend to elicit incriminating statements. Custodial Investigation— Any que
stioning initiated by law enforcement officers after a person has been taken int
o custody or otherwise deprived of his freedom of action in any significant way.
It shall include the practice of issuing “invitation” to a person who is invest
igated in connection with an offense he is suspected to have committed, without
prejudice to the liability of the “inviting” officer for any violation of the la
w. (RA 7438) People vs. Lugod, G.R. No. 136253, February 21, 2001, the accused s
hould have been entitled to Miranda rights, because even assuming that he was no
t yet under interrogation at the time he was brought to the police station, his
confession was elicited by a police officer who promised to help him if he told
the truth. Furthermore, when he allegedly pointed out the body of the victim, th
e atmosphere was highly intimidating and not conducive to a spontaneous response
as the whole police force and nearly 100 townspeople escorted him there. Not ha
ving the benefit of counsel and not having been informed of his rights, the conf
ession is inadmissible. Miranda rights— (Miranda vs. Arizona, 384 US 436)
x x x The prosecution may not use statements, whether exculpatory or inculpatory
, stemming from custodial interrogation of the defendant unless it demonstrates
the use of 97
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¥say
competent and independent counsel preferably of his own choice. If the person ca
nnot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel. (2) No tortur
e, force, violence, threat, intimidation, or any other means which vitiate the f
ree will shall be used against him. Secret detention places, solitary, incommuni
cado, or other similar forms of detention are prohibited. (3) Any confession or
admission obtained in violation of this or Section 17 hereof shall be inadmissib
le in evidence against him. (4) The law shall provide for penal and civil sancti
ons for violations of this section as well as compensation to and rehabilitation
of victims of torture or similar practices, and their families.
procedural safeguards effective to secure the privilege against self-incriminati
ons. By custodial interrogation, it means questioning initiated by law enforceme
nt officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way. As for the procedural safeguards t
o be employed, unless other fully effective means are devised to informed accuse
d-persons of their right of silence and to assure a continuous opportunity to ex
ercise it, the following measures are required. Prior to any questioning, the pe
rson must be warned that he has the right to remain silent, that any statement h
e does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The defendant may waive e
ffectuations of these rights, provided the waiver is made voluntarily, knowingly
and intelligently. If, however, he indicates in any manner and at any stage of
the process that he wishes to consult with an attorney before speaking there can
be no questioning. Likewise, if the individual is alone and indicates in any ma
nner that he does not wish to be interrogated, the police may not question him.
The mere fact that he may have answered some questions or volunteered some state
ments on his own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter consen
ts to be questioned.
Applies only from the moment the investigating officer begins to ask questions
for the purpose of eliciting admissions, confessions or any information from the
accused. People vs. Baloloy, G.R. No. 140740, April 12, 2002, it was held that
this guarantee does not apply to spontaneous statement, not elicited through que
stioning by the authorities but given in an ordinary manner whereby the suspect
orally admitted having committed the offense. Neither can it apply to admissions
or confessions made by a suspect before he was placed under custodial investiga
tion. In this case, the narration before the Barangay Captain prior to custodial
investigation was admissible in evidence, but not the admissions made before Ju
dge Dicon, inasmuch as the questioning by the judge was done after the suspect h
ad been arrested and such questioning already constituted custodial investigatio
n. Rights guaranteed: 1. Right to remain silent; 2. Right to have a competent an
d independent counsel preferably of his own choice at all stages of the investig
ation;
Independent and competent counsel—willing to safeguard the constitutional rights
of the accused
3. Right to be informed of such rights;
Rationale: a. to make him aware of it; b. to overcome the inherent pressure o th
e interrogating atmosphere; and c. to show the individual that his interrogators
are prepared to recognize his privilege should he choose to invoke it.
4. Right to be provided with counsel, if the person cannot afford one;
These rights cannot be waives except in writing and in the presence of counsel;
it is not required in a police-line up as the latter is not part of a custodial
inquest. 98
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5. No torture, force, etc. which vitiate free will shall be used;
6. Secret detention places are prohibited; and 7. Confession/admissions obtained
in violation of rights are inadmissible in evidence. Ways of identifying the su
spects During Custodial Investigation: 1. Show-ups (out-of-court identification)
—where the suspect alone is brought face to face with the witness for identifica
tion; People vs. Escordial, G.R. Nos. 138934-35, January 16, 2002, the accused,
having become the focus of attention by the police after he had been pointed to
by a certain Ramie as the possible perpetrator of the crime, it was held that wh
en the out-of-court identification was conducted by the police, the accused was
already under custodial investigation. 2. Mug shots—where photographs are shown
to the witness to identify the suspect; and 3. Police Line ups—where a witness i
dentifies the suspect from a group of persons lined up for the purpose. It is no
t considered a part of any custodial inquest because it is conducted before that
stage of investigation is reached (People vs. Bravo, G.R. No. 135562, November
22, 1999). The process has not yet shifted from the investigatory to the accusat
ory stage, and it is usually the witness or the complainant who is interrogated
and who gives a statement in the course of the line-up (People vs. Amestuzo, Jul
y 12, 2001). Factors in Resolving the Admissibility of and Relying on Out-of-Cou
rt Identification of Suspects: TOTALITY OF CIRCUMSTANCES TEST 1. The witness’ op
portunity to view the criminal at the time of the crime; 2. The witness’ degree
of attention at that time; 3. The accuracy of any prior description given by the
witness; 4. The level of certainty demonstrated by the witness at the identific
ation; 5. The length of time between the crime and the identification; and 6. Th
e suggestiveness of the identification procedure. Two (2) kinds of Involuntary o
r Coerced Confessions: 1. Those which are the product of 3rd degree methods such
as torture, force, violence, threat, intimidation, which are dealt with in para
graph 2 of Section 12; and 2. Those which are given without the benefit of Miran
da warnings. Extrajudicial Confessions—are presumed voluntary, and, in the absen
ce of conclusive evidence showing the declarant’s consent in executing the same
has been vitiated, such confession will be sustained. To be admissible, it must
be: 1. Voluntary; 2. Made with the assistance of competent and independent couns
el;
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¥say
3. Express; and 4. In writing. Investigations not considered custodial interroga
tion 1. Those conducted by an audit examiner 2. Those conducted by the Court Adm
inistrator 3. Those conducted by the employer For the reason that these people
are not law enforcement officers However, in the case of People vs. Salonga, G.R
. No. 131131, June 21, 2001, after an audit, the accused was summoned to appear
before the Assistant Accountant of MetroBank and, in the course of the interview
, accused admitted having issued the subject cashier’s checks without any legiti
mate transaction, the written confession was held admissible in evidence inasmuc
h as the interview did not constitute custodial investigation. Ladiana vs. Peopl
e, G.R. No. 144293, December 24, 2002, the counter-affidavit submitted by the re
spondent during preliminary investigation is admissible because preliminary inve
stigation is not part of custodial investigation. The interrogation by the polic
e, if any would already have been ended at the time of the filing of the crimina
l case in court or in the public prosecutor’s office. Spontaneous statements—tho
se elicited through questioning by law enforcement officers, but given in an ord
inary manner where the appellant verbally admits to having committed the offense
, are admissible. (People vs. Guillermo, G.R. No. 147786, January 20, 2004) WAIV
ER— It must be in writing and made in the presence of the counsel. The burden of
proving that there was a valid waiver rests on the prosecution. The presumption
of official duty has been regularly performed cannot prevail over the presumpti
on of innocence. What may be waived? 1. Right to remain silent 2. Right to couns
el Exclusionary Rule— Confession or admission obtained in violation of Sections
12 and 17 of Article III shall be inadmissible in evidence. Fruit of the poisono
us tree—once the primary source is shown to have been lawfully obtained, any sec
ondary or derivative evidence derived from it is inadmissible. Evidence illegall
y obtained by the State should not be used to gain other
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evidence because the originally obtained evidence taints all evidence subsequent
ly obtained.
Right to Bail Bail—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. The right to bail may be invoked by any person o
nce detention commences even if no formal charges have yet to be filed; It can
availed of by a person who is in custody of law or otherwise deprived of his li
berty; Suspension of the writ of the privilege of habeas corpus does not suspe
nd the right to bail; Even when the accused has previously jumped bail, still
he cannot be denied bail before conviction if it is a matter of right. The remed
y is to increase the amount of bail; Right to bail has not been recognized and
is not available to the military. Standards for fixing amount of bail: 1. Finan
cial ability of the accused; 2. Nature and circumstances of the offense; 3. Pena
lty for the offense charged; 4. Character and reputation of the accused; 5. Age
and health of the accused; 6. Weight of evidence against the accused; 7. Probabi
lity of appearance at trial; 8. Forfeiture of other bonds by him; 9. He was a fu
gitive from justice when arrested; and 10. Pendency of other cases where he is a
lso under bail. Bail as a matter of right— All persons in custody shall be admit
ted to bail as a matter of right, with sufficient sureties, or be released on re
cognizance as prescribed by law:
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Sec. 13, Article III All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before conviction
, be bailable by sufficient sureties, or be released or recognizance as may be p
rovided by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be required.
1. Before or after conviction by the MTC; and 2. Before conviction by the RTC of
an offense not punishable by death, reclusion perpetua or life imprisonment. 3.
The evidence of guilt is not strong. Bail when discretionary— 1. Upon convictio
n by the RTC of an offense not punishable by death, reclusion perpetua or life i
mprisonment, the court, on application, may admit the accused to bail.
2. The court, in its discretion, may allow the accused to continue on provisiona
l
Whether bail is a matter of right or discretion—reasonable notice of hearing is
required to be given to the prosecutor, or at least he must be asked for his rec
ommendation, because in fixing the amount of bail, the judge is required to take
into account a number of factors. When bail shall be denied— No person, regar
dless of the stage of the criminal prosecution, shall be admitted to bail if: a.
Charged with capital offense, or an offense punishable by reclusion perpetua or
life imprisonment; and b. Evidence of guilt is strong. When the accused is ch
arged with an offense punishable by reclusion perpetua or higher, a hearing on t
he motion for bail must be conducted by the judge to determine whether or not th
e evidence of guilt is strong.
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liberty after the same bail bond during the period to appeal subject to the cons
ent of the bondsman. 3. If the court imposed a penalty of imprisonment exceeding
6 years but not more than 20 years, the accused shall be denied bail, or his ba
il previously granted shall be cancelled, upon showing by the following or other
similar circumstances: a. That the accused is a recidivist, quasi-recidivist, o
r habitual delinquent, or has committed the crime aggravated by the circumstance
of reiteracion; b. That the accused is found to have previously escaped from le
gal confinement, evaded sentence, or has violated the conditions of his bail wit
hout valid justification; c. That the accused committed the offense while on pro
bation, parole, or under conditional pardon; d. That the circumstances of the ac
cused or his case indicates the probability of flight if released on bail; or e.
That there is undue risk that during the pendency of the appeal, the accused ma
y commit another crime.
¥say
Without a hearing, the judge could not possibly asses the weight of the eviden
ce against the accused before granting the latter’s application for bail.
(See the cases of Government of USA vs. Hon. Purganan and Government of Hongkong
vs. Judge Olalia)
Rights of the Accused: 1. Criminal due process: a. Opportunity to be heard in co
urt of competent jurisdiction; b. The accused must proceed against under orderly
processes of law; c. He must be given notice and opportunity to be heard; and d
. The judgment rendered was within the authority of a constitutional law. 2. Pre
sumption of innocence— Every circumstance favoring the innocence of the accused
must be taken into account. The proof against him must not be permitted to sway
judgment and the presumption that official duty was regularly performed cannot,
by itself, prevail over the constitutional presumption of innocence. 3. Right to
be heard by himself and counsel
4. Right to be informed of the nature and cause of the accusation against him
Objectives: a. To furnish the accused with such a description of the charge agai
nst him as will enable him to make the defense; b. To avail himself of his convi
ction or acquittal for protection against a further prosecution for the same cau
se; and c. To inform the court of the facts alleged, so that it may decide wheth
er they are sufficient in law to support a conviction, if one should be had.
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Sec. 14, Article III (1) No person shall be held to answer for a criminal offens
e without due process of law. (2) In all criminal prosecutions, the accused shal
l be presumed innocent until the contrary is proved, and shall enjoy the right t
o be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attenda
nce of witnesses and the production of evidence in his behalf. However, after ar
raignment, trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustifiable.
¥say
Description, not designation, of the offense is controlling. Void-for-Vagueness
Rule—the accused is denied the right to be informed of the charge against him,
and to due process as well, where the statute itself is couched in such indefini
te language that it is not possible for men of ordinary intelligence to determin
e therefrom what acts or omissions are punished and, hence, shall be avoided. Es
trada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001, every legislative m
easure is presumed constitutional. Petitioner failed to discharge the burden to
overcome the presumption of constitutionality.
5. Right to speedy, impartial and public trial—
Impartial—the judge must not be bias and not motivated by malice or bad faith 6.
Right to meet witness face to face— Witnesses not submitted for cross-examinati
on are not admissible as evidence. However, right to cross-examination may be wa
ived. 7. Right to compulsory process to secure attendance of witnesses and produ
ction of evidence 8. Trial in Absentia After arraignment; Due notice; and
Absence is unjustified. Plea of guilt to a capital offense— 1. There must be sea
rching inquiry into the voluntariness of the plea and the full comprehension of
the consequences thereof; 2. Presentation of evidence to prove the guilt of the
accused and the precise degree of his culpability; 3. The accused must be asked
if he desire to present evidence on his behalf and allow him to do so if he so d
esires.
Sec. 15, Article III The privilege of the writ of habeas corpus shall not be sus
pended except in cases of invasion or rebellion when the public safety requires.
(Relate this to Section 18, Article VII)
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¥say
Writ of habeas corpus— A writ issued by the court directed to a person detaining
another, commanding him to produce the body of the prisoner at designated time
and place, with the day and cause of his capture and detention, to do, to submit
to, and to receive whatever court or judge awarding writ shall consider in his
behalf. It lies only where the restraint of a person’s liberty has been judicial
ly adjudged to be illegal or unlawful. A petition for habeas corpus will be give
n due course only if it shows that petitioner is being detained or restrained of
his liberty unlawfully. A restrictive custody and monitoring of movements or wh
ereabouts of police officers under investigation by their superiors is not a for
m of illegal detention or restraint of liberty. (SP02 Manalo vs. PNP Chief Calde
ron, G.R. No. 178920, October 15, 2007)
Enriquez vs. Office of the Ombudsman, G.R. No. 174902-06, February 15, 2008, thi
s right, like the right to a speedy trial, is deemed violated when the proceedin
gs are attended by vexatious, capricious, and oppressive delays. The concept of
speedy disposition of cases is relative or flexible. A simple mathematical compu
tation of the time involved is insufficient. The facts and circumstances peculia
r to each case must be examined. In ascertaining whether the right to a speedy d
isposition of cases has been violated, the following factors must be considered:
1. The length of delay; 2. The reasons for the delay; 3. The assertion or failu
re to assert such right by the accused; and 4. The prejudice caused by the delay
. (Tilendo vs. Ombudsman and Sandiganbayan, G.R. No. 165975, September 13, 2007)
Sec. 17, Article III No person shall be compelled to be a witness against himse
lf. Right against self-incrimination— Availability: Not only in criminal prosec
utions but also in all other government proceedings,
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Sec. 16, Article III All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies.
¥say
including civil actions and administrative or legislative investigations May be
claimed not only by accused but by any witness to whom an incriminating questio
n is addressed. Scope: It applies only against testimonial compulsion and produc
tion of documents, papers and chattels in court except when books of account are
to be examined in exercise of power of taxation and police power. Two (2) types
of Immunity Statutes: 1. Transactional Immunity Statute—testimony of any person
or whose possession of documents or other evidence necessary or convenient to d
etermine the truth in any investigation conducted is immune from criminal prosec
ution for an offense to which such compelled testimony relates; and 2. Use Immun
ity Statute—prohibits the use of a witness’ compelled testimony and its fruits i
n any manner in connection with the criminal prosecution of the witness. Sec. 18
, Article III (1) No person shall be detained solely by reason of his political
beliefs and aspirations. (2) No involuntary servitude in any form shall exist ex
cept as a punishment for a crime whereof the party shall have been duly convicte
d. Right against Involuntary Servitude It is a condition where one is compelled
by force, coercion, or imprisonment, and against his will, to labor for another,
whether he is paid or not. General Rule: No involuntary servitude shall exist.
Exceptions: 1. As punishment for a crime whereof one has been duly convicted; 2.
Service in defense of the State; 3. Naval enlistment; 4. Posse commitatus; 5. R
eturn to work order in industries affected with public interest; and 6. Patria p
otestas. Sec. 19, Article III (1) Excessive fines shall not be imposed, nor crue
l, degrading or inhuman punishment inflicted. Neither shall death penalty be imp
osed, unless, for compelling reasons involving heinous crimes, the Congress here
after
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¥say
provides for it. Any death penalty already imposed shall be reduced to reclusion
perpetua. (2) The employment of physical, psychological, or degrading punishmen
t against any prisoner or detainee or the use of substandard or inadequate penal
facilities under subhuman conditions shall be dealt with by law. Prohibited Pun
ishments Mere severity does not constitute cruel or unusual punishment. To viola
te constitutional guarantee, penalty must be flagrant and plainly oppressive, di
sproportionate to nature of offense as to shock senses of community. Sec. 20, Ar
ticle III No person shall be imprisoned for debt or non-payment of a poll tax. C
overage: 1. Debt—any civil obligation arising from contract 2. Poll tax—a specif
ic sum levied upon any person belonging to a certain class without regard to pro
perty or occupation. A tax is not a debt since it is an obligation arising from
law hence, its non-payment may be validly punished with imprisonment. Sec. 21,
Article III No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquitta
l under either shall constitute a bar to another prosecution for the same act. R
ight against Double Jeopardy Requisites: 1. A valid complaint or information; 2.
Filed before competent court; 3. To which defendant has pleaded; and 4. Defenda
nt was previously acquitted or convicted or the case dismissed or otherwise term
inated without his express consent. Two (2) types: 1. No person shall be twice p
ut in jeopardy of punishment for the same offense; 2. If an act is punished by a
law and an ordinance, conviction or acquittal under either shall constitute a b
ar to another prosecution for the same act. To substantiate a claim of double je
opardy, the following must be proven: 1. A first jeopardy must have attached pri
or to the second; 2. The second jeopardy must be for the same offense, or the se
cond offense includes or is necessarily included in the offense charged in the f
irst
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¥say
information, or is an attempt to commit the same or is a frustration thereof. Le
gal Jeopardy Attaches Only: 1. Upon a valid indictment; 2. Before a competent co
urt; 3. After arraignment; 4. When a valid plea has been entered and 5. The case
was dismissed or otherwise terminated without the express consent of the accuse
d. General Rule: Dismissal of action, when made at the instance of the accused,
does not put the accused in first jeopardy. Exceptions: 1. When ground for dismi
ssal is insufficiency of evidence; or 2. When the proceedings have been unreason
ably prolonged as to violate the right of the accused of a speedy trial. Crimes
covered: 1. Same offense; or attempt to commit or frustration thereof or for any
offense which necessarily includes or is necessarily included in the offense ch
arged in original complaint or information; and 2. When an act is punishable by
a law and an ordinance, conviction or acquittal under either shall bar another p
rosecution for the same act. Doctrine of Supervening Event—prosecution for anoth
er offense if subsequent development changes the character of the first indictme
nt under which he may have already been charged or convicted. Conviction of accu
sed shall not bar another prosecution for an offense which necessarily includes
the offense originally charged when: 1. Graver offense developed due to superven
ing facts arising from the same act or omission; 2. Facts constituting graver of
fense arose or discovered only after filing of former complaint or information;
and 3. Plea of guilty to lesser offense was made without the consent of prosecut
or or offended party. Cabo vs. Sandiganbayan, G.R. No. 169509, June 16, 2006, fo
r double jeopardy to attach, the case against the accused must have been dismiss
ed or otherwise terminated without his express consent by a court of competent j
urisdiction, upon a valid information sufficient in form and substance and the a
ccused pleaded to the said charge.
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¥say
People vs. Perlita J. Tria-Tirona, et al., G.R. No. 130106, July 15, 2006, after
trial on the merits, an acquittal is immediately final and cannot be appealed o
n the ground of double jeopardy. The only exception where double jeopardy cannot
be invoked is where there is finding of mistrial resulting in a denial of due p
rocess.
Right against Ex-Post Facto Law and Bill of Attainder Ex-Post Facto Law— The equ
ivalent of the impairment clause in criminal matters is the prohibition against
the passage of the ex post facto law. This is because the ex post facto law, lik
e the law impairing the obligation of the contracts, operates retroactively to a
ffect antecedent acts. A law can never be considered ex post facto as long as it
operates prospectively since its structures would cover only offenses committed
after and not before its enactment. Basically, an ex post facto law is one that
would make a previous act criminal although it was not so at the time it was co
mmitted. Kinds: 1. Law criminalizing act done before its passage; Example: A la
w passed in 1990 raising the age of seduction from 18 to 25 years, effective 198
0 2. Law aggravating penalty for crime committed before passage; Example: A law
passed in 2000 designating the crime of homicide through reckless imprudence as
murder, effective 1990 3. Law that changes punishment, and inflicts greater or
more severe punishment than the law annexed to the crime when committed; Exampl
e: A law passed in 2000 increasing the penalty for libel from prision correccion
al to prision mayor, effective 1990 4. Law altering legal rules of evidence and
receives less or different testimony than law required at the time of commission
, in order to convict accused; Example: A law passed in 2000 requiring for conv
iction merely preponderance of evidence instead of proof beyond reasonable doubt
, effective 1990 5. Law assuming to regulate civil rights and remedies only, in
effect imposes a penalty of deprivation of right for something which when done w
as lawful; and Example: A law passed in 2000 depriving professionals of the rig
ht to practice for failure or refusal to vote, effective 1990. 6. Law depriving
accused of some lawful protection to which he had been entitled, such a protecti
on of a former conviction or acquittal, or of a proclamation of amnesty.
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¥say
Sec. 22, Article III No ex-post facto law or bill of attainder shall be enacted.
Example: A law passed in 2000 lengthening the period for prescription of blackm
ail from 5 to 10 years, effective 1990. Characteristics: 1. It refers to crimina
l matters; 2. It is retroactive in application; and 3. It works to the prejudice
of the accused.
It substitute legislative fiat for a judicial determination of guilt. Thus, it i
s only when a statute applies either to named individuals or to easily ascertain
able members of a group in such a way as to inflict punishment on them without j
udicial trial that it becomes a bill of attainder.
Article IV CITIZENSHIP
Citizenship- is membership in a political community which is personal and more o
r less permanent in character. Nationality- is membership in any class or form o
f political community. Thus, nationals may be citizens [if member of a democrati
c community] or subjects [if members of a monarchial community]. It does not nec
essarily include the right or privilege of exercising political and civil rights
. Usual modes of acquiring citizenship: a. By Birth i. Jus sanguinis-by blood
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Bill of Attainder— • It is a legislative act that inflicts punishment without tr
ial • It is a legislative declaration of guilt • Essential: 1. Specification of
certain individuals or a group of individuals; 2. The imposition of a punishment
, penal or otherwise; and 3. Lack of judicial trial.
¥say
In the case of US vs. Gomez Colonel, 12 Phil 279, an information for adultery fi
led by the prosecutor was dismissed by the SC on the ground that at the time of
the alleged commission of the offense, prosecution could be commenced only on co
mplaint of the offended spouse. It was held that the amendatory law permitting t
he prosecutor to initiate the charge was ex post facto.
ii. Jus soli-by birth b. By Naturalization c. By Marriage The Philippine law on
citizenship adheres to the principle of JUS SANGUINIS. Thereunder, a child follo
ws the nationality or citizenship of the parents regardless of the place of his
birth, as opposed to the doctrine of JUS SOLI which determines the nationality o
r citizenship on the basis of place of birth. (Valles vs. COMELEC, 337 SCRA 543)
Modes (by birth) applied in the Philippines A. Before the adoption of the 1935
Constitution
i.
ii.
Jus Soli. Those declared as Filipino citizens by the courts are recognized as su
ch today, not because of the application of the jus soli principle, but principa
lly because of the doctrine of res judicata.
B. After the adoption of the 1935 Constitution: Only the Jus Sanguinis doctrine.
Section 1, Article IV— The following are citizens of the Philippines: 1. Those
who are citizens of the Philippines at the time of the adoption of this Constitu
tion; (February 2, 1987) 2. Those whose fathers or mothers are citizens of the P
hilippines; (jus sanguinis) 3. Those born before January 17, 1973, of Filipino m
others, who elect Philippine citizenship upon reaching the age of majority; 4. T
hose who are naturalized in accordance with law.
Section 2, Article IV— Natural-born citizens are those who are citizens of the P
hilippines from birth without having to perform any act to acquire or perfect th
eir Philippine citizenship. Those who elect Philippine citizenship in accordance
with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. Ros
alind Ybasco Lopez was born on May 16, 1934 in Australia, to spouses Telesforo Y
basco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marqu
ez, an Australian. Is she a Filipino citizen and, therefore, qualified to run fo
r Governor of her province?
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Jus Sanguinis. All inhabitants of the islands who were Spanish subjects on April
11, 1899, and residing in the islands who did not declare their intention of pr
eserving Spanish nationality between said date and October 11, 1900, were declar
ed citizens of the Philippines [Sec. 4, Philippine Bill of 1902; Sec. 2, Jones L
aw of 1916], and their children born after April 11, 1899. (en masse Filipinizat
ion)
¥say
Historically, she was born a year before the 1935 Constitution took into effect
and at that time, what served as the Constitution of the Philippines were the o
rganic acts by which the US governed the country. These were the Philippine Bill
of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known
as the Jones Law. These laws defined who were deemed to be citizens of the Phili
ppine Islands. Xxx Under both organic acts, all inhabitants of the Philippines w
ho were Spanish subjects on April 11, 1899 and resided therein including their c
hildren are deemed to be Philippine citizens. Private respondent’s father, Teles
foro, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidence
d by a certified true copy of an entry in the registry of Births. Thus, under th
e Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a
Philippine citizen. By virtue of the same laws, which were the law in force at
the time of her birth, Rosalind Ybasco Lopez is likewise a citizen of the Philip
pines. The signing into law of the 1935 Constitution has established the princip
le of jus sanguinis as basis for the acquisition of Philippine citizenship xxx.
This principle confers citizenship by virtue of blood relationship. It was subse
quently retained under the 1973 and 1987 Constitutions. Thus, herein private res
pondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a Fil
ipino father. The fact of her being born in Australia is not tantamount to her l
osing her Philippine citizenship. If Australia follows the principle of jus soli
, then at most, private respondent can also claim Australian citizenship resulti
ng to her possession of dual citizenship. (Valles vs. COMELEC, 337 SCRA 543, Aug
ust 9, 2000) Maria Jeanette Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004 (
on the controversy surrounding the citizenship of FPJ) –The Court took note of t
he fact that Lorenzo Pou (grandfather of FPJ), who died in 1954 at the age of 84
years of age, would have been born sometime in 1870, when the Philippines was u
nder the Spanish rule, and that San Carlos, pangasinan, his place of residence u
pon his death in 1954, in the absence of any other evidence, could have well bee
n his place of residence before death, such that Lorenzo Pou would have benefite
d from the “en masse Filipinization” that the Philippine Bill of 1902 effected.
That Filipino citizenship of Lorenzo Pou, if acquired, would thereby extend to h
is son, Allan F. Poe (father of FPJ). The 1935 Constitution, during which regime
FPJ has seen first light, confers citizenship to all persons whose fathers are
Filipino citizens regardless of whether such children are legitimate or illegiti
mate. Marriage by Filipino to an alien: “Citizens of the Philippines who marry a
liens shall retain their citizenship, unless by their act or omission they are d
eemed, under the law, to have renounced it” [Sec.4, Art. IV].
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¥say
Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matte
r No. 914, October 1, 1999— Vicente Ching, a legitimate child, having been born
on April 11, 1964 of Filipino mother and an alien father, was already 35 years o
ld when he complied with the requirements of CA 625 on June 15, 1999, or over 14
years after he had reached the age of majority. By any reasonable yardstick, Ch
ing’s election was clearly beyond the allowable period within which to exercise
the privilege. All his acts (passing the CPA and Bar Exams) cannot vest in him c
itizenship as the law gives him the requirement for election of Filipino citizen
ship which he did not comply with. (He was not allowed to take the Lawyer’s Oath
) The proper period for electing Philippine citizenship was, in turn, based on t
he pronouncements of the Department of State of the US government to the effect
that the election should be made within a “reasonable time” after attaining the
age of majority. The phrase “reasonable time” has been interpreted to mean that
the election should be made within three (3) years from reaching the age of majo
rity except when there is justifiable reason to delay. The span of 14 years that
lapsed from the time he reached 21 until he finally expressed his intention to
elect Philippine citizenship is clearly way beyond the contemplation of the requ
irement of electing “upon reaching the age of majority”.
®(If his parents were not married, he will follow the citizenship of his mother
and he need not elect Philippine citizenship. )
Caram provision. Those born in the Philippines of foreign parents who, before th
e adoption of the 1935 Constitution, had been elected to public office in the Is
lands are considered citizens of the Philippines. In Chiongbian vs. de Leon, the
SC held that the right acquired by virtue of this provision is transmissible. R
e: 1973 Constitution: Those whose mothers are citizens of the Philippines. Provi
sion is prospective in application; to benefit only those born on or after Janua
ry 17, 1973 (date of effectivity of 1973 Constitution). If born before January
17, 1973, of Filipino mothers, the person must elect Philippine citizenship upo
n reaching the age of majority. [Within reasonable time=3 years except when ther
e is justifiable reason to delay] Procedure for election of Philippine citizensh
ip: 1. Election is expressed in a statement to be signed and sworn to by the par
ty concerned before any official authorized to administer oaths. 2. Statement to
be filed with the nearest Civil Registry accompanied with the Oath of Allegianc
e to the Constitution and the Government of the Philippines [Sec. 1, CA 625]. Th
ose whose fathers or mothers are citizens of the Philippines—Prospective applica
tion, consistent with the 1973 Constitution.
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¥say
The right to elect Philippine citizenship is an inchoate right; during his mino
rity, the child is an alien [Villahermosa vs. Commissioner of Immigration 80 Phi
l. 541]. The constitutional and statutory requirements of electing Filipino cit
izenship apply only to legitimate children. In Republic vs. Chule Lim, G.R. No.
153883, January 13, 2004, it was held that the respondent, who was concededly an
illegitimate child considering that her Chinese father and Filipino mother were
never married, is not required to comply with said constitutional and statutory
requirements. Being an illegitimate child of a Filipino mother, respondent beca
me a Filipino upon birth. Record shows that respondent elected Filipino citizens
hip when she reached the age of majority. She registered as a voter in Misamis O
riental when she was 18 years old. The exercise of the right of suffrage and the
participation in election exercises constitute a positive act of electing Phili
ppine citizenship. Naturalized citizens are those who have become Filipino citiz
ens through naturalization, generally under CA No. 473, otherwise known as the R
evised Naturalization Law, which repealed the former Naturalization Law (Act No.
2927), and by RA 530. To be naturalized, an applicant has to prove that he poss
esses all the qualifications and none of the disqualifications provided by law t
o become a Filipino citizen. The decision granting Philippine citizenship become
s executor only after 2 years from its promulgation when the court is satisfied
that during the intervening period, the applicant: 1. Has not left the Philippin
es; 2. Has dedicated himself to a lawful calling or profession; 3. Has not been
convicted of any offense or violation of government promulgated rules; or 4. Has
not committed any act prejudicial to the interest of the nation or contrary to
any government announced policies. [Sec. 1, RA 530] (Bengzon III vs. HRET, G.R.
No. 142840, may 7, 2001) Qualifications that must be possessed by an applicant:
1. He must be not less than 21 years of age on the day of the hearing of petitio
n; 2. He must have resided in the Philippines for a continuous period of not les
s than 10 years; may be reduced to 5 years if: a. he honorably held office in Go
vernment; b. He established a new industry or introduced a useful invention in t
he Philippines; c. He is married to a Filipino woman; d. Has been engaged as a t
eacher in the Philippines (in a public or private school not established for the
exclusive instruction of persons of a particular nationality or race) or in any
of the branches of education or industry for a period of not less than 2 year;
or
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¥say
3.
4. 5.
6.
Disqualifications: 1. Those opposed to organized government or affiliated with a
ny association or group of persons who uphold and teach doctrines opposing all o
rganized governments; 2. Those defending or teaching the necessity or propriety
of violence, personal assault or assassination for the success of predominance o
f their ideas; 3. Polygamists or believers of polygamy; 4. Those convicted of a
crime involving moral turpitude; 5. Those suffering from mental alienation or in
curable contagious disease; 6. Those who, during the period of their residence i
n the Philippines have not mingled socially with the Filipinos, or who have not
evinced a sincere desire to learn and embrace the customs, traditions and ideals
of Filipinos; 7. Those citizens or subjects of nations with whom the Philippine
s is at war, during the period of such war; 8. Those citizens or subjects of a f
oreign country whose laws do not grant Filipinos the right to become naturalized
citizens or subjects thereof. Procedure: 1. Filing of declaration of intention-
1 year prior to the filing of the Petition with the OSG Persons exempt from fil
ing declaration of intention: a. Those born in the Philippines and received thei
r primary and secondary education in public or private schools recognized by the
Government and not limited to any race or nationality;
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e. He was born in the Philippines He must be of GMC and believes in the principl
es underlying the Philippine Constitution, and must have conducted himself in a
proper and irreproachable manner during the entire period of his residence in th
e Philippines in his relation with the constituted government as well as with th
e community in which he is living; He must own real estate in the Philippines wo
rth not less than P5,000.00, Philippine currency, or must have some known lucrat
ive trade, profession or lawful occupation; He must be able to write and speak E
nglish or Spanish and any of the principal languages; and He must have enrolled
his minor children of school age, in any of the public schools or private school
s recognized by the Bureau of private Schools of the Philippines where Philippin
e history, government and civic are taught or prescribed as part of the school c
urriculum, during the entire period of the residence in the Philippines required
of him prior to the hearing of his petition for naturalization as Filipino citi
zen. (Bengzon III vs. HRET, G.R. No. 142840, may 7, 2001)
¥say
b. Those resided in the Philippines for 30 years or more before the filing of th
e petition, and enrolled their children in elementary and HS recognized by the g
overnment and not limited to any race or nationality; c. Those widows and minor
children of aliens who have declared their intention to become citizens of the P
hilippines and die before they are actually naturalized. 2. Filing of the Petiti
on, accompanied by the affidavit of 2 credible persons, citizens of the Philippi
nes, who personally know the petitioner, as character witness;
3. Publication of the Petition in the O.G. or in a newspaper of general circulat
ion
once a week for 3 consecutive weeks. Failure to comply is fatal. (Po Yo Bi vs. R
epublic, 205 SCRA 400) 4. Actual residence in the Philippines during the entire
proceedings. 5. Hearing of the Petition. 6. Promulgation of the decision. 7. Hea
ring after 2 years. During the 2-year probation period, applicant has: a. Not le
ft the Philippines; b. Dedicated himself continuously to a lawful calling or pro
fession; c. Not been convicted of any offense or violation of rules; and d. Not
committed an act prejudicial to the interest of the nation or contrary to any go
vernment-announced policies. 8. Oath taking and issuance of Certificate of Natur
alization. Modes of Naturalization: 1. DIRECT- through: d. Judicial or administr
ative proceedings- e.g. RA 9139 The Administrative Naturalization Law of 2000—gr
ants Philippine citizenship to aliens born and residing in the Philippines e. Sp
ecial act of legislature- this is discretionary on Congress; usually conferred o
n an alien who has made an outstanding contribution to the country f. Collective
change of nationality, as a result of cessation or subjugation g. Some cases, b
y adoption of orphan minors as nationals of the State where they are born
2. DERIVATIVE-Citizenship conferred on:
a. Wife of naturalized husband; b. Minor children of naturalized person; c. Alie
n woman upon marriage to a national.
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¥say
Effects of Naturalization: 1. Vests citizenship on wife if she herself may be la
wfully naturalized; (She need not
go through the naturalization process; if she doesn’t suffer from any disqualifi
cation, no need to prove the qualifications)
2. Minor children born in the Philippines before the naturalization shall be con
sidered citizens of the Philippines; 3. Minor children born outside the Philippi
nes who were residing in the Philippines at the time of naturalization shall be
considered Filipino citizens. 4. Minor children born outside the Philippines bef
ore parent’s naturalization shall be considered Filipino citizens only during mi
nority, unless they begin to reside permanently in the Philippines; 5. Child bor
n outside the Philippines after parent’s naturalization shall be
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It is the burden of the applicant to prove not only his own good moral character
but also the good moral character of his/her witnesses, who must be credible pe
rsons. A naturalization proceeding is nota judicial adversary proceeding, and th
e decision rendered therein does not constitute res judicata. A certificate of n
aturalization may be cancelled if it is subsequently discovered that the applica
nt obtained it by misleadintg the court upon any material fact. RA 9139—not all
aliens may avail of this remedy. Only native born aliens who have been residing
here in the Philippines all their lives, who never saw any other country and all
along thought that they were Filipinos; who have demonstrated love and loyalty
to the Philippines, and affinity to the customs and traditions of the Filipinos.
Naturalization Repatriation -mode for both acquisition and -mode for reacquisit
ion for those who lost reacquisition of citizenship their citizenship -governed
by CA 473 (for acquisition) and -governed by various statutes CA 63 (for reacqui
sition) -consists a lengthy process -consists of taking of an oath of allegiance
to the RP and registering said oath in the LCR of the place where the person co
ncerned resides or last resided
¥say
Edison So vs. RP, G.R. No. 170603, January 29, 2007—Naturalization signifies the
act of formally adopting a foreigner into the political body of a nation by clo
thing him or her with privileges of a citizen. Under current and existing laws,
there are 3 ways by which an alien may become a citizen by naturalization: a. Ad
ministrative naturalization pursuant to RA 9139; b. Judicial naturalization purs
uant to CA No. 473, as amended—covers all aliens regardless of class; and c. Leg
islative naturalization in the form of a law enacted by Congress bestowing Phili
ppine citizenship to an alien.
considered Filipino citizen, provided that he registers as such before any Phili
ppine consulate within one year after attaining majority age, and takes his oath
of allegiance. Denaturalization Grounds: 1. Naturalization certificate was obta
ined fraudulently or illegally; 2. Within 5 years, he returns to his native coun
try or to some foreign country and establishes residence there; Prima Facie evi
dence of intent to take up residence: a. Native country- 1-year stay b. Foreign
country- 2-year stay 3. Petition was made on an invalid declaration of intent; 4
. Minor children failed to graduate through the fault of the parents either by n
eglecting to support them or by transferring them to another school; 5. Allowed
himself to be used as a dummy; In Republic vs. Guy, 115 SCRA 244, although misco
nduct was committed after the 2year probationary period, conviction of perjury a
nd rape was held to be valid ground for denaturalization. Effects of Denaturaliz
ation: 1. If the ground affects the intrinsic validity of the proceedings, denat
uralization shall divest the wife and children of their derivative naturalizatio
n; 2. If the ground was personal to the denaturalized person, his wife and child
ren shall retain their Philippine citizenship. Policy against Dual Allegiance: “
Dual allegiance of citizens is inimical to the national interest and shall be de
alt with by law” [Sec. 5, Art. IV]. The phrase “dual citizenship” in RA 7160, Se
ction 40(d) LGC must be understood as referring to “dual allegiance”. Consequent
ly, persons with mere dual citizenship do not fall under this disqualification.
Unlike those with dual allegiance, who must be subject to strict process with re
spect to the termination of their status, for candidates with dual citizenship,
it should suffice if, upon filing of their Certificates of Candidacy (COC), they
elect Philippine citizenship to terminate their status as persons with dual cit
izenship considering that their condition is the unavoidable consequence of conf
licting laws of different states. By electing Philippine citizenship, such candi
dates at the same time, forswear allegiance to the other country of which they a
re also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state
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¥say
Section 5, Article IV—Dual allegiance of citizens is inimical to the national in
terest and shall be dealt with by law. This section is not a self-executing law
. It needs an implementing law. Section 40 (d), LGC—Disqualifications.—The follo
wing persons are disqualified from running from any elective local election: xxx
(d) Those with dual citizenship. x x x. The provision prohibits dual citizensh
ip but the Supreme Court ruled that it refers to prohibition on dual allegiance.
Doctrine of INDELIBLE ALLEGIANCE: an individual may be compelled to retain his
original nationality even if he has already renounced or forfeited it under the
laws of the second State whose nationality he has acquired. Dual Citizenship ar
ises as a result of the concurrent application of the different laws of 2 or mor
e states, a person is simultaneously considered as a national of said states in
voluntary Dual Allegiance refers to a situation in which a person simultaneousl
y owes, by some positive act, loyalty to 2 or more states voluntary
Calilung vs. Datumanong, G.R. No. 160869, May 11, 2007, what RA 9225 does is all
ow dual citizenship to natural-born citizens who have lost their Philippine citi
zenship by reason of their naturalization as citizens of a foreign country. On i
ts face, it does not recognize dual allegiance. By swearing to the supreme autho
rity of the Republic, the person implicitly renounces its foreign citizenship. P
lainly, from Section 3, RA 9225 stayed clear out of the problem of dual allegian
ce and shifted the burden of confronting
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and of its laws, such an individual has not effectively renounced his foreign ci
tizenship. That is of no moment. The filing of a COC suffices to renounce forei
gn citizenship, effectively removing any disqualification as dual citizen. This
is so because in the COC, one declares that he is a Filipino citizen and that he
will support and defend the Constitution and will maintain true faith and alleg
iance to the same. Such declaration under oath operates as an effective renuncia
tion of foreign citizenship. In this case, the Court adopted the liberal interpr
etation of the rule. Manzano is not really prohibited to run due to dual citizen
ship. Dual allegiance is the one prohibited. Dual citizenship referred to under
Section 40 (d) of the Local Government Code refers to dual allegiance under Sect
ion 5 of Article IV of the 1987 Constitution.[Mercado vs. Manzano, 307 SCRA 630,
May 26, 1999]
the issue of whether or not there is dual allegiance to the concerned foreign co
untry. What happens to the other citizenship was not made a concern of RA 9225.
Instances when a citizen of the Philippines may possess dual citizenship: 1. Tho
se born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli; 2. Those born in the Philippines of Filipino mothers and
alien fathers if by the laws of their father’s country such children are citize
ns of that country; 3. Those who marry aliens if by the laws of the latter’s cou
ntry the former are considered citizens, unless by their act or omission they ar
e deemed to have renounced Philippine citizenship. [Mercado vs. Manzano, 307 SCR
A 630, May 26, 1999] Res judicata in cases involving citizenship: General Rule:
It does not apply to questions of citizenship. Exception: In Burca vs. Republic,
51 SCRA 248, an exception to the general rule was recognized provided the follo
wing must be present: 1. A person’s citizenship be raised as a material issue in
a controversy where said person is a party; 2. The Solicitor general or his aut
horized representative took active part in the resolution thereof; and 3. The fi
nding on citizenship is affirmed by SC. Although the GR was set forth in the cas
e of Moy Ya Lim Yao, the case did not foreclose the weight of prior rulings on c
itizenship. It elucidated that reliance may somehow be placed on these anteceden
t official findings, though not really binding, to make the effort easier or sim
pler. (Valles vs. COMELEC, 337 SCRA 543, August 9, 2000).
Loss and Reacquisition of Philippine Citizenship
A. Loss of citizenship: 1. By naturalization in a foreign country (Frivaldo vs.
COMELEC, 174 SCRA 245) However, this was modified by RA 9225—An Act Making the C
itizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent— Sep
tember 15, 2003 which declares the policy of the State that all Philippine citiz
ens who become citizens of another country shall be deemed to have lost their Ph
ilippine citizenship under the conditions of this Act. They may reacquire Phil
ippine citizenship by taking the oath of allegiance Those Filipino citizens wh
o, after the effectivity of RA 9225, become citizens of a foreign country, may r
eacquire Philippine citizenship upon taking the oath of allegiance Unmarried c
hild, whether legitimate, illegitimate or adopted, below 18 years of age, of tho
se who reacquire their Philippine citizenship upon the
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2. By express renunciation of citizenship
Conscious, voluntary and intelligent renunciation Labo vs. COMELEC, 176 SCRA 1,
Labo lost Filipino citizenship because he expressly renounced allegiance to the
Philippines when he applied for Australian citizenship.
Express renunciation means a renunciation made known distinctly and explicitly
, and not left to inference or implication.
Mere registration of alien in BID and mere possession of foreign passport
do not constitute effective renunciation. (Valles vs. COMELEC)
In Willie Yu vs. Defensor-Santiago, 169 SCRA 364, obtaining a
Portuguese passport and signing commercial documents as a Portuguese were constr
ued as renunciation of Philippine citizenship.
3. By subscribing to an oath of allegiance to support the Constitution or laws o
f a
foreign country upon attaining the age of 21; provided, however, that a Filipino
may not divest himself of Philippine citizenship in this manner while RP is at
war with any country. –an application of the principle of Indelible Allegiance.—
by virtue of RA 9225 4. By rendering service to or accepting commission in the a
rmed forces of a foreign country EXCEPT: If RP has a defensive and/or offensiv
e pact of alliance with the said foreign country; and The said foreign country
maintains armed forces in Philippine territory with the consent of RP 5. By can
cellation of the certificate of naturalization
6. By having been declared by competent authority a deserter of the
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effectivity of RA 9225 shall be deemed citizens of the Philippines. Those who
reacquire or retain Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and responsibi
lities under existing laws of the Philippines and the following conditions: o Me
et the requirements of RA 9189, The Overseas Absentee Voting Act of 2003, and ot
her existing laws o For those seeking elective public office and appointive offi
ce, meet the qualifications, make personal and sworn renunciation, subscribe and
swear to an oath of allegiance to the RP o For those intending to practice thei
r profession, apply with the proper authority for a license or permit to engage
in such practice
Philippine armed forces in time of war UNLESS subsequently, a plenary pardon or
amnesty has been granted. B. Reacquisition of citizenship: 1. Under RA 9225, by
taking an oath of allegiance 2. By naturalization 3. By repatriation 4. By direc
t act of Congress Effect of repatriation: It allows the person to recover or ret
urn to, his original status before he lost his Philippine citizenship. Thus, the
respondent, a former natural-born Filipino citizen who lost his Philippine citi
zenship when he enlisted in the US Marine Corps, was deemed to have recovered hi
s natural-born status when he reacquired Filipino citizenship through repatriati
on. (Bengzon III vs. HRET, G.R. No. 142840, May 7, 2001) Joevanie Arellano Tabas
a vs. CA, G.R. No. 125793, August 29, 2006, the only persons entitled to repatri
ation under RA 8171 are the following: a) Filipino women who lost their Philippi
ne citizenship by marriage to aliens; and b) Natural-born Filipinos including th
eir minor children who lost their Philippine citizenship on account of political
or economic necessity.
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Article V SUFFRAGE
Section 1 Suffrage may be exercised by all citizens of the Philippines not other
wise disqualified by law, who are at least eighteen (18) years of age, and who s
hall have resided in the Philippines for at least one year and in the place wher
ein they propose to vote for at least six months immediately preceding the elect
ion. No literacy, property, or other substantive requirement shall be imposed on
the exercise of suffrage.
Section 2 The Congress shall provide a system for securing the secrecy and sanct
ity of the ballots as well as a system for absentee voting by qualified Filipino
s abroad. The Congress shall also design a procedure for the disabled and illite
rates to vote without the assistance of other persons. Until then, they shall be
allowed to vote under existing laws and such rules as the Commission on Electio
ns may promulgate to protect the secrecy of the ballot. Right of Suffrage— Right
to vote in election of officers chosen by people and in the determination of qu
estions submitted to people.
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ELECTION—is the embodiment of the popular will, the expression of the sovereign
power of the people. It is the means by which the people choose their officials
for a definite and fixed period and to whom they entrust for the time being the
exercise of the powers of government. Kinds: 1. REGULAR ELECTION—refers to an el
ection participated in by those who possess the right of suffrage and not disqua
lified by law and who are registered voters. It is the election of officers eith
er nationwide or in certain subdivisions thereof, after expiration of full term
of the former members.
a. National Election—
i. for President and VP—every 6 years ii. for Senators—every 3 years Paras vs. C
OMELEC, G.R. No. 123169, November 4, 1996, the SK Election is not a regular elec
tion because the latter is participated in by youth with ages ranging from 15-18
, as per RA 9164, some of whom are not qualified voters to elect local or nation
al elective officials.
b. Local Elections—
i. For Members of HOR— ii. Party-List Representatives— iii. Provincial Officials
— Every 3 years from the nd 2 iv. City Officials— Monday of May 1992 v. Municipa
l Officials— c. Barangay Elections—every 3 years after July 2002 to be held on t
he last Monday of October, synchronized with the SK elections d. ARRM Elections—
i. For Regional Governor— ii. Regional Vice Governor— Every 3 years from March
1993 iii. Regional Assemblymen— e. Sanggguniang Kabataan (SK) Elections-- every
3 years after July 2002 to be held on the last Monday of October, synchronized w
ith the Barangay elections
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2. SPECIAL ELECTION—when there is a failure of election on the scheduled date of
regular election in a particular place or which is conducted to fill up certain
vacancies, as provided by law. This is being held to fill any vacancy in an off
ice before the expiration of the full term for which the incumbent was elected.
a. Plebiscite—electoral process by which an initiative on the Constitution is
Components: Choice or selection of candidates to public office by popular vote
Conduct of the polls Listing of voters Holding of electoral campaign Ac
t of casting and receiving the ballots from the voters Counting he ballots M
aking election returns Proclaiming the winning candidates COMMISSION ON ELECTI
ON (COMELEC) The COMELEC is an independent constitutional body charged with the
exclusive power to administer and enforce laws and regulations relative to the c
onduct of elections and other political exercises, such as plebiscites, initiati
ves, referenda and recalls.
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approved or rejected by the people. b. Initiative—power of the people to propose
amendments to the Constitution or to propose and enact legislations through ele
ction called for the purpose i. Initiative on the Constitution ii. Initiative on
Statutes iii. Initiative on Local Legislation c. Referendum—power of the electo
rate to approve or reject a piece of legislation through an election called for
the purpose. i. Referendum on Statutes ii. Referendum on Local Laws d. Recall—mo
de of removal of an elective public officer by the people before the end of his
term of office
¥say
The periodic political exercises give meaning to the declaration in the Constitu
tion that, “sovereignty resides in the people and all government authority emana
tes from them.” Powers and Functions: 1. Enforce and administer all laws and reg
ulations relative to the conduct of an election, plebiscite, referendum, initiat
ive and recall. 2. Exercise— a. Exclusive original jurisdiction over all contest
s relating to the elections, returns, and qualifications of all elective provinc
ial and city officials; b. Appellate jurisdiction over all contests involving— i
. Elective municipal officials decided by the trial courts of general jurisdicti
on ii. Elective barangay officials decided by the trial courts of limited jurisd
iction Decisions, final orders, or ruling of the COMELEC on election contests i
nvolving elective municipal and barangay offices shall be final and executory, a
nd not appealable. 3. Decide, except those involving the right to vote, all ques
tions affecting elections, including determination of the number and location of
polling places, appointment of election officials and inspectors, and registrat
ion of voters. 4. Deputize, with the concurrence of the President, law enforceme
nt agencies and instrumentalities of the government, including the AFP for the e
xclusive purpose of ensuring free, orderly, honest, peaceful, and credible elect
ions. 5. Registration of political parties, organization, or coalition/accredita
tion of citizens’ arms of the COMELEC. 6. File, upon verified complaint, or on i
ts own initiative, petitions in court for the inclusion or exclusion of voters,
investigate and where appropriate, prosecute cases for violations of election la
ws, including acts or omissions constituting election frauds, offenses and malpr
actices. 7. Recommend to Congress effective measures to minimize election spendi
ng, including limitation of places where propaganda materials shall be posted, a
nd to prevent and penalize all forms of election frauds, offenses, malpractices,
and nuisance candidacies.
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8. Recommend to the President the removal of any officer or employee it has depu
tized, or the imposition of any other disciplinary action, for violation or disr
egard of, or disobedience to it. 9. Submit to the President and Congress a compr
ehensive report on the conduct of each election, plebiscites, initiative, refere
ndum, or recall.
POLITICAL PARTY— A political party is any organized group of citizens advocating
an ideology or platform, principles and policies for the general conduct of gov
ernment and which, as the most immediate means of securing their adoption, regul
arly nominates and supports certain of its leaders and members as candidate in p
ublic office. To acquire juridical personality and to entitle it to rights and p
rivileges granted to political arties, it must be registered with COMELEC.
Party-List System Act (RA 7941) (See Discussions under the Legislative Departmen
t) VOTERS— Qualifications: 1. Filipino citizen 2. At least 18 years of age on th
e day of the election 3. Resident of the Philippines for at least one year immed
iately before the election 4. Resident of the city/municipality wherein he propo
ses to vote for at least 6 months immediately preceding the election 5. Not othe
rwise disqualified by law Requisites of Acquisition of Domicile by Choice 1. Res
idence or bodily presence in the new locality; 2. An intention to remain there;
and 3. An intention to abandon the old residence. Aquino vs. COMELEC, 248 SCRA 4
00, the meaning and purpose of residency requirement—the place where a party act
ually or constructively has his permanent home, where he, no matter where he may
be found at any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the constitution refers when it speaks of residence f
or the purposes of election law.
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In Marcita Mamba Perez vs. COMELEC, G.R. No. 133944, October 28, 1999, the fact
that a person is registered as a voter in one district is not proof that he is n
ot domiciled in another district. Thus, in Faypon vs. Quirino, the SC held that
the registration of a voter in a place other than his residence of origin is not
sufficient to consider him to have abandoned or lost his residence.
REGISTRATION— It refers to the act of accomplishing and filing a sworn applicati
on for registration by a qualified voter before the election officer of the city
or municipality wherein he resides and including the same in the book of regist
ered voters upon approval of the Election Registration Board (ERB). Registration
does not confer the right to vote; it is but a condition precedent to the exerc
ise of the right. Registration is a regulation, not a qualification. (Yra vs. Ab
ano, 52
Phil 380)
Voter’s Registration Act of 1996 (RA 8189)—General Registration of Voters Contin
uing Registration—the personal filing of application of registration of voters s
hall be conducted daily in the office of the Election Officer during regular off
ice hours. Registration shall be conducted everyday except 120 days before a reg
ular election and 90 days before election (Sec. 8, RA 8189)
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Disqualifications: 1. Sentence by final judgment to suffer imprisonment for not
less than one year, unless pardoned or granted amnesty; but right is reacquired
before expiration of 5 years after service of sentence 2. Conviction by final ju
dgment of any of the following crimes: a. Crime involving disloyalty to the gove
rnment b. any crime against national security c. Firearms laws But right is reac
quired before expiration of 5 years after service of sentence. 3. Insanity or in
competence declared by competent authority (Section 18, OEC)
¥say
Petition for Inclusion (Sec. 34, RA 8189) and Exclusion (Sec. 35, RA 8189) of Vo
ters in the List 1. Jurisdiction a. MTC—original and exclusive b. RTC—appellate
jurisdiction c. SC—appellate jurisdiction over RTC on question of law 2. Petitio
ner a. Inclusion Private person whose application was disapproved by the ERB o
r whose name was stricken out from the list of voters COMELEC b. Exclusion A
ny registered voter in the city or municipality Representative of political pa
rty Election officer COMELEC 3. Period of Filing a. Inclusion—any day except
105 days before regular election or 75 days before a special election b. Exclus
ion—anytime except 100 days before a regular election or 65 days before a specia
l election Annulment of Book of Voters— 1. Upon verified complaint of any voter,
election officer or registered political party or motu proprio, the COMELEC may
annul the list of voters which was not prepared in accordance with RA 8189 or w
hose preparation was affected with fraud, bribery, forgery, impersonation, intim
idation, force or other similar irregularity or is statistically improbable. 2.
