STUDY GUIDE & PERSONAL REVIEWER IN
Suffrage may be exercised by all citizens
POLITICAL LAW REVIEW
ATTY. ALEXIS MEDINA
I.FOR MASTERY OF CONSTITUTIONAL TEXT
Article I, National Territory
1. What comprises the national territory under the 1987
Constitution?
The national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea, the seabed,
the subsoil, the insular shelves, and other submarine areas.
2. How is the archipelagic doctrine expressed in the
Constitution?
“Archipelago with all the islands and waters therein”
“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.”
Article IV, Citizenship
3. Who are citizens of the Philippines?
SECTION 1. The following are citizens of the
Philippines:
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of
the Philippines;
(3) Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon reaching the
age of majority; and
(4) Those who are naturalized in accordance with
law.
4. Who are natural-born citizens of the Philippines?
SECTION 2. Natural-born citizens are those who are
citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.
5. What is the effect of marriage to an alien on Philippine
citizenship?
SECTION 4. Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced
it.
Article V, Suffrage
6. Who may exercise the right to suffrage?
1 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
SECTION 1.
of the Philippines not otherwise disqualified by law, who are
at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein
they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of
suffrage.
7. How may overseas Filipinos exercise their right to
suffrage?
SECTION 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a
system for absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the
disabled and the illiterates 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 Elections
may promulgate to protect the secrecy of the ballot.
>The enactment of overseas absentee voting law (RA
9189) on February 17, 2003 gave life and meaning to Article
V, Section 2 of the Constitution which mandated the Congress
to provide a system of for absentee voting by qualified
Filipinos abroad. Its primary aim is to ensure equal
opportunity for all eligible citizens of the Philippines who are
living or studying abroad to exercise their fundamental right
to vote.
Article VI, The Legislative Department
8. In whom is legislative power vested?
SECTION 1. The legislative power shall be vested in
the Congress of the Philippines 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 referendum.
9. What is the composition of the House of
Representatives?
SECTION 5. (1) The House of Representatives shall
be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected
from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of
a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute
twenty per centum of the total number of representatives
including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of the
seats allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by
law, except the religious sector.
(3) Each legislative district shall comprise, as far as
practicable, contiguous, compact and adjacent territory. Each
city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative.
10. Explain the privilege from arrest of Senators and
members of Congress.
SECTION 11. A Senator or Member of the House of
Representatives shall, in all
Offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is
in session.
11. For what activities shall members of Congress be not
held liable?
No Member shall be questioned nor be held liable in
any other place for any speech or debate in the Congress or in
any committee thereof. (Section 11)
12. What are the prohibitions on members of Congress in
relation to holding or being appointed to other offices?
SECTION 13. No Senator or Member of the House of
Representatives may hold any other office or
employment in the Government, or any subdivision, agency,
or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, during his term
without forfeiting his seat.
Neither shall he be appointed to any office which
may have been created or the emoluments thereof increased
during the term for which he was elected.
13. What are the prohibitions on members of Congress
with respect to the practice of profession or pursuit of
his business?
SECTION 14. No Senator or Member of the House of
Representatives may personally appear as counsel before any
court of justice or before the Electoral Tribunals, or quasi-
judicial and other administrative bodies.
Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or special
privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his
term of office.
He shall not intervene in any matter before any office
of the Government for his pecuniary benefit or where he may
be called upon to act on account of his office.
14. What is required for each house to be able to conduct
its business?
SECTION 2. Par. (2) A majority of each House shall
constitute a quorum to do business, but a smaller number
may adjourn from day to day and may compel the attendance
of absent Members in such manner, and under such penalties,
as such House may provide.
15. What are the powers of each house with respect to its
own members?
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SECTION 2. Par. (3) Each House may determine the
rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its
Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.
16. Who shall be the sole judge of all contests relating to
the election, returns and qualifications of the members of
the Senate and House of Representatives?
SECTION 17. The Senate and the House of
Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political
parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in
the Electoral Tribunal shall be its Chairman.
17. What are the limitations to Congress’ power of
inquiry?
SECTION 21. The Senate or the House of
Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
>The following are some of the limitations on the
power of the Congress to investigate:
a. The Bill of Rights
b. Personal matters cannot be investigated.
c. Congress cannot investigate on matters not within
its power to legislate.
d. It cannot inquire into cases pending in court
because of the principle of separation of powers.
18. When may heads of departments appear before the
Senate or House and be heard on matters pertaining to
their departments?
SECTION 22. The heads of departments may upon
their own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House shall
provide, appear before and be heard by such House on any
matter pertaining to their departments.
Written questions shall be submitted to the
President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled
appearance.
Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the
security of the State or the public interest so requires and the
President so states in writing, the appearance shall be
conducted in executive session.
19. Who has the power to declare the existence of a state
of war?

SECTION 23. Par. (1) The Congress, by a vote of two-
thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence
of a state of war.
20. What may Congress authorize the President to do in
case of war or other national emergency?
SECTION 23. Par. (2) In times of war or other
national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions
as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
21. What kinds of bills shall originate exclusively in the
House of Representatives?
SECTION 24. ALL appropriation, revenue or tariff
bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or
concur with amendments.
22. Under Section 25, Article VI, what are the limitations
on the power of Congress to pass appropriation bills?
SECTION 25. (1) The Congress may not increase the
appropriations recommended by the President for the
operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall
be prescribed by law.
(2) No provision or enactment shall be embraced in
the general appropriations bill unless it relates specifically to
some particular appropriation therein. Any such provision or
enactment shall be limited in its operation to the
appropriation to which it relates.
(3) The procedure in approving appropriations for
the Congress shall strictly follow the procedure for approving
appropriations for other departments and agencies.
(4) A special appropriations bill shall specify the
purpose for which it is intended, and shall be supported by
funds actually available as certified by the National Treasurer,
or to be raised by a corresponding revenue proposed therein.
(5) No law shall be passed authorizing any transfer
of appropriations; however, the President, the President of
the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their
respective offices from savings in other items of their
respective appropriations.
(6) Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes to be
supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law.
(7) If, by the end of any fiscal year, the Congress shall
have failed to pass the general appropriations bill for the
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ensuing fiscal year, the general appropriations law for the
preceding fiscal year shall be deemed reenacted and shall
remain in force and effect until the general appropriations bill
is passed by the Congress.
23. Under Section 26, Article VI, what are the limitations
on the power of Congress to pass bills in general?
SECTION 26. (1) Every bill passed by the Congress
shall embrace only one subject which shall be expressed in
the title thereof.
(2) No bill passed by either House shall become a law
unless:
a. It has passed three readings on separate days;
b. Printed copies thereof 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
immediate enactment to meet a public calamity or
emergency; and
c. Upon the last reading of a bill, no amendment
thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the
Journal.
24. How does a bill passed by Congress become a law?
SECTION 27. (1) Every bill passed by the Congress
shall, before it becomes a law, be presented to the President.
If he approves the same, he shall sign it.
25. What is the President’s so-called veto power?
It is the power of the President to disapprove a bill
passed by the Congress. If the President disapprove it, the bill
shall be returned with his obligation to the house where it
originated.
26. How can Congress override this?
The Congress may override the veto power of the President
by 2/3 votes of all the members of both houses, voting
separately.
27. What is the power of the President with respect to
appropriations, revenue or tariff bills?
SECTION 27. Par. (2) The President shall have the
power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not
affect the item or items to which he does not object.
28. Under Section 28, Article VI, what are the limitations
on Congress’ power to tax?
SECTION 28. (1) The rule of taxation shall be uniform
and equitable. The Congress shall evolve a progressive system
of taxation.
(2) The Congress may, by law, authorize the
President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national
development program of the Government.
 (3) Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from
taxation.
(4) No law granting any tax exemption shall be
passed without the concurrence of a majority of all the
Members of the Congress.
29. What are the limitations on the Congress’ power to
spend public funds?
SECTION 29. (1) No money shall be paid out of the
Treasury except in pursuance of an appropriation made by
law.
(2) No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or
of any priest, preacher, minister, 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.
(3) All money collected on any tax levied for a special
purpose shall be treated as a special fund and paid out for
such purpose only. If the purpose for which a special fund was
created has been fulfilled or abandoned, the balance, if any,
shall be transferred to the general funds of the Government.
Article VII, The Executive Branch
30. In whom is executive power vested?
SECTION 1. The executive power shall be vested in
the President of the Philippines.
31. What are the qualifications to be elected President?
SECTION 2. No person may be elected President
unless:
a. He is a natural-born citizen of the Philippines;
b. a registered voter;
c. able to read and write;
d. at least forty years of age on the day of the
election; and
e. a resident of the Philippines for at least ten years
immediately preceding such election.
32. Who has the responsibility for the canvassing of the
election returns for President and Vice President?
The Congress has the responsibility for the
canvassing of election returns for President and Vice-
President.
SECTION4. Par. 4. The returns of every election for
President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate.
33. Give the instances when the Vice President shall serve
as President.
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The Vice-President shall become the President to
serve the unexpired term, on the following instances:
SECTION 8.
a. In case of death
b. Permanent disability
c. Removal from office; or
d. Resignation of the President,
34. Give a constitutionally provided power of the Vice
President.
The Vice-President may be appointed as a Member of
the Cabinet. Such appointment requires no confirmation.
(Section 3, Art. VII)
In case of death, permanent disability, removal from
office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term.(Section 8,
Art. VII)
35. How does the Constitution prevent nepotism by the
President in the exercise of his appointing powers?
SECTION 13. The spouse and relatives by
consanguinity or affinity within 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, including
government-owned or controlled corporations and their
subsidiaries.
36. What are the categories of officials who are subject to
the appointing power of the President?
SECTION 16. The President shall nominate and, with
the consent of the Commission on Appointments:
a. Appoint the heads of the executive departments,
ambassadors, other public ministers and
consuls;
b. Officers of the armed forces from the rank of
colonel or naval captain;
c. Other officers whose appointments are vested in
him in this Constitution;
d. He shall also appoint all other officers of the
Government whose appointments are not
otherwise provided for by law; and
e. Those whom he may be authorized by law to
appoint.
37. Who else may have the power to appoint, other than
the President?
SECTION 16. The Congress may, by law, vest the
appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies,
commissions, or boards.
38. State the prohibition on the President, Vice President,
Members of the Cabinet and their deputies with respect
to the holding of other offices, exercise of profession and
pursuit of business?
 SECTION 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their
office.
39. When may the President exercise his calling out
powers as Commander in Chief of the armed forces?
SECTION 18. The President shall be the Commander-
in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion.
40. What are the requisites for the exercise by the
President of his power to declare martial law or suspend
the privilege of writ of habeas corpus?
SECTION 18.
a. In case of invasion or rebellion;
b. When the public safety requires it;
c. For a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law;
d. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person
or in writing to the Congress;
e. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation
shall not be set aside by the President;
f. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety
requires it.
41. For what duration may the President suspend the
privilege of the writ of habeas corpus or declare martial
law?
For a period not exceeding sixty days
42. What is the duty of the President after such
suspension or declaration?
Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person
or in writing to the Congress.
43. What is the power of the Supreme Court with respect
to such suspension or declaration?
The Supreme Court may review, in an appropriate
proceeding filed by 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, and must
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promulgate its decision thereon within thirty days from its
filing. (Section 18, Art. VII)
44. What is the effect of a declaration of martial law?
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ. (Section 18, Art. VII)
45. What are the limitations to the suspension of the writ
by the President?
a. The suspension of the privilege of the writ shall
apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with the invasion.
b. During the suspension of the privilege of the writ,
any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
(Section 18, Art. VII)
46. In summary, what are the limitations on the powers of
the President to declare martial law?
a. In case of invasion or rebellion;
b. When the public safety requires it;
c. For a period not exceeding sixty days;
d. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation
shall not be set aside by the President;
e. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress.
47. What are the limitations on the President’s power to
contract or guarantee loans?
SECTION 20.
The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines provided:
a. With the prior concurrence of the Monetary Board,
and subject to such limitations as may be provided by law.
b. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to the
Congress a complete report of its decisions on applications for
loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would
have the effect of increasing the foreign debt, and containing
other matters as may be provided by law.
48. What is required for a treaty or international
agreement entered into by the President to be valid?
SECTION 21. No treaty or international agreement
shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
Article VIII, The Judicial Department
49. In whom is judicial power vested?

SECTION 1. Par. (1) The judicial power shall be
vested in one Supreme Court and in such lower courts as may
be established by law.
50. What is judicial power under the 1987
Constitution?
SECTION 1. Par. (2) Judicial power includes the duty
of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
51. What are the limitations on the power of Congress to
make appropriations for the judiciary?
SECTION 3. The Judiciary shall enjoy fiscal
autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for
the previous year and, after approval, shall be automatically
and regularly released.
52. What is the power of Congress with respect to
jurisdiction of courts?
SECTION 2. Par. (1) The Congress shall have the
power to define, prescribe, and apportion the jurisdiction of
various courts but may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5 hereof.
53. What is the limitation on the power of
Congress to reorganize the judiciary?
SECTION 2. Par. (2) No law shall be passed
reorganizing the Judiciary when it undermines the security of
tenure of its Members.
54. What are the powers of the Supreme Court?
SECTION 5. The Supreme Court shall have the
following powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality
or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in
question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty imposed
in relation thereto.
(c) All cases in which the jurisdiction of any
lower court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or
question of law is involved.
(3) Assign temporarily judges of lower courts to
other stations as public interest may require. Such temporary
6 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
assignment shall not exceed six months without the consent
of the judge concerned.
(4) Order a change of venue or place of trial to avoid
a miscarriage of justice.
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy 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 disapproved by the Supreme Court.
(6) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service Law.
55. State the rule-making power of the Supreme Court
SECTION 5. Par. (5) Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy 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 disapproved by the Supreme Court.
56. What is the constitutional requirement for decisions
rendered by the courts?
SECTION 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly the
facts and the law on which it is based.
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.
57.What is the function of the Judicial and Bar Council?
SECTION 8. Par. (5) The Council shall have the
principal function of recommending appointees to the
Judiciary. It may exercise such other functions and duties as
the Supreme Court may assign to it.
58. Give the safeguards embodied in the Constitution to
ensure the independence of the judiciary
a. The Constitution expressly prohibits the Congress from
depriving the Supreme Court of its jurisdiction as enumerated
under Section 5, Art. VIII as far as passing a law that
undermines the security of tenure of the members of the
Judiciary.
b. SECTION 3. The Judiciary shall enjoy fiscal autonomy.
c. SECTION 10. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court and of the Judges of
the lower courts shall be fixed by law. During the continuance
of their office, their salary shall not be decreased.
d. SECTION 11. The Members of the Supreme Court and
judges of lower courts shall hold office during good behavior
until they reached the age of seventy years or become
incapacitated to discharge the duties of their office.
e. The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal by a
vote of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon.
Article VI, ARTICLE VII, ARTICLE VIII,
Separation of Powers/Checks & Balances
59. What are the ways by which Congress can “check” the
exercise of power by the President? Briefly explain each.
a. May override the veto power of the President.
b. May reject certain appointments of the President.
c. Revoke the proclamation of martial law or suspension of
the writ of habeas corpus by the President.
d. Power to impeach the President
e. Determine the salaries of the President and Vice-President.
60. What are the ways by which Congress can “check” the
exercise of power by the Judiciary. Briefly explain each.
 Power of the Congress to impeach a Member of
SC
ARTICLE XI, SECTION 2. The President, the Vice-President,
the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust.
 Power to define, prescribe, and apportion the
jurisdiction of various courts
ARTICLE VIII, SECTION 2. The Congress shall have the power
to define, prescribe, and apportion the jurisdiction of various
courts but may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5 hereof.
61. What are the ways by which the President can “check”
the exercise of power by Congress. Briefly explain.
 Veto power of the President
ARTICLE VI, SECTION 27. (1) Every bill passed by the
Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise,
he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at
large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such
7 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
cases, the votes of each House shall be determined by yeas or
nays, and the names of the Members voting for or against
shall be entered in its Journal.
The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as if he had
signed it.
(2) The President shall have the power to veto any particular
item or items in an appropriation, revenue, or tariff bill, but
the veto shall not affect the item or items to which he does not
object.
 Special Session called by the President
ARTICLE VI SECTION 15. The Congress shall convene once
every year on the fourth Monday of July for its regular
session, unless a different date is fixed by law, and shall
continue to be in session for such number of days as it may
determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal
holidays. The President may call a special session at any time.
62. What are the ways by which the President can “check”
the exercise of power by the Judiciary? Briefly explain.
ARTICLE VII SECTION 19. Except in cases of impeachment, or
as otherwise provided in this Constitution, the President may
grant reprieves, commutations and pardons, and remit fines
and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.
Article IX, Constitutional Commissions
63. What are the Constitutional Commissions?
SECTION 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
64. What are the safeguards to ensure the
independence of constitutional commissions?
SECTION 2. No Member of a Constitutional Commission shall,
during his tenure, hold any other office or employment.
Neither shall he engage in the practice of any profession or in
the active management or control of any business which in
any way be affected by the functions of his office, nor shall he
be financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled
corporations or their subsidiaries.
SECTION 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be
decreased during their tenure.
SECTION 4. The Constitutional Commissions shall appoint
their officials and employees in accordance with law.
SECTION 5. The Commission shall enjoy fiscal autonomy.
Their approved annual appropriations shall be automatically
and regularly released.
SECTION 6. Each Commission en banc may promulgate its
own rules concerning pleadings and practice before it or
before any of its offices. Such rules however shall not
diminish, increase, or modify substantive rights.
65. What are the powers of the Civil Service
Commission?
B. The Civil Service Commission
SECTION 3. The Civil Service Commission, as the central
personnel agency of the Government, shall establish a career
service and adopt measures to promote morale, efficiency,
integrity, responsiveness, progressiveness, and courtesy in
the civil service.
It shall strengthen the merit and rewards system, integrate all
human resources development programs for all levels and
ranks, and institutionalize a management climate conducive
to public accountability. It shall submit to the President and
the Congress an annual report on its personnel programs.
66. What are covered by the civil service?
SECTION 2. (1) The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters.
67. What are the criteria for appointments in the
civil service?
SECTION 2.(2) Appointments in the civil service shall be made
only according to merit and fitness to be determined, as far as
practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical, by
competitive examination.
68. What are the only valid causes for removal or
suspension of employees or officers in the civil service?
SECTION 2. (3) No officer or employee of the civil service shall
be removed or suspended except for cause provided by law.
69. Do government employees have the right to form
unions? Why?
Yes. SECTION 2.(5) provides that the right to self-organization
shall not be denied to government employees.
But while the right to organize and join unions cannot be
curtailed, government employees may not engage in strikes to
demand changes on the terms and conditions of employment
because such are provided by law (Alliance of Concerned
Teachers vs. Carino)
8 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
70. What is the prohibition on appointment of losing
election candidates?
SECTION 6. 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 government-owned or controlled
corporations or in any of their subsidiaries.
71. What is the prohibition on elective officials with
respect to their appointment to other public offices?
SECTION 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
72. What is the prohibition on appointive officials
with respect to holding any other office in government?
What are the exceptions?
SECTION 7. xxx
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
73. What is the rule on double compensation?
SECTION 8. No elective or appointive public officer or
employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign
government.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation.
74. What are the powers of the Commission on
Audit?
(D) Commission on Audit
SECTION 2.
(1) The Commission on Audit shall have the power, authority,
and duty to examine, audit, and settle all accounts pertaining
to the revenue and receipts of, and expenditures or uses of
funds and property, owned or held in trust by, or pertaining
to, the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled
corporations with original charters, and on a post-audit basis:
(a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution;
(b) autonomous state colleges and universities;
(c) other government-owned or controlled corporations and
their subsidiaries; and
(d) such non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the
Government, which are required by law or the granting
institution to submit to such audit as a condition of subsidy or
equity.
However, where the internal control system of the audited
agencies is inadequate, the Commission may adopt such
measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall
keep the general accounts of the Government and, for such
period as may be provided by law, preserve the vouchers and
other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to
the limitations in this Article, to define the scope of its audit
and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing
rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of
government funds and properties.
75. What matters are within the exclusive original
jurisdiction of the Commission on Elections?
C. The Commission on Elections
the objective of holding free, orderly, honest, peaceful, and
credible elections.
77. What is the specific power of the Commission on
Audit with respect to the examination and auditing of
funds of the government?
SECTION 2. (2) The Commission shall have exclusive
authority, subject to the limitations in this Article, to:
 define the scope of its audit and examination,
 establish the techniques and methods required
therefor, and
 promulgate accounting and auditing rules and
regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or
uses of government funds and properties.
Article X, Local Government
78. What are the territorial and political
subdivisions of the Philippines?
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the:

SECTION 2.(2) Exercise exclusive original jurisdiction over all  provinces,

contests relating to the elections, returns, and qualifications  cities,
of all elective regional, provincial, and city officials, and  municipalities, and
appellate jurisdiction over all contests involving elective  barangays.
municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided There shall be autonomous regions in Muslim Mindanao and
by trial courts of limited jurisdiction. the Cordilleras as hereinafter provided

Decisions, final orders, or rulings of the Commission on 79. What is the most basic right of local
election contests involving elective municipal and barangay governments?
offices shall be final, executory, and not appealable.
SECTION 2. The territorial and political subdivisions shall
76. What is the power of the COMELEC with respect enjoy local autonomy.
to the enjoyment and utilization of all franchises or
permits for the operation of transportation and other 80. What is the role of the President with respect to
public utilities, or media of communications? local governments?

SECTION 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for:
 the operation of transportation and other public
utilities,
 media of communication or information,
 all grants, special privileges, or concessions
granted by the Government or any subdivision,
agency, or instrumentality thereof, including any
government-owned or controlled corporation or
its subsidiary.
SECTION 4. The President of the Philippines shall exercise
general supervision over local governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their
component units are within the scope of their prescribed
powers and functions.
81. What is the extent of the taxing power of local
governments?

SECTION 5. Each local government unit shall have the power

Such supervision or regulation shall aim to ensure equal
to create its own sources of revenues and to levy taxes, fees,
opportunity, time, and space, and the right to reply, including
and charges subject to such guidelines and limitations as the
reasonable, equal rates therefor, for public information
Congress may provide, consistent with the basic policy of
campaigns and forums among candidates in connection with
local autonomy.