No list of voters shall be annulled 90 days before an election.
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In the case of Akbayan Youth vs. COMELEC, G.R. No. 147066, March 26, 2001, the S
C upheld the COMELEC’s denial of the request for two (2) additional registration
days in order to enfranchise more than 4 million youth who failed to register o
n or before December 27, 2000. It is an accepted doctrine in administrative law
that the determination of administrative agencies as to the operation, implement
ation and application of law is accorded great weight, considering that these sp
ecialized government bodies are, by their nature and functions, in the best posi
tion to know what they can possibly do or not do under prevailing circumstances.
Ututalum vs. COMELEC, 181 SCRA 335, annulment of the list of voters shall not co
nstitute a ground for a pre-proclamation contest.
Overseas Absentee Voting Act of 2003 (RA 9189) Absentee Voting—process by which
qualified citizens of the Philippines abroad exercise their right to vote pursua
nt to the constitutional mandate that Congress shall provide a system for absent
ee voting by qualified Filipinos abroad(Sec. 3a, RA 9189 and Section 2, Article
V of the Constitution) It is an exception to the 6-month/1-year residency requi
rement. Overseas Absentee Voter—citizens of the Philippines who is qualified to
register and vote under this Act, not otherwise disqualified by law, who is abro
ad on the day of election Coverage: All citizens of the Philippines abroad, who
are not otherwise disqualified by law at least 18 years of age on the day of ele
ctions, may vote for President, VP, Senators and Party-List Representatives. (Se
c. 4) Disqualifications: 1. Those who have lost their Filipino citizenship in ac
cordance with Philippine laws; 2. Those who have expressly renounces their Phili
ppine citizenship and who have pledged their allegiance to a foreign country; 3.
Those who have committed and are convicted in a final judgment by a court or tr
ibunal of an offense punishable by imprisonment of not less than 1 year, includi
ng those who have committed and been found guilty of disloyalty, such disability
not having been removed by plenary pardon or amnesty. Provided however, that an
y person disqualified to vote under this subsection shall automatically acquire
the right to vote upon expiration of 5 years after service of sentence; 4. An im
migrant or a permanent resident who is recognized as such in the host country, u
nless he executes, upon registration, an affidavit for the purpose by the
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COMELEC declaring that he shall resume actual physical residence not later than
3 years from approval of his registration. Such affidavit shall also state that
he has not applied for citizenship in another country; and 5. Any citizen of the
Philippines abroad previously declared insane or incompetent by competent autho
rity in the Philippines or abroad, as verified by Philippine embassies, consulat
e or foreign service establishment concerned. Requirements for registration: 1.
Valid passport 2. Accomplished registration form containing the following inform
ation: a. Last known residence of the applicant in the Philippines before leavin
g for abroad; b. Address of applicant abroad or forwarding address in the case o
f seafarers; c. Where voting by mail is allowed, the applicant’s mailing address
outside the Philippines; and d. Name and address of applicant’s authorized repr
esentative in the Philippines. In case of immigrants and permanent residents no
t otherwise disqualified to vote, an affidavit declaring the intention to resume
actual physical permanent residence in the Philippines not later than 3 years a
fter approval of his registration. Makalintal vs. COMELEC, G.R. No. 157013, July
10, 2003, Section 18.5 of RA 9189, insofar as it grants sweeping authority to t
he COMELEC to proclaim all winning candidates, it is unconstitutional as it is r
epugnant to Section 4 of Article VII of the Constitution, which vest in Congress
the authority to proclaim the winning Presidential or Vice-Presidential candida
tes. CANDIDATES— QUALIFICATIONS—continuing requirements and must be possessed fo
r the duration of the officer’s active tenure. Once any of the required qualific
ation is lost, his title to the office may be seasonably changed. (Frivaldo vs.
COMELEC, 174 SCRA 245) DISQUALIFIED CANDIDATES Under Omnibus Election Code (BP 8
81) 1. Any person declared by competent authority as insane or incompetent Remov
al of DQ: declaration of removal of DQ by competent authority
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2. Any person sentenced by final judgment for any of the following offenses: a.
Subversion, insurrection or rebellion b. Offense for which he was sentenced to p
enalty of more than 18 months c. Crime involving moral turpitude Villaber vs. CO
MELEC, G.R. No. 148326, November 15, 2001, violation of BP 22 is a crime involvi
ng moral turpitude, because the accused knows at the time of the issuance of the
check that he does not have sufficient funds in, or credit with, the drawee ban
k for the payment of the check in full upon presentment. A conviction thereof sh
ows that the accused is guilty of deceit, and certainly relates to and affects t
he good moral character of the person. Dela Torre vs. COMELEC, 258 SCRA 483, vio
lation of the Anti-Fencing Law involves moral turpitude, and the only legal effe
ct of probation is to suspend the implementation of the sentence. Thus, the disq
ualification still subsists. Removal of DQ: plenary pardon, amnesty, lapse of 5
years after service of sentence 3. A permanent resident to or immigrant to a for
eign country unless he waives such status (OEC, Sections 12 and 68) In the case
of Caasi vs. COMELEC, 191 SCRA 229, the SC said that a “green card” is ample pro
of that the holder thereof is a permanent resident of, or immigrant to, the Unit
ed States. 4. One who has violated provisions on: a. Campaign period; b. Removal
, destruction of lawful election propaganda; c. Prohibited forms of propaganda;
d. Regulation of propaganda through mass media; and e. Election offenses. In Pan
gkat Laguna vs. COMELEC, G.R. No. 148075, February 4, 2002, the acts of Laguna G
overnor Lazaro in ordering the purchase of trophies, basketballs, volleyballs, c
hessboard sets, and the distribution of medals and pins to various schools, did
not constitute a violation of Section 80 on premature campaigning. Respondent La
zaro was not in any way directly or indirectly soliciting votes; she was merely
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performing the duties and tasks imposed upon her by law, which duties she had sw
orn to perform as Governor of Laguna. Codilla vs. De Venecia, G.R. No. 150605, D
ecember 10, 2002, when a candidate has not yet been disqualified by final judgme
nt during the election day and was voted for, the votes cast in his favor cannot
be declared stray. To do so would amount to disenfranchising the electorate in
whom sovereignty resides. Under Local Government Code (RA 7160) 1. Those sentenc
ed by final judgment for an offense involving moral turpitude or an offense puni
shable by imprisonment for at least 1 year, within 2 years after service of sent
ence; 2. Those removed from office as a result of an administrative case; Reyes
vs. COMELEC, 254 SCRA 514, the Mayor who had been ordered removed from office by
the Sangguniang Panlalawigan, was disqualified, even as he alleged that the dec
ision was not yet final because he had not yet received a copy of the decision,
inasmuch as it was shown that he merely refused to accept delivery of the copy o
f the decision. 3. Those convicted by final judgment for violating the oath of a
llegiance to the Republic; 4. Those with dual citizenship; (See the case of Merc
ado vs. Manzano and Valles vs. COMELEC) 5. Fugitives from justice in criminal or
nonpolitical cases here or abroad; A fugitive from justice includes not only th
ose who flee after conviction to avoid punishment, but likewise those who, after
being charged, flee to avoid prosecution. In the case of Rodriguez vs. COMELEC,
G.R. No. 120099, July 24, 1996, petitioner cannot be considered a fugitive from
justice, because his arrival in the Philippines from the US preceded the filing
of the felony complaint in LA Court and the issuance of the arrest warrant by t
he same foreign court, by almost 5 months. 6. Permanent residents in foreign cou
ntry or those who have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of this Code. See Caasi vs. COMELEC, 19
1 SCRA 229.
7. The insane or feeble-minded. (Sec. 40, LGC) 133
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Under Revised Administrative Code (EO 292) 1. Ecclesiastics; 2. Persons receivin
g compensation from provincial or municipal funds; and 3. Contractors for public
works of the municipality.
Under the Lone Candidate Law (RA 8295) 1. Any elective officials who has resigne
d from his office by accepting an appointive office or for whatever reason which
he previously occupied but has caused to become vacant due to his resignation;
and 2. Any person who, directly or indirectly, coerces, bribes, threatens, haras
ses, intimidates or actually causes, inflicts or produces any violence, injury,
punishment, torture, damage, loss or disadvantage to any person or persons aspir
ing to become a candidate or that of the immediate member of his family, his hon
or or property that is meant to eliminate all other potential candidates. Ocampo
vs. Crespo, G.R. No. 158466, June 15, 2004, there must be final judgment before
the election in order that the votes of a disqualified candidate can be conside
red stray. The subsequent disqualification of a candidate who obtained the highe
st number of votes does not entitle the candidate who garnered the second highes
t number of votes to be declared the winner.
Certificate of Candidacy (COC): Rules: 1. No person shall be elected into public
office unless he files his COC within the prescribed period; 2. No person shall
be eligible for more than one office. If he files for more than one position, h
e shall not be eligible for all unless he cancels all and retains one. 3. The CO
C shall be filed by the candidate personally or by his duly authorized represent
ative. 4. Upon filing, an individual becomes a candidate, he is already covered
by the rules, restrictions and processes involving candidates. (Section 73, OEC)
Effects of Filing COC:
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Candidates holding appointive office or position shall be considered ipso facto
resigned from his office. (Sec. 66, OEC) Candidates holding elective office shal
l not be considered resigned from his office. (Sec. 67 of OEC repealed by Sectio
n 14 of RA 9006) Formal defects in the COC—the election of a candidate cannot be
annulled on the sole ground of formal defects in his COC, such as lack of the r
equired oath. (De Guzman vs. Board of Canvassers, 48 Phil 211) Duty to receive C
OC: ministerial duty of the COMELEC When a candidate files his COC, the COMELEC
has a ministerial duty to receive and acknowledge its receipt pursuant to Sectio
n 76, of the Election Code. The COMELEC may not, by itself, without the proper p
roceedings, deny due course to or cancel a COC filed in due form. (Luna vs. COME
LEC, G.R. No. 165983, April 24, 2007) Abcede vs. Imperial, 103 Phil 136, the COM
ELEC has no discretion to give or not to give due course to a COC filed in due f
orm. While it may look into patent defects in the COC, it may not go into matter
s not appearing on their face. Exceptions: 1. Nuisance candidates 2. Petition to
deny due course or to cancel a COC—Sec. 78 of the OEC 3. Filing of a disqualifi
cation case on any of the grounds enumerated in Section 68, OEC. Where the decis
ion of the COMELEC disqualifying the candidate is not yet final and executory on
election day, the Board of Election Inspectors (BEI), in the exercise of its mi
nisterial duty, is under obligation to count and tally the votes cats in favor o
f the candidate. (Papandayan vs. COMELEC, G.R. No. 147909, April 16, 2002) Cipri
ano vs. COMELEC, G.R. No. 158830, August 10, 2004, the COMELEC may not, by itsel
f, without proper proceedings, deny due course to or cancel a COC filed in due f
orm. Section 78 of OEC, which treats of a petition to deny due course to or canc
el a COC on the ground that any material representation therein is false, requir
es that the candidate must be notified of the petition against him, and he shoul
d be given the opportunity to present evidence in his behalf.
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Effects of Filing Two (2) COC: Filing of two COC for different offices renders i
neligibility for either position.
OEC)
(Section 73,
Doctrine of the Rejection of the Second Placer— Labo doctrine—the disqualificati
on of the elected candidate does not entitle the candidate who obtained the 2nd
highest number of votes to occupy the office vacated as a result of the disquali
fication. (Labo vs. COMELEC, 176 SCRA 1) Albana vs. COMELEC, G.R. No. 163302, Ju
ly 23, 2004, the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be
declared elected. To simplistically assume that the second placer would have rec
eived the other votes would be to substitute our judgment for the mind of the vo
ter. The second placer is just that, a second placer. He lost in the election. E
xceptions: A second placer may possibly be declared elected when the following c
onditions are met: 1. The one who obtained the highest number of votes is disqua
lified; and 2. The electorate is fully aware in fact and in law of the candidate
’s disqualification so as to bring such awareness within the realm of notoriety
but would nonetheless cast their votes in favor of the ineligible candidate. (Gr
ego vs. COMELEC, G.R. No. 125955, June 19, 1997)
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The concept of a substitute presupposes the existence of the person to be substi
tuted. For how can a person take the place of somebody who does not exist or who
never was. The existence of a valid COC seasonably filed is a requisite sine qu
a non. There was no valid substitution. The existence of a valid COC seasonably
filed is a requisite sine qua non. It is as if he was not a candidate, he may no
t be substituted. Abaya was not proclaimed. (Miranda vs. Abaya, G.R. No. 136351,
July 28, 1999)
¥say
Death, Disqualification and Withdrawal: If after the last day of filing of the C
OC, an official candidate of a registered or accredited political party dies, wi
thdraws or is disqualified for any cause, only a person belonging to, and certif
ied by the same political party may file a COC to replace the candidate who died
, withdrew or was disqualified. (Section 77, OEC)
In Fr. Cayat vs. COMELEC, G.R. Nos. 163776 and 165736, April 24, 2007, the law e
xpressly declares that a candidate disqualified by final judgment before an elec
tion cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law under Section 6 of RA 6646, the Electoral Reforms La
w of 1987. The SC did not apply this doctrine of the rejection of second placer
which triggers the rule on succession. There was no second placer because Palile
ng is not a second-placer but the only placer. There is only one candidate. With
drawal of the COC—shall effect the disqualification of the candidate to be elect
ed for the position. (Ycain vs. Caneja, 81 Phil 773) The withdrawal of the withd
rawal, for the purpose of reviving the COC must be made within the period provid
ed by law for the filing of COC. (Monsale vs. Nico, 83 Phil 758) The affidavit o
f withdrawal can be filed directly with the main office of the COMELEC, the offi
ce of the Regional Election Director concerned, office of the provincial electio
n supervisor of the province to which the municipality belongs, or the office of
the municipal election officer of the municipality. Nuisance Candidates— They a
re candidates who have no bona fide intention to run for the office for which th
e COC has been filed and would thus prevent a faithful election. COMELEC may ref
use to give due course to or cancel a COC of a nuisance candidate. This can be d
one motu proprio or upon verified petition of an interested party. There should
be a showing that: 1. The COC has been filed to put the election process in mock
ery/dispute; 2. The intent for filing is to cause confusion among the voters by
the similarity of the names of the registered candidates; 3. There are other cir
cumstances which clearly demonstrate that the candidate has no bona fide intenti
on to run for the office. Garcia vs. COMELEC, G.R. No. 121139, July 12, 1996, pr
oclamation of the winning candidate renders moot and academic a motion for recon
sideration filed by a candidate who had been earlier declared by the COMELEC as
nuisance candidate.
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¥say
Lone Candidate Law (RA 8295) Upon expiration of the deadline for filing of COC i
n a special election called to fill a vacancy in an elective position other that
for President and VP, when there is only one qualified candidate for such posit
ion, the lone candidate3 shall be proclaimed elected to the position by proper p
roclaiming body of the COMELEC without holding the special election upon certifi
cation by the COMELEC that he is the only candidate for the office and is thereb
y deemed elected. The lone candidate so proclaimed shall assume office not earli
er than the scheduled election day, in the absence of any lawful ground to deny
due course or cancel the COC in order to prevent such proclamation, as provided
for under Section 69 and 78 of OEC.
Loong vs. COMELEC, 216 SCRA 760, the petition for cancellation of the COC of Loo
ng for alleged misrepresentation as to his age, filed by Ututalum beyond the 25-
day period from the last day for filing COC cannot be given due course. Neither
can it be treated as quo warranto petition since there has been no proclamation
yet. The evident purpose of the law in requiring the filing of the certificate o
f candidacy, and in fixing the time limit therefor are:
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Salcedo vs. COMELEC, G.R. No. 135886, August 16, 1999, material misrepresentatio
n contemplated in Section 78, OEC refers to qualifications for elective office.
Aside from that, false representation must consist of a deliberate attempt to mi
slead, misinform, or hide a fact which would otherwise render a candidate inelig
ible. It must be made with an intention to deceive the electorate as to one’s qu
alifications for public office. The use of surname, when not intended to mislead
or deceive the public as to one’s identity, is not within the scope of the prov
ision.
¥say
Petition to Deny Due Course to or Cancel COC (Sec. 78, OEC)—a verified petition
seeking to deny due course or to cancel a COC may be field by any person exclusi
vely on the ground that any material representation contained therein as require
d in Section 74 hereof is false. The petition may be filed at any time not later
than 25 days from the time of filing the COC and shall be decided, after due no
tice and hearing, not later than 15 days before the election. Jurisdiction over
a petition to cancel a COC lies with the COMELEC in division, not with the COME
LEC en banc. (Garvida vs. Sales, G.R. No. 122872, September 10, 1997)
Campaign Periods: 1. President and VP—90 days before the day of election 2. Memb
ers of Congress, Senatorial, Provincial and City/Municipal—45 days 3. Barangay E
lection—15 days 4. Special Election—45 days (Section 5, paragraph 2, Article VII
I) The campaign period shall no include the day before and the day of the elect
ion. Period of time within the election period specified by law when bona fide
candidates can legally conduct campaign activities and other election propaganda
in relation to the scheduled date of election. Fair Election Act of 2001 (RA 90
06) Lawful Election Propaganda 1. Written/printed materials which does not excee
d 8 ½ inches x 14 inches 2. Handwritten/printed letters 3. Posters not exceeding
2x3 feet 4. Print ads 1/4 page in broadsheets and ½ page for tabloids publishe
d 3x a week per newspaper during the campaign period 5. Broadcast ads on TV and
radio
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CAMPAIGN Election and Campaign Periods (Sec. 3, OEC) Election period begins 90 d
ays before the day of election and ends 30 days thereafter—period of time with r
espect to a scheduled date of election when the conduct of certain political act
ivities are regulated by election laws, and the violation of which constitutes e
lection offense subject to penalties.
¥say
1. To enable the voters to know, at least 60 days before the regular election, t
he candidates among whom they are to make the choice; and 2. To avoid confusion
and inconvenience in the tabulation of the votes cats. For if the law did not co
nfine the choice or election by the voters to the duly registered candidates, th
ere might be as many persons voted for as there are voters, and votes might be c
ast even for unknown or fictitious persons as a mark to identify the votes in fa
vor of a candidate for another office in the same election. (Miranda vs. Abaya,
G.R. No. 136351, July 28, 1999)
a. National positions—120 mins. for TV, 180 mins. for radio b. Local positions—6
0 mins. for TV, 90 mins. for radio
(See the cases of PPI vs. COMELEC, G.R. No. 119694, May 22, 1995 and TELEBAP vs.
COMELEC, G.R. No. 132922, April 21, 1998—page 45 of this review notes)—payment
of just compensation is now expressly provided under Section 7 of RA 9006; payme
nt of just compensation is not necessary since it is a valid exercise of police
power.
Prohibited Campaign: 1. Public exhibition of movie, cinematograph or documentary
portraying the life or biography of a candidate during the campaign period. 2.
Public exhibition of a movie, cinematograph or documentary portrayed by an actor
or media personality who is himself a candidate. 3. Use of airtime for campaign
of a media practitioner who is official of any party or member of the campaign
staff of a candidate of political party. Limitation on Expenses Candidates: 1. P
resident and VP—P10/voter 2. Other candidate with party—P3/voter 3. Other candid
ate without party—P5/voter Statement of Contribution and Expenses Every candidat
e and treasurer of a political party shall, within 30 days after the day of elec
tion, file with the COMELEC the full, true and itemized statement of all contrib
ution and expenditures in connection with the election. Election Surveys Sec. 5.
4 of RA 9006—surveys affecting national candidates shall not be published within
15 days before an election and surveys affecting local candidates shall not be
published 7 days before an election. This section was declared unconstitutional
in the case of Social Weather Station vs. COMELEC, G.R. No. 147571, May 5, 2001,
for it violated the constitutional rights of speech, expression and the press.
Reasons: 1. It imposes a prior restraint on the freedom of expression 2. It is d
irect and total suppression of a category of expression even though such suppres
sion is only for a limited period. 3. The government interest sought to be promo
ted can be achieved by means other than the suppression of freedom of expression
.
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¥say
Substitution of Candidates In case of valid substitution after the official ball
ots have been printed, the votes cast for the substituted candidates shall be co
nsidered as stray votes but shall not invalidate the whole ballot. This rule sha
ll not apply if the substitute candidate is of the same family name. (Section 12
, RA 9006) See the case of Luna vs. COMELEC A disqualified candidate may only be
substituted if he had a valid certificate of candidacy in the first place becau
se, if the disqualified candidate did not have a valid and seasonably filed COC,
he is and was not a candidate at all. If a person was not a candidate, he canno
t be substituted under Section 77 of the OEC. (Miranda vs. Abaya, G.R. No. 13635
1, July 28, 1999) Rule Against Premature Campaigning The use of lawful election
propaganda is subject to the supervision and regulation of the COMELEC in order
to prevent premature campaigning and to equalize, as much as practicable, the si
tuation of all candidates by preventing popular and rich candidates from gaining
undue advantage in exposure and publicity on account of their resources and pop
ularity. Chavez vs. COMELEC, G.R. No. 162777, August 31, 2004, all propaganda ma
terials including advertisements on print, in radio, or on television showing im
age or mentioning the name of a person, who subsequent to the placement or displ
ay thereof becomes a candidate for public office, be immediately removed, otherw
ise, this shall be presumed as premature campaigning in violation of Section 80
of the OEC.
CASTING OF VOTES (Read Sections 190-198 of OEC)
Postponement of Election (Sec. 5, OEC) Causes: 1. Violence; 2. Terrorism; 3. Los
s or destruction of election paraphernalia or records; 4. Force majeure; 5. Othe
r analogous causes. COMELEC can postpone the election:
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¥say
1. Motu proprio; or 2. Upon a verified petition by any interested party, after d
ue notice and hearing. COMELEC shall call for the holding of the election on a d
ate reasonably close to the date of the election not held, suspended or which re
sulted in a failure to elect but not later than 30 days after the cessation of t
he cause for such postponement or suspension of the election or failure to elect
. Failure of Election (Section 6, OEC) Pre-conditions for declaring failure of e
lections— 1. No voting has been held or election has been suspended before the h
our fixed by law for the closing of the voting in any precinct because of: a. Fo
rce majeure b. Violence c. Terrorism d. Fraud e. Other analogous cases. 2. Votes
not cast are sufficient to affect the results of the elections. (Tan vs. COMELE
C, G.R. Nos. 148575-76, December 10, 2003) COMELEC shall call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect on a date reasonably close to the date of the election not held, suspe
nded or which resulted in a failure to elect but not later than 30 days after th
e cessation of the cause of such postponement or suspension of the election or f
ailure to elect. The cause for the declaration of a failure of election may occu
r before or after the casting of votes or on the day of the election. (RA 7166,
Synchronized National and Local Elections Act) The postponement, declaration of
a failure of election and the calling of special elections shall be decided by t
he COMELEC sitting en banc by a majority vote of its members. (Section 4, RA 716
6, Synchronized National and Local Elections Act) Batabor vs. COMELEC, G.R. No.
160428, July 21, 2004, the power to declare a failure of election is vested excl
usively upon the COMELEC. x x x There is failure of election only when the will
of the electorate has been muted and cannot be ascertained. Loong vs. COMELEC, t
he petition for annulment of election results or to declare failure of election
in Parang, Sulu, on the ground of STATISTICAL IMPROBABILITY
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Page 1427/12/2008
¥say
and massive fraud was granted by the COMELEC. Even before the technical examinat
ion of election documents was conducted, the cOMELEC already observed badges of
fraud just by looking at the election results in Parang. Nevertheless, the COMEL
EC dismissed the petition for annulment of election results or to declare failur
e of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and
Kalinggalang Calauag. The dismissal was on the ground of untimeliness of the pet
ition, despite a finding that the same badges of fraud evident from the results
of the election based on the certificates of canvass of votes in Parang, are als
o evident in the election results of the five (5) mentioned municipalities. The
SC ruled that the COMELEC committed grave abused of discretion in dismissing the
petition as there is no law which provides a reglementary period to file annulm
ent of elections when there is yet no proclamation. The election resulted in a f
ailure to elect on account of fraud. Accordingly, the Court ordered the COMELEC
to reinstate the aforesaid petition. Banaga, Jr. vs. COMELEC, 336 SCRA 701, the
circumstances in the above case are not present in this case so that reliance in
Loong by petitioner Banaga is misplaced. A prayer to declare failure of electio
n and a prayer to annul the election results are actually of the same nature. Wh
ether an action is for the declaration of failure of elections or for annulment
of election results, based on allegations of fraud, terrorism, violence or analo
gous cases, the OEC denominates them similarly. Petition to Declare Failure of E
lection Election Protest A special action under Rule 26, Comelec An ordinary a
ction under Rules of Procedure Comelec Rules of Procedure Docket number starts
with SPA An En Banc decision of the COMELEC in a special action becomes final a
nd executory after 5 days from promulgation, unless restrained by the SC Docket
number starts with EPC En Banc decision of the COMELEC in an ordinary action b
ecomes final and executory within 30 days from its promulgation
Rule
20,
COUNTING OF VOTES
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¥say
Principle of Ballot Secrecy—voters are prohibited from exhibiting the contents o
f their official ballots to other persons, from making copies thereof, or from p
utting distinguishing marks thereon so as to be identified. The reason behind th
is is to avoid vote buying through voter identification. Rules for the Appreciat
ion of Ballots: (Section 211, OEC)—a function of the Board of Election Inspector
s In reading and appreciation of ballots, every ballot shall be presumed valid u
nless there is clear and good reason to justify its rejection. In the appreciati
on of the ballots, the object should be to ascertain and carry into effect the i
ntention of the voter, if it could be determined with reasonable certainty. (Fer
in vs. Gonzales, 53 SCRA 237) A ballot which has been cast carries the presumpti
on that it reflects the will of the voter. And the purpose of the election law i
s to give effect, rather than frustrate, that will. For this reason, extreme cau
tion should be observed before a ballot is invalidated and doubts are to be reso
lved in favor of their validity. 1. Where only first name or surname is written—
the vote for such candidate is valid, if there is no other with the same name or
surname for the same office. Gonzaga vs. Seño, 7 SCRA 741, where there are 2 or
more candidates having the same first name or the same surname, writing only th
e first name or the surname is not a valid vote for either of the candidates. In
order that his vote may be counted, the voter should add the correct name, surn
ame, or middle initial that will identify the candidate for whom he is voting. 2
. Where only first name is surname of another, or where incumbent’s full name, f
irst name or surname is same as another—the first part of the rule, the vote is
counted in favor of the candidate whose surname corresponds to the word. The sec
ond part refers to a situation where there are 2 or more candidates, one of whom
is an incumbent or re-electionist whose full name, first name, or surname is th
e same as the full name, first name, or surname of the other candidate or candid
ates. Example: the incumbent’s name is Jose Santos, while the other’s candidate’
s name is Jose Santos, or Jose Cruz, or Ronaldo Santos. A vote for Jose Santos w
ill be
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Page 1447/12/2008
¥say
counted for the incumbent candidate; a vote for Jose will be counted in favor of
the incumbent; or a vote for Santos will be counted in favor of the incumbent c
andidate. 3. Where candidate is a woman using her maiden or married surname or b
oth which is same surname of incumbent—a ballot bearing only such surname shall
be counted in favor of the candidate who is an incumbent. Where none of the cand
idates is an incumbent, a ballot bearing only such surname cannot be counted for
any of them. Where a ballot contains only the maiden surname of a candidate, an
d there is another candidate bearing the same surname, such ballot shall be coun
ted in her favor. (Conui-Omega vs. Samson, 9 SCRA 493) 4. Where 2 or more words
are surnames of 2 or more candidates—when 2 or more words are written on the sam
e line on the ballot, all of which are the surnames of 2 or more candidates, the
same shall not be counted for any of them. Exceptions: a. Unless one is a surna
me of an incumbent in which case it shall be counted in favor of the latter. b.
If the word or words written on the appropriate blank on the ballot is the ident
ical name or surname or full name, as the case may be, of 2 or more candidates f
or the same office none of whom is an incumbent, the vote shall be counted in fa
vor of the candidate to whose ticket all the other candidates voted for in the s
ame ballot for the same constituency belongs. c. When 2 or more words are writte
n on different lines on the ballot all of which are the surnames of 2 or more ca
ndidates bearing the same surname for an office for which the law authorizes the
election of more than one and there are the same number of surnames written as
there are candidates with that surname, the vote shall be counted in favor of al
l candidates bearing the surname. 5. Where single word is first name of candidat
e and surname of his opponent —the vote shall be counted in favor of the latter
(surname of the opponent). (Corpus vs. Ibay, 84 Phil. 184) 6. Where 2 words are
written, one of which is the first name of the candidate and the other is the su
rname of his opponent—the vote shall not be counted for either.
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¥say
7. Idem sonam—a name or surname incorrectly written which, when read, has a soun
d similar to the name or surname of a candidate when correctly written shall be
counted in his favor. It is based on the principle that the misspelling of a nam
e or lack of skill in writing it, should not be taken as a ground for rejecting
the votes apparently intended for a candidate, so long as the intention of the v
oter appears to be clear. This rule is liberally construed.] 8. Repetition of na
mes in 2 or more line—when the name of a candidate appears in a space of the bal
lot for an office which he is a candidate and in another space for which he is n
ot a candidate, it shall be counted in his favor for the office for which he is
a candidate and the vote for the office for which he is not a candidate shall be
considered as stray, except when it is used as a means to identify the voter, i
n which case the whole ballot shall be void. 9. Erroneous initial—the erroneous
initial of the first name accompanied by the correct surname of a candidate or t
he erroneous initial of the surname accompanied by the correct first name of a c
andidate shall not annul the vote in his favor. 10. Prefixes or suffixes—ballots
containing prefixes such as “Sr.”, Mr.”, “Datu”, “Hon.”, “Don”, or suffixes “Jr
.”, “II” are valid. The use of these prefixes does not invalidate the ballot, th
e vote is counted in favor of the candidate whose name is with a prefix, the rul
e does not apply where the prefixes are used as identifying marks. 11. Use of ni
cknames and appellations—if accompanied by the first name or surname of the cand
idate, does not annul such vote, except when they are used as a means to identif
y the voter, in which case the whole ballot is invalid. However, if the nickname
used is unaccompanied by the name or surname of a candidate and it is the one b
y which he is generally or popularly known in the locality, the name shall be co
unted in favor of said candidate, if there is no other candidate for the same of
fice with the same nickname. 12. Descriptio Personae—it does not invalidate the
ballot. 13. Vote in favor of disqualified candidate—it shall be considered as st
ray vote and shall not be counted, but it shall not invalidate the ballot.
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¥say
Alfonso vs. COMELEC, 232 SCRA 777, a vote in favor of a candidate who died just
before the election and was accordingly substituted by his daughter is a stray v
ote and cannot be counted in favor of the latter. However, a vote cast with only
the family name can be counted in favor of the daughter who bears such name. Ce
rtificate of Votes Balindong vs. COMELEC, 27 SCRA 567, the Certificate of Votes
(CV) is evidenced not only of tampering, alteration, falsification or any other
anomaly in the preparation of the election returns but also of the votes obtaine
d by the candidates. Garay vs. COMELEC, 261 SCRA 222, the CV can never be a vali
d basis for canvass; it can only be evidence to prove tampering, alteration, fal
sification or any other anomaly in the preparation of the election returns conce
rned, when duly authenticated. A CV does not constitute sufficient evidence of t
he true and genuine results of the elections; only election returns are. In like
manner, neither is the tally board sufficient evidence of the real results of t
he election. CANVASSING Canvassing Bodies: 1. Congress—for President and VP 2. C
OMELEC—Senators and Regional Officials 3. Provincial Board of Canvassers—for Con
gressmen, Municipal Officials 4. District Board of Canvassers—Congressmen, Munic
ipal officials 5. City and Municipal BOC—Congressmen, City and Municipal officia
ls 6. Barangay Board of Canvassers—Barangay officials COMELEC has direct control
and supervision over the Board of Canvassers except Congress. It may motu propr
io relieve at any time and substitute any member of the board of canvassers. (Se
ction 227, OEC) Prohibited Relationship: Related within the 4th civil degree by
consanguinity or affinity to any of the candidates whose votes will be canvassed
by the Board, or to any member of the same Board Agujetas vs. CA, 261 SCRA 17,
petitioners, members of the Board of Canvassers, who proclaimed as the 8th winni
ng candidate one who did not obtain the 8 th highest number of votes, may be cri
minally prosecuted for violation of Section 231 of the OEC, failure to proclaim
the winning candidate.
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¥say
COMELEC shall have exclusive controversies. (Section 242, OEC)
jurisdiction
over
all
pre-proclamation
In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an e
xamination of the election returns and is without jurisdiction to go beyond or b
ehind them and investigate election irregularities. The policy consideration un
derlying the delimitation of both substantive ground and procedure is the policy
to determine as quickly as possible the result of the election on the basis of
the canvass. It is for this reason that pre-proclamation controversies are manda
ted by law to be summarily disposed of.
Issues that may be raised in pre-proclamation controversy: 1. Illegal compositio
n or proceedings of the board of canvassers; 2. The canvassed election returns (
ER) are incomplete, contain material defects, appear to be tampered with or fals
ified, or contain discrepancies in the same returns or in authentic copies there
of.
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Page 1487/12/2008
Belac vs. COMELEC, G.R. No. 145802, April 24, 2001, Section 241 of the OEC provi
des that a pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the Board of Canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties
before the Board or directly with the COMELEC.
¥say
PRE-PROCLAMATION CONTROVERSY—Section 241, OEC Any question pertaining to or affe
cting the proceedings of the board of canvassers which may be raised by any cand
idate or by any registered political party or coalition of political parties bef
ore the board or directly with the Commission, or any matters raised under Secti
ons 233, 234, 235 and 236 in relation to the preparation, transmission, receipt,
custody and appreciation of the election returns. (Bandala vs. COMELEC, G.R. No
. 159369, March 3, 2004)
3. The ERs were prepared under duress, threats, coercion, or intimidation, or th
ey are obviously manufacture, or not authentic. 4. When substitute and fraudulen
t returns in controverted polling places were canvassed, the results of which ma
terially affected the standing of the aggrieved candidates. (Section 243, OEC)
Issues #s 2, 3 and 4 are not applicable to election of President, VP, Senators
and Members of the House of Representatives. Only #1 is applicable to them.
General Rule: Candidates and registered political parties involve in an election
are allowed to file a pre-proclamation cases before the COMELEC. Exception: Pre
-proclamation cases are not allowed in elections for President, VP, Senators, an
d Members of the HOR. However, this does not preclude the authority of the appro
priate canvassing body motu proprio or upon written complaint of an interested p
erson to correct manifest errors, question the composition or proceeding of the
board of canvassers and to determine the authenticity and due execution of certi
ficates of canvass as provided in Section 30 of RA 7166, as amended by RA 9369.
(Pimentel III vs. COMELEC, G.R. No. 178413, March 13, 2008) “manifest errors”—th
e error must appear on the face of the Certificates of Canvass or Election Retur
ns sought to be corrected. It is one that is visible to the eye or obvious to th
e understanding; that which is open, palpable, incontrovertible, needing no evid
ence to make it more clear. (O’Hara vs. COMELEC, G.R. No. 148941-42, March 12, 2
002) Correction of manifest errors has reference to errors in the election retur
ns, in the entries of the statement of votes by precinct per municipality, or in
the certificate of canvass. Some of the definition given for the word “manifest
” are that “it is evident to the eye and understanding, visible to the eye, that
which is open, palpable, and incontrovertible, needing no evidence to make it m
ore clear, not obscure or hidden. (Dela Llana vs. COMELEC, G.R. No. 152080) Espi
dol vs. COMELEC, G.R. No. 164922, October 11, 2005, COMELEC is with authority to
annul any canvass and proclamation illegally made. The fact that a candidate il
legally proclaimed has assumed office is not a bar to the exercise of such power
. It is also true that as a general rule, the proper remedy after proclamation o
f the winning candidate for the position contested would be to file a regular el
ection protest or quo warranto except where the proclamation is null and void, t
he proclaimed candidate’s assumption of office cannot deprive the COMELEC of the
power to declare such proclamation a nullity.
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¥say
Sandoval vs. COMELEC, G.R. No. 133842, January 26, 2000, the authority to rule o
n petitions for correction of manifest error is vested in the COMELEC EN BANC. S
ection 7 of Rule 27 of the 1993 COMELEC Rules of Procedure provides that if the
error is discovered before proclamation, the board of canvassers may motu propri
o, or upon verified petition by any candidate, political party, organization or
coalition of political parties, after due notice and hearing, correct the errors
committed. The aggrieved party may appeal the decision of the board to the COME
LEC and said appeal shall be heard and decided by the COMELEC EN BANC. Section 5
, however, of the same rule states that a petition for correction of manifest er
rors may be filed directly with the Commission en banc provided that such errors
could not have been discovered during the canvassing despite the exercise of du
e diligence and proclamation of the winning candidate had already been made.
Jurisdiction: Division of a COMELEC
Jurisdiction: COMELEC En Banc
Once proclaimed, the pre-proclamation shall be dismissed Lagumbay vs, COMELE
C, 16 SCRA 175, the election return was an obviously manufactured return. The re
turns were palpably false as it was indeed statistically improbable that all the
eight candidates of one party garnered all the votes each of them received exac
tly the same number, whereas all the 8 candidates of the other party got precise
ly nothing. The Supreme Court enunciated the DOCTRINE OF STATISTICAL IMPROBABILI
TY. It states that where there exists uniformity of tallies in favor of candidat
es belonging to one party and the systematic blanking out of the opposing candid
ates, as when all the candidates of one party received all the votes, each of wh
om exactly the same number, and the opposing candidates got zero votes, the elec
tion returns are obviously manufactured, contrary to all statistical probabiliti
es, and utterly improbable and clearly incredible. The doctrine applies only wh
en the improbability is shown on the face of the ER itself and without regard to
evidence aliunde or to evidence outside of the return.
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Pre-Proclamation Controversy There was election
Petition for Failure of Election There was no election
¥say
It is a well-entrenched rule in jurisprudence that in a pre-proclamation controv
ersy, the Board of Canvassers and the COMELEC are not to look beyond or behind e
lection returns which are on heir face regular and authentic returns. (Jainal vs
. COMELEC, G.R. No. 174551, March 7, 2007)
PROCLAMATION— In the absence of an appeal, the Board of Canvassers shall proclai
m the winner.
ELECTION OFFENSES Prohibited Acts: (Sections 261, 262, OEC)
1. Vote buying and vote selling; 2. Conspiracy to bribe voters; 3. Wagering upon
result of election;
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Piercing the Veil of Election Returns— The general rule is that a pre-proclamati
on case before the COMELEC is, logically, no longer viable after a proclamation
has been made. However, this rule admits of exceptions, as when the proclamation
is null and void. The proclamation of petitioner in this case is void for three
(3) reasons: 1) it was based on a canvass that should have been suspended with
respect to the contested election returns; 2) it was done without prior COMELEC
authorization which is required in view of the unresolved objections of Talib to
the inclusion of certain returns in the canvass; and 3) it was predicated on a
canvass that included unsigned election returns involving such number of votes a
s will affect the outcome of the election. In this regard, it has long been reco
gnized that among the reliefs that the COMELEC may grant is to nullify a proclam
ation or suspend the effect of one.
¥say
Simultaneous Prosecution of Pre-Proclamation Controversies and Election Protests
— There is no law or rule prohibiting the simultaneous prosecution or adjudicati
on of pre-proclamation controversies and election protests. Allowing the simulta
neous prosecution scenario may be explained by the fact that pre-proclamation co
ntroversies and election protests differ in terms of the issues involved and the
evidence admissible in each case and the objective each seeks to achieve. (Tan
vs. COMELEC, G.R. Nos. 166143-47, November 20, 2006)
4. 5. 6. 7. 8. 9. 10. 11.
Coercion of subordinates; Threats, intimidation, terrorism, use of fraudulent de
vice or other forms of coercion; Coercion of election officials and employees; A
ppointment of new employees, creation of new position, promotion, giving of sala
ry increases; Intervention of public officers and employees; Undue influence; Un
lawful electioneering; Others.
Good faith is not a defense. Election offenses are generally mala prohibita. Pr
oof of criminal intent is necessary. Good faith, ignorance or lack of malice is
not a defense; the commission of the prohibited act is sufficient. Jurisdiction:
1. Investigation and prosecution—COMELEC—the investigating officer shall resolv
e the case within five (5) days from submission. 2. Trial and decisions: RTC—exc
lusive original jurisdiction any criminal action or proceedings for violation of
OEC Exception: offenses relating to failure to register or failure to vote (MTC
) Prescription: 5 years from the date of their commission ELECTION CONTEST— Natu
re: special summary proceeding—to expedite the settlement of controversies betwe
en candidates as to who receive the majority of legal votes. Purpose: to ascerta
in the true will of the people Election Laws, how Construed—laws governing elect
ion contests must be liberally construed to the end that the will of the people
in the choice of public officials may not be defeated by mere technical objectio
ns. In an election case, the court has the imperative duty to ascertain by all m
eans within its command who is the real candidate elected by the electorate. (De
la Llana vs. COMELEC, G.R. No. 152080) Original Exclusive Jurisdiction 1. Suprem
e Court (PET) President Vice-President Tecson vs. COMELEC, , G.R. No. 161434
, March 3, 2004, the word “contest” refers to either Election Protest or Quo War
ranto which are two
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¥say
2. 3. 4.
5. 6.
(2) distinct post-election remedies. They have one objective, i.e., to unseat th
e winning candidate. Senate Electoral Tribunal (SET) Senators House of Represe
ntatives Electoral Tribunal (HRET) Congressmen COMELEC Regional officials
Provincial officials City officials Regional Trial Court Municipal officials
Metropolitan Trial court, Municipal Circuit Trial Court, and Municipal Trial Co
urt Barangay officials Sangguniang Kabataan
HRET Rules of Procedure shall prevail over the provisions of the Omnibus Electi
on Code. (Lazatin vs. HRET, 168 SCRA 391) Pimentel III vs. COMELEC, G.R. No. 178
413, March 13, 2008, the SC has no jurisdiction to entertain a petition for cert
iorari and mandamus on matters which may be threshed out in an election contest.
It is the SET which has exclusive jurisdiction to act on the complaint involvin
g, as it does, a contest relating to the election of a now member of the Senate.
Appellate Jurisdiction 1. For decisions of RTC and MTC—appeal to COMELEC whose d
ecision shall be final and executor 2. For decisions of COMELEC—Petition for Rev
iew on Certiorari with SC within 30 days from receipt of decision on ground of g
rave abuse of discretion amounting to lack or excess of jurisdiction or violatio
n of due process 3. For decisions of Electoral Tribunal—Petition for Review on C
ertiorari with SC on ground of grave abuse of discretion amounting to lack or ex
cess of jurisdiction or violation of due process ACTIONS WHICH MAY BE FIELD:
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¥say
1. ELECTION PROTEST—filed by any candidate who has filed a COC and has
been voted upon for the same office on the grounds of: Fraud; Terrorism; I
rregularities; or Illegal acts, committed before, during or after casting and
counting of votes
Death of Protestant—does not necessarily extinguish an election protest Poe vs.
Arroyo, PET Case No. 002, March 29, 2005, the widow of the protestant has no sta
tus of real party in interest to substitute or intervene for the latter who died
during the pendency of the election protest. De Castro vs. COMELEC, G.R. No. 12
5249, February 7, 1997, an election protest is imbued with public interest which
raises it onto a plane over and above ordinary civil actions, because it involv
es not only the adjudication of the private interest of the rival candidates but
also the paramount need of dispelling once and for all the uncertainty that bec
louds the real choice of the electorate with respect to who shall discharge the
prerogatives of the office within their gift. Villamor vs. COMELEC, G.R. No. 169
865, July 21, 2006, the filing of an election protest or a petition for quo warr
anto precludes the subsequent filing of a preproclamation controversy or amounts
to the abandonment of one earlier filed, thus depriving the COMELEC of the auth
ority to inquire into and pass upon the title of the protestee or the validity o
f his proclamation. 2. QUO WARRANTO—filed by any registered voter in the constit
uency on the grounds of: Ineligibility; or Disloyalty to the Republic
Filed within 10 days from proclamation of results of election
ELECTION PROTEST A contest between the defeated and winning candidates, based o
n grounds of election frauds or irregularities, as to who actually obtained the
majority of
QUO WARRANTO Refers to questions of disloyalty and ineligibility of the winning
candidates. It is a proceeding to unseat the ineligible person from office, but
not to
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¥say
Filed within 10 days from proclamation of results of election
the legal votes and therefore is entitled install the protestant in his place. t
o hold the office. Filed by filed by any candidate who Filed by any registere
d voter in the has filed a COC and has been voted constituency. for. The respon
dent may be unseated but A protestee may be ousted and the the petitioner will
not be seated. protestant may seat in the office vacated. (Dumayas, Jr. vs. COM
ELEC, G.R. Nos. 141952-53, April 20, 2001)
The period for filing an election protest is suspended during the pendency of a
preproclamation controversy. (Gatchalian vs. COMELEC, 245 SCRA 208)
COUNTER-PROTEST— A protestee may incorporate in his answer a counter-protest. It
is tantamount to a counterclaim in a civil action and may be presented as a par
t of the answer within the time he is required to answer the protest, i.e., with
in five (5) days upon receipt of the protest, unless a motion for extension is g
ranted, in which case it must be filed before the expiration of the extended tim
e. The counter-protest must be filed within the period provided by law, otherwis
e, the forum loses its jurisdiction to entertain the belatedly filed counter-pro
test. The period to be observed is within five (5) days from the time of the rec
eipt of the copy of the protest. The 5-day period is not only mandatory requirem
ent of the law but also jurisdictional so that the court is ousted to entertain
counter-protest belatedly filed. (Kho vs. COMELEC, 279 SCRA 463, September 25, 1
997)
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Quo Warranto in Elective Office Quo Warranto in Appointive Office The issue is t
he eligibility of the officer- The issue is the legality of the elect; the court
or tribunal cannot declare appointment; the court determines who of the protest
ant as having been elected. the parties has legal title to the office.
¥say
Francis King Marquez vs. COMELEC, G.R. No. 127318, August 25, 1999, any contest
relating to the election of members of the Sangguniang Kabataan (SK), including
the Chairman—whether pertaining to their eligibility or the manner of their elec
tion—is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of COMELEC Resolution No
. 2824 which provides that cases involving the eligibility or qualification of S
K candidates shall be decided by the City/Municipal Election Officers whose deci
sion shall be final, applies only to proceedings before the election. Before pro
clamation, cases concerning the eligibility of SK Officers and members are cogni
zable by the Election Officer. But after the election and proclamation, the same
cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The disti
nction is based on the principle that it is the proclamation which marks off the
jurisdiction of the courts from the jurisdiction of election officials. Gementi
za vs. COMELEC, 353 SCRA 724, March 6, 2001, the COMELEC EN BANC shall decide mo
tions for reconsideration only for “decisions” of a Division, meaning those acts
of final character. The interlocutory order ruled by the Division of COMELEC sh
ould be brought up to the Supreme Court thru Certiorari. Rule 3, Section 5c of C
OMELEC Rules of Procedures—Any motion to reconsider a decision, resolution, orde
r or ruling of a Division shall be resolved by the Commission en banc except mot
ions on interlocutory orders of the division, which shall be resolved by the div
isions which issued the order. Only final orders of a Division may be raised bef
ore the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Con
stitution which mandates that only motions for reconsideration of final decision
s shall be decided by the COMELEC en banc. Counter-Protest erroneously filed and
accepted by the COMELEC—remedy: 1. Erase from the record; 2. Certiorari. Execut
ion Pending Appeal—the trial court may grant a motion for execution pending appe
al because the mere filing of an appeal does not divest the trial court of its j
urisdiction over a case and to resolve pending incidents. Since the court and ju
risdiction to act on the motion at the time it was filed, that jurisdiction cont
inued until the matter was resolved, and was not lost by the subsequent action o
f the opposing party. (Edding vs. COMELEC, 246 SCRA 502)
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Page 1567/12/2008
¥say
Dulce Ann Hofer vs. HRET, G.R. No. 158833, May 12, 2004, by the very nature and
given the public interest involved in the determination of the result of an elec
tion, the controversies arising from the canvassing must be resolved speedily, o
therwise, the will of the electorate will be frustrated. Procedural rules in ele
ction cases are designed to achieve not only a correct but also an expeditious d
etermination of the popular will of the electorate.
Article VI LEGISLATIVE DEPARTMENT
Legislative Power— It is the power or competence of the legislative to propose,
enact, ordain, amend/alter, modify, abrogate or repeal laws. It is vested in the
Congress which shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on initiative and referen
dum. SENATE HOUSE OF REPRESENTATIVES Composition: Twenty-four (24), Composition:
not more than 250 members, elected at large by the qualified voters unless othe
rwise provided by law, consisting of the Philippines, as may be provided of: by
law. a. District Representatives— elected from legislative districts apportioned
among the Qualifications:
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¥say
Term of office: 6 years—shall commence, unless otherwise provided by law, at noo
n on the 30th day of June next following their election. Disqualifications: a. N
o Senator shall serve for more than 2 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. (Se
ction 4, Article VI) b. One who has been declared by competent authority as insa
ne or incompetent c. One who has been sentenced by final judgment for: i. Subver
sion; ii. Insurrection; iii. Rebellion; iv. Any offense for which he has been se
ntenced to a penalty of not more than 18 months; or
c. Sectoral Representatives—1/2
of the seats allocated to party-list representatives shall be filled, as provide
d by law, by selection or election from the:
i. ii. iii. iv. v. vi. Labor; Peasant; Urban poor; Indigenous cultural communiti
es; Women; Youth; and Such other sectors as may be provided by law, except the r
eligious sector.
vii.
Term of office: three (3) years, which shall begin, unless otherwise provided by
law, at noon of June 30 next following their election. Qualifications: 1. Natur
al-born citizen of the Philippines; 2. At least 25 years of age on the day of th
e election; 3. Able to read and write; 4. Registered voter in the district in wh
ich he shall be elected except the party-list representatives; 5. Resident of th
e district for a period of not less than 1 year immediately preceding the day of
the election;
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¥say
a. Natural-born citizen of the Philippines; b. At least thirty-five (35) years o
f age on the day of the election; c. Able to read and write; d. Registered voter
; e. Resident of the Philippines for not less than 2 years immediately preceding
the day of the election.
provinces, cities and the Metropolitan Manila area. (Sec. 5, par. 1, Article VI)
b.
Party-List Representatives— constitutes 20% of the total number of representativ
es elected through a party-list system of registered national, regional and sect
oral parties or organization.
v. A crime involving moral turpitude, unless given plenary pardon or granted amn
esty (Section 12, BP 881— Omnibus Election Code) Electoral Tribunal: Senate Elec
toral Tribunal (SET)—composed of three (3) Supreme Court Justices and six (6) Se
nators—to act as sole judge of all contest relating to election returns and qual
ifications of their respective members. Removal: Thru EXPULSION by the Senate wi
th the concurrence of two-thirds (2/3) of all its members (Section 16, par. 3, A
rticle VI)
6. For party-list representatives or organizations: a. Natural-born citizen of t
he Philippines; b. A registered voter; c. A resident of the Philippines for a pe
riod of not less than one (1) year immediately preceding the day of the election
; d. Able to read and write; e. A bona fide member of the party or organization
which he seeks to represent for at least ninety (90) days preceding the day of t
he election; f. At least 25 years of age on the day of the election; g. The poli
tical party, sector, organization or coalition must represent the marginalized a
nd underrepresented groups. h. Must comply with the declared policy of enabling
Filipino citizens belonging to marginalized and underrepresented sectors to be e
lected to the House of Representatives; i. Religious sector may not be represent
ed in the party-list system; j. A party or an organization must not be disqualif
ied under Sec. 6, RA 7941; k. The party or organization must not be an adjunct o
f, or a project organized or an entity funded or assisted by the government; l.
The party must not only comply with the requirements
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¥say
Disqualifications: a. Shall not serve for more than three (3) consecutive terms.
(Sec. 7, Article VI) b. One who has been declared by competent authority as ins
ane or incompetent c. One who has been sentenced by final judgment for: i. Subve
rsion; ii. Insurrection; iii. Rebellion; iv. Any offense for which he has been s
entenced to a penalty of not more than 18 months; or v. A crime involving moral
turpitude, unless given plenary pardon or granted amnesty (Section 12, BP
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Manner of Voting: (Sec. 10, RA 7941) Every voter shall be entitled to two (2) vo
tes: (1) for candidate for member of the HOR in his legislative district, and (2
) for the party, organizations, or coalition he wants represented in the HOR: pr
ovided, that a vote cast for a party, organizations, or coalition not entitled t
o be voted for shall not be counted.
¥say
of the law; its nominees must likewise do so; m. Not only the candidate party or
organization must represent marginalized and underrepresented sectors; so also
must its nominees; and n. The nominee must likewise be able to contribute to the
formulation and enactment of appropriate legislation that will benefit the nati
on as a whole.
881—Omnibus Election Code) d. For Party-List Representatives: i. It is a religio
us sect or denomination, organization or association organized for religious pur
poses; ii. It advocates violence or unlawful means to seek its goal; iii. It is
a foreign party or organization; iv. It is receiving support from any foreign go
vernment, foreign political party, foundation, organization, whether directly or
through any of its officers or members or indirectly through third parties for
partisan election purposes; v. It violates or fails to comply with laws, rules o
r regulations relating to elections; vi. It declares untruthful statement in its
petition; vii. It has ceased to exist for at least one (1) year; viii. It fails
to participate in the last two preceding elections or fails to obtain at least
2% of the votes cast under the party-list system in the two preceding elections
for the constituency in which it had registered. (Section 6, RA
7941)
Canvassing Board: COMELEC Electoral Tribunal: House of Representative Electoral
Tribunal (HRET)—composed of nine
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Page 1617/12/2008
¥say
(9) members: 3 Supreme Court Justices and six (6) members of the Congress–Sectio
n 17,
Art. VI
Removal: EXPULSION by the House with the concurrence of two-thirds (2/3) of all
its members (Sec. 16, par. 3, Art. VI)
Vacancy—Section 9, Article VI—In case of vacancy in the Senate or in the House o
f Representatives, a special election may be called to fill such vacancy in the
manner prescribed by law, but the Senator or Member of the House of Representati
ves thus elected shall serve only for the unexpired term. Salaries—Section 10, A
rticle VI—The salaries of Senators and Members of the House of Representatives s
hall be determined by law. No increase in said compensation shall take effect un
til after the expiration of the full term of all the Members of the Senate and t
he House of Representatives approving such increase. Inhibitions and Prohibition
s: a. Incompatible office—may not hold office or employment in government during
his term without forfeiting his seat; b. Forbidden office—may not be appointed
to any office created or compensation thereof increased during the term for whic
h he was elected. (Sec. 13, Article VI) c. Cannot appear as counsel before any c
ourt or before the Electoral Tribunals, quasi-judicial or other administrative b
odies; d. Shall not, directly or indirectly, be financially interested in any co
ntract with, franchise or special privilege granted by the government; e. Shall
not intervene in any matter before any office in government for his pecuniary be
nefit or where he may be called upon to act on account of his office (Sec. 14, A
rticle VI). CONFLICT OF INTEREST—all members of the Senate and the HOR shall, up
on assumption of office, make a full disclosure of their financial and business
interests. They shall notify the House concerned of a potential conflict of inte
rest that may arise from the filing of a proposed legislation of which they are
author.
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¥say
Incompatible Office—no Senator or member of the House of Representatives may hol
d any other office or employment in the Government, or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporation
s or their subsidiaries, during his term without forfeiting his seat. The purpos
e is to prevent him from owing loyalty to another branch of the government, to t
he detriment of the independence of the legislature and the doctrine of separati
on of powers. The prohibition is not absolute, what is not allowed is the simult
aneous holding of that office and the seat in the Congress. Any legislator may h
old another office or employment in the government provided he forfeits his posi
tion in the Congress. Forfeiture of the legislator’s seat, or cessation of his t
enure, shall be automatic upon holding of the incompatible office.