9 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

82. To whom should these local taxes, fees and
charges accrue?
SECTION 5. Xxx Such taxes, fees, and charges shall accrue
exclusively to the local governments.
83. What is the requirement for the creation,
division, merger, or abolition of a province, city,
municipality or barangay?
SECTION 10. No province, city, municipality, or barangay may
be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria
established in the Local Government Code and subject to
approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
Article XI, Accountability of Public Officers
84. What is the basic character of a public office?
What does this mean?
SECTION 1. Public office is a public trust.
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.
85. Which of these categories required confirmation
by the Commission on Appointments?
 SECTION 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution
 Judicial Bar Council
ARTICLE VIII Section 8 (2) The regular Members of the
Council shall be appointed by the President for a term of four
years with the consent of the Commission on Appointments.
Of the Members first appointed, the representative of the
Integrated Bar shall serve for four years, the professor of law
for three years, the retired Justice for two years, and the
representative of the private sector for one year.
 The Chairman and the Commissioners of the
Constitutional Commissions
86. Who may be removed from office by
impeachment?
SECTION 2.
 The President,
 the Vice-President,
 the Members of the Supreme Court,
 the Members of the Constitutional Commissions, and
10 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
 the Ombudsman may be removed from office, on
impeachment
All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
87. What are the grounds for impeachment?
SECTION 2. xxx for, and conviction of,
 culpable violation of the Constitution,
 treason,
 bribery,
 graft and corruption,
 other high crimes, or
 betrayal of public trust.
88. How is the process of impeachment initiated?
SECTION 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter.
89. Outline the entire impeachment process.
SECTION 3. (2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall
submit its report to the House within sixty session days from
such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
Members of the Senate.
90. When is a public officer considered impeached?
SECTION 3. (6) No person shall be convicted without the
concurrence of two-thirds of all the Members of the Senate.
91. What is the extent of judgments in cases of
impeachment?
Section 3.(7) Judgment in cases of impeachment shall not
extend further than removal from office and disqualification
to hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
Article XII, National Economy & Patrimony
92. State the Regalian Doctrine under the 1987
Constitution.
SECTION 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State.
93. State the rule on the exploration, development
and utilization of natural resources?
SECTION 2. xxx The exploration, development, and utilization
of natural resources shall be under the full control and
supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the
grant.
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
Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative
fish farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the
11 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty
days from its execution.
94. State the rule of preference on the grant of rights,
privileges and concessions covering the national
economy and patrimony.
SECTION 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos.
95. State the limitations on the grant of franchise for
the operation of a public utility.
SECTION 11. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is
owned by such citizens, nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period
than fifty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity
participation in public utilities by the general public. The
participation of foreign investors in the governing body of any
public utility enterprise shall be limited to their proportionate
share in its capital, and all the executive and managing
officers of such corporation or association must be citizens of
the Philippines.
96. State the Filipino First policy.
SECTION 12. The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced goods,
and adopt measures that help make them competitive.
97. When may the State temporarily take over a
privately owned public utility or business affected with
public interest?
 SECTION 17. In times of national emergency, when
the public interest so requires, the State may, during
the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or
business affected with public interest.
  SECTION 18. The State may, in the interest of
national welfare or defense, establish and operate
vital industries and, upon payment of just
compensation, transfer to public ownership utilities
and other private enterprises to be operated by the
Government.
98. What are the limitations in incurring foreign
loans?
SECTION 21. Foreign loans may only be incurred in
accordance with law and the regulation of the monetary
authority. Information on foreign loans obtained or
guaranteed by the Government shall be made available to the
public.
99. What is the rule on the practice of profession?
SECTION 14.xxxThe practice of all professions in the
Philippines shall be limited to Filipino citizens, save in cases
prescribed by law.
100. How may the State regulate the formation of
private corporations?
SECTION 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of
private corporations. Government-owned or controlled
corporations may be created or established by special
charters in the interest of the common good and subject to the
test of economic viability.
101. What is the policy of the State with respect to
monopolies, restraint of trade and unfair competition?
SECTION 19. The State shall regulate or prohibit monopolies
when the public interest so requires. No combinations in
restraint of trade or unfair competition shall be allowed.
Article XIII, Social Justice and Human Rights
102. What is the primary function of the Commission
on Human Rights?
SECTION 18. The Commission on Human Rights shall have the
following powers and functions:
(1) Investigate, on its own or on complaint by any party, all
forms of human rights violations involving civil and political
rights;
(2) Adopt its operational guidelines and rules of procedure,
and cite for contempt for violations thereof in accordance
with the Rules of Court;
(3) Provide appropriate legal measures for the protection of
human rights of all persons within the Philippines, as well as
Filipinos residing abroad, and provide for preventive
measures and legal aid services to the underprivileged whose
human rights have been violated or need protection;
12 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(4) Exercise visitorial powers over jails, prisons, or detention
facilities;
(5) Establish a continuing program of research, education,
and information to enhance respect for the primacy of human
rights;
(6) Recommend to the Congress effective measures to
promote human rights and to provide for compensation to
victims of violations of human rights, or their families;
(7) Monitor the Philippine Government’s compliance with
international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the truth in
any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office,
or agency in the performance of its functions;
(10) Appoint its officers and employees in accordance with
law; and
(11) Perform such other duties and functions as may be
provided by law.
SECTION 19. The Congress may provide for other cases of
violations of human rights that should fall within the
authority of the Commission, taking into account its
recommendations.
Article XIV, Education, Science and Technology, Arts,
Culture and Sports
103. What is the obligation of the State with respect to
the maintenance of a free public education system?
SECTION 2. The State shall:
(2) Establish and maintain a system of free public education
in the elementary and high school levels. Without limiting the
natural right of parents to rear their children, elementary
education is compulsory for all children of school age;
104. Under what conditions may the government
allow religion to be taught to children in public
elementary and high schools?
SECTION 3.(3) At the option expressed in writing by the
parents or guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high schools
within the regular class hours by instructors designated or
approved by the religious authorities of the religion to which
the children or wards belong, without additional cost to the
Government.
105. Who are allowed to own educational institutions?
SECTION 4.(2) Educational institutions, other than those
established by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens. The Congress may, however, require
increased Filipino equity participation in all educational
institutions.
106. Who are allowed to control and administer
educational institutions?
SECTION 4.The control and administration of educational
institutions shall be vested in citizens of the Philippines.
107. State the prohibition on the establishment of
schools for aliens?
SECTION 4 .No educational institution shall be established
exclusively for aliens and no group of aliens shall comprise
more than one-third of the enrollment in any school. The
provisions of this subsection shall not apply to schools
established for foreign diplomatic personnel and their
dependents and, unless otherwise provided by law, for other
foreign temporary residents.
108. What is academic freedom?
SECTION 5.
(2) Academic freedom shall be enjoyed in all institutions of
higher learning.
(3) Every citizen has a right to select a profession or course of
study, subject to fair, reasonable, and equitable admission and
academic requirements.
Article XVI, General Provisions
109. What are the prohibitions on members of the
military with respect to elections?
SECTION 5.(3)xxx No member of the military shall engage
directly or indirectly in any partisan political activity, except
to vote.
110. What are the prohibitions on members of the
military with respect to appointment to other public
office?
SECTION 5.(4) No member of the armed forces in the active
service shall, at any time, be appointed or designated in any
capacity to a civilian position in the Government including
government-owned or controlled corporations or any of their
subsidiaries.
111. What are the limitations in the ownership of
mass media?
SECTION 11. (1) 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.
13 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
112. What are the prohibitions on the ownership and
management of persons or corporation in the advertising
industry?
SECTION 11. (2) The advertising industry is impressed with
public interest, and shall be regulated by law for the
protection of consumers and the promotion of the general
welfare.
Only Filipino citizens or corporations or associations at least
seventy per centum of the capital of which is owned by such
citizens shall be allowed to engage in the advertising industry.
The participation of foreign investors in the governing body
of entities in such industry shall be limited to their
proportionate share in the capital thereof, and all the
executive and managing officers of such entities must be
citizens of the Philippines.
Article XVII, Amendments and Revisions
113. How may amendments to the Constitution be
proposed?
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered
voters therein.
114. How may revisions to the Constitution be
proposed?
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
115. How may a constitutional convention be called?
SECTION 3. The Congress may, by a vote of two-thirds of all
its Members, call a constitutional convention, or by a majority
vote of all its Members, submit to the electorate the question
of calling such a convention.
116. When will an amendment or revision of the
Constitution be valid?
SECTION 4. Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety
days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when

ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety
days after the certification by the Commission on Elections of
the sufficiency of the petition.

Article XVIII, Transitory Provisions

117. What are the requirements for foreign military

bases, troops, or facilities to be allowed in the
Philippines?

SECTION 25. After the expiration in 1991 of the Agreement

between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting
State.

14 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 II. FOR MASTERY OF CONCEPTS,
PRINCIPLES & DOCTRINES
POLITICAL LAW INTRODUCTION
1. Political Law
Political Law is a branch of public law which deals
with the organization and operations of the governmental
organs of the State and defines the relation of the State with
the inhabitants of the territory.
2. Effect of change in sovereignty to political laws
a) Political Laws are abrogated but municipal laws
remain in force.
b) Political Laws of the former sovereign are
abrogated unless expressly re-enacted by the affirmative act
of the new sovereignty. Municipal Laws remain in force.
3. State
It is the community of persons, more or less
numerous, permanently occupying a definite portion of
territory, independent of external control and possessing a
government to which a great body of inhabitants render
habitual obedience.
4. Elements of a state
a) People- the inhabitants of the state
b)Territory- affixed portion of the surface of the
Earth inhabited by the people of the state
c) Sovereignty- it is the right to exercise the
functions of the state to the exclusion of any other state
d)Government- the agency or instrumentality
through which the will of the state is formulated, expressed,
or realized
5. Meaning of sovereignty
>Sovereignty means the supreme, the
uncontrollable power, the absolute right to govern.
>It is the supreme will of the state, the power to
make laws and enforce them by all means of coercion it cares
to employ.
6. Dominium
>refers to the independent proprietary right of
possession, use, conservation, disposition or sale and control
by the state over its territory
15 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
>capacity of the state to own property
7. Imperium
>the right of the state to pass or enact its own laws
and employ force to secure obedience thereto, maintain peace
and order within its territorial limits, defend the state against
foreign invasion, and do any other act of governance on its
own people and territory.
8. Distinguish a de facto from a de jure government
>a) De Jure Government- is a government of right, a
government established according to the Constitution of the
state, and lawfully entitled to recognition and supremacy and
administration of the state but is actually ousted from power
of control.
-It is a true and lawful government
-One established by the authority of the legitimate
sovereign.
>b) De Facto Government- is that government
which unlawfully gets the possession and control of the
rightful legal government and maintains itself there by force
and arm against the will of the rightful legal government.
-It is a government of fact, that is, it actually
exercises power of control without legal title.
-One which establishes a defiance of the sovereign
government.
9. Distinguish a presidential system from a
parliamentary system
>In Presidential, there is separation of legislative
and executive powers while in Parliamentary, there is fusion
of both executive and legislative powers, although the actual
exercise of the executive powers is vested in the Prime
Minister who is chosen by, and accountable to parliament.
>In Presidential, it embodies interdependence by
separation and coordination while in Parliamentary, it
embodies interdependence by integration.
THE CONSTITUTION IN GENERAL
10. Constitution defined
>It is the fundamental organic law of a state which
contains the principles on which government is founded, and
regulates the division and exercise of sovereign powers.
>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 sovereignty are habitually exercised.
11. Parts of a written constitution
a) Constitution of Liberty –sets forth the
fundamental civil and political rights of the citizens and
imposes limitations on the power of the government or a
means of the enjoyment of these rights.
b) Constitution of Government- outlines the
organization of the government, enumerates for its power,
lays 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 provision
pointing out the mode of procedure in accordance with the
formal changes in the fundamental law may be brought about.
(e.g Art. XVII –Amendments and Revisions)
12. Doctrine of constitutional supremacy
If a law or contract violates any norm of the
constitution, that law or contract, whether promulgated by
the legislative or by the executive branch or entered into by
private for private purposes, is null and void and without any
force and effect. Thus, since the constitution is the
fundamental, paramount, and supreme law of nation, it is
deemed written in every statute and contracts.
13. Self-executing and non-self-executing provisions
of the Constitution
a) Non-self-executing- a provision which lays down
a general principle such as those in Article II of the 1987
Constitution.
b) Self-execution –a provision which is in itself
complete and becomes operative without the aid of
supplementary or enabling legislation or that which supplies
sufficient rule by means of which the right it grants may be
enjoyed or provoked.
-If the nature and extent of the right conferred and
the liability imposed are fixed by the constitution itself, so
that it can be determined by the examination and
construction of its terms, and there is no language indicating
that the subject is referred to the legislative for action.
14. What are the two essential elements for a
petition to be considered valid under Sec. 2, Article XVII
of the Constitution on amendments directly proposed by
the people through initiative? How can these elements be
met?
a) The people must author and sign the entire
proposal, no agent or representative can sign in their behalf.
b) As an initiative upon a petition, the rationale for
these requisites is that the signature requirement would be
meaningless if the person supplying the signature has not first
seen what he is signing, and more importantly, a loose
interpretation of the subscription requirement could pose a
significant potential for fraud. (Lambino v. COMELEC, GR No.
174153, 25 Oct 2006)
15. What is the difference between amendment and
revision of the Constitution?
16 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Revision broadly implies a change that alters a basic
principle in the constitution, like alleging the principle of
separation of powers or the system of checks and balances.
There is also a revision if the change alters the substantial
entirety of the constitution.
Amendment broadly refers to a change that adds,
reduces, deletes, without altering the basic principle involve.
Revision generally affects several provisions of the
constitution while amendment generally affects only the
specific provision being amended.
In determining whether the proposal involves an
amendment or revision, the Court considered the two-part
test:
a) First, the quantitative test, asks whether the
proposed change is so extensive in its provisions as to change
directly the substance entirely of the constitution by the
deletion or alteration of numerous provisions. The court’s
duty is to determine the number of provisions affected and
does not consider the degree of the change.
b) Second, the qualitative test, which inquires into
the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will
accomplish the far-reaching changes in the nature of our basic
governmental plan to amount revision. (Lambino v.
COMELEC, supra.)
16. May amendments to the Constitution be
proposed directly by the people through an initiative
petition? Why?
Yes. Article XVII, Section 2 provides that
“Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum (20%) of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum (3%) of the
registered voters therein.No amendment under this section
shall be authorized within five years following the ratification
of this Constitution nor oftener than once every five years
thereafter.”
17. Is the system of initiative on the Constitution
under the Constitution self-executory? Why?
No. Article XVII, Section 2 (2)provides that, “The
Congress shall provide for the implementation of the exercise of
this right.” Hence, without implementing legislation, section 2
cannot operate.
18. May the people directly propose amendments to
the Constitution through the system of initiative? Why?
Yes. Article XVII, Section 2 provides that
“Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum (20%) of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum (3%) of the
registered voters therein.
STATE PRINCIPLES AND POLICIES
19. What is a republic state?
It is a government of the people, by the people, and
for the people; a representative government wherein the
powers and duties of the government are exercised and
discharged for the common good and welfare. (Guido v.
Rural Progress Administration, 47 OG 1848)
20. Why is the Philippine state considered a
democratic state? State your constitutional basis.
The Constitution provides that the Philippines is a
democratic and republican state. Sovereignty resides in the
people and all government authority emanates from them.
(Sec. 1, Art. II, 1987 Constitution)
21. What is the policy of the Philippine State with
respect to war?
The Philippines renounces war as an instrument of
national policy, 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.
22. What are generally accepted principles of
international law?
It refers to norms of general or customary
international law which are binding on all states.
The generally accepted principles of international
law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive
from treaty obligation.
Two Elements:
a) The established widespread and consistent
practice on the part of the state;
b) Psychological element known as the opinion juris
sine necessities. (It is the belief that the practice in question is
rendered obligatory. Example: 1. A person’s right to life,
liberty, and due process; 2. Renunciation of war as an
instrument of national policy; 3. The principle of sovereign
immunity.)
23. In what ways is the separation of Church and
State ensured under the Constitution?
>Article II, Section 6 - The separation of Church and
State shall be inviolable.
1. No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be
17 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
allowed. No religious test shall be required for the exercise of
civil or political rights. (Sec. 5, Art. III)
2. Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from
taxation. (Sec. 28 (3), Art. VI)
3. No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or
of any priest, preacher, minister, 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. (Sec. 29
(2), Art. VI)
4. At the option expressed in writing by the parents
or guardians, religion shall be allowed to be taught to their
children or wards in public elementary and high schools
within the regular class hours by instructors designated or
approved by the religious authorities of the religion to which
the children or wards belong, without additional cost to the
Government. (Sec. 3 (3), Art. XIV)
24. May Congress legalize abortion? Give your legal
basis?
No. Sec. 12, Art. II of the 1987 Constitution states
that, “The State recognizes 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 development of moral character shall receive
the support of the Government. “
25. What is the Constitutional policy on nuclear
weapons?
The Philippines, consistent with the national interest,
adopts and pursues a policy of freedom from nuclear
weapons in its territory. (Sec. 8, Art. II)
26. What is the policy of the Philippine State with
regard to political dynasties?
The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Sec. 26, Art. II)
27. What is the policy of the Philippine State with
regard to disclosure of government transactions?
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. (Sec.
28, Art. II)
 CITIZENSHIP
28. Who are citizens of the Philippines under the
1987 Constitution?
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of
the Philippines;
(3) Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon reaching the
age of majority; and
(4) Those who are naturalized in accordance with
law. (Sec. 1, Art. IV, 1987 Constitution)
29. Who are citizens of the Philippines at the time of the
adoption of the 1987 Constitution?
Philippine Citizens at the time of the adoption of the
1987 Constitution were those who were citizens under the
1973 Constitution.
30. Who are citizens of the Philippines at the time of the
adoption of the 1973 Constitution?
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of
the Philippines;
(3) Those who elect Philippine citizenship pursuant
to the provision of the Constitution of Nineteen-hundred and
Thirty-five (1935)
(4) Those who are naturalized in accordance with
law. (Sec. 1(1), Art. III, 1973 Constitution)
31.Who are citizens of the Philippines at the time of the
adoption of the 1935 Constitution?
The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands
at the time of the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign
parents who, before the adoption of this Constitution, had
been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the
Philippines.
18 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(4) Those whose mothers are citizens of the
Philippines and, upon reaching the age of majority, elect
Philippine citizenship.
(5) Those who are naturalized in accordance with
law. (Sec. 1, Art. IV, 1935 Constitution)
32. How is Philippine citizenship acquired?
There are two generally recognized form of
acquiring Philippine Citizenship:
a) Filipino by Birth
1. Jus Soli (right of soil) which is the legal
right that a person’s nationality at birth is determined by the
place of birth. (e.g. The territory of a given state)
2. Jus Sanguinis (right of blood) which is
the legal principle that at birth, an individual acquires the
nationality of his or her natural parents. The Philippines
adheres to this principle.
b) Filipino by Naturalization
The legal act of adopting an alien and
clothing him with the privilege of a native-born citizen.
33. Election of citizenship
Prior to the 1973 Constitution, if a Filipina marries
an alien, she lost her Filipino citizenship. Hence, her child
would have to elect Filipino Citizenship upon reaching the age
of majority.
Under the 1973 Constitution, however, children born
of Filipino mothers were already considered Filipinos.
Therefore, the provision on election of citizenship
under the 1987 Constitution only applies to those persons
who were born under the 1935 Constitution.
In order for the children to elect Filipino citizenship,
the mothers must have been Filipinos at the time of marriage.
So if your mother was a Filipino who marries an
alien under the 1935 constitution and you were born before
January 17, 1973, you can elect Filipino citizenship upon
reaching the age of majority.
The election must be made within reasonable period
(within 3 months) after reaching the age of majority.
34. Naturalization
Naturalization is the process by which a foreigner
acquires, voluntarily or by operation of law, the citizenship of
another state.
To be naturalized, an applicant has to prove that he
possesses all the qualifications and none of the
disqualifications provided by law to become a Filipino citizen.
 Naturalization shall confer upon the petitioners all
the rights of a Philippine citizen except only those reserved by
the Constitution to natural-born citizen of the Philippines.
35. Judicial vs. Administrative naturalization
Judicial Naturalization is the process of acquiring
Filipino citizenship by filing a petition for naturalization
before the RTC.
Naturalization may be obtained through a general
law of naturalization applied through judicial process. It is
governed by Revised Naturalization Law, CA 473 (June 17,
1939)
Administrative Naturalization is handled through
the special committee on naturalization chaired by the
Solicitor General and is governed by Sections 3,4,5 and 6 of
RA 9139.
36. How is citizenship lost?
How citizenship may be lost. – A Filipino citizen may
lose his citizenship in any of the following ways and/or
events:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more: Provided, however, That a
Filipino may not divest himself of Philippine citizenship in any
manner while the Republic of the Philippines is at war with
any country;
(4) By rendering services to, or accepting commission in,
the armed forces of a foreign country: Provided, That the
rendering of service to, or the acceptance of such commission
in, the armed forces of a foreign country, and the taking of an
oath of allegiance incident thereto, with the consent of the
Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances
is present:
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic of the
Philippines: Provided, That the Filipino citizen concerned, at
the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident
thereto, states that he does so only in connection with his
service to said foreign country: And provided, finally, That any
Filipino citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign country under
any of the circumstances mentioned in paragraph (a) or (b),
shall not be permitted to participate nor vote in any election
of the Republic of the Philippines during the period of his
service to, or commission in, the armed forces of said foreign
country. Upon his discharge from the service of the said
foreign country, he shall be automatically entitled to the full
enjoyment of his civil and political rights as a Filipino citizen;
19 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a
deserter of the Philippine armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted;
and
(7) In the case of a woman, upon her marriage to a foreigner
if, by virtue of the laws in force in her husband's country, she
acquires his nationality.(Sec. 1, C.A. No. 63)
37. Is holding of a foreign passport equivalent to effective
renunciation of citizenship? Give your jurisprudential
basis.
No. In the case of Maguiling v. COMELEC (GR No.
195659), The use of foreign passport after taking of oath of
allegiance and executing an affidavit of renunciation under RA
9225 is a positive act showing the applicant’s continued
possession of foreign citizenship. While it does not divest him
of his reacquired Filipino citizenship, it negates his
qualification to run for an elective post or be appointed to a
government position.
In order that citizenship may be lost by renunciation,
such renunciation must be EXPRESSED.Petitioner’s
contention that the application of private respondent for an
alien certificate of registration and Australian passport is
without merit.(Aznar v. COMELEC)
The mere fact that private respondent Rosalind
Ybasco Lopez was a holder of Australian passport and an alien
certificate of registration are not acts constituting the
effective renunciation of citizenship and do not militate
against her claim of Filipino Citizenship. (Valles v. COMELEC,
337 SCRA, 2000 Aug 09)
38. Is registration as an alien with the Bureau of
Immigration equivalent to effective renunciation of
citizenship? Give your jurisprudential basis.
As held by the Court in the case of Aznar v. COMELEC,
an application for alien certificate of registration does not
amount to an express renunciation of repudiation of one’s
citizenship.
39. How is citizenship reacquired?
a) By direct act of Congress
b) By naturalization
c) By repatriation – this involves taking an oath of
allegiance and taking the same with the civil registry.
d) RA 9225 – Citizen Retention and Re-acquisition
Act
e) Natural-born citizens who lost their citizenship by
reason of their naturalization as citizen of a foreign country
are deemed to have reacquired their Philippine citizenship
form taking the oath of allegiance to the Republic.
f) Derivative Citizenship, the unmarried child
below 18 y/o of those who re-acquired the citizenship shall
likewise be deemed citizens of the Philippines.
40. What is repatriation?
Repatriation shall be effected by taking the
necessary oath of allegiance to the Republic of the Philippines
and registering the same in the local civil registry where one
resides or where one last reside. (RA No. 965 and 2630)
Applicable to those who lost citizenship by joining the US
Armed Forces.
However, under RA 8171, only: a) women who lost
citizenship by marriage; b) those who lost citizenship for
political or economic reason, repatriation shall be effected by:
1. Taking the necessary oath of allegiance to the
Republic of the Philippines;
2. Registration in the proper civil registry; and
3. In the Bureau of Immigration, the latter shall
thereupon cancel the pertinent alien certificate of registration
and issue the certificate of identification as Filipino citizen to
the Repatriated citizen.
Since repatriation is the reacquisition of lost
citizenship and not acquisition of a new citizenship, one who
is repatriated regains level of his former citizenship.
41. How citizenship is retained or reacquired under
Republic Act 9225
Section 5(2) of RA 9225 compels natural-born
Filipinos, who have been naturalized as citizens of foreign
country but who reacquired or retained their Philippine
citizenship, to take the oath of allegiance under Sec. 3 of RA
9225.
42. Effects of citizenship reacquisition under Republic Act
9225
Under RA 9225, a natural-born Filipino citizen
through naturalization in a foreign country may re-acquire
Filipino citizenship by taking the oath of allegiance before a
duly authorized Philippine official
The oath of allegiance does not require a person to
renounce his allegiance to any other country.
43. Rights of those who reacquire their citizenship under
Republic Act 9225
Civil and Political Rights and Liabilities - Those
who retain or re-acquire Philippine citizenship under this Act
shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws
of the Philippines and the following conditions:
(1) Those intending to exercise their right of surffrage must
Meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing
laws;
(2) Those seeking elective public in the Philippines shall meet
the qualification for holding such public office as required by
the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
20 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and
swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath
of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license
or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended
to, those who:
(a) are candidates for or are occupying any public office in the
country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
which they are naturalized citizens. (Sec. 5, RA 9225)
44. Requirement to run for public office for those who
reacquire citizenship under Republic Act 9225
a) To take the oath of allegiance under Sec. 3 of RA
9225; and
b) To additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an
authorized public officer prior or simultaneous to the filing of
their certificate of candidacy, to qualify as candidates on
Philippine election.
45. Naturalization v. Repatriation
Naturalization is a mode for both acquisition and
re-acquisition of Philippine citizenship. As a mode of
acquiring citizenship, naturalization is governed by CA No.
473, as amended. On the other hand, naturalization as a mode
of reacquiring Philippine citizenship is governed by CA No.
63. Under this law, a former Filipino citizen who wishes to
reacquire Philippine citizenship must possess certain
qualifications and none of the disqualification mentioned in
Sec. 4 of the said act.
Repatriationmay be had under various statutes by
those who lost their citizenship due to:
a) Desertion to armed forces. (sec. 4, CA 63)
b) Service in the armed forces of the allied forces in
World War II. (sec.1, RA 965)
c) Service in the armed forces of the United States at
any other time. (sec. 1, RA 2630)
d) Marriage of a Filipino woman to an alien. (sec. 1,
RA 8171)
e) Political and economic necessity.
 Repatriation simply consist of the taking of an oath
of allegiance to the Republic of the Philippines and registering
said oath in the local civil registry of the place where the
person concerned resides or last resided.
Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was
originally a natural born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a
natural born Filipino.
46. Dual allegiance vs. Dual citizenship
Dual citizenship arises when as a result of the
concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by
the said state.
For instance, such a situation may arise when a
person whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli, such person ipso facto and without
any voluntary act on his part, concurrently considered a
citizen of both states.
Dual allegiancerefers to a situation in which a
person, simultaneously arises by positive act, has loyalty to
two or more states.
While dual citizenship is involuntary, dual allegiance
is the result of an individual volition.
NATIONAL TERRITORY
47. Archipelagic doctrine
Outermost points of the archipelago shall be
connected by straight baselines and all island and waters
therein are regarded as integral one integrated unit.
48.What are the specific islands or territories included in
the phrase “Philippine archipelago”?
“with all the islands and waters embraced therein.” 
49.What are the territories included in “all other
territories over which the Philippines has sovereignty or
 Jurisprudence
jurisdiction”?
Consisting of its:
-Terrestrial -Batanes
-Fluvial -Kalayaan island
-Aerial Domains -Turtle Island
-Spratly
Including its:
-territorial sea
-the seabed
-the subsoil
21 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
-the insular shelves
-and other submarine areas
The waters around, between, and connecting the
islands of the Philippine archipelago regardless of their
breadth and dimensions, form part of the integral waters of
the Philippines.
50. What is the so-called baseline method?
The baselines from which the territorial sea of the
Philippines is determined by “straight lines joining the
appropriate points of the outermost islands of the
archipelago.”
51. Does the Philippines conform to the archipelagic
concept under the UN Convention on the Law of the Sea?
Yes. Under the UN Convention on the Law of the Sea (30 April
1982), the exclusive economic zone which shall not extend
beyond 200 nautical miles from baselines from which the
breadth of the territorial sea is measured, is recognized in the
UNCLOS, of which the Philippines is a signatory. Its concept is
that although it is not part of the territory, exclusive economic
benefit is reserved for the country.
52. What are the territories included in “all other
territories over which the Philippines has sovereignty or
jurisdiction”?
PD No. 1596 (11 June 1978)
Claims the Kalayaan Group of Islands as part of the Philippine
territory on the basis of historic rights and legal title.
The claim was made “by reason of history, indispensable
need, and effective occupation and control established in
accordance with international law.
State immunity from suit
53. Meaning of State immunity from suit
Constitutional
Art. XVI Section 3. The State may not be sued without its
consent.
Positivist theory: There can be no legal right as against the
authority that makes the laws on which the right depends.
Sociological Theory: If the State is amenable to suits, all its
time would be spent defending itself from suit and this would
prevent it from performing its other functions.
54. What suits are considered a suit against
a state
A suit is against the State, regardless of who is named as the
defendant, if it produces adverse consequences to the public
 treasury in terms of disbursement of public funds and loss of
government property.
Some instances when a suit is against the state:
 When the Republic is sued by name;
 When the suit is against an unicorporated government
agency;
 When the suit is on its face against a government officer but
the case is such that the ultimate liability will belong not to
the officer but to the government (Republic vs. Sandoval)
55. May officers of the government who
exceeds the power conferred upon them by law hide
under the principle of sovereign immunity from suit?
Why?
No. The rule does not apply where the public official is
charged in his official capacity for acts that are unlawful and
injurious to the rights of others. Public officials are not
exempt, in their personal capacity, from liability arising from
acts committed in bad faith.
Neither does it apply where the public official is 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 public position. (Lansang vs. CA)
56. May the courts review the determination
of the Department of Foreign Affairs that a State or a
diplomatic official is entitled to a sovereign or diplomatic
immunity from suit?
No. Courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by
any immunity. The DFA’s determination that a certain person
is covered by immunity is only preliminary which has no
binding effect in courts. (Liang vs. People)
57. How state consent to be sued is given
The consent to be sued, in order to be effective, must come
from the State, acting through a duly enacted statute. Waiver
of state immunity can only be made by an act of legislative
body.
58. How is express consent to be sued given?
Express consent may be embodied in a general law or special
law. Express consent is effected only by the will of the
legislature through the medium of a duly enacted statute.
59. How is implied consented to be sued
given?
When the State enters into a contract or itself commences
litigation. When the state enters into a contract, it is deemed
to have descended to the level of the other contracting party
and divested of its sovereign immunity from suit with its
implied consent.
22 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
60. Are all contracts entered into by the
government considered as waiver of its immunity from
suit? Why?
No. Distinctions must be made between sovereign and
proprietary acts. The state may only be liable for proprietary
acts.
61. Suability vs. Liability
Suability depends on the consent of the state to be sued,
liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean
that it is liable; on the other hand, it can never be held liable if
it does not first consent to be sued. Liability is not conceded
by the mere fact that the state has allowed itself to be sued.
When the state does not waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can that the
defendant is liable.
62. Consent to be sued vs. consent to
execution
Money Claim:
When a money judgment is given against the government, the
ordinary rule for execution would not apply, for the consent
of the government to be sued is only up to the point of
judgment. If it does not pay, it cannot be compelled to pay by
attachment or otherwise.
Under a charter:
When consent to be sued is provided by the charter, the
consent does not stop with the rendition but goes up to the
satisfaction of judgment.
63. May the courts issue writs of execution
against the government? Why?
No. The universal rule that where the State gives it
consent to be sued by private parties either by general or
special law, it may limit claimant’s claim only up to the
completion of proceedings anterior to the stage of execution
and that the power of the courts when the judgment is
rendered, since government funds and properties may not be
seized under the writ of execution or garnishment to satisfy
such judgments, is based on the obvious consideration of
public policy. Disbursements of public funds must be covered
by corresponding appropriations as required by law.
(Commissioner of Public Highways vs. San Diego)
64. How must enforcement or satisfaction of
a judgment against the State be pursued?
Disbursements of public funds must be covered by
corresponding appropriations as required by law.
(Commissioner of Public Highways vs. San Diego)
 The procedure is for one to furnish the Office of the
President with the decision so it could include the amount in
the budget for the next year as the basis of the appropriation
since there can be no disbursement of public funds except in
pursuance of law.
STRUCTURE AND POWERS OF GOVERNMENT
Principles & Policies of the Philippine
State
65. How is the principle of People Power
reflected in the 1987 Constitution?
Sovereignty resides in the people and all government
authority emanate from then.
The Philippines is a democratic and republican state.
66. Republicanism
 It is a government of law and not of men;
 There is a periodic holding of election;
 There is observance of principle of separation of powers and
of check and balances;
 There is observance of the role that the legislature cannot
pass or enact irrepealable laws.
It is a state wherein all government authority emanates from
the people and is exercised by representatives chosen by the
people. (Dissenting Opinion of J. Puno, G.R. No. 148334, January
21, 2004 and Bernas Primer, 2006 Edition)
67. Civilian supremacy over the military
Art II, SECTION 3. Civilian authority is, at all times, supreme 
over the military. The Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to secure the
sovereignty of the State and the integrity of the national
territory.
 The establishment of a police force that is not only civilian
Art. VII, SECTION 18. The President shall be the Commander-
in-Chief of all armed forces of the Philippines xxx
Art. XVI, Section 5 SECTION 5. (1) All members of the armed
forces shall take an oath or affirmation to uphold and defend
this Constitution.
(2) The State shall strengthen the patriotic spirit and
nationalist consciousness of the military, and respect for
people’s rights in the performance of their duty.
(3) Professionalism in the armed forces and adequate
remuneration and benefits of its members shall be a prime
concern of the State. The armed forces shall be insulated from
partisan politics.
No member of the military shall engage directly or indirectly
in any partisan political activity, except to vote.
23 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(4) No member of the armed forces in the active service shall,
at any time, be appointed or designated in any capacity to a
civilian position in the Government including government-
owned or controlled corporations or any of their subsidiaries.
(5) Laws on retirement of military officers shall not allow
extension of their service.
(6) The officers and men of the regular force of the armed
forces shall be recruited proportionately from all provinces
and cities as far as practicable.
(7) The tour of duty of the Chief of Staff of the armed forces
shall not exceed three years. However, in times of war or
other national emergency declared by the Congress, the
President may extend such tour of duty.
SECTION 6. 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 national
police commission. The authority of local executives over the
police units in their jurisdiction shall be provided by law.
The supremacy of civilian rule over the military is ensured by:
 The installation of the president, the highest civilian
authority, as the commander in chief of the military
 The requirement that members of the AFP swear to uphold
and defend the constitution, which is the fundamental law of
the civil government;
The professionalism of the service and strengthening of the
patriotism and nationalism, and respect for human rights of
the military;
 Insulation of the AFP from partisan politics;
 Prohibition against the appointment to a civil position;
 Compulsory retirement of officers (no over-staying of
officers) so as to avoid propagation of power;
A 3 year limitation on the tour of duty of Chief of staff, which
although extendible in case of emergency by the President,
depends on the Congressional declaration of emergency;
Requirement of professional recruitment, so as to avoid a
regional clique from forming within the AFP;
character but also under the local executives.
68. Does the deployment of the military for
civilian law enforcement necessarily constitute a
violation of the civilian supremacy clause? Why?
Military assistance to civilian authorities in various forms
persists in Philippine Jurisdiction. The Philippine experience
reveals that it is not adverse to request the assistance of the
military in the implementation and execution of certain
traditionally civil functions. (IBP vs Zamora)
69. What are generally accepted principles
of international law? Give examples?
Art, II, SECTION 2. The Philippines renounces war as an
instrument of national policy, 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. (Doctrine of
Incorporation)
SECTION 7. The State shall pursue an independent foreign
policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-
determination.
SECTION 8. The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom from nuclear
weapons in its territory.
Art. XVIII, SECTION 4. All existing treaties or international
agreements which have not been ratified shall not be renewed
or extended without the concurrence of at least two-thirds of
all the Members of the Senate.
70. How is the principle of separation of
Church and State ensured under the 1987 Constitution?
Art. II, SECTION 6. The separation of Church and State shall be
inviolable.
Art. III, SECTION 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
Art. IX, C, Section 2 (5) xxx Religious denominations and sects
shall not be registered. Those which seek to achieve their
goals through violence or unlawful means, or refuse to uphold
and adhere to this Constitution, or which are supported by
any foreign government shall likewise be refused registration.
Art. VI, SECTION 5. (2) The party-list representatives shall
constitute twenty per centum of the total number of
representatives including those under the party list. For three
consecutive terms after the ratification of this Constitution,
one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may
be provided by law, except the religious sector.
71. What are the exceptions to the principle
of separation of Church and State under the 1987
Constitution?
Exceptions:
Art. VI, SECTION 28. (2) The Congress may, by law, authorize
the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national
development program of the Government.
Art. VI, SECTION 29 (2) No public money or property shall be
appropriated, applied, paid, or employed, directly or
24 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or
of any priest, preacher, 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.
ARTICLE XIV. SECTION 3 (3) (3) At the option expressed in
writing by the parents or guardians, religion shall be allowed
to be taught to their children or wards in public elementary
and high schools within the regular class hours by instructors
designated or approved by the religious authorities of the
religion to which the children or wards belong, without
additional cost to the Government.
Section 4 (2) Educational institutions, other than those
established by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens. The Congress may, however, require
increased Filipino equity participation in all educational
institutions.
The control and administration of educational institutions
shall be vested in citizens of the Philippines.
No educational institution shall be established exclusively for
aliens and no group of aliens shall comprise more than one-
third of the enrollment in any school. The provisions of this
subsection shall not apply to schools established for foreign
diplomatic personnel and their dependents and, unless
otherwise provided by law, for other foreign temporary
residents.
72. Protection for the life of the unborn
Art. II. SECTION 12. The State recognizes 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 development of moral
character shall receive the support of the Government.
73. Intergenerational responsibility
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may
even be said to predate all governments and constitutions. As
a matter of fact, these basic rights need not even be written in
the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned
in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to
come — generations which stand to inherit nothing but
parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it

the correlative duty to refrain from impairing the
environment. (Oposa vs. Factoran)

74. Meaning of social justice

Social justice is "neither communism, nor despotism,

nor atomism, nor anarchy," but the humanization of laws and
the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic
stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in
the interrelations of the members of the community,
constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of
powers underlying the existence of all governments on the
time-honored principle of salus populi est suprema lex. Social
justice, therefore, must be founded on the recognition of the
necessity of interdependence among divers and diverse units
of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health,
comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number." (Calalang vs. Williams)

25 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 STRUCTURE OF GOVERNMENT IN GENERAL
75. Separation of Powers
The Doctrine of Separation of Powers is intended to prevent a 
concentration of authority in one person or group of persons
that might lead to an irreversible error or abuse in its exercise
to the detriment of our republican institutions. More
specifically, according to J. Laurel, the doctrine is intended to
secure action, to forestall overaction, to prevent despotism
and to obtain deficiency.
76. Blending of powers
There are instance under the Constitution when powers are
not confine exclusively within one department but are in fact
assigned to or shared by several departments. As a result of
this blending of powers, there is some difficulty now in
classifying some of them definitely legislative, executive of
judicial. The powers of government may not at all times be
contained with mathematical precision in water-tight
compartments because of their ambiguous nature. E.g., the
power of appointment, which can rightfully be exercised by
each department over its own administrative personnel.
77. What is the meaning of judicial
supremacy?
In justifying the power of judicial review, J. Laurel pointed out
that when the court allocated constitutional boundaries, it
neither asserts supremacy, nor annuls the acts of the
legislature. It simply carries out the solemn and sacred
obligations imposed upon it by the constitution to determine
conflicting claims and to establish for the parties the rights
which the constitution grants to them. This is what is termed
“judicial supremacy” which properly is the power of judicial
review under the constitution.
78. Power of judicial review in general
Art. VIII, SECTION 5. The Supreme Court shall have the
following powers:
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation is in question.
79. Requisites for judicial review
 Actual case and controversy;

 Legal standing or locus standi;
The question of constitutionality must be raised at the earliest
opportunity;
26 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The issue of constitutionality must be the very lis mota of the
case
80. What is the “case or controversy”
requirement in the exercise of judicial review?
A party with personal and substantial interest;
An appropriate case;
A constitutional question raised at the earliest possible time;
A constitutional question that is the very lis mota of the case
81. What is the meaning of “ripeness”
requirement in the exercise of judicial review
A constitutional question is ripe for adjudication when the
government act being challenged has direct adverse effect on
the individual challenging it. Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the
outcome of this case or an injury to themselves. (ABAKADA
Party List vs Purisima)
82. Moot and academic principle
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or
value. Generally, court declines jurisdiction over such case or
dismiss it on ground of mootness.
The moot and academic principle is not a magical formula
that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic,
if: first, there is a grave violation of the Constitution; second,
the exceptional character of the situation and the paramount
public interest is involved;] third, when constitutional issue
raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review. (David vs.
Macapagal- arroyo)
83. Locus standi
A personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of
the government act that is being challenged.
he term interest means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest. The gist
of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of
difficult constitutional questions. (IBP vs Zamora)
84. When does a taxpayer, legislator, voter
or citizen have locus standi?
 Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest
in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that
the issues raised are of transcendental importance which
must be settled early; and
(5) for legislators, there must be a claim that the official
action complained of infringes upon their prerogatives as
legislators.
Significantly, recent decisions show a certain
toughening in the CourtÕs attitude toward legal
standing. (David vs. Arroyo)
85. Direct injury test
In Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Comelec, the Court reiterated the direct
injury test with respect to concerned citizens cases involving
constitutional issues. It held that there must be a showing
that the citizen personally suffered some actual or threatened
injury arising from the alleged illegal official act. (David vs.
Arroyo)
86. What is the meaning of redressability as
a requirement of judicial review?
It must be likely, as opposed to merely speculative, that a
favorable court decision will redress the injury.
87. What is the meaning of causation as a
requirement of judicial review?
There must be causal connection between the injury and the
conduct complained of so that the injury is fairly traceable to
the challenged action of the defendant and not the result of
the independent action of some third party who is not before
the court.
88. May the unborn have standing to sue in
court? Why?
Yes. In the case of Oposa vs. Factoran, the court recognized
the right of an unborn child to a balanced and healthful
ecology and the right to sue in environment cases under the
principle of intergenerational responsibility.
89. Doctrine of transcendental importance
27 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The court will not strictly consider the requirement of locus
standi in cases where subject of inquiry involves matters of
public interest.
90. Meaning of earliest opportunity
The earliest opportunity to raise a constitutional issue is to
raise it in the pleadings before a competent court that can
resolve the same such that, “if it is not raised in the pleadings,
it cannot be considered on appeal.”
91. Meaning of lis mota requirement
It must appear conclusively that the case before the court may
not be legally settled unless the constitutionality of the statute
involved is determined (Sinco)
92. What is the reason behind the lis mota
requirement?
Because of the doctrine of separation of powers which
demands that proper respect be accorded the other branches
of government, courts are loath to decide on constitutional
questions as long as there is some other basis that can be used
to resolve the case.
93. Judicial restraint
Court does not always assume jurisdiction over every actual
constitutional case brought before it even in instances which
are ripe for resolution. Example: Political Questions.
94. Political questions
As a general proposition, a controversy is justiciable if it
refers to a matter which is appropriate for court review. It
pertains to issues which are inherently susceptible of being
decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that
are ripe for resolution. One class of cases wherein the Court
hesitates to rule on are political questions. The reason is that
political questions are concerned with issues dependent upon
the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to
step in to uphold the law and the Constitution.
As Taada v. Cuenco puts it, political questions refer to those
questions which, under the 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
legislative or executive branch of government. Thus, if an
issue is clearly identified by the text of the Constitution as
matters for discretionary action by a particular branch of
government or to the people themselves then it is held to be a
political question. (IBP vs Zamora)
 95. May the courts supplant the executive? Exercise of the people power of Exercise of the people
Why? revolution power of freedom of
speech and of assembly,
to petition the
Yes, when the act of the executive is contrary to the government for redress
provisions of the Constitution, and existing laws, public policy of grievances
and morals. Effect of exercise of the power involved
Overthrows the whole Only affected the Office
96. Can courts pass upon the wisdom and
government of the President
soundness of an executive decision? Why not?
Judicial review
Extra‐constitutional. Intra‐constitutional.
When the President calls the armed forces to prevent or The legitimacy of the new The resignation of the
suppress lawless violence, invasion or rebellion, he government that resulted from sitting President that it
necessarily exercises a discretionary power solely vested in it cannot be the subject of caused and the
his wisdom. This is clear from the intent of the framers and judicial review. succession of the VP as
from the text of the Constitution itself. The Court, thus, cannot President are subject to
be called upon to overrule the Presidents wisdom or judicial review.
substitute its own. However, this does not prevent an Nature of question involved
examination of whether such power was exercised within Presented a political question. Involves legal questions
permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of
the constitutional intent to give the President full 99. Status of an unconstitutional law
discretionary power to determine the necessity of calling out
the armed forces, it is incumbent upon the petitioner to show
that the Presidents decision is totally bereft of factual Malabang v. Benito (1969): There can be no color of authority
basis. The present petition fails to discharge such heavy in an unconstitutional statute. An unconstitutional act confers
burden as there is no evidence to support the assertion that no rights, imposes no duties, affords no protection and
there exist no justification for calling out the armed creates no office. However, even if the EO was invalid, it does
forces. There is, likewise, no evidence to support the not mean that the acts done by the municipality of Balabagan
proposition that grave abuse was committed because the in the exercise of its corporate powers are a nullity. This is
power to call was exercised in such a manner as to violate the because the existence of the EO is “an operative fact which
constitutional provision on civilian supremacy over the cannot justly be ignored.”
military. In the performance of this Courts duty of purposeful
hesitation[32] before declaring an act of another branch as 100. Doctrine of operative fact
unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain. (IBP vs Zamora) It is a rule of equity. Under this doctrine, the law is recognized
as unconstitutional but the effects of the unconstitutional law,
97. Examples of political questions based prior to its declaration of nullity, may be left undisturbed as a
on jurisprudence matter of equity and fair play. (League of Cities of the
Philippines v. COMELEC, G.R. No. 176951, Nov. 18, 2008)

In the classic formulation of Justice Brennan in Baker v.