With this, even if the member of the Congress is willing to forfeit his seat the
rein, he may not be appointed to any office in the government that has been crea
ted or the emoluments thereof have been increased during his term. Such a positi
on is forbidden office. The purpose is to prevent trafficking in public office.
The provision does not apply to elective offices. The appointment of the member
of the Congress to the forbidden office is not allowed only during the term for
which he was elected, when such office was created or its emoluments were increa
sed. After such term, and even if the legislator is reelected, the disqualificat
ion no longer applies and he may therefore be appointed to the office. Privilege
s: a. Freedom from arrest—while Congress is in session for offense punished by n
ot more than 6 years imprisonment (Article 145, RPC; Sec. 11, Art. VI) b. Speech
and Debate clause—not to be questioned nor held liable in any other place for a
ny speech or debate in Congress or in any committee thereof. (Section 11, Articl
e VI) (See discussion under Parliamentary Immunity)
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Forbidden Office—no Senator or member of the House of Representatives shall be a
ppointed to any office, which may have been created, or the emoluments thereof i
ncreased during the term for which he was elected.
¥say
Composition and Qualifications—they are exclusive under the principle of expres
sio unios est exclusio alterius, with the result that it is not competent for th
e Congress to provide by mere legislation for additional qualifications no matte
r how relevant they may be. (Justice Isagani Cruz, Philippine Political Law) In
Marcos vs. COMELEC, 248 SCRA 300, the Court upheld the qualification of Imelda M
arcos, despite her own declaration in her certificate of candidacy that she had
resided in the district for only seven (7) months, because of the following: a.
A minor follows the domicile of his parents; Tacloban became her domicile of ori
gin by operation of law when her father brought their family to Leyte; b. Domici
le of origin is lost only when there is actual removal or change of domicile, a
bona fide intention of abandoning the former residence and establishing a new on
e, and acts which correspond with the purpose; in the absence of clear and posit
ive proof of the concurrence of all these, the domicile of origin should be deem
ed to continue; c. The wife does not automatically gain the husband’s domicile b
ecause the term “residence” in Civil Law does not mean the same thing in Politic
al Law; when Mrs. Marcos married Ferdinand Marcos in 1954, she kept her domicile
of origin and merely gained a new home, not a domicilium necessarium; d. Even a
ssuming that she gained a new domicile after her marriage and acquired the right
to choose a new one only after her husband died, her acts following her return
to the country clearly indicate that she chose Tacloban, her domicile of origin,
as her domicile of choice. Coquilla vs. COMELEC, G.R. No. 151914, July 31, 2002
, the SC ruled that he petitioner had not been a resident of Oras, Eastern Samar
, for at least one year prior to the May 14, 2001 elections. Although Oras was h
is domicile of origin, petitioner lost the same when he became a US citizen afte
r enlisting in the US Navy. From then on, until November 10, 2000, when he re-ac
quired Philippine citizenship through repatriation, petitioner was an alien with
out any right to reside in the Philippines. In Caasi vs. COMELEC, it was held th
at the immigration to the US by virtue of the acquisition of a “green card” cons
titutes abandonment of domicile in the Philippines.
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¥say
Nature of Party-List System 1. The party-list system is a social tool designed n
ot only to give more law to the great masses of our people who have less in life
, but also to enable them to become veritable lawmakers themselves, empowered to
participate directly in the enactment of laws designed to benefit them. It inte
nds to make the marginalized and the underrepresented not merely passive recipie
nts of he State’s benevolence, but active participants in he mainstream of repre
sentative democracy. Thus, allowing all individuals and groups, including those
which now dominate district elections, to have the same opportunity to participa
te in party-list elections would desecrate this lofty objective and mongrelize t
he social justice mechanisms into an atrocious veneer for traditional politics.
2. Crucial to the resolution of this case is the fundamental social justice prin
ciple that those who have less in life should have more in law. The party-list s
ystem is one such tool intended to benefit those who have less in life. It gives
the great masses of our people genuine hope and genuine power. It is a message
to the destitute and the prejudiced, and even those in the underground, that cha
nge is possible. It is an invitation for them to come out of their limbo and sei
ze the opportunity. Clearly, therefore, the Court cannot accept the submissions
xxx that the party-list system is, without any qualification, open to all. Such
position does not only weaken the electoral chances of the marginalized and unde
rrepresented; it also prejudices
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REPUBLIC ACT 7941— AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIV
ES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR
¥say
them. It would gut the substance of the party-list system. Instead of generating
hope, it would create a mirage. Instead of enabling the marginalized, it would
further weaken them and aggravate their marginalization. (Ang Bagong Bayani-OFW
Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001) Inviolable parameters t
o determine the winners in Party-List election: 1. The Twenty Percent (20%) Allo
cation—the combined number of all party-list congressmen shall not exceed twenty
percent (20%) of the total membership of the House of Representative, including
those elected under the party-list;
2. The Two Percent (2%) Threshold—only those garnering a minimum of 2% of
the total valid votes cast for the party-list system are qualified to have a sea
t in the HOR;
3. The Three (3) Seat Limit—each qualified party, regardless of the number of
4. The Proportional Representation—the additional seats which a qualified party
is entitled to shall be computed “in proportion to their total number of votes”.
(Veterans Federation Party vs. COMELEC, G.R. No. 136781, October 6, 2000) Guide
lines for Screening Party-List Participants 1. The political party, sector, orga
nization or coalition must represent the marginalized and underrepresented group
s identified in Section 5 of RA 7941. In other words—it must show in its constit
ution, by-laws, articles of incorporation, history, platform of government and t
rack record—that it represents and seeks to uplift marginalized and underreprese
nted sectors. Verily, majority of its membership should belong to the marginaliz
ed and underrepresented. And it must demonstrate that in a conflict of interest,
it has chosen or likely to choose the interest of such sectors.
2. They must comply with the declared statutory policy of enabling “Filipino cit
izens belonging to marginalized and underrepresented sectors x x x to be elected
to the House of Representatives.” In other words, while they are not disqualifi
ed
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votes it actually obtained, is entitled to a maximum of 3 seats; that is, one (1
) qualifying and two (2) additional seats.
¥say
merely on the ground that they are political parties, they must show, however, t
hat they represent the interests of the marginalized and underrepresented.
3. In view of the objections directed against the registration of Ang Buhay Haya
ang
4. A party or organization must not be disqualified under section 6 of RA 7941 w
hich enumerates the grounds for disqualification. 5. The party or organization m
ust not be an adjunct of, or a project organized or an entity funded or assisted
by the government. The party or organization must be a group of citizens, organ
ized by citizens and operated by citizens. It must be independent of the governm
ent. 6. The party must not only comply with the requirements of the law; its nom
inees must likewise do so; 7. Not only the candidate party or organization must
represent marginalized and underrepresented sectors; so also must its nominees;
and
8. The nominee must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole. (A
ng Bagong Bayani—OFW Labor Party vs. COMELEC, G.R. No. 147589, June 26, 2001) Ak
lat vs. COMELEC, G.R. No. 162203, April 24, 2004, the COMELEC has the power to p
romulgate the necessary rules and regulations to enforce and administer election
laws. This power includes the determination, within the parameters fixed by law
, of appropriate periods for the accomplishment of certain pre-election acts lik
e filing petitions for registration under the party-list system. This is exactly
what the COMELEC did when it issued its Resolution No. 6320 declaring September
30, 2003, as the deadline for filing petitions for registration under the party
-list system.
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¥say
Yumabong, which is allegedly a religious group, the Court notes the express cons
titutional provision that the religious sector may not be represented in the par
ty-list system. The prohibition is on any religious organization registering as
political party not against a priest running as a candidate.
Choosing Party-List Representatives—they are proclaimed by the COMELEC based on
the list of names submitted by the respective parties, organizations or coalitio
ns to the COMELEC according to their ranking in the list. Effect of change of af
filiation— Any elected party-list representative who changes his political party
or sectoral affiliation during his term of office shall forfeit his seat; provi
ded that if he changes his political party or sectoral affiliation within 6 mont
hs before an election, he shall not be eligible for nomination as party-list rep
resentative under his new party or organization. Vacancy: In case of vacancy in
the seat reserved for party-list representatives, the vacancy shall be automatic
ally filled by the next representative from the list of nominees in the order su
bmitted to the COMELEC by the same party, organization or coalition, who shall s
erve for the unexpired term. If the list is exhausted, the party, organization o
r coalition concerned shall submit additional nominees. Citizen’s Battle Against
Corruption (CIBAC) vs. COMELEC, G.R. No. 172103, April 13, 2007, the correct fo
rmula in ascertaining the entitlement to additional seats of the first party and
other qualified party-list groups was clearly explicated in Veterans wherein th
e multiplier used was the “number of additional seats allocated to the first par
ty.” LABO DOCTRINE—doctrine of the rejection of the second placer—not applicab
le in Party-List System Apportionment of legislative Districts: (Section 5, para
graphs 3 and 4, Article VI) Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent territory. Each city with a popul
ation of at least two hundred fifty thousand (250,000), or each province, shall
have at least one representative. This is intended to prevent gerrymandering. Ge
rrymandering—the creation of representative districts out of separate portions o
f territory in order to favor a candidate. Within three (3) years following the
return of every census, the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section.
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¥say
In Montejo vs. COMELEC, it was held that while concededly the conversion of Bili
ran into a regular province brought about an imbalance in the distribution of vo
ters and inhabitants in the 5 districts of Leyte, the issue involves reapportion
ment of legislative districts, and Petitioner’s remedy lies with Congress. This
Court cannot itself make the reapportionment as petitioner would want. SESSIONS
(Section 14, Article VI)
1. Regular—convene once every year. The 4th Monday of July until 30 days before
the start of new regular session (Section 14, Article VI)—adjournment is allowed
—30 days before the opening of its next regular session—this is compulsory;
2. Special—
a. Called by the President (Sec. 15, Article VI)—the President has the power
to call special session; without the call of President—impeachment
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Mariano vs. COMELEC, G.R. No. 118627, March 7, 1995, the Court held that the Con
stitution does not preclude Congress from increasing its membership by passing a
law other than a general apportionment law. In fact, in Tobias vs. Abalos, 239
SCRA 106, the case involved the division of San Juan and Mandaluyong into two (2
) representative districts. With the elevation of Mandaluyong from municipality
into a highly urbanized city, both Mandaluyong and San Juan were recognized by R
A 7675 as distinct representative districts. This was challenged on the ground t
hat RA 7675 did not mention any census indicating that San Juan and Mandaluyong
had the minimal requirement of 250,000 inhabitants needed to constitute a distri
ct. Neither did the challengers, however, give any evidence that the respective
populations of each of the two political units were less than the number require
d. Hence the court presumed that Congress had made due consideration of the mini
mum requirement. It ruled that reapportionment of legislative districts may be m
ade through a special law. To hold that reapportionment can be made only through
a general law would create an inequitable situation where a new city or provinc
e created by Congress will be denied legislative representation for an indetermi
nate period of time. That intolerable situation would deprive the people in the
city or province a particle of that sovereignty. Sovereignty cannot admit subtra
ction; it is indivisible. It must be forever whole or it is not sovereignty.
¥say
b. Due to a vacancy in the offices of the President and VP at 10:00 am on
the 3rd day after the vacancies (Sec. 10, Article VII) c. Decide on the disabili
ty of the President because the majority of all the members of the Cabinet has d
isputed his assertion that he is able to discharge the powers and duties of his
office (Section 11, par. 3, Article VII) d. To revoke or extend the Presidential
Proclamation of Martial Law or suspension of the Writ of Habeas Corpus (Section
18, article VII)
3. Joint—
a. Voting separately— i. Choosing the President (Section 4, Article VII);
iii. Confirming nomination of Vice-President (Section 9, Article VI); iv. Declar
ing existence of state of war (Section 23, Article VI); and v. Proposing constit
utional amendments (Section 1, Article XVII). b. Voting jointly— i. To revoke or
extend proclamation suspending the privilege of writ of habeas corpus (Section
18, Article VII); and ii. To revoke or extend declaration of martial law (Sectio
n 18, Article VII).
4. Adjournment—Neither Chamber during session, without consent of the other,
adjourn for more than 3 days, nor any other place than that in which the two Cha
mbers shall be sitting (Section 16, par. 5, Article VI) Adjournment Sine Die—the
interval between the session of one Congress and that of another; congress must
“stop the clock” at midnight of the last day of session in order to validly pas
s a law
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ii. Determine the President’s disability (Section 11, Article VII);
¥say
The Senate is a continuing body while the House is not.
DISCIPLINE OF MEMBERS (Section 16, par. 3, Article VI) Each house may punish its
members for disorderly behavior and, with concurrence of 2/3 of all its members
, suspend (for not more than 60 days) or expel a member. The interpretation of d
isorderly behavior—is the prerogative of the House concerned and cannot be judic
ially reviewed. In Osmeña vs. Pendatun, 109 Phil 863, the determination of the a
cts which constitutes disorderly behavior is within the full discretionary autho
rity of the House concerned, and the Court will not review such determination, t
he same being a political question. Members of Congress may also be suspended by
the Sandiganbayan or by the Office of the Ombudsman. (Paredes vs. SAndiganbayan
, G. R. No. 118364, August 10, 1995; Santiago vs. Sandiganbayan, G.R. No. 128055
, April 18, 2001) The suspension in the Constitution is different from the suspe
nsion prescribed in RA 3019, Anti-Graft and Corrupt Practices Act. The latter is
not a penalty but a preliminary preventive measure and is not imposed upon the
petitioner for misbehavior as a member of Congress. (Paredes vs. Sandiganbayan,
G.R. No. 118364, August 10, 1995) In Miriam Defensor-Santiago vs. Sandiganbayan,
G.R. No. 128055, April 18, 2001, Section 13 of RA 3019 (where it appears to be
a ministerial duty of the court to issue the order of suspension upon a determin
ation of the validity of the criminal information filed before it) does not stat
e that the public officer should be suspended only in the office where he is all
eged to have committed the acts charged. Furthermore, the order of suspension pr
ovided in RA 3019 is distinct from the power of Congress to discipline its own r
anks. Neither does the order of suspension encroach upon the power of Congress.
The doctrine of separation of powers, by itself, is not deemed to have effective
ly excluded the members of Congress from RA 3019 or its sanctions.
PARLIAMENTARY IMMUNITY
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¥say
A Senator or member of the HOR shall, in all offenses punishable by not more tha
n 6 years imprisonment, be privileged from arrest while the Congress is in sessi
on. No member shall be questioned nor be held liable in any other place for any
speech or debate in the Congress or in any other committee thereof. Two (2) Kind
s: a. Freedom from arrest or detention—while Congress is in session for offense
punished by not more than 6 years imprisonment (Article 145, RPC; Sec. 11, Art.
VI)—it is intended to ensure representation of the constituents of the member of
the Congress by preventing attempts to keep him from attending its sessions. Th
e present Constitution adheres to the restrictive rule minus the obligation of C
ongress to surrender the Member of the House of Representatives to the custody o
f law. The requirement that he should be attending sessions or committee meeting
s has also been removed. For relatively minor offenses, it is enough that Congre
ss is in session. (People vs. Jalosjos, 324 SCRA 689, February 20, 2000) “in ses
sion”—not day to day; refers to the entire duration of the session from its open
ing until its adjournment.
b. Speech and Debate clause—not to be questioned nor held liable in any
other place for any speech or debate in Congress or in any committee thereof. (S
ection 11, Article VI)—it enables the legislator to express views bearing upon t
he public interest without fear of accountability outside the halls of the legis
lature for his inability to support his statements with the usual evidence requi
red in the court of justice. “in any other place”—but not in the Senate or Congr
ess itself Section 16, par. 3, Article VI—Each House may determine the rules of
its proceedings, punish its Members for disorderly behavior, and, with the concu
rrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspen
sion, when imposed, shall not exceed 60 days. People vs. Jalosjos, 324 SCRA 689,
the immunity from arrest or detention of Senators and Members of the HOR arises
from a provision of the Constitution. The history of the provision shows that t
he privilege has always been granted in a restrictive sense. The provision grant
ing an exemption as a special privilege cannot be extended
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¥say
beyond the ordinary meaning of its term. It may not be extended by intendment, i
mplication or equitable considerations. x x x Because of the broad coverage of f
elony and breach of the peace, the exemption applied only to civil arrests. A co
ngressman like the accused-appellant, convicted under Title 11 of the Revised Pe
nal Code could not claim parliament immunity from arrest. He was subject to the
same general laws governing all persons still to be tried or whose convictions w
ere pending appeal. The present Constitution adheres to the same restrictive rul
e minus the obligation of Congress to surrender the subject Congressman to the c
ustody of law. The requirement that he should be attending sessions or committee
meetings has also been removed. For relatively minor offenses, it is enough tha
t Congress is in session. Accused-appellant argues that a member of Congress’ fu
nction to attend sessions is underscored by Section 16 (2), Article VI of the Co
nstitution which states that— (2) A majority of each House shall constitute a qu
orum to do business, but a smaller number may adjourn from day to day and may co
mpel the attendance of absent Members in such manner, and under such penalties,
as such House may provide. However, the accused-appellant has not given any reas
on why he should be exempted from the operation of Section 11, Article VI. The m
embers of Congress cannot compel absent members to attend sessions if the reason
for absence is legitimate a one. The confinement of a Congressman charged with
a crime punishable by imprisonment of more than 6 years is not merely authorized
by law, it has constitutional foundations. When the voters of his district elec
ted the accused-appellant to Congress, they did so with full awareness of the li
mitations on his freedom of action. They did so with the knowledge that he could
achieve only such legislative results which he could accomplish within the conf
ines of prison. To give a more drastic illustration, if voters elect a person wi
th full knowledge that he is suffering from a terminal illness, they do so knowi
ng that any time, he may no longer serve his full term in office. EXECUTIVE PRIV
ILEGE; Varieties of: It is the power of the government to withhold information f
rom the public, the courts, and the Congress. (Schwartz)
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¥say
It is also the right of the President and high-level executive branch officers t
o withhold information from Congress, the courts, and ultimately the public. (Ro
zell) 1. State secret privilege—invoked by Presidents on the ground that the inf
ormation is of such nature that its disclosure would subvert crucial military or
diplomatic objective. 2. Informer’s privilege—privilege of the government not t
o disclose the identity of persons who furnish information in violations of law
to officers charged with the enforcement of the law. 3. Generic privilege—for in
ternal deliberations has been said to attach to intragovernmental documents refl
ecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. In determi
ning the validity of a claim of privilege, the question that must be asked is no
t only whether the requested information falls within one of the traditional pri
vileges, but also whether that privilege should be honored in a given procedural
setting. Senate vs. Ermita, G.R. No. 169777, April 20, 2006, executive privileg
e, whether asserted against Congress, the courts, or the public, is recognized o
nly in relation to certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may be valid or
not depending on the ground invoked to justify it and the context in which it i
s made. Noticeably absent is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact of being executive offic
ials. Indeed, the extraordinary character of the exemptions indicates that the p
resumption inclines heavily against executive secrecy and in favor of disclosure
. General rule: DISCLOSURE—(policy on transparency) Exceptions: Disclosure woul
d subvert crucial diplomatic or military objective. 1. Supreme Court 2. Executiv
e Secretary 3. President—must invoke executive privilege
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¥say
Composition: Senate President—acts as Ex-Officio Chairman 12 Senators and 12 M
embers of the House of Representatives, elected by each house on the basis of pr
oportional representation from the political parties and organizations registere
d under the party-list system represented therein. Chairman shall not vote exce
pt in case of a tie. In Guingona vs. Gonzales, 214 SCRA 789, a political party m
ust have at least two (2) elected senators for every seat in the Commission on A
ppointments. Thus, where there are two or more political parties represented in
the Senate, a political party/coalition with a single senator in the Senate cann
ot constitutionally claim a seat in the Commission on Appointments. It is not ma
ndatory to elect 12 senators to the Commission; what the Constitution requires i
s that there must be at least a majority of the entire membership.
POWERS OF CONGRESS
Classification:
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Commission on Appointments—(Section 18, Article VI) The Commission is independen
t of the two Houses of Congress; its employees are not, technically, employees o
f Congress. It has the power to promulgate its own rules of proceedings. Powers:
Act on all appointments submitted to it within 30 session days of Congress from
their submission; to act on Presidential appointments; has power to promulgate
its own rules of proceedings.
¥say
PROTOCOL DE CLOTURE—a final act; an instrument which records the winding up of t
he proceedings of a diplomatic conference and usually includes a reproduction of
the text of treaties, conventions, recommendations and other acts agreed upon a
nd signed by the plenipotentiaries attending the conference. It is not the treat
y itself. It is rather a summary of the proceedings of a protracted conference w
hich may have taken place over several years. It will not require the concurrenc
e of the Senate. The documents contained therein are deemed adopted without need
for ratification. (Tañada vs. Angara, 272 SCRA 18, 1997)
1. LEGISLATIVE—
General plenary power; Specific power of appropriation; Taxation and expro
priation; Legislative investigations (Section 21, Art. VI); and Question hou
r (Section 22, Art. VI). 2. NON-LEGISLATIVE—includes power to: Canvass preside
ntial election (Section 4, Art. VII); Declare the existence of state of war (S
ection 23, par.1, Art. VI); Exercise delegation of emergency powers; Call sp
ecial election for President and VP (Section 10, Art. VII); Give concurrence t
o treaties and amnesties (Sections 19 and 21, Art. VII); Propose constitutiona
l amendments (constituent power) (Sections 1-2, Art. XVII); Confirm certain ap
pointments (Section 9 and 16, Art. VII); Impeach (Section 2, Art. XI); Decid
e the disability of President because majority of the Cabinet disputes his asser
tion that he is able to discharge his duties (Section 11, Art. VII); Revoke or
extend proclamation of suspension of privilege of writ of habeas corpus or decl
aration of martial law (Section 18, Art. VII); Set the rules regarding the uti
lization of natural resources (Section 2, Art. XII).
Limitations on the Powers of Congress: 1. SUBSTANTIVE— a. Express:
i. ii. iii. iv. v. Bill of Rights (Article III); On Appropriations (Sections 25
and 29 paragraphs 1 and 2, Article VI); On taxation (Sections 28 and 29, paragra
ph 3, Article VI); On Constitutional appellate jurisdiction of SC (Section 30, A
rticle VI); No law granting title of royalty or nobility shall be passed (Sectio
n 31, Article VI); vi. No specific funds shall be appropriated or paid for use o
r benefit of any religion, sect, etc., except for priests, etc., assigned to AFP
, penal institutions, etc. (Sections 29, paragraph 2, Article VI).
b. Implied:
i. Prohibition against irrepealable laws; ii. Non-delegation of powers.
2. PROCEDURAL—
a. Only one subject, to be stated in the title of the bill (Sec. 26, par. 1, Art
icle VI); 176
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¥say
b. Three (3) readings on separate days; printed copies of the bill in its final
form distributed to members 3 days before its passage, except if President certi
fies to its immediate enactment to meet a public calamity or emergency; upon its
last reading, no amendment allowed and the vote thereon taken immediately and t
he yeas and nays entered into the Journal (Section 26, paragraph 2, Article VI;
c. Appropriation, revenue and tariff bills shall originate exclusively in the Ho
use of Representatives.
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¥say
How a bill becomes a law? 1. Approved and signed by the President; 2. Presidenti
al veto overridden by 2/3 votes of all the members of both Houses; 3. Failure of
the President to veto the bill and to return it with his objections to the Hous
e where it originated, within 30 days after the date of receipt; 4. A bill calli
ng a special election for President and Vice-President under Section 10, Article
VII becomes a law upon third and final reading. Bills exclusively originated in
the House of Representative: (APRIL) 1. Appropriation bills; 2. Private bills;
3. Revenue or tariff bills; 4. Bills authorizing Increase in public debts; and 5
. Bills of Local application. However, although these bills are required to orig
inate exclusively in the House of Representatives, the Senate may propose or con
cur with amendments (Sec. 24, Art. VI). Amendments may include amendments by sub
stitution. (Tolentino vs. Secretary of Finance) What is required to originate ex
clusively in the House of Representatives is the bill, not the law itself. (Tole
ntino vs. Secretary of Finance) If the nays prevail, then it is about time that
a new bicameral committee be created until the bill will be accepted by both ho
uses. (Bill is not killed.) If yeas prevail, the bill is signed by the Executiv
e Secretary. Two (2) Rules to be observed—Section 26, Article VI: 1. One (1) sub
ject, One (1) Title Rule—to prevent RIDERS—totally unrelated matters 2. Three (3
) Readings on Separate Days Except: when the President certifies to the necessit
y of the immediate enactment of the bill to meet the public calamity and emergen
cy political question—not subject to judicial review Section 26 (par. 1), Artic
le VI—every bill passed by the Congress shall embrace only one subject which sha
ll be expressed in the title thereof.
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¥say
Literal interpretation—the subject or title need not be an index or catalogue.
It must be germane and related to the subject matter. Agripino A. De Guzman, Jr.
, et al. vs. COMELEC, G.R. No. 129118, July 19, 2000, Section 26 (1), Article VI
is sufficiently complied with where the title is comprehensive enough to embrac
e the general objective it seeks to achieve, and if all the parts of the statute
are related and germane to the subject matter embodied in the title or so long
as the same are not inconsistent with or foreign to the general subject and titl
e. Section 26, par. 2 of Article VI—No bill passed by either House shall become
a law unless it has passed three readings on separate days, and printed copies t
hereof in its final form have been distributed to its Members three days before
its passage, except when the President certifies to the necessity of its immedia
te enactment to meet a public calamity or emergency. ENROLLED BILL DOCTRINE It i
s one duly introduced and finally passed by both houses, authenticated by the pr
oper officer of each, and approved by the President. It is conclusive upon the c
ourts as regards the tenor of the measure passed by Congress and approved by the
President. Once the bill becomes an enrolled bill, it is conclusive upon the co
urt of its due enactment. Courts may no longer validly inquire into the bill bec
ause of the doctrine of separation of powers. Casco (Phil) Chemical Co. vs. Gime
nez, 7 SCRA 347, if a mistake was made in the printing of the bill before it was
certified by Congress and approved by the President, the remedy is amendment or
corrective legislation, not a judicial decree.
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¥say
The objectives of the above provision are: 1. To prevent hodge-podge or log-roll
ing legislation; 2. To prevent surprise or fraud upon the legislature by means o
f provisions in bills of which the titles gave no information, and which might t
herefore be overlooked and carelessly and unintentionally adopted; and 3. To fai
rly appraise the people, through such publication of legislative proceedings as
is usually made, of the subjects of legislation that are being considered, in or
der that they may have opportunity of being heard thereon by petition or otherwi
se if they shall so desire.
The enrolled bill rule rests on the following considerations:
x x x As the President has no authority to approve a bill no passed by Congress,
an enrolled act in the custody of the Secretary of State, and having the offici
al attestations of the Speaker of the House of Representatives, of the President
of the Senate, and of the President of the United States, carries, on its face,
a solemn assurance by the legislative and executive departments of the governme
nt, charged, respectively, with the duty of enacting and executing the laws, tha
t it was passed by the Congress. the respect due to co-equal and independent dep
artments requires the judicial department to act upon the assurance, and to acce
pt, as having passed Congress, all bills authenticated in the manner stated; lea
ving the court to determine, when the question properly arises, whether the Act,
so authenticated, is in conformity with the Constitution. (Marshall Field & Co.
vs. Clark, 143 US 649)
A conference committee may deal generally with the subject matter or it may be l
imited to resolving the precise differences between the two houses. Even where t
he conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be inserted
in to the conference bill. But occasionally it produces unexpected results, res
ults beyond its mandate. These e4xcursions occurs even where the rules impose st
rict limitations on conference committee jurisdiction. This is symptomatic of an
authoritarian power of conference committee. (Philippine Judges Association vs.
Prado, 227 SCRA 703, November 11, 1993) DOCTRINE OF SHIFTING MAJORITY— For each
house to pass a bill, only the votes of the majority of those present in the se
ssion, there being a quorum, is required. Quorum—A majority of each House, but a
smaller number may adjourn from day to day and may compel the attendance of abs
ent members in such manner and under such penalties as such house may determine.
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BICAMERAL CONFERENCE COMMITTEE—the mechanism for compromising differences betwee
n the Senate and the House—capable of producing unexpected result—bill will have
to be sent back to both houses and subject to votation.
¥say
Avelino vs. Cuenco, 83 Phil 17, the basis in determining the existence of a quor
um in the Senate shall be the total number of Senators who are in the country an
d within the coercive jurisdiction of the Senate. Arroyo vs. De Venecia, G.R. No
. 127255, June 26, 1998, the SC declared that the question of quorum cannot be r
aised repeatedly, especially when a quorum is obviously present for the purpose
of delaying the business of the House.
Matters that are required to be entered on the Journal: 1. The yeas and nays on
the 3rd and final reading of a bill; 2. The yeas and nays on any question, at th
e request of 1/5 of the members present; 3. The yeas and nays upon re-passing a
bill over the President’s veto; and 4. The President’s objection to a bill he ha
d vetoed. (Arroyo vs. De Venecia, 277 SCRA 268) Journal entry vs. enrolled bill—
Enrolled bill prevails, except to matters, which under the Constitution, must e
ntered into the Journal. (Morales vs. Subido, 26 SCRA 150) President’s Options:
1. Sign and the bill becomes a law. 2. Vetoes the bill, it does not become a law
. 2/3 votes of all its Members (for Congress to override) 3. Inaction—the bill
automatically becomes a law within 30 days upon receipt of the bill from Congres
s.
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LEGISLATIVE JOURNAL—regarded as conclusive with respect to matters that are requ
ired by the Constitution to be recorded therein. With respect to other matters,
in the absence of evidence to the contrary, the journals have also been accorded
conclusive effects. Thus, in US vs. Pons, this Court spoke of the imperatives o
f public policy for regarding the Journals as “public memorials of the most perm
anent character,” thus: “They should be public, because all are required to conf
orm to them; they should be permanent, that rights acquired today upon the faith
of what has been declared to be law shall not be destroyed tomorrow, or at some
remote period of time, by facts resting only in memory of individuals. (Arroyo
vs. De Venecia, 277 SCRA 268)
¥say
There is no such thing as “pocket veto” here in the Philippines because inactio
n by the President for 30 days never produces a veto even if Congress is in rece
ss. The President must still act to veto the bill and communicate his veto to th
e Congress without need of returning the vetoed bill with his veto message. Pock
et veto occurs when: a. The President fails to act on the bill; b. The reason he
does not return the bill to the Congress is that Congress is not in session. PR
ESIDENTIAL VETO— VETO—Section 27, Article VI 1. General veto of the President—pa
ragraph 1 of Section 27, Article VI 2. Item/Line veto of the President—paragraph
2 of Section 27, Article VI The act of the Executive in vetoing the particular
provisions is an exercise of a constitutionally vested power. But even as the Co
nstitution grants the power, it also provides limitations to its exercise. The v
eto power is not absolute. xxx The OSG is correct when it states that the Execut
ive must veto a bill in its entirety or not at all. He or she cannot act like an
editor crossing out specific lines, provisions, or paragraphs in a bill that he
or she dislikes. In the exercise of the veto power, it is generally veto, howev
er, when it comes to appropriation, revenue or tariff bills, the Administration
needs the money to run the machinery of the government and it can not veto the e
ntire bill even if it may contain objectionable features. The President is, ther
efore, compelled to approve into law the entire bill, including its undesirable
parts. It is for this reason that the Constitution has wisely provided the “item
veto power” to avoid inexpedient riders being attached to an indispensable appr
opriation or revenue measures. The Constitution provides that only a particular
item or items may be vetoed. The power to disapprove any item or items in an app
ropriation bill does not grant the authority to veto a part of an item and to ap
prove the remaining portion of the same item. (Bengzon vs. Drilon, 208 SCRA 133,
April 15, 1992)
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General rule: Selective/partial veto is not allowed. The President may not veto
a provision of the bill without vetoing the whole/entire bill itself. Exception:
Paragraph 2 of Section 27, Article VI—Item/Line veto Only Appropriation, Reven
ue and Tariff Bills (ART)—selective veto is allowed here provided the vetoed bil
l shall not affect the items which was not vetoed.
Exceptions to the Exception: 1. DOCTRINE OF INAPPROPRIATE PROVISION—Section 25 (
2), Article VI A provision that is constitutionally inappropriate for an appropr
iation bill may be singled out for veto even if it is not an appropriation or re
venue item. It was invoked in the case of Gonzalez vs. Macaraig wherein Presiden
t Aquino vetoed a provision of the general appropriation bill. The Supreme Court
ruled in favor of the veto power of the President. Section 25 (2), Article VI—N
o provision or enactment shall be embraced in the general appropriation bill unl
ess it relates specifically to some particular appropriation therein.—Items whic
h the President does not object, otherwise it becomes an inappropriate provision
—it may be treated as an item—subject to the item veto of the President.
2. Executive Impoundment—refusal of the President to spend funds already
allocated by Congress for specific purpose. It is the failure to spend or obliga
te budget authority of any type. This power is derived from Section 38 of the Ad
ministrative Code of 1987 on suspension. Appropriation Reserves— Section 37 of t
he Administrative Code authorizes the Budget Secretary to establish reserves aga
inst appropriations to provide for contingencies and emergencies which may arise
during the year. This is merely expenditure deferral, not suspension, since the
agencies concerned can still draw on the reserves if the fiscal outlook improve
s.
3. Legislative Veto—a congressional veto is a means whereby the legislature can
block or modify administrative action taken under a statute. It is a form of
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¥say
Item—Refers to the particulars, the details, the distinct and severable parts of
the bill. It is an indivisible sum of money dedicated to a stated purpose.
legislative control in the implementation of particular executive action. The fo
rm may either be: a. Negative—subjecting the executive action to disapproval by
Congress; or b. Affirmative—requiring approval of the executive action by Congre
ss. A congressional veto is subject to serious questions involving the separatio
n of powers. Local Chief Executives have veto power except the Punong Barangay.
POWER OF APPROPRIATION— The spending power, called the “power of purse” belongs
to the Congress, subject only to the veto power of the President. it carries wi
th it a power to specify the project or activity to be funded under the appropri
ation law. Appropriations Law—A statute, the primary and specific purpose of whi
ch is to authorize release of public funds from the treasury. The existence of a
ppropriations and the availability of funds are indispensable pre-requisites to
or conditions sine qua non for the execution of government contracts. (COMELEC v
s. Judge Quijano Padilla and Photokina Marketing Corp., G.R. No. 151992, Septemb
er 18, 2000) Classification: 1. General Appropriation Law—passed annually, inten
ded to provide for the financial operations of the entire government during one
fiscal period. 2. Special Appropriation Law—designed for a specific purpose. Imp
lied (Extra-Constitutional) Limitations on Appropriation Power: 1. Must specify
public purpose; and 2. Sum authorized for release must be determinate, or at lea
st determinable. Constitutional Limitations on Special Appropriation Measures: 1
. Must specify public purpose for which the sum was intended; and 2. Must be sup
ported by funds actually available as certified by the National Treasurer or to
be raised by corresponding revenue proposal included therein. Constitutional Rul
es on General Appropriation Laws: Section 25, Article VI
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POWER OF TAXATION Limitations: 1. Rule of taxation shall be uniform and equitabl
e and Congress shall evolve a progressive system of taxation. 2. Charitable inst
itutions, etc., and all lands, buildings and improvements actually, directly and
exclusively used for religious, charitable or educational purposes shall be exe
mpt from taxation. 3. All revenues and assets of non-stock, non-profit education
al institutions used actually, directly and exclusively for educational purposes
shall be exempt from taxes and duties. 4. Law granting tax exemption shall be p
assed only with the concurrence of a majority of all the members of Congress. EL
ECTORAL TRIBUNAL— Section 17, Article V—Senate and House of Representatives—sole
judge of all contest relating to the election returns and qualifications of the
ir respective Members No appeal lies. Appeal is merely statutory. The remedy is
Rule 65, Certiorari (Special Civil Action) based on Grave Abuse of Discretion.
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1. Congress may not increase appropriations recommended by the President for ope
ration of the Government—to prevent big budget deficits; 2. Form, content and ma
nner of preparation of budget shall be provided by law; 3. No provision or enact
ment shall be embraced unless it relates specifically to some particular appropr
iations therein; 4. Procedure for approving appropriations for Congress shall be
the same as that of other departments—to prevent sub rosa appropriations by Con
gress; 5. Prohibition against transfer of appropriations (Doctrine of Augmentati
on), however: a. President; b. Senate President; c. Speaker of the House; d. Chi
ef Justice; and e. Heads of Constitutional Commissions— may, by law, be authoriz
ed to augment any item in the general appropriations law for their respective of
fices from savings in other items of their respective appropriations. 6. Prohibi
tion against appropriations for sectarian benefit; and 7. Automatic re-appropria
tion.
¥say
HRET—although attached to the Congress, has separate and distinct personality. I
t was created as a non-partisan court. It must be independent of Congress and de
void of partisan influence and consideration. Members of HRET, once appointed th
ereto, they shall be accorded thereto of security of tenure to ensure their impa
rtiality and independence. Bondoc vs. Pineda, 201 SCRA 792, “Disloyalty to the p
arty” and “Breach of party discipline” are not valid grounds for the expulsion o
f a member. HRET members enjoy security of tenure; their membership may not be t
erminated except for a just cause such as the expiration of congressional term,
death, resignation from the political party, formal affiliation with another pol
itical party, or removal for other valid causes. Pimentel vs. HRET, G.R. No. 141
489, November 29, 2002, the SC said that even assuming that the party-list repre
sentatives comprise a sufficient number and have agreed to designate common nomi
nees to the HRET and Commission on Appointments, their primary recourse clearly
rests with the House of Representatives and not with the Court. Only if the Hous
e fails to comply with the directive of the Constitution on proportional represe
ntation of political parties in the HRET and Commission on Appointments can the
party-list representatives seek recourse from this Court through judicial review
. Under the doctrine of primary administrative jurisdiction, prior recourse to t
he House is necessary before the petitioners may bring the case to Court. Imelda
Romualdez-Marcos vs. COMELEC, 248 SCRA 300—As to the HRET’s supposed assumption
of jurisdiction over the issue of petitioner’s qualifications after the May 8,
1995 elections, suffice it to say that HRET’s jurisdiction as the sole judge of
all contests relating to the elections, returns and qualifications of members of
Congress begins only after a candidate has become a member of the House of Repr
esentatives (Article VI, Section 17 1987 Constitution). Petitioner not being a m
ember of the House of Representatives, it is obvious that HRET at this point has
no jurisdiction over the question. COMELEC is not ousted of jurisdiction. See a
lso Section 6 of RA 6646. Guerrero vs. COMELEC, 336 SCRA 458 (July 26, 2000)— Wh
ile the Congress is vested with the power to declare valid or invalid certificat
e of candidacy, its refusal to exercise the power following the proclamation and
assumption of Fariñas is a recognition of the jurisdictional boundaries separat
ing the COMELEC and the HRET. Under Article VI, Section 17 of the Constitution,
the HRET has the sole and exclusive
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Page 1867/12/2008
¥say
jurisdiction over all contests relative to the elections, returns and qualificat
ions of members of the House of Representatives. Thus, once a winning candidate
has been proclaimed, taken his oath, and assumed office as a member of the HOR,
COMELEC’s jurisdiction over election contests relating to his elections, returns
and qualifications ends, and the HRET’s own jurisdiction begins. Thus, the COME
LEC’s decision to discontinue exercising jurisdiction over the case is justifiab
le, in deference to the HRET’s own jurisdiction and functions. Appeal from SET o
r HRET Decision The Constitution mandates that the HRET and the SET shall each,
respectively, be the sole judge of all contest relating to the elections, return
s and qualifications of their respective members. The Court has stressed that so
long as the Constitution grants the HRET the power to be the sole judge of all
contests relating to the elections, returns and qualifications of members of the
House of Representatives, any final action taken by the HRET on a matter within
its jurisdiction shall, as a rule, not be reviewed by the Supreme Court. The po
wer granted to the Electoral Tribunal excludes the exercise of any authority on
the part of this Court that would in any wise restricts it or curtail it or even
affect the same. In Robles vs. HRET, the Court has explained that while the jud
gments of the Tribunal are beyond judicial interference, the Court may do so, ho
wever, but only “in the exercise of the SC’s so-called extraordinary jurisdictio
n upon determination that the Tribunal’s decision or resolution was rendered wit
hout or in excess of its jurisdiction, or with grave abuse of discretion, or upo
n a clear showing of such arbitrary and improvident use by the Tribunal of its p
ower as constitutes a denial of due process of law, or upon demonstration of a v
ery clear unmitigated error, manifestly constituting such grave abuse of discret
ion that there has to be remedy for such abuse. The Court does not venture into
the perilous area of correcting perceived errors of independent branches of gove
rnment; it comes in only when it has to vindicate a denial of due process or cor
rect an abuse of discretion so grave or glaring that no less than the Constituti
on itself calls for remedial action. (Libanan vs. HRET, 283 SCRA 520)
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¥say
Section 21, Article VI—The Senate or the HOR or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly publish
ed rules and procedure. The right of persons appearing in or affected by such in
quiries shall be respected. Constitutional limitation on inquiries in aid of le
gislation POWER OF LEGISLATIVE INVESTIGATION—(Section 21, Article VI) Power to c
onduct inquiries in aid of legislation—Investigatorial Power—not absolute; subje
ct judicial review in view of the expanded power of the court to determine wheth
er there has been grave abuse of discretion amounting to lack or excess of juris
diction. Limitations: 1. The inquiry must be in aid of legislation; 2. It must b
e in accordance with duly published rules and procedure of the House concerned;
and 3. The right of persons appearing in or affected by such inquiries shall be
respected. Remedy: invoke the Right against Self-Incrimination Section 21 (Legis
lative investigation) vs. Section 22(Question Hour) 1. Inquiry in aid of legisla
tion—they may not validly refuse to appear: It will impair the work of Congress
It will violate the rights of the people to information on matters of public c
oncern (Section 7, Article III) 2. Members of the executive cabinet in view of E
O 464 These two (2) sections should not be considered as pertaining to the same
power of Congress. One specifically relates to the power to conduct inquiry in
aid of legislation, the aim of which is to elicit information that may be used f
or legislation, while the other pertains to the power to conduct a question hour
, the objective of which is to obtain information in pursuit of Congress’ oversi
ght function. Section 21 (Legislative investigation) Section 22(Question Hour)
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¥say
1. Any person may appear 2. The Committees conduct the investigation 3. The subj
ect matter is any matter for the purpose of legislation 4. Appearance is mandato
ry
1. Only department head may appear 2. The entire body conduct the investigation
3. The subject matters are matters related to the department only 4. Appearance
is Discretionary
Senate vs. Ermita, G.R. No., 169777, April 20, 2006, while attendance to Congres
sional hearings is discretionary on the part of the department heads during “que
stion hour,” such is not in the case in inquiries in aid of legislation, except
upon a valid and express claim of “executive privilege.” The principle of separa
tion of powers is the reason why executive officials may not be compelled to att
end hearings when Congress exercises its oversight functions. Though, this is no
t the case when the Congress exercises its power of inquiry in aid of legislatio
n. Sections 21 and 22 of Article VI, therefore, while closely related and comple
mentary to each other, should not be considered as pertaining to the same power
of Congress. one specifically relates to the power to conduct an inquiry in aid
of legislation, the aim of which is to elicit information that may be used for l
egislation, while the other pertains to the power to conduct a question hour, th
e object of which is to obtain information in pursuit of Congress’ oversight fun
ction. Sabio vs. Sen. Gordon, G.R. No. 174340, October 17, 2006, the Congress’ p
ower of inquiry, being broad, encompasses everything that concerns the administr
ation of existing laws as well as proposed or possibly needed statutes. It even
extends to government agencies created by Congress and officers whose positions
are within the power of Congress to regulate or even abolish. A mere provision o
f law cannot pose a limitation to the broad power of Congress, in the absence of
any constitutional basis.
QUESTION HOUR—integral in a parliamentary government; the heads of departments m
ay, upon their own initiative, with the consent of the President, or upon the re
quest of either house, as the rules of each house shall provide, appear before a
nd be heard by such house on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the Speaker of t
he House at least 3 days before their scheduled appearance. Interpolations shall
not be limited to written
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Page 1897/12/2008
¥say
questions, but may cover matters related thereto. When the scrutiny of the State
or the public interest so requires, the appearance shall be conducted in execut
ive session
Congressional Oversight Functions (Makalintal vs. COMELEC, G.R. No. 157013, July
10, 2003) It embraces all activities undertaken by Congress to enhance its unde
rstanding of and influence over the implementation of legislation it has enacted
. Clearly, oversight concerns post-enactment measures undertaken by Congress: a.
To monitor bureaucratic compliance with program objectives; b. To determine whe
ther agencies are properly administered; c. To eliminate executive waste and dis
honesty; d. To prevent executive usurpation of authority; and e. To assess execu
tive conformity with the congressional perception of public interest. The power
of oversight has been held to be intrinsic in the grant of legislative power its
elf and integral to the checks and balances inherent in a democratic system of g
overnment. The oversight power has also been used to ensure the accountability o
f regulatory commissions like the SEC. Unlike other ordinary administrative agen
cies, these bodies are independent from the executive branch and are outside the
executive department in the discharge of their functions.
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Page 1907/12/2008
Standard Chartered Bank vs. Senate Committee on Banks, G.R. No. 167173, December
27, 2007, the mere filing of a criminal or an administrative complaint before a
court or a quasi-judicial body should not automatically bar the conduct of legi
slative investigation. Otherwise, it would be extremely easy to subvert any inte
nded inquiry by Congress through the convenient ploy of instituting a criminal o
r administrative complaint.
¥say
Arnault vs. Nazareno, 87 Phil. 29—the inquiry, to be within the jurisdiction of
the legislative body making it, must be material or necessary to the exercise of
a power in it vested by the Constitution, such as to legislate or to expel a me
mber. (The power to conduct Inquiry is integral and implied of legislative power
)
It is based primarily on the power of appropriation of Congress. xxx But legisla
tive scrutiny does not end in budget hearings. Congress can ask the heads of dep
artments to appear before and be heard by either the House of Congress on any ma
tter pertaining to their department. Likewise, Congress exercises legislative sc
rutiny thru its power of confirmation to find out whether the nominee possesses
the necessary qualifications, integrity and probity required of all public serva
nts. b. Congressional investigation—involves a more intense digging of facts. It
is recognized under Section 21, Article VI. Even in the absence of constitution
al mandate, it has been held to be an essential and appropriate auxiliary to the
legislative functions.
c. Legislative supervision—it connotes a continuing and informed awareness on
the part of congressional committee regarding executive operations in a given ad
ministrative area. It allows Congress to scrutinize the exercise of delegated la
w-making authority, and permits Congress to retain part of that delegated author
ity. Congress exercises supervision over the executive agencies through its veto
power. It typically utilizes veto provisions when granting the President or an
executive agency the power to promulgate regulations with the force of law. Thes
e provisions require the President or an agency to present the proposed regulati
ons to Congress, which retains a “right” to approve or disapprove any regulation
before it takes effect. Such legislative veto provisions usually provide that a
proposed regulation will become a law after the expiration of a certain period
of time, only if Congress does not affirmatively disapprove of the regulation in
the meantime. Less frequently, the statute provides that a proposed regulation
will become a law if Congress affirmatively approves it.
191
Page 1917/12/2008
¥say
Categories of Congressional Oversight Functions: a. Scrutiny—implies a lesser in
tensity and continuity of attention to administrative operations. Its primary pu
rpose is to determine economy and efficiency of the operation of government acti
vities. In the exercise of legislative scrutiny, Congress may request informatio
n and report from the other branches of government. It can give recommendations
or pass resolutions for consideration of the agency involved.
POWER OF CONCURRENCE— The Constitution requires the concurrence of the Congress
to an amnesty and to a treaty. THE WAR POWER The Congress, by a vote of 2/3 of b
oth houses in joint session assembled, voting separately, shall have the sole po
wer to declare the existence of a state of war. LAW-MAKING POWERS OF CONGRESS— P
ertinently, the power to make laws—legislative power—is vested in Congress. Cong
ress may not escape its duties and responsibilities by delegating that power to
any other body or authority. Any attempt to abdicate the power is unconstitution
al and void, on the principle of delegari potesta non potest delegari—delegated
power may not be delegated. The rule which forbids the delegation of legislative
power, however, is not absolute and inflexible. It admits of exceptions. An exc
eption sanctioned by immemorial practice permits the legislative body to delegat
e its licensing power to certain persons, municipal corporations, towns, boards,
councils, commissions, commissioners, auditors, bureaus and directors. Such lic
ensing power includes the power to promulgate necessary rules and regulations. (
Chavez vs. Romulo, G.R. No. 157036, June 9, 2004)
Article VII EXECUTIVE DEPARTMENT
EXECUTIVE POWER— It is the legal and political functions of the President involv
ing the exercise of discretion. It is vested in the President of the Philippines
. It is the power to enforce and administer laws.
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Page 1927/12/2008
¥say
The executive power shall be vested in the President of the Philippines. (Sectio
n 1, Article VII) In National Electrification Administration vs. CA, G.R. No. 14
3481, February 15, 2002, the President is vested with the power to execute, admi
nister, and carry out laws into practical operation. Executive power, then, is t
he power of carrying out the laws into practical operation and enforcing their d
ue observance.
PRESIDENT
1. 2. 3. 4. 5.
VICE-PRESIDENT
Natural-born citizen; Registered voter; Able to read and write; At least 40 year
s of age on the day of election; and Resident of the Philippines for at least 10
years immediately preceding the election. TERM OF OFFICE Six (6) years DISQUALI
FICATIONS 1. Not eligible for any re-election; 1. Shall not serve for more than
two (2) 2. No person who has succeeded as consecutive terms (Sec. 4, Art. VII) P
resident and has served as such for more than 4 years shall be qualified for ele
ction to the same office at any time (Sec. 4, Art. VII); General Disqualificatio
ns* a. One who has been declared incompetent or insane by competent authority; b
. One who has been sentenced by final judgment for: vi. Subversion; vii. Insurre
ction; viii. Rebellion; ix. Any offense for which he has been sentenced to a pen
alty of not more than 18 months; or
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Page 1937/12/2008
Q U A L I F IC A T I O NS
¥say
The President may not veto a law enacted thirty-five (35) years before his or he
r term of office. Neither may the President set aside or reverse a final and exe
cutory judgment of the Supreme Court through the exercise of veto power. (Bengzo
n vs. Drilon, 208 SCRA 133, April 15, 1992)
1. 2. 3. 4. 5. 6. 7. 1. 2. 3.
ELECTION— (Section 4, Article VII) Unless otherwise provided by law, the regular
election for President and Vice-President shall be held on the second Monday of
May. Even after Congress has adjourned its regular session, it may continue to
perform this constitutional duty of canvassing the presidential and vice-preside
ntial election results without need of any call for special session by the Presi
dent. The joint public session of both Houses of Congress convened by express di
rective of Section 4, Article VII of the Constitution to canvass the votes for a
nd proclaim the newly-elected President and Vice-President has not, and cannot,
adjourn sine die until it has accomplished its constitutionally mandated tasks.
For only when a board of canvassers
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x. A crime involving moral turpitude, unless given plenary pardon or granted amn
esty (Section 12, BP 881—Omnibus Election Code) INHIBITIONS AND PROHIBITIONS Sha
ll not receive any other emolument from the government or any other source (Sect
ion 6, Article VII); Shall not hold any other office or employment unless otherw
ise provided in the Constitution; Shall not practice any other profession; Shall
not participate in any business; Shall not be financially interested in any con
tract with, or in any franchise, or special privilege granted by the Government,
including GOCCs; Shall avoid conflict of interest in conduct of office; Shall a
void nepotism. (Section 13, Article VII) PRIVILEGES Official residence; 1. Salar
y shall not be decreased during Salary is determined by law and his tenure; not
to be decreased during his 2. No need for Commission on tenure (Section 6, Artic
le VII); Appointment confirmation for Cabinet Immunity from suit for official ac
ts. post (Section 3, Article VII) CANVASSING BOARD Congress (Senate and House of
Representatives); in case of tie, Congress by majority vote shall select. ELECT
ORAL TRIBUNAL Supreme Court (en banc) REMOVAL Impeachment only
¥say
has completed its functions it is rendered functus officio. (Pimentel, Jr. vs. J
oint Committee of Congress to Canvass the votes cast for President and VP, G.R.
No. 163783, June 22, 2004) There is no constitutional or statutory basis for COM
ELEC to undertake a separate and an “unofficial” tabulation of results, whether
manually or electronically. By conducting such “unofficial” tabulation, the COME
LEC descends to the level of a private organization, spending public funds for t
he purpose. This not only violates the exclusive prerogative of NAMFREL to condu
ct an “unofficial” count, but also taints the integrity of the envelopes contain
ing the election returns and the election returns themselves. Thus, if the COMEL
EC is proscribed from conducting an official canvass of the votes cast for the P
resident and VP, the COMELEC is, with more reason, prohibited from making an “un
official” canvass of said votes. (Brillantes vs. COMELEC, G.R. No. 163193, June
15, 2004) Immunity from suit: After his tenure, the President cannot invoke immu
nity from suit for civil damages arising out of acts done by him while he was Pr
esident which were not performed in the exercise of his official duties. (Estrad
a vs. Desierto, G.R. Nos. 146710-15, March 2001) Rules on Succession: a. Vacancy
at the beginning of the term i. Death or permanent disability of the President-
elect: VP-elect shall become President ii. President-elect fails to qualify: VP-
elect shall act as President until the President-elect shall have qualified iii.
President shall not have been chosen: VP-elect shall act as President until a P
resident shall have been chosen and qualified. iv. No President and VP chosen no
r shall have qualified, or both shall died or become permanently disabled: The P
resident of the Senate, or in case of his disability, the Speaker of the House o
f Representatives, shall act as President until a President or a VP shall have b
een chosen and qualified. In the event of inability of the officials mentioned,
Congress shall, by law, provide for the manner in which one who is to act as Pre
sident shall be selected until a President or VP shall have qualified.
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Page 1957/12/2008
¥say
b. Vacancy during the term i. Death, permanent disability, removal from office,
or resignation of the President: VP shall become the President Estrada vs. Arroy
o, G.R. No. 146738, March 2, 2001, the SC declared that the resignation of Presi
dent Estrada could not be doubted as confirmed by his leaving Malacañan Palace.
In the press release containing his final statement, 1. He acknowledged the oath
-taking of the respondent as President; 2. He emphasized he was leaving the Pala
ce for the sake of peace and in order to begin the healing process (he did not s
ay that he was leaving due to any kind of disability and that he was going to re
assume the Presidency as soon as the disability disappears); 3. He expressed his
gratitude to the people for the opportunity to serve them as President (without
doubt referring to the past opportunity); 4. He assured that he will not shirk
from any future challenge that may come in the same service of the country; 5. H
e called on his supporters to join him in promotion of a constructive national s
pirit of reconciliation and solidarity. The Court declared that the elements of
a valid resignation are: 1. Intent to resign; 2. Act of relinquishment. Both wer
e present when President Estrada left the Palace. Intent to resign—must be accom
panied by act of relinquishment—act or omission before, during and after January
20, 2001.
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Page 1967/12/2008
¥say
At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress s
hall convene without need of a call, and within 7 days enact a law calling for a
special election to elect a President and a VP to be held not earlier than 45 n
or later than 60 days from the time of such call. The bill shall be deemed certi
fied and shall become a law upon its approval on 3rd reading by Congress. The co
nvening of the Congress cannot be suspended nor the special election postponed.
No special election shall be called if the vacancy occurs within 18 months befor
e the date of the next presidential election.