Carr,[24] [p]rominent on the surface of any case held to involve
a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence
to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various
departments on the one question. (IBP vs Zamora)

98. EDSA People Power I v. EDSA People

Power II

EDSA 1 EDSA 2
As to power involved or exercised by the people

28 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 THE LEGISLATIVE BRANCH
101. Legislative power
Legislative power is the power or competence of the
legislature to enact, ordain, alter, or modify, repeal, or
abrogate existing laws. (Gov’t of the Philippines Islands v.
Springer 50 Phil 396)
102. In whom is legislative power vested?
The Legislative power shall be vested in the Congress
of the Philippines which shall consist of the Senate and the
House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
(Section 1, Article VI, 1987 Constitution)
103. Limitation on legislative power: Passage of
irrepealable laws
It is an implied substantive limitation on legislative
power. It is axiomatic that all laws, even the constitution itself,
may be repealed or amended. No one can bind future
generations of a law.
104. Limitation on legislative power: Non-delegation
As a general rule, legislative power cannot be
delegated, what can be delegated is the execution of the laws
under acceptable standards limiting discretion of the
executive.
Legislative power must remain where the people
lodge it. However, there are two exceptions to this rule:
a.) By immemorial practice, legislative power may be
delegated to local governments. (Rubi v. Provincial Board,
39 Phil 660)
b) The Constitution itself might in specific instances
allow delegation of legislative powers.
105. Delegation of legislative power: Requisites for
validity
The delegating law must:
a) Complete in itself –it must set forth therein the
policy to be carried out or implemented by the delegate.
(Completeness Test)
b) Fix a standard – the limits of which are sufficiently
determinate or determinable to which the delegate must
29 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
conform in the performance of his functions. (Sufficient
Standard Test)
>Sufficient standard test is one which
defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative
command it to be affected.
106. Composition of the House of Representatives
The House of Representatives shall be composed of
not more than two hundred fifty (250) members unless
otherwise fixed by law.
a) District Representatives-elected from legislative
district apportioned among provinces, cities, and the
Metropolitan Manila area. (Section 5(1), Article VI, 1987
Constitution)
b) Partylist Representatives – who shall
constitute twenty (20%) percentum of the total number of the
representatives, elected through a partylist system of
registered national, regional, and sectoral parties or
organization. (Section 5(2), Article VI, 1987 Constitution)
c) Sectoral Representatives – for three (3)
consecutive terms after the ratification of the constitution, ½
of the seats allocated to party-list representatives shall be
filed, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sector as may be provided by
law, except the religious sect. (Section 5(2), Article VI, 1987
Constitution)
107. How are legislative districts
apportioned? How can they be reapportioned?
a) Apportionment shall be made in accordance with
the number of respective inhabitants (among the provinces,
cities, and metro manila) on the basis of a uniform and
progressive ratio.
i. But each city with not less than 250,000
inhabitants shall be entitled to at least one (1)
representative.
ii. Each province, irrespective of the
number of inhabitants, is entitled to at least one (1)
representative.
b) Each legislative district shall comprise as far as
practicable, contiguous, compact, and adjacent territory. This
is to prevent gerrymandering.
 c) Congress, to make reapportionment of legislative
districts within three (3) years following the return of every
census.
d) Apportionment of legislative districts must be by
law, which could be a: (i.) general appropriations law; (ii.)
special law
108. Parameters of Philippine-style party list
elections
The following are four (4) inviolable constitutional
and statutory parameters in the party-list system:
a) Twenty-percent (20%) allocation- The
combined number of all party-list. Congressmen shall not
exceed 20% of the total membership of the House of
Representatives.
b) Two percent threshold (2%) - Only those
parties garnering a minimum of 2% of the total votes cast for
the party-list system are qualified to have a seat in the House.
c) Three (3) Seat Limit – Each qualified party
regardless of the number of votes it actually obtained is
entitled to a maximum of 3 seats.
d) Proportioned Representations – The additional
seats which a qualified party is entitled to shall be computed
in proportion to their total number of votes. (Veteran
Federation v. COMELEC (2010)
109. How party list seats are to be filled up
In determining the allocation of seats for party list
representatives under Section 11 of RA 7941, the following
shall be filed up:
a) The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on the number of
votes garnered during the elections.
b) The parties, organizations, and coalitions
receiving at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one seat each:
provided, that those garnering more than two percent (2%) of
the votes shall be entitled to additional seats in proportion to
their total number of votes: provided, finally, that each party,
organization, or coalition shall be entitled to not more than
three (3) seats.
30 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
In computing the additional seats, the guaranteed
seats shall no longer be included because they have already
been allocated, at one seat each, to every two-percenter. Thus,
the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List
System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941
allowing for a rounding off of fractional seats. (BANAT v.
COMELEC, GR No. 179271)
110. May Congress impose additional qualifications
for membership in Congress? Why?
No, the qualifications of members of Congress as
provided in the Constitution are exclusive.
111. Privilege of Speech or Debate
xxx No Member shall be questioned nor be held
liable in any other place for any speech or debate in the
Congress or in any committee thereof. (Section 11, Article VI,
1987 Constitution)
This privilege protects the member concerned from
any libel suit that may be filed against him for a speech made
“in” the halls of Congress or in any of its Committees. Speech
is not confined to traditional speech but even to the casting of
votes, the making of reports, a debate or discussion,
communicative actions, and any other forms of expression.
112. When is a speech or debate of a Member of
Congress considered privileged?
The speech, however, must be made in Congress in
the discharge of legislative duty. Thus, utterances made in the
performance of their official functions (speech, statements,
votes cast) while in session, as well as bills introduced in
Congress whether in session or not and other acts performed
by Congressmen, either in Congress or outside the premises
housing its offices in the official discharge of their duties. As
members of Congress and of Congressional committees duly
authorized to perform its functions, as such, at the time of the
performance of the acts in question. (Jimenez v.
Cabangbang, G.R. No. L-15905, August 3, 1966)
Nota Bene: The privilege is not absolute, a member
of these Houses may be called to account for his remarks by
his own colleagues in Congress itself and when warranted,
punish for disorderly behavior.
113. Privilege from Arrest
A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest while
the Congress is in session. No Member shall be questioned
nor be held liable in any other place for any speech or
debate in the Congress or in any committee thereof. (Article
VI, Section 11, 1987 Constitution)
Requirements for the privilege to be availed of:
a) The remarks must be made while the legislature
or the legislative committee is in session; and
b) The speech or debate must be made in connection
with the discharge of official duties.
Nota Bene: An Incumbent Congressman who
committed an offense punishable for not more than 6 years
who is not attending session shall be immune from arrest.
(People v. Jalosjos, GR Nos. 132875-76, February 3, 2000)
114. May Congress compel the attendance of one of its
absent members if the latter is confined for being
charged with a crime punishable by imprisonment of
more than six years? Why?
The members of the Congress cannot compel an
absent member to attend session if the reason of absence is a
legitimate one. The confinement of a Congressman charged
with a crime punishable by imprisonment of more than six (6)
years is not merely authorized by law but it has Constitutional
basis and foundation. (People v. Jalosjos, supra.)
115. What are the alternatives for Congress’
Bicameral Conference Committee in terms of
harmonizing bills from both Houses?
Under the provisions of the Rules of the House of
Representatives and the Senate Rules, the Bicameral
Conference Committee is mandated to settle differences
between the disagreeing provisions in the House bill and
Senate bill.
However, Justice Ynares-Santiago in the
consolidated cases of ABAKADA v Ermita, et al.
(2005), construed the term settle as synonymous to
“reconcile and harmonize”, and as such, the Bicameral
Conference Committee may either:
(a) adopt the specific provisions of either the House
bill or Senate bill;
(b) decide that neither provisions in the House bill
or the provisions in the Senate bill would be carried into the
final form of the bill; and/or
(c) try to arrive at a compromise between the
disagreeing provisions.
116. Amendment by Substitution
31 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
In Tolentino v. Sec. of Finance (235 SCRA 630 cited
in ABAKADA v Ermita, et al. (2005)- separate opinion of
Justice Calleja, the Court declared as valid amendments
introduced by the Bicameral Conference Committee even if
these were not contained in the Senate and House bills. The
majority opinion therein held:
As to the possibility of an entirely new bill emerging
out of a Conference Committee, it has been explained:
Under congressional rules of procedures, conference
committees are not expected to make any material change in
the measure at issue, either by deleting provisions to which
both houses have already agreed or by inserting new
provisions. But this is a difficult provision to enforce. Note the
problem when one house amends a proposal originating in
either house by striking out everything following the enacting
clause and substituting provisions which make it an entirely
new bill. The versions are now altogether different,
permitting a conference committee to draft essentially a new
bill
The result is a third version, which is considered an
amendment in the nature of a substitute, the only
requirement for which being that the third version be
germane to the subject of the House and Senate bills.
117. Basis and concept of congressional oversight
The power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has
enacted. It concerns post-enactment measures undertaken by
Congress. (Macalintal v. COMELEC, GR. No. 157013 July 10,
2003, -separate opinion of Justice Puno)
The power of oversight has been held to be:
(bases)
a) Intrinsic in the grant of legislative power itself
b) Integral to the system of checks and balances
c) Inherent in a democratic system of government
Scope of power of oversight:
a) Monitor bureaucratic compliance with program
objectives
b) Determine whether agencies are properly
administered
c) Eliminate executive waste and dishonesty
d) Prevent executive usurpation of legislative
authority
e) Assess executive conformity with the
congressional perception of public interest. (Macalintal v.
COMELEC, GR. No. 157013 July 10, 2003, -separate
opinion of Justice Puno)
118. What is a legislative veto? Is it valid?
Legislative veto is a statutory provision requiring the
President or an administrative agency to present the
proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it,
retains a right or power to approve or disapprove such
regulations before they take effect.
As such, a legislative veto in the form of a
congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional
leash (other than through scrutiny and investigation) to an
agency to which Congress has by law initially delegated broad
powers. It radically changes the design or structure of the
Constitutions diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own
laws. Thus, legislative veto is not allowed in the Philippines.
(ABAKADA Guro Party-List v. Purisima, GR No. 166715,
August 14, 2008)
119. Does the House of Representatives on its own
validly exercise legislative power?
No. Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in
the Congress of the Philippines 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
referendum. (emphasis supplied)
Legislative power (or the power to propose, enact,
amend and repeal laws) is vested in Congress which consists
of two chambers, the Senate and the House of
Representatives. A valid exercise of legislative power
requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor
by a committee of either or both chambers. Thus,
assuming the validity of a legislative veto, both a single-
chamber legislative veto and a congressional committee
legislative veto are invalid. (ABAKADA Guro Party-List v.
Purisima, GR No. 166715, August 14, 2008)
120. What are the two basic steps required before a
bill becomes a law?
Section 26, Article VI of the Constitution provides
that:
a) No bill passed by either House shall become a law
unless it has passed three readings on separate days; and
b) Printed copies thereof in its final form have been
distributed to its Members three days before its passage,
32 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency.
121. What is a legislative veto?
Legislative veto is a statutory provision requiring the
President or an administrative agency to present the
proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it,
retains a right or power to approve or disapprove such
regulations before they take effect. (ABAKADA Guro Party-
List v. Purisima, GR No. 166715, August 14, 2008)
122. May Congress empower itself to approve the
implementing rules of a law, after a law has already taken
effect? Why?
No, the Congress may not do so.
Administrative regulations enacted by
administrative agencies to implement and interpret the law
which they are entrusted to enforce have the force of law and
are entitled to respect. Such rules and regulations partake of
the nature of a statute and are just as binding as if they have
been written in the statute itself. As such, they have the force
and effect of law and enjoy the presumption of
constitutionality and legality until they are set aside with
finality in an appropriate case by a competent court.
Congress, in the guise of assuming the role of an
overseer, may not pass upon their legality by subjecting them
to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based
on a determination of whether or not they conformed with
the provisions of RA 9335, Congress arrogated judicial power
unto itself, a power exclusively vested in this Court by the
Constitution. (ABAKADA Guro Party-List v. Purisima, GR
No. 166715, August 14, 2008)
123. Power of inquiry
The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected. (Section 21, Article VI)
124. What power is included in the power of inquiry?
The Congress of the Philippines has a wider range of
legislative field than either the Congress of the United States
or a State Legislature, we think it is correct to say that the
field of inquiry into which it may enter is also wider. It would
be difficult to define any limits by which the subject matter of
its inquiry can be bounded. It may cover, administrative
inquiries, social, economic, political problems, discipline of
members, cite a person in contempt, issue subpoena, etc.
Suffice it to say that it is co-extensive with legislative power.
(Arnault v. Nazareno, GR No. L-3820, July 18, 1950)
125. Power of inquiry v. Legislative power
 Legislative power is the power to propose,
enact, amend, and repeal laws while power of
inquiry is exercised in aid of legislation. The
Court held that the power of inquiry is inherent
in the power to legislate. (Arnault v. Nazareno,
GR No. L-3820, July 18, 1950)
 Power of inquiry is an essential and appropriate
auxiliary to the legislative function. A legislative
body cannot legislate wisely or effectively in the
absence of information respecting the condition
to which the legislation is intended to affect or
change. (Senate of the Philippines v. Ermita,
April 20, 2006)
126. What are the limitations to the power of Congress
to conduct legislative inquires?
a) Constitutional rights to counsel and against
self-incrimination –even if the investigation is not a criminal
investigation, the information divulge therein may be used in
criminal prosecution. (Under Sec. 21, Art. VI, it is provided
that the rights of the persons appearing in or affected by such
inquiries shall be respected.)
b) The Rules of Procedure to be followed in such
inquiries shall be published for the guidance of those who will
be summoned. This must strictly followed so that the
inquiries are confined only to the legislative purpose. This is
also to avoid abuses.
c) The investigation must be in aid of legislation.
d) Congress may not summon the President as
witness or investigate the latter in view of the doctrine of
separation of powers except in impeachment cases.
Nota Bene: It is the President’s prerogative to
divulge or not the information which he deems confidential or
prudent in public interest.
e) Congress may no longer punish the witness in
contempt after its final adjournment. The basis of the power
to impose such penalty is the right to self-preservation. And
such right is enforceable only during the existence of the
legislature. (Lopez v. Delos Reyes, GR No. L-3436, Nov. 5,
1930)
33 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
f) Congress may no longer inquire into the same
justiciable controversy resolved already before the court.
(Bengzon v. Blue Ribbon Committee, GR No. 89914, Nov.
20, 1991)
127. Inquiry in aid of legislation v. Question hour
“A distinction was thus made between inquiries in
aid of legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was
compulsory in inquiries in aid of legislation.
Sections 21 and 22, Article VI therefore, while closely related
and complementary to each other, should not be considered
as pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that
may be used for 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’
oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as
that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as
a matter of duty. In such instances, Section 22, in keeping
with the separation of powers, states that Congress may
only request their appearance. Nonetheless, when the inquiry
in which Congress requires their appearance is “in aid of
legislation” under Section 21, the appearance
is mandatory for the same reasons stated in Arnault.” (Senate
of the Philippines v. Ermita, April 20, 2006)
Legislative Inquiries Question Hour
1. As to Constitutional provision
Section 21, Article VI Section 22, Article VI
2. As to Subject Matter
Any matter for the purpose Matters related to the
of legislation department only
3. As to persons subjected to
Any person upon subpoena Only department heads
4. As to who conducts the investigation
Committee Entire Body
5. As to Appearance of Executive Officials
Generally mandatory Via request
128. What is the difference between the power of
inquiry of Congress and the right of the people to
information on matters of public concern?
The right of Congress or any of its Committees to
obtain information in aid of legislation cannot be equated
with the people’s right to public information. The demand of a
citizen for the production of documents pursuant to his right
to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. In the exercise of
its power, Congress cannot invoke a right properly belonging
to the people in general. This is because when they discharge
their power, they do so as public officials and members of
Congress. Neri vs. Senate Committee, et al., G.R. No.
180643 (2008)
129. What is the remedy of Congress in case the
President refuses to allow members of the military to
appear before Congressional inquiries?
The Court ruled in Senate v. Ermita (2006) that the
President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to
attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive
privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the
President to prevent military officers from testifying
before Congress does not turn on executive privilege, but
on the Chief Executives power as commander-in-chief to
control the actions and speech of members of the armed
forces. The Presidents prerogatives as commander-in-
chief are not hampered by the same limitations as in
executive privilege.
xxx At the same time, the refusal of the President to
allow members of the military to appear before Congress is
still subject to judicial relief. The Constitution itself recognizes
as one of the legislatures functions is the conduct of inquiries in
aid of legislation. Inasmuch as it is ill-advised for Congress to
interfere with the Presidents power as commander-in-chief, it
is similarly detrimental for the President to unduly interfere
with Congress right to conduct legislative inquiries. xxx
(Gudani v. Senga, G.R. No. 170165, August 15, 2006)
130. Enrolled Bill doctrine
Once a bill has been approved by both Houses, the
bill is engrossed or enrolled and this “enrolled copy of the
bill” bears the certification of the presiding officer of the
House (either the President or the Speaker of the House) that
thus bill as enrolled is the version passed by each house. The
purpose of the certification is to prevent attempted acts of
smuggling “riders”. The enrolled copy is sent to the President.
In case of discrepancy between the enrolled copy of the bill
and any other copy of the bill, the enrolled copy prevails.
xxx As the President has no authority to approve a
bill not passed by Congress, an enrolled Act in the custody of
the Secretary of State, and having the official attestations of
the Speaker of the House of Representatives, of the President
of the Senate, and of the Chief Executive, carries, on its face, a
solemn assurance by the legislative and executive
departments of the government, charged, respectively, with
the duty of enacting and executing the laws, that it was passed
by Congress. xxx (Astorga v. Villegas, G.R. No. L-23475,
April 30, 1974)
131. Power of the Supreme Court to invalidate acts of
non-compliance to internal rules of Congress
34 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
In several cases, both here and abroad, in varying
forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional
provision or the rights of private individuals. In Osmea v.
Pendatun, it was held: At any rate, courts have declared that
the rules adopted by deliberative bodies are subject to
revocation, modification or waiver at the pleasure of the body
adopting them. And it has been said that Parliamentary rules
are merely procedural, and with their observance, the courts
have no concern. They may be waived or disregarded by the
legislative body. Consequently, mere failure to conform to
parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members
have agreed to a particular measure. (Arroyo v. De Venecia,
G.R. No. 127255. August 14, 1997)
132. Rider
A Rider is a provision or enactment inserted in the
general appropriations bill which does not relate to some
particular appropriations therein.
Nota Bene: The constitutional provision prohibits
the passage of two classes of bills:
1. A bill containing riders (Section 25.2, Article VI)
2. A bill which embodies different subjects.
133. Germaneness test
The constitutional requirement that the subject of an
act shall be expressed in its title should be reasonably
construed so as not to interfere unduly with the enactment of
necessary legislation. It should be given a practical rather
than technical construction. It should be a sufficient
compliance with such requirement if the title expresses the
general subject and all the provisions of the statute are
germane to that general subject. (Sumulong v. COMELEC,
G.R. No. L-48609, October 10, 1941)
134. Veto of a provision v. veto of an item
Veto of a provision is the disapproval of the entire
bill passed by the Congress wherein the President has an
obligation to return the bill to the house where it originated
along with his objectives. On the contrary, veto of an item
(line-item veto or partial veto) under Section 27 (2), Article
VI provides that, the President shall have the power to veto
any particular item or items in an appropriation, revenue, or
tariff bill, but the veto shall not affect the item or items to
which he does not object.
135. What is an inappropriate provision?
A provision that is constitutionally inappropriate for
an appropriation bill may be singled out for veto even if it is
not an appropriation or revenue item.
Article VI, Section 25 (2) of the 1987 Constitution
provides:
"Sec. 25 (2) No provision or enactment shall be
embraced in the general appropriations bill unless it relates
specifically to some particular appropriation therein. Any
such provision or enactment shall be limited in its operation
to the appropriation to which it relates." ((Gonzales v.
Macaraig, G.R. No. 87636, November 19, 1990)
136. Give and briefly explain at least 5 legal bases for
the unconstitutionality of the pork barrel system
The Congressional Pork Barrel System is unconstitutional
because it violates the following principles:
a. Separation of Powers
As a rule, the budgeting power lies in Congress. It regulates
the release of funds (power of the purse). The executive, on
the other hand, implements the laws – this includes the GAA
to which the PDAF is a part of. Only the executive may
implement the law but under the pork barrel system, what’s
happening was that, after the GAA, itself a law, was enacted,
the legislators themselves dictate as to which projects their
PDAF funds should be allocated to – a clear act of
implementing the law they enacted – a violation of the
principle of separation of powers. (Note in the older case of
PHILCONSA vs Enriquez, it was ruled that pork barrel, then
called as CDF or the Countrywide Development Fund, was
constitutional insofar as the legislators only recommend
where their pork barrel funds go).
This is also highlighted by the fact that in realigning the PDAF,
the executive will still have to get the concurrence of the
legislator concerned.
b. Non-delegability of Legislative Power
As a rule, the Constitution vests legislative power in Congress
alone. (The Constitution does grant the people legislative
power but only insofar as the processes of referendum and
initiative are concerned). That being, legislative power cannot
be delegated by Congress for it cannot delegate further that
which was delegated to it by the Constitution.
Exceptions to the rule are:
(i) delegated legislative power to local government units but
this shall involve purely local matters;
(ii) authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy
in times of war or other national emergency, or fix within
specified limits, and subject to such limitations and
35 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
restrictions as Congress may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development
program of the Government.
In this case, the PDAF articles which allow the individual
legislator to identify the projects to which his PDAF money
should go to is a violation of the rule on non-delegability of
legislative power. The power to appropriate funds is solely
lodged in Congress (in the two houses comprising it)
collectively and not lodged in the individual members.
Further, nowhere in the exceptions does it state that the
Congress can delegate the power to the individual member of
Congress.
c. Principle of Checks and Balances
One feature in the principle of checks and balances is the
power of the president to veto items in the GAA which he may
deem to be inappropriate. But this power is already being
undermined because of the fact that once the GAA is
approved, the legislator can now identify the project to which
he will appropriate his PDAF. Under such system, how can the
president veto the appropriation made by the legislator if the
appropriation is made after the approval of the GAA – again,
“Congress cannot choose a mode of budgeting which
effectively renders the constitutionally-given power of the
President useless.”
d. Local Autonomy
As a rule, the local governments have the power to manage
their local affairs. Through their Local Development Councils
(LDCs), the LGUs can develop their own programs and
policies concerning their localities. But with the PDAF,
particularly on the part of the members of the house of
representatives, what’s happening is that a congressman can
either bypass or duplicate a project by the LDC and later on
claim it as his own. This is an instance where the national
government (note, a congressman is a national officer)
meddles with the affairs of the local government – and this is
contrary to the State policy embodied in the Constitution on
local autonomy. It’s good if that’s all that is happening under
the pork barrel system but worse, the PDAF becomes more of
a personal fund on the part of legislators. (Belgica v.
Executive Secretary, G.R. No. 208566, November 19,
2013)
137. May courts of law review a budget passed by
Congress to determine if such budget is reasonable or
sufficient? Why?
*No, it is a political question.
138. How may Congress limit the power of the
President to appoint?
It is readily apparent that under the provisions of the
1987 Constitution (Sec. 16, Art. VI) there are four (4) groups
of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time,
are:
 First, the heads of the executive departments,
ambassadors, other public ministers and consuls, officers of
the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in
this Constitution; 2
Second, all other officers of the Government whose
appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized
by law to appoint;
the choice of the President to only one candidate. Once the
power of appointment is conferred on the President, such
conferment necessarily comes from the discretion to appoint.
140. Can Congress make a law effective immediately upon
approval, even before or without previous publication?
Why?
No. In the case of Tanada v. Tuvera (146 SCRA
446), the Court ruled that, laws passed shall comply with
Article 2 of the New Civil Code, stating:

Fourth, officers lower in rank 4 whose appointments
the Congress may by law vest in the President alone.
The first group of officers is clearly appointed with
the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination
and, if the nomination is confirmed by the Commission on
Appointments, the President appoints.
Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless
it is otherwise provided. This Code shall take effect one year
after publication.
Thus, if the law provides that it shall take effect
immediately, it means that it shall take effect immediately after
publication with the fifteen-day period being dispensed with.

With particular reference to the word "also," implies

that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the
President shall appoint the officers mentioned in said second
sentence in the same manner as he appoints officers
mentioned in the first sentence, that is, by nomination and
with the consent (confirmation) of the Commission on
Appointments.

In the 1987 Constitution, however, as already

pointed out, the clear and expressed intent of its framers was
to exclude presidential appointments from confirmation by
the Commission on Appointments, except appointments to
offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the
third sentence of Sec. 16, Article VII the word "alone" after the
word "President" in providing that Congress may by law vest
the appointment of lower-ranked officers in the President
alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already
vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the
same Sec. 16, Article VII. (Sarmiento III v. Mison, G.R. No.
79974, December 17, 1987)

139. In prescribing qualifications for Presidential

appointees, what is the limit to the power of Congress?

The power to appoint by the President is in essence,

discretionary. The appointing power has the right of choice,
which may exercise freely according to his judgment; deciding
for himself who is best qualified among those who have the
necessary qualifications and eligibility. It is a prerogative of
the appointing power.

When Congress clothes the President with the power

to appoint an officer, Congress cannot at the same time limit
36 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
THE EXECUTIVE BRANCH
141. Executive power
Article VII, SECTION 1. The executive power shall be vested in
the President of the Philippines.
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
The Executive function is essentially the duty to implement
the laws within the standards imposed by the legislature.
Under the Constitution, this power is exercised by the
President. Thus, when the cabinet and other branches of the
Executive department implement the law, they are acting
under the control of the President.
As stated above, the Constitution provides that "[t]he
executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define
what is meant by executive power" although in the same
article it touches on the exercise of certain powers by the
President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the
laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with
the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to
Congress, and the power to address Congress [Art. VII, Sec.
14-23]. (Marcos vs. Manglapus)
142. Unitary Executive
It holds that the President possesses the power to control the
entire executive branch.
143. Presidential immunity
Settled is the doctrine that the President, during his tenure of
office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is
important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean
that the President is not accountable to anyone. Like any
other official, he remains accountable to the people but he
may be removed from office only in the mode provided by law
and that is by impeachment. (David vs. Macapagal – Arroyo)
37 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
144. Presidential privileges
It is the power of the President to withhold information from
Congress, Judiciary and ultimately the public.
145. Nepotism rule
SECTION 13. The spouse and relatives by
consanguinity or affinity within 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, including
government-owned or controlled corporations and their
subsidiaries.
146. Power of control
Each head of a department is, and must be, the President’s
alter ego in the matters of that department, where the
President is required by law to exercise authority. The
President has the constitutional power of control and
direction over such department heads and cabinet
secretaries.
147. What is the extent of the President’s power of
control?
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
With respect to local government, the President exercises
general supervision.
148. Power of control v. Power of supervision
On many occasions in the past, this court has had the
opportunity to distinguish the power of supervision from the
power of control. In Taule vs. Santos, we held that the Chief
Executive wielded no more authority than that of checking
whether a local government or the officers thereof perform
their duties as provided by statutory enactments. He cannot
interfere with local governments provided that the same or
its officers act within the scope of their authority. Supervisory
power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any
restraining authority over such body. Officers in control lay
down the rules in the doing of an act. If they are not followed,
it is discretionary on his part to order the act undone or re-
done by his subordinate or he may even decide to do it
himself. Supervision does not cover such
authority. Supervising officers merely sees to it that the rules
are followed, but he himself does not lay down such rules, nor
does he have the discretion to modify or replace them. If the
rules are not observed, he may order the work done or re-
done to conform to the prescribed rules. He cannot prescribe
his own manner for the doing of the act. (Bito-on vs.
Fernandez)
"Control" has been defined as "the power of an officer to alter
or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to substitute
the judgment of the former for test of the
latter." "Supervision" on the other hand means "overseeing or
the power or authority of an officer to see that subordinate
officers perform their duties. (Ganzon vs. CA)
149. Doctrine of qualified political agency
Under the qualified agency doctrine, the different executive
departments are mere adjuncts of the president. The
secretaries are the alter ego of the President, men of his
bosom confidence whom he designated to assist him in his
otherwise physically impossible multifarious functions, the
extension of the President in the particular field in which they
act. Their acts are presumptively acts of the “President, until
countermanded or reprobated by him. The President can
substitute his will over those of the secretaries, and they
cannot complain. Furthermore, they hold their office subject
to the discretion of the President, who can replace them
anytime once he loses his confidence in them.
150. Legal bases of the power of the president to
reorganize the Executive branch
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
151. May the President reorganize the entire national
government?
No. The power of the President to reorganize is limited only to
the Executive department and not the local government.
152. Power of appointment
SECTION 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
38 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
heads of departments, agencies, commissions, or
boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until after
disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
The power of appointment is, according to the SC in
Concepcion vs. Paredes, the most eminently executive power,
because it is through his appointees that the President can
execute laws.
153. In whom may Congress vest the power to appoint
lower ranked officers?
The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or
boards.
154. Is the President’s power to appoint subject to
legislative limitations?
Power to appoint is executive in nature. While Congress (and
the constitution in certain cases) may prescribe qualifications
for particular offices, the determination of who among those
who are qualified will be appointed is the President’s
prerogative.
May Congress pass a law that puts a government office in
the Executive Branch outside the control power of the
President? Why?
No. It will violate the power of the President to exercise his
power of control over departments, agencies,
instrumentalities within the executive department.
155. Ad interim appointment v. Acting appointment
While an ad interim appointment is permanent and
irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing
power. A temporary or acting appointee does not enjoy any
security of tenure, no matter how briefly. (Matibag vs.
Benipayo)
Ad interim appointment takes effect immediately. It is valid if
confirmed by the CA or until the next adjournment of the
Congress. Acting appointment is temporary in nature. It is a
step-gap measure intended to fill an office for a limited time
until appointment of a permanent occupant to the office.
156. May an ad interim appointee disapproved by the
Commission on Appointments be extended a new
appointment?
No. There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments can no
longer be extended a new appointment. The disapproval is a
final decision of the Commission on Appointments in the
exercise of its checking power on the appointing authority of
the President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments 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 the appointing
power. In this instance, the President can no longer renew the
appointment not because of the constitutional prohibition on
reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the
appointment. (Matibag vs. Benipayo)
157. What is the difference between a disapproved
and a by-passed ad interim appointment?
A by-passed appointment is one that has not been finally
acted upon on the merits by the Commission on
Appointments 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 as required by the
Constitution. Absent such decision, the President is free to
renew the ad interim appointment of a by-passed appointee.
This is recognized in Section 17 of the Rules of the
Commission on Appointments, which provides as follows:
Section 17. Unacted Nominations or Appointments Returned to
the President. Nominations or appointments submitted by the
President of the Philippines which are not finally acted upon
at the close of the session of Congress shall be returned to the
President and, unless new nominations or appointments are
made, shall not again be considered by the Commission.
(Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a
by-passed appointment can be considered again if the
President renews the appointment.
While an ad interim appointee disapproved by the
Commission on Appointments can no longer be extended a
new appointment. The disapproval is a final decision of the
Commission on Appointments. (Matibag vs. Banipayo)
158. Midnight appointments
SECTION 15. Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make appointments,
except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or
endanger public safety.
39 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Now, it appears that Section 15, Article VII is directed against
two types of appointments: (1) those made for buying votes
and (2) those made for partisan considerations. The first
refers to those appointments made within the two months
preceding a Presidential election and are similar to those
which are declared election offenses in the Omnibus Election
Code. The second type of appointments prohibited by Section
15, Article VII consists of the so-called "midnight"
appointments.
159. Power of removal
The President derives his implied power of removal from
other powers expressly vested in him.
o It is implied from his power to appoint.
o Being executive in nature, it is implied from
the constitutional provision vesting the
executive power in the President.
o It may be implied from his function to take
care that laws be properly executed; for
without it, his orders for law enforcement
might not be effectively carried out.
o The power may be implied from the
President’s control over the administrative
departments, bureaus, and offices of the
government. Without the power to remove,
it would not be always possible for the
President to exercise his power of control.
(Sinco, Philippine Political Law, 1954 ed., p.
275)
160. Limitations on the power of removal
a. It is restricted by the constitution and law such that
those who can be removed only by impeachment
cannot be removed by the President;
b. Officers governed by civil service law, rules and
regulation can only be removed for just cause.
The Constitution leaves it to the Congress to provide for the
cause of removal, and it is suggested that the President's
pleasure is itself a cause. The phrase "for cause" in connection
with the removals of public officers has acquired a well-
defined concept. "It means for reasons which the law and
sound public policy recognized as sufficient warrant for
removal, that is, legal cause, and not merely causes which the
appointing power in the exercise of discretion may deem
sufficient. It is implied that officers may not be removed at the
mere will of those vested with the power of removal, or
without any cause. Moreover, the cause must relate to and
affect the administration of the office, and must be restricted
to something of a substantial nature directly affecting the
rights and interests of the public. (Delos Santos vs. Mallare)
161. Powers of the President as Command-in-Chief
SECTION 18. The President shall be the Commander-in-Chief
of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and
public safety requires it.
Article III, SECTION 13. All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
As commander-in-chief of all armed forces of the Philippines,
the President has the following powers:
a. CALLING OUT POWER - He may call out such armed
forces to prevent or suppress lawless violence,
invasion or rebellion.
b. He may suspend the privilege of the writ of habeas
corpus, or
c. He may proclaim martial law over the entire
Philippines or any part thereof.
Subject to:
ARTICLE VIII, Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
162. What is the extent of the power of the President
as commander-in-chief of the Armed Forces of the
Philippines?
Under the calling-out power, the President may summon the
armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action.
But every act that goes beyond the President’s calling-out
power is considered illegal or ultra vires. (David vs.
Macapagal- Arroyo)
163. Does the President have the power to restrict the
speech of members of the Armed Forces? Why?
40 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Yes. The commander-in-chief provision in the Constitution is
denominated as Section 18, Article VII, which begins with the
simple declaration that [t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x x
x Outside explicit constitutional limitations, such as those
found in Section 5, Article XVI, the commander-in-chief clause
vests on the President, as commander-in-chief, absolute
authority over the persons and actions of the members of the
armed forces. Such authority includes the ability of the
President to restrict the travel, movement and speech of
military officers, activities which may otherwise be
sanctioned under civilian law.
As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will
be accorded deference, with minimal regard if at all to the
reason for such restraint. It is integral to military discipline
that the soldiers speech be with the consent and approval of
the military commander.
The necessity of upholding the ability to restrain speech
becomes even more imperative if the soldier desires to speak
freely on political matters. The Constitution requires that
[t]he armed forces shall be insulated from partisan politics,
and that [n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote.
(Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006)
164. Does the President have the power to restrict the
mobility of members of the Armed Forces? Why?
Yes. The principle that mobility of travel is another necessary
restriction on members of the military. A soldier cannot leave
his/her post without the consent of the commanding officer.
The reasons are self-evident. The commanding officer has to
be aware at all times of the location of the troops under
command, so as to be able to appropriately respond to any
exigencies. For the same reason, commanding officers have to
be able to restrict the movement or travel of their soldiers, if
in their judgment, their presence at place of call of duty is
necessary. (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006)
165. Why does the President have the power to
prevent a member of the Armed Forces from testifying
before a legislative inquiry?
The President as Commander‐in‐Chief can prevent the Army
General from appearing in a legislative investigation and, if
disobeyed, can subject him to court martial. (Gudani v. Senga,
G.R. No. 170165, Aug. 15, 2006)
166. Veto power
ARTICLEVI, SECTION 27. (1) Every bill passed by the
Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise,
he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at
large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law. In all such
cases, the votes of each House shall be determined by yeas or
nays, and the names of the Members voting for or against
shall be entered in its Journal.
The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as if he had
signed it.
(2) The President shall have the power to veto any particular
item or items in an appropriation, revenue, or tariff bill, but
the veto shall not affect the item or items to which he does not
object.
167. Distinguish the power of the President to veto a
bill and his power to veto a particular item in an
appropriation bill
Power of the President to veto a bill is the power of
the President to disapprove a bill passed by the Congress. It is
general however when it comes to appropriation, revenue, or
tariff bill, the veto shall not affect the item or items to which
he does not object.
168. The President’s Ordinance power
Pursuant to Executive Order No. 292 BOOK III Title I Chapter
2-Ordinance Power, the president shall have the power to
promulgate the following:
 Executive Orders
 Administrative Orders.
 Proclamations
 Memorandum Orders
 Memorandum Circulars
 General or Special Orders
169. Power of general supervision over local
governments
SECTION 4. The President of the Philippines shall exercise
general supervision over local governments.
170. Supervision defined
General supervision means the mere overseeing of a
subordinate to make sure that they do their duties. But this
does not include the power to overrule their acts if these are
within their discretion.
The grant of mere supervisory power over local governments
and autonomous regions is in line with the policy of the State
to promote the autonomy of local governments and
autonomous regions. There can be no real local autonomy
while the national Government controls the local government.
41 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
171. President’s power to investigate and discipline
local government officials
The president’s power over administrative disciplinary cases
against elective local officials is derived from his power of
general supervision over the Local Govenrment.
172. Who is the sole organ of the State in external
relations?
By reason of the President’s unique position as the head of the
State, he is the logical choice as the nation’s spokesman in
foreign relations.
173. Treaty-making power of the President
SECTION 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.
174. Explain the nature of the act of ratification of a
treaty.
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 to giving or withholding its
consent, or concurrence, to the ratification. (Bayan vs.
Executive Secretary Zamora)
175. What is the limitation to this power?
SECTION 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.
176. Power of the President to declare a national
emergency vs. Exercise of emergency powers
A distinction must be drawn between the President’s
authority to declare a state of national emergency and to
exercise emergency powers. To the first, as elucidated by the
Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of
war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment
thereof.
It may be pointed out that the second paragraph of the above
provision refers not only to war but also to other national
emergency. If the intention of the Framers of our
Constitution was to withhold from the President the authority
to declare a state of national emergency pursuant to Section
18, Article VII (calling-out power) and grant it to Congress
(like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President
before he can declare a Òstate of national emergency. The
logical conclusion then is that President Arroyo could validly
declare the existence of a state of national emergency even in
the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected
with public interest, is a different matter. This requires a
delegation from Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed
together and considered in the light of each
other. Considering that Section 17 of Article XII and Section
23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers. (David vs.
Macapagal- Arroyo)
177. What are the powers of the President which may
not be delegated to or exercised by an agent or alter ego
of the President?
 Commander-in-chief power
 Power of appointment and removal
 Power to grant pardons and reprieves
 The sole authority to receive ambassadors and other
public officers
 Power to negotiate treaty
178. May the President’s borrowing power be
exercised by his or her alter ego, the Secretary of
Finance? Why?
Yes. The alter ego may exercise the borrowing power. The
secretary of finance or any designated alter ego is bound to
secure the president prior consent to or subsequent to his act.
179. Is the exercise of judicial review meant to
supplant the Executive?
42 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
No. Judicial review is the power of the Courts to test the
validity of the executive acts in the light of their conformity
with the Constitution.
It is not an assertion of seniority by the courts over other
departments but merely an expression of the supremacy of
the constitution. The duty remains to assure that the
supremacy of the constitution is upheld.
180. What is the extent of the President’s power to
reorganize executive departments, bureaus and offices?
The power of the President to reorganize executive
departments, bureaus and offices is under his continuing
delegated legislative authority to reorganize his own office
pursuant to EO 292.
Generally, it is limited to transferring either an office or a
function from office of the president to another agency and
the other way around.
Only Section 31 (1) gives the President a virtual freehand in
dealing with the internal structure of the office of the
president by allowing him to take actions as extreme as
abolition, consolidation, or merger of units.
181. Residual powers
It cannot be denied that the President, upon whom executive
power is vested has unstated powers which are implied from
the grant of executive power and which are necessary for her
to comply with her duties under the constitution. The powers
of the president are not limited to what are the expressly
enumerated in the article on the executive Department and in
scattered provisions of the Constitution. (Marcos vs
Manglapus)
183. Are the powers of the President limited only to the
specific powers enumerated in the Constitution?
Why?
No. In the case of Marcos vs. Manglapus, the SC held:
The 1987 Constitution, however, brought back the
presidential system of government and restored the
separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that
"executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is
only one of the powers of the President. It also grants the
President other powers that do not involve the execution of
any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although
the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be
said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more
than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent
in the government that is neither legislative nor judicial has to
be executive.
Indeed, the Executive is given much leeway in ensuring
that our laws are faithfully executed. As stated above, the
powers of the President are not limited to those specific
powers under the Constitution. One of the recognized powers
of the President granted pursuant to this constitutionally-
mandated duty is the power to create ad hoc committees. This
flows from the obvious need to ascertain facts and determine
if laws have been faithfully executed. Thus, in Department of
Health v. Camposano, the authority of the President to issue
Administrative Order No. 298, creating an investigative
committee to look into the administrative charges filed
against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. (Biraogo vs.
The Philippine Truth Commission, G.R. No. 192935, December 7,
2010, Mendoza, J.)
Another basis. To the President, the problem is one of
balancing the general welfare and the common good against
the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also
his duty to do anything not forbidden by the Constitution or
the laws that the needs of the nation demand. It is a power
borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in
the President].
More particularly, this case calls for the exercise of the
President's powers as protector of the peace. Rossiter The
American Presidency].The power of the President to keep the
peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State
43 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in
times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of
law, in fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making
the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President's
exercising as Commander-in- Chief powers short of the calling
of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security. (Marcos vs.
Manglapus, G.R. No. 88211, September 15, 1989, Cortes, J.)
184. Please explain the power of the president to “keep
the peace”?
The power of the President to “keep the peace” is not
limited merely to exercising the commander-in-chief powers
in times of emergency or to leading the State against external
and internal threats to its existence.
The President is not only clothed with extraordinary
powers in times of emergency, but also tasked with attending
to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign
foe appears on the horizon.
185. Presidential immunity from suit
The President is immune from suit. In the case of
Forbes v Chuoco Tiaco, the Supreme Court laid down the basis
for his immunity like public policy, public security, and
importance of Presidency.
186. Scope of presidential immunity from suit
It is settled in jurisprudence that the President
enjoys immunity from suit during his or her tenure of office or
actual incumbency. (David v. Arroyo, 2006)
The Presidential privilege of immunity cannot be
invoked by a non-sitting President even for acts committed
during his or her tenure. (Estrada v. Desierto, 2001)
Only the President can invoke his immunity. It
cannot be invoked by another. (Beltran v. Makasiar)
187. Executive Privilege
Executive privilege is not a personal privilege, but
one that adheres to the Office of the President. It exists to
protect public interest, not to benefit a particular public
official. Its purpose, among others, is to assure that the nation
will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the
President and his/her advisers in the process of shaping or
forming policies and arriving at decisions in the exercise of
the functions of the Presidency under the Constitution. The
confidentiality of the President’s conversations and
correspondence is not unique. It is akin to the confidentiality
of judicial deliberations. It possesses the same value as the
right to privacy of all citizens and more, because it is dictated
by public interest and the constitutionally ordained Accountability of Public Officers et al., G.R. No. 180643, March
separation of governmental powers. (Neri vs. Senate 25, 2008, Leonardo-Castro, J.)
Committee on Public Accountability and Investigations et al.,
G.R. No. 180643, September 4, 2008, Leonardo-De Castro, J.) 192. Are communications within the executive privilege
absolutely protected by the Constitution? Explain.
188. Varieties of executive privilege
No. United States v. Nixon held that a claim of
Two kinds of Executive Privilege: executive privilege is subject to balancing against other
interest. In other words, confidentiality in executive privilege
a. Presidential Communication Privilege is not absolutely protected by the Constitution. The U.S. Court
It pertains to communications, documents, or other held:
materials that reflect Presidential decision-making and
deliberations; and that the President believes should remain
“[N]either the doctrine of separation of powers, nor
confidential.
the need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified
b. Deliberative Process Privilege
Presidential privilege of immunity from judicial process
It involves advisory opinions, recommendations, and
under all circumstances.” (Neri vs. Senate Committee on
deliberations comprising part of a process by which
Accountability of Public Officers et al., G.R. No. 180643, March
governmental decisions and policies are formulated.
25, 2008, Leonardo-Castro, J.)
189. Presidential communications privilege
193. What must be shown to overcome this privilege?
>It applies to decision-making of the President; while
The jurisprudential test laid down by this Court in
deliberative process privilege applies to decision-making
past decisions on executive privilege is that the presumption
process of executive officials.
of privilege can only be overturned by a showing of
compelling need for disclosure of the information covered
>It applies to documents in their entirety, and covers
by executive privilege. (Neri vs. Senate Committee on Public
final and post-decisional materials as well as pre-deliberative
Accountability and Investigations et al., G.R. No. 180643,
ones.
September 4, 2008, Leonardo-De Castro, J.)
>Executive has a right to withhold documents that
194. Is executive privilege a bar to the possible disclosure
might reveal:
of crime or wrongdoing?
a. military or state secrets respecting military,
diplomatic, and security matters.
No. The Executive cannot, any more that the other
b. identity of government informers in some
branches of government, invoke a general confidentiality
circumstances
privilege to shield its officials and employees from
c. information related to pending investigation
investigations by the proper governmental institutions into
d. foreign relations
possible criminal wrongdoing.
190. Doctrine of “operational proximity”
195. How should the claim of executive privilege be
invoked?
The privilege is meant to encompass only those
functions that form the core of Presidential authority,
Jurisprudence teaches that for the claim to be
involving what Court characterized as “quintessential and
properly invoked, there must be a formal claim of privilege,
non-delegable Presidential power.”
lodged by the head of the department which has control over
the matter." A formal and proper claim of executive privilege
191. What are the elements of the so-called Presidential
requires a "precise and certain reason" for preserving their
Communications Privilege?
confidentiality.
The elements of the so-called presidential
communications privilege are as follows:
The Letter dated November 17, 2007 of Executive
(1.) The protected communication must relate to a Secretary Ermita satisfies the requirement. It serves as the
"quintessential and non-delegable presidential power." formal claim of privilege. There, he expressly states that "this
Office is constrained to invoke the settled doctrine of
(2.) The communication must be authored or executive privilege as refined in Senate v. Ermita, and has
"solicited and received" by a close advisor of the President or advised Secretary Neri accordingly." Obviously, he is
the President himself. The judicial test is that an advisor must referring to the Office of the President. That is more than
be in "operational proximity" with the President. enough compliance. In Senate v. Ermita, a less categorical
letter was even adjudged to be sufficient.
(3.) The presidential communications
privilege remains a qualified privilege that may be overcome
by a showing of adequate need, such that the information
sought "likely contains important evidence" and by the With regard to the existence of "precise and certain
unavailability of the information elsewhere by an appropriate reason," we find the grounds relied upon by Executive
investigating authority. (Neri vs. Senate Committee on Secretary Ermita specific enough so as not "to leave