Totality of prior contemporaneous posterior facts and circumstantial evidence— b
earing material relevant issues—President Estrada is deemed to have resigned— co
nstructive resignation Resignation—may be written, oral, express, or implied, fo
r as long as it is clear it must be given legal effect. Vacancy in the office of
the VP: Whenever there is vacancy in the Office of the VP during the term for w
hich he was elected, the President shall nominate a VP from among the Members of
the Senate and the HOR who shall assume office upon confirmation by a majority
vote of all the Members of both Houses of the Congress, voting separately. (Sect
ion 9, Article VII) Powers of the President: 1. Executive power (Section 1, Arti
cle VII) 2. Appointing power (Section 16, Article VII) 3. Control power (Section
17, Article VII)
Section 4, Article X—Power of general supervision over local governments
4. Calling-out power, power to place the Philippines under martial law and power
to suspend the privilege of the writ of habeas corpus (Section 18, Article VII)
5. Pardoning power, reprieves, commutations, amnesty, remit fines and forfeitur
es (Section 19, Article VII) 6. Borrowing power (Section 20, Article VII) 7. Dip
lomatic/Treaty-making power (Section 21, Article VII) 8. Budgetary power (Sectio
n 22, Article VII) 9. Informing power—State of the Nation Address (Section 23, A
rticle VII) 10. Veto power (Article VI) 11. Power of general supervision over lo
cal governments (Section 4, Article X) 12. Power to call special session (Sectio
n 15, Article VI) 13. Unstated Residual Power—not found in the Constitution 14.
Power to Reorganize the Office of the President (Administrative Code) 15. Power
of Impoundment APPOINTING POWER—carries with it the Removal Power Appointment—is
the selection, by the authority vested with the power, of an individual who is
to exercise the functions of a given office.
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Page 1977/12/2008
¥say
Designation—simply means imposition of additional duties on a person already in
the public service. Binamira vs. Garrucho, 188 SCRA 154, when a person is merely
designated and not appointed, the implication is that he shall hold office in a
temporary capacity and may be replaced at will of the appointing authority. In
this sense, a designation is considered only an acting or temporary appointment
which does not confer security of tenure on the person named. Appointing power i
s executive in nature. It is vested in the President. The power carries with it
the power to remove except in some cases like Justices of the Supreme Court, the
President appoints them but he cannot remove them. They can only be removed thr
ough impeachment. Officers to be appointed by the President that require the con
firmation of Commission on Appointments: (the list is exclusive) 1. Heads of the
executive department
Except: Vice-President—may be appointed as a Member of the Cabinet. Such appoint
ment requires no confirmation. (Section 3, Article VII)
2. Ambassadors, other public ministers and consuls 3. Officers of the armed forc
es from the rank of colonel or naval captain 4. Other officers whose appointment
s are vested in him in the Constitution
Example: JBC, Constitutional Commissions
5. All other officers of the government whose appointments are not otherwise pro
vided by law 6. Those whom he may be authorized by law to appoint. Sarmiento vs.
Mison, 156 SCRA 549, not all appointments made by the President need CA confirm
ation. Only those enumerated in paragraph 1 of Section 16, Article VII need conf
irmation of the Commission on Appointments. The appointment of Salvador Mison as
Commissioner of Customs needs no confirmation by the CA, because the Commission
er of Customs is not among the officers mentioned in the 1st paragraph of Sectio
n 16, Article VII. Officers of the armed forces from the rank of colonel or nava
l captain—refers to military officers alone PNP is now under the DILG (civilian
in character, national in scope)—no longer part of the AFP, therefore, no need
for CA confirmation
198
Page 1987/12/2008
¥say
Soriano vs. Lista, G.R. No. 153881, March 24, 2003, the Philippine Coast Guard (
PCG) is no longer part of the Philippine Navy or the AFP but is not under the DO
TC, a civilian agency, the promotion and appointment of respondent officers of t
he PCG will not require confirmation by the CA. Calderon vs. Carale, 208 SCRA 25
4, Article 215 of the Labor Code as amended by RA 6715, insofar as it requires t
he confirmation by the CA of the appointment of the NLRC Chairman and commission
ers, is unconstitutional because it violates Section 16 of Article VII. The Cong
ress, when they enacted the law, added to the exclusive list another category of
officers to be appointed by the President that need the confirmation of the CA.
Manalo vs. Sistoza, 312 SCRA 239—a law was enacted creating the PNP, RA 6795. I
t provides that the Director, Deputy Director General, and other top officials o
f the PNP shall be confirmed by the Commission on Appointments. The SC declared
it as unconstitutional. In the above two cases, Congress cannot add/remove anyth
ing from the list of officers to be appointed by the President that require conf
irmation of the CA. The list is exclusive. The Congress cannot add or remove any
thing by a mere legislative act. Officials subject to the Appointment of the Pre
sident: A. With the confirmation by the Commission on Appointments— 1. Heads of
the executive department 2. Ambassadors, other public ministers and consuls 3. O
fficers of the armed forces from the rank of colonel or naval captain 4. Other o
fficers whose appointments are vested in him in the Constitution B. Prior recomm
endation or nomination by the Judicial and Bar Council (JBC)— 1. Members of the
Supreme Court and all lower courts 2. Ombudsman and hid 5 Deputies C. Appointmen
t of VP as Member of the Cabinet D. Appointment solely by the President— 1. Thos
e vested by the Constitution on the President alone 2. Those whose appointments
are not otherwise provided for by law 3. Those who may be authorized by law to a
ppoint; 4. Those other officers lower in rank whose appointment is vested by law
in the President alone
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¥say
Temporary appointment and Designation are not subject to confirmation by the Co
mmission on Appointments. Such confirmation, if given erroneously, will not make
the incumbent permanent appointee. (Valencia vs. Peralta, 8 SCRA 692)
3. Regular—Appointment by the President when Congress is in session. It takes
effect only after confirmation by the CA, and once approved, continues until the
end of the term of the appointee.
4. Ad Interim—(2nd paragraph of Section 16, Article VII)—Appointment by the
President when Congress is not in session. It takes effect immediately but cease
s to be valid if disapproved by the CA or upon the next adjournment of Congress.
It is deemed by-passed through inaction. It is intended to prevent interruption
s in vital government services that would otherwise result from the prolonged va
cancies in government offices. It is a permanent appointment because it takes ef
fect immediately and can no longer be withdrawn by the President once the appoin
tee has qualified into office. The fact that it is subject to confirmation by th
e Commission on Appointments does not alter its permanent character. The Constit
ution itself
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Classifications: 1. Permanent—those extended to persons possessing the requisite
eligibility and are thus protected by the constitutional guarantee of security
of tenure. 2. Temporary—those given to persons without such eligibility, revocab
le at will and without necessity of just cause or a valid investigation, made on
the understanding that the appointing power has not yet decided on a permanent
appointee and that the temporary appointee may be replaced at any time a permane
nt choice is made.
¥say
Appointing Procedure: 1. Nomination by the President; 2. Confirmation by the Com
mission on Appointments; 3. Issuance of commission; and 4. Acceptance by appoint
ee. Deemed complete upon acceptance. Pending such acceptance, which is optional
to the appointee, the appointment may still be validly withdrawn. Appointment t
o a public office cannot be forced upon citizen except for purposes of defense o
f the State under Section 4, Article II of the Constitution, as an exception to
the rule against involuntary servitude.
makes an ad interim appointment permanent in character by making it effective un
til disapproved by the CA or until the next adjournment of Congress.
a. Recess—one made while the Congress is not in session, before
confirmation by the Commission on Appointment; immediately effective; and ceases
to be valid if disapproved or bypassed by CA upon the next adjournment of Congr
ess;
b. Midnight—made by the President before his term expires, whether or not
it is confirmed by the CA
In the case of Matibag vs. Benipayo, 380 SCRA 49, ad interim means “in the meant
ime” or “for the time being”. An ad interim appointment means a permanent appoin
tment made by the President in the meantime that Congress is in recess. It does
not mean a temporary appointment that can be withdrawn or revoked at any time. A
n ad interim appointee who has qualified and assumed office becomes at that mome
nt a government employee and therefore part of the civil service. He enjoys the
constitutional protection that he cannot be suspended or removed except for caus
es provided by law. The withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the moment he quali
fies, and any withdrawal or revocation thereafter is tantamount to removal from
office. Once an appointee has qualified, he acquires a legal right to the office
which is protected not only by statute but also by the Constitution. He can onl
y be removed for cause, after notice and hearing, consistent with the requiremen
ts of due process.
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Ad interim appointment disapproved by the Commission on Appointments—can no lon
ger be extended a new appointment. The disapproval is a final decision of the Co
mmission on Appointments in the exercise of its checking power on the appointing
power of the President. The disapproval is a decision on the merits, being a re
fusal by the CA to give its consent after deliberating on the qualifications of
the appointee. Since the Constitution does not provide for any appeal from such
decision, the disapproval is final and binding on the appointee as well as on th
e appointing power. In this instance, the President can no longer renew the appo
intment not because of the constitutional prohibition on appointment, but becaus
e of a final decision by the CA to withhold its consent to the appointment.
¥say
Ad Interim Takes effect immediately
regular Does not take effect immediately
Appointee assumes office immediately Appointee assumes office only after and l
ater on the appointment should be confirmation by the CA confirmed by the CA
Ad interim appointee by-passed by the CA is no longer subject to reappointment.
He is deemed to have vacated the office. Case of First Impression 2nd issue i
n the case of Matibag vs. Benipayo—whether ad interim appointees by-passed by Co
mmission on Appointments may be subject to re-appointment? The SC held that an a
d interim appointment that is by-passed by the Commission on Appointments becaus
e of lack of time or failure of the latter to organize is another matter. A by-p
assed appointment is one that has not been finally acted upon on the merits by t
he CA at the close of the session of Congress. There is no final decision by the
Commission on Appointments to give or withhold its consent to the appointment a
s required by the Constitution. Absent such decision, the President is free to r
enew the ad interim appointment of a bypassed appointee. This is recognized in S
ection 17 of the Rules of the Commission on Appointments. Hence, under the Rules
, a by-passed appointment can be considered again if the President renews the ap
pointment. The ad interim appointments and subsequent renewals of appointments o
f Benipayo, Borra and Tuason do not violate the prohibition on reappointments be
cause there were no previous appointments that were confirmed by the Commission
on Appointments. A reappointment presupposes a previous confirmed appointment. T
he same ad interim appointments and renewal of appointments will also not breach
the 7-year term limit because all the appointments and renewals of appointments
of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008
. Any delay in their confirmation will not extend the expiry date of their terms
of office. Consequently, there is no danger whatsoever that the renewal of the
ad interim appointments of these
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Page 2027/12/2008
¥say
Made while Congress is not in Made when Congress is in session session The di
stinction lies in the effectivity of the appointment
three respondents will result in any of the evils intended to be exorcised by th
e twin prohibition of the Constitution. The continuing renewal of the ad interim
appointment of these three respondents for so long as their term of office expi
res on February 2, 2008 does not violate the prohibition on reappointments in Se
ction 1 (2), Article IX-C of the Constitution. Four (4) Situations where Section
1 (2), Article IX-C will apply: Section 1 (2), Article IX-C of the Constitution
provides: The Chairman and the Commissioners shall be appointed by the Presiden
t with the consent of the Commission on Appointments for a term of seven years w
ithout reappointment. Of those first appointed, three Members shall hold office
for seven years, two Members for five years, and the last Member for three years
, without reappointment. Appointment to any vacancy shall be only for the unexpi
red term of the predecessor. In no case shall any Member be appointed or designa
ted in a temporary or acting capacity.
1. Where an ad interim appointee to the COMELEC, after confirmation by
the CA, serves his full 7-year term. Such person cannot be reappointed to the CO
MELEC, whether as a member or as a chairman, because he will then be actually se
rving more than 7 years. 2. Where the appointee, after confirmation, serves a pa
rt of his term and then resigns before his 7-year term of office ends. Such pers
on cannot be reappointed. Whether as a member or as a chairman, to a vacancy ari
sing from retirement because a reappointment will result in the appointee also s
erving more than seven years. 3. Where the appointee is confirmed to serve the u
nexpired term of someone who died or resigned, and the appointee completes the u
nexpired term. Such person cannot be reappointed, whether as member or chair, to
a vacancy arising from retirement because a reappointment will result in the ap
pointee also serving more than seven years. 4. Where the appointee has previousl
y served a term less than seven years, and a vacancy arises from death or resign
ation. Even if it will not result in his serving more than 7 years, a reappointm
ent of such person to serve an unexpired term is also prohibited because his sit
uation will be similar to those appointed under the second sentence of Section 1
(2), Article IX-C of the Constitution. This provision refers to the 1st appoint
ees under the Constitution, whose terms of office are less than 7 years, but are
barred from ever being reappointed under any situation.
203
Page 2037/12/2008
¥say
In Pimentel, Jr. vs. Ermita, G.R. No. 164798, October 13, 2005, Congress commenc
ed their regular session on July 26, 2004, the Commission on Appointments was co
nstituted on August 25, 2004. Meanwhile, President Arroyo issued appointments to
respondents as acting secretaries of their respective departments. Respondents
took their oath and assume duties as acting secretaries. Congress adjourned on S
eptember 22, 2004. On September 23, 2004, President Arroyo issued ad interim app
ointments to respondents as secretaries of the departments to which they were pr
eviously appointed in an acting capacity. A petition was filed to declare uncons
titutional the appointments issued by the President to the respondents as acting
secretaries of their respective departments without the consent of the Commissi
on on Appointments while Congress is in session. The SC held that as a rule, the
writ of prohibition will not lie to enjoin acts already done. However, an excep
tion to the rule on mootness, courts will decide a question otherwise moot if it
is capable of repetition yet evading review. In the present case, the mootness
of the petition does not bar its resolution. The question of constitutionality o
f the President’s appointment of department secretaries in an acting capacity wh
ile Congress is in session will arise in every such appointment. The office of a
department secretary may become vacant while Congress is in session. Since a de
partment secretary is an alter ego of the President, the acting appointee to the
office must necessarily have the President’s confidence. Thus, by the very natu
re of the office of a department secretary, the President must appoint in an act
ing capacity a person of her own choice even while Congress is in session. The p
erson may or may not be the permanent appointee, but practical reasons may make
it expedient that the acting appointee will also be the permanent appointee. The
law expressly allows the President to make such acting appointment. Section 17,
Chapter 5, Title I, Book III of EO 292 (Administrative Code of 1987) states tha
t: The President may temporarily designate an officer already in the government
service or any competent person to perform the functions of an office in the exe
cutive branch. Thus, the President may even appoint in an acting capacity a pers
on not yet in the government service, as long as the President deems that person
competent. Ad interim appointment Made if congress is not in session Appointme
nt in an acting capacity Made any time there is vacancy, i.e., whether Congress
is in session or not
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Page 2047/12/2008
¥say
Requires confirmation of CA Permanent in nature Appointee enjoys security of
tenure
Does not require confirmation of CA Temporary in nature The appointee does no
t enjoy security of tenure
3. The presidential power of appointment may also be limited by Congress through
its power to prescribe qualifications for public office. 4. The judiciary may a
nnul an appointment made by the President if the appointee is not qualified or h
as not been validly confirmed by the Commission on Appointments.
5. Section 15, Article VII—2 types of appointment: Two months immediately before
the next presidential elections and up to the end of his term, a President or Ac
ting President shall not make appointments, except temporary appointments to exe
cutive positions when continued vacancies therein will prejudice public service
or endanger public safety.
Case of First Impression
In Re: Hon. Mateo Valenzuela and Hon. Placido Vallarta, 298 SCRA 409, Section 15
, Article VII is directed against two (2) types of appointment: 1. Those made fo
r buying votes—those appointments made within 2 months preceding the Presidentia
l election and are similar to those which are declared election offenses in the
Omnibus Election Code;
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Page 2057/12/2008
Limitations on Appointing Power: 1. Prohibition against nepotism—(Section 13, pa
r. 2, Article VII) The spouse and relatives by consanguinity or affinity within
the 4th civil degree of the President shall not during his tenure be appointed a
s Members of the Constitutional Commissions, or the Office of the Ombudsman, or
as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, inclu
ding government-owned or controlled corporations and their subsidiaries. 2. Appo
intments extended by an Acting President shall remain effective unless revoked b
y the elected President within 90 days from his assumption of office. (section 1
4, Article VII)
¥say
2. Those made for partisan considerations—consist of the so-called midnight
appointments and those presumed made for the purpose of influencing the outcome
of the presidential election. a. If made within the 2-month election period=el
ection offense b. If made by an outgoing President before his term of office end
s, it is MIDNIGHT appointment. Exception: temporary appointment to executive pos
itions
Case of First Impression
Rufino vs. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, a statute cannot
circumvent the constitutional limitations on the power to appoint by filling va
cancies in a public office through election by the co-workers in that office. Su
ch manner of filling vacancies in a public office has no constitutional basis. A
nd since the pertinent section is unconstitutional, the President has the power
to appoint the trustees by virtue of Section 16, Article VII which gives the Pre
sident the power to appoint officers whose appointments are not provided for by
the law.
POWER OF REMOVAL— General Rule: This power is implied from the power to appoint.
Exceptions: Those appointed by him where the Constitution prescribes certain me
thods for separation from public services. Example: Members of the Constitutiona
l Commissions, Justices of the SC—may only be removed through impeachment
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Page 2067/12/2008
De Rama vs. Court of Appeals, 353 SCRA, 94, Mayor Evelyn Abeja run for reelectio
n but lost. Before she vacated her office, though, she extended permanent appoin
tments to 14 new employees of the municipal government. The incoming mayor, upon
assuming office, recalled said appointments contending that these were “midnigh
t appointments” and, therefore, prohibited under Section 15, Article VII of the
Constitution. The SC held that the records reveal that when the petitioner broug
ht the matter of recalling the appointments of the 14 private respondents before
the Civil Service Commission, the only reason he cited to justify his actions w
as that these were “midnight appointments” that are forbidden by the Constitutio
n. However, the CSC ruled, and correctly so, that the said prohibition applies o
nly to presidential appointments. In truth and in fact, there is no law that pro
hibits local elective officials from making appointments during the last days of
his or her tenure.
¥say
POWER OF CONTROL— Sec. 17, Article VII: The President shall have control of all
the executive departments, bureaus and offices. He shall ensure that the laws be
faithfully executed. Faithful Execution Clause As Chief Executive, the Preside
nt holds the steering wheel that controls the course of her government—she lays
down policies in the execution of her plans and programs, and whatever policy, s
he chooses, she has her subordinates to implement them. (Chavez vs. Romulo, G.R.
No. 157036, June 9, 2004) Control—is the power to alter or modify or nullify or
set aside what a subordinate had done in the performance of his duties and to s
ubstitute the judgment of the former for that of the latter. Supervision—means o
verseeing, or the power or authority of an officer to see that subordinate offic
ers perform their duties, and if the latter fail or neglect to fulfill them, the
n the former may take such action or steps as prescribed by law to make them per
form these duties. Doctrine of Qualified Political Agency or the Alter Ego Doctr
ine— Acts of the Secretaries of executive departments when performed and promulg
ated in the regular course of business or unless disapproved or reprobated by th
e Chief Executive, are presumptively the acts of the Chief executive. In the cas
e of DENR vs. DENR Region XII Employees, G.R. No. 149724, August 19, 2003, the p
ower of the President to reorganize the National Government may validly be deleg
ated to his Cabinet members exercising control over a particular executive depar
tment. Accordingly, in this case, the DENR Secretary can validly reorganize the
DENR by ordering the transfer of the DENR Regional Offices from
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Page 2077/12/2008
¥say
Members of the career service of the Civil Service who are appointed by the Pres
ident may be directly disciplined provided that the same is for cause and in acc
ordance with the procedure prescribed by law. Members of the Cabinet and such of
ficers whose continuity in office depends upon the pleasure of the President may
be replaced at any time, but legally speaking, their separation is effected not
by removal but by expiration of their term. (Aparri vs. Court of Appeals, 127 S
CRA 231)
Cotabato City Koronadal, South Cotabato. The exercise of this authority by the D
ENR Secretary, as an alter ego of the President, is presumed to be the act of th
e President because the latter had not expressly repudiated the same. However, i
n the case of Gloria vs. Court of Appeals, G.R. No. 119903, August 15, 2000, the
SC held that even if the DECS Secretary is an alter ego of the President, he ca
nnot invoke the President’s immunity from suit in a case filed against him, inas
much as the questioned acts are not those of the President. The power of contr
ol may be exercised by the President only over the acts not over the actor (Anga
ngco vs. Castillo, 9 SCRA 619)
The President exercises general supervision, not control, over local governmen
ts. The power is generally to see to it that the LGUs perform their powers and f
unctions in accordance with law.
MILITARY POWERS— Section 18, Article VII: 1. The Commander-in-Chief Clause— To
call out the Armed forces to prevent or suppress lawless violence, invasion or r
ebellion. Organize courts martial for the discipline of the armed forces and cr
eate military commissions for the punishment of war criminals. Calling-out power
—lawless violence Rebellion declare martial law & suspend the writ of HC invasio
n “when the public safety
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Page 2087/12/2008
POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS (Section 4, Article X)—the P
resident can only interfere in the affairs and activities of a LGU if he finds t
hat the latter acted contrary to law. The President or any of his alter egos, ca
nnot interfere in local affairs as long as the concerned LGU acts within the par
ameters of the law and the Constitution. Any directive, therefore, by the Presid
ent or any of his alter egos seeking to alter the wisdom of a law-conforming jud
gment on local affairs of a LGU is a patent nullity, because it violates the pri
nciple of local autonomy, as well as the doctrine of separation of powers of the
executive and the legislative departments in governing municipal corporations.
(Judge Dadole vs. COA, G.R. No. 125350, December 3, 2002)
¥say
Invasion
rebellion
so requires”
Gudani vs. Senga, G.R. No. 170165, August 15, 2006 (Tinga), the ability of the
President to require a military official to secure prior consent before appearin
g before Congress pertains to a wholly different and independent specie of presi
dential authority—the commander-in-chief powers of the President. By tradition a
nd jurisprudence, the commander-in-chief powers of the President are not encumbe
red by the same degree of restriction as that which may attach to executive priv
ilege or executive control. 2. Suspension of the privilege of the writ of habeas
corpus— Grounds: invasion or rebellion, when public safety requires it. Duratio
n: not to exceed 60 days, following which it shall be lifted unless extended by
Congress Duty of the President: To report action to Congress within 48 hours, pe
rsonally or in writing The Congress may revoke or extend, on request of the Pre
sident, the effectivity of proclamation by a majority vote of all its Members, v
oting jointly. The suspension applies only to persons judicially charged for reb
ellion or offenses inherent in or directly connected with invasion. During the s
uspension of the privilege of the writ of habeas corpus, any person thus arreste
d or detained shall be judicially charged within three (3) days, otherwise he sh
all be released. 3. Proclamation of Martial Law— Constitutional safeguards on th
e exercise of the power of the President to proclaim martial law a. There must b
e actual invasion or rebellion; b. The duration of the proclamation shall not ex
ceed 60 days; c. Within 48 hours, the President shall report his action to Congr
ess. if Congress is not in session, it must convene within 24 hours;
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Page 2097/12/2008
¥say
d. Congress may, by majority vote of all its members voting jointly, revoke the
proclamation, and the President cannot set aside the revocation; e. By the same
vote and in the same manner, upon initiative of the President, Congress may exte
nd the proclamation if the invasion or rebellion continues and public safety req
uires it; f. The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of martia
l law or the suspension of the privilege of the writ of habeas corpus or the ext
ension thereof, and must promulgate its decision thereon within 30 days from its
filing; g. It does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the
confinement of jurisdiction on military courts and agencies over civilians wher
e civil courts are able to function, nor automatically suspend the privilege of
the writ. Olaguer doctrine—aka OPEN COURT DOCTRINE—civilians cannot be tried by
military courts if the civil courts are open and functioning (Olaguer vs. Milita
ry Commission No. 34, G.R. No. L-54448, May 22, 1987) 4 ways for the proclamatio
n or suspension to be lifted: 1. Lifting by the President himself; 2. Revocation
by Congress; 3. Nullification by the SC; 4. Operation of law after 60 days. PAR
DONING POWER— Exercise by the President: Discretionary; may not be controlled by
the legislature or reversed by the courts unless there is violation of the Cons
titution. Section 19, Article VII is simply the source of power of the President
to grant reprieves, commutations, and pardons and remit fines and forfeitures a
fter conviction by final judgment. This provision, however, cannot be interprete
d as denying the power of courts to control the enforcement of their decisions a
fter the finality. In truth, an accused that has been convicted by final judgmen
t still possesses collateral rights and these rights can be claimed in the appro
priate courts. For instance, a death convict who becomes insane after his final
conviction cannot be executed while in the state of insanity. (See Article 79 of
the Revised Penal Code)
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¥say
1. Pardon—an act of grace which exempts the individual on whom it is bestowed fr
om punishment which the law inflicts for a crime he has committed. a. Plenary or
partial b. Absolute or conditional Conditional pardon—is in the nature of a con
tract between the sovereign power or the Chief Executive and the convicted crimi
nal to the effect that the former will release the latter subject to the conditi
on that if he does not comply with the terms of the pardon, he will be recommitt
ed to prison to serve the unexpired portion of the sentence or an additional one
. 2. Commutation—reduction or mitigation of penalty 3. Reprieve—postponement of
sentence or stay of execution 4. Parole—release from imprisonment, but without f
ull restoration of liberty, as parolee is in custody of the law although not in
confinement 5. Amnesty—act of grace, concurred in by the Legislature, usually ex
tended to groups of persons who committed political offenses, which puts into ob
livion the offense itself. Limitations: a. Cannot be granted in cases of impeach
ment; b. Cannot be granted in violations of election laws without favorable reco
mmendations of the COMELEC; c. Can be granted only after conviction by final jud
gment (except amnesty); d. Cannot be granted in cases of legislative contempt or
civil contempt; e. Cannot absolve convict of civil liability; f. Cannot restore
public offices forfeited. Amnesty Pardon addressed to political offenses refe
rs to infractions of laws of the state or
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Page 2117/12/2008
¥say
Article 81 of the Revised Penal code, as amended, which provides that the death
sentence shall be carried out without prejudice to the exercise by the President
of his executive clemency powers at all times. For instance, the President cann
ot grant reprieve, i.e., postpone the execution of a sentence to a day certain i
n the absence of a precise date to reckon with. The exercise of such clemency po
wer, at this time, might even work to the prejudice of the convict and defeat th
e purpose of the Constitution, and the applicable statute as when the date of ex
ecution set by the President would be earlier than that designated by court. (Ec
hegaray vs. Secretary of Justice, 301 SCRA 96)
ordinary offenses granted to a class or classes of persons it need not be acce
pted it requires the concurrence of Congress it is a public act granted to in
dividuals it must be accepted it does not need the concurrence of Congress it
is a private act of the President
it looks backward and puts the offense it looks forward and relieves the pardo
nee into oblivion of the consequences of the offense Judicial admissions Matte
rs of judicial notice no need of proof Judicial presumptions In Llamas vs. Orbos
, pardon is available also to one found guilty of administrative offense. Sectio
n 19 of Article VII did not distinguish between a criminal and administrative of
fense. Effect of grant of pardon: In the case of Monsanto vs. Factoran, the accu
sed was convicted of malversation thru falsification of official documents. She
was granted absolute pardon. She demanded for reinstatement and back salaries. T
he SC held that pardon may mean forgiveness but not forgetfulness. What was remi
tted is the penalty and not the fact of one’s guilt. In the eyes of law, she was
still a convict. Exceptions: 1. Unless the grant expressly so provides for her
reinstatement and payment of back salaries. 2. If the grant of pardon was based
on the fact of the innocence of the one charged of the crime. BORROWING POWER— T
he President may contract or guarantee foreign loans on behalf of the Republic w
ith the concurrence of the Monetary Board, subject to such limitations as may be
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Page 2127/12/2008
¥say
provided by law. The Monetary Board shall submit to the Congress report on loans
within 30 days from end of every quarter. Limitations: 1. There must be prior c
oncurrence of the Monetary Board 2. It is subject to such other limitations DIPL
OMATIC/TREATY-MAKING POWER (Section 21, Article VII) No treaty or international
agreement shall be valid and effective unless concurred in by at least 2/3 of al
l the members of the Senate. In our jurisdiction, the power to ratify is vested
in the President and not, as commonly believed, in the legislature. The role of
the Senate is limited only to giving or withholding its consent, or concurrence,
to the ratification. (Bayan vs. Zamora, G.R. No. 138570, October 10, 2000) This
provision lays down the general rule on treaties or international agreements an
d applies to any form of treaty with a wide variety of subject matter. All treat
ies or international agreements entered into by the Philippines, regardless of s
ubject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective. But see Section 25 of Artic
le XVIII. Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to con
sider the agreement binding on the Philippines. BUDGETARY POWER— Within 30 days
from opening of every regular session, President shall submit to Congress a budg
et of expenditures and sources of financing, including receipts from existing an
d proposed revenue measures. The Congress may not increase the appropriation rec
ommended by the President. However, its form, content, manner of preparation of
the budget shall be prescribed by Congress. INFORMING POWER—State of the Nation
Address (Section 23, Article VII) The President shall address Congress at the op
ening of its regular session (4th Monday of July). He may also appear before it
at any other time.
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¥say
VETO POWER (Article VI)
RESIDUAL POWER— Whatever is not judicial, whatever is not legislative, is residu
al power exercised by the President. OTHER POWERS— 1. Power to call special sess
ion (Section 15, Article VI) 2. Power to deport aliens 3. Consent to deputizatio
n of government personnel by COMELEC 4. To discipline such deputies 5. By delega
tion from Congress, exercise emergency and tariff powers— Conditions for the exe
rcise of the President of Emergency Powers: a. It can be exercised only in times
of war or national emergency; b. There must be a law authorizing the President
to exercise emergency powers; c. It must be for a limited period; d. It must be
subject to restrictions which Congress may provide; and e. It must be necessary
and proper to carry out a declared national policy. 6. Power to Reorganize the O
ffice of the President—under EO 292, the Administrative Code of 1987 The law gra
nts the President continuing authority to reorganize the Office of the President
in recognition of the recurring need of every President to reorganize his offic
e “to achieve simplicity, economy and efficiency”. The Office of the President i
s the nerve center of the Executive Branch. To remain effective and efficient, t
he Office must be capable of being shaped and reshaped by the President in the m
anner he deems fit to carry out his directives and policies. Power to reorganize
the Office of Power to reorganize the Office of the the President [Sec. 31 (2&3
), EO President Proper [Sec. 31 (1), EO 292] 292] The President’s power to reo
rganize The President can reorganize the offices outside the Office of the Off
ice of the president Proper by:
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Page 2147/12/2008
¥say
President Proper is limited to merely a. Abolishing; b. Consolidating or merging
units; transferring functions or agencies from c. Transferring functions from o
ne the Office of the president to unit to another. Departments or Agencies, and
vice versa. Domingo vs. Zamora, G.R. No. 142283, February 6, 2003
IMPOUNDMENT POWER— Impoundment refers to the refusal of the President, for whate
ver reason, to spend funds made available by Congress. It is the failure to spen
d or obligate budget authority of any type. Proponents of impoundment have invok
ed at least three (3) principal sources of the authority of the President. 1. au
thority to impound given to him either expressly or impliedly by Congress 2. the
executive power drawn from the President’s role as Commander-in-Chief 3. Faithf
ul Execution Clause The proponents insist that a faithful execution of the laws
requires that the President desist from implementing the law if doing so would p
rejudice public interest. An example given is when through efficient and prudent
management of a project, substantial savings are made. In such a case, it is sh
eer folly to expect the President to spend the entire amount budgeted in the law
. (PHILCONSA vs. Enriquez, 235 SCRA 506)
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Page 2157/12/2008
Malaria Employees and Workers Association of the Philippines (MEWAP) vs. Executi
ve Secretary Romulo, G.R. No. 160093, July 31, 2007, the President has the autho
rity to carry out a reorganization of the DOH under the Constitutions and statut
ory laws. This authority is adjunct of his power of control under Article VII, S
ections 1 and 17. The President’s power to re0organize the executive branch is a
lso an exercise of his residual powers. However, the President must exercise goo
d faith in carrying out the reorganization of any branch or agency of the execut
ive department.
¥say
Article VIII JUDICIAL DEPARTMENT
CONCEPT OF JUDICIAL POWER It is the power to hear and decide cases pending betwe
en parties who have the right to sue in courts of law and equity. Corollary to t
his dictum is the principle of locus standi of a litigant. He who is directly af
fected and whose interest is immediate and substantial has the standing to sue.
Thus, a party must show a personal stake in the outcome of the case or an injury
to himself that can be redressed by a favorable decision in order to warrant an
invocation of the court’s jurisdiction and justify the exercise of judicial pow
er on his behalf. (Domingo vs. Carague, G.R. No. 161065, April 15, 2005) Section
1, Article VIII JUDICIAL POWER The judicial power shall be vested in one SC and
in such lower courts as may be established by law. Judicial power includes: 1.
The duty of the courts of justice to settle actual controversies involving right
s which are legally demandable and enforceable (TRADITIONAL CONCEPT OF JUDICIAL
POWER); and 2. To determine whether or not there has been a grave abuse of discr
etion amounting to lack or excess of jurisdiction (GADALEJ) on the part of any b
ranch or instrumentality of the Government. (EXPANDED POWER) Jurisdiction: The p
ower to hear and decide cases. Section 2, Article VIII—The Congress shall have t
he power to define, prescribe, and apportion the jurisdiction of the various cou
rts but may not deprive the Supreme Court of its jurisdiction over cases enumera
ted in Section 5 hereof. No law shall be passed reorganizing the Judiciary when
it undermines the security of tenure of its Members.
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¥say
Constitutional Safeguards that guarantee independence of Judiciary: 1. The Supre
me Court is a constitutional body and may not be abolished by law; 2. The member
s of the SC are removable only by impeachment; 3. The SC may not be deprived of
minimum original and appellate jurisdiction; appellate jurisdiction may not be i
ncreased without its advice and concurrence; 4. The SC has administrative superv
ision over all inferior courts and personnel; 5. The SC has the exclusive power
to discipline judges/justices of inferior courts; 6. The members of the Judiciar
y have security of tenure; 7. The members of the SC may not be designated to any
agency, performing quasijudicial or administrative functions; 8. Salaries of ju
dges may not be reduced; the Judiciary enjoys fiscal autonomy; 9. The SC alone m
ay initiate Rules of Court; 10. The SC alone may order temporary detail of judge
s; 11. The SC can appoint all officials and employees of the Judiciary. Fiscal A
utonomy—means freedom from outside control. The Judiciary, the Constitutional Co
mmissions, and the Ombudsman must have the independence and flexibility needed i
n the discharge of their constitutional duties. The imposition of restrictions a
nd constraints on the manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to fiscal auton
omy and violative not only of the express mandate of the Constitution but especi
ally as regards the SC, of the independence and separation of powers upon which
the entire fabric of our constitutional system is based. (Bengzon vs. Drilon, 20
8 SCRA 133, April 15, 1992) Appointment to the Judiciary: Qualifications: Of pro
ven competence, integrity, probity and independence. In addition: A. Justices of
the SC a. Natural-born citizen; b. At least 40 years of age;
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¥say
c. 15 years or more a judge of a lower court or has been engaged in the
practice of law in the Philippines for the same period. B. Justices of the Court
of Appeals Same qualifications as those provided for SC Justices Congress may
prescribe other qualifications C. RTC Judges a. Citizen of the Philippines; b.
At least 35 years of age; c. Has been engaged in the practice of law for at leas
t 5 years or has held public office in the Philippines requiring admission to th
e practice of law as an indispensable requisite D. MTC, MeTC, MCTC Judges a. Cit
izens of the Philippines; b. At least 30 years of age; c. Has been engaged in th
e practice of law for at least 5 years or has held public office in the Philippi
nes requiring admission to the practice of law as an indispensable requisite. Pr
ocedure for Appointment: 1. Appointed by the President from among a list of at l
east 3 nominees prepared by the Judicial and Bar Council (JBC) for every vacancy
. 2. For lower courts, President shall issue the appointment 90 days from submis
sion of the list. Tenure of Justices and Judges: A. Supreme Court—Hold office un
til they reach the age of 70 or become incapacitated to discharge their duties.
They may be removed only through impeachment.
B. Lower Courts—Hold office during good behavior until they reach the age of 70
or
become incapacitated to discharge their duties. By majority vote of members who
actually took part in the deliberation on the issues and voted thereon, SC en b
anc shall have the power to discipline judges of lower courts or order their dis
missal. No law shall be passed reorganizing the Judiciary when it undermines th
e security of tenure of its Members.
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Page 2187/12/2008
¥say
Appointment: The President shall appoint regular members for a 4-year term with
the consent of the Commission on Appointments Powers and Functions: 1. Recommend
appointees to the Judiciary; 2. Recommend appointees to the Office of the Ombud
sman and his 5 Deputies; 3. May exercise such other functions as may be assigned
by the Supreme Court. SUPREME COURT Composition: • Chief Justice and 14 Associa
tes Justices • May sit: o En Banc; or o In its discretion, in divisions of 3, 5,
or 7 members • Any vacancy shall be filled within 90 days from occurrence there
of. Powers of the Supreme Court A. Original Jurisdiction 1. Over cases affecting
ambassadors, other public ministers and consuls; 2. Over petition for Certiorar
i, Prohibition, mandamus, Quo Warranto, and Habeas Corpus; Certiorari Jurisdicti
on of the SC—limited to decisions rendered in actions or proceedings taken cogni
zance of by the Commissions in the exercise of their adjudicatory or quasi-judic
ial functions. It does not refer to purely executive powers. Hence, questions ar
ising from the award of a contract for construction of voting booths can be brou
ght before the trial court. (Ambil vs. COMELEC, G.R. No. 143398, October 5, 2000
) 3. Review of factual basis for the declaration of martial law or suspension of
the privilege of writ of habeas corpus.
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Page 2197/12/2008
¥say
JUDICIAL AND BAR COUNCIL Composition: Ex-Officio Chairman—Chief Justice of the S
upreme Court Ex-Officio Members —Secretary of Justice —Representative of Congres
s Regular Members—Representative of the IBP Professor of Law Retired Member of S
C Representative of private sector Secretary de Officio—Clerk of the Supreme Cou
rt
C. Electoral Tribunal for Presidential and Vice-Presidential Contests, over all
contests relating to the election, return and qualification of the President or
VicePresident.
E. Order change of venue or place of trial, to avoid miscarriage of justice F. R
ule-making power—promulgates rules concerning: 1. Protection and enforcement of
constitutional rights; 2. Pleading, practice, and procedure in all courts; 3. Ad
missions to the practice of law; 4. IBP; and 5. Legal assistance to the underpri
vileged. Limitations on rule-making power: a. Provide a simplified and inexpensi
ve procedure for speedy disposition of cases; b. Uniform for all courts of the s
ame grade; c. Shall not diminish, increase or modify substantive rights. In Re:
Request for Creation of a Special Division, A.M. No. 02-1-09-SC, January 21, 200
2, it was held that it is within the competence of the Supreme Court, in the exe
rcise of its power to promulgate rules governing the enforcement and protection
of constitutional rights and rules governing pleading, practice and procedure in
all courts, to create a Special Division in the Sandiganbayan which will hear a
nd decide the plunder case against former President Estrada. Echegaray vs. Secre
tary of Justice, G.R. No. 132601, January 19, 1999, Congress cannot amend the Ru
les of Court. The SC declared that the
220
Page 2207/12/2008
D. Temporary assignment of judges of lower courts to other stations as public in
terest may require. Not to exceed 6 months without the consent of the judge conc
erned.
¥say
B. Appellate Jurisdiction • Over final judgments and orders of lower courts in:
a. All cases in which constitutionality or validity of any treaty international
or executive agreement, law, presidential decree, proclamation, order, instructi
on, ordinance, or regulation is in question; b. All cases involving the legality
of any tax impost, assessment, or toll, or any penalty imposed in relation ther
eto; c. All cases in which the jurisdiction of any lower courts is in issue; d.
All criminal cases in which the penalty imposed is reclusion perpetua or higher;
and e. All cases in which only a question of law is involved.
Constitution took away the power of Congress to repeal, alter, or supplement rul
es concerning pleading, practice and procedure. In fine, the power to promulgate
rules of pleading, practice and procedure is no longer shared by the Court with
Congress, more so with the Executive.
G. Power of Appointment—SC appoints all officials and employees of the Judiciary
in accordance with Civil Service law.
Administrative proceedings before the SC are confidential in nature in order to
protect the respondent therein who may turn out to be innocent of the charges; i
t can take years to build a reputation and only a single accusation, although un
founded, to destroy it. (Godinez vs. Alano, A.M. RTJ-98-1409, February 18, 1999)
I.
Cases to be heard by the SC En Banc: 1. Cases in which the constitutionality or
validity of any treaty, international or executive agreement, law, executive ord
er, or presidential decree, proclamation, order, instruction, ordinance, or regu
lation is in question; 2. Cases raising novel questions of law; 3. Cases affecti
ng ambassadors, other public ministers and consuls; 4. Cases involving decisions
, resolutions or orders of the Civil Service Commission, Commission on Election,
and Commission on Audit; 5. Cases where the penalty to be imposed is the dismis
sal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or
either the suspension of any of them for a period of more than one (1) year or
a fine exceeding ten thousand pesos (P10,000.00) or both; 6. Cases where a doctr
ine or principle laid down by the court en banc or in division may be modified o
r reversed; 7. Cases assigned to a division which in the opinion of at least thr
ee (3) members thereof merit the attention of the court en banc and are acceptab
le to a majority of the actual membership of the court en banc; and 8. All other
cases as the court en banc by a majority of its actual membership may deem of s
ufficient importance to merit its attention. (Firestone Ceramics, Inc. vs. CA, 3
34 SCRA 465, June 28, 2000) Consultations/Decisions of SC—
The conclusions of the SC in any case submitted to it for decision en banc or in
division shall be reached in consultation before the case is assigned to a Memb
er for the writing of the
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Yearly Report—Within 30 days from the opening of each regular session of Congres
s, SC shall submit to the President and Congress an annual report on the operati
on and activities of the Judiciary. (Section 16, Art. VIII)
¥say
H. Power of Administrative Supervision—SC shall have administrative supervision
over all courts and personnel thereof.
opinion of the Court. A certification to this effect signed by the Chief Justice
shall be issued and a copy thereof attached to the record of the case and serve
d upon the parties. Any Member who took no part, or dissented, or abstained from
a decision or resolution must state the reason therefor. The same requirements
shall observe by all lower collegiate courts. Section 13, Article VIII This req
uirement does not apply to administrative cases
It does not apply to a minute resolution dismissing a petition for habeas corpus
, certiorari and mandamus, provided a legal basis is given therein. Neither will
it apply to administrative cases.
People vs. Baring, G.R. No. 137933, January 28, 2002, the trial court’s decision
may cast doubt on the guilt of the accused, not by the lack of direct evidence
against the accused but by:
No petition for review or motion for reconsideration of a decision of the court
shall be refused due course or denied without stating the legal basis therefor.
“Lack of merit” is sufficient declaration of the legal basis for denial of pet
ition for review
or motion for reconsideration.
Tichangco vs. Enriquez, G.R. No. 150629, June 30, 2004, when the Court, after de
liberating on a petition and any subsequent pleadings, manifestations, comments
or motions, decides to deny due course to a petition, and states—in a minute res
olution— that the questions raised are factual or no reversible error in the res
pondent court’s decision is shown or some other legal basis stated in the resolu
tion, there is sufficient compliance with the constitutional requirement.
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Page 2227/12/2008
1. 2. 3. 4.
the trial court’s failure to fully explain the correlation of the facts; the wei
ght of the admissibility of the evidence; the assessments made from the evidence
; and The conclusion drawn therefrom, after applying the pertinent law as basis
of the decision.
¥say
Section 14, Article VIII—No decision shall be rendered by any court without expr
essing therein clearly and distinctly the facts and the law on which it is based
.
WRIT OF AMPARO
WRIT OF AMPARO—it is a remedy available to any person whose right to life, liber
ty, and security has been violated or is threatened with violation by an unlawfu
l act or omission of a public official or office, or of a private individual or
entity. The writ covers extralegal killings and enforced disappearances or threa
ts thereof. It is a writ which may be issued by the courts based on this constit
utional power of the SC to promulgate rules for the protection and enforcement o
f constitutional rights. It is a remedy to enforce fundamental rights. It would
compel state agents to look for the missing person and the agents would be held
liable if they did not exert adequate effort in finding the person. “amparo”—mea
ns protection, from “amparar” meaning “to protect” Who may file? The petition ma
y be filed by the aggrieved party or by any qualified person or entitiy in the f
ollowing order: Any member of the immediate family, namely: i. Spouse ii. Chil
dren iii. Parents of the aggrieved party
Any ascendant, descendant or collateral relative of the aggrieved party within t

he 4th civil degree of consanguinity or affinity, in default of those mentioned
above; or Any concerned citizen, organization, association, or institution, if t
here is no known member of the immediate family or relative of the aggrieved par
ty.
The filing of a petition by the aggrieved party suspends the right of all othe
r authorized parties to file similar petitions. Likewise, the filing of the peti
tion by an authorized party on behalf of the aggrieved party suspends the rights
of all others, observing the order established by the law.
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Page 2237/12/2008
¥say
The Rule on Writ of Amparo (A.M. No. 07-9-12-SC) It was drafted pursuant to the
constitutional power of the Supreme Court to promulgate rules and regulations fo
r the protection and enforcement of constitutional rights.
Where can be filed? The petition may be filed on any day at any time with the: •
RTC of the place where the threat, act or omission was committed or any of its
elements occurred; • Sandiganbayan • Court of Appeals or any Justice of such cou
rts • Supreme Court
In case the writ cannot be served personally on the respondent, the rules on s
ubstituted service shall apply. A clerk of court who refuses to issue the writ a
fter its allowance, or a deputized person who refuses to serve the same, shall b
e punished by the court, justice or judge for contempt without prejudice to othe
r disciplinary actions. Return of the Writ—the respondent shall file a verified
written return together with the supporting affidavits within seventy-two (72) h
ours. If he fails to file a return, the court, justice or judge shall proceed to
hear the petition ex parte or even without the appearance of the respondent. RT
C—returnable before such court or judge Returnable before such court or any jus
tice thereof; or SB/CA To any RTC of the place where the threat, act or omissio
n was committed or any of its elements occurred Returnable before such court or
any of its justices; SC Before the SB or CA or any of their justices; or To a
ny RTC of the place where the threat, act or omission was committed or any of it
s elements occurred
Hearing on the Petition— The hearing shall be summary in nature. However, the co
urt, justice or judge may call for a preliminary conference to clarify or simpli
fy some issues and determine the possibility of obtaining stipulations and admis
sions from the parties.
224
Page 2247/12/2008
¥say
The writ shall be enforceable anywhere in the Philippines. The court, justice
or judge shall immediately order the issuance of the writ if on the face of the
petition it ought to issue. It is served on the respondent by a judicial officer
or by a person deputized by the court, justice or judge who shall retain a copy
on which to make a return of service.
Available Interim Reliefs: 1. Temporary Protection Order—upon motion or motu pro
prio, the court, justice or judge may order that the petitioner or the aggrieved
party and any member of the immediate family be protected in a government agenc
y or by an accredited person or private institution capable of keeping and secur
ing their safety
2. Inspection Order—issued to any person in possession or control of a
designated land or other property, to permit entry for the purpose of inspecting
, measuring, surveying, or photographing the property or any relevant object or
operation thereon. The movant must show that the order is necessary to establish
the right of the aggrieved party alleged to be threatened or violated. It expir
es five (5) days after date of its issuance, unless extended for justifiable rea
sons.
3. Witness Protection Order—the witness may be referred to the DOJ for
Only the first two interim reliefs are available to the respondent after he fi
led a verified motion supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent, and after due hearing. Th
e Court shall render judgment within 10 days from the time the petition is submi
tted for decision. If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as ma
y be deemed proper and appropriate; otherwise, the privilege shall be denied. If
the court determines that it cannot proceed for a valid cause such as the failu
re of petitioner or witnesses to appear due to threats on their lives, it shall
not dismiss the petition. The court shall archive it instead. The amparo court m
ay, on its own or upon motion by any party, order revival of the petition when r
eady for further proceedings. The petition shall be dismissed with prejudice upo
n failure to prosecute the case after the lapse of two (2) years from notice to
the petitioner of the order archiving the case. Does the filing of the petition
preclude the filing of separate criminal, civil or administrative actions? No
. However, when a criminal action has been commenced, no separate petition for t
he writ shall be filed, but the reliefs under the writ shall be available by mot
ion in the criminal case, and the procedure under this rule shall govern the dis
position of the reliefs available under the writ of amparo.
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Page 2257/12/2008
admission to the Witness Protection, Security and Benefit Program, or to other g
overnment agencies, or to accredited persons or private institutions capable of
keeping and securing their safety.
¥say
When a criminal action is filed subsequent to the filing of a petition for the w
rit, the latter shall be consolidated with the criminal action. When a criminal
action and a separate civil action are filed subsequent to a petition for a writ
of amparo, the latter shall be consolidated with the criminal action. After con
solidation, the procedure under this Rule shall continue to apply to the disposi
tion of the reliefs in the petition.
POWER OF JUDICIAL REVIEW—
It is the power of courts to test validity of executive and legislative acts if
the same are in accordance with the Constitution. It is an expression of suprema
cy of Constitution. Justiciable Question—a given right, legally demandable and e
nforceable, an act or omission violative of such right, and a remedy granted by
law for said breach of right Political Questions—those questions which, under th
e constitution, are to be decided by the people in their sovereign capacity; or
in regard to which full discretionary authority has been delegated to the legisl
ative or executive branches of government. Political Question Doctrine has been
greatly diminished. •Political questions are questions of policy. They involve t
he wisdom of an act or the efficacy or the necessity of a particular measure. Th
ese are questions which are better left for the political branches of the govern
ment to determine or resolve.
•Arose from doctrine of separation of powers
Two (2) Types of Political Question 1. Those to be decided by the people themsel
ves in their sovereign capacity 2. Full discretionary authority has been delegat
ed by the Constitution to the Legislative or Executive branch of the government
Legislative and Executive—political branches of the government—where laws are e
nacted and enforced RECALL- a mode of removing a local official from his post ev
en before his term ends due to lack of confidence. It is a political question wh
ich can not be intruded by the courts. Ybardone vs. COMELEC- lack of confidence
is to be decided by the people thru a special recall election
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Page 2267/12/2008
¥say
Lawyer s League vs. Aquino—Petitioner questioned the legality of the Aquino Gove
rnment. -the SC dismissed the petition that it has gone outside the ambit of jud
icial review - the mere presence of the people, without inquiring to their motiv
e in going to EDSA, caused Marcos to fly to Hawaii. Estrada vs. Desierto (2001)
The Petition questioned the legitimacy of the assumption of office by then Vice
President GMA Lawyer s League case was cited by respondents; that the case pre
sented a political question, hence not subject to judicial review SC held that
the case of Lawyer s League is inapplicable; the government of former President
Aquino was the result of a successful revolution by the sovereign people, albeit
a peaceful one. No less than the Freedom Constitution declared that the Aquino
government was installed through a direct exercise of the power of the Filipino
people "in defiance of the provisions of the 1973 Constitution, as amended." It
is familiar learning that the legitimacy of a government sired by a successful r
evolution by people power is beyond judicial scrutiny for that government automa
tically orbits out of the constitutional loop. In checkered contrast, the govern
ment of respondent Arroyo is not revolutionary in character. The oath that she t
ook at the EDSA Shrine is the oath under 1987 Constitution. In her oath, she cat
egorically swore to preserve and defend the 1987 Constitution. Indeed, she has s
tressed that she is discharging the powers of the presidency under the authority
of the 1987 Constitution. The case at bar pose legal and not political question
s. The principal issues for resolution require the proper interpretation of cert
ain provisions in the 1987 Constitution, notably Sec. 1 of Article II and Sec. 8
of Article VI, and the allocation of governmental powers under Section 11 of Ar
ticle VII. The issues likewise call for a ruling on the scope of presidential im
munity from suit. They also involve the correct calibration of the right of peti
tioner against prejudicial publicity. Thus, respondent s invocation of the doctr
ine of political question is but a foray in the dark. EDSA I EDSA II -involves t
he exercise of people power of -involves the exercise of people power of revolut
ion which overthrows the whole freedom of speech and freedom of government assem
bly to petition the government for redress of grievances which only affected the
office of the President -extra constitutional and the legitimacy of -intra cons
titutional and the resignation the new government that resulted from it of the s
itting President that it caused and cannot be the subject of judicial review the
succession of the VP as President are subject to judicial review
227
Page 2277/12/2008
¥say
-presented a political question
-involves legal questions
Section 18, Article VII- Powers of the President 1. Calling out power as Command
er-in-Chief of the AFP 2. Power to proclaim martial law 3. Power to suspend the
privilege of the writ of habeas corpus CALLING-OUT POWER - full discretionary po
wer of the President. In effect, it is a political question not subject to judic
ial review UNLESS it can be shown that there is GRAVE ABUSE OF DISCRETION (GAD)
in the exercise of such power. -expanded power of the judicial review -mere abus
e of discretion will not do. The abuse must be grave. To doubt is to sustain the
power of the President.
Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction— capriciou
s and whimsical exercise of judgment. The abuse of discretion must be patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to per
form a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility. (Intestate Estate of Carmen de Luna vs. IAC, February 13, 1989) Ge
neral Rule: Calling out power is not subject to judicial review and is considere
d a political question. Exception: When there has been a GAD. #s 2 and 3- are n
ot political questions. They are subject to judicial review as expressly provide
d in Sec. 18 (3), Article VII: xxx The SC may review, in an appropriate proceedi
ng filed by
228
Page 2287/12/2008
¥say
IBP vs. ZAMORA (2000) The SC said that when the President calls out the armed fo
rces to suppress lawless violence, rebellion or invasion, he necessarily exercis
es a discretionary power solely vested in his wisdom. The Court cannot overrule
the President s discretion or substitute its own. The only criterion is that "wh
enever it becomes necessary", the President may call out the armed forces. In th
e exercise of the power, on-the-spot decisions may be necessary in emergency sit
uations to avert great loss of human lives and mass destruction of property. Ind
eed, the decision to call out the armed forces must be done swiftly and decisive
ly if it were to have any effect at all.
any citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof, an
d must promulgate its decision thereon within 30 days from its filing. xxx Rando
lf David, et al. vs. GMA, et al. (2006) Petitioners failed to rebut the asserti
on that GMA acted with grave abuse of discretion SC uphold the constitutionalit
y of PP1017 insofar as it constitutes a call by the President for the AFP to pre
vent or suppress lawless violence. The proclamation is sustained by Sec. 18, Art
. VII and other relevant jurisprudence. However, PP 1017 s extraneous provisions
giving the President express or implied power (1) to issue decrees; (2) to dire
ct the AFP to enforce obedience to all laws even those not related to lawless vi
olence as well as decrees promulgated by the President; and (3) to impose standa
rds on media or any form of prior restraint on the press, are ultra vires and un
constitutional. The Court also rules that under Sec. 17, Art. XII, the president
, in the absence of legislation, cannot take over privately-owned public utility
and private business affected with public interest. ultra-vires acts and uncons
titutional: a. warrantless arrest of petitioners David and Llamas; b. the disper
sal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; c. i
mposition of standards on media or any prior restraint on the press; d. warrantl
ess search of the Tribune offices and the whimsical seizures of some articles fo
r publication and other materials Section 23 (2), Article VI: In times of war or
other national emergency, the Congress may, by law, authorize the President, fo
r a limited period and subject to restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless soon
er withdrawn by resolution of the Congress, such powers shall cease upon the nex
t adjournment thereof. Generally, Congress is the repository of emergency powers
. This is evident in the tenor of the above provision authorizing it to delegate
such powers to the President. Certainly, a body cannot delegate a power not rep
osed upon it. However, knowing that during grave emergencies, it may not be poss
ible or practicable for Congress to meet and exercise its powers, the Framers of
the Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus: (1) There must be war or oth
er emergency (2) The delegation must be for a limited period only (3) The delega
tion must be subject to restrictions as the Congress may
229
Page 2297/12/2008
¥say
*emergency power must be authorized by Congress (thru an enactment of law) *she
is not exercising emergency power because there was no law enacted by Congress a
uthorizing her to exercise such power General rule: POTESTA DELEGATA NON DELEGAR
E POTEST- what has been delegated cannot be re-delegated. It is based on ethical
principle that delegated powers constitutes not only a right but a duty to be p
erformed by the delegate through the instrumentality of his own judgment and not
through the intervening mind of another. While PAGCOR is allowed under its char
ter to enter into operator’s and/or management contracts, it is not allowed to r
elinquish or share its franchise, much less grant a veritable franchise to anoth
er entity such as SAGE. In Lim vs. Pacquing, 240 SCRA 649, the Court clarified t
hat “since ADC has no franchise from Congress to operate jai-alai, it cannot, ev
en if it has license or permit from the City Mayor, operate jai-alai in the City
of Manila”. By the same token, SAGE has to obtain a separate legislative franch
ise, and not “ride on” PAGCOR’s franchise if it were to legally operate on-line
internet gambling (Jaworski vs. PAGCOR, G.R. No. 144463, January 14, 2004). Exce
ptions: Permissible Delegation of Powers (PETAL) P-eople power thru plebiscite a
nd initiative- (Sec. 32, ART VI; Sec. 10, Art. X; Sec. 2, Art. XVII; RA 6735) Un
der the 1987 Constitution, there are specific provisions where the people have r
eserved to themselves the function of legislation. Referendum vs. Plebiscite Ref
erendum Plebiscite -the power of the electorate to approve or -the electoral pro
cess by which an initiative reject legislation through an election called on the
Constitution is approved or rejected
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prescribe (4) The emergency power must be exercised to carry out a national poli
cy declared by Congress Let it be emphasized that while the President alone can
declare a state of national emergency, however, without legislation, he has no p
ower to take over privately-owned public utility or business affected with publi
c 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 h
ave ceased. Likewise, without legislation, the President has no power to point o
ut the types of businesses affected with public interest that should be taken ov
er. In short, the President has no absolute authority to exercise all the powers
of the State under Section 17, Article XII in the absence of an emergency power
s act passed by Congress.
for that purpose by the people E-mergency power of the President. (Sec. 23(2), A
rt. VI) T-ariff Powers to the President. (Sec. 28(2), Art. VI) A-dministrative a
gencies- “The power of subordinate legislation.” L-ocal government. (RA 7160) “S
uch legislation (by LG) is not regarded as a transfer of general legislative pow
er, but rather as the grant of the authority to prescribe local regulations, acc
ording to immemorial practice, subject, of course, to the interposition of the s
uperior in cases of necessity” (People vs. Vera). This recognizes the fact that
local legislatures are more knowledgeable than the national lawmaking body on ma
tters of purely local concern, and are in better position to enact appropriate l
egislative measures thereon. Tests for Valid Delegation: 1. Completeness Test—Th
e law must be complete in all its essential terms and conditions when it leaves
the legislature so that there will be nothing left for the delegate to do when i
t reaches him except to enforce it.
2. Sufficient Standard Test—intended to map out the boundaries of the delegate’s
authority by defining the legislative policy and indicating the circumstances un
der which it is to be pursued and effected. This is intended to prevent a total
transference of legislative power from the legislature to the delegate. Three (3
) Important Functions of Judicial Review 1. Checking 2. Legitimating Rule on Do
uble Negative—uses the term “not unconstitutional”; the court cannot declare a l
aw constitutional because it already enjoys a presumption of constitutionality 3
. Symbolic - educating the bar and bench and the people on the extent of protect
ion given by the constitutional guarantees Proclamation No. 1021 was issued lif
ting PP 1017- it becomes moot and academic but SC did not agree as the case is c
apable of repetition. Requisites for the proper exercise of Power of Judicial Re
view 1. Actual case or controversy- must be definite, concrete, bearing upon the
legal relations of parties who are pitted against each other due to their adver
se legal interests. -susceptible of judicial determination
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Philippine courts may not render advisory opinion. There must always be an actu
al case or controversy EXCEPT: Int l Court of Justice-principal judicial organ o
f the United Nations- ICJ may render advisory opinions. Its 2 main functions are
: (a) to decide contentious cases; and (b) to render advisory opinions upon requ
est of the General Assembly, or the Security Council, or the other organs of the
UN when authorized by the General Assembly.
The issue raised in the case must not be moot and academic, or because of subse
quent developments, have become moot and academic. MOOT and ACADEMIC PRINCIPLE G
eneral Rule: Court will have to dismiss the case. There is no more actual case t
o be resolved. Exceptions: (David vs. GMA) a. Grave violation of the Constitutio
n b. The exceptional character of the situation and the paramount public interes
t is involved c. Constitutional issue raised requires formulation of guiding and
controlling constitutional principles, precepts, doctrines or rules and the sym
bolic function to educate the bar and bench and the people on the extent of prot
ection given by the constitutional guarantees d. Case is capable of repetition y
et evading review—it presupposes that: i. The life of the controversy is too sho
rt to be fully litigated prior to its termination, and ii. That there is a reaso
nable expectation that the plaintiff will again be subjected to the same problem
2. The constitutional question must be raised by the proper party—A proper party
is one who has sustained or is in imminent danger of sustaining an injury as a r
esult of the act complained of. (LOCUS STANDI) "Legal Standing"- personal and su
bstantial interest in the case such that the party has sustained or will sustain
direct injury as a result of governmental act. A party s standing in court is a
procedural technicality which may be set aside by the
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A request for an advisory is not an actual case or controversy. But an action f
or declaratory relief is proper for judicial determination.
Court in view of the importance of the issues involved. Thus, where the issues r
aised by the petitioners are of paramount public interest, the Court may, in the
exercise of its discretion, brush aside the procedural barrier. (Kilosbayan vs.
Guingona, 232 SCRA 110)
In IBP vs. Zamora, G.R. No. 141284, August 15, 2000, the petition seeking to nul
lify the order of Pres. Estrada for the deployment of the Philippine Marines to
join the PNP in visibility patrols around Metro Manila area, was dismissed on th
e ground that the IBP had no legal standing to question the presidential act. Li
m vs. Executive Secretary (2002)—Because of the paramount importance and the con
stitutional significance of the issues raised in the Petition, the Court, in the
exercise of its sound discretion, brushed aside the procedural barrier and took
cognizance of the petitions. Information Technology Foundation vs. COMELEC (200
4)— the subject matter of the case is a matter of public concern and imbued with
public interest; it is of paramount public interest and of transcendental impor
tance. Kilosbayan vs. Morato, 246 SCRA 540, the petitioners do not posses the le
gal capacity to institute the action for annulment of the Equipment Lease Agreem
ent (ELA) because they are without a “present substantial interest”, as distingu
ished from mere expectancy, or future, contingent, subordinate or consequential
interest. “present substantial interest” means such interest of a party in the s
ubject matter of the action as will entitle him, under substantive law, to recov
er if the evidence is sufficient, or that he has a legal title to defend and the
defendant will be protected in payment to or recovery from him. In Domingo vs.
Carague, G.R. No. 161065, April 15, 2005, the petitioners failed to show any dir
ect and personal interest in the COA Organizational Restructuring Plan; there wa
s no indication that they have sustained or are in imminent danger of sustaining
some direct injury as a result of its implementation; and they admitted that th
ey do not seek any affirmative relief nor impute any improper or improvident act
against the respondents. Clearly, then, they do not have any legal standing to
file the instant suit. In Cutaran vs. DENR, G.R. No. 134958, January 31, 2001, t
he SC refused to give due
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¥say
In Sanlakas vs. Executive Secretary, G.R. No. 159085, February 3, 2004, Rep. Sup
lico, et al., and Senator Pimentel were considered as proper parties to contest
the constitutionality of Pres. Arroyo’s proclamation of a “state of rebellion” a
fter the Oakwood incident.
course to a petition seeking to enjoin the DENR from processing the ancestral la
nd claim of private respondent over a property located at Camp John Hay reservat
ion in Baguio, on the ground that there is no actual or imminent violation of th
e petitioner’s asserted right. Court will not touch an issue involving the valid
ity of a law unless there has been a governmental act accomplished or performed
that has a direct adverse effect on the legal right of the person contesting its
legality. Until such time, petitioners are simply speculating that they might b
e evicted from the premises at a future time.
Exception: FACIAL CHALLENGE. The statute is absolutely unconstitutional under no
circumstance. But the only time a facial challenge to a statute is allowed is w
hen it operates in the area of freedom of expression. Invalidation of the statu
te “on its face”, rather than “as applied” is permitted in the interest of preve
nting a chilling effect on freedom of expression. Overbreadth Doctrine—permits a
party to challenge the validity of a statute even though as applied to him, it
is not unconstitutional, but it might be if applied to others not before the Cou
rts whose activities are constitutionally protected. In Francisco, Jr. vs. Bayan
i Fernando, G.R. No. 166501, November 16, 2006, a citizen can raise a constituti
onal question only when 1) he can show that he has personally suffered some actu
al or threatened injury because of the allegedly illegal conduct of the governme
nt; 2) the injury is fairly traceable to the challenged action; and 3) a favorab
le action will likely redress the injury.
3. The constitutional question must be raised at the earliest opportune time—
generally, the question must be raised in he pleadings; however, in criminal cas
es, the question can be raised at any time at the discretion of the court; in ci
vil cases, the question can be raised at any stage of the proceedings if necessa
ry for the determination of the case itself; and in every case, except where the
re is estoppel, it can be raised at any stage if it involves the jurisdiction of
the court. In Umali vs. Guingona, G.R. No. 131124, March 21, 1999, the question
of constitutionality of the Presidential Commission on Anti-Graft and Corruptio
n (PCAGC) was not entertained because the issue was raised by the petitioner onl
y in his motion for reconsideration before the RTC of Makati. It was too late to
raise the issue for the first time at that stage of the proceedings.
4. The decision on the constitutional question must constitute the very LIS MOTA
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General rule: A party can question the validity of a statute only if, as applie
d to him, it is unconstitutional.
—must be determinative of the case itself/entire controversy In Arceta vs. Judge
Mangrobang, G.R. No. 152895, June 15, 2004, in a new challenge to the constitut
ionality of B.P. 22, the SC did not find the constitutional question to be the v
ery lis mota presented in the controversy. Every law has in its favour the presu
mption of constitutionality, and to justify its nullification, there must be a c
lear and unequivocal breach of the Constitution, and not one that is doubtful, s
peculative or argumentative.
(3) Upon the expiration of the corresponding period, a certification to this eff
ect signed by the Chief Justice or the presiding judge shall forthwith be issued
and a copy thereof attached to the record of the case or matter, and served upo
n the parties. The certification shall state why decision or resolution has not
been rendered or issued within said period. (4) Despite the expiration of the ap
plicable mandatory period, the court, without prejudice to such responsibility a
s may have been incurred in consequence thereof, shall decide or resolve the cas
e or matter submitted thereto for determination, without further delay. The ab
ove provision does not apply to Sandiganbayan. The provision refers to regular c
ourts of lower collegiate level that in the present hierarchy applies only to th
e Court of Appeals. The Sandiganbayan is a special court of the same level as th
e Court of Appeals and possessing all the inherent powers of a court of justice,
with functions of a trial court. Thus, the Sandiganbayan is not a regular court
but a special one. (Re: Problem of Delays in Cases Before the Sandiganbayan, A.
M. 00-8-05-SC, November 28, 2001) MEMORANDUM DECISIONS—
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PERIOD FOR DECISION Section 15, Article VIII—(1) All cases or matters filed afte
r the effectivity of this Constitution must be decided or resolved within twenty
-four (24) months from date of submission for the SC, and, unless reduced by the
SC, twelve months (12) for all lower collegiate courts, and three (3) months fo
r all lower courts. (2) A case or matter shall be deemed submitted for decision
or resolution upon the filing of the last pleading, brief, or memorandum require
d by the Rules of Court or by the court itself.
¥say
A specie of succinctly written decisions by appellate courts in accordance with
the provisions of Section 40, BP 129 on the grounds of: 1. Expediency 2. Practic
ality 3. Convenience 4. Docket status of the Court To be valid, it cannot incorp
orate the findings of fact and the conclusions of law of the lower court only by
remote reference, which is to say that the challenged decision is not easily an
d immediately available to the person reading the memorandum decision. For the i
ncorporation by reference to be allowed, it must provide for direct access to th
e facts and the law being adopted, which must be contained in a statement attach
ed to the said decision. In other words, the memorandum decision authorized unde
r Section 40 of BP 129 should actually embody the findings of fact and conclusio
ns of law of the lower court in an annex attached to and made an indispensable p
art of the decision. Distinctive Features and Purpose: 1. It is rendered by an a
ppellate court. 2. It incorporates by reference the findings of facts or the con
clusions of law contained in the decision, order, or ruling under review. This i
s to avoid cumbersome reproduction of the decision of the lower court, or portio
ns thereof, in the decision of the higher court. The idea is to avoid having to
repeat in the body of the higher court decision the findings or conclusions of t
he lower court since they are being approved or adopted anyway. 3. The purpose i
s to affirm the decision, although it is not impossible that the approval of the
finding of facts by the lower court may lead to a different conclusion of law b
y the higher court. (Yao vs. CA, 344 SCRA 202, October 24, 2000)
Article IX CONSTITUTIONAL COMMISSIONS
Independent Constitutional Commissions: 1. Civil Service Commission 2. Commissio
n on Elections 3. Commission on Audit Safeguards that guarantee the independence
of the Commissions:
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1. They are constitutionally created; may not be abolished by a statute; 2. Each
is conferred certain powers and functions which cannot be reduced by statute; 3
. Each expressly described as independent; 4. Chairmen and members are given fai
rly long term of office for seven (7) years; 5. Chairmen and members cannot be r
emoved except by impeachment; 6. Chairmen and members may not be reappointed or
appointed in an acting capacity; 7. Salaries of chairmen and members are relativ
ely high and may not be decreased during continuance in office; 8. Commissions e
njoy fiscal autonomy; 9. Each commission may promulgate its own procedural rules
; 10. Chairmen and members are subject to certain disqualifications calculated t
o strengthen their integrity; and 11. Commissions may appoint their own official
s and employees in accordance with Civil Service Law. Prohibitions and Inhibitio
ns: No member of a Constitutional Commission shall, during his tenure: 1. Hold a
ny other office or employment; 2. Engage in the practice of any profession; 3. E
ngage in the active management and control of any business which in any way may
be affected by the functions of his office; and 4. Be financially interested, di
rectly or indirectly, in other contract with, or in any franchise or privilege g
ranted by the government, any of its subdivision, agencies or instrumentalities,
including GOCCs or their subsidiaries. CHR Employees Association vs. CHR, G.R.
No. 155336, November 24, 2004, the Commission on Human Rights, unlike the three
Constitutional Commissions, does not enjoy fiscal autonomy. Civil Service Commis
sion vs. DBM, G.R. No. 158791, July 22, 2005, the “no report, no release” policy
may not be validly enforced against offices vested with fiscal autonomy, withou
t violating Sec. 5, Article IX-A of the Constitution. The “automatic release” of
approved annual appropriations to petitioner, a constitutional commission veste
d with fiscal autonomy should thus be construed to mean that no condition to fun
d releases to it may be imposed. However, petitioner’s claim that its budget may
not be reduced by Congress below the amount appropriated for the previous year,
as in the case of Judiciary, must be rejected. The provision in Section 3 of Ar
ticle VIII, prohibiting the reduction in the appropriation for the Judiciary bel
ow the amount appropriated for the previous year does not appear in Section 5, A
rticle IX-A. The plain implication of this omission is that Congress is not proh
ibited from reducing the appropriations of Constitutional Commissions below the
amount appropriated for them for the previous
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year. Certiorari Jurisdiction of the Supreme Court Limited to decisions render
ed in actions or proceedings taken cognizance of by the Commissions in the exerc
ise of their adjudicatory or quasi-judicial functions. It does not refer to pure
ly executive powers. Hence, questions arising from the award of a contract for c
onstruction of voting booths can be brought before the trial court. (Ambil vs. C
OMELEC, G.R. No. 143398, October 5, 2000)
CIVIL SERVICE COMMISSION
Composition: • 1 Chairman; • 2 Commissioners
Scope of the Civil Service: Embraces all branches, subdivisions, instrumentaliti
es and agencies of the Government, including government-owned and controlled cor
porations with original charters [Section 2(1), Article IX-B] Classes of Service
: Career Service—characterized by: a. Entrance based on merit and fitness to b
e determined by competitive examination or based on highly technical qualificati
on; b. Opportunity for advancement; and c. Security of tenure. Kinds of Career S
ervice: • Open Career Positions—prior qualification via examination; • Closed Ca
reer Positions—those highly technical position; • Career Executive Service—Under
secretaries, Bureau Directors; • Career Officers—those appointed by the Presiden
t like those in the foreign service; • Commissioned Officers and enlisted men of
the AFP—governed by
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Qualifications: 1. Natural-born citizen; 2. At least 35 years of age at the time
of appointment; 3. With proven capacity for public administration; and 4. Not a
candidate for any elective position in the election immediately preceding the a
ppointment. Term: Seven (7) years without reappointment
¥say
• •
separate merit system; Personnel of GOCCs—whether performing governmental propri
etary functions, with original charters; and Permanent laborers—whether skilled,
semi-skilled, or unskilled.
or
Non-Career Service—characterized by:
Exceptions to the requirement of Competitive Examinations: 1. Policy-determining
Position—one charged with laying down of principal or fundamental guidelines or
rules; 2. Primary Confidential Position—one denoting not only confidence in the
aptitude of the appointee for the duties of the office but primarily close inti
macy which ensures freedom of intercourse without embarrassment or freedom from
misgiving or betrayals of personal trust on confidential matters of state, or on
e declared to be so by the President upon recommendation of the Civil Service Co
mmission. 3. Highly Technical Position—requires the appointee to possess technic
al skill or training in the supreme or superior degree. CSC vs. Engr. Darangina,
G.R. No. 167472, January 31, 2007, where a non-eligible holds a temporary appoi
ntment, his replacement by another non-eligible is not prohibited. When a tempor
ary appointee is required to relinquish his office, he is being separated precis
ely because his term has expired.
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Kinds of Non-Career: • Elective official and their personal or confidential staf
f; • Department heads and other officials of Cabinet rank who hold positions at
the pleasure of the President and their personal or confidential staff; • Chairm
en and members of commissions and boards with fixed terms of office and their pe
rsonal or confidential staff; • Contractual personnel or those whose employment
in the government is in accordance with a special contract to undertake a specif
ic work or job; and • Emergency and seasonal personnel.
¥say
a. Entrance on bases other than those of the usual tests of merits and fitness u
tilized for the career service; and b. Tenure which is limited to a period speci
fied by law, which is co-terminus with that of the appointing authority or subje
ct to his pleasure, or which is limited to the duration of a particular project
for which purpose employment was made.
Tanjay Water District vs. Quinit, Jr. G.R. No. 160502, April 27, 2007, it is an
established rule that the tenure of office of those holding primarily confidenti
al positions ends upon loss of confidence, because their term of office lasts on
ly as longs as confidence in them endures. Their termination can be justified on
the ground of loss of confidence, in which case, their cessation from office in
volves no removal but the expiration of their term of office. Power to approve/d
isapprove appointments— The authority of CSC to approve appointments—to check wh
ether or not the appointee possesses the appropriate civil service eligibility o
r the required qualification —does not include the authority to make the appoint
ment itself or to direct the appointing authority to change the employment statu
s of an employee. The CSC can only inquire into the eligibility of the person ch
osen to fill a position and if it finds the person qualified, it must so attest.
If not, the appointment must be disapproved. (Province of Camarines Sur vs. CA,
G.R. No. 104639, July 14, 1995) In the case of Lopez vs. CSC, 194 SCRA 269, the
SC held that the CSC has no power to revoke an appointment simply because it be
lieves that the person protesting the appointment or somebody is better qualifie
d, for that will constitute an encroachment of the discretion vested solely in t
he appointing authority.
COMMISSION ON ELECTION
Composition: • One (1) Chairman • Six (6) Commissioners Qualifications: 1. Natur
al-born citizen; 2. At least 35 years of age at the time of appointment; 3. With
proven capacity for public administration; and 4. Not a candidate for any elect
ive position in the election immediately preceding the appointment. 5. Majority,
including the Chairman, must be members of the Philippine Bar who have been eng
aged in the practice of law for at least ten (10) years.
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Term: Seven (7) years without reappointment Section 1, par. 2, Article IX-C—Cha
irman and Commissioners of COMELEC are not subject to re-appointment
(See the case of Matibag vs. Benipayo re: ad interim appointment)
In Vinzons-Chato vs. COMELEC, G.R. No. 172131, April 2, 2007, once the winning c
andidate has been proclaimed, taken his oath, and assumed office as a Member of
the House of Representatives, the COMELEC’s jurisdiction over election contests
relating to his election, returns, and qualifications ends, and the HRET’s own j
urisdiction begins. In Quizon vs. COMELEC, G.R. No. 177927, February 17, 2008, t
he denial of due course or cancellation of one’s certificate of candidacy is not
within the administration powers of the Commission, but rather calls for the ex
ercise of its quasijudicial functions. Hence, the Court may compel COMELEC to ex
ercise such discretion and resolve the matter but it may not control the manner
of exercising such discretion. Powers and Functions: 1. Enforce and administer l
aw and regulations relative to the conduct of elections, plebiscite, initiative,
referendum or recall; 2. Exclusive original jurisdiction over all contests rela
ting to election, returns and qualifications of all elective regional, provincia
l, and city officials;
3. Exclusive appellate jurisdiction over all contests involving elective municip
al
officials decided by the RTC, or involving elective barangay officials by MTC; 4
. Decide, except those involving right to vote, all questions affecting election
s, including the determination of number and location of polling places, appoint
ment
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The prosecution of election law violators involves the exercise of the COMELEC’s
administrative powers. Thus, the COMELEC en banc can directly approve the recom
mendation of its Law Department to file the criminal information for double regi
stration against violators. There is no constitutional requirement that the fili
ng of the criminal information be first decided by any of the divisions of the C
OMELEC. (Baytan vs. COMELEC, G.R. No. 153945, February 4, 2003)
¥say
The COMELEC’s exercise of its quasi-judicial powers is subject to Section 3, Art
icle IXC which expressly requires that: 1. All elections cases, including pre-pr
oclamation controversies, shall be decided by the COMELEC in division, and 2. Th
e motion for reconsideration shall be decided by the COMELEC en banc.
of election officials and inspectors and registration of voters; 5. Deputize, wi
th concurrence of President, law enforcement agencies and instrumentalities for
exclusive purpose of insuring free, orderly, honest, peaceful and credible elect
ions.
6. Register, after sufficient publication, political parties, organizations or c
oalitions
7. File upon verified complaint or motu proprio petitions in court for inclusion
s or exclusions of voters; investigate and, where appropriate, prosecute cases o
f violations of election laws; 8. Recommend to Congress effective measures to mi
nimize election spending, limitation of places and prevent and penalize all form
s of election frauds, offenses, malpractice and nuisance candidates; and 9. Subm
it to the President and Congress, comprehensive reports on conduct of each elect
ion, plebiscite, initiative, referendum or recall.
COMMISSION ON AUDIT
Composition: • One (1) Chairman • Two (2) Commissioners Qualifications: 1. Natur
al-born citizen; 2. At least 35 years of age at the time of appointment; 3. CPA
with at least ten (10) years auditing experience or members of the Philippine Ba
r with at least ten (10) years practice of law; at no time shall all members bel
ong to the same position; and 4. Not a candidate for any elective position in th
e election immediately preceding the appointment. Term: Seven (7) years without
reappointment
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¥say
which must present their platform or program government; accredit citizen’s arms
;
Jurisdiction of the Commission: No law shall be passed exempting any entity of t
he Government, or any investment of public funds, from the jurisdiction of the C
OA. (Sec. 3, Article IX-C) Temporary or Acting capacity appointment by the Pres
ident to the COMELEC, COA, CSC is prohibited by the Constitution.
In Brillantes vs. Yorac, 192 SCRA 358, the designation of Commissioner Yorac as
Acting Commissioner of the COMELEC was a violation of Section 1, paragraph 1 of
Article IX-C.
Fiscal Autonomy— The 1987 Constitution expressly and unambiguously grants fiscal
autonomy only to Judiciary, the constitutional commissions, and the Office of O
mbudsman. The Commission on Human Rights has no fiscal autonomy. (CHR Employees’
Association vs.
CHR, G.R. No. 155336, July 21, 2006)
Article X LOCAL GOVERNMENT
(In relation to Republic Act No. 7160—Local Government Code) Public Corporation—
one created by the state either by general or special act for purposes of admini
stration of local government or rendering service in the public interest. De Fac
to Municipal Corporations—those where the people have organized themselves, unde
r color of law, into ordinary municipal bodies exercising their powers, with the
ir rights dependent quite as much as on acquiescence as on the regularity of the
ir origin. Requisites: 1. Valid law authorizing incorporation; 2. Attempt in goo
d faith to organizing under it; 3. Colorable compliance with law; and 4. Assumpt
ion of corporate powers.
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Powers and Duties: 1. Examine, audit and settle all accounts pertaining to reven
ue and receipts of, and expenditures or uses of funds and property owned or held
in trust or pertaining to government; 2. Keep general accounts of government an
d preserve vouchers and supporting papers; 3. Authority to define scope of its a
udit and examination, establish techniques and methods required therefore; and 4
. Promulgate accounting and auditing rules and regulations, including those for
preservation and disallowance.
Barangay—the basic political and territorial self-governing body corporate and i
s subordinate to the municipality or city of which it forms part.
Administrative regions—are mere groupings of contiguous provinces for administra
tive purposes. They are not territorial and political subdivisions like province
s, cities, municipalities and barangays. While the power to merge administrative
regions is not expressly provided for in the Constitution, it is a power which
has traditionally been lodged with the President to facilitate the exercise of t
he power of general supervision over local governments. Devolution—refers to the
act by which the national government confers power and authority upon the vario
us local government units to perform specific functions and responsibilities. [S
ection 17 (e, 2nd paragraph), LGC] Section 4, Article X—The President of the Phi
lippines shall exercise general supervision over local governments. Provinces wi
th respect to component cities and municipalities, and cities and municipalities
with respect to component barangays shall ensure that the acts of their compone
nt units are within the scope of their prescribed powers and functions. (See the
case of Judge Dadole on page 213) Section 6, Article X—A share in the national
taxes collected by the national government is another source of revenue for loca
l units. The amount will be “as determined by law.” This is distinct from the ta
xes which the local government itself
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Autonomous region—consists of provinces, cities, municipalities, and geographica
l areas sharing common and distinctive historical and cultural heritage, economi
c and social structures, and other relevant characteristics within the framework
of the constitution and the national sovereignty as well as the territorial int
egrity of the republic of the Philippines.
¥say
Local Government—described as a political subdivision of a nation or state which
is constituted by law and has substantial control of local affairs. These subdi
visions are the following: 1. Provinces; 2. Cities; 3. Municipalities; 4. Barang
ays; 5. Autonomous Region of Muslim Mindanao (ARMM); 6. Cordillera Administrativ
e Region (CAR); 7. Special metropolitan political subdivisions; Created for the
sole purpose of coordination of delivery of basic services. 8. Sub-provinces (a
s recognized by Article XVIII)
might impose. Section 7, Article X—Another source of revenue for local governmen
ts is the share in the proceeds from the exploitation and development of natural
resources found within the locality. This can take the form of financial benefi
ts for the local units coming from a share in fees, charges, and other incomes c
oming from development, and it can also take the form of direct benefit for the
population coming in the form, for instance, of cheaper electric power rates of
energy sourced in the locality, or priority in employment. This can be effected
either through national or local laws. Section 8, Article X—the term of office o
f elective local officials, except barangay officials, which shall be determined
by law, shall be three years and no such officials shall serve for more than th
ree consecutive terms. Voluntary renunciation of the office for any length of ti
me shall not be considered as an interruption in the continuity of his service f
or the full term for which he was elected. Section 8 cannot be more clear and ex
plicit—the term of office of elected local officials, shall be 3 years and no su
ch officials shall serve for more than 3 consecutive terms. Upon the other hand,
Section 43 (d) of the Local Government Code clearly provides than no local offi
cial shall serve for more than three (3) consecutive terms in the same position.
(Atty. Rivera III vs. COMELEC, G.R. Nos. 167591 and 170577, May 9, 2007) Sectio
n 10—Creation, division, merger, abolition, substantial change of boundaries are
not only subject to the criteria established in the local government code but a
lso subject to approval by a majority of the votes cast in a plebiscite in the p
olitical units directly affected. Authority to Create Local Government A local g
overnment unit may be created, divided, merged, abolished, or its boundaries sub
stantially altered: 1. Province, City, Municipality or any other political subdi
vision—only by Act of Congress 2. Barangays—ordinance passed by the Sangguniang
Panlalawigan or Panglungsod concerned in the case of any barangay within its ter
ritorial jurisdiction The creation or conversion of an LGU from one level to ano
ther level shall be based on verifiable indicators: a. Income—must be sufficient
, to provide for all essential facilities and services commensurate with the siz
e of its population; b. Population—based on total number of inhabitants within t
he territorial jurisdiction of the LGU; c. Land area—must be contiguous, unless
it comprises two or more islands or is separated by an LGU; properly identified
by metes and bounds; and
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¥say
sufficient to provide for such basic services and facilities. Division and Merge
r—LGU shall comply with the same requirements for their creation, provided it sh
all not reduce the income, population and land area of LGUs concerned to less th
an the minimum requirements prescribed; plebiscite be held in LGU affected; and
the assets and liabilities of creation shall be equitably distributed between th
e LGUs affected and the new LGU.
P20,000,000.00 250,000
P2,500,000.00 25,000
As to Income P100,000,000.00 P50,000,000.00 As to Population 150,000 200,000
2,000 (except Metro Manila or in HUCs, 5,000)
2,000 sq. kms. (not applicable if proposed province to be created composed of 2
or more islands)
50 sq. kms. (not applicable if proposed municipality to be created composed of 2
or more islands)
100 sq. kms.
Requisites before a province, city, municipality, or barangay may be created, di
vided, merged, abolished, or its boundary substantially altered: 1. It must be i
n accordance with the criteria established in the Local Government Code; 2. It i
s subject to approval by a majority of the votes cast in a plebiscite in the pol
itical units directly affected. (Section 10, Article X) Classification of Cities
: 1. Highly urbanized cities as determined by law; 2. Cities not raised to the h
ighly urbanized category but whose existing charters prohibit their voters from
voting in provincial elections; and 3. Component cities—cities which still are u
nder a province in some way. They cannot be denied a vote in the election of pro
vincial officials. Those in numbers 1 and 2 do not vote in provincial election
s, they are independent of the province. Residents are not qualified to run for
provincial positions.
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As to Land Area 100 sq. kms. (not applicable if proposed city to be created comp
osed of 2 or more islands)
¥say
Province
Municipality
City
Highly urbanized
Barangay
Abolition—when the income, population or land area has been irreversibly reduced
to less than the minimum standards prescribed for its creation, the LGU, thru a
law or ordinance, may be abolished. LOCAL OFFICIALS 1. Governor 2. Vice-Governo
r 3. Members of the Sangguniang Panlalawigan 4. Members of the Sangguniang Panlu
ngsod 5. Mayor 6. Vice-Mayor 7. Members of the Sangguniang Bayan 8. Punong Baran
gay 9. Members of the Sangguniang barangay 10. Sangguniang Kabataan QUALIFICATIO
NS: 1. Citizens of the Philippines; 2. Registered voter in the barangay, municip
ality, city or province, or in the case of a member of the SG Panlalawigan, Panl
ungsod, or Bayan, in the district where he intends to be elected; 3. Resident th
erein for at least 1 year immediately preceding election; 4. Able to read and wr
ite Filipino or any other local language or dialect; 5. On election day, age mus
t at least be: a. 23 years—for governor, vice-governor, member of the SG panlala
wigan, mayor, vice-mayor, or member of the SG panlungsod of HUC; b. 21 years—for
mayor, vice-mayor of independent component cities (ICC), component cities (CC),
or municipalities; c. 18 year—members of the SG panlungsod or SG Bayan, Punong
Barangay, member of the Sangguniang Pambarangay d. 15 years but not more than 18
years—for SK TERM OF OFFICE: THREE (3) YEARS MANNER OF ELECTION: 1. For governo
r, vice-governor, city or municipal mayor and vice-mayor, punong barangay—electe
d at large in their respective units; 2. For the SG panlalawigan, panlungsod and
bayan of HUC—elected in their respective district; 3. For SK Chairman and Membe
rs—elected by the registered voters of the Katipunan ng mga kabataan.
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¥say
DISQUALIFICATIONS: (Read Section 40, LGC) PROHIBITONS AND INHIBITIONS:
(Read Sections 89, 90 and 94 of the LGC and Article V)
What kind of local autonomy is contemplated by the Constitution? What about the
autonomy contemplated insofar as the autonomous regions are concerned?
1. The principle of local autonomy under the 1987 Constitution simply means
“decentralization.” It does not make local governments sovereign within the stat
e or an “imperium in imperio.” Remaining to be an intra sovereign subdivision of
one sovereign nation; but not intended, however, to be an “imperium in imperio,
” the LGU is autonomous in the sense that it is given more power, authority, res
ponsibilities and resources. Power which used to be highly centralized in Manila
, is thereby deconcentrated, enabling especially the peripheral LGUs to develop
not only at their own pace and discretion but also with their own resources and
assets. (Alvarez vs. Guingona, Jr. 252 SCRA 695) 2. The constitutional guarantee
of local autonomy in the Constitution refers to the administrative autonomy of
LGUs or, cast in more technical language, the decentralization of government aut
hority.
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Autonomy—is either decentralization of administration or decentralization of pow
er. decentralization of administration decentralization of power The central g
overnment delegates It involves an abdication of political administrative powe
rs to political power in favor of the local government subdivisions in order to
broaden the base units declared autonomous. In that case, of government and in t
he process to make the autonomous government is free to local governments more r
esponsive and chart its own destiny and shape its own accountable, and ensure th
eir fullest future with minimum intervention from development as self-reliant co
mmunities central authorities. It amounts to selfand make them more effective pa
rtners in immolation, since in that event, the the pursuit of national developme
nt and autonomous government becomes social progress. At the same time, it accou
ntable not to the central authorities relieves the central government of the but
to its constituency. burden of managing local affairs and enables it to concent
rate on national concerns. The President exercises general supervision over them
, but only to ensure that local affairs are administered according to law. He ha
s no control over their acts in the sense that he can substitute their judgments
with his own.
¥say
On the otherhand, the creation of autonomous regions in Muslim Mindanao and the
Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant
of political autonomy and not just administrative autonomy to these regions. Thu
s, the provision in the Constitution for an autonomous regional government with
a basic structure consisting of an executive department and a legislative assemb
ly and special courts with personal, family and property law jurisdiction in eac
h of the autonomous regions. (Cordillera Broad Coalition vs. COA 181 SCRA 495) T
he dynamic and more important aspect of local autonomy must be measured in terms
of the scope of the powers given to the local units. Batangas CATV, Inc. vs. CA
, G.R. No. 138810, September 29, 2004, an ordinance enacted by virtue of the gen
eral welfare clause is valid, unless it contravenes the fundamental law of the P
hilippines, or an act of the Legislature, or unless it is against public policy,
or is unreasonable, oppressive, partial, discriminating, or in derogation of co
mmon right. A local government unit cannot enact an ordinance or approve a resol
ution in violation of a general law. Municipal authorities, under a general gran
t of power, cannot adopt ordinances which infringe the spirit of a state law or
repugnant to the general policy of the state. It is clear that in the absence of
constitutional or legislative authorization, municipalities have no power to gr
ant franchises. SJS vs. Atienza, Jr. G.R. No. 156052, March 7, 2007, the Sanggun
iang Panlungsod shall enact such ordinances as may be necessary to carry into ef
fect and discharge the responsibilities conferred upon it by law, and such as sh
all be necessary and proper to provide for the health and safety, comfort and co
nvenience, maintain peace and order and promote the general welfare of the commu
nity and inhabitants. There is a duty to enforce the Ordinance as long as it has
not been repealed by the Sanggunian or annulled by the courts. DAR vs. Sarangga
ni Agricultural Co., January 24, 2007, while the DAR retains the responsibility
for approving or disapproving applications for land use conversion filed by indi
vidual landowners on their landholdings, the exercise of such authority should b
e confined to compliance with the requirements and limitations under existing la
ws and regulations. The DAR’s power in such cases may not be exercised in such a
manner as to defeat the very purpose of the LGU concerned in reclassifying cert
ain area to achieve social and economic benefits in pursuit of its mandate towar
ds the general welfare. Police power of the Local Government— A local government
is considered to have properly exercised its police powers
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Page 2497/12/2008
¥say
only when the following requisites are met: 5. The interests of the public gener
ally, as distinguished from those of a particular class, require the interferenc
e of the State; Refers to the equal protection clause 6. The means employed are
reasonably necessary for the attainment of the object sought to be accomplished
and not unduly oppressive. Refers to the due process clause (Parayno vs. Jovel
lanos, G.R. No. 148408, July 14, 2006) The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the land, or a
n act of the legislature, or unless it is against public policy, or is unreasona
ble, oppressive, partial, discriminating, or in derogation of a common right. (T
ayaban vs. People, G.R. No. 150194, March 6, 2007)
Have the powers of LTO to register motor vehicles and to issue driver’s license
s for the operation thereof been devolved to local governments under the Local G
overnment Code? No. The only powers of the Land Transportation Franchising Reg
ulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to gra
nt franchises for the operation thereof had been devolved to local governments u
nder the Local Government Code (RA 7160). Clearly unaffected by the LGC are the
powers of the LTO under RA 4136 requiring the registration of all kinds of motor
vehicles “used or operated on or upon any public highway” in the country. (LTO
vs. City of Butuan, G.R. No. 131512, January 20, 2000) Is the MMDA a local gove
rnment unit or public corporation endowed with legislative power? Is it a specia
l metropolitan subdivision contemplated by Section 11, Article X of the Constitu
tion? May it validly exercise police power? May it validly order the opening or
closure of private subdivision streets to public vehicular traffic? The MMDA is
not a political unit of government. The power delegated to the MMDA is given to
the Metro Manila Council to promulgate administrative rules and regulations in t
he implementation of the MMDA’s function. There is no grant of authority to enac
t ordinances and regulations for the general welfare of the inhabitants of the m
etropolis. It is thus beyond doubt that the MMDA is not a local government unit
or a public corporation endowed with legislative power. It is not even a “specia
l metropolitan political subdivision” as contemplated in Section 11, Article X o
f the Constitution. The
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¥say
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. RA 7924 (law creating the MMDA) was not submitted to the inhabitants
of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official ele
cted 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 duti
es as may be assigned to him by the President, whereas in LGUs, the President me
rely exercises supervisory authority. This emphasizes the administrative charact
er of MMDA. The MMDA has no power to enact ordinances for the welfare of the com
munity. It is the LGUs, acting through their respective legislative councils, wh
ich possesses legislative power and police power. In the case at bar, the Sanggu
niang Panlungsod of Makati City did not pass any ordinance or resolution orderin
g the opening of Neptune Street, hence, its proposed opening by petitioner MMDA
is illegal. (MMDA vs. Bel-Air Village Association, Inc. 328 SCRA 836)
Public Office—the right, authority and duty created and conferred by law, by whi
ch for a given period, either fixed by law or enduring at the pleasure of the cr
eating power, an individual is invested with some sovereign functions of governm
ent to be exercised by him for the benefit of the public. (Fernandez vs. Sto. To
mas, 234 SCRA 546) Public office is a public trust—this requires that all govern
ment officials and employees must at all times be accountable to the people, ser
ve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. Public trust—implies a fiduciary
relationship between a public officer, who is a trustee, and the people, who are
the beneficiaries, of a public office. Said relationship makes the public offic
er the servant of the people, requires of him: a. Utmost responsibility; b. Inte
grity; c. Loyalty; d. Efficiency; e. Fidelity; f. Good faith; and g. Accountabil
ity in the discharge of his duties
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LAW OF PUBLIC OFFICERS
¥say
and demands that he takes no advantage of his position for his personal benefit
or to the prejudice of the public. Created by: 1. The Constitution—e.g. Office o
f the President; 2. Valid statutory amendments; 3. By authority of law. Elements
of Public Office: 1. Created by law or ordinance authorized by law; 2. Possesse
s sovereign functions of the government; 3. Functions defined expressly or impli
edly by law; 4. Functions exercised by an officer directly under the control of
law, not under a superior officer unless they be those of an inferior or subordi
nate office created or authorized by the legislature, and by it placed under the
general control of a superior office or body; and 5. Must have permanency or co
ntinuity. Characteristics: 1. Public office is a public trust; 2. Public office
is not a property and is outside the commerce of man. It cannot be subject of a
contract. PUBLIC OFFICERS—individuals vested with public office. Under RPC, Art.
203—any person who, by direct provision of 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 o
fficial, of any rank or class, shall be deemed to be a public officer. Under Sec
. 2, RA 3019—the term includes elective and appointive officials and employees,
permanent or temporary, whether in the classified, unclassified or exempt servic
e, receiving compensation, even nominal, from the government. Khan, Jr. vs. Offi
ce of the Ombudsman, G.R. No. 125296, July 20, 2006, in the case of officers/emp
loyees in GOCCs, they are deemed “public officers” if their corporations are tas
ked to carry out governmental functions.
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“classified, unclassified or exempt service”—Career and Non-Career service under
PD 807 Sec. 2 (14), Administrative Code—“officer” refers to a person whose duti
es not being a clerical or manual nature, involve the exercise of discretion in
the performance of the functions of government. When used with reference to a pe
rson having authority to do a particular act or perform a particular function in
the exercise of governmental power, “officer” includes any government employee,
agent or body having authority to do the act or exercise that function.
ELIGIBILITY AND QUALIFICATION
(Legislative in nature—belongs to Congress)
Two (2) Senses: 1. Endowments, qualities or attributes which make an individual
eligible for public office—the individual must possess the qualifications at the
time of appointment or election and continuously for as long as the official re
lationship continues; a. Citizenship—public office is reserved only to citizens
of the Philippines b. Residence—elective office or position; in Civil Law, resid
ence and domicile are different. One can have 1 domicile but several residences.
In Political Law, they are the same. ANIMUS REVERTENDI—the intent to return 3 k
inds of domicile in Political Law: i. Domicile of birth (original) ii. Domicile
of choice—the person left the original domicile without Animus Revertendi and es
tablished a new domicile iii. Domicile by operation of law— Marcos vs. COMELEC—f
ormer First Lady Imelda Marcos originally domiciled in Leyte. She married FM (fr
om Ilocos). Under the Civil Code, it is the duty of the wife to live with her hu
sband. She acquired the domicile of her husband, Ilocos Norte, by operation of l
aw. But when her husband died, the wife has no more duty to live with her husban
d. She automatically reverts back to her original domicile, Leyte. Animus Revert
endi is applied.
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Caasi vs. COMELEC—residence in a foreign country c. Age d. Political Affiliation
—as a rule, it is not a qualification. Exceptions: in Party-List, Membership in
the Electoral Tribunal, Commission on appointment 2. Act of entering into the pe
rformance of functions of public office—failure of an officer to perform an act
required by law could affect the officer’s title to the given office. (example:
taking the oath of office)
Examples: Sec. 17 (2) Art. XIII (Human Rights)— The Commission shall be composed
of a Chairman and four Members who must be natural-born citizens of the Philipp
ines and a majority of whom shall be members of the Bar. The term of office and
other qualifications and disabilities of the Members of the Commission shall be
provided by law. Section 7 (2), Article VIII— The Congress shall prescribe the q
ualifications of judges of lower courts, but no person may be appointed judge th
ereof unless he is a citizen of the Philippines and a member of the Philippine B
ar. 2. Statute—Congress has the plenary power to prescribe the qualification but
such must be: a. Germane to the purpose of the office; b. Not too specific so a
s to refer to only one individual. In Lecaroz vs. Sandiganbayan, G.R. No. 130872
, March 25, 1999, an oath of office is a qualifying requirement for public offic
e. Only when the public officer has satisfied this prerequisite can his right to
enter into the position be considered plenary and complete. Until then, he has
none at all, and for as long as he has not qualified, the holdover officer is th
e rightful occupant. An oath of office taken before one who has no authority to
administer is no oath at all. However, in Mendoza vs. Laxina, G. R. No. 146875,
July 14, 2003, once proclaimed and duly sworn in office, a public officer is ent
itled to assume office and to
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Authority to Prescribe Qualification: 1. Constitution—ordinarily, EXCLUSIVE. The
legislature may not increase or decrease qualifications except when the Constit
ution itself provides otherwise as when only minimum or no qualifications are pr
escribed.
¥say
exercise the functions thereof. The pendency of an election protest is not suffi
cient basis to enjoin him from assuming office or from discharging his functions
. Sec. 5 (1), Art. XVI—All members of the armed forces shall take an oath or aff
irmation to uphold and defend this Constitution. Q: A was elected/appointed to p
ublic office. He assumed office without taking the oath of office as prescribed
by the Constitution and relevant CSC rules and regulations. Are his acts valid?
A: Yes, A’s acts are considered valid, insofar as third parties and the general
public are concerned/rely on his acts—acts of a De Facto officer.
(See the case of Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 2007
)
DISQUALIFICATIONS The legislature has the right to prescribe disqualifications i
n the same manner that it can prescribe qualifications, provided that the prescr
ibed disqualifications do not violate the Constitution. General Disqualification
s under the Constitution 1. Sec. 6, Art. IX-B— No candidate who has lost in any
election shall, within one year after such election, be appointed to any office
in the Government or any GOCCs or in any of its subsidiaries.
2. Sec. 7 (1), Art. IX-B—refers to elective officials—“No elective official shal
l be
eligible for appointment or designation in any capacity to any public office or
position during his tenure.” In the case of Flores vs. Drilon, G.R. No. 104732,
June 22, 1993, RA 7227—creating the SBMA, one provision states that Mayor Dick G
ordon shall be appointed as Chairman and Chief Executive of the SBMA. The SC rul
ed for the constitutionality of his appointment as the first Administrator of th
e SBMA. He was allowed to act as Chairman in an ex-officio capacity. Section 7(1
) of Article IX-B of the Constitution refers to elective officials. The second p
aragraph, refers to appointive officials, made two exceptions: a. Unless otherwi
se allowed by law; or b. Unless otherwise allowed by the primary function of his
position. Hence, Mayor Gordon’s appointment is valid.
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Page 2557/12/2008
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3. Sec. 7 (2), Art. IX-B—Unless otherwise allowed by law or by the primary
functions of his position, no appointive officials shall hold any other office o
r employment in the Government or any subdivision, agency or instrumentality the
reof, including GOCCs or their subsidiaries. National Amnesty Commission vs. COA
, G.R. No. 156982, September 8, 2004, when another office is held by a public of
ficer in an ex-officio capacity, as provided by law and as required by the prima
ry functions of his office, there is no violation, because such other office doe
s not comprise “any other position”. The ex-officio position is actually and, in
legal contemplation, part of the principal office. But the official concerned i
s not entitled to receive additional compensation for his services in the said p
osition because his services are already paid for and covered by the compensatio
n attached to his principal office. Specific Disqualifications under the Constit
ution 1. Sec. 13, Art. VII—The President, VP, Member of the Cabinet, and their d
eputies or assistants shall not, unless otherwise provided in the Constitution,
hold any other office or employment during their tenure.
2. Sec. 13, Art. VI— No Senator or Member of the HOR may hold any other office
or employment in the government, or any subdivision, agency or instrumentality t
hereof, including GOCCs or their subsidiaries, during his term without forfeitin
g his seat. Neither, shall he be appointed to any office which may have been cre
ated or the emoluments thereof increased during the term for which he was electe
d. Incompatible Office - No Senator or Member of the HOR may hold any other offi
ce or employment in the government, or any subdivision, agency or instrumentalit
y thereof, including GOCCs or their subsidiaries, during his term without forfei
ting his seat. Forbidden Office - Neither, shall he be appointed to any office t
hat has been created or the emoluments thereof have been increased during the te
rm for which he was elected.
- The purpose is to prevent him from -the purpose is to prevent trafficking in o
wing loyalty to another branch of the public office. government, to the detrimen
t of the independence of the legislature and the doctrine of separation of power
s. -what is prohibited is the simultaneous -what is prohibited is the appointmen
t holding of that office and the seat in to the office during the term for which
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¥say
Congress. Any legislator may hold he was elected, when such office was another o
ffice or employment in the created or its emoluments were government provided he
forfeits his increased. seat in the Congress.
3. Sec. 12, Art. VIII—The Members of the SC and of other courts established by
5. Sec. 11, Art. XI—The Ombudsman and his Deputies shall not be qualified to run
for any office in the election immediately succeeding their cessation from offic
e.
6. Sec. 1, Art. IX-B; Art. IX-C; Sec. 1, Art. IX-D; Sec. 8, art. XI—Members of t
he
7. Sec. 1 (2), Art. IX-B; Sec. 1 (2), Art. IX-C; Sec. 1 (2), Art. IX-D; Sec. 11,
Art.
XI-- Members of the Constitutional Commissions, the Ombudsman and his Deputies a
re appointed to a term of seven (7) years without reappointment.
8. Sec. 13, Art. VII—the spouse and relatives by consanguinity or affinity withi
n the
fourth civil degree of the President shall not, during his tenure, be appointed
as Members of the Constitutional Commissions, or the Office of the Ombudsman, or
as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, incl
uding GOCCs. Public Interest Center, Inc. vs. Magdangal Elma, G.R. No. 138965, M
arch 5, 2007, the concurrent appointments of respondent as PCGG Chairman and Chi
ef Presidential Legal Counsel (CPLC) are unconstitutional. The concurrent appoin
tment to these offices is in violation of Section 7 (2), Article IX-B of the Con
stitution, since these are incompatible offices. The duties of the CPLC include
giving independent and impartial legal advice on the actions of the heads of var
ious executive departments and agencies and reviewing investigations involving h
eads of executive departments. Since the actions of the PCGG Chairman, a head of
an executive agency, are subject to the review of the CPLC, such appointments w
ould be incompatible. Disqualifications under the Local Government Code: (Sectio
n 40, LGC) The following persons are disqualified from running for any elective
local position:
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Constitutional Commissions, the Ombudsman and his Deputies must not have been ca
ndidates for any elective position in the elections immediately preceding their
appointment.
¥say
law shall not be designated to any agency performing quasi-judicial or administr
ative functions. 4. Sec. 2, Art. IX-A—No Member of a Constitutional Commission s
hall, during his tenure, hold any other office or employment. The same disqualif
ication applies to the Ombudsman and his Deputies—Sec. 8, Art. XI.
1. Those sentenced by final judgment for an offense involving moral turpitude or
for an offense punishable by one year or more of imprisonment, within two (2) y
ears after serving sentence; 2. Those removed from office as a result of an admi
nistrative case; 3. Those convicted by final judgment for violating the oath of
allegiance to the Republic; 4. Those with dual citizenship; 5. Fugitive from jus
tice in criminal or non-political cases here or abroad; 6. Permanent residents i
n a foreign country or those who have acquired the right to reside abroad and co
ntinue to avail of the same right after the effectivity of this Code; 7. The ins
ane or feeble-minded.
Rodriguez vs. COMELEC, 259 SCRA 296, the term “fugitive from justice” includes n
ot only those who flee after conviction to avoid punishment but likewise those w
ho, after being charged in the Philippines or abroad, flee to avoid prosecution.
Intent to evade on the part of a candidate must be established by proof that th
ere has already been a conviction or at least, a charge has already been filed,
at the time of flight. He is not a fugitive from justice when, at the time of de
parture from abroad to the Philippines, there is yet no complaint filed against
him abroad. In this case, it was established that the case was filed against Rod
riguez five (5) months after he had returned to the Philippines. What is control
ling is the intent to evade the California court.
DE FACTO OFFICERS—
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Caasi vs. COMELEC, 191 SCRA 229, to be qualified to run for elective office, the
law requires that the candidate who is a green card holder must have waived his
status as a permanent resident or immigrant of a foreign country. The waiver sh
ould be manifested by some act or acts independent of and done prior to filing h
is certificate of candidacy for elective office. The reason is that residence in
the municipality where he intends to run for elective office which is at least
one (1) year at the time of the filing of his certificate of candidacy, is one o
f the qualifications that a candidate must possess. The mere filing of his COC f
or elective office in the country is not sufficient. The election of a candidate
who is a green card holder or who has not validly waived his status as a green
card holder is null and void.
¥say
One who has reputation of being an officer that he assumes to be, and yet is not
an officer in point of law.
Requisites: 1. A valid existing office; 2. Actual physical possession of said of
fice; 3. Color of title to the office, either by: a. Reputation or acquiescence;
b. Known or valid appointment or election but officer failed to conform with le
gal requirements;
d. Known appointment of election pursuant to unconstitutional law before declara
tion of unconstitutionality.
De Facto Officer the person is in actual possession of office but he merely has
a color of title
De Jure Officer he has lawful title to hold office although he may be unlawfull
y deprived of his office
Usurper/Intruder he is in actual possession of the office without title or colo
rable title
acts are valid insofar as 3rd his acts are valid parties and the general publi
c is concern but he is not suppose to benefit from his acts—against public polic
y. challenged in a direct proceeding where the title challenged in a direct pr
oceeding thru quo
his acts are entirely void
can be attacked collaterally
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c. Known appointment or election but void because of ineligibility of officer or
want of authority of appointing or electing authority or irregularity in appoin
tment or election not known to the public; and
¥say
will be the principal issue
warranto; cannot be attacked collaterally
Legal Effects of Acts: Valid, binding and with full legal effect insofar as they
affect the public. It is intended for the protection of the public and individu
als who get involved in the official acts of persons discharging the duties of a
public office. (Monroy vs. CA, 20 SCRA 620) General Manager, PPA vs. Monsarate,
G.R. No. 129616, April 17, 2002, a rightful incumbent of a public office may re
cover from a de facto officer the salary received by the latter during the time
of his wrongful tenure, even though he (the de facto officer) occupied the offic
e in good faith and under color of title. Duties of a public officer: A. Constit
utional Duties a. To be accountable to the people; to serve them with utmost res
ponsibility, integrity, loyalty and efficiency; to act with patriotism and justi
ce; and to lead modest lives (Section 1, Article XI). b. To submit a declaration
under oath of his assets, liabilities and net worth upon assumption of office a
nd as often thereafter as may be required by law (Section 17, Article XI). c. To
owe the State and the Constitution allegiance at all times (Section 18, Article
XI). B. Specific Cases: a. The Solicitor General’s duty to represent the govern
ment, its offices and instrumentalities and its officials and agents—except in c
riminal cases or civil cases for damages arising from felony—is mandatory. Altho
ugh he has discretion in choosing whether or not to prosecute a case or even wit
hdraw therefrom, such discretion must be exercised within the parameters set by
law and with the best interest of the State as the ultimate goal. (Gonzales vs.
Chavez, 205 SCRA 817) b. The government is not stopped from questioning the acts
of its officials, more so if they are erroneous or irregular (Sharp Int’l Mktg.
vs. CA, 154 SCRA 88).
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¥say
Q: Is a de-facto officer lawfully entitled to the salary of the office he is occ
upying? A: No, he is not supposed to benefit from his acts. It is against public
policy. Otherwise, it will encourage other people to be a de facto officer that
will result to chaos. Exceptions: c. If there is no de-jure officer claiming fo
r the same salary; d. If the assumption/act was done in good faith.