44 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

respondent Committees in the dark on how the requested
information could be classified as privileged." The case
of Senate v. Ermita only requires that an allegation be made
"whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc." The
particular ground must only be specified. The enumeration is
not even intended to be comprehensive." The following
statement of grounds satisfies the requirement:
The context in which executive privilege is being
invoked is that the information sought to be
disclosed might impair our diplomatic as well as
economic relations with the People's Republic of
China. Given the confidential nature in which these
information were conveyed to the President, he
cannot provide the Committee any further details of
these conversations, without disclosing the very
thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, the
Congress must not require the executive to state the reasons
for the claim with such particularity as to compel disclosure
of the information which the privilege is meant to protect.
This is a matter of respect to a coordinate and co-equal
department. (Neri vs. Senate Committee on Accountability of
Public Officers et al., G.R. No. 180643, March 25, 2008,
Leonardo-Castro, J.)
196. What are required of the Congressional
committee conducting a legislative inquiry when inviting
a person to appear before it?
a. Inquiries must be in aid of legislation.
b. In accordance with its duly published rules of
procedure.
c. The right of person appearing in or affected by
such inquiries shall be respected.
The oversight function of Congress may be facilitated
by compulsory process only to the extent that it is performed
in pursuit of legislation.
The power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of
the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for
information. (Drilon v. Ermita, April 20, 2006)
197. Are executive officials exempt from the duty to
disclose information by the mere fact of being executive
officials? Why?
When Congress exercises its power of inquiry, the
only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt
by the mere fact that they are department heads. Only one
executive official may be exempted from this power the
President on whom executive power is vested, hence, beyond
the reach of Congress except through the power of
impeachment. It is based on her being the highest official of
the executive branch, and the due respect accorded to a co-
45 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
equal branch of government which is sanctioned by a long-
standing custom. (Drilon v. Ermita, April 20, 2006)
198. How may executive officials exempt themselves
from the exercise by Congress of its power of inquiry?
Why?
When Congress exercises its power of inquiry, the
only way for department heads to exempt themselves
therefrom is by a valid claim of privilege.(Drilon v. Ermita,
April 20, 2006)
The executive official must observe a formal and
proper claim of executive privilege which requires a precise
and contain reason for preserving their confidentiality.
199. Who has the power to invoke executive privilege?
Executive privilege can be invoked only by the
President. (However, the power extends even to the executive
officials and the only way for them to be exempted is through
a valid claim of executive privilege.); or by the executive
secretary by the authority of the President.
200. May the President require that all executive
officials to seek prior consent before attending a
legislative inquiry?
>No, because it will prostrate the duty of legislative
to make laws. Legislative inquiry is an inherent power of the
Legislative department.
>In Senate v. Ermita, the Court turned on the nature
of executive privilege, a presidential prerogative which is
encumbered by significant limitations. Insofar as E.O. 464
compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the
notion of executive control also comes into consideration.
However, the ability of the President to require a
military official to secure prior consent before appearing
before Congress pertains to a wholly different and
independent specie of presidential authority the commander-
in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the
President are not encumbered by the same degree of
restriction as that which may attach to executive privilege or
executive control.
During the deliberations in Senate, the Court was
very well aware of the pendency of this petition as well as the
issues raised herein. The decision in Senate was rendered
with the comfort that the nullification of portions of E.O. 464
would bear no impact on the present petition since
petitioners herein were not called to task for violating the
executive order. Moreover, the Court was then cognizant that
Senate and this case would ultimately hinge on disparate legal
issues. Relevantly, Senate purposely did not touch upon or
rule on the faculty of the President, under the aegis of the
commander-in-chief powers to require military officials from
securing prior consent before appearing before Congress. The
pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating
the issues raised in Senate. It is in this petition that those
factors come into play. (Gudani v. Quisumbing, et.al, 2006)

201. What should be given to officials summoned by
Congress on matters that might be covered by executive
privilege?
When an executive official being summoned by
Congress on a matter that, in his own judgment, might be
covered by executive privilege, he must be afforded
reasonable time to inform the president or the executive
secretary of the possible need for invoking the privilege.
(Senate v. Ermita, 2006)
202. What is the presumption with respect to
presidential communications?
Presidential Communication is presumed privileged.
The presumption is founded on the President’s generalized
interest in confidentiality. The privilege is said to be
necessary to guarantee the candor of presidential advisors
and to provide the President and those who assist him with
freedom to expose alternatives in the process of shaping
policies and making decisions and to do so in a way many
would be willing to express except privately. (Neri v. Senate,
supra.)
203. How should Congress overturn the presumption?
The Nixon Court held that to overcome the qualified
presumption, there must be "sufficient showing or
demonstration of specific need" for the withheld information
on the branch of government seeking its disclosure. Two
standards must be met to show the specific need: one is
evidentiary; the other is constitutional.
a. Evidentiary Standard of Need - "evidence is not
available with due diligence elsewhere" or that the evidence is
particularly and apparently useful.
b. Demonstrable Specific Need for
Disclosure to be Balanced with the Claim of
Privilege using the Function Impairment Test - The
claim of executive privilege must then be balanced with the
specific need for disclosure of the communications on the part
of the other branch of government. The "function impairment
test" was utilized in making the balance albeit it was not the
term used by the Court. By this test, the Court weighs how the
disclosure of the witheld information would impair the
President's ability to perform his constitutional duties more
than nondisclosure would impair the other branch's ability to
perform its constitutional functions. (cited in Neri v. Senate,
supra.)
204. What is the nature of the power of the President
to enter into executive agreements or to secure foreign
loans?
>The President may conduct a guarantee foreign
loan on behalf of the Republic of the Philippines with:
a. prior concurrence of the Monetary Board
b. subject to such limitations as may be provided by
law
>Diplomatic Relations – the President is the sole
organ in foreign relations.
46 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
205. Who are the officers covered by the doctrine of
“operational proximity?”
It must be stressed that the doctrine of "operational
proximity" was laid down in In re: Sealed Case precisely to
limit the scope of the presidential communications privilege.
The U.S. court was aware of the dangers that a limitless
extension of the privilege risks and, therefore, carefully
cabined its reach by explicitly confining it to White House
staff, and not to staffs of the agencies, and then only to White
House staff that has "operational proximity" to direct
presidential decision-making, thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the privilege,
could pose a significant risk of expanding to a large swath of
the executive branch a privilege that is bottomed on a
recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege
should be construed as narrowly as is consistent with
ensuring that the confidentiality of the President’s decision-
making process is adequately protected. Not every person
who plays a role in the development of presidential
advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White
House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited
and received by those members of an immediate White House
advisor’s staff who have broad and significant responsibility
for investigation and formulating the advice to be given the
President on the particular matter to which the
communications relate. Only communications at that level
are close enough to the President to be revelatory of his
deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational
proximity" to the President that matters in determining
whether "[t]he President’s confidentiality interests" is
implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a
large swath of the executive branch" (a fear apparently
entertained by respondents) is absent because the official
involved here is a member of the Cabinet, thus, properly
within the term "advisor" of the President; in fact, her alter
ego and a member of her official family. Nevertheless, in
circumstances in which the official involved is far too remote,
this Court also mentioned in the Decision the organizational
test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity
test used in the Decision is not considered conclusive in every
case. In determining which test to use, the main consideration
is to limit the availability of executive privilege only to
officials who stand proximate to the President, not only by
reason of their function, but also by reason of their positions
in the Executive’s organizational structure. Thus, respondent
Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational
proximity test is unfounded. (cited in Neri v. Senate, supra.)
206. Is the final text of an international agreement
privileged? Why?
No. The Supreme Court en banc promulgated last
July 16, 2008 its ruling on the case of “Akbayan Citizens
Action Party et al vs. Thomas G. Aquino et al” (G.R. No.
170516). The Highest Tribunal dismissed the Petition for
mandamus and prohibition, which sought to compel
respondents Department of Trade Industry (DTI)
Undersecretary Thomas Aquino et al to furnish petitioners
the full text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) and the lists of the Philippine and
Japanese offers submitted during the negotiation process and
all pertinent attachments and annexes thereto.
In its Decision, the Court noted that the full text of
the JPEPA has been made accessible to the public since 11
September 2006, and thus the demand to be furnished with
copy of the said document has become moot and academic.
Notwithstanding this, however, the Court lengthily discussed
the substatives issues, insofar as they impinge on petitioners'
demand for access to the Philippine and Japanese offers in the
course of the negotiations.
207. Are the offers exchanged by the parties during
the negotiations toward an international agreement
privileged? Why?
The Court held: “Applying the principles adopted in
PMPF v. Manglapus, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential – since there
should be 'ample opportunity for discussion before [a treaty]
is approved' – the offers exchanged by the parties during the
negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japenese
representatives submitted their offers with the understanding
that 'historic confidentiality' would govern the same.
Disclosing these offers could impair the ability of the
Philippines to deal not only with Japan but with other foreign
governments in future negotiations.” (AKABAYAN v Aquino,
G.R. No. 170516, 2008)
208. What is the character of the diplomatic
negotiations privilege?
The privileged character of diplomatic negotiations has
been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v.
PCGG held that information on inter-government exchanges
prior to the conclusion of treaties and executive agreements
may be subject to reasonable safeguards for the sake of
national interest. Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v. Manglapus
wherein the Court discussed the reasons for the privilege in
more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking
information from the Presidents representatives on the state
of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that
secrecy of negotiations with foreign countries is not violative
of the constitutional provisions of freedom of speech or of the
press nor of the freedom of access to information. The
Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority
and expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its
confidential nature. (AKBAYAN v. Aquino, supra.
47 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
209. How can the presumption of the privileged
character of diplomatic negotiations be overcome?
It being established that diplomatic negotiations enjoy a
presumptive privilege against disclosure, even against the
demands of members of Congress for information, the Court
shall now determine whether petitioners have shown the
existence of a public interest sufficient to overcome the
privilege in this instance.
To clarify, there are at least two kinds of public interest that
must be taken into account. One is the presumed public
interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the
first place, and the other is the public interest in favor of
disclosure, the existence of which must be shown by the
party asking for information. (AKBAYAN v. Aquino,
supra.)
210. Distinguish pardon from amnesty
a.) As to nature of crime. Pardon is usually granted
for common crimes; amnesty for political crimes.
b.) As to whom it is granted. Pardon is granted to
individuals; amnesty, to a group, class, or community
generally.
c.) As to when it is granted. Pardon can only be
granted after conviction; amnesty may be granted even before
trial.
d.) As to effect. Pardon looks forward and relieves
the offender from the consequences of an offense which he
has been convicted, that is, it abolishes or forgives the
punishment; amnesty looks backward and abolishes and puts
into oblivion the offense itself, that is, it overlooks and
obliterates the offense with which the convict is charged that
the person released stands precisely as though he had
committed no offense.
e.) As to nature of the grant. Pardon is a private act
of the President which must be pleaded and proved by person
because the courts do not take judicial notice of it; amnesty is
a public act of which the courts take judicial notice.
211. What are the legal requirements for the President’s
exercise of the power of augmentation to be valid?
Sec. 25(5), Article VI, 1987 Constitution:
No law shall be passed authorizing any transfer of
appropriations; However, the President, the President of the
Senate, The Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional
Commissions may:
 a) by law, be authorized to augment any item in the
general appropriations law for their respective offices b) from
savings in other items of their respective appropriations.
The Judiciary
212. Judicial power under the 1987 Constitution
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Article 8,
Section 1(2), 1987 Constitution)
213. Judicial power as a duty
The duty of the Court to assure that the supremacy of
the Constitution is upheld.
The power is inherent in the Judicial Department, by
virtue of the doctrine of separation of powers.
That duty is part of the judicial power vested in the
Courts by an express grant under Sec. 1, Art. VIII of the
Constitution.
Judicial review is the power of the Court to test the
validity of executive and legislative acts in light of their
conformity with the Constitution.
This is not an assertion of superiority by the courts
over the other departments but merely an expression of the
Supremacy of the Constitution.
Functions of Judicial review: a) checking; b)
legitimating; c) symbolic. (Salonga v Cruz Pano, 134 SCRA
438)
214. Judicial restraint
The foregoing “pillars” of limitation of judicial
review, summarized in Ashwander v. TVA from different
decisions of US Supreme court, can be encapsulated into the
following categories:
a. There is absolute necessity of deciding a case.
b. Rules of Constitutional Law shall be formulated
only as required by the facts of the case.
c. Judgement may not be sustained on some other
ground.
d. There be actual injury sustained by the party by
reason of the operation of the Statute.
e. Parties are not in estoppel.
f. Courts uphold the presumption of
Constitutionality.
The principle of judicial restraint refers to a theory of
judicial interpretation that encourages the judges to limit
their exercise of power.
The common law principle of judicial restraint serves
the public interest by allowing the political processes to
operate without undue interference. (Sinaca v, Mula, 1999)
215. Fiscal Autonomy
The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by the
48 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
legislature below the amount appropriated for the previous
year and, after approval, shall be automatically and regularly
released. (Article 8, Section 3, 1987 Constitution)
Fiscal autonomy means freedom from outside
control. The Judiciary, the Constitutional Commissions, and
the Ombudsman must have independence and flexibility
needed in the discharge of their constitutional bodies. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the
funds appropriated for their operations is anathema to fiscal
autonomy and violate not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of
the independence and separation of powers upon which the
entire fabric of our constitutional system is based.
As envisioned in the Constitution, the fiscal
autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission on
Elections, and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs
require. (Bengzon vs. Drilon, 208 SCRA 133, 1992)
216. What can the Supreme Court specifically do because
of its fiscal autonomy?
Fiscal autonomy recognizes the power and authority of
the Court to levy, assess and collect fees, including legal fees.
(In Re: Petition for Recognition of the Exemption of the
Government Service Insurance System from Payment of Legal
Fees, A.M. No. 08-2-010, February 11, 2011)
It recognizes the power and authority to levy, assess
and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay
plans of the government and allocate and disburse such sums
as may be provided by law or prescribed by them in the
course of discharge of their functions. (Bengzon vs. Drilon,
208 SCRA 133, (1992)
217. Automatic release of appropriations defined
In Province of Batangas v. Romulo, this Court, in
construing the phrase "automatic release" in Section 6, Article
X of the Constitution reading: Section 6. Local government
units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them,
held: Webster’s Third New International Dictionary defines
"automatic" as "involuntary either wholly or to a major extent
so that any activity of the will is largely negligible; of a reflex
nature; without volition; mechanical; like or suggestive of an
automaton." Further, the word "automatically" is defined as
"in an automatic manner: without thought or conscious
intention." Being "automatic," thus, connotes something
mechanical, spontaneous and perfunctory. As such the
LGUs are not required to perform any act to receive the
"just share" accruing to them from the national coffers. x x x”
By parity of construction, "automatic release" of
approved annual appropriations to petitioner, a constitutional
commission which is vested with fiscal autonomy, should thus
be construed to mean that no condition to fund releases to it
may be imposed. This conclusion is consistent with the above-
cited June 3, 1993 Resolution of this Court which effectively
prohibited the enforcement of a "no report, no release" policy
against the Judiciary which has also been granted fiscal
autonomy by the Constitution. (Civil Service Commission vs.
Department of Budget and Management, G.R. No. 158791, July
22, 2005, Carpio-Morales, J.)
218. What should be given to entities vested with
“fiscal autonomy” in terms of their appropriations?
The agencies which the Constitution has vested with
fiscal autonomy should thus be given priority in the release of
their approved appropriations over all other agencies not
similarly vested when there is a revenue shortfall. (CSC v
DBM, G.R. No. 158791)
219. Is a revenue shortfall a valid justification to withhold
the release of funds of these Constitutional bodies?
No. Article IX (A), Section 5 of the Constitution
provides, “The Commission shall enjoy fiscal autonomy. Their
approved appropriations shall be automatically and regularly
released.” Shortfall in revenues does not justify non-
compliance with this Constitutional mandate.
Asturias Sugar Central, Inc. v. Commissioner of
Customs teaches that "[a]n interpretation should, if possible,
be avoided under which a statute or provision being
construed is defeated, or as otherwise expressed, nullified,
destroyed, emasculated, repealed, explained away, or
rendered insignificant, meaningless, inoperative, or
nugatory."
If respondent’s theory were adopted, then the
constitutional mandate to automatically and regularly release
approved appropriations would be suspended every year, or
even every month that there is a shortfall in revenues,
thereby emasculating to a significant degree, if not rendering
insignificant altogether, such mandate. Furthermore, the
Constitution grants the enjoyment of fiscal autonomy only to
the Judiciary, the Constitutional Commissions of which
petitioner is one, and the Ombudsman. To hold that petitioner
may be subjected to withholding or reduction of funds in the
event of a revenue shortfall would, to that extent, place
petitioner and the other entities vested with fiscal autonomy
on equal footing with all others which are not granted the
same autonomy, thereby reducing to naught the distinction
established by the Constitution. The agencies which the
Constitution has vested with fiscal autonomy should thus be
given priority in the release of their approved appropriations
over all other agencies not similarly vested when there is a
revenue shortfall. (Civil Service Commission vs. Department of
Budget and Management, G.R. No. 158791, July 22, 2005,
Carpio-Morales, J.)
220. Administrative supervision of the Supreme Court
a.) Supervision of lower courts
The Supreme Court shall have administrative
supervision over all courts and the personnel thereof. (Article
8, Section 6, 1987 Constitution)
b.) Temporarily assign judges to other stations in
the public interest
The Supreme Court shall have the xxx power (to)
Assign temporarily judges of lower courts to other stations as
49 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
public interest may require. Such temporary assignment shall
not exceed six months without the consent of the judge
concerned. (Article 8, Section 5(3), 1987 Constitution)
c.) Order a change of venue or place of trial to
avoid miscarriage of justice (Article 8, Section 5(4), 1987
Constitution)
d.) Discipline of lower court judges
xxx. The Supreme Court en banc shall have the
power to discipline judges of lower courts, or order their
dismissal, by a vote of a majority of the members who actually
took part in the deliberations on the issues in the case and
voted thereon. (Article 8, Section 11, 1987 Constitution)
e.) Appointment of officials and employees of the
entire judiciary
The Supreme Court shall have the xxx power (to)
Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law. (Article 8, Section 5(6),
1987 Constitution)
221. Rule-making power of the Supreme Court
Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the integrated bar, and legal assistance to the under-
privileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy 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 disapproved by the Supreme Court.
(Article 8, Section 5(5), 1987 Constitution)
222. Why rule-making is now an exclusive power of the
Supreme Court?
Because under the 1987 Constitution, rule-making
power and the corollary power of amending the rules are now
lodged exclusively on the SC.
In In Re: Petition for Recognition of the Exemption of
the Government Service Insurance System from Payment of
Legal Fees, the Court ruled that the provision in the Charter of
the GSIS, i.e., Section 39 of Republic Act No. 8291, which
exempts it from "all taxes, assessments, fees, charges or duties
of all kinds," cannot operate to exempt it from the payment of
legal fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter or
supplement the rules of the Supreme Court concerning
pleading, practice and procedure, the 1987 Constitution
removed this power from Congress. Hence, the Supreme
Court now has the sole authority to promulgate rules
concerning pleading, practice and procedure in all courts.
The separation of powers among the three co-equal
branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice
and procedure within the sole province of this Court. The
other branches trespass upon this prerogative if they enact
laws or issue orders that effectively repeal, alter or modify
any of the procedural rules promulgated by this Court.
Viewed from this perspective, the claim of a legislative grant
of exemption from the payment of legal fees under Section 39
of RA 8291 necessarily fails.
Congress could not have carved out an exemption for
the GSIS from the payment of legal fees without transgressing
another equally important institutional safeguard of the
Court's independence − fiscal autonomy. Fiscal autonomy
recognizes the power and authority of the Court to levy,
assess and collect fees, including legal fees. Moreover, legal
fees under Rule 141 have two basic components, the Judiciary
Development Fund (JDF) and the Special Allowance for the
Judiciary Fund (SAJF). The laws which established the JDF and
the SAJF expressly declare the identical purpose of these
funds to "guarantee the independence of the Judiciary as
mandated by the Constitution and public policy." Legal fees
therefore do not only constitute a vital source of the Court's
financial resources but also comprise an essential element of
the Court's fiscal independence. Any exemption from the
payment of legal fees granted by Congress to government-
owned or controlled corporations and local government units
will necessarily reduce the JDF and the SAJF. Undoubtedly,
such situation is constitutionally infirm for it impairs the
Court's guaranteed fiscal autonomy and erodes its
independence. (GSIS vs. Heirs of Fernando Caballero, G.R. No.
158090, October 4, 2010, Peralta, J. citing In Re: Petition for
Recognition of the Exemption of the Government Service
Insurance System from Payment of Legal Fees)
223. Power of the Supreme Court to control the
execution of its decision as an essential aspect of
jurisdiction
The rule on the finality of judgment cannot divest the
Court of its jurisdiction to execute and enforce the same
judgment.
There is a difference between the jurisdiction of the
Court to execute its judgment and its jurisdiction to amend,
modify, or alter the same. The former continues even after the
judgment has become final for purposes of enforcement of
judgment the latter , however, terminates when the judgment
becomes final.
224. Decision-making process in the Supreme Court
>The Court exercises its judicial function and its
power of administrative supervision over all courts and their
personnel through the Court en banc or its divisions. It
administers its activities under the leadership of the chief
Justice who may for this purpose, constitute supervisory or
special committees headed by individual members of the
Court or committees of court officials and personnel.
>Eight members of shall constitute a quorum of the
Court. In the absence of the Chief Justice, the most senior
associate justice shall chair the session of the court.
>Article VIII, Section 4, of the 1987 Constitution
provides:
50 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(2) All cases involving the constitutionality of a
treaty, international or executive agreement, or law, which
shall be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be
heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other
regulations, shall be decided with the concurrence of a
majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be
decided or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the case and voted thereon, and in no case without
the concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en
banc: Provided, that no doctrine or principle of law laid down
by the court in a decision rendered en banc or in division may
be modified or reversed except by the court sitting en banc.
225. What vote is required for the Supreme Court to
modify a doctrine of law set down in a case
decided by the Supreme Court.
Modification or reversal of a doctrine or principle
laid down by the court en banc or in division is one of the en
banc cases as provided for in Article 8, Section 4(3) of the
Constitution which says, “xxx Provided, that no doctrine or
principle of law laid down by the court in a decision rendered
en banc or in division may be modified or reversed except by
the court sitting en banc”.
In en banc cases, the vote required is concurrence of
a majority of the members who (i.) actually took part in the
deliberations (i.e., the consultation) on the issues in the case,
and (ii.) voted thereon (Article 8, Section 4(2) and Section 11)
a.) The lowest possible votes needed to render a
decision is 5, since quorum of 15 is 8, and majority of 8 is 5.
This number may increase as the number of justices present
increases;
b.) One who abstained is deemed to have voted for
the purpose of computing the majority vote needed. For an
abstention is really a form of casting a vote with its own
repercussions on the outcome of the case;
c.) One who was present but kept silent during the
deliberations and did not vote is still included in the counting
for the purpose of determining the majority. For it may
happen that he has already made up his mind on how to
decide and influence the outcome of the case;
d.) But one who expressly inhibited or is disqualified
from taking part (for instance because of conflict of interest)
is not included;
e.) There must be a quorum before a valid decision
can be made. Without a quorum, there can be no valid
business to begin with;
 f.) In case the necessary majority cannot be
mustered, then there is no decision rendered:

f.1.) If the necessary majority cannot be had,

the case is again reheard. If upon rehearing, no
majority is still had, the following are the effects:

f.1.a.) If a case is on appeal, the judgment

appealed from is deemed affirmed except: (a.)
Criminal cases where the judgment is that of
conviction; the conviction is reversed and the
accused is acquitted; (b.) Cases where the lower
court declared a law, etc. unconstitutional; the
judgment is reversed, and the validity of the law is
deemed sustained, pursuant to the presumption of
constitutionality under Sec. 9 of the Judiciary Act of
1948. (If the lower court declared a law as not
unconstitutional, this judgment is deemed affirmed
pursuant to the general rule above.)

*Thus, if 12 are present, 5 voted the law

unconstitutional, 4 voted for its validity, and 3
abstained, there is no decision and so the law
remains valid.

f.1.b.) If the case is an original petition, then

the case is deemed dismissed.

51 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 FUNDAMENTAL POWERS OF THE STATE Amount of Exaction
Limited to the No amount No limit but as
Police Power cost of regulation, imposed but much as possible,
issuance of the rather the owner must be equal to
ASAS license or is paid the market the needs of
surveillance value of property government in
taken order to avoid a
226.) Police power defined deficit scenario for
the State
Police power is the power of the State to regulate Non-impairment of contracts
liberty and property for the promotion of the general welfare. Contracts may be Contracts may be Contracts may not
impaired impaired be impaired
Professor Freund describes the police power as the Transfer of Property Rights
power of promoting the public welfare by restraining and No transfer but Transfer is Taxes paid become
regulating the use of liberty and property. (Cruz, only restraint its effected in favor of part of public funds
Constitutional Law, 2007) exercise the State

Police power is the inherent power of the State

lodged in the legislative department to regulate liberty and 228.) Taxing and eminent domain powers as implements of
property for the promotion of the general welfare. police power

227.) Police power vs. power of eminent domain vs. power of The tax levied by the challenged statute is for a
taxation regulatory purpose, namely, to provide ways and means for
the rehabilitation and stabilization of sugar industry. Sugar
Police Power Power of Power of Taxation production is one of the great industries of the country
Eminent Domain imbued with public interest, and, hence, Congress was
Extent of Power empowered to find that the general welfare demanded that
Regulates liberty Affects only Affects only the sugar industry be stabilized. The law is thus primarily an
and property property rights property rights exercise of police power of the State and taxation was merely
Scope used to implement the State’s power. (Lutz vs. Araneta, 98 Phil
All persons, Only upon a All persons, 148 as cited in Cruz, Constitutional Law, 2007)
property, rights, particular property, and
and privileges property excises It is inherent in the power to tax that a state be free
Power exercised by whom to select the subjects of taxation, and it has been repeatedly
May be exercised May be exercised May be exercised hold that “inequities which result from singling out of one
only by the by the only by the particular class for taxation or exemption infringe no
government or its government or its government or its constitutional limitation. Taxation has been made to
political political political implement of the state’s police power. (Tio vs. Videogram
subdivisions subdivisions or subdivisions Regulatory Board, 151 SCRA 2008)
public service
companies or In the case of Small Landowners Association vs.
public utilities Secretary of Agrarian Reform, 175 SCRA 343, the SC upheld the
Compensation constitutionality of CARP and reasoned that, “The cases
before us present no knotty complication insofar as the
Intangible Full and fair Protection and
question of compensable taking is concerned. To the extent
altruistic feeling equivalent of the public
that the measures under challenge merely prescribe retention
that he has property improvements for
limits for landowners, there is an exercise of the police power
contributed to the expropriated. the taxes paid.
for the regulation of private property in accordance with the
public welfare. Hence, there is a Hence, no special
Constitution. But where, to carry out such regulation, it
No direct benefit direct benefit. or direct benefit is
becomes necessary to deprive such owners of whatever lands
is received; a received by the
they may own in excess of the maximum area allowed, there
healthy economic taxpayer; merely
is definitely a taking under the power of eminent domain for
standard of general benefit of
which payment of just compensation is imperative. The taking
society is protection
contemplated is not a mere limitation of the use of the land.
attained.
What is required is the surrender of the title to and the
Nature of the property
physical possession of the said excess and all beneficial rights
Noxious or Intended for Intended for public
accruing to the owner in favor of the farmer-beneficiary. This
intended for public use of use of purpose;
is definitely an exercise not of the police power but of the
noxious purpose; purpose; therefore,
power of eminent domain.
hence, destroyed therefore, wholesome
wholesome
229.) Who may exercise police power
Purpose
Promotion of the To take private To raise revenues General rule: Police power is lodged primarily in
general welfare property for to defray the the national legislature.
public purpose expenses of
government

52 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 Exceptions: By virtue of valid delegation of
legislative power, it may be exercised by the: (a.) President;
(b.) Administrative bodies; (c.) Lawmaking bodies in the
municipal levels including the barangay. Municipal
governments exercise this power under the general welfare
clause. (Gorospe, Constitutional Law)
230.) Limitations on police power
a.) May not be exercised arbitrarily to the prejudice
of the Bill of Rights.
b.) Subject at all times to the limitations and
requirements of the Constitution and may in proper cases be
annulled by the courts i.e. when there is grave abuse of
discretion.
231.) Requisites for valid exercise
Lawful subject. The first requisite simply means
that the subject of the measure is within the scope of the
police power, that is, that the activity or property sought to be
regulated affects the public welfare. The interests of the
public generally, as distinguished from those of a particular
class, require the exercise of the police power.
Lawful means. The end does not justify the means.
The lawful objective, in other words, must be pursued
through a lawful method; that is, both the end and the means
must be legitimate. The means employed are reasonably
necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.
The requisites for the valid exercise of police power
by the delegate are as follows: (a.) Express grant by law; (b.)
Must not be contrary to law; (c.) As a general rule, within
territorial limits of LGUs. As an exception, when exercised to
protect water supply.
Power of Eminent Domain
232.) Eminent domain defined
The power of eminent domain enables the State to
forcibly acquire private property, upon payment of just
compensation, for some intended public use.
Also called the power of expropriation, eminent
domain is described as “the highest and most exact idea of
property remaining in the government” that may be acquired
for some public purpose through a method “in the nature of a
compulsory sale to the State.” (Cruz, Constitutional Law,
2007)
233.) Eminent Domain vs. Police Power
See No. 227
234.) Eminent Domain vs. Power of Taxation
See No. 227
235.) Eminent Domain as an implement of Police Power
See No. 228
236.) Who may exercise power of eminent domain?
53 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The power of eminent domain is lodged primarily in
the national legislature, but its exercise may be validly
delegated to other governmental entities and, in fact, even to
private corporations, like the so-called quasi-public
corporations serving essential public needs or operating
public utilities. Under existing laws, the following may
exercise power of expropriation: (a.) The Congress; (b.) The
President of the Philippines; (c.) The various local legislative
bodies; (d.) Certain public corporations like Land Authority
and National Housing Authority; (e.) Quasi-public
corporations like the PNR, PLDT, and the MERALCO. (Cruz,
Constitutional Law, 2007)
237.) Constitutional limitations on eminent domain
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. (Section 1, Article 3,
1987 Constitution)
Private property shall not be taken for public use
without just compensation. (Article 3, Section 9, 1987
Constitution)
The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon
payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the
Government. (Section 18, Article 12, 1987 Constitution)
The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular
farmworkers who are landless, to own directly or collectively
the lands they till or, in the case of other farmworkers, to
receive a just share of the fruits thereof. To this end, the State
shall encourage and undertake the just distribution of all
agricultural lands, subject to such priorities and reasonable
retention limits as the Congress may prescribe, taking into
account ecological, developmental, or equity considerations,
and subject to the payment of just compensation. In
determining retention limits, the State shall respect the right
of small landowners. The State shall further provide
incentives for voluntary land-sharing. (Section 4, Article 13,
1987 Constitution)
The State shall, by law, and for the common good,
undertake, in cooperation with the private sector, a
continuing program of urban land reform and housing which
will make available at affordable cost, decent housing and
basic services to under-privileged and homeless citizens in
urban centers and resettlement areas. It shall also promote
adequate employment opportunities to such citizens. In the
implementation of such program the State shall respect the
rights of small property owners. (Section 9, Article 13, 1987
Constitution)
238.) Give at least four (4) common actions that constitute
taking
a.) It may include trespass without actual eviction of
the owner, material impairment of the value of the property
or prevention of the ordinary uses for which the property was
intended.
 b.) The imposition of an easement of a 3-meter strip
on the plaintiff’s property was considered taking. (Ayala de
Roxas vs. City of Manila, 9 Phil 215)
c.) A municipal ordinance prohibiting a building
which would impair the view of the plaza from the highway
was likewise considered taking. (People vs. Fajardo, 104 Phil
44)
d.) The exercise of power of eminent domain does
not always result in the taking or appropriation of title to the
expropriated property; it may only result in the imposition of
burden upon the owner of the condemned property, without
loss of title or possession. In this case, while it is true that the
plaintiff in only after a right of way easement, it nevertheless
perpetually deprives defendants of their proprietary rights as
manifested in the imposition by the plaintiff upon the
defendants that below said transmission lines, no plant higher
than three meters is allowed. Besides, the high-tension
current conveyed by the transmission lines poses continuing
danger to life and limb. (National Power Corporation vs.
Gutierrez, 193 SCRA 1)
e.) The Court first turns its attention to Section 5
which requires the five-meter setback of the fence to
provide for a parking area. The Court joins the CA in
finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering
that it would no longer be for the exclusive use of the
respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution,
a provision on eminent domain, provides that private
property shall not be taken for public use without just
compensation.
The petitioners cannot justify the setback by arguing
that the ownership of the property will continue to remain
with the respondents. It is a settled rule that neither the
acquisition of title nor the total destruction of value is
essential to taking. In fact, it is usually in cases where the title
remains with the private owner that inquiry should be made
to determine whether the impairment of a property is merely
regulated or amounts to a compensable taking. The Court is of
the view that the implementation of the setback requirement
would be tantamount to a taking of a total of 3,762.36 square
meters of the respondents’ private property for public use
without just compensation, in contravention to the
Constitution. (Fernando vs. St. Scholastica’s College, G.R. No.
161107, March 12, 2013, Mendoza, J.)
239.) Requisites for a valid exercise of eminent domain
a.) Genuine necessity. The foundation of the right to
exercise eminent domain is genuine necessity and that
necessity must be of public character. Government may not
capriciously or arbitrarily choose which private property
should be expropriated. (Lagcao vs. Labra, G.R. No. 155746,
October 13, 2004)
b.) Private property is involved. Private property
already devoted to public use cannot be expropriated by a
delegate of legislature acting under a general grant of
authority (City of Manila vs. Chinese Community, 40 Phil 349)
c.) There must be taking. See No. 238. Requisites
for valid taking: the expropriator must enter a private
property; entry must be for more than a momentary period;
54 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
entry must be under warrant or color of authority; property
must be devoted to public use or otherwise informally
appropriated or injuriously affected; and utilization of the
property must be in such a way as to oust the owner and
deprive him of beneficial enjoyment of the property.
d.) It must be for public use. As a requirement for
eminent domain, “public use” is the general concept of
meeting public need or public exigency. It is not confined to
actual use by the public in its traditional sense. The idea that
“public use” is strictly limited to clear cases of “use by the
public” has been abandoned. The term “public use” has now
been held to be synonymously with “public interest”, “public
benefit”, “public welfare”, and “public convenience”. (Reyes vs.
National Housing Authority, G.R. No. 147511, January 20, 2003)
The “public use” requirement for the valid exercise of
the power of eminent domain is a flexible and evolving
concept influenced by changing conditions. It is accurate to
state then that at present, whatever may be beneficially
employed for the general welfare satisfies the requirement of
public use. (Estate of Salud Jimenez vs. PEZA, G.R. No. 137282,
January 16, 2001) The meaning of “public use” has also been
broadened to cover uses which, while not directly available to
the public, redound to their direct advantage or benefit.
(Heirs of Juancho Ardona vs. Reyes, 125 SCRA 220)
e.) Payment of just compensation. The full and fair
equivalent of the property taken; it is the fair market value of
the property. It is settled that the market value of the
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 as a price to be given and
received therefor. This rule is however modified where only a
part of a certain property is expropriated. In such case, the
owner is not restricted to payment of the market value of the
portion actually taken. In addition to the market value of the
portion taken, he is also entitled to payment of consequential
damages, if any, to the remaining part of the property. At the
same time, from the total compensation must be deducted the
value of consequential benefits, if any, provided consequential
benefits shall not exceed consequential damages. (National
Power Corporation vs. Spouses Chiong, G.R. No. 152436, June
20, 2003)
f.) Observance of due process of law. The defendant
must be given an opportunity to be heard.
240.) For the taking to be considered for public use, is it
required that the public be able to use the property? Briefly
explain.
No. See No. 239, letter d.
241.) Meaning of necessity
See No. 239, letter a.
242.) Meaning of just compensation
See No. 239, letter e.
Just compensation has been defined as "the full and
fair equivalent of the property taken from its owner by the
expropriator. The measure is not the taker's gain, but the
owner’s loss. The word ‘just’ is used to qualify the meaning of
the word ‘compensation’ and to convey thereby the idea that
the amount to be tendered for the property to be taken shall
be real, substantial, full and ample." (National Power
Corporation (Napocor)vs. Zabala, G.R. No. 173520, January 30,
2013, Del Castillo, J.)
The concept of just compensation, however, does not
imply fairness to the property owner alone but also to the
public which bears the cost of expropriation. Where the
property is taken ahead of the filing of the condemnation
proceedings, the value thereof may be enchanced by the
public purpose for which it is taken; the entry by the plaintiff
upon the property may have depreciated its value thereby; or,
there may have been a natural increase in the value of
property from the time the complaint is filed, due to general
economic conditions. The owner of the private property
should be compensated only for what he actually losses; it is
not intended that his compensation shall be extend beyond
his loss or injury. And he losses is only the actual value of his
property at the time it is taken. This is the only way that
compensation to be paid can be truly just; i.e. just not only to
the individual whose property is taken, but to the public,
which pay for it. (Eusebio et al. vs. Luis et al., G.R. No. 162474,
October 13, 2009, Peralta, J.)
It cannot be denied from these cases that the
traditional medium for the payment of just compensation is
money and no other. And so, conformably, has just
compensation been paid in the past solely in that medium.
However, we do not deal here with the traditional excercise of
the power of eminent domain. This is not an ordinary
expropriation where only a specific property of relatively
limited area is sought to be taken by the State from its owner
for a specific and perhaps local purpose. What we deal with
here is a revolutionary kind of expropriation. (Association of
Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform, G.R. No. 78742, July 14, 1989, Cruz, J.)
243.) What is the meaning of due process in eminent domain
proceedings?
See No. 239, letter f.
In Belen vs. CA, the SC declared PDs 1670 and 1669
unconstitutional for violating the due process clause because
the decrees do not provide for any form of hearing or
procedure by which the petitioners can question the
propriety of the expropriation or the reasonableness of the
compensation to be paid for the property.
Expropriation proceedings consists of two stages:
(1.) condemnation of the property after it is determined that
its acquisition will be for a public purpose or public use; (2.)
the determination of just compensation to be paid for the
taking of property to be made by the court with the assistance
of not more than three commissioners. (City of Manila vs.
Serrano, 359 SCRA 231, June 20, 2001, Mendoza, J.)
244.) When should just compensation be paid
With respect to the compensation which the owner
of the condemned property is entitled to receive, it is likewise
settled that it is the market value which should be paid or
"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 as a price to be given and received
55 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
therefor."8 Further, just compensation means not only the
correct amount to be paid to the owner of the land but also
the payment of the land within a reasonable time from its
taking. Without prompt payment, compensation cannot be
considered "just" for then the property owner is made to
suffer the consequence of being immediately deprived of his
land while being made to wait for a decade or more before
actually receiving the amount necessary to cope with his
loss. Nevertheless, as noted in Ansaldo v. Tantuico, Jr., there
are instances where the expropriating agency takes over the
property prior to the expropriation suit, in which case just
compensation shall be determined as of the time of taking, not
as of the time of filing of the action of eminent domain.
Before its amendment in 1997, Rule 67, Section 4
provided: “Order of condemnation. When such a motion is
overruled or when any party fails to defend as required by
this rule, the court may enter an order of condemnation
declaring that the plaintiff has a lawful right to take the
property sought to be condemned, for the public use or
purpose described in the complaint upon the payment of just
compensation to be determined as of the date of the filing of
the complaint. . . .”
It is now provided that ― SEC. 4. Order of
expropriation. ― If the objections to and the defense against
the right of the plaintiff to expropriate the property are
overruled, or when no party appears to defend as required by
this Rule, the court may issue an order of expropriation
declaring that the plaintiff has a lawful right to take the
property sought to be expropriated, for the public use or
purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the taking of
the property or the filing of the complaint, whichever came
first.
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved thereby.
Such appeal, however, shall not prevent the court from
determining the just compensation to be paid. After the
rendition of such an order, the plaintiff shall not be permitted
to dismiss or discontinue the proceeding except on such
terms as the court deems just and equitable.
Thus, the value of the property must be determined
either as of the date of the taking of the property or the filing
of the complaint, "whichever came first." Even before the new
rule, however, it was already held in Commissioner of Public
Highways v. Burgos that the price of the land at the time of
taking, not its value after the passage of time, represents the
true value to be paid as just compensation. It was, therefore,
error for the Court of Appeals to rule that the just
compensation to be paid to respondent should be determined
as of the filing of the complaint in 1990, and not the time of its
taking by the NIA in 1981, because petitioner was allegedly
remiss in its obligation to pay respondent, and it was
respondent who filed the complaint. In the case of Burgos, it
was also the property owner who brought the action for
compensation against the government after 25 years since the
taking of his property for the construction of a road.
Indeed, the value of the land may be affected by
many factors. It may be enhanced on account of its taking for
public use, just as it may depreciate. As observed in Republic
v. Lara: Where property is taken ahead of the filing of the
condemnation proceedings, the value thereof may be
enhanced by the public purpose for which it is taken; the
entry by the plaintiff upon the property may have depreciated
its value thereby; or there may have been a natural increase
in the value of the property from the time it is taken to the
time the complaint is filed, due to general economic
conditions. The owner of private property should be
compensated only for what he actually loses; it is not
intended that his compensation shall extend beyond his loss
or injury. And what he loses is only the actual value of his
property at the time it is taken. This is the only way that
compensation to be paid can be truly just, i.e., "just" not only
to the individual whose property is taken, "but to the public,
which is to pay for it" . . . .
In this case, the proper valuation for the property in
question is P16,047.61 per hectare, the price level for 1982,
based on the appraisal report submitted by the commission
(composed of the provincial treasurer, assessor, and auditor
of South Cotabato) constituted by the trial court to make an
assessment of the expropriated land and fix the price thereof
on a per hectare basis. (Eslaban vs. Onorio, G.R. No. 146062,
Mendoza, J.)
The trial court is mandated to follow Section 5, Rule
67 of the 1997 Rules of Civil Procedure regarding the
appointment of not more than three competent and
disinterested commissioners for the ascertainment of just
compensation. The time as to when the just compensation
should be fixed, it is settled jurisprudence that where
property was taken without the benefit of expropriation
proceedings, it is the value of the property at the time of the
taking that is controlling. Hence, in this case, it should the
price of the property in 1980 not in 1994. (Eusebio et al. vs.
Luis et al., G.R. No. 162474, October 13, 2009, Peralta, J.)
245.) What is the effect of delay in payment
In some expropriation cases, the Court imposed an
interest of 12% per annum on the just compensation due the
landowner. It must be stressed, however, that in these cases,
the imposition of interest was in the nature of damages for
delay in payment which, in effect, makes the obligation on the
part of government one of forbearance. It follows that the
interest in the form of damages cannot be applied where
there was prompt and valid payment of just compensation.
Conversely, where there was delay in tendering a valid
payment of just compensation, imposition of interest is in
order. (Wycoco vs. Judge Caspillo, G.R. No. 146733, January 13,
2004)
The award of exemplary damages to the owners is
correct. In taking the owners’ property without the benefit of
expropriation proceedings and without payment of just
compensation, the City of Pasig clearly acted in utter
disregard of owners’ propriety rights. Such conduct cannot
be countenanced. The City of Pasig should definitely be liable
for damages to the owners. However, the compensation of
damages should be in the form of interest in 6% per annum
on the value of land at the time of the taking up to the full
payment not in the form of rentals. The award of P 200,000
exemplary damages and of attorney’s fees of 1% of the
amount due is correct for the acts of the city are wanton and
irresponsible which should be corrected and suppressed.
(Eusebio et al. vs. Luis et al., G.R. No. 162474, October 13, 2009,
Peralta, J.)
246.) Abandonment of intended use and right of repurchase
56 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The property owner’s right to repurchase the
property depends upon the character of the title acquired by
the expropriator, i.e., if land is expropriated for a particular
purpose with the condition that when that purpose is ended
or abandoned, the 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 International Airport
Authority vs. CA, G.R. No. 139495, November 27, 2000)
247.) When is the reckoning point for determining for
determining the value of the property for purposes of just
compensation? Is there any exception to the general rule?
Briefly explain.
See Nos. 244 to 245.
248.) Who has the ultimate authority to determine just
compensation
The payment of just compensation for private
property taken for public use is guaranteed no less by our
Constitution and is included in the Bill of Rights. As such, no
legislative enactments or executive issuances can prevent the
courts from determining whether the right of the property
owners to just compensation has been violated. It is a judicial
function that cannot "be usurped by any other branch or
official of the government." Thus, we have consistently ruled
that statutes and executive issuances fixing or providing for
the method of computing just compensation are not binding
on courts and, at best, are treated as mere guidelines in
ascertaining the amount thereof.
In National Power Corporation v. Bagui, where the same
petitioner also invoked the provisions of Section 3A of RA No.
6395, we held that: Moreover, Section 3A-(b) of R.A. No.
6395, as amended, is not binding on the Court. It has been
repeatedly emphasized that the determination of just
compensation in eminent domain cases is a judicial function
and that any valuation for just compensation laid down in the
statutes may serve only as a guiding principle or one of the
factors in determining just compensation but it may not
substitute the court’s own judgment as to what amount
should be awarded and how to arrive at such amount.
(National Power Corporation (Napocor)vs. Zabala, G.R. No.
173520, January 30, 2013, Del Castillo, J.)
Due Process
250. Due process defined
251. Relativity of due process
252. Constitutional and statutory due process
253. Protection guaranteed by the due process clause
254. Who are protected by the due process clause
255. Basic requirement for invoking the right to due
process:
There must be a deprivation of life, liberty or property
CASANA
256. Meaning of life
The right to life includes the right of an individual to
his body, in its completeness, and extends to the use of God-
given faculties which make life enjoyable. (Back v. Bell, 274
US 200)
Life as understood under the due process clause
connotes in the first place the integrity of the physical person.
The meaning is that it is not permissible for the government
to deprive the individual of any part of his body; and it is even
true if it is a punishment for a crime.
257. Meaning of liberty
Liberty includes the right of the citizens to be free to
use his faculties in all lawful ways; to live and work where he
will; to earn his livelihood by an lawful calling; to pursue any
avocations, and for that purpose. to enter into all contracts
which may be proper, necessary, and essential to his carrying
out these purposes to a successful conclusion. The chief
elements of the guaranty are the right to contract, the right to
choose one's employment, the right to labor, and the right of
locomotion.
In general, it may be said that Liberty means the
opportunity to do those things which are ordinarily done by
free men.
"Liberty" as understood in democracies, is not
license; it is "Liberty regulated by law." Implied in the term is
restraint by law for the good of the individual and for the
greater good of the peace and order of society and the general
well-being. (Rubi, et al. (Manguianes) v. The Provincial
Board of Mindoro, G.R. No. L-14078, March 7, 1919)
258. Meaning of property
Property means anything that come under the right
of ownership and be subject of a contract. It represents more
than the things that a person own; it includes the right to
secure, and to dispose of them. (Tonaco v. Thompson)
259. Aspects of due process
a) Procedural Due Process
Requirements:
1. There must be an impartial tribunal.
2. The Court must have jurisdiction.
3. There must be an opportunity to be heard.
4. The judgment must be rendered after trial and in
accordance with law.
b) Substantial Due Process
Requirements:
1. The means are reasonable for the accomplishment
of the purpose.
57 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
2. The law must be intended for the interest of the
public rather than for private interest.
260. Meaning of procedural due process
The essence of procedural due process is expressed
in the immortal cry of Themistocles:
“STRIKE, BUT HEAR ME FIRST”
Procedural Due Process serves as a restriction on
actions of judicial and quasi-judicial agencies of the
government.
The twin requirements of notice and hearing
constitute the essential elements of due process and neither
of these elements can be eliminated without running afoul of
the constitutional guaranty.
261. Meaning of substantive due process
Substantive Due Process serves as a restriction on
the government’s law and rule-making powers.
It requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty, or
property.
262. Requirements of procedural due process
1. There must be an impartial tribunal.
2. The Court must have jurisdiction.
3. There must be an opportunity to be heard.
4. The judgment must be rendered after trial and in
accordance with law.
263. Requirements of substantive due process
1. The means are reasonable for the accomplishment
of the purpose.
2. The law must be intended for the interest of the
public rather than for private interest.
a) Lawful Subject- It must be directed
to the legitimate government purpose.
b) Lawful Means- The means
employed must reasonably related to the purpose.
264. Levels/Standards of review under substantive
due process
a) Deferential Review- laws are upheld if they
rationally further a legitimate guaranteed interest without the
Courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the
objectives could be achieved.
b) Intermediate Review- the substantiality of the
governmental interest is seriously looked into and the
availability of less restrictive alternatives are considered.
c) Strict Scrutiny- The focus is on the presence of
compelling rather that substantial governmental interest and
in the absence of less restrictive means of achieving the
interest. (Separate opinion of Justice Mendoza in Estrada
v. Sandignabayan, GR No. 148965, February 26, 2002)
265. Effect of failure to comply with notice and
hearing requirements
Non-observance of these rights will invalidate the
proceeding.
True to the mandate of due process clause, the basic
rights of notice and hearing pervade not only in criminal and
civil proceedings, but in administrative proceedings as well.
Individuals are entitled to be notified of any pending case
affecting their interest; and upon notice, they may claim the
right to appear and present their side and refute the position
of the opposing parties. (Cruz, Philippine Administrative Law)
266. Exceptions to the general rule requiring notice
and hearing
1. Where a rigid application will result in a manifest failure or
miscarriage of justice especially if a party successfully shows
that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals
contained therein.
2. Where the interest of substantial justice will be served.
3. Where the resolution of the motion is addressed solely to
the sound and judicious discretion of the court.
4. Where the injustice to the adverse party is not
commensurate to the degree of his thoughtfulness in not
complying with the procedure prescribed.
*Instances when hearings are not necessary:
1. When administrative agencies are exercising their quasi-
legislative functions.
2. Abatement of nuisance per se.
3. Granting by Courts of provisional remedies.
4. Cases of preventive suspension.
5. Removal of temporary employees in the government
service.
6. Issuance of warrants of distraint and/or levy by the BIR
Commissioner.
7. Cancellation of the passport of a person charged with a
crime.
8. Suspension of a bank’s operation by the Monetary Board
upon a prima facie finding of liquidity problems in such bank.
267. Due process and the right to privacy
The right to privacy is within the coverage of due
process clause under the Liberty aspect.
268. Void for vagueness doctrine
It holds that a law is vague when it lacks
comprehensive standards that men of common intelligence
must necessarily guess at its common meaning and differ as
to its application. In such instance, the statute is repugnant to
the Constitution because:
58 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
a) It violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of
what conduct to avoid.
b) It leaves law enforcers an unbridled discretion in
carrying out its provisions. (People v. de la Piedra, GR No.
128777, Jan.24, 2001)
269. Publication of laws as a requirement of due
process
The publication requirement goes into due process
clause. It is unfair to the people if laws would take effect
without them knowing the said laws through their
publication. (Tanada v. Tuvera). For publication gives the
people presumption knowledge of the law.
Equal Protection
270. Meaning of equal protection clause
It means that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed.
It guarantees equality, not identity of rights. It does
not forbid discrimination as to persons and things that are
different. What it forbids are distinctions based on
impermissible criteria unrelated to a proper legislative
purpose, or class or discriminatory legislation, which
discriminates against some and favors others when both are
similarly situated. (2 Cooley, Constitutional Limitations, 824-
825)
Nota Bene: It must be borne in mind that the Arroyo
administration is but a member of a class that is a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness
which the equal protection clause cannot sanction. Such
discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective
retribution. (Biraogo v. The Philippine Truth Commission
of 2010, GR No. 192935, Dec. 07, 2010)
271. Valid and invalid classifications
For classifications to meet the requirements of
Constitutionality, it must include or embrace all persons who
naturally belong to the class.
The classification will be regarded as invalid if all the
members of the class are not similarly situated. (Biraogo v.
The Philippine Truth Commission of 2010, GR No.
192935, Dec. 07, 2010)
272. Requirements for a valid classifications
The classification must:
a) Rest on substantial distinctions
b) Be germane to the purpose of the law
c) Not be limited to existing conditions only
d) Apply equally to all members of the same class.
(Gorospe, Constitutional Law: Notes and Readings on the Bill
of Rights, Citizenship and Suffrage, Vol. 2, p334)
273. Standards of review
The standard of review requires that the use of
classification be rationally related to a legitimate government
justification.
Three standards of review are used in Equal
Protection analysis:
A. Minimum Scrutiny Test (or Rational Basis or
Minimal Rationality Review). This standard of review is
used to examine laws that discriminate against non-suspect
classes including economic classifications as well as
classifications based on age, wealth, and mental disability. The
standard of review requires that the use of the classification
be rationally related to a legitimate government justification.
Equal protection analysis is comparative, focusing on whether
there is a rational reason for the difference in treatment
between those the law applies to and those it doesn’t apply to
in light of the purpose of the law. In applying this low level of
scrutiny, a court can hypothesize about the reason for the use
of the classification rather than limit its consideration to
actual reasons for the use of the classification scheme.
Moreover, a classification can satisfy the test even if it as very
inexact. It can include in the discriminated against class many
people who do not deserve to be included (overinclusive)
while failing to include in the class many people who do
deserve to be included (underinclusive). Under the minimum
scrutiny standard, to win the challenger must show either:
1. There is no legitimate purpose for the law. This was part of
the Court's reasoning in U.S. Department of Agriculture v.
Moreno, for example, where the Court found that one purpose
of the law was the desire to harm a politically unpopular
group. The Court concluded that such a purpose was
illegitimate under the Equal Protection Clause (see also
Romer v. Evans for a similar conclusion); or
2. The classification scheme does not rely on a difference that
is at all designed to achieve the state’s purpose so that the
classification is not rationally related to the state’s objective.
In Moreno, for example, the law relied on the difference
between households of related persons and households with
at least one unrelated person, but that difference was not
rationally related to the government’s objectives of
encouraging the purchase of agricultural products or
encouraging good nutrition. In the Court's view, the use of the
classification actually undermined those purposes.
B. Intermediate Scrutiny Test. Intermediate scrutiny is
used to review laws that utilize classifications based on
gender (this standard is used whether the law discriminates
in favor of men or in favor of women) and other quasi-
suspect (also referred to as semi-suspect) classifications. The
intermediate scrutiny standard of review requires that the
use of the classification be substantially related to an
important governmental justification. Under this form of
rigorous scrutiny, the burden of proof is on the government to
show both an important objective and that the use of the
classification is substantially related to that objective (Craig v.
Boren). In describing the burden on the government to justify
classifications based on gender, the Court in United States v.
Virginia used the phrase "exceedingly persuasive
justification" to describe the required showing that the
government must make. In this analysis, the challenger can
present less discriminatory alternatives to the Court and
59 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
argue that the use of the classification is not substantially
related to an important objective because the government
does not have to use the challenged classification to achieve
its objective since, for example, gender neutral means are
available. The government can defend by showing that the
less discriminatory alternatives would be less effective or that
the use of the classification is substantially related to its
important objective even though there is not a perfect fit
between the classification and the important objective. The
challenger can also make the following types of arguments to
show that the government cannot satisfy the intermediate
scrutiny standard: (1) the state’s objective is not important
because it would reinforce archaic stereotypes or overbroad
generalizations about the proper roles of men and women, (2)
the important purpose asserted by the government is not the
actual purpose for the enactment of the law, or (3) the
government seeks to achieve an objective (such as
administrative convenience) that is not sufficiently weighty
and the government can defend by arguing that its actual
objective is important because, for example, its objective is to
help and not harm women. In the gender discrimination
cases, the Court is more sympathetic to different treatment
rooted in biological differences rather than socially
constructed differences, although sometimes it is hard to
distinguish between these two sources of difference.
Intermediate scrutiny, unlike strict scrutiny, does not require
that the use of the classification must be necessary to the
accomplishment of the governmental objective, however, the
use of the classification has to create a fairly close fit between
the class being regulated and the governmental objective
sought to be achieved. Unlike under rationality review, under
intermediate scrutiny the classification cannot be
substantially overinclusive or substantially underinclusive,
but has to be drawn more exactly in relation to the
governmental purpose.
C. Strict Scrutiny Test.
274. When does the strict scrutiny test of the Equal
Protection Clause apply?
Under strict scrutiny review, used to review laws that utilize
classifications based on race or ethnicity and other suspect
classifications, the standard of review is whether the use of
the classification is narrowly tailored to achieve a compelling
government objective. In these cases, the government
sometimes lacks a compelling objective and may even lack a
legitimate one (as in Loving v. Virginia where the objective was
to maintain white supremacy).
In addition, even if the government has a compelling interest,
it cannot use a suspect classification if there are any other
means available to the government to achieve its compelling
objective. Therefore, when the government employs a racial
classification, it must prove that no race neutral means would
achieve its objective and that no less discriminatory race-
conscious equally effective solution is available either. To
show that no race neutral means are available (or less
discriminatory race-conscious means), the government must
show that it seriously considered available alternatives, but
need not show that it actually tried the available alternatives.
Right to privacy in general
Right to privacy in general
275. Is there a right to privacy specifically guaranteed
under the Constitution? Briefly explain.
Yes. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding. (Section 3, Article III, 1987 Constitution)
276. What are the Constitutional provisions that
protect an individual’s right to privacy?
(1) The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding. (Section 3, Article III, 1987 Constitution)
277. Give at least five subject matters involving
personal decisions that are protected under the right to
privacy
a) The right of individual to enter into contract
b) To engage in any of the common occupations in
life
c) To acquire useful knowledge
d) To marry
e) To establish a home and bring up children
f) To worship God according to the dictates of his
own conscience
g) To enjoy those privileges long recognized at
common-law as enacted to the orderly pursuit of happiness
by free men.
>Informational Privacy- refers to the interest in
avoiding disclosure of personal matters;
>Decisional Privacy-to refer to the interest in
independence in making certain kinds of important decisions.
278. What are three basic strands of the right to
privacy?
Three strands of the right to privacy, viz:
(1) Locational or situational privacy;
(2) Informational privacy- the right of individuals
to control information about themselves; and
(3) Decisional privacy. (Vivares vs. St. Theresa’s
College, G.R. No. 202666, September 29, 2014).
Privacy of Communication
279. Types of communication protected by the right to
privacy of communication and correspondence: Is it a
protection against illegal wiretaps?
1. Letters
2. Messages
3. Telephone Calls
4. Telegrams; and the like.
5. The guarantee includes within the mantle of
protection tangible as well as intangible objects. (RA 4200,
Anti-wiretapping Act)
6. Any private communications. The law does not
make any distinction. (Ramirez v. Court of Appeals, G.R. No.
93833 September 28, 1995)
Yes, the right to privacy is a protection against illegal
wiretaps.
In Ramirez, the Court elucidated that in enacting R.A.
4200 our lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private conversations or
communications taken either by the parties themselves or by
third persons. The law does not make any distinction.
280. What are the conditions for permissible
intrusion into the privacy of communication and
correspondence?
1. By lawful order of the Court
2. When public safety or public order requires
otherwise, as may be provided by law. (Section 3 (1), Article
III, 1987 Constitution)
281. How does the Writ of Habeas Data ensure
protection of the privacy of communication?
The writ of habeas data is a remedy to any person,
whose right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home, and
correspondence of the aggrieved party. (A.M. No. 08-1-16-
SC)
282. May detention guards read the letters of
prisoners or persons under government detention? State
your legal basis.
American jurisprudence initially made a
distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees.
The case of Palmigiano v. Travisono (317 F. Supp. 776
(1970) recognized that pre-trial detainees, unlike convicted
prisoners, enjoy a limited right of privacy in communication.
Censorship of pre-trial detainees’ mail addressed to public
officials, courts and counsel was held impermissible. While
incoming mail may be inspected for contraband and read in
certain instances, outgoing mail of pre-trial detainees could
not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell (418 U.S.
539 (1974) involving convicted prisoners, the U.S. Supreme
Court held that prison officials could open in the presence of
the inmates incoming mail from attorneys to inmates.
However, prison officials could not read such mail from
attorneys.
xxx xxx xxx