Prohibitions: 1. Engaging in partisan political party except to vote 2. Addition
al or double compensation 3. Prohibition against loans 4. Laborers—shall not be
assigned to perform clerical duties 5. Detail or reassignment 6. Nepotism Rights
of public officers: 1. Right to office 2. Right to salary 3. Right to preferenc
e in promotion 4. Right to vacation and sick leave 5. Right to maternity leave 6
. Right to retirement pay 7. Others—right to reimbursement for expenses incurred
in the due performance of his duty; right to be indemnified; right to longevity
pay. COMMENCEMENT OF OFFICIAL RELATIONS A. By Appointment B. By Election APPOIN
TMENT— The selection, by authority vested with power, of individual who is to pe
rform functions of a given office. (Binamira vs. Garrucho, G.R. No. July 30, 199
0) It is an unequivocal act of designating or selecting by one having the author
ity therefor of an individual to discharge and perform the duties and functions
of an office or trust. The appointment is deemed complete once the last act requ
ired of the appointing authority has been complied with and its acceptance there
after by the appointee in order to render it effective. Appointment necessarily
calls for an exercise of discretion on the part of the appointing authority. Ber
mudez vs. Torres, 311 SCRA 733, the right of choice is the heart of the power to
appoint. In the exercise of power to appoint, discretion is an integral thereof
. Commission—is the written evidence of appointment. Designation—is the impositi
on of additional duties, usually by law, on a person already in public office. I
t presupposes that the person has already been appointed and merely given additi
onal function/tasks.
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¥say
A mere designation does not confer security of tenure, as the person designate
d occupies the position only in an acting capacity. (Sevilla vs. CA, 209 SCRA 63
7)
5. Regular—one made by the President while Congress is in session and becomes
effective after the nomination is confirmed by the Commission on Appointment and
continues until the end of the term. 6. Ad-interim— a. Recess—one made while th
e Congress is not in session, before confirmation by the Commission on Appointme
nt; immediately effective; and ceases to be valid if disapproved or bypassed by
CA upon the next adjournment of Congress; b. Midnight—made by the President befo
re his term expires, whether or not it is confirmed by the CA Matibag vs. Benipa
yo, G.R. No. 149036, April 2, 2002—(See discussion under Article VII) General Ma
nager, PPA vs. Monsarate, G.R. No. 129616, April 17, 2002, once an appointment i
s issued and the moment the appointee assumes a position in the civil service un
der a complete appointment, he acquires legal, not merely equitable, right to th
e position which is protected not only by statute, but also by the Constitution,
and cannot be taken away from him either by revocation of the appointment, or b
y removal, except for cause, and with previous notice and hearing. Acceptance by
appointee—pending such acceptance, which is optional to the appointee, the appo
intment may still be validly withdrawn. Appointment to a public office cannot be
forced upon citizen except for purposes of defense of the State under Section 4
, Article II of the Constitution, as an exception to the rule against involuntar
y servitude.
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a. Prior authorization of the Commissioner of the Civil Service b. To a person w
ho has not qualified in an appropriate examination c. But who otherwise meets th
e requirements for appointment to a regular position in the competitive service
d. Whenever a vacancy occurs e. The filing thereof is necessary in the interest
of the service and f. There is no appropriate register of those who are eligible
at the time of appointment.
¥say
Classification of appointments: 2. Permanent—extended to a person possessing the
requisite qualification for the position and thus enjoys security of tenure. 3.
Temporary—acting appointment given to a non-civil service eligible; is without
a definite tenure and is dependent upon the pleasure of the appointing power; 4.
Provisional—one which may be issued upon:
Discretion of appointing authority—appointment is essentially discretionary powe
r and must be performed by the officer in which it is vested according to his be
st lights, the only condition being that the appointee, id issued a permanent ap
pointment, should possess the minimum qualification requirements, including Civi
l Service eligibility prescribed by law for the position. This discretion also i
ncludes the determination of the nature or character of the appointment, i.e., w
hether the appointment is temporary or permanent. (Luego vs. CSC, 143 SCRA 327)
Acting appointment—a temporary appointment and revocable in character. Double Ap
pointment—not prohibited as long as the positions involved are not incompatible,
except that the officer or employee appointed cannot receive additional or doub
le compensation unless specifically authorized by law. Primarily confidential Po
sitions—denotes not only confidence in the aptitude of the appointee for the dut
ies of the office but primarily close intimacy which insures freedom of intercou
rse without embarrassment or freedom from misgivings of betrayals of personal tr
ust and confidential matters of state. It is the fact of loss of confidence, not
the reason for it that is important and controlling. (Santos vs. Macaraig, 208
SCRA 74) Next-in-Rank Rule—refers to a position which, by reason of the hierarch
ical arrangement of positions in the department or agency or in government, is d
etermined to be the nearest degree of relationship to a higher position taking i
nto account the following: 1. Organization structure is reflected in the approve
d organizational chart; 2. Classification and/or functional relationships; 3. Sa
lary and/or range allocation; 4. Geographical location. A qualified next-in-rank
is an employee appointed on a permanent basis to a position previously determin
ed to be next-in-rank to the vacancy proposed to be filled and who meets the req
uisites for appointment thereto as previously determined by the appointing autho
rity and approved by the Civil Service Commission. The next-in-rank rule neith
er grants a vested right to the holder nor imposes a ministerial duty on the app
ointing authority. The next-in-rank rule applies only if the vacancy is filled b
y promotion Transfer—a lateral movement in the same position Promotion—is a vert
ical movement of position
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¥say
Elective local official—3 years and may serve only for 3 consecutive terms -----
----------------1988—Capco was a Vice-Mayor 1989—the Mayor (Borja, Sr.) died, Ca
pco succeeded as Mayor 1992—Capco ran for Mayor and won 1995—he ran for re-elect
ion and won again 1998—Is he still qualified to run? The SC held that Mayor Capc
o is still qualified in 1998 local election. The right to be elected for 3 conse
cutive times for the same position was not present in this case. Mayor Capco did
not fully serve his term in 1989. He became a mayor thru succession and not ele
ction. (Borja, jr. vs. COMELEC & Mayor Capco of Pateros) ----------------------1
992 1995 X was elected Mayor 1998 However, in December 1, 2000, before his 3rd t
erm ends, he resigned. Is he still qualified to run as mayor for the next electi
on? No, he is no longer allowed to run. Resignation is not considered as an inte
rruption in the continuity of his service of office for which he was elected. --
-------------------1992 1995 1998 X was elected as Mayor
On December 1, 2000, before his 3rd term ends, he was removed for misconduct. He
did not appeal the case. The administrative case attained finality. Is he quali
fied to run again for mayor in the 2001 election?
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Page 2647/12/2008
¥say
LIMITATION ON THE TERM OF OFFICE— Two (2) Policies: 1. To prevent establishment
of political dynasty 2. Enhancing the freedom of choice of the people Two (2) c
onditions that must concur to apply Disqualification: 1. The local official was
elected for three (3) consecutive times, for the same position; 2. He had fully
served the three (3) consecutive terms.
No. he has been elected for 3 consecutive times for the same position. Section 4
0 (b) of the LGC provides for his disqualification—removed as a result of admini
strative case. However, if he appealed, he is still qualified because there is n
o finality of judgment yet. ---------------------1992 1995 X was elected as Mayo
r 1998 On December 1, 2000, he was removed for grave misconduct. He was able to
appeal seasonably. In May 2001, he filed his certificate of candidacy for mayor.
His opponent filed a disqualification case. The COMELEC did not act immediately
on the DQ case. He won as mayor. Held: 1. The DQ filed in COMELEC should be dis
missed as there was no finality yet of the administrative case. 2. The administr
ative case should also be dismissed. His re-election should be considered as a c
ondonation by the people of whatever administrative case filed against him. Doct
rine of Forgiveness or Condonation—when the people have elected a man to office,
it must be assumed that they did this with knowledge of his life and character,
and that they disregarded or forgave his faults or misconduct, if he had been g
uilty of any. It is not for the court, by reason of such faults or misconduct to
practically overrule the will of the people. Aguinaldo vs. Santos, 212 SCRA 768
, a public official cannot be removed for administrative conduct committed durin
g a prior term, since his re-election to office operates as a condonation of the
officer’s previous conduct to the extent of cutting off the right to remove him
therefor. The foregoing rule, however, finds no application to criminal cases p
ending against petitioner. Mayor Alvin Garcia vs. Hon. Mojica, et al., G.R. No.
139043, September 10, 1999, a re-elected local official may not be held administ
ratively accountable for misconduct committed during his prior term of office. T
he rationale for this holding is that when the electorate put him back into offi
ce, it is presumed that it did so with full knowledge of his life and character,
including his past misconduct. If, armed with such knowledge, it still reelects
him, such re-election is considered a condonation of his past misdeeds. 1992 19
95 Hagedorn was elected as Mayor 1998 In 2001, Hagedorn ran for governor but los
t. Socrates was elected as mayor.
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Page 2657/12/2008
¥say
June 30, 2001—end of Hagedorn’s term for mayor July 2, 2002—resolution calling f
or recall of Mayor Socrates September 2002—COMELEC set special election for Puer
to Princesa City; Hagedorn filed his COC for mayor. Was he qualified? Held: the
three (3)-term limit rule found in Sec. 43-b, LGC has two (2) parts: 1. Three (3
) consecutive terms 2. Any length of time will interrupt The provision speaks of
a regular election and not a special one. In this case, recall is a special ele
ction. It is not considered as immediate election. The immediate election that p
rohibits Hagedorn from running for mayor is the next regular election after his
3 consecutive terms has ended, the 2001 election. “any subsequent election”—is n
ot covered by the prohibition. He won in the September 2002 recall election. He
will continue the term of Socrates. His term will end on June 30, 2004—a term wh
ich is less than 3 years. What if in:
2004 2007
he was elected as Mayor May he run again in 2010? No more. Recall election term
is considered as one full term for purposes of applying the disqualification. Ot
herwise, Hagedorn will be allowed to serve for more than nine (9) years.
The above hypothetical problem was only an obiter dictum in the case of Socrat
es vs. COMELEC. The rule is, service of the recall term will not interrupt the 3
-consecutive term rule. In the case of Mendoza vs. COMELEC, the SC did not aband
on the ruling in Socrates because it was merely an obiter dictum. --------------
------------1995—Francis Ong ran for mayor, he won 1998—He ran and won again. Al
egre filed a protest. 2001—Ong ran and won again. The protest in 1998 was decide
d by the RTC on July 4, 2001 that it was Alegre who won in 1998 election.
266
Page 2667/12/2008
¥say
2004—Ong ran again. Alegre questioned. Ong alleged that his proclamation as mayo
relect in the May 1998 election was contested and eventually nullified by the RT
C of Daet. Issue: Whether or not Ong’s assumption of office as Mayor from July 1
, 1998 to June 30, 2001 may be considered as one full term service in the contex
t of the consecutive 3term limit rule? Held: The assumption of office from July
1, 1998 to June 30, 2001 constitutes “service for the full term” and should be c
ounted as a full term served in contemplation of the 3term limit prescribed by t
he Constitution and LGC, barring local elective officials from being elected and
serving more than 3-consecutive term for the same position. x x x His proclamat
ion by the Municipal Board of Canvassers of San Vicente as the duly elected mayo
r in the 1998 mayoralty election coupled by his assumption of office and his con
tinuous exercise of the functions thereof from start to finish of the term, shou
ld legally be taken as service for a full term in contemplation of the 3-term ru
le. There was no interruption or break in the continuity of Ong’s service respec
ting the 1998-2001 term. Ong was never unseated during the term in question; he
never ceased discharging his duties and responsibilities as Mayor of San Vicente
, Camarines Norte for the entire period covering the 1998-2001 term. In the case
of Lonzanida vs. COMELEC, 311 SCRA 602 (1999), Lonzanida was elected and served
for 2 consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1
995 elections. He then ran again for the same position in the May 1995 elections
, won and discharged his duties as Mayor. However, an election protest was filed
before RTC of Zambales. In a decision dated July 9, 1997, it was held that ther
e was a failure of elections and the position for mayor as vacant. Lonzanida ass
umed the office and performed his duties up to March 1998 only. During the 1998
elections, Lonzanida ran again for mayor. A petition to disqualify under the thr
ee-term limit rule was filed and was eventually granted. The Court held that Lon
zanida cannot be considered as having been duly elected to the post in the May 1
995 election, and that he did not fully serve the 1995-1998 mayoralty term by re
ason of involuntary relinquishment of office. He cannot be deemed to have served
the May 1995 to 1998 term because he was ordered to vacate (and in fact vacated
) his post before the expiration of the term. There was an involuntary severance
from office as a result of legal processes. In fine, there was an effective int
erruption of the continuity of service. VACANCIES AND SUCCESSION Concept of Vaca
ncy: Two (2) Principles to consider:
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¥say
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 vote
rs in each district in the immediately preceding local election. Governor Vice G
overnor Mayor Vice Mayor Punong Barangay
Highest ranking sanggunian member/2nd highest ranking sanggunian member
(in case of permanent inability of the highest ranking member)
In Case of tie between or among the highest ranking sanggunian members—it shal
l be resolved by the drawing of lots. The successors shall serve only the unex
pired terms of their predecessors. Section 44, LGC—Filling the vacancy Last-in-r
ank—the one who will replace him must come from the same political party of the
one who caused the vacancy, upon nomination of the party. Who shall appoint? 1.
President—through the Executive Secretary—in case of permanent vacancies in the
Sangguniang Panlalawigan and the Sangguniang Panlungsod of HUC and independent c
omponent cities; 2. Governor—in case of the Sangguniang Panglungsod of component
cities and the Sangguniang Bayan; 3. City or municipal mayor—in case of Sangggu
niang Barangay—upon recommendation of the Sangguniang Barangay concerned.
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Page 2687/12/2008
¥say
1. One who illegally terminated, by legal fiction, is deemed not to have vacated
his position 2. One, no matter how qualified, may not filled a position which i
s not vacant Rule on Automatic Succession (Section 44, LGC) A permanent vacancy
arises when an elective local official: 1. Fills a higher vacant office; 2. Refu
ses to assume office; 3. Fails to qualify; 4. Dies; 5. Is removed from office; 6
. Voluntarily resigns; 7. Or is otherwise permanently incapacitated to discharge
the functions of his office.
A nomination and a certificate of membership of the appointee from the highest
official of the political party concerned are conditions sine qua non. Any appo
intment without such nomination and certification shall be null and void ab init
io and shall be a ground for administrative action against the official responsi
ble therefor. No political party, how shall the vacancy be filled? (Section 45-c
, LGC) The local chief executive shall appoint, upon recommendation of the san
ggunian concern, a qualified person to fill the vacancy. Fariñas vs. Barba, the
last-in-rank sangguniang bayan member resigned. Mayor Barba, upon recommendation
of the Sangguniang Bayan, appointed somebody. However, Gov. Fariñas also appoin
ted somebody, upon recommendation of the Sangguniang Panlalawigan. The SC held t
hat neither is entitled to occupy the vacancy. It should have been Gov. Fariñas
who should appoint but the sanggunian who recommended should be the Sangguniang
Bayan where the vacancy took place. Navarro vs. CA, March 2001 Mayor— V-Mayor— 1
. 2. 3. 4. 5. 6. 7. 8. Lakas-NUCD Lakas-NUCD
SB Member SB Member SB Member came from Reforma Party SB Member SB Member SB Mem
ber—Lakas NUCD SB Member—Reforma Party SB Member—Lakas NUCD
The Mayor died. Vice Mayor succeeded. The #1 SB Member became the Vice Mayor. Th
e #8 slot became vacant. The Governor appointed somebody from Reforma Party. The
SC held that the appointment made by the governor is valid. The last ranking sh
all be filled by Reforma Party to maintain party representation in the Sanggunia
n as willed by the electorate.
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¥say
Gamboa, Jr. vs. Aguirre, July 1999 The Vice-Governor acted as Governor. Can he (
V-Governor) preside over the sessions of Sangguniang Panlalawigan? No. The creat
ion of temporary vacancy in the office of the governor creates a corresponding v
acancy in the office of the vice-governor. Section 49-d, LGC, the members presen
t and constituting a quorum shall elect from among themselves a temporary presid
ing officer. The rule on permanent vacancy should not be applied to temporary va
cancy. Who appoints the Barangay Secretary or Treasurer? In the case of Alquisol
a, Sr. vs. Gallardo Ocol, August 1999, the SC held that the Barangay secretary o
r treasurer shall be appointed conjointly by the Punong Barangay and the Sangggu
niang Barangay. Situations covered by the Law on Nepotism: One is guilty of nepo
tism if an appointment is issued in favor of a relative within the third civil d
egree of consanguinity or affinity of any of the following: a. Appointing author
ity; b. Recommending authority; c. Chief of the bureau of office; and d. Person
exercising immediate supervision. In the last situations (c and d), it is immate
rial who the appointing or recommending authority is. To constitute a violation
of the law, it suffices that an appointment is extended or issued in favor of a
relative within the 3rd civil degree of consanguinity or affinity of the chief o
f the bureau or office, or the person exercising immediate supervision over the
appointee. (CSC vs. Dacoycoy, G.R. No. 135805, April 29, 1999) Exemptions: 1. Pe
rsons employed in confidential capacity; 2. Teachers; 3. Physicians; 4. Members
of the AFP; 5. Member of any family who, after his appointment to any position i
n an office or bureau, contracts marriage with someone in the same office or bur
eau, in which event the employment or retention therein of both husband and wife
may be allowed. In Section 79 of the Local Government Code, the prohibition is
up to the 4th civil degree of consanguinity or affinity.
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Page 2707/12/2008
¥say
Laurel V vs. CSC, Governor Laurel appointed his brother as Civilian Security Off
icer, hence it is exempted, no violation as it is primarily confidential in char
acter. However, the governor subsequently designated the same brother as Acting
Provincial Administrator. The SC ruled that appointment and designation are two
different matters. But for purposes of the law on nepotism, the two are now the
same. Hence, there is now a violation of the law on nepotism. Debulgado vs. CSC,
it was alleged that the law applies only to original appointment and not to pro
motional appointment. The SC did not agree. The law applies to all kinds of appo
intment. The law does not distinguish. TERMINATION OF OFFICIAL RELATIONSHIP: 1.
Expiration of term or tenure 2. Reaching the age limit—compulsory retirement age
: 70 years of age for members of the
Judiciary; 65 for other government officers and employees
Term—the period of time during which a public officer has the right to hold the
public office Tenure—the period of time during which the public officer actually
held office Hold-over principle—[See the case of Lecaroz vs. SB (1999)]—in the
absence of any express or implied constitutional or statutory provision to the c
ontrary, the public officer is entitled to hold his office until his successor s
hall have been duly chosen and shall have qualified. The purpose is to prevent a
hiatus in public office. It implies that the office has a fixed term and the in
cumbent is holding onto the succeeding term. Where this provision is found, the
office does not become vacant upon the expiration of the term if there is no suc
cessor elected and qualified to assume it, but the present incumbent will carry
over until his successor is elected and qualified, even though it be beyond the
term fixed by law.
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3. Resignation 4. Recall 5. Removal 6. Abandonment 7. Acceptance of an incompati
ble office 8. Abolition of office 9. Prescription of the right to office 10. Imp
eachment 11. Death 12. Failure to assume elective office within 6 months from pr
oclamation 13. Conviction of a crime 14. Filing a certificate of candidacy
¥say
RECALL—the termination of official relationship of an elective official for loss
of confidence prior to expiration of his term through the will of the electorat
e. It is exercised by the registered voters of a local government unit to which
the local elective official subject to such recall belongs (Section 69, LGC) Pro
hibition from resignation: The elective local official sought to be recalled sha
ll not be allowed to resign while the recall process is in progress. Limitations
on Recall (Section 74, LGC) 1. Any elective local official may be the subject o
f a recall election only once during his term of office for loss of confidence.
2. No recall shall take place within one year from the date of the official’s as
sumption to office or one year immediately preceding a regular local election. P
aras vs. COMELEC, G.R. No. 123169, November 4, 1996, it was held that the SK Ele
ction is not a regular election within the contemplation of the LGC as would bar
the holding of a recall election. Neither will the recall election of the Mayor
be barred by the Barangay Election. Angobung vs. COMELEC, G.R. No. 126571, Marc
h 5, 1997, the “regular local election” referred to in Section 74, LGC, means th
at the approaching local election must be one where the position of the official
to be recalled is actually contested and to be filled by the electorate. RESIGN
ATION— is the act of giving up or the act of a public officer by which he declin
es his office and renounces the further right to use it. It is an expression of
the incumbent in some form, expressed 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: 1. An intention to relinquish a part of the term; 2. An act of
relinquishment;
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¥say
Indeed, the law abhors a vacuum in public offices, and courts generally indulge
in the strong presumption against a legislative intent to create, by statute, a
condition which may result in an executive or administrative office becoming, fo
r any period of time, wholly vacant or unoccupied by one lawfully authorized to
exercise its functions. This is founded on obvious considerations of public poli
cy, for the principle of holdover is specifically intended to prevent public con
venience from suffering of a vacancy and to avoid a hiatus in the performance of
government functions. (Lecaroz vs. Sandiganbayan, 305 SCRA 397, March 25, 1999)
3. Acceptance by the proper authority. The last one is required by reason of Art
icle 238 of the revised Penal Code. (Sanggguniang Bayan of San Andres, Catanduan
es vs. CA, 284 SCRA 276) Estrada vs. Desierto, G.R. Nos. 146710-15, March 2, 200
1, resignation is a factual question and its elements are beyond quibble: there
must be an intent to resign and the intent must be coupled by acts of relinquish
ment. The validity of a resignation is not governed by any formal requirement as
to for. It can be oral. It can be written. It can be express. It can be implied
. As long as the resignation is clear, it must be given legal effect. ABANDONMEN
T OF OFFICE—it is the voluntary relinquishment of an office by the holder, with
the intention of terminating his possession and control thereof. Indeed, it is a
specie of resignation; while resignation in general is a formal relinquishment,
abandonment is a voluntary relinquishment through nonuser. It springs from and
is accompanied by deliberation and freedom of choice. The concomitant effect is
that the former holder of an office, can no longer legally repossess it even by
forcible re-occupancy. ABOLITION OF OFFICE—it connotes an intention to do away w
ith such office wholly and permanently, as the word “abolished” denotes. Where o
ne office is abolished and replaced with another office vested with similar func
tions, the abolition is a legal nullity. In the case of UP Board of Regents vs.
Rasul, the renaming and restructuring of the PGH and its component units cannot
give rise to a valid and bona fide abolition of the position of PGH Director. Th
is is because where the abolished office and the offices created in its place ha
ve similar functions, the abolition lacks good faith. The abolition which merely
changes the nomenclature of positions is invalid and does not result in the rem
oval of the incumbent. The above notwithstanding, and assuming that the abolitio
n of the position of the PGH Director and the creation of the UP-PGH Medical cen
ter Director are valid, the removal of the incumbent is still not justified for
the reason that the duties and functions of the two positions are basically the
same. Canonizado vs. Aguirre, G.R. No. 133132, January 25, 2000, the substantial
identity in the functions between the two offices was indicia of bad faith in t
he removal of petitioner pursuant to a re-organization. REORGANIZATION—takes pla
ce when there is alteration of the existing structure of government offices or u
nits therein, including the lines of control, authority and responsibility betwe
en them. It involves a reduction of personnel, consolidation of offices, or abol
ition thereof by reason of economy or redundancy of functions. Naturally, it may
result in the loss of one’s position through removal or abolition of an office.
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Page 2737/12/2008
¥say
To be valid, it must also pass the test of good faith. Circumstances evidencing
bad faith in the removal of employees as a result of reorganization and which ma
y give rise to a claim for reinstatement or reappointment: 1. Where there is a s
ignificant increase in the number of positions in the new staffing pattern of th
e department or agency concerned; 2. Where an office is abolished and another pe
rforming substantially the same functions is created; 3. Where incumbents are re
placed by those less qualified in terms of status of appointment, performance an
d merit; 4. Where there is a reclassification offices perform substantially the
same functions as the original offices; and 5. Where the removal violates the or
der of separation provided for by Section 2 and of RA 6656.
GROUNDS FOR REMOVAL AND SUSPENSION—(Section 23, Rule XIV, Omnibus Rules 1. Grave
Offenses 2. Less Grave offenses 3. Light Offenses Preventive Suspension— It is
not a penalty itself. It is merely a measure of precaution so that the employee
who is charged may be separated, for obvious reasons, from the scene of his alle
ged misfeasance while the same is being investigated. It is not an action by its
elf but merely an incident in an action. It is different from administrative pen
alty of suspension from office. The latter is the penalty which may only be mete
d upon the respondent at the termination of the investigation or the final dispo
sition of the case. Preventive suspension is imposed on the respondent during th
e investigation of charges against him.
Governing Laws: 1. Preventive Suspension in Administrative Cases
a. Civil Service Law—
Maximum duration: 90 days After 90 days: automatic reinstatement
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Implementing Book V of 1987 Administrative Code)
¥say
Certiorari: period will not be included in the 90-day period computation Gloria
vs. CA (199), there are two (2) kinds of preventive suspension under CSC: i. Pen
ding investigation ii. Pending appeal & the respondent is exonerated on appeal
Pending investigation
(Respondent is not entitled
to back wages)
Pending Appeal
(Reinstatement with full payment payment of back salaries)
b. Local Government Code— i. Sec. 63—those holding local elective office
Preventive Suspension placed by:
1. Mayor—concerning the elective barangay officials 2. Governor municipal electi
ve officials Component city elective official 3. President
highly urbanized/independent component city officials
Provincial officials
Every administrative charge: maximum: 60 days Several administrative cases: max
imum: 90 days w/in a single year 90 days before the next local election—PS shal
l be lifted
automatically ii. Sec. 85—those appointed officials 275
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Gov. Plaza vs. CA, G.R. No. 138464, January 18, 2008, the law provides for preve
ntive suspension of appointive local official and employees pending investigatio
n of the charges against them. The suspension given to private respondents, cann
ot, therefore, be considered unjustified for it is one of those sacrifices which
holding a public office requires for the public good. To be entitled to back sa
laries, private respondents must not only be found innocent of the charges, but
their suspension must likewise be unjustified.
¥say
“payment of back salaries”
Duration: maximum of 60 days c. Ombudsman Act—RA 6770 Duration: Maximum of 6 mon
ths 2. Preventive suspension in Criminal Cases a. Section 13, RA 3019—Suspension
and loss of benefits Authority to impose: i. Court where the information was fi
led Luciano vs. Provincial Governor, since the law is silent, the court where th
e information was filed shall impose the preventive suspension ii. Salary Grade
27 or over—Sandiganbayan iii. Below Salary Grade 27—RTC It is mandatory for th
e court to impose the preventive suspension. However, it is not automatic. In th
e case of Socrates vs. Sandiganbayan, it was held that the court must conduct fi
rst a pre-suspension hearing to determine the validity of criminal information f
iled against the public officer Duration: the law is silent In the case of Gonza
ga vs. Sandiganbayan, since the law is silent, apply by analogy the Civil Servic
e Law, the maximum duration would be 90 days.
Deloso vs. SB Bayot vs. SB Segovia vs. SB Santiago vs. SB Paredes vs. SB Santiag
o vs. SB
Section 13, RA 3019 does not state that the public officer may be suspended in t
he office where he committed the crime. The term “office” indicates that it appl
ies to “any other office”.
the suspension imposed is merely preventive. There is no encroachment.
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Article XI ACCOUNTABILITY OF PUBLIC OFFICERS
Section 1, Article XI Public office is a public trust. Public officers and emplo
yees must at all times be accountable to the people, serve them with utmost resp
onsibility, integrity, loyalty, and efficiency, act with patriotism and justice,
and lead modest lives.
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Public office is a public trust, and as such, the same is governed by law, and c
annot be made the subject of personal promises or negotiations by private person
s. Security of tenure of employees in the career executive service (except first
and second level employees in the civil service), pertains only to rank and not
to the office or to the position to which they may be appointed. (Collantes vs.
CA, G.R. No. 169604, March 6, 2007)
Who are impeachable officers? (The list is exclusive) 1. President 2. Vice-Presi
dent 3. Members of the Constitutional Commission 4. Justices of the Supreme Cour
t 5. Ombudsman
Justices of the Sandiganbayan cannot be removed by impeachment.
Impeachment of President—the Chief Justice of the Supreme Court will preside;
the
Senate/HOR will prosecute Grounds for impeachment: 1. Culpable violation of the
constitution 2. Treason 3. Bribery 4. Betrayal of public trust 5. Graft and corr
uption 6. Other high crimes Procedure in Impeachment— Initiation: The House of R
epresentatives shall have the exclusive power to initiate all cases of impeachme
nt. Process: 1. Verified complaint filed by any member of the House or any citiz
en upon resolution of endorsement by any member thereof; 2. Included in the orde
r of business within ten (10) session days; 3. Referred to the proper committee
within three (3) session days of its inclusion. If the verified complaint is fi
led by at least 1/3 of all its members, the same shall constitute the Articles o
f Impeachment, and trial by the Senate shall forthwith
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¥say
4.
5.
6. 7.
Trial and Decision— 1. The Senators take an oath or affirmation; 2. When the pre
sident is on trial, the Chief Justice of the Supreme Court shall preside but sha
ll not vote; 3. A decision of conviction must be concurred in by at least 2/3 of
all the members of the Senate. Effect of Conviction— 1. Removal from office; 2.
Disqualification to hold any other office under the Republic of the Philippines
; 3. Party convicted shall be liable and subject to prosecution, trial and punis
hment according to law. Limitation: 1. Not more than one impeachment case shall
be initiated against the same official within a period of one (1) year. 2. The H
ouse of Representatives shall have the exclusive power to initiate all cases of
impeachment. Republic vs. Sandiganbayan, G.R. No. 142476, March 20, 2001, the Re
public of the Philippines cannot be held liable under an “Agreement” entered int
o by the PCGG with another party where the republic did not authorize the PCGG t
o enter into such contract. Where the sale of an aircraft to a third party by th
e PCGG is void, it follows that the “Agreement” between the PCGG and the third p
arty is likewise a nullity, and there can be no cause of action against the Repu
blic. Presidential Ad Hoc Fact-Finding Committee on Behest Loans vs. Desierto, e
t al. G.R. No. 130140, October 25, 1999, Article XI, Section 15 of the Constitut
ion provides that the “right of the State to recover properties unlawfully acqui
red by public officials or employees, from them or from their nominees as transf
erees, shall not be barred by prescription, laches, or estoppel. This provision
does not seem to indicate that what is imprescriptible is the corresponding civi
l action to recover “ill-gotten wealth” but not the criminal action that may rel
ate thereto. The criminal action, i.e., violation of Section 3(c) and (g), RA 30
19, can prescribe conformably with the pertinent statute applicable which,
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¥say
proceed. The Committee, after hearing, and by majority vote of all its members,
shall submit its report to the House together with the corresponding resolution;
Placing on calendar the Committee resolution within ten (10) days from submissi
on; Discussion on the floor of the report; A vote of at least 1/3 of all the mem
bers of the House shall be necessary either to affirm a favorable resolution wit
h the Articles of Impeachment of the Committee or override its contrary resoluti
on.
in this instance, BP 195, providing for a 15-year prescriptive period and thereb
y modifying to the above extent the 10-year prescriptive period under RA 3019. I
n Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003, an
impeachment case is the legal controversy that must be decided by the Senate wh
ile an impeachment proceeding is one that is initiated in the House of Represent
atives. For purposes of applying the one-year bar rule, the proceeding is “initi
ated” or begins when a verified complaint is filed and referred to the Committee
on Justice for action. Legislative bodies cannot impose the administrative puni
shment of removal from office because the power to remove local elective officia
ls has been exclusively granted to the proper courts. (Sanggguniang Barangay of
Don Mariano Marcos vs. Martinez, G.R. No. 170626, March 3, 2008)
The anti-graft court shall continue to function and exercise its jurisdiction as
now and hereafter may be provided by law. Composition: • One (1) Presiding Just
ice • Fourteen (14) Associate Justices with the rank of Justice of the Court of
Appeals Sits in five (5) Divisions of three (3) members each Decision and Revi
ew— Unanimous vote of all three (3) members shall be required for the pronouncem
ent of judgment by a division. Decision shall be reviewable by the SC on petitio
n for certiorari. Jurisdiction: Original Jurisdiction B. Violation of RA 3019;
RA 1379; and Chapter II, Section 2, Title VII of the RPC where one or more of t
he accused are officials occupying the following positions in the government, wh
ether in a permanent, acting or interim capacity at the time of the commission o
f the offense:
5. Officials of the Executive branch with the position of Regional Director or
higher, or with SG Level 27 according to RA 6758, specifically including: i. Pro
vincial governors, vice-governors, board members, provincial treasures, assessor
s, engineers and other provincial departments head; ii. City mayors, vice-mayors
, city councilors, city treasurers,
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SANDIGANBAYAN
¥say
6. 7. 8.
9.
assessors, engineers and other city department heads; iii. Officials of the dipl
omatic service from consuls or higher; iv. PA/PAF colonels, PN captains and all
officers of higher rank; v. Officers of the PNP while occupying the position of
provincial director and those holding the rank of senior superintendent or highe
r; vi. City/provincial prosecutors and their assistants, and officials and prose
cutors in the Office of the Ombudsman and special prosecutor; vii. Presidents, d
irectors, trustees, or managers of GOCC’s state universities or educational inst
itutions or foundations. Members of Congress and officials thereof with SG27 and
up; Members of the Judiciary without prejudice to the Constitution; Chairmen an
d members of the Constitutional Commissions without prejudice to the Constitutio
n; and All other national and local officials with SG27 or higher.
Exclusive Original Jurisdiction over petitions for the issuance of the writs o
f
mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillar
y writs and processes in aid of its appellate jurisdiction. Provided, that juris
diction over these petitions shall be not exclusive of the Supreme Court.
Exclusive Appellate Jurisdiction over final judgments, resolutions or orders o
f
RTC whether in the exercise of their own original jurisdiction or their appellat
e jurisdiction. (RA 8249)
THE OMBUDSMAN
•
•
The champion of the citizens and protector of the people. Tasked to entertain co
mplaints addressed to him against erring public officers and take all necessary
actions thereon.
Composition: • An Ombudsman known as the Tanodbayan • One (1) Overall Deputy; •
At least one (1) Deputy e3ach for Luzon, Visayas and Mindanao; • One (1) separat
e Deputy for the military establishment may likewise be
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C. Other offenses or felonies whether simple or complex with other crimes commit
ted by the public officials and employees mentioned in Subsection (a) in relatio
n to their office; D. Civil and criminal cases filed pursuant to and in connecti
on with Executive Order Nos. 1, 2, 14 and 14-A issued in 1986.
¥say
appointed Qualifications: 1. Natural-born citizen; 2. At least 40 years of age;
3. Of recognized probity and independence; 4. Member of the Philippine Bar; and
5. Must not have been candidates for any elective office in the immediately prec
eding election. Term: Seven (7) years without reappointment Disqualifications an
d Inhibitions— A. During their tenure: 1. Shall not hold any other office or emp
loyment; 2. Engage in the practice of any profession or in the active management
and control of any business which in any way may be affected by the functions o
f his office; 3. Shall not be financially interested, directly or indirectly, in
other contract with, or in any franchise or privilege granted by the government
, any of its subdivision, agencies or instrumentalities, including GOCCs or thei
r subsidiaries. 4. Shall not be qualified to run for any office in the election
immediately succeeding their cessation from office. The Office of the Ombudsma
n shall enjoy fiscal autonomy. Its approved annual appropriations shall be autom
atically and regularly released. (Section 14, Article XI) Buenesada vs. Flavier,
G.R. No. 106719, September 21, 1993, the power to investigate also includes the
power to impose preventive suspension. This is different from the power to reco
mmend suspension. The latter is suspension as a penalty; preventive suspension i
s not a penalty. Powers, Functions and Duties: 1. The Constitution and RA 6770 (
Ombudsman Act of 1989) has endowed the Office of the Ombudsman with a wide latit
ude of investigatory and prosecutor powers virtually free from legislative, exec
utive or judicial intervention. The Supreme Court consistently refrains from int
erfering with the exercise of its powers, and respects the initiative and indepe
ndence inherent in the Ombudsman who, beholden to no one, acts as the champion o
f the people and the preserver of the integrity of public service. (Loquias vs.
Office of the Ombudsman, G.R. No. 139396, August 15, 2000)
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Page 2827/12/2008
¥say
2. The Ombudsman is clothed with authority to conduct preliminary investigation
and prosecute all criminal cases involving public officers and employees, not on
ly those within the jurisdiction of the Sandiganbayan but those within the juris
diction of the regular courts as well. (Uy vs. Sandiganbayan, G.R. No. 105965-70
, March 20, 2001) Office of the Ombudsman vs. CSC, G.R. No. 162215, July 30, 200
7, since the responsibility for the establishment, administration and maintenanc
e of qualification standards lies with the concerned department or agency, the r
ole of the CSC is limited to assisting the department or agency with respect to
these qualification standards and approving them. The CSC cannot substitute its
own standards for those of the department or agency, specially in a case like th
is in which an independent constitutional body is involved. Perez vs. Sandiganba
yan, G. R. No. 166062, September 26, 2006, the incumbent Tanodbayan (called Spec
ial Prosecutor under the 1987 Constitution and who is supposed to retain powers
and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct p
reliminary investigations and to direct the filing of criminal cases with the Sa
ndiganbayan, except upon orders of the Ombudsman. Suspension under the Ombudsman
Act vis-à-vis the Local Government Code: o In order to justify the preventive s
uspension of a public official under Section 24 of RA 6770, the evidence of guil
t should be strong, and: The charge against the officer or employee should inv
olve dishonesty, oppression or grave misconduct or neglect in the performance of
duty; The charges should warrant removal from the service; or The responden
t’s continued stay in the office would prejudice the case filed against him. o T
he Ombudsman can impose the 6-month preventive suspension to all public official
s, whether elective or appointive, who are under investigation. o On the other h
and, in imposing the shorter period of sixty (60) days of preventive suspension
prescribed under the LGC of 1991 on an elective local official (at any time afte
r the issues are joined), it would be enough that: d. There is a reasonable grou
nd to believe that the respondent has committed the act or acts complained of; e
. The evidence of culpability is strong; f. The gravity of the offense so warran
ts; or g. The continuance in the office of the respondent could influence the wi
tnesses or pose a threat to the safety and integrity of the records and
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Page 2837/12/2008
¥say
other evidence. (Miranda vs. Sandioganbayan, G.R. No. 154098, July 27, 2005) Off
ice of the Ombudsman vs. CA, G.R. No. 168079, July 17, 2007, the SC upheld the c
onstitutionality of Sections 15, 21 and 25 of RA 6770, thus affirming that the p
owers of the Office of the Ombudsman are not merely recommendatory. The Court ru
led in Estarija case that under RA 6770 and the 1987 Constitution, the Ombudsman
has the constitutional power to directly remove from the government service an
erring public official, other than a member of Congress and the Judiciary.
Article XII NATIONAL ECONOMY AND PATRIMONY
Section 1, Article XII—Goals: 1. More equitable distribution of wealth 2. Increa
sed wealth for the benefit of the people 3. Increased productivity. REGALIAN DOC
TRINE—Section 2, Article XII All lands of the public domain, waters, minerals, c
oals, petroleum and other mineral oils, all forces of potential energy, fisherie
s, forests, or timber, wildlife, flora and fauna, and natural resources belong t
o the State. With the exception of agricultural lands, all other natural resourc
es shall not be alienated. To prove that the land subject of an application for
registration is alienable, an applicant must conclusively establish the existenc
e of a positive act of the government
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¥say
such as a presidential proclamation or an executive order, or an administrative
action, investigation reports of the Bureau of Lands Investigator or a legislati
ve act or statute. Until then, the rules on confirmation of imperfect title do n
ot apply. A certification of the Community Environment and Natural Resources Off
icer (CENRO) in the DENR stating that the land subject of an application is foun
d to be within the alienable and disposable site in a land classification projec
t map is sufficient evidence to show the real character of the land subject of t
he application. (RP vs. Candy Maker, Inc., G.R. No. 163766, June 22, 2006) Class
ification of Lands of the Public Domain: 1. Agricultural; 2. Forest or timber; 3
. Mineral lands; and 4. National parks. Private Lands— General Rule: No private
land shall be transferred or conveyed except to individuals, corporations or ass
ociations qualified to acquire or hold lands of the public domain. Exceptions: 1
. Foreigners who inherit through intestate succession; 2. Former natural-born ci
tizen may be a transferee of private lands subject to limitations provided by la
w; 3. Ownership in condominium units; 4. Parity right agreement, under 1935 Cons
titution. Stewardship Doctrine—private property is supposed to be held by the in
dividual only as a trustee for the people in general, who are its real owner. Fi
lipino First Policy—in the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give preference to qualifie
d Filipinos. (2nd paragraph, Section 10, Article XII) This provision is self-exe
cuting. It is mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rules for its enforcement. F
rom its very words the provision does not require any legislation to put it in o
peration. It is per se judicially enforceable. When our Constitution mandates th
at in the grant of rights, privileges, and concessions covering the national eco
nomy and patrimony, the State shall give preference to qualified Filipinos, it m
eans just that— qualified Filipinos must be preferred. (Manila Prince Hotel vs.
GSIS, G.R. No. 118295, May 2, 1997) A join venture is an association of persons
or companies jointly undertaking
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Temporary Take Over of Business Affected with Public Interest— The State may tem
porarily take over or direct the operation of any privately owned public utility
or business affected with public interest: 1. In times of national emergency; 2
. When the public interest so requires; and 3. During the emergency and under re
asonable terms prescribed by it. The temporary take over by the government exten
ds only to the operation of the business and not to the ownership thereof. As su
ch, the government is not required to compensate the private entity-owner of the
said business as there is no transfer of ownership, whether permanent or tempor
ary. The private entity-owner affected by the temporary take over cannot, likewi
se, claim for just compensation for the use of the said business and its propert
ies as the temporary takeover by the government is in exercise of its police pow
er and not of its power of eminent domain. (Agan vs. PIATCO, G.R. No. 155001, Ma
y 5, 2003)
Right of Indigenous Cultural Communities/Indigenous People
Constitutional Provisions Recognizing and Protecting the Rights and Interest of
the Indigenous People: 1. Section 22, Article II—the State recognizes and promot
es the rights of indigenous peoples within the framework of national unity and d
evelopment.
2. Section 5, Article XII—the State, subject to the provisions of the Constituti
on
and national development policies and programs, shall protect the rights of indi
genous cultural communities to their ancestral lands to ensure their economic, s
ocial, and cultural well-being. The Congress may provide for the applicability o
f customary laws governing property rights or relations in determining the owner
ship and extent of ancestral domain. 3. Section 1, Article XIII
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some commercial enterprise with all of them generally contributing assets and sh
aring risks. Considering more of a partnership, a joint venture is governed by t
he laws on contracts and on partnership. The joint venture created between Natio
nal Investment and Development Corporation (NIDC) and Kawasaki falls within the
purview of an “association” pursuant to Section 5 of Article XIV of the 1973 Con
stitution and Section 11 of Article XII of the 1987 Constitution. Consequently,
a joint venture that would engage in the business of operating a public utility,
such as shipyard, must observe the proportion of 60%-40% Filipino-Foreign capit
alization. (JG Summit Holdings, Inc. vs. CA, 345 SCRA 143)
4. Section 6, Article XIII—the State shall apply the principles of agrarian refo
rm
stewardship, whenever applicable in accordance with law, in the disposition or u
tilization of other natural resources, including lands of the public domain unde
r lease or concession suitable to agriculture, subject to prior rights, homestea
d rights of small settlers, and the rights of indigenous cultural communities to
their ancestral lands. rights of indigenous cultural communities to preserve an
d develop their cultures, traditions, and institutions. It shall consider these
rights in the formulation of national plans and policies. 6. Section 12, Article
XVI—the Congress may create a consultative body to advise the President on poli
cies affecting indigenous cultural communities, the majority of the members of w
hich shall come from such communities. Indigenous Peoples Rights Act (RA 8371) T
he IPRA is a law dealing with a specific group of people, i.e., the Indigenous C
ultural Communities (ICCs) or the Indigenous Peoples (IPs). The term ICCs is use
d in the 1987 Constitution while that of IPs is the contemporary international l
anguage in the International Labor Organization (ILO) Convention 169 and the UN
Draft Declaration on the Rights of Indigenous Peoples. The ICCs or IPs refer to
a group of people or homogenous societies who have continuously lived as an orga
nized community on communally bounded and defined territory. These groups of peo
ple have actually occupied, possessed and utilized their territories under claim
of ownership since time immemorial. They share common bonds of language, custom
s, traditions and other distinctive cultural traits, or, they, by their resistan
ce to political, social and cultural inroads of colonization, non-indigenous rel
igions and cultures, became historically differentiated from the Filipino majori
ty. The ICCs/IPs also include their descendants who inhabited the country at the
time of conquest or colonization, who have been displaced from their traditiona
l territories or who may have resettled outside their ancestral domains. It reco
gnizes the existence of the indigenous cultural communities or indigenous people
s (ICCs/IPs) as a distinct sector in Philippine society. It grants these people
the ownership and possession of their ancestral domains and ancestral lands, and
defines the extent of these lands and domains. The ownership given is the indig
enous concept of ownership under customary law which traces its origin to native
title. Within their ancestral domains and ancestral lands, the ICCs/IPs are giv
en the right to self-governance and empowerment, social justice and human rights
; the right to preserve and protect their culture, traditions, institutions and
community intellectual rights, and the right to develop their own sciences and t
echnologies.
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5. Section 17, Article XIV—the State shall recognize, respect, and protect the
Ancestral domains—are all areas belonging to ICCs/IPs held under a claim of owne
rship, occupied or possessed by ICCs/IPs by themselves or through their ancestor
s, communally or individually since time immemorial, continuously until the pres
ent, except when interrupted by war, force majeure or displacement by force, dec
eit, stealth or as a consequence of government projects or any other voluntary d
ealings with government and/or private individuals or corporations. It comprises
lands, inland waters, coastal areas, and natural resources therein and includes
ancestral lands, forests, pasture, residential, agricultural, and other lands i
ndividually owned whether alienable or not, hunting grounds, burial grounds, wor
ship areas, bodies of water, mineral and other natural resources. They also incl
ude lands which may no longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and traditional activiti
es, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifti
ng cultivators. Section 3(a), IPRA Ancestral Lands—are lands held by the ICCs/IP
s under the same conditions as ancestral domains except that these are limited t
o lands and that these lands are not merely occupied and possessed but are also
utilized by the ICCs/IPs under claims of individual or traditional group ownersh
ip. These lands include but are not limited to residential lots, rice terraces o
r paddies, private forests, swidden farms and tree lots. Section 3(b), IPRA The
right of the ICCs/IPs to their ancestral domains and ancestral lands may be acqu
ired in two modes: 1. Native title over both ancestral domains and lands; 2. Tor
rens title under the Public Land Act and the Land Registration Act with respect
to ancestral lands only. Native Title—refers to ICCs/IPs pre-conquest rights to
lands and domains held under a claim of private ownership as far back as memory
reaches. These lands are deemed never to have been public lands and are indisput
ably presumed to have been held that way since before the Spanish conquest. The
rights of ICCs/IPs to their ancestral domains (which also include ancestral land
s) by virtue of native title shall be recognized and respected (Section 11, IPRA
). Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied i
n a Certificate of Ancestral Domain Title (CADT), which shall recognize the titl
e of the concerned ICCs/IPs over the territories identified and delineated. Lik
e a torrens title, a CADT is an evidence of private ownership of land by native
title. Native title, however, is a right of private ownership peculiarly granted
to ICCs/IPs over their ancestral lands and domains. The IPRA categorically decl
ares ancestral lands and domains held by native title as never to have been publ
ic land. Domains and lands held under native title are, therefore, indisputably
presumed to have never been public lands and are private.
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The concept of native title in the IPRA was taken from the 1909 case of Cariño v
s. Insular Government, 41 Phil 935. Cariño firmly established a concept of priva
te land title that existed irrespective of any royal grant from the State. The c
oncept of native title to natural resources, unlike native title to land, has no
t been recognized in the Philippines. In the case of Reavies vs. Fianza, 40 Phil
1017, the Court merely upheld the right of the indigenous peoples to claim owne
rship of minerals under the Philippine Bill of 1902. Ownership by virtue of nati
ve title—presupposes that the land has been held by its possessor and his predec
essor-in-interest in the concept of an owner since time immemorial. The land is
not acquired from the State, that is, Spain or its successor-ininterest, the US
and the Philippines Government. There has been no transfer of title from the Sta
te as the lands has been regarded as private in character as far back as memory
goes. Ownership of the land by acquisitive prescription—against the State involv
es a conversion of the character of the property from alienable public land to p
rivate land, which presupposes a transfer of title from the State to a private p
erson. Jus Regalia—private title to the land must be traced to some grant, expre
ss or implied, from the Spanish Crown or its successors, the American Colonial g
overnment and thereafter, the Philippine Republic. The belief that the Spanish C
rown is the origin of all land titles in the Philippines has persisted because t
itle to land must emanate from some source for it cannot issue forth from nowher
e. It refers to royal grants, or those rights which the King has by virtue of h
is prerogatives. [Isagani Cruz vs. Secretary of DENR, et al., G.R. No. 135385, D
ecember 6, 2000, En banc, (Puno and Kapunan, Separate Opinions)]
Lands
Public domain 1. Forest/timber 2. Mineral lands 3. National parks 4. agricultura
l The only land (Public Domain) which may be alienated
Private Lands
(A certificate of title had been issued to a Filipino individual)
Same rules as alienable lands as to who may acquire
(Only Filipinos)
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Filipino Citizens
1) Not more than 12 ha.
(Purchase homestead Grant) 2) Lease—not more than 500 ha.
Private Corporations
--by lease
Except:
1) hereditary succession 2) former natural born 3) Americans holding valid title
to private lands as against private persons. Titles to private lands acquired b
y Americans before July 3, 1974 shall be valid as against private persons
But State may recover only
Article XIII SOCIAL JUSTICE AND HUMAN RIGHTS
1. 2. 3. 4. 5. 6. 7. 8. Social Justice Labor Agrarian and Natural Resources Refo
rm Urban Land Reform and Housing Health Women Role and Rights of People’s Organi
zation Human Rights
Section 1 The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce so
cial, economic, and political inequities, and remove cultural inequities by equi
tably diffusing wealth and political power for the common good. To this end, the
State shall regulate the acquisition, ownership, use, and disposition of proper
ty and its increments.
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Section 2 The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
The State shall promote the principle of shared responsibility between workers a
nd employers and the preferential use of voluntary modes in settling disputes, i
ncluding conciliation, and shall enforce their mutual compliance therewith to fo
ster industrial peace. The State shall regulate the relations between workers an
d employers, recognizing the right of labor to its just share in the fruits of p
roduction and the right of enterprises to reasonable returns on investments, and
to expansion and growth.
Agrarian and Natural Resources Reform
Section 4
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Section 3 The State shall afford full protection to labor, local and overseas, o
rganized and unorganized, and promote full employment and equality of employment
opportunities for all. It shall guarantee the rights of all workers to self-org
anization, collective bargaining and negotiations, and peaceful concerted activi
ties, including the right to strike in accordance with law. They shall be entitl
ed to security of tenure, humane conditions of work, and a living wage. They sha
ll also participate in policy and decision-making processes affecting their righ
ts and benefits as may be provided by law.
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Labor
Article XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS
Section 4 (1), Article XIV of the Constitution recognizes the State’s power to r
egulate educational institutions: The State recognizes the complementary roles o
f public and private institutions in the educational system and shall exercise r
easonable supervision and regulation of all educational institutions. As may be
gleaned from the above provision, such power to regulate is subject to the requi
rements of reasonableness. Moreover, the Constitution allows merely the regulati
on and supervision of educational institutions, not the deprivation of their rig
hts. (Miriam College Foundation, Inc. vs. CA, 348 SCRA 265) Section 5 (2), Artic
le XIV provides that: Academic freedom shall be enjoyed in all institutions of h
igher learning. Academic Freedom— The right of the school or college to decide f
or itself, its aims and objectives, and how best to attain them—free from outsid
e coercion or interference save possibly when
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the overriding public welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students. Said constitutional prov
ision is not to be construed in a niggardly manner or in a grudging fashion. Tha
t would be to frustrate its purpose and nullify its intent. The essential freedo
ms subsumed in the term “academic freedom” encompass the freedom to determine fo
r itself on academic grounds: 1. Who may teach 2. What may be taught 3. How it s
hall be taught 4. Who may be admitted to study The right of a school to discipli
ne its students is at once apparent in the third freedom, i.e., “how it shall be
taught.” A school certainly cannot function in an atmosphere of anarchy. Incide
ntally, the school not only has the right but the duty to develop discipline in
its students. The Constitution no less imposes such duty. Section 3 (2), Article
XIV:
All educational institutions shall inculcate patriotism and nationalism, foster
love of humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and dutie
s of citizenship, strengthen ethical and spiritual values, develop moral charact
er and personal discipline, encourage critical and creative thinking, broaden sc
ientific and technological knowledge, and promote vocational efficiency.
Three (3) Aspects of Academic Freedom: 1. From the standpoint of the educational
institution—to provide that atmosphere which is most conducive to speculation,
experimentation and creation. 2. From the standpoint of the faculty— a. Freedom
in research and in the publication of the results, subject to the adequate perfo
rmance of his other academic duties; b. Freedom in the classroom in discussing h
is subject, less controversial matters which bear no relation to the subject; c.
Freedom from institutional censorship or discipline, limited by his special pos
ition in the community.
3. From the standpoint of the student—right to enjoy in school—
guaranteed by the Bill of Rights (Non vs. Dames, May 20, 1990)
May a university validly revoke a degree or honor it has conferred to a student
after the graduation of the latter after finding that such degree or honor was
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obtained through fraud? The SC pointed out that academic freedom of institution
s of higher learning is a freedom granted to “institutions of higher learning” w
hich is thus given a “wide sphere of authority certainly extending to the choice
of students.” If such institution of higher learning can decide who can and who
cannot study in it, it certainly can also determine on whom it can confer the h
onor and distinction of being its graduates. (Garcia vs. Faculty Admission Commi
ttee, Loyola School of Theology, 68 SCRA 277) Where it is shown that the conferm
ent of an honor or distinction was obtained through fraud, a university has the
right to revoke or withdraw the honor or distinction it has thus conferred. This
freedom of a university does not terminate upon the “graduation” of a student,
for it is precisely the “graduation” of such a student that is in question. (UP
Board of Regents vs. CA and Arokiaswamy William Margaret Celine, G.R. No. 134625
, August 31, 1999)
Academic freedom encompasses the independence of an academic institution to dete
rmine for itself: Who may teach; What may be taught; How it shall teach; a
nd Who may be admitted to study. (DLSU, Inc. vs. CA, G.R. No. 127980, December
19, 2007)
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In administrative cases, such as investigations of students found violating scho
ol discipline, there are withal minimum standards which must be met before to sa
tisfy the demands of procedural due process and these are: 1. The student must b
e informed in writing of the nature and cause of any accusation against them; 2.
They shall have the right to answer the charges against them and with the assis
tance of counsel, if desired; 3. They shall be informed of the evidence against
them; 4. They shall have the right to adduce evidence in their own behalf; and 5
. The evidence must be duly considered by the investigating committee or officia
l designated by the school authorities to hear and decide the case.
¥say
Family—is the basic social institution. The State recognizes the Filipino family
as the foundation of the nation. Care for the elderly— The duty to care for the
elderly is given to both the family and the State. An effective social security
system is an indispensable component of any effective caring for the elderly.
Article XVI GENERAL PROVISIONS
Flag— The design of our flag may be changed only by constitutional amendment.
DOCTRINE OF STATE IMMUNITY FROM SUIT
Sec. 3, Article XVI The State may not be sued without its consent. It is based o
n the very essence of sovereignty. It is derisively called “the royal prerogativ
e of dishonesty” because it grants the state the prerogative to defeat any legit
imate claim against it by simply invoking its non-suability.
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Article XV THE FAMILY
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There can be no legal right against the authority which makes the law on which t
he right depends (Republic vs. Villasor, 54 SCRA 83). However, it may be sued if
it gives consent, whether express or implied. ®Does this doctrine apply as well
to foreign government? YES, because of the sovereign equality of all the state.
Immunity is enjoyed by other States, consonant with the public international la
w principle of PAR IN PAREM NON HABET IMPERIUM. The head of State, who is deemed
the personification of the State, is inviolable, and thus, enjoys immunity from
suit. ®USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages
against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as
cook in the US Air Force Recreation Center at Camp John Hay Air Station in Bagu
io City. It had been ascertained after investigation, from the testimony of Bels
a, Cartalla and Orascion that Genove had poured urine into the soup stock used i
n cooking the vegetables served to the club customers. Lamachia, as club manager
, suspended him and thereafter referred the case to a board of arbitrators confo
rmably to the collective bargaining agreement between the center and its employe
es. The board unanimously found him guilty and recommended his dismissal. Genove
’s reaction was to file his complaint against the individual petitioners. SC: Th
e rule that a State may not be sued without its consent is one of the generally
accepted principles of international law that we have adopted as part of our law
. Even without such affirmation, we would still be bound by the generally accept
ed principles of international law under the doctrine of incorporation. Under th
is doctrine, as accepted by the majority of states, such principles are deemed i
ncorporated in the law of every civilized state as a condition and consequence o
f its membership in the society of nations. All states are sovereign equals and
cannot assert jurisdiction over one another. When the government enters into a c
ontract, it is deemed to have descended to the level of the other contracting pa
rty and divested of its sovereign immunity is expressed with more specificity in
the RP-US Bases Treaty. There is no question that the US, like any other state,
will be deemed to have impliedly waived its non-suability if it has entered int
o a contract in its proprietary or private capacity. It is only when the contrac
t involves its sovereign or governmental capacity that no such waiver may be imp
lied. Q: How may consent be given? A: The State’s consent may be given either EX
PRESSLY or IMPLIEDLY. EXPRESS CONSENT- may be made through enactment by Congress
of a general law or special law waiving the immunity.
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General Law e.g. Act No. 3083 where the Philippine government “consents and sub
mits to be sued upon any money claim involving liability arising from contract,
express or implied, which could serve as a basis of a civil action between the p
rivate parties”. (correlate Act 3083 with CA 327 as amended by PD 1445) Commonwe
alth Act 327 (General Auditing Law, as amended by PD 1445, requires that all mon
ey claims against the government must first be filed with the COA which must act
upon it within 60 days. Rejection of the claim will authorize the claimant to e
levate the matter to SC on certiorari and, in effect, sue the State thereby. Dep
artment of Agriculture vs. NLRC, 227 SCRA 693, DA may be sued for money claims b
ased on a contract entered into in its governmental capacity, because of the exp
ress consent contained in Act 3083 provided that the claim be first brought to t
he COA in accordance with CA 327, as amended. Ministerio vs. City of Cebu, 40 SC
RA 464, Suit may lie because the doctrine of State immunity cannot be used to pe
rpetrate an injustice. Delos Santos vs. IAC, 223 SCRA 11, public respondents’ be
lief that the property is public, even if buttressed by statements of other publ
ic officials, is no reason for the unjust taking of the petitioner’s property; a
fter all, the TCT was in the name of the petitioner. USA vs. Ruiz, 136 SCRA 487,
where the questioned transaction dealt with the improvements on the wharves in
the naval installation at Subic Bay, SC held that the traditional rule of immuni
ty exempts a state from being sued in the courts of another state without its co
nsent or waiver. This rule is a necessary consequence of the principle of indepe
ndence and equality of states. However, the rules of International Law are not p
etrified; they are constantly developing and evolving. Acta Jure Imperii Acta Ju
re Gestionis -There is no waiver. The State is acting in -There is waiver of Sta
te immunity from its sovereign governmental capacity. suit. The State entered in
to a contract in its commercial or proprietary capacity. The State descended to
the level of a private entity. RESTRICTIVE DOCTRINE OF STATE IMMUNITY FROM SUIT—
not all contracts entered into by the government constitute a waiver. The restri
ctive application of State immunity is proper only when the proceedings
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arise out of commercial transactions of the foreign sovereign, its commercial ac
tivities or economic affairs. Stated differently, a state may be said to have de
scended to the level of an individual and can thus be deemed to have tacitly giv
en its consent to be sued only when it enters into business contracts. It does n
ot apply where the contracts relate to the exercise of its sovereign functions.
In this case, the projects are integral parts of the naval base which is devoted
to the defense of both US and Philippines, indisputably a function of the gover
nment of the highest order; they are not utilized for nor dedicated to commercia
l or business purposes. The contract for the repair of wharves was a contract in
JUS IMPERII because the wharves were to be used in national defense, a governme
ntal function. There is no waiver. Only the American government can waived. Act
3083 is not applicable. The remedy is to convince the Department of Foreign Affa
irs to take up the claim to the US government (state to state). USA vs. Guinto,
182 SCRA 644, a contract for restaurant services within the Camp John Hay Air St
ation was held commercial in character. The case should not be dismissed. The ca
feteria caters not only Americans but also the general public. There is waiver o
f State Immunity from suit. This is a case of Acta Jure Gestionis. Republic vs.
Sandiganbayan, 204 SCRA 212, Even if, in exercising the power of eminent domain,
the State exercises a power jus imperii, as distinguished from its proprietary
right of jus gestionis, where property has been taken without just compensation
being paid, the defense of immunity from suit cannot be set up in an action for
payment by the owner.
Special Law
This form of consent must be embodied in a statute and cannot be given by a mere
counsel. e.g. Articles 2180 and 2189 of the Civil Code Article 2180 of the Civi
l Code—(paragraph 6) The State is responsible in like manner when it acts throug
h a special agent; but not when the damage has been caused by the official to wh
om the task done properly pertains, in which case what is provided in Article 21
76 shall be applicable. Article 2189: Provinces, cities and municipalities shall
be liable for damages for the death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control and supervision. Teotico vs. City of
Manila, a man fell in a manhole. Sec. 24, Local Government Code: “Local governme
nt units and their officials are not exempt from liability for death or injury t
o persons or damage to property.”
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Q. May the OSG validly waived? A. Republic vs. Purisima, 78 SCRA 470, a mere law
yer (OSG) may not validly waived the immunity from suit of the State. Only Congr
ess can. IMPLIED CONSENT1. When the State commences the litigation. It becomes v
ulnerable to a counterclaim. Intervention by the State would constitute commence
ment of litigation EXCEPT: when the State intervenes not for the purpose of aski
ng for any affirmative relief, but only for the purpose of resisting the claim p
recisely because of immunity from suit. (Lim vs. Brownell, 107 Phil 345) 2. When
the State enters into a business contract. (See USA vs. Guinto & USA vs. Ruiz)
(This is the RESTRICTIVE DOCTRINE OF STATE IMMUNITY) Mun. of San Fernando, La Un
ion vs. Judge Firme,195 SCRA 692, the dump truck, owned by the municipality, was
driven by its official driver. It was used for hauling gravel for the repair/co
nstruction of the municipal road. The truck collided with a jeepney. The heirs o
f the jeepney driver sued the Municipality of San Fernando, La Union. The SC hel
d that municipal corporations are agencies of the State when they are engaged in
governmental functions. Repair of municipal road is a governmental function. Th
erefore, should enjoy the immunity from suit. However, they are subject to suit
even in the performance of such functions because their respective charters prov
ide that they can sue and be sued. Sec. 22 (a2) of the Local Government Code- To
sue and be sued; SUABILITY vs. LIABILTY
SUABILITY State waiving the immunity LIABILTY -gives the claimant the opportunit
y to prove a claim against the State for a possible liability -will have to be d
etermined by the court on the basis of evidence and the applicable laws
Q. When is a suit against a public official deemed to be a suit against the Stat
e? A. The doctrine of State Immunity from suit applies to complaints filed again
st public officials for acts done in the performance of their duties within the
scope of their authority. The rule is that the suit must be regarded as one agai
nst the state where the satisfaction of the judgment against the public official
concerned will require the state to perform a positive act, such as appropriati
on of the amount necessary to pay the damages awarded to the plaintiff.
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The rule does not apply where the public official is charged in his official ca
pacity for acts that are unlawful and injurious to the rights of others. Public
officials are not exempt, in their personal capacity, from liability arising fro
m acts committed in bad faith. Neither does it apply where the public official i
s clearly being sued not in his official capacity but in his personal capacity,
although the acts complained of may have been committed while he occupied a publ
ic position. (Llansang vs. CA, Feb. 23, 2000) In this case, petitioner was sued
for allegedly “personal motives” in ordering the ejectment of the general Assemb
ly of the Blinds, Inc. (GABI) from the Rizal Park; thus, the case was not deemed
a suit against the state. Larkins vs. NLRC, 241 SCRA 598, private respondents w
ere dismissed from their employment by Lt. Col. Frankhauser acting for and in be
half of the US government which, by right of sovereign power, operated and maint
ained the dormitories at the Clark Airbase for USAF Members. Instances when a su
it against a State is proper: 1. When the Republic is sued by name 2. When the s
uit is against an unincorporated government agency--inquire into the principal f
unctions of the agency a. if governmental, NO SUIT WITHOUT CONSENT b. if proprie
tary, SUIT WILL LIE. 3. When the suit is on its face against a government office
r but the case is such that ultimate liability will belong not to the officer bu
t to the government. Republic vs. Sandoval, 220 SCRA 124, this is not a suit aga
inst the state with its consent. Even as the SC dismissed the suit against the R
P, the action for the damages against the military personnel and the policemen r
esponsible for the 1989 Mendiola Massacre was upheld inasmuch as the initial fin
dings of the Davide Commission showed that there was, at least, negligence on th
eir part when they fired their guns. They exceeded their authority. The military
personnel and the policemen were held to be liable in their individual capacity
. *hauling lumber for the repair of the public market—business enterprise of the
government (local government) *celebration of town fiesta—Torio vs. Fontanilla—
not a governmental function but a proprietary function
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The doctrine of State immunity from suit extends only up to rendition of the ju
dgment. When it comes to execution to satisfy the judgment, it will require anot
her waiver. The remedy is to make the necessary representation with the lawmakin
g authority. *duty to appropriate—discretionary and therefore cannot be compelle
d by mandamus. However, in Mun. of Makati vs. CA, 190 SCRA 206, where the munici
pality fails or refuses, without justifiable reasons, to effect payment of a fin
al money judgment rendered against it, the claimant may avail of the remedy of m
andamus in order to compel the enactment and approval of the necessary appropria
tion ordinance and the corresponding disbursement of municipal funds therefor. A
migable vs. Cuenca, 43 SCRA 360, an action for the recovery of the value of the
property taken by the government and converted into a public street without paym
ent of just compensation was allowed despite the failure of the property owner t
o file his claim with the Auditor General. The government should have followed f
irst its own rule (it should have filed an expropriation case) before it entered
the property. Had it done so, the suit can be waived. The state opened itself t
o a possible suit against it. SCOPE OF CONSENT Consent to be sued does not inclu
de consent to the execution of judgment against it. a. Such execution will requi
re another waiver, because the power of the court ends when the judgment is rend
ered. b. But funds belonging to government corporations (whose charters provide
that they can sue and be sued) that are deposited with a bank are not exempt fro
m garnishment. Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 13
0 SCRA 56, funds of a municipality are public in character and may not be garnis
hed UNLESS there is a corresponding appropriation ordinance duly passed by the S
angguniang Bayan. PNB vs. Pabalan, 83 SCRA 595, funds belonging to government co
rporations which can sue and be sued that are deposited with a bank. Unincorpora
ted Agency Incorporated Agency -it has no legal personality separate and -It has
a personality separate and distinct distinct from the government. When sued, fr
om the government it is deemed a suit against the State, there is no waiver of S
tate immunity. -it does not have its own charter like -it has its own charter su
ch as SSS, GSIS, Bureau of Customs, BIR, DA, NBI Land Bank, DBP -performs govern
mental functions: not -if its charter provides that it has the right
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suable without State consent even if to sue and be sued, it is an express perfor
ming proprietary function incidentally consent and it is suable (SSS vs. CA, 120
(Bureau of Printing vs. Bureau of SCRA 707) Printing Employees Association, 1 S
CRA 340) -if performing proprietary functions: suable -if its charter is silent,
inquire into its (Civil Aeronautics Administration vs. function based on the pu
rpose for which it CA, 167 SCRA 28). was created (Malong vs. PNR, 138 SCRA 63)
proprietary—if the purpose is to obtain special corporate benefits or earn pecun
iary profit, suable governmental—if it is in the interest of health, safety and
for the advancement of public good and welfare, affecting the public in general
, not suable (Balquera vs. Alcala, 295 SCRA 366) Rules Regarding Payment of Inte
rests by Government in Money Judgments Against It: G.R.—Government cannot be mad
e to pay interests. Exceptions: 1. Eminent domain; 2. Erroneous collection of ta
xes; 3. Where government agrees to pay interest pursuant to law.
ARMED FORCES OF THE PHILIPPINES (AFP) The AFP is the protector of the people and
the State. Its goal is to secure the sovereignty of the State and the integrity
of the national territory. It consist of citizen armed force and a regular forc
e. One police force— Republic Act 6975 Mass Media— It includes: 1. Radio 2. Tele
vision 3. Printed media
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Full Filipinization: Section 11 (1), article XVI—the ownership and management of
mass media shall be limited to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by such citizens. It pro
hibits combination in restraint of trade and unfair competition, and commands Co
ngress to regulate or prohibit monopolies in commercial mass media. Advertising—
not treated as mass media but use of mass media.
ARTICLE XVII AMENDMENTS OR REVISIONS
•Amendment vs. Revision
Amendment Revision -piecemeal or isolated change in the - revamp or rewriting of
the entire Constitution. It is the generic term used to Constitution. It means
overhauling of the denote change in the Constitution. government. **Lambino vs.
COMELEC -changing the form of government from presidential to parliamentary invo
lves a revision and not amendment. 2 Stages of Amendment:
1. Proposal (Secs. 1-3, Art. XVII)-the adoption of the suggested change in the
Constitution. A proposed amendment may come from—(3 ways of proposing
amendments to, or revision of, the Constitution under Article XVII):
(a) Congress— i. (Sec. 1, Art. XVII) Acting as Constitutional Assembly and not a
s a legislative body. -One of the non-legislative powers; ii. By a vote of 3/4 o
f all its members. (3/4 of the Senate, 3/4 of the House of Representatives (b) C
onstitutional Convention- which may be called into existence either: i. By direc
tly calling a Constitutional Convention by a 2/3 vote of all the Members of Cong
ress, or; ii. By submitting the issue to the people in a plebiscite [if the two-
thirds (2/3) vote is not obtained] by a majority vote of all the members of Cong
ress— with the question of whether or not to call a Convention to be resolved by
the people in a plebiscite. (Sec.3, Art. XVII) superior- people; Theory of Con
ventional Sovereignty inferior- it is a mere creation of Congress;
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co-equal to and independent of the 3 branches Occena vs. COMELEC 104 SCRA 1, t
he choice of method of proposal, i.e., whether made directly by Congress or thro
ugh a Constitutional Convention, is within the full discretion of the legislatur
e. (c) People, through the Power of Initiative (Sec.2, Art. XVII)- A petition of
at least 12% of the total number of registered voters, of which every legislati
ve district must be represented by at least 3% of the registered voters therein
--This is not a self-executing provision, it will require an enactment of law. R
A 6735 Initiative and Referendum Law INITIATIVE-the power of the people to propo
se amendments to the Constitution or to propose and enact legislations through a
n election called for the purpose. *3 kinds of initiative: 1. initiative on the
Constitution- refers to a petition proposing amendments to the Constitution 2. i
nitiative on statutes- refers to a petition proposing to enact a national legisl
ation 3. initiative on local legislation- refers to a petition proposing to enac
t a regional, provincial, municipal, city, or barangay law, resolution or ordina
nce [Sec.2(a),RA6735] Section 2 (b), RA 6735 provides for: INDIRECT INITIATIVE-
exercise of initiative by the people through a proposition sent to Congress or t
he local legislative body for action; and DIRECT INITIATIVE- the people themselv
es filed the petition with the COMELEC and not with Congress The COMELEC cannot
validly promulgate rules and regulations to implement the exercise of the right
of the people to directly propose amendments to the Constitution through the sys
tem of initiative. It does not have the power under RA 6735. Reliance on the COM
ELEC’s power under Section 2 (1), Article IX-C is misplaced, for the laws and re
gulations referred to therein are those promulgated by the COMELEC under Section
3 of Article IX-C or a law where subordinate legislation is authorized and whic
h satisfies the “completeness” and the “sufficient standard tests”. (Santiago vs
. COMELEC, 270 SCRA 106)
2. Ratification- (Sec. 4, Art. XVII) The proposed amendment shall become part of
the Constitution when ratified by a majority of the votes cast in a plebiscite h
eld not earlier than 60 nor later than 90 days after the approval of the proposa
l by Congress or the Constitutional Convention, or after the certification by th
e COMELEC of the
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sufficiency of the petition for initiative under Sec. 2, Art. XVII. REFERENDUM-
the power of the electorate to approve or reject legislation through an election
called for that purpose. Two (2) Classes: 1. Referendum on Statutes- refers to
a petition to approve or reject a law, or part thereof, passed by Congress 2. Re
ferendum on Local Law- refers to a petition to approve or reject a law, resoluti
on or ordinance enacted by regional assemblies and local legislative bodies Doct
rine of Proper Submission (proper frame of reference) Because the Constitution i
tself prescribes the time frame within which the plebiscite is to be held, there
can no longer be a question on whether the time given to the people to determin
e the merits and demerits of the proposed amendments is adequate. The plebiscit
e may be held on the same day as regular elections. Judicial Review of Amendment
s. The question is now regarded as subject to judicial review because invariably
, the issue will boil down to whether or not the constitutional provisions had b
een followed. (Sanidad vs. Comelec, 78 SCRA 333; Javellana vs. Exec. Secretary,
50 SCRA 50) Prohibited Measures: The following cannot be the subject of an initi
ative or referendum— 1. No petition embracing more than one subject shall be sub
mitted to the electorate; and 2. Statutes involving emergency measures, the enac
tment of which is specifically vested in Congress by the Constitution, cannot be
subject of referendum until ninety (90) days after the effectivity. (Sec. 10, R
A 6735) Local Initiative: not less than 2,000 registered voters in case of auton
omous regions, 1,000 in case of provinces and cities, 100 in case of municipalit
ies, and 50 in case of barangays, may file a petition with the Regional Assembly
or local legislative body, respectively, proposing the adoption, enactment, rep
eal, or amendment, of any law, ordinance or resolution. (Sec. 13, RA 6735) Limit
ations on Local Initiative:
a. The power of local initiative shall not be exercised more than once a year; b
. Initiative shall extend only to subjects or matters which are within the legal
powers of the local legislative bodies to enact; and c. If at any time before th
e initiative is held, the local legislative body shall adopt in toto the proposi
tion presented, the initiative shall be cancelled. However, those
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against such action may, if they so desire, apply for initiative. Limitation on
Local Legislative Body vis-à-vis Local Initiative Sec. 125, RA 7160—any proposi
tion or ordinance approved through an initiative and referendum shall not be rep
ealed, modified or amended by the Sangggunian within 6 months from the date of a
pproval thereof, and may be amended, modified or repealed within 3 years thereaf
ter by a vote of ¾ of all its members. In case of barangays, the period shall be
18 months after approval. Revision— In the case of Lambino vs. COMELEC, G.R. No
. 174153, October 25, 2006, the SC held that a people’s initiative to change the
Constitution applies only to an amendment of the Constitution and not to its re
vision. Certainly, the Lambino Group’s initiative is a revision and not merely a
n amendment. Quantitatively, the Lambino Group’s proposed changes overhaul two a
rticles—Article VI on the Legislature and Article VII on the Executive—affecting
a total of 105 provisions in the entire Constitution. Qualitatively, the propos
ed changes alter substantially the basic plan of government, from presidential t
o parliamentary, and from a bicameral to a unicameral legislature.
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Article XVIII TRANSITORY PROVISIONS
Section 7, Article XVIII Until a law is passed, the President may fill by appoin
tment from a list of nominees by the respective sectors the seat reserved for se
ctoral representatives in paragraph 2, Section 5 of Article VI of this Constitut
ion. Quintos-Deles vs. Committee on Constitutional Commissions, Commission on Ap
pointments, 177 SCRA 259, the appointment of a sectoral representative by the Pr
esident of the Philippines is specifically provided in the Constitution. Thus, t
he appointment of a sectoral representative falls under the 4th category—those o
fficers whose appointments are vested in him in the Constitution. Section 25, Ar
ticle XVIII—disallows foreign military bases, troops, or facilities in the count
ry, unless the following conditions are sufficiently met: 1. It must be under a
treaty; 2. The treaty must be duly concurred in by the Senate and, when so requi
red by Congress, ratified by a majority of the votes cast by the people in a nat
ional referendum; and 3. Recognized as a treaty by the other contracting state.
“Concurrence requirement” must be construed in relation to the provisions of S
ection 21, Article VII. The concurrence of the Senate contemplated under Section
25, Article XVIII means that at least two-thirds (2/3) of all the members of th
e Senate favorably vote to concur with treaty. This provision is a special provi
sion that applies to treaties which involve the presence of foreign military bas
es, troops or facilities in the Philippines. Under this provision, the concurren
ce of the Senate is only one of the requisites to render compliance with the con
stitutional requirements and to consider the agreement binding on the Philippine
s. (Bayan vs. Zamora, 342 SCRA 449) The requisites under the Constitution before
foreign military bases, troops, or facilities shall be allowed in the Philippin
es are: 1. There must be a treaty duly concurred in by the Senate; 2. When Congr
ess so requires, said treaty must be ratified by a majority of the
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votes cast by the pe0ple in a national referendum held for the purpose; and 3. S
aid treaty should be recognized as a treaty also by the other contracting State.
(Section 25, Article XVIII)
ADMINISTRATIVE LAW
E.O. 292 That branch of public law which fixes the organization, determines the
competence of administrative authorities who executes the law, and indicates to
the individual remedies for the violation of his right. Kinds: 1. Statutes setti
ng up administrative authorities. 2. Rules, regulations, or orders of such admin
istrative authorities promulgated pursuant to the purposes for which they were c
reated. 3. Determinations, decisions and orders of such administrative authoriti
es made in the settlement of controversies arising in their particular fields. 4
. Body of doctrines and decisions dealing with the creation, operation and effec
t of determinations and regulations of such administrative authorities. Administ
rative Code of 1987 The Code is a general law and incorporates in a unified docu
ment the major structural, functional and procedural principles of governance an
d embodies changes in administrative structures and procedures designed to serve
the people. It covers the internal administration, i.e., internal organization,
personnel and recruitment, supervision and discipline, and the effects of the f
unctions performed by administrative officials on private individuals or parties
outside government. Administrative Power It is concerned with the work of apply
ing policies and enforcing orders as determined by proper governmental organs. I
t enables the President to fix a uniform standard of administrative efficiency a
nd check the official conduct of his agents. To this end, he can issue administr
ative orders, rules and regulations. Administrative Order It is an ordinance iss
ued by the President which relates to specific aspects in the administrative ope
ration of government. It must be in harmony with the law and should be for the s
ole purpose of implementing the law and carrying out the legislative policy. Adm
inistration a. As a Function
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It is the execution, in non-judicial matters, of the law or will of the State as
expressed by competent authority b. As an Organization That group or aggregate
of persons in whose hands the reins of government are for the time being. Govern
ment of the Philippines It refers to the corporate governmental entity through w
hich the functions of the government are exercised throughout the Philippines, i
ncluding, save as the contrary appears from the context, the various arms throug
h which political authority is made effective in the Philippines, whether pertai
ning to the autonomous regions, the provincial, city, municipal or barangay subd
ivisions or other forms of local government. Kinds of government: 1. INTERNAL—le
gal side of public administration, e.g., matters concerning personnel, fiscal an
d planning activities. 2. EXTERNAL—deals with problems of government regulations
, e.g., regulation of lawful calling of profession, industries or businesses. Go
vernment Instrumentality It refers to any agency of the national government, not
integrated within the department framework, vested with special functions or ju
risdiction by law, endowed with some, if not all, corporate powers, administerin
g special funds, enjoying operational autonomy, usually through a charter. It in
cludes regulatory agencies, chartered institutions and GOCCs. Government-Owned o
r Controlled Corporations (GOCCs) It refers to any agency organized as a stock o
r non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the Government directly or t
hrough its instrumentalities either wholly, or where applicable as in the case o
f stock corporations, to the extent of at least fifty-one percent (51%) of its c
apital stock.
a. Proprietary—if the purpose is to obtain special corporate benefits or earn
pecuniary profit
b. Governmental—if it is in the interest of health, safety and for the
advancement of public good and welfare, affecting public in general. (Blaquera v
s. Alcala, 295 SCRA 366, September 11, 1998) Those with special charters are gov
ernment corporations subject to its provisions, and its employees are under the
jurisdiction of the CSC. The PNRC was not impliedly converted to a private corpo
ration simply because its charter was amended to vest in it the authority to sec
ure loans, be exempted from payment of all duties, taxes, fees and other charges
, etc. (Camporedondo vs. NLRC, G.R. No. 129049, August 6, 1999)
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Agency of the Government It refers to any of the various units of the Government
, including a department, bureau, office, instrumentality, or government-owned o
r controlled corporation, or a local government or a distinct unit therein.
Administrative Bodies or Agencies
Organ of government, other than a court, and other than a legislature, which aff
ects the rights of private parties either through adjudication or rule-making. T
hey are created either by: 1. Constitutional provisions; 2. Legislative enactmen
ts; or 3. Authority of law. A body or agency is administrative where its functio
n is primarily regulatory even if it conducts hearings and determines controvers
ies to carry out its regulatory duty. On its rule-making authority, it is admini
strative when it does not have discretion to determine what the law shall be but
merely prescribes details for the enforcement of the law. Administrative Regula
tions—also known as PIECES OF SUBORDINATE LEGISLATION, QUASI-LEGISLATIVE POWERS
It cannot extend the law or amend a legislative enactment, for settled is the ru
le that administrative regulations must be in harmony with the provisions of the
law. (Land Bank vs. CA, 249 SCRA 149) Kinds of Administrative Rules/Regulations
a. Supplementary or detailed legislation—to fix the details in the execution an
d enforcement of a policy set out in the law b. Interpretative legislation—const
ruing or interpreting the provisions of a statute to be enforced c. Contingent l
egislation—made by administrative authority on the existence of certain facts or
things upon which the enforcement of the law depends Requisites for A Valid Adm
inistrative Regulation 1. Promulgation must be authorized by the legislature 2.
The administrative RR must be in accordance with the authority granted by the le
gislature—it must not exceed; must be within the scope or purview of the law
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Administrative Rules and Regulations with Penal sanctions; Additional Requisite
s: 5. The law must itself declare as punishable the violation of the ARR; 6. The
law should define or fix the penalty for the violation of the ARR. Powers of Ad
ministrative Bodies 1. Quasi-Legislative or Rule-making power; 2. Quasi-Judicial
or Adjudicatory power; and 3. Determinative powers Quasi-Legislative function
consists of issuances of rules regulations general applicability Quasi-Judicial
function and refers to its end product called order, reward or decision appli
es to specific situation
prospective; it envisages the present determination of rights, privileges prom
ulgation of a rule or regulation or duties as of previous or present time or gen
erally applicable in the future occurrence Holy Spirit Homeowners Association vs
. Secretary Defensor, G.R. No. 163980, August 3, 2006, prohibition lies against
judicial or ministerial functions, but not against legislative or quasi-legislat
ive functions. In subordinate legislation, as long as the passage of the rule or
regulation had the benefit of a hearing, the procedural due process requirement
is deemed complied with. Quasi-Legislative Power This is the exercise of delega
ted legislative power, involving no discretion as to what the law shall be, but
merely the authority to fix the details in the execution or enforcement of a pol
icy set out in the law itself. The rules and regulations (RR) issued by administ
rative authorities pursuant to the powers delegated to them have the force and e
ffect of law; they are binding on all persons subject to them, and the courts wi
ll take judicial notice of them.
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3. Promulgation must be in accordance with the duly prescribed procedures PUBL
ICATION: (Tañada vs. Tuvera) Article 2 of the Civil Code. Publication is indispe
nsable. It speaks of laws and refers as well as to administrative RR promulgated
by administrative bodies except: a. Those merely internal in nature b. Those me
rely interpretative Article 3 of the Civil Code presupposes that the law has b
een published in the O.G. or in a newspaper of general circulation. 4. The admin
istrative RR must be REASONABLE—not whimsical, not capricious, not oppressive; i
t must pass the test of reasonableness
Under the law, it is the DOTC which is authorized to administer and enforced all
laws, rules and regulations in the field of transportation and to regulate rela
ted activities. Since the DPWH has no authority to regulate activities related t
o transportation, the Tollways Regulatory Board cannot derive its power from the
DPWH to issue regulations governing limited access facilities. (Ames Mirasol vs
. DPWH, G.R. No. 158793, 2006) Necessity of Notice and Hearing There is no const
itutional requirement for a hearing in the promulgation of a general regulation
by an administrative body. In Corona vs. United Harbor Pilots Association of the
Philippines, G.R. No. 111953, December 12, 1997, the SC reiterated the rule tha
t prior hearing is not necessary for the issuance of an ARR. Doctrine of Legisla
tive Approval by Re-Enactment—the rules and regulations promulgated by the prope
r administrative agency implementing the law are deemed confirmed and approved b
y the Legislature when said law was re-enacted by later legislation or through c
odification. The Legislature is presumed to have full knowledge of the contents
of the regulations then at the time of re-enactment. Determinative Powers 1. Ena
bling—to permit or allow something which the law undertakes to regulate 2. Direc
ting—illustrated by the power of assessment of the BIR or Bureau of Customs 3. D
ispensing—to exempt from a general prohibition, or relieve an individual or corp
oration from an affirmative duty 4. Examining—investigatory power—consists in re
quiring production of books, papers, etc. 5. Summary—power to apply compulsion o
r force against persons or property to effectuate a legal purpose without a judi
cial warrant to authorize such action Quasi-Judicial or Adjudicatory Power
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PSDSA vs. Sec. De Jesus, G.R. No. 157286, June 16, 2006, it must be stressed tha
t the power of administrative officials to promulgate rules in implementation of
a statute is necessarily limited to what is provided for in the legislative ena
ctment. The implementing rules and regulations of a law cannot extend the law or
expand its coverage, as the power to amend or repeal a statute is vested in the
legislature. It bears stressing, however, that the administrative bodies are al
lowed under their power of subordinate legislation to implement the broad polici
es laid down in a statute by “filling in” the details. All that is required is t
hat the regulation be germane to the objectives and purposes of the law; that th
e regulation does not contradict but conforms with the standards prescribed by l
aw.
The administrative agency is acting as a court of justice, conducting hearings a
nd rendering decisions. The proceedings partakes the character of judicial proce
edings Sec. 1(1), Article VIII—The judicial power shall be vested in one SC and
in such lower courts as may be established by law. –outside of this, they refer
to the administrative agency performing quasi-judicial functions. Requisites for
a valid exercise of Quasi-Judicial Function of Administrative Agency 1. Conferm
ent of jurisdiction—jurisdiction is conferred by the Constitution or law; it can
not be implied, cannot be waived, it cannot be left to the will of the people. T
he power to promulgate rules of procedure Once vested with quasi-judicial power,
by virtue of the DOCTRINE OF NECESSARY IMPLICATION, it provides the power to pr
omulgate the rules of procedure. The rules of procedure are subject to the revie
w power of the SC. [Sec. 5(5), Art. VIII]: Promulgate rules concerning the prote
ction and enforcement of constitutional rights, pleading, practice, and procedur
e in all courts, the admission to the practice of law, the Integrated Bar, and l
egal assistance to the underprivileged. Such rules shall provide a simplified an
d inexpensive procedure for the speedy disposition of cases, shall be uniform fo
r all courts of the same grade, and shall not diminish, increase or modify subst
antive rights. Rules of procedure of special courts and quasi-judicial bodies sh
all remain effective unless disapproved by the Supreme Court. In Cariño vs. CHR,
204 SCRA 483, the power to investigate is different from the power to adjudicat
e. The court has observed that it is “only the first of the enumerated powers an
d functions that bears any resemblance to adjudication,” but that resemblance ca
n in no way be synonymous to the adjudicatory power itself. Power to investigate
Receiving evidence and make findings of fact in a controversy (in the case of C
HR, claimed human rights violations involving civil and political rights) Power
to adjudicate The faculty of receiving evidence and make factual conclusions in
a controversy accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authori
tatively, finally and definitely, subject to appeals or modes of review as may b
e provided by law.
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2. Observance of Administrative Due Process—mandatory. The requisites of
administrative due process, as enumerated in Ang Tibay vs. CIR, 40 O.G. 7th Supp
. 128 are: 7 Cardinal/Primary Rights in ADP: a. There must be a hearing; b. The
tribunal must consider the evidence presented; c. Decision must have something t
o support itself; d. The evidence must be substantial—quantum of evidence; e. Th
e decision must be based on the evidence adduced at the hearing, or at least con
tained in the record and disclosed to the parties; f. The Board or its judges mu
st act on its or their independent consideration of the facts and the law of the
case, and not simply accept the views of a subordinate in arriving at a decisio
n; and g. The decision must be rendered in such a manner that the parties to the
controversy can know the various issues involved and the reason for the decisio
n rendered. Montemayor vs. Araneta University Foundation (1977)—Montemayor was a
full-time professor. Charged with immoral advances, he was investigated with th
e assistance of counsel, and dismissed in accordance with the Manual of policies
of the University. On appeal to the NLRC, he was ordered reinstated. The SC hel
d that his removal was with due process. There was no violation of due process i
n the labor proceeding but it did not preclude Montemayor from suing the Univers
ity for damages. In Lumiqued vs. Exevea, G.R. No. 117565, November 18, 1997, the
CAR Regional Director was charged administratively. He was asked several times
if he would like to be assisted by counsel but he refused alleging that he can h
andle his case as he was from UP. After he was found guilty, he died. The heirs
now claimed that the entire proceeding was null and void. They alleged that Lumi
qued was not properly assisted by counsel. It is the right of the accused to be
assisted by counsel. The SC held that the right of the accused that was being al
leged by the heirs is a right of the accused during custodial investigation whic
h is part of a criminal proceeding. This is not a criminal proceeding. Administr
ative due process does not necessarily require the assistance of counsel. A part
y in an administrative proceeding has the option of engaging a counsel or not. H
e may or may not be assisted by counsel. In this case, the Regional Director was
even asked if he would like to be assisted by counsel but he refused to. The ri
ght to counsel is not indispensable to due process unless required by the Consti
tution or the law. In Gonzales vs. NLRC and Ateneo de Davao University, G.R. No.
125735, August 26, 1999, the SC held that there was a violation of administrati
ve due process
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where the teacher was dismissed by the university without having been given full
opportunity to confront the witnesses against her. The essence of due process i
s simply an opportunity to be heard or, as applied to administrative proceedings
, an opportunity to seek reconsideration of the action or ruling complained of (
Dela Cruz vs. Abille, G.R. No. 130196, February 26, 2001), or an opportunity to
explain one’s side (Pilipinas Loan Company vs. SEC, G.R. No. 104720, April 4, 20
01). In administrative proceedings, procedural due process simply means the oppo
rtunity to explain one’s side or the opportunity to seek a reconsideration of th
e action or ruling complained of. “To be heard” does not mean only verbal argume
nts in court; one may also be heard through pleadings. Where opportunity to be h
eard, either through oral arguments or pleadings, is accorded, there is no denia
l of procedural due process (Casimiro vs. Tandog, G.R. No. 146137, June 8, 2005)
. CSC vs. CA, G.R. No. 161086, November 24, 2006, in administrative proceedings,
the filing of charges and giving reasonable opportunity for the person so charg
ed to answer the accusations against him constitute the minimum requirements of
due process. As long as a party was given opportunity to defend his interests in
due course, he was not denied due process. Power of Contempt—judicial; inherent
power of the court. It must be used on the preservative not on the vindictive p
rinciple. An administrative body may exercise the power of contempt if expressly
granted/vested by law to the administrative agency. The doctrine of necessary i
mplication cannot be applied here. In Guevarra vs. COMELEC, 104 Phil. 268, the p
ower to punish contempt must be expressly granted to the administrative body; an
d when so granted, may be exercised only when the administrative body is actuall
y performing quasi-judicial functions. In Simon, Jr. vs. CHR, 229 SCRA 117, the
CHR is constitutionally authorized to “adopt its operational guidelines and rule
s of procedure, and cite for contempt for violations thereof in accordance with
the Rules of Court”. Accordingly, the CHR acted within its authority in providin
g in its revised rules, its power “to cite or hold any person in direct or indir
ect contempt, and to impose the appropriate penalties in accordance with the pro
cedure and sanctions provided for in the Rules of Court.” That power to cite for
contempt, however, should be understood to apply only to violations of its adop
ted operational guidelines and rules of procedure essential to carry out its inv
estigatorial powers. To exemplify, the power to cite for contempt could be exerc
ised against persons who refuse to cooperate with the said body, or who unduly w
ithhold relevant information, or who decline to honor summons, and the like, in
pursuing its investigative work. The “order to desist” (a semantic interplay for
a restraining order) is not
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investigatorial in character but prescinds from an adjudicative power that it do
es not possess. In this case, the power of contempt arose from an erroneous assu
mption of jurisdiction. It is not valid. There is grave abuse of discretion to b
oth issues. Administrative determinations where notice and hearing are not neces
sary for due process: 1. Grant of provisional authority for increased rates, or
to engage in a particular line of business 2. Summary proceedings of distraint a
nd levy upon the property of a delinquent taxpayer 3. Cancellation of a passport
where no abuse of discretion is committed by the Secretary of Foreign Affairs 4
. Summary abatement of a nuisance per se which affects the immediate safety of p
ersons or property 5. Preventive suspension of a public officer or employee pend
ing investigation of administrative charges filed against him In PBC vs. CIR, G.
R. No. 112024, January 28, 1999, Article 8 of the Civil Code recognizes judicial
decisions applying or interpreting statutes as part of the legal system of the
country. But administrative decisions do not enjoy that level of recognition. A
memorandum-circular of a bureau head could not operate to vest a taxpayer with a
shield against judicial action. For there are no vested rights to speak of resp
ecting a wrong construction of the law by administrative officials and such wron
g interpretation could not place the Government in estoppel to correct or overru
le the same. Administrative Appeal and Review a. Where provided by law, appeal f
rom an administrative determination may be made to a higher or superior administ
rative officer or body. b. By virtue of the power of control by which the Presid
ent exercises over all executive departments, the President—by himself—or throug
h the Department Secretaries (pursuant to the Alter-Ego Doctrine), may affirm, m
odify, alter, or reverse the administrative decision of subordinate officials an
d employees. (Araneta vs. Gatmaitan, 101 Phil. 328). c. The appellate administra
tive agency may conduct additional hearings in he appealed case, if deemed neces
sary. (Reyes vs. Zamora, 90 SCRA 92). Doctrine of Res Judicata It does not apply
to administrative decisions. It forbids the reopening of a matter once determin
ed by competent authority acting within their exclusive jurisdiction. (Ysmael vs
. Deputy Executive Secretary, 190 SCRA 673)
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Doctrine of Primary Jurisdiction (or Prior Resort) Courts cannot and will not re
solve a controversy involving a question which is within the jurisdiction of an
administrative tribunal, especially where the question demands the exercise of s
ound administrative discretion requiring the special knowledge, experience and s
ervices of the administrative tribunal to determine technical and intricate matt
ers of fact. In recent years, it has been applied to matters that demand the spe
cial competence of administrative agencies even if the question involved is also
judicial in character. It applies “where a claim is originally cognizable in th
e courts, and comes into play whenever enforcement of the claim requires the res
olution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative body; in such case, the judicial process
is suspended pending referral of such issues to the administrative body for its
view.” In cases where the doctrine of primary jurisdiction is clearly applicabl
e, the court cannot arrogate unto itself the authority to resolve a controversy,
the jurisdiction over which is lodged with an administrative body of special co
mpetence. (Villaflor vs. CA, 280 SCRA 287) Doctrine of Exhaustion of Administrat
ive Remedies Before a party is allowed to seek the intervention of the court, it
is a pre-condition that he should have availed of all the means of administrati
ve processes afforded him. Hence, if a remedy within the administrative machiner
y can still be resorted to by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction then such r
emedy should be exhausted first before the court’s judicial power can be sought.
The premature invocation of court’s jurisdiction is fatal to one’s cause of act
ion. Sec. 187, LGC—expressly provides that administrative remedies must be exhau
sted first before the constitutionality or legality of a tax ordinance may be ch
allenged in court. In Philippine Coconut Desiccators vs. PhilCoA, G.R. No. 11052
6, February 10, 1998, only decisions of administrative agencies made in the exer
cise of quasijudicial powers are subject to the rules of exhaustion of administr
ative remedies. In like manner, the doctrine of primary administrative jurisdict
ion applies only where the administrative agency exercises quasi-judicial or adj
udicatory powers. Thus, where what is assailed is the validity or constitutional
ity of a rule or regulation issued by the administrative agency in the performan
ce of its quasi-legislative function, the regular courts have jurisdiction to pa
ss upon the same (Smart Communications vs. NTC, G.R. No. 151908, August 12, 2003
).
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Doctrine of Primary Jurisdiction (Prior Doctrine of Exhaustion of Resort Adminis
trative Remedies Lack of jurisdiction cannot be waived; Lack of Cause of action;
waivable; jurisdiction is conferred by law premature resort to the courts neces
sarily becomes fatal to the COA.
Exceptions: 1. If the issue involves a pure question of law—useless to exhaust.
Only the courts can declare with finality what are purely legal question. In Cas
tro vs. Secretary Gloria, G.R. No. 132174, August 20, 2001, the SC said that the
re is a question of law when the doubts or differences arise as to what the law
is on a certain state of facts. There is question of fact when the doubts or dif
ferences arise as to the truth or falsity of alleged facts.
2. If the law does not provide for an administrative remedy—just go to the regul
ar
courts. In Estuerte vs. CA, 193 SCRA 541, the SC said that in a civil action for
damages, the court’s concern is whether or not damages, personal to the plainti
ff, were caused by the acts of the defendants; it can proceed independently of t
he administrative action. Accordingly, the doctrine of exhaustion of administrat
ive remedy does not apply.
3. Doctrine of Qualified Political Agency—ALTER EGO DOCTRINE. In Nazareno
vs. CA, 267 SCRA 589, the SC held that when the Undersecretary of DENR denied th
e motion for reconsideration, he was acting on behalf of the Secretary of DENR;
accordingly, administrative remedies had been exhausted. 4. Where there is unrea
sonable delay or official inaction. In Republic vs. Sandiganbayan, 255 SCRA 438,
the inaction of the PCGG on the motion filed by the respondent and co-responden
t [it took 7 years before the PCGG filed its motion to dismiss based on failure
to exhaust administrative remedies] gave rise to unreasonable delay. 5. The admi
nistrative action is patently illegal amounting to lack or excess of jurisdictio
n. In Cabada vs. Alunan, 260 SCRA 838, the SC said that the Commissioner of the
NAPOLCOM who denied petitioners’ appeal to the Secretary of DILG acted in a
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General rule: Exhaustion of administrative remedies must first be made before re
sorting to court actions. Failure to exhaust will not affect the jurisdiction of
the court but the complainant is deprived of a COA which is a ground for a moti
on to dismiss. However, if no motion to dismiss is filed on this ground, there i
s deemed to be a waiver.
patently illegal manner, because only the Secretary of DILG could act on the app
eal and the NAPOLCOM, being a collegial body, cannot be bound by the act of an i
ndividual Commissioner. 6. When there is irreparable injury or threat thereof, u
nless judicial recourse is immediately made. 7. When it would amount to a nullif
ication of the claim. 8. When the subject matter is a private land in land case
proceeding. 9. When there are circumstances indicating the urgency of judicial i
ntervention. 10. When due process of law is clearly violated. 11. When there is
estoppel on the part of the administrative agency concerned.
The doctrine of exhaustion of administrative remedies and the corollary doctrine
of primary jurisdiction, which are based on sound policy and practical consider
ations, are not inflexible rules. There are many accepted exceptions such as unr
easonable delay or official inaction that will irretrievably prejudice the compl
ainant and when the question involved is purely legal and will ultimately have t
o be decided by the courts of justice. (RP ETC vs. Lacap, G.R. No. 158253, March
2, 2007) Judicial Review of Administrative Decisions; When Made: 1. To determin
e constitutionality or validity of any treaty, law, ordinance, executive order o
r regulation;
2. To determine jurisdiction of any administrative board, commission or officer;
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In Vda de Tan vs. Veterans Backpay Commission, 105 Phil. 377, petitioner, as wid
ow of a Chinese guerilla veteran who rendered military service during the Japane
se occupation, filed an application for back pay before the Veterans Back Pay Co
mmissions. xxx The respondent Commission is in estoppel considering that in its
resolution: “The opinions promulgated by the Secretary of Justice are advisory i
n nature, which may either be accepted or ignored by the office seeking the opin
ion, and any aggrieved party has the court for recourse xxx.” thereby leading th
e petitioner to conclude that only final judicial ruling in her favor would be a
ccepted by the Commission. Non-exhaustion of administrative remedies is not juri
sdictional. It only renders the action premature, i.e., claimed cause of action
is not ripe for judicial determination and for that reason a party has no cause
of action to ventilate in court. (Carale vs. Abarintos, 269 SCRA 132)
¥say
3. To determine any other questions of facts when necessary to determine either:
a. Constitutional or jurisdictional issue; b. Commission of abuse of authority;
and c. When administrative fact-finding body is unduly restricted by an error of
law.
4. To determine any other questions of law.
General Rule: Findings of facts of administrative agencies accorded great weight
by the courts. Exceptions: 1. Factual finding is not supported by evidence; 2.
Findings are vitiated by fraud, imposition or collusion; 3. Procedure which led
to factual findings is irregular; 4. Palpable errors are committed; 5. Grave abu
se of discretion, arbitrariness or capriciousness is manifest. NHA vs. Pascual,
G.R. No. 158364, November 28, 2007, the decisions and orders of administrative a
gencies, rendered pursuant to their quasi-judicial authority, have upon their fi
nality, the force and binding effect of a final judgment within the purview of t
he doctrine of res judicata. BRANDEIS DOCTRINE OF ASSIMILATION OF FACTS—where wh
at purports to be a finding upon a question of fact is so involved with and depe
ndent upon a question of law as to be in substance and effect decision on the la
tter, the Court will, in order to decide the legal question, examine the entire
record including the evidence if necessary.
PUBLIC INTERNATIONAL LAW
Law that deals with the conduct of States and international organizations, their
relations with each other and, in certain circumstances, their relations with p
ersons, natural or juridical.
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¥say
International Law—body of principles, norms and processes which regulates he rel
ations of States and other international persons, and governs their conduct affe
cting the interests of the international community of States as a whole. This co
ncept manifests in the codification of jus cogens or peremptory norms as part of
positive international law. The Vienna Convention on the Law of Treaties specif
ies jus cogens norms as a ground for nullification or termination of treaties. F
or this purpose, article 53 of the Convention defines a jus cogens norm, thus: “
a peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no der
ogation is permitted and which can be modified only by a subsequent norm of gene
ral international law having the same character. Basis of International Law 1. L
aw of Nature School—based on rules of conduct discoverable by every individual i
n his own conscience and through application of right reasons. 2. Positivist Sch
ool—agreement of sovereign states to be bound by it (express in conventional law
, implied in customary law, and presumed in general principles) 3. Eclectic or G
roatian School—a compromise between the first 2 schools and submits that interna
tional law is binding partly because it is good and right and partly because sta
tes agreed to be bound by it. Functions of International Law: 1. Promote interna
tional peace and security; 2. Foster friendly relations among nations and discou
rage use of force I the resolution of difference among them; 3. Provide for orde
rly regulation of conduct of states in their mutual dealings; and 4. Ensure inte
rnational cooperation in pursuit of certain common purposes of economic, social,
cultural or humanitarian character.
Basic norms or principles of international law: 1. States shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State, or any other manner inconsist
ent with the purposes of the UN. 2. States shall settle their international disp
utes by peaceful means in such a manner that international peace and security an
d justice are not endangered.
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¥say
3. The duty of States not to intervene in matters within the domestic jurisdicti
on of any State. 4. The duty of States to cooperate with one another. 5. The pri
nciple of equal rights and self-determination of peoples. 6. The principle of so
vereign equality of States. 7. States shall fulfill in good faith the obligation
s assumed by them. Sources of International Law a. International treaties and co
nventions, whether general or particular, establishing rules expressly recognize
d by the contesting States; Vienna Convention on the Law of Treaties, Hague Con
vention Treaty— Elements: 1. International agreement 2. States 3. Written 4. Gov
erned by international law Making: General rule: Full powers needed Exceptions:
1. Heads of states/governments 2. Foreign affairs 3. Heads of diplomatic mission
s-limited 4. Representatives to international conferences(Note: Subsequent confi
rmation of acts of representatives
without full powers validates action on behalf of state)
limited
General rule: if bilateral or few states, all must concur Exception: internation
al conference (2/3) Exception to the Exception: if 2/2 provide different rule b.
International customs, as evidence of a general practice accepted as law; Eleme
nts of International Custom: 1. General practice, characterized by uniformity an
d consistency; Prevailing practice by a # of states, repeated over a considerab
le period of time 2. Opinio juris sive necessitatis, or recognition of that prac
tice as legally binding. Doctrine of state immunity, prohibition against slaver
y, principle of exterritoriality
Adoption:
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¥say
Instant Custom—a binding customary rule established by the spontaneous activity
of a great number of states and need not be observed for a considerable period.
e.g. application of self-defense in invading Afghanistan after 911 c. The genera
l principles of law recognized by civilian nations; Derived from law of nature
and are observed by the majority of states because they are believed to be good
and just.
d. Judicial decisions and the teachings and writings of the most highly qualifie
d
publicists of the various nations and advisory opinions of the ICJ, as subsidiar
y means for the determination of rules of law. e. Equity—Article 38 (2) provides
that the ICJ may decide cases ex a quo et bono (by what is fair and good) Sourc
es of law refer to norms derived from international conventions or treaties, cus
tom, and general principles of law. The distinctive character of these norms is
that they are created, or they acquire binding effect, through the methods point
ed out above. Formal Sources Material Sources
—consists of the methods and procedures —are the substantive evidence of the for
the creation of norms; existence of norms;
—may refer to customary norms
—may refer to judicial decisions and the works of highly qualified publicists or
jurists, which embody norms of international law
THE LAW ON TREATIES
(See Atty. Sandoval’s 2008 handouts in International Law, page 9)
JUS COGENS—a (peremptory) norm which States cannot derogate or deviate from in t
heir agreements. It is therefore a mandatory norm and stands on a higher categor
y than a jus dispositivum norm which states can set aside or modify by agreement
.
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¥say
General Rule: Parties cannot enter into a treaty contrary to jus cogens or norms
recognized and accepted by international community; non-derogable Examples: unl
awful use of force, commission of a criminal act, trade in slaves, piracy, genoc
ide, human rights violations, equality of states, and self-determinations Princi
ples which determine the order of precedence in the application of rules or norm
s of International Law: 1. Lex superior derogate inferiori—rules from one source
of law prevail over those derived from another source. 2. Lex posterior derogat
e priori—later rules prevail over the earlier. 3. Lex specialis derogate general
i—particular rules prevail over the general.
International Law Law of coordination regulates relation of states and other i
nternational persons derived principally from treaties, international customs a
nd general principles of law resolved thru state-to-state transactions collect
ive responsibility because it attaches directly to the state and not to its nati
onals
Rules in case of conflict between IL and ML: Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that mu
nicipal law was enacted with proper regard for the generally accepted principles
of international law in observance of the Incorporation Clause in Section 2, Ar
ticle II of the Constitution. If a local court is deciding:
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Municipal Law Law of subordination (issued by political superior) regulates re
lations of individuals among themselves or with their own states consists mainl
y of statutory enactments, and to a lesser extent executive orders and judicial
pronouncements redressed thru local administrative and judicial processes brea
ch of which entails individual responsibility
¥say
If conflict is with the Constitution, the latter prevails. Sec. 5(2a), Article
VIII of the Constitution provides that the SC has the power to declare a treaty
or executive agreement unconstitutional. If conflict is with a statute, IL shou
ld be given equal standing with, but not superior to, national legislative enact
ments. If an international tribunal is deciding: International law is superior
to municipal law, because international law provides the standard by which to de
termine the legality of a State’s conduct. By the doctrine of pacta sunt servand
a, a state may not invoke its internal law to avoid a treaty obligation. Relatio
n of IL to ML: (2 Views) 1. Monist—IL is the same as ML 2. Dualist—they are disc
tinct from each other by purpose. IL becomes part of ML by incorporation or tran
sformation. INCORPORATION CLAUSE—Section 2, Article II of the Constitution-- The
Philippine renounces war as an instrument of national policy, adopts the genera
lly accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and ami
ty with all nations. Under the doctrine of incorporation, rules of international
law form part of the law of the land and no further legislative action is neede
d to make such rules applicable in the domestic sphere. How is it applied by lo
cal courts? The doctrine is applied whenever municipal tribunals (or local cou
rts) are confronted with situations in which there appears to be a conflict betw
een a rule of international law and the provisions of the Constitution or statut
e of the local state. Efforts should first be exerted to harmonize them, so as t
o give effect to both since it is to be presumed that municipal law was enacted
with proper regard for the generally accepted principles of international law in
observance of the Incorporation Clause in Section 2, Article II of the Constitu
tion. In a situation, however, where the conflict is irreconcilable and a choice
has to be made between a rule of international law and municipal law, jurisprud
ence dictates that municipal law should be upheld by the municipal courts for th
e reason that such courts are organs of municipal law and are accordingly bound
by it in all circumstances. The fact that international law has been made part o
f the law of the land does not pertain to or imply the primacy of international
law over national or municipal law in the municipal sphere. The doctrine of inco
rporation, as applied in most countries,
325
Page 3257/12/2008
¥say
decrees that rules of international law are given equal standing with, but are n
ot superior to, national legislative enactments. Accordingly, the principle of l
ex posterior derogate priori takes effect—a treaty may repeal a statute and a st
atute may repeal a treaty. In states where the Constitution is the highest law o
f the land, such as the Republic of the Philippines, both statutes and treaties
may be invalidated if they are in conflict with the Constitution. (Secretary of
Justice vs. Hon. Ralph Lantion, G.R. No. 139465, January 18, 2000) The incorpora
tion clause assumes the existence of international law which binds the Philippin
es as a State. It thus becomes a method by which the Philippines can carry out i
ts obligations under international law within its territorial jurisdiction. It c
reates legal rights and obligations within Philippine territory and regulates th
e conduct of government official and organs as well as the relations of individu
al citizens with each other and with the government. Questions of international
law may be submitted to Philippine courts for decision. The outcome of litigatio
n, however, does not affect the binding nature of international law in the relat
ion of the Philippines with other States and other international persons. Judici
al notice dispenses with the burden of proving “generally accepted principles of
international law”. Theoretically at least, its cumulative effect as combined w
ith the incorporation clause is to require no proof at all for the application o
f generally accepted principles of international law to become operative as Phil
ippine law in a case before a Philippine court. In short, it is as good as statu
tory law in terms of probative value.
Identified Parts of Domestic Law as Derived from “Generally Accepted Principles
of International Law”: 1. Rules and principles of land warfare and of humanitari
an law under Hague and Geneva Conventions 2. Pacta sunt servanda 3. Human rights
4. A foreign army allowed to march through a friendly country or to be statione
d in it, by permission of its government or sovereign, is exempt from the civil
and criminal jurisdiction of the place
326
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¥say
5. Judicial acts not of a political complexion of a de facto government establis
hed by the military occupant in an enemy territory is valid under international
law 6. Private property seized and used by the enemy in times of war under circu
mstances not constituting valid requisition does not become enemy property and i
ts private ownership is retained, the enemy having acquired only its temporary u
se 7. The State has the right to protect itself and its revenues, a right not li
mited to its own territory but extending to the high seas 8. Principle of restri
ctive sovereign immunity 9. Principle in diplomatic law that the receiving state
has the special duty to protect the premises of the diplomatic mission of the s
ending State 10. The right of a citizen to return to his country Holy See vs. de
l Rosario, the Court has declared in an obiter dictum that even without affirmat
ion in the incorporation clause of the Constitution, “such principles of interna
tional law are deemed as part of the law of the land as a condition and conseque
nce of our admission in the society of nations,’ under the doctrine of incorpora
tion. And upon admission in the international society, the state is automaticall
y obligated to comply with these principles. DOCTRINE OF TRANSFORMATION—requires
the enactment by the legislative body of such international law principles as a
re sought to be part of municipal law. In the case of Laguna Lake Development Au
thority vs. CA, 231, SCRA 292, it was held that Section 6, Article II of the Con
stitution was taken from the Universal Declaration of Human Rights and the Alma
Conference Declaration of 1978 recognizing health as a fundamental human right.
Thus, the authority of the LLDA to issue a cease and desist order to prevent pol
lution of Marilao River was upheld on the basis of the principle of necessary im
plication. Provisions of the Constitution which concern International Law 1. Art
icle I—National Territory 2. Article II, Section 2—Incorporation Clause 3. Artic
le II, Section 4—defense of state 4. Article II, Section 7—independent foreign p
olicy 5. Article II, Section 8—freedom from nuclear weapons 6. Article III, Sect
ion 6—liberty of abode 7. Article IV—Citizenship
327
Page 3277/12/2008
¥say
8. Article VI, Section 23—State of war 9. Article VII, Section 21—treaty 10. Art
icle VIII, Section 5—cases affecting ambassadors 11. Article XII, Section 2—owne
rship of lands and exploration of resources 12. Article XVIII, Section 4—treatie
s 13. Article XVIII, Section 25—foreign military troops Subject of International
Law—is an entity with capacity of possessing international rights and duties an
d of bringing international claims. This entity is said to be an international p
erson or one having an international personality, on the basis of customary or g
eneral international law. It includes: 1. State; 2. Colonies and dependencies—th
ey are considered as part and parcel of the parent
3. state, through which all its external relations are transacted with other sta
tes; Territories under international control or supervision—these are non-selfgo
verning territories which have been placed under international supervision to in
sure their political, economic, social and educational advancement; Mandates—for
mer territorial possessions of states defeated in World War I and placed under t
he control of the League of Nations. Trust territories—some of the mandates that
were placed under the Trusteeship Council of the UN Condominium—is a territory
jointly administered by two states. Belligerent communities—group of rebels unde
r an organized civil government who have taken up arms against the legitimate go
vernment. When recognized, considered as a separate state for purposes of confli
ct and entitled to all the rights and subjected to all the obligations of a full
-pledged belligerent under the laws of war; International administrative bodies—
created by agreement among states may be vested with international personality w
hen two conditions concur: a. Their purposes are mainly non-political; b. They a
re autonomous and not subject to the control of any state. The United Nations—(S
ee discussion below); The Holy See has all the constituent elements of Statehoo
d. It has all the rights of a state, including diplomatic intercourse, immunity
from foreign jurisdiction, etc. The Vatican was constituted as a territory under
the Sovereignty of Holy See. In the case of Holy See vs. del Rosario, 238 SCRA
524, the SC distinguished Vatican City from Holy See wherein the latter is an in
ternational person with which the Philippines had diplomatic ties since 1957. 32
8
4.
5.
6.
7. The Vatican City and the Holy See—
Page 3287/12/2008
¥say
If an entity is not a subject of international law as such, it may still assume
certain characteristics of international personality but in a special or restric
ted context such as that defined by agreement, recognition or acquiescence. An i
ndividual may be a subject of international law (independently of his State, an
individual may be tried for terrorism (Bin Laden), war crimes. The Rome Statute
has created a permanent international criminal court. May individuals assume th
e status of subjects of international law? Yes, but on the basis of agreement
or in specific context, and not in accordance with general or customary internat
ional law. Government of Hong Kong Special Administrative Region vs. Hon. Olalia
, Jr. G.R. No. 153675, April 19, 2007 (See Atty. Sandoval’s 2008 handouts in Int
ernational Law, page 1) Are international organizations considered subjects of
international law? Yes, their status is determined by agreement and not by gen
eral or customary international law. The criteria of a legal personality have to
be met. 1. A permanent association of states, with lawful subjects, equipped wi
th organs; 2. A distinction, in term of legal powers and purposes, between the o
rganization and its member states;
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8. Individuals, to a certain extent—they have also been granted a certain degree
of international personality under a number of international agreements: a. UN
Charter provision on “faith in fundamental human rights, dignity and worth of th
e human person, and in the equal rights of men and women”; b. Universal Declarat
ion of Human Rights provision on the “inherent dignity and the equal and inalien
able rights of all members of the human family”; c. Some treaties—Treaty of Vers
ailles which confer on individuals the right to bring suit against States before
national or international tribunals; d. The need of States to maintain internat
ional standard of justice in the treatment of aliens; e. The Genocide Convention
which condemns the mass extermination of national, ethnic, racial or religious
groups; f. The 1930 Hague Convention with its rules to prevent the anomalous con
dition of statelessness and the 1954 Covenant Relating to the Status of Stateles
s Persons, which grants stateless individuals certain basic rights; and g. The 1
950 European Convention on Human Rights and fundamental Freedoms, which grants p
rivate associations and individuals the right to file complaints before the Euro
pean Court on Human Rights.
¥say
3. The existence of legal powers exercisable on the international plane and not
solely within the national systems of one or more states.
It is a group of people living together in a fixed territory, organized for poli
tical ends under an independent government, and capable of entering into interna
tional relations with other states. Basic Criteria for Statehood (elements): 1.
Permanent population;
2. Defined territory—a fixed portion of the earth’s surface occupied by the inha
bitants; 3. Government—must be organized, exercising control over and capable of
maintaining law and order within the territory; and 4. Capacity to enter into r
elations with other States—refers to independence, that is, freedom from outside
control in the conduct of its foreign (and internal) affairs, which many highly
qualified publicists consider as the decisive criterion of statehood. 5. Civili
zation 6. Recognition other suggested/additional elements
Creation of State: 1. By revolution; 2. Unification; 3. Secession; 4. Assertion
of independence; 5. Agreement; and 6. Attainment of civilization. Extinction of
States:
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People—a group of individuals, of both sexes, living together as a community. T
hey must be sufficient in number to maintain and perpetuate themselves.
¥say
STATE—a community of persons, more or less numerous, permanently occupying a def
inite portion of territory, independent of external control, and possessing a go
vernment to which a great body of inhabitants render habitual obedience. (CIR vs
. Campos Rueda, 42 SCRA 23)
1. By extinction or emigration en masse of its population;
2. Loss of territory; and 3. Overthrow of government resulting in anarchy. Princ
iple of State Continuity—as long as the elements of the State are present, the S
tate shall continue in existence.
Succession of Governments: The integrity of the State is not affected. The Stat
e continues as the same international person except that its lawful representati
ve is changed. Consequences: 1. All rights of the predecessor government are inh
erited by the successor; 2. Where the new government was organized by virtue of
constitutional reform duly ratified in a plebiscite, all obligations of the pred
ecessor are likewise assumed; however, 3. Where the new government is establishe
d through violence, the new government may lawfully reject purely personal or po
litical obligations of the predecessor, but not those obligations contracted by
it in the ordinary course of official business.
Classes of States: A. INDEPENDENT—has freedom to direct and control foreign rela
tions without restraint from others states. It may be: a. Simple—single central
government with power over internal and external affairs. b. Composite—2 or more
sovereign states joined together to constitute one international person which m
ay be:
331
Page 3317/12/2008
¥say
Succession of States: May be Universal or Partial Consequences: 1. Political law

s are abrogated 2. Municipal laws remain in force 3. Treaties are discontinued,
except those dealing with local rights and duties, such as those establishing ea
sements and servitudes; 4. All rights of the predecessor state are inherited, bu
t successor state can assume and reject liabilities at its discretion
i. Real Union—2 or more states merged under a unified authority so
that they form a single international person through which they act as one entit
y. The states retain their separate identities, but their respective internation
al personalities are extinguished and blended in the new international person. i
i. Federal Union—combination of 2 or more states which, upon merger, ceased to b
e states, resulting in the creation of new state with full international persona
lity to represent them in their external relations as well as a certain degree o
f power over their domestic affairs and their inhabitants. Authority over intern
al affairs: divided between federal authorities and the member-states; Authority
over external affairs: handled solely by federal authorities.
B. DEPENDENT—although theoretically a state, does not have full freedom in the
C. NEUTRALIZED—whose independence and integrity are guaranteed by an
international treaty on the condition that such state obligates itself never to
take up arms against other state (except in self-defense), or to enter into an i
nternational obligation as would indirectly involved it in war. e.g. Switzerland
and Austria
Who has the power to recognize a State or Government? The Executive Head has
the power to recognize, as political act, a State or Government and the recognit
ion is permanent and cannot be withdrawn. Fundamental rights of States in Intern
ational Law: 1. Right to sovereignty and independence; 2. Right to property and
jurisdiction;
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direction of its external affairs, such as a protectorate (which is established
at the request of the weaker state for the protection by a strong power, e.g. Pa
nama, Andorra, Monaco) or a suzerainty (which is the result of a concession from
a state to a former colony that is allowed to be independent subject to the ret
ention by the former sovereign of certain powers over the external affairs of th
e latter, e.g. Bulgaria and Rumania, both suzerainties of Sultan of Turkey by vi
rtue of Treaty of Berlin of 1878)
¥say
3. Right to existence and self-preservation/self-defense—Sec. 4, Article II of P
hil.
Constitution & Article 51, UN Charter—recognize the inherent right to individual
or collective selfdefense if an armed attack occurs against such state;
4. Right to equality; and 5. Right to diplomatic intercourse.
DRAGO DOCTRINE—it prohibits intervention for the purpose of collecting contractu
al debts. It was formulated by Argentinian Foreign Minister Luis Drago as a reac
tion to what happened in Venezuela in 1902 where the ports of Venezuela were blo
ckaded by the combined naval fleets of Germany, Italy, and Great Britain (the su
per powers of the time) to compel the Venezuelan government to pay its contractu
al debts.
State Sovereignty—is the right to exercise in a definite portion of the globe th
e functions of a State to the exclusion of any other State.
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Fundamental Duties of States in International Law: 1. Non-intervention; 2. Obser
ve rights of other states; 3. Comply with treaty stipulations and other obligati
ons arising from membership in international organizations; 4. Maintain peace; a
nd 5. Respect the international laws. INTERVENTION It is the dictatorial interfe
rence by one State in the internal affairs of another State, or in dealings with
other States, usually backed up by force or threat of force. The kind of interf
erence must be dictatorial. A State may not interfere unless it has force. Inter
vention is not allowed in International Law. However, it must be distinguished f
rom mere intercession, such as the tender of advice or the filing of diplomatic
protest, which is not prohibited. Instances of Justified Intervention: 1. Interv
ention as an act of individual or collective self-defense; 2. Intervention by tr
eaty stipulation or by invitation; 3. Intervention by UN authorization; 4. Inter
vention on humanitarian grounds (which according to authorities in international
law, has now evolved into an international custom).
¥say
Sovereignty in relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclus
ion of any other State, the functions of a State. (Judge Huber, the Sole Arbitra
tor in the Island of Las Palmas Case) Widely accepted elements of Sovereign Equa
lity of States Principle 1. States are juridically equal; 2. Each State shall en
joy the rights inherent in full sovereignty; 3. Each State has the duty to respe
ct the personality of other States; 4. The territorial integrity and political i
ndependence of the State are inviolable; 5. Each State has the right freely to c
hoose and develop its political, social, economical and cultural systems; and 6.
Each State has the duty to comply fully and in good faith with its internationa
l obligations and to live in peace with other States. Recognition—The act by whi
ch the state acknowledges the existence of another state, a government or a bell
igerent community, and indicates its willingness to deal with the entity as such
under international law.
Theories on Recognition: 1. Constitutive (Minority View)—recognition is the act
which constitutes the entity to an international person. Recognition is compulso
ry and legal; it may be compelled once the elements of a state are established.
2. Declarative (Majority View)—recognition merely affirms an existing fact, like
the possession by the State of the essential elements. It is discretionary and
political. Basic Rules on Recognition: It is a political act and mainly a matter
of policy on the part of each State; it is discretionary on the part of the rec
ognizing authority; and it is exercised by the political (executive) department
of the state. Thus, the legality and wisdom of recognition is not subject to jud
icial review. Tobar or Wilson Doctrine—(must show stable government and people s
upport)—the doctrine precludes recognition of government established by revoluti
onary means until the constitutional reorganization by the free election of repr
esentatives.
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¥say
Estrada Doctrine—it provides that if a state will deal with representatives of t
he government in actual control of another country for the protection of its cit
izens in the territory of the later state, this does not necessarily mean recogn
ition of the said government. Stimson Doctrine—no recognition of a government es
tablished through external aggression. Kinds of Recognition: 1. De Facto—(of fac
t) extended by the recognizing state which believes that some of the requirement
s for recognition are absent. The recognition is generally provisional and limit
ed to certain juridical relations; it does not bring about full diplomatic inter
course and does not give title to assets of the state held/situated abroad. 2. D
e Jure—(of Law) extended to a government fulfilling the requirements for recogni
tion. When there is no specific indication, recognition is generally de jure. Th
e recognition is relatively permanent; bring about full diplomatic intercourse a
nd observance of diplomatic immunities; and confers title to assets abroad. Effe
cts of Recognition: 1. Diplomatic relations; 2. Right to sue in the courts of re
cognizing state; In the case of Banco Nacional de Cuba vs. Sabattino, 376 US 398
, unfriendly relations or the lack of reciprocity was held immaterial. 3. Immuni
ty from jurisdiction; 4. Entitlement to property within the recognizing state; a
nd 5. Retroactive validation of the acts of the recognized sate/government. Cond
itions for recognition of a belligerent state: 1. Organized civil government hav
ing control and supervision over the armed struggle 2. Serious and widespread st
ruggle 3. Occupation of a substantial portion of the national territory 4. Willi
ngness on the part of the rebels to observe rules/customs of war Absence of any
of the above conditions, there is no belligerency but only state of insurgency,
which is rarely recognized, because this will be intervention in the domestic a
ffairs of another state.
335
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¥say
Jurisdiction of States—it is the power, authority, sovereignty or legal control
exercised by a state over land, persons, property, transactions, and events in i
ts territory. 1. As a concept—it is the capacity to: a. Legislate or to prescrib
e laws/rules b. Enforce laws/rules 2. As power—it is exercised over: a. Persons
b. Property c. Events Jurisdiction over Territory i. Title to Territory Island o
f Palmas Case (Netherlands vs. USA, 2 RIAA 829) test of title in international l
aw is “continuous and peaceful display of territorial sovereignty”; forms of acq
uisition of title are: a. Occupation coupled with effectiveness b. Conquest c. C
ession; and d. Accretion Title is not sufficient without the first element of
display of State functions ii. Airspace (flight space) Paris Convention, October
13, 1919—State with exclusive sovereignty Convention on International Civil Avi
ations—prohibits entry of state aircraft without authorization by special agreem
ent
336
Page 3367/12/2008
¥say
Effects of Recognition of Belligerency: 1. Responsibility for acts of rebels res
ulting in injury to nationals of the recognizing state shall be shifted to the r
ebel government; 2. The legitimate government recognizing the rebels shall obser
ve the laws of war in conducting hostilities otherwise any party that will viola
te the laws of war shall be considered as war criminals; 3. Third states recogni
zing the belligerency shall maintain neutrality; and 4. Recognition is only prov
isional (for the duration of the armed struggle) and only for the purpose of hos
tilities.
Tokyo Convention of 1963—for extradition purposes, a crime, may be considered as
having been committed in the “State of registry of the Aircraft”; but jurisdict
ion by another Contracting State may be had if the offense: a. b. c. d. e. Has a
n effect on its territory; Has been committed by or against its national or a pe
rmanent resident therein; Is against its national security; Relates to a breach
of its national rules on flight; Is the subject of an exercise of jurisdiction n
ecessary to ensure the observance of an obligation of such state under a multila
teral agreement
iii. Internal and Territorial Waters Fisheries case—Straight Baseline allowed an
d delimitation of territorial waters Corfu Channel Case—innocent passage in inte
rnational straits allowed
Jurisdiction over Adjacent Maritime Seas i. Continental shelf North Sea Continen
tal shelf Cases—what confers title ipso jure to continental shelf is the fact th
at the submarine areas concerned may be deemed to be actually part of the territ
ory of the coastal state in the sense that, although covered with water, they ar
e a prolongation or continuation of that territory. ii. Exclusive Economic Zone
Fisheries Jurisdiction case—exclusive rights over fishery zone must take into ac
count interests of other States
(See discussion under UNCLOS below)
Jurisdiction over Persons and Economic Activity Theories: 1. Nationality—civil l
aw follows national wherever he/she may be; 2. Passive Personality—punish aliens
abroad who injures one’s citizen; 3. Security Principle—punish aliens for acts
against State’s security, independence and territorial integrity; 4. Universalit
y—e.g. piracy, crimes against humanity, etc. 5. Objective Territoriality—element
s of crime occurred in 2 states
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Outer space, including the moon and other celestial bodies, shall be free for ex
ploration and use by all states without discrimination of any kind, on the basis
of equality and in accordance with international law. Spatial test—96 up to 110
kms. Modes of Acquiring Territory—
(See page 7 of this review notes)
Modes of Losing Territory 1. Dereliction 2. Cession 3. Erosion, or other natural
causes 4. prescription NATIONALITY AND STATELESSNESS Multiple Nationality—It is
the possession by an individual of more than one nationality. It is acquired as
a result of the concurrent application to him of the conflicting municipal laws
or two or more states claiming him as their national. Generally, a state has no
jurisdiction over its nationals residing abroad except in nationality law theor
y, i.e., Article 15 of the Civil Code; Article 2 of the Revised Penal Code; taxa
tion of citizens abroad.
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¥say
Areas not subject to the Jurisdiction of Individual States 1. High Seas 2. Deep
Seabed 3. Outer Space—the region beyond the earth’s atmosphere Province of all m
ankind—not subject to national appropriation; no nuclear weapons in orbit; astro
nauts are “envoys of mankind” and State shall obliged to render assistance to th
em in emergency landing; there is international responsibility for national acti
vities in outer space; absolute liability for damage caused by space objects.
Doctrine of Indelible Allegiance—an individual may be compelled to retain his or
iginal nationality notwithstanding that he has already renounced it under the la
ws of another state whose nationality he has acquired. Doctrine of Effective Nat
ionality—a person having more than one nationality shall be treated as if he had
only one—either the nationality of the country in which he is habitually and pr
incipally resident or the nationality of the country with which in the circumsta
nces he appears to be in fact most closely connected. (Frivaldo vs. COMELEC, Jun
e 23, 1989) Statelessness—condition or status of an individual who is born witho
ut any nationality or who loses his nationality without retaining or acquiring a
nother. A stateless person is entitled to, among others, the right to religion a
nd religious instruction, access to courts, elementary education, public relief
and assistance, rationing of products in short supply and treatment of no less f
avorable than that accorded aliens in general. He is to be treated more or less
like the subjects of a foreign state. Any wrong suffered by a stateless person t
hrough the act or omission of a state would be damnum absque injuria for in theo
ry, no state has been offended and no international delict committed. Doctrine o
f State Responsibility to Aliens—State has the primary obligation to afford prot
ection to aliens. A state is responsible for injury inflicted upon an alien if c
aused by an act or omission imputable to the state, in violation of internationa
l standard of justice. Indirect State Responsibility—where the offense is commit
ted by inferior government officials or by private individuals, the state will b
e held liable only if, by reason of its indifference in preventing or punishing
it, it can be considered to have connived in effecting its commission. Internati
onal Standard of Justice—(Elements of due process under ordinary norms of offici
al conduct) To constitute an international delinquency, the treatment of an alie
n should amount to an outrage, bad faith, willful neglect of duty, and insuffici
ency of governmental action that every reasonable and impartial man would readil
y recognize its insufficiency.
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¥say
The Philippines is not liable for death or injury to alien hostages of the abu s
ayyaf, unless it is shown to have participated directly or was remiss or neglige
nt in taking measures to prevent injury, investigating the case, punishing the g
uilty, or to enable the victim or his heirs to pursue civil remedies. In case of
injuries inflicted upon foreigner in the course of quelling a rebellion, state
responsibility will attach only if rebellion succeeds and the rebels will take c
ontrol of the state, but not when the legitimate government remains in power as
the act of quelling a rebellion is a valid exercise of defense. State liability
will attach only if it fails to observe the minimum international standard for t
he protection of aliens. Calvo doctrine—provision frequently inserted in contrac
ts where nationals of another state renounce any claim upon his national state f
or protection. Such waiver can only be made, legally, by alien’s state. Right of
the State to admit and expel aliens No state is under obligation to admit ali
ens State imposes conditions on the admission of aliens State can expel alie
ns from its territory—deportation/reconduction Alien must accept the instituti
ons of the State as he finds them Aliens may be deprived of certain rights L
ocal law may grant aliens certain rights, privileges based on— a. Reciprocity b.
Most-favored-nation treatment c. National treatment Privileges conferred may
be revoked Deportation—expulsion of an alien considered undesirable by local sta
te, usually but not necessarily, to his own state. Reconduction—forcible conveyi
ng of aliens back to their home state without any formalities
ASYLUM in International Law The right of asylum is the competence of every State
inferred from its territorial supremacy to allow a prosecuted alien to enter an
d to remain on its territory, under its protection, and thereby to grant asylum
to him.
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The right of asylum is not a right possessed by an alien to demand that a State
protect him and grant him asylum. At present, it is just a privilege granted by
a State to allow an alien escaping from the persecution of his country for polit
ical reasons. Diplomatic asylum—refuge in diplomatic premises Political asylum—r
efuge in another state for political offenses, danger to life or no assurance of
due process Who is a Refugee? A refugee is a person who is outside the country
of his nationality, or if he has no nationality, the country of his former habit
ual residence, because he has or had wellfounded fear of persecution by reason o
f his race, religion, nationality or political opinion and is unable or, because
of such fear, is unwilling to avail himself of the protection of the government
of the country of his nationality, or, if he has no nationality, to return to t
he country of his former habitual residence. To be considered a refugee, the per
son: 1. Is outside the country of his nationality, or, in the case of stateless
persons, outside the country of habitual residence; 2. Lacks national protection
; and 3. Fears persecution by reason of his race, religion, nationality or polit
ical opinion. Because of the 2nd element, a refugee is considered a stateless pe
rson. Only a person who is granted asylum by another State can apply for refugee
status; thus, the refugee treaties imply the principle of asylum. Non-Refouleme
nt Principle—Article 33 of The Convention Relating to the Status of Refugees pro
vides that no contracting State shall expel or return (refouler) a refugee, in a
ny manner whatsoever, to the frontiers of territories where his life or freedom
would be threatened. This principle was declared to be “a generally accepted pri
nciple” by The Convention Relating to the Status of Stateless Persons. Most-Favo
red-Nation Clause—a pledge by a contracting party to a treaty to grant to the ot
her party treatment not less favorable than that which has been or may be grante
d
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¥say
to the “most favored” among other countries. The clause has been commonly includ
ed in treaties of commercial nature. Purpose: To grant to the contracting party
treatment not less favorable than that which has been or may be granted to the “
most favored” among other countries. The most favored nation clause is intended
to establish the principle of equality of international treatment by providing t
hat the citizens or subjects of the contracting nations may enjoy the privileges
accorded by either party to those of the most favored nation. (CIR vs. S. C. Jo
hnson & Sons, Inc., 309 SCRA 87, June 25, 1999) 2 Types of Most-Favored-Nation C
lause: 1. Conditional 2. Unconditional According to the clause in its unconditio
nal form, any advantage of whatever kind which has been or may in future be gran
ted by either of the contracting parties to a third State shall simultaneously a
nd unconditionally be extended to the other under the same or equivalent conditi
ons as those under which it has been granted to the third State.
UNITED NATIONS
The international organization which succeeded the League of Nations Organs of U
N 1. General assembly—“Assembly” 2. Security Council 3. Economic & Social Counci
l (ECOSOC) “Council” 4. Trusteeship Council 5. Secretariat 6. ICJ “organs” 2 Fun
ctions of International Court of Justice 1. To resolve contentious cases; 2. To
render advisory opinions to the General Assembly, the Security Council, and othe
r organs of the United Nations.
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International Criminal Court (ICC) it is a criminal tribunal
International Court of Justice (ICJ) it is a civil tribunal
has criminal jurisdiction to prosecute does not have criminal jurisdiction o
ver individuals individuals it prosecutes individuals for genocide, it is a
civil tribunal that deals primarily crimes against humanity, war crimes and with
disputes between States the crimes of aggression it is independent of the Uni
ted nations it is a principal organ of the United Nations
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT The Rome Statute established th
e ICC which “shall have the power to exercise its jurisdiction over persons for
the most serious crimes of international concern x x x and shall be complementar
y to the national criminal jurisdictions.” (Article I, Rome Statute) Its jurisdi
ction covers the following crimes: 1. 2. 3. 4. Genocide; Crimes against humanity
; War crimes; and Crime of aggression. (Article 5, Rome Statute)
General Principles: 1. Nullum crimen sine lege (Ex post Facto law) 2. Nullum poe
na sine lege (void for vagueness) 3. Double Jeopardy 4. Non-retroactivity
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¥say
Legal disputes which the ICJ may resolve under the “optional clause” of its Stat
ute: 1. The Interpretation of a treaty; 2. Any question of international law; 3.
The existence of any fact which, if established, would constitute a breach of a
n international obligation; 4. The nature and extent of the reparations to be ma
de in case of breach of an international obligation.
5. Principle of Superior Responsibility—a superior is held liable for failure to
prevent subordinates from committing unlawful acts, in view of his command and
control over them and liable as well for their crimes 6. Mens rea—material eleme
nts of a crime must be committed with intent and knowledge No trial in absenti
a No reservations Penalties: Imprisonment—max of 30 years; no death penalty
Principle of Complementarity—the ICC shall be complementary to national crimin
al jurisdictions of states. It gives primacy over the duty of every State to exe
rcise its criminal jurisdiction over those responsible for international crimes.
The Statute was opened for signature by all States in Rome on July 17, 1988 and
had remained open for signature until December 31, 2000 at the UN Headquarters
in New York. The Philippines signed the Statute on December 28, 2000 through Cha
rge d’ Affairs Enrique A. Manalo of the Philippine Mission to the UN. Its provis
ions, however, require that it be subject to ratification, acceptance or approva
l of the signatory states. (Article 25, Rome Statute) Pimentel, Jr. vs. Office o
f the Executive Secretary, 462 SCRA 622, July 6, 2005— Ratification of the Rome
Statute of the International Criminal Court—the SC held that the power to ratify
does not belong to the Senate. In the book of Justice Isagani Cruz, the usual s
teps in the treaty-making process are: 1. Negotiation—may be undertaken directly
by the head of state but usually assigns this task to his authorized representa
tives. The negotiations may be brief or protracted, depending on the issues invo
lved, and may even collapse in case the parties are unable to come to an agreeme
nt on the points under consideration.
2. Signature—if and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is primarily intended as a m
eans of authenticating the instrument and for the purpose of symbolizing the goo
d faith of the parties; but significantly, it does not indicate the final consen
t of the state in cases where ratification of the treaty is required. The docume
nt is signed usually in accordance with the alternat, i.e., each of the several
negotiators is allowed to sign first on the copy which he will bring home to his
home state.
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3. Ratification—is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratifica
tion is to enable the contracting states to examine the treaty more closely and
to give them an opportunity to refuse to be bound by it should they find it inim
ical to their interests. It is for this reason that most treaties are made subje
ct to the scrutiny and consent of a department of the government other than what
which negotiated them.
4. Exchange of the instruments of ratification—this is the last step which
usually signifies the effectivity of the treaty unless a different date has been
agreed upon by the parties. When ratification is dispensed with and no effectiv
ity clause is embodied in the treaty, the instrument is deemed effective upon it
s signature. It should be emphasized that under our Constitution, the power to r
atify is vested in the President, subject to the concurrence of the Senate. The
role of the Senate, however, is limited only to giving or withholding its consen
t, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its con
sent for ratification, refuse to ratify it. Although the refusal of a state to r
atify a treaty which has been signed in its behalf is a serious step that should
not be taken lightly, such decision is within the competence of the President a
lone, which cannot be encroached by this Court via a writ of mandamus. This Cour
t has no jurisdiction over actions seeking to enjoin the President in the perfor
mance of his official duties. The Court, therefore, cannot issue the writ of man
damus prayed for by the petitioners as it is beyond its jurisdiction to compel t
he executive branch of the government to transmit the signed text of the Rome St
atute to the Senate. GENOCIDE It is the deliberate destruction and annihilation
of a racial, ethnic or religious group.
(See Atty. Sandoval’s 2008 handouts in International Law, page 1-2)
INTERNATIONAL HUMAN RIGHTS LAW
INTERNATIONAL HUMANITARIAN LAW
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Martens Clause—provides that “in cases not covered by this protocol or by any ot
her international agreements, civilians and combatants remain under the protecti
on and authority of the principles of international law derived from established
customs, from the principles of humanity and from the dictates of public consci
ence” (Article I, paragraph 2, Protocol additional to the Geneva Conventions of
August 12, 1949). Hors de combat— 1. The person is in the power of an adverse pa
rty to the conflict 2. He clearly expresses his intention to surrender 3. He is
incapable of defending himself provided he abstains from any hostile act and doe
s not attempt to escape
It is the competence of a state under international law to prescribe and enforce
norms of law, as well as adjudicate over persons, property, events and relation
s within its territory. Components of Territory: 1. Terrestrial domain (Land) 2.
Fluvial and Maritime domain 3. Aerial domain LAND TERRITORY (Terrestrial Domain
)— Modes of acquisition: (See page 7 of this notes) MARITIME TERRITORY (Fluvial
and Maritime Domain)—
(See Discussion under the National Territory and UNCLOS on pages 9 and 370, resp
ectively)
AIR TERRITORY (Aerial Domain)—this refer to the airspace above the land and wate
rs of the State. Five (5) Freedoms for Scheduled International Services: 2. Free
dom to fly across foreign territory without landing; 3. Freedom to land for non-
traffic purposes; 4. Freedom to put down traffic originating in state of aircraf
t;
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JURISDICTION
¥say
5. Freedom to embark traffic destined for state of craft; and 6. Freedom to emba
rk traffic destined for, or to put down traffic coming from, third state. Three
(3) International Theories on Aerial Jurisdiction: 1. Free zone theory—The atmos
phere over the country is free and not subject to the jurisdiction of the subjac
ent state, except for the protection of its national security and public order.
If a crime is committed on board a foreign aircraft at the atmosphere of a coun
try, the law of that country does not govern unless the crime affects the nation
al security.
2. Relative theory—the subjacent state exercises jurisdiction over the atmospher
e
3. Absolute theory—adopted by the Philippines
The subjacent state has complete jurisdiction over the atmosphere above it subje
ct only to the innocent passage by aircraft of a foreign country. If the crime
is committed in an aircraft, no matter how high, as long as it can be establishe
d that it is within the Philippine atmosphere, our law will govern. Outer Space—
is the region beyond the earth’s atmosphere. Outer Space Treaty—provides for the
exploration and use of outer space as the “province of mankind” and provides ac
cordingly that the “exploration and use of outer space, including the moon and o
ther celestial bodies, shall be carried out for the benefit and in the interest
of all countries, irrespective of their degree of economic or scientific develop
ment.” Outer space is not subject to national appropriation by claim of sovereig
nty, by means of use or occupation, or by any other means, and thus, it is provi
des that it shall be “free for exploration and use by all states without discrim
ination of any kind.” The States parties to the Treaty are to consider astronaut
s or cosmonauts as “envoys of mankind.”
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only to the extent that it can effectively exercise control thereof. If a crime
was committed on an aircraft that is already beyond the control of the subjacen
t state, the law of the state will not govern anymore. But if the crime is commi
tted in an aircraft within the atmosphere over a subjacent state that exercises
control, then its law will govern.
¥say
2. NATIONALITY PRINCIPLE—the Philippines exercises jurisdiction over persons by
reason of their connection to the Philippine state as its citizens. (Article 15
of the Civil Code—Laws relating to family rights and duties, or to status, condi
tion and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.) Vest jurisdiction in State of offender 3. PROTECTI
VE PRINCIPLE—the Philippines takes jurisdiction over persons who committed acts
outside its territorial jurisdiction but with consequences prejudicial to its in
terests or inimical to its national security. (Read Article 2 of the Revised Pen
al Code) 4. UNIVERSALITY PRINCIPLE—vest jurisdiction in state which has custody
of offender of universal crimes (piracy, genocide) A state has jurisdiction ove
r offenses considered as universal crimes regardless of where committed and who
committed them.
5. PASSIVE PERSONALITY PRINCIPLE—vest jurisdiction in state of offended
party;
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Exceptions: a. Continuing offenses; b. acts prejudicial to the national security
or vital interest of the State; c. Universal crimes d. Offenses covered by spec
ial agreement
¥say
Leading principles: 1. TERRITORIALITY—the Philippines possesses absolute (but ma
y not be exclusive) jurisdiction over persons, property, relations, and events b
y reason of the fact that they are within or they take place in its territory, w
ithout regard to the nationality of the person responsible. (Article 14 of the C
ivil Code—Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in Philippine territory, subject to the principles
of public international law and to treaty stipulations.) A State may exercise
jurisdiction only within its territory. General rule: A state has criminal juri
sdiction only over offenses committed within its territory.
A State has jurisdiction over crimes against its own nationals even if committe
d outside the territory. Exemption from Jurisdiction: 1. Doctrine of State Immun
ity 2. Act of State Doctrine 3. Diplomatic Immunity 4. Immunity of the UN, its O
rgans, Specialized Agencies, Other International Organizations, and its Officers
5. Foreign merchant vessels exercising the right of innocent passage or arrival
under stress 6. Foreign armies passing through or stationed in the territory wi
th the permission of the State 7. Warships and other public vessels of another S
tate operated for non-commercial purposes
SOVEREIGN IMMUNITY
1. Heads of States and the state itself
Basis: equality and independence of states Act of State Doctrine— a. Broad sense
—it is an exercise of sovereign power, which cannot be challenged, controlled or
interfered with by the court of law. It refers to the political acts of a State
which are exercised as exclusive prerogatives by the political departments of t
he government and not subject to judicial review and for the consequences of whi
ch, even when affecting private interests, they will not hold legally responsibl
e those who command or performed them. b. Limited sense—it refers to the acts ta
ken by the State concerning as affecting aliens, like the inherent right of ever
y sovereign state to exclude resident aliens from the territory when their conti
nued presence is no longer desirable from the standpoint of its domestic interes
t and tranquility. Doctrine of State Immunity—as a consequence independence, ter
ritorial supremacy and equality, a state enjoys immunity from the exercise of ju
risdiction
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¥say
(legislative, executive or judicial) by another state, unless it has given its c
onsent, waived its immunity, or voluntarily submitted to the jurisdiction of the
court concerned.
(Read Also Discussions under State Immunity from Suit)
2. Diplomatic and Consular Immunity Remedy of Individual: a. Sue in home state o
f diplomat b. Waiver by state of nationality of diplomat c. Declare diplomat per
sona non grata Diplomatic immunity ceases to be enjoyed at the moment the diplom
at leaves the country, or on expiry of a reasonable period in which to do so. (R
egina vs. Palacios 7 DLR 112) Exterritoriality—exception of persons and property
from local jurisdiction on basis of international customs Extraterritoriality—a
pplies only to persons and is based on treaty or convention; discredited because
of rise of nationalism and sovereign equality of States RIGHT OF LEGATION— A.
k.a. Right of Diplomatic Intercourse Right of the State to send and receive di
plomatic missions, which enables States to carry on friendly intercourse Not a
natural or inherent right, but exists only by common consent No legal liabili
ty incurred by the State for refusing to send or receive diplomatic representati
ves Agents of Diplomatic Intercourse: 1. Head of State—enjoys the right to speci
al protection for his physical safety and the preservation of his honor and repu
tation
Principle of Exterritoriality—his quarters, archives, property and means of tran
sportation are inviolate. He is immune from criminal and civil jurisdiction, exc
ept when he himself is the plaintiff, and is not subject to tax or exchange of c
urrency restrictions.
2. Foreign Office—headed by a Secretary or Minister. The latter has the power to
make binding declarations on behalf of his government. 3. Members of diplomatic
service
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4. Special diplomatic agents appointed by the head of the State 5. Envoys ceremo
nial
DIPLOMATIC CORPS A body consisting of all diplomatic envoys accredited to the sa
me local or receiving state. The doyen or the head of this body is the papal nun
cio, if there is one, or the oldest ambassador, or in the absence, the oldest mi
nister plenipotentiary. Agreation—the process in appointment of diplomatic envoy
where states resort to an informal inquiry as to the acceptability of a particu
lar envoy, to which the receiving state responds with an informal conformity Let
re de Creance (Letter of Credence)—states the name, rank and general character o
f the mission, and a request for favorable reception and full credence DIPLOMATI
C IMMUNITIES AND PRIVILEGES— 1. Personal inviolability—he shall not be liable to
any form of arrest or detention. 2. Inviolability of premises and archives 3. R
ight of official communication 4. Immunity from local jurisdiction 5. Exemption
from taxes and custom duties
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Establishment of Resident Missions— States carry on diplomatic intercourse throu
gh permanent missions established in the capitals of other States. Composition o
f Mission: 1. Head of Mission— a. Ambassador or Nuncios—accredited to Heads of s
tate, and other heads of mission of equivalent rank; b. Envoys, ministers and in
ternuncios—accredited Heads of States; c. Charges d’ Affaires—accredited to Mini
sters of Foreign Affairs 2. Diplomatic Staff—those engaged in diplomatic activit
ies and are accorded diplomatic rank 3. Administrative and Technical Staff—those
employed in the administrative and technical service of the mission 4. Service
Staff—those engaged in the domestic service of the mission
¥say
Termination of diplomatic mission: 1. Death 2. Resignation 3. Removal 4. Aboliti
on of office 5. Recall of the sending State 6. Dismissal by the receiving state
7. War 8. Extinction of the State CONSULAR RELATIONS— Consul— A state agent resi
ding abroad for various purposes but mainly in the interest of commerce and navi
gation. Kinds: 1. Consules missi—professional and career consuls, nationals of t
he appointing state 2. Consul electi—selected by the appointing state either fro
m its own citizens or from among nationals abroad
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Waiver of Immunities1. Diplomatic immunities can be waived, but the waiver canno
t be made by the individual concerned since such immunities are not personal to
him. 2. Waiver may be made only by the government of the sending state if it con
cerns the immunities of the head of mission. 3. In other cases, the waiver may b
e made either by the government or by the chief of mission. 4. Waiver of this pr
ivilege, however, does not include waiver of the immunity in respect of the exec
ution of judgment; a separate waiver of the latter is necessary.
¥say
6. Other privileges—includes freedom of movement and travel in the territory of
receiving state; exemption from all personal services and military obligations;
the use of the flag and emblem of the sending state on the diplomatic premises a
nd the residence and means of transport of the head of mission. Duration: The pr
ivileges are enjoyed by the envoy from the moment he enters the territory of the
receiving state, and shall cease the moment he leaves the country, or on expiry
; with respect to official acts—immunity shall continue indefinitely. These priv
ileges are available even in transit, when travelling through a 3rd State on the
way to or from the receiving state.
Rank: 1. Consul-general—heads several consular districts, or one exceptionally l
arge consular district 2. Consul—takes charge of small district, town or port 3.
Vice-consul—assist the consul 4. Consular agent—usually entrusted with the perf
ormance of certain functions by the consul. Two (2) Documents Necessary for the
Assumption of Consular Functions 1. Letters Patent (letter de provision)—letter
of appointment or commission which is transmitted by the sending state to the Se
cretary of Foreign Affairs of the country where the consul is to serve 2. Exequa
tur—authorization given to the consul by the sovereign of the receiving state, a
llowing him to exercise his function within the territory Immunities and Privile
ges: 1. Inviolability of their correspondence, archives and other documents 2. F
reedom of movement and travel 3. Immunity from jurisdiction for acts performed i
n official capacity except infractions 4. Exemption from certain taxes and custo
ms duties, military or jury service 5. Right to display national flag and emblem
in the consulate Immunities and privileges are also available to the members
of the consular post, their families and their private staff. Waiver of immuni
ties—may be made by the appointing state Crimes against diplomatic agents are
International, not political, in nature Termination of consular mission: 1. Usua
l mode of terminating official relationship 2. Withdrawal of the exequatur 3. Ex
tinction of the State 4. War Severance of consular relations does not necessar
ily terminate diplomatic relations.
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EXTRADITION
Sec. 2(a), PD 1069—extradition is the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government. Without a
treaty, extradition is left to diplomatic negotiation between the states involv
ed. In such case, extradition relies on the consent of the requested state that
may be given out of comity and good relations. In international law, extradition
is a form of jurisdictional assistance. Secretary of Justice vs. Lantion, G.R.
No. 139465, October 17, 2000, Mark Jimenez is without any right to notice and he
aring during the evaluation stage of an extradition process by the DFA under RP-
US Extradition Treaty. Extradition court may adjudge a person as extraditable
but the President has the final say. Extradition is not criminal in nature—it is
sui generis; thus, Bill of Rights provisions on aspects of due process in crimi
nal proceedings are not applicable) Secretary of Justice vs. Muñoz, G.R. No. 140
520, December 18, 2000, provisional arrest of respondent was valid noting that t
he requirements of the Agreement on documentation and the finding of probable ca
use have been complied with.
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It is the surrender of an individual accused or convicted of a crime by a State
within whose territory he is found and his delivery to the State where he allege
dly committed crime or was convicted of a crime.
Right to Bail In Extradition Case Government of USA vs. Purganan, G.R. 148571, S
eptember 24, 2002, right to bail in extradition is not available; ultimate purpo
se of extradition proceedings in court is to determine whether the extradition r
equest complies with the extradition treaty. But in exceptional cases, bail may
issue provided: a. Accused is not a flight risk; and b. Compelling circumstances
warrant. The right of prospective extraditee to apply for bail in this jurisdic
tion must be viewed in light of the various treaty obligations of the Philippine
s concerning respect for the promotion and protection of human rights. (Governme
nt of HK Special Administrative Region vs. Hon. Olalia, Jr., G.R. No. 153675, Ap
ril 19, 2007)
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United Nations Convention on the Law of the Sea (UNCLOS)
The Philippines is an archipelagic State under the UNCLOS. It is made up wholly
of one or more archipelagos. Archipelago—under the UNCLOS, it is a group of isla
nds, interconnecting waters and other natural features which are so closely inte
r-related that such islands, waters and natural features form an intrinsic geogr
aphical, economic and political entity, or which historically have been regarded
as such.
Internal or national waters-- bodies of water within the land mass, among them a
re rivers, bays and gulfs, straits, and canals.
Jurisdiction: The State exercises jurisdiction over everything found within its
internal or national waters. In the case of foreign merchant vessels docked in a
local port or bay, the coastal state exercises jurisdiction in civil matters, b
ut criminal jurisdiction is determined according to the:
a. English rule—the coastal State shall have jurisdiction over all offenses
committed on board the vessel except those which do not compromise the peace of
the port (the Philippines adheres to this rule);
b. French rule—flag state shall have jurisdiction over all offenses committed
on board a vessel except those which compromise the peace of the port.
Archipelagic waters—are the waters enclosed by the archipelagic baselines, regar
dless of their depth or distance from the coast. Jurisdiction: same rule as in i
nternal waters, save for innocent passage of merchant vessels through archipelag
ic sea lanes
356
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The internal waters of the Philippines are now subject to right of innocent pass
age as well as to sea lanes for all foreign ships under the right of archipelagi
c sea lanes passage. The airspace above the internal waters within the archipela
gic sea lanes passage is subject to the air routes for all foreign aircraft. But
Philippine sovereignty over the archipelagic waters of the Philippines is restr
icted under UNCLOS. Ships of all states enjoy the right of innocent passage thro
ugh archipelagic waters. Philippine archipelagic waters may also be subject to t
he continuous and expeditious passage of foreign ships and aircraft—known as the
right of archipelagic sea lane passage. All ships and aircraft enjoy this right
through designated sea lanes and air routes. What is the legal status of the w
aters enclosed by the archipelagic baselines of the Philippines? Philippine so
vereignty extends to these waters which are called archipelagic waters under UNC
LOS. It also extends to the airspace over archipelagic waters as well as their b
ed and subsoil, including the resources therein. Two (2) Kinds of Archipelago:
1. Coastal Archipelago—situated close to a mainland and may be considered a
part thereof. 2. Mid-Ocean Archipelago—situated in the ocean at such distance fr
om the coasts of firm land. The Philippines is classified as mid-ocean archipela
go just like Indonesia. The Philippines is not in any way connected physically w
ith the Asia mainland. Maritime zones of the Philippines: (See also discussion u
nder National Territory) 1. Territorial Sea—the belt of the sea located between
the coast and the internal waters of the coastal state on the other hand, and th
e high seas on the other, extending up to 12 nautical miles from the low-water m
ark, or in the case of archipelagic states, from the baselines. Jurisdiction: cr
iminal jurisdiction over foreign merchant vessels shall be determined by the app
lication of either the English rule or French rule. Innocent passage and involun
tary entrance are recognized exceptions, provided that in case of involuntary en
trance, the distress on the vessel must be real.
357
Page 3577/12/2008
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Baseline—is a line from which the breadth of the territorial sea, the contiguous
zone and the exclusive economic zone is measured in order to determine the mari
time boundary of the coastal state. Types of baseline: ii. Normal Baseline Metho
d iii. Straight Baseline method The territorial sea is a zone of Philippine sove
reignty. However, it is subject to the right of innocent passage by ships of all
states. It is restricted by the right of archipelagic sea lane passage but only
such portions of the territorial sea adjacent to the Philippine archipelagic wa
ters traversed by the archipelagic sea lanes. Innocent passage—means navigation
through the territorial sea of a state for the purpose of traversing that sea wi
thout entering internal waters, or of proceeding to or from internal waters. Pas
sage is innocent if it is not prejudicial to the peace, good order or security o
f the coastal state. It is required that passage be continuous and expeditious,
although a ship is allowed to stop and anchor if this is incidental on account o
f force majeure or is required in order to assist persons, ships or aircraft in
danger or distress. Innocent passage Transit passage Pertains only to navigati
on of ships Includes rights of overflight Requires submarine and other No
requirement specially applicable to underwater vehicles to navigate on the subma
rines surface and to show their flag Can be suspended Cannot be suspended
In designation of sea lanes and traffic Designation of sea lanes and traffic
separation schemes, the coastal state separation schemes is subject to adoption
shall only take account of the by competent international organization recommen
dations of the competent upon proposal and agreement of states bordering the str
aits international organization As a rule, ships (not aircraft) of all states en
joy the right of innocent passage through the territorial sea (not through inter
nal waters). It is understood, however, that the passage must be continuous and
expeditious, except in cases of force majeure.
358
Page 3587/12/2008
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Submarines and other underwater craft are required to navigate on the surface an
d to show their flag.
2. Contiguous Zone—extends up to 12 nautical miles from the territorial sea; thi
s
shall not exceed 24 nautical miles from the archipelagic baselines. Jurisdiction
: Adjacent to the territorial sea, it is a zone where Philippines may exercise c
ertain protective jurisdiction. The coastal state may exercise limited jurisdict
ion over the contiguous zone: a. To prevent infringement of customs, fiscal immi
gration or sanitary laws and regulations within its territory or territorial sea
; and b. To punish violation of the above laws and regulations committed within
its territory or in territorial sea. The Philippines does not have sovereignty o
ver the contiguous zone. It is a zone of jurisdiction, not of sovereignty. This
contiguous zone is not appurtenant to Philippine territory. For a coastal state
to assume pertinent rights, it must make a specific claim to its contiguous zone
. If no contiguous zone is claimed or declared, the rights that may otherwise pe
rtain to the contiguous are deemed to be subsumed in those pertaining to the ter
ritorial sea.
3. Exclusive Economic Zone (EEZ)—shall not extend beyond 200 nautical miles
from the archipelagic baselines. The Philippines has sovereign rights over EEZ f
or the purpose of exploring, exploiting, conserving and managing the natural res
ources in this zone. In addition, it has jurisdictional rights with regard to ar
tificial islands, environmental protection, and marine scientific research. The
resources covered by the sovereign rights of the Philippines over its EEZ are th
e living and non-living resources in the superjacent waters of the sea-bed, as w
ell as the resources of the sea-bed and its subsoil. The Philippines is required
to grant other states access to living resources in its EEZ. It must determine
its capacity to harvest the living resources. If it does not have the capacity t
o harvest the entire allowable catch, it shall give other states access to the s
urplus of the allowable catch by means of agreements consistent with the UNCLOS.
359
Page 3597/12/2008
¥say
Philippine territory is not enlarged by reason of EEZ. The legal regime of the E
EZ limits Philippine rights to specified sovereign rights and to particular juri
sdictional rights. No territorial acquisition is involved. In the EEZ, all state
s continue to enjoy the freedom of the high seas, subject to the rights of the P
hilippines as thus mentioned. Generally, the rules of international law pertaini
ng to the high seas apply to EEZ. Continental shelf—it is the seabed and subsoil
of the submarine areas extending beyond the Philippine territorial sea througho
ut the natural prolongation of the land territory. It extends up to: a. The oute
r edge of the continental margin; or b. A distance of 200 nautical miles from th
e archipelagic baselines, whichever is the farthest. Jurisdiction: the coastal s
tate enjoys the right of exploitation of oil deposits and other resources in the
continental shelf. In case of the continental shelf extends to the shores of an
other State, or is shared with another State, the boundary shall be determined i
n accordance with equitable principle. The continental shelf does not form part
of the Philippine territory. The Philippines has the sovereign rights over the c
ontinental shelf for the purpose of exploring it and exploiting its natural reso
urces. The natural resources covered by sovereign rights in the continental shel
f consist of (a) mineral and other non-living resources of the sea-bed and subso
il, (b) together with living organisms which are sedentary. The UNCLOS describes
these sovereign rights as exclusive in the sense that if the Philippines does n
ot explore the continental shelf or exploit its natural resources, no one may un
dertake these activities without its consent. Rights of the Philippines over the
continental shelf “do not depend on occupation, effective or notional, or on an
y express proclamation.” The Philippines has the exclusive right to construct, t
o authorize and regulate the construction, operation and use of artificial islan
ds and installations. Its jurisdiction over these is exclusive, in particular wi
th respect to customs, fiscal, health, safety and immigration regulations. It ha
s also exclusive right to authorize as well as to regulate drilling for all purp
oses.
360
Page 3607/12/2008
¥say
Deep Sea—(as part of the common heritage of mankind) resources of the deep seabe
d owned by all States. All rights to the resources of the area are vested in man
kind as a whole. The Enterprise (organ of the Deep Sea Bed Authority) shall expl
ore and exploit the area. Open for peaceful purposes and for exploitation for th
e benefit of mankind; right of a coastal state to prevent or mitigate any grave
and imminent danger to its coastline or environment; governed by the Internation
al Seabed Authority. High Seas—treated as res communes, thus, not territory of a
ny particular State. These are the waters which do not constitute the internal w
aters, archipelagic waters, territorial sea and exclusive economic zones of a st
ate. They are beyond the jurisdiction and sovereign rights of States. The tradit
ional view is freedom of the high seas, i.e., they are open and available, witho
ut restriction, to the use of all states for the purpose of navigation, overflig
ht, submarine cables/pipelines, construction of artificial islands or any instal
lations, fishing, mining, research, etc. however, this rule is subject to regula
tion arising from treaty stipulations. Jurisdiction: may be exercised by the Sta
te on the high seas over the following: a. Its vessels—the flag State has jurisd
iction over its public vessels wherever they are, and over its merchant vessels
on the high seas. However, UNCLOS considered the flag of convenience controversy
. b. Pirates—they are enemies of mankind; they may be captured on the open seas
by the vessels of any State, to whose territory they may be brought for trial an
d punishment. c. Drug trafficking and slave trade—all States shall cooperate in
the suppression of illicit traffic in narcotics and slave trade. d. Right to vis
it and search—use the law of neutrality—the vessels or aircraft of a belligerent
State may visit and search any neutral merchant vessel on the open seas and cap
ture it if found to be engaged in activities favorable to the other belligerent.
e. Hot pursuit— the State authorities can pursue an offender up to high seas un
til he enters the territorial sea of another State. 1. The pursuit must commence
from internal waters, territorial sea or contiguous zone, of pursuing State 2.
The pursuit must be uninterrupted 3. It must be conducted by warship, military a
ircraft, or government ships authorized for the purpose
361
Page 3617/12/2008
¥say
Freedom of navigation—refers to the right to sail ship on the high sea, subject
to international law and the laws of the flag of the state.
Philippine ship A ship may assume Philippine nationality if it flies Philippine
flag and thus become the flag state. A ship has the nationality of the state who
se flag it is entitled to fly. It is for the Philippines to decide the condition
s by which it will accord a ship the right to fly its flag. It is required that
there be “genuine link” between the Philippines and the ship. However, so far, n
o objective criteria have been established to determine the existence of a genui
ne link. If no genuine link is found to exist, no legal consequences have been d
efined. The result is that the genuine link requirement fails to command broad c
ompliance.
362
Page 3627/12/2008
¥say
The Philippines has exclusive jurisdiction over a Philippine ship on the high se
as. Duties of the Philippines as a flag state with respect to the ship: 1. To ma
intain a registry of ships authorized to fly its flag; 2. To take jurisdiction o
ver the internal affairs of the ship; 3. To ensure safety at sea of the ship wit
h respect to construction, equipment, and seaworthiness as well as in regard to
labor conditions, training of crew, maintenance of communication, and prevention
of collisions; 4. To ensure that the ship is surveyed by a qualified surveyor o
f ships and is equipped with navigation equipment, nautical publications, and ch
arts; 5. To ensure that the ship is manned by qualified master, officers and cre
w; and 6. To ensure that the officers and crew are conversant with and are requi
red to observe international regulations concerning safety at sea, prevention of
collisions, prevention, reduction and control of pollution, and maintenance of
radio regulations. General theory of criminal jurisdiction: General rule: Vessel
s on high seas are subject to authority of flag-state Exceptions: piracy, slave
trade, hot pursuit, right of approach Article 97, UNCLOS—the rule today is that
no penal or administrative proceedings may be instituted against the master of t
he ship except before the judicial or administrative authorities either of the:
a. Flag-State; or b. State of which such person is a national. Arrival under Str
ess—involuntary entrance; it may be due to lack of provisions, unseaworthiness o
f the vessel, inclement weather, or other cases of force majeure, such as pursui
t of pirates. Flag State—the state whose nationality the ship possesses; for it
is nationality that gives the right to fly a country’s flag. Flag of Convenience
—foreign flag under which a merchant vessel is registered for purposes of reduci
ng operating costs or avoiding government regulations. It is a flag of one count
ry, flown by a ship owned by a citizen of another country. A vessel shall have t
he nationality of the flag it flies, provided there is a genuine link between th
e State
363
Page 3637/12/2008
¥say
(whose flag is flown) and the vessel, i.e., the State must effectively exercise
jurisdiction and control in administrative, technical and social matters over th
e ship.
364
Page 3647/12/2008
¥say

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2008 Political Law and Public International Law Personal Review Notes (taken fro

Sec. 1, Art. III

Any ascendant, descendant or collateral relative of the aggrieved party within t

Succession of States: May be Universal or Partial Consequences: 1. Political law

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