60 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER


American cases recognize that the unmonitored use
of pre-trial detainees’ non-privileged mail poses a genuine
threat to jail security. Hence, when a detainee places his letter
in an envelope for non-privileged mail, the detainee
knowingly exposes his letter to possible inspection by jail
officials. A pre-trial detainee has no reasonable expectation of
privacy for his incoming mail. However, incoming mail from
lawyers of inmates enjoys limited protection such that prison
officials can open and inspect the mail for contraband but
could not read the contents without violating the inmates’
right to correspond with his lawyer. The inspection of
privileged mail is limited to physical contraband and not to
verbal contraband.
Thus, we do not agree with the Court of Appeals that
the opening and reading of the detainees’ letters in the
present case violated the detainees’ right to privacy of
communication. The letters were not in a sealed envelope.
The inspection of the folded letters is a valid measure as it
serves the same purpose as the opening of sealed letters for
the inspection of contraband.
The letters alleged to have been read by the ISAFP
authorities were not confidential letters between the
detainees and their lawyers. The petitioner who received the
letters from detainees Trillanes and Maestrecampo was
merely acting as the detainees’ personal courier and not as
their counsel when he received the letters for mailing. In the
present case, since the letters were not confidential
communication between the detainees and their lawyers, the
officials of the ISAFP Detention Center could read the letters.
If the letters are marked confidential communication between
the detainees and their lawyers, the detention officials should
not read the letters but only open the envelopes for
inspection in the presence of the detainees.
That a law is required before an executive officer
could intrude on a citizen’s privacy rights is a guarantee that
is available only to the public at large but not to persons who
are detained or imprisoned. The right to privacy of those
detained is subject to Section 4 of RA 7438, as well as to the
limitations inherent in lawful detention or imprisonment. By
the very fact of their detention, pre-trial detainees and
convicted prisoners have a diminished expectation of privacy
rights. (In the Matter of the Petition for Habeas Corpus of
Capt. Gary Alejano v. Cabuay, G.R. No. 160792 August 25,
2005)
283. What is the effect of a violation of the right to
privacy of communication?
(1) The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for any
purpose in any proceeding. (Section 3, Article III, 1987
Constitution)
Freedom of Speech, Expression and of the Press
284. Meaning of the right to free expression
61 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government
for redress of grievances. (Section 4, Article III, 1987
Constitution)
No person shall be detained solely by reason of his
political beliefs and aspirations. (Section 18 (1), Article III,
1987 Constitution)
285. Aspects of the freedom of speech
1. Freedom from censorship or prior restraint.
2. Freedom from subsequent punishment.
DIMAPILIS
286. Freedom from prior restraint or censorship
 Censorship conditions the exercise of freedom of
expression upon the prior approval of the
government which is anathema to free society. The
censor thus assumes the unlikely role of political,
moral, social and artistic arbiter for the people,
usually applying only his own subjective standards in
determining what is good and what is not good for
them.
 Prior restraint refers to restraint of print media,
broadcast media or radio because the nature of the
latter two, prior restraint (censorship) is much more
common.
 Prior restraint is valid if:
1. There is compelling state interest and;
2. If the statue is narrowly drawn.
Prior Restraint means official government restrictions on the
press or other forms of expression in advance of actual
publication or dissemination. (Bernas, The 1987 Philippine
Constitution A Comprehensive Reviewer 2006)
287. Examples of prior restraint
 COMELEC prohibition against radio commentator or
newspaper columnist from commenting on the issue
involved in a scheduled plebiscite (Sanidad vs
COMELEC)
 Arbitrary closure of radio station even there is legal
justification such as lack of Mayor’s permit
(Newsounds Broadcsting Network vs. Dy)
 COMELEC prohibition against posting of decals and
stickers in mobile units. (Adiong Vs. COMELEC)
 Search, padlocking and sealing of offices of
newspaper publications ( Burgos vs. Chief of Staff)
 An announcement of public figure to prohibit media
to issue specific kind of statement. (Chavez vs.
Gonzales)
Example of Constitutional Prior Restraint:
 Obscene publication
 Movie censorship
 Near vs. Minnesota:
1. When a nation is at war, many things that might be
said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as
 men fight and that no court could regard them as
protected by any constitutional right.
2. The primary requirements of decency may be
enforced against obscene publications.
3. The security of community life may be protected
against incitements to acts of violence and the
overthrow by force of orderly government.
288. Content-neutral regulation
Substantial governmental interest is required for their
validity, and they are not subject to the strictest form of
judicial scrutiny rather only an intermediate approach‐
somewhere between the rationality that is required of a law
and the compelling interest standard applied to content‐
based restrictions.
Note: When the prior restraint partakes of a content‐neutral
regulation, it is subject to an intermediate review. A content‐
based regulation or any system or prior restraint comes to the
Court bearing a heavy presumption against its
unconstitutionality and thus measured against the clear and
present danger rule, giving the government a heavy burden to
show justification for the imposition of such restraint and
such is neither vague nor overbroad.
289. Content-based regulation
Content-based restrictions, are imposed because of the
content of the speech and are subject to the clear-and present
danger test. For example, a rule such as that involved
in Sanidad v. COMELEC,[37] prohibiting columnists,
commentators, and announcers from campaigning either for
or against an issue in a plebiscite must have a compelling
reason to support it, or it will not pass muster under strict
scrutiny. These restrictions, it will be seen, are censorial and
therefore they bear a heavy presumption of constitutional
invalidity. In addition, they will be tested for possible
overbreadth and vagueness. (Osmena vs. COMELEC)
290. What is the presumption with respect to prior
restraints?
With regard to prior restraint in free press, the rule is that it is
presumed to be invalid. This rule overrides the standard
presumption that statutes are constitutionally valid.
291. Invalid and Valid prior restraints
See example in question no. 287
292. Clear and present danger test
The question in every case is whether the words used are
used in such circumstances and are of such nature as to create
a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
question of proximity of degree. (Schenck vs. United States)
Emphasis: The danger created must not only be clear and
present but also traceable to the ideas expressed. (Gonzales v.
COMELEC, G.R. No. L‐27833, April 18, 1969)
Note: This test has been adopted by our SC, and is most
applied to cases involving freedom of expression.
62 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
293. Balancing of Interest test
The Court must undertake the delicate and difficult task of
weighing the circumstances and appraising the substantiality
of the reasons advanced in support of the regulation of the
free enjoyment of rights. (Gonzales vs. COMELEC)
Question: which of the two conflicting interests (not involving
national security crimes) demands the greater protection
under the particular circumstances presented:
a. When particular conduct is regulated in the interest of
public order
b. And the regulation results in an indirect, conditional and
partial abridgement of speech (Gonzales v. COMELEC, G.R. No.
L‐27833, Apr. 18, 1969).
294. Dangerous tendency test
When the legislative body has determined generally, in the
exercise of its discretion, that utterances of a certain kind
involve such danger of a substantive evil that they may be
punished, the question whether any specific utterance coming
within the prohibited class is likely, in itself, to bring the
substantive evils, is not open to consideration. In such cases,
the general provision of the statute may be constitutionally
applied to the specific utterance if its natural and probable
effect was to bring about the substantive evil which the
legislative body might prohibit.
Question: Whether the speech restrained has a rational
tendency to create the danger apprehended, be it far or
remote, thus government restriction would then be allowed.
It is not necessary though that evil is actually created for mere
tendency towards the evil is enough.
Emphasis: Nature of the circumstances under which the
speech is uttered, though the speech per se may not be
dangerous.
295. Conscientious objector test
Grounds for exemption of compulsory military service;
expanded version provides exemption even to those who
object war based on non-religious belief i.e. non-theist criteria
296. Compelling state interest test
Underlying the compelling state interest test is the notion that
free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.
In its application, the compelling state interest test follows a
three-step process, summarized as follows:
If the plaintiff can show that a law or government practice
inhibits the free exercise of his religious beliefs, the burden
shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some
important (or compelling) secular objective and that it is the
least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at
issue. In order to be protected, the claimants beliefs must be
sincere, but they need not necessarily be consistent, coherent,
clearly articulated, or congruent with those of the claimants
religious denomination. Only beliefs rooted in religion are
protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice. (Estrada
vs. Escritor)
297. What is a “facial challenge” of a law?
A facial challenge is a challenge to a statute in court, in which
the plaintiff alleges that the legislation is always, and under all
circumstances, unconstitutional, and therefore void.
Note: Facial challenge to a statute is allowed only when it
operates in the area of freedom of expression. Invalidation of
the statute on its face, rather than as applied, is permitted in
the interest of preventing a chilling effect on freedom of
expression. ( Separate opinion of Justice Mendoza in Cruz v.
Secretary of Environment and Natural Resources, 347 SCRA
128, 2000)
Q: Are facial challenges allowed in penal statutes?
A: No. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area
of free speech. (KMU v. Ermita, G.R. No. 17855, October 5, 2010)
298. Void-for-vagueness doctrine
As a rule, a statute or act may be said to be vague when it
lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ
as to its application. It is repugnant to the Constitution in two
respects: (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 leaves law enforcers unbridled
discretion in carrying out its provisions and become an
arbitrary flexing of the Government muscle.
We added, however, that:
x x x the act must be utterly vague on its face, that is to say, it
cannot be clarified by either a saving clause or by
construction. Thus, in Coates v. City of Cincinnati, the U.S.
Supreme Court struck down an ordinance that had made it
illegal for three or more persons to assemble on any sidewalk
and there conduct themselves in a manner annoying to
persons passing by. Clearly, the ordinance imposed no
standard at all because one may never know in advance what
annoys some people but does not annoy others.
Coates highlights what has been referred to as a perfectly
vague act whose obscurity is evident on its face. It is to be
distinguished, however, from legislation couched in imprecise
languagebut which nonetheless specifies a standard though
defectively phrasedin which case, it may be saved by proper
construction. (People vs. Dela Piedra)
299. Overbreadth doctrine
A statute may be said to be overbroad where it operates to
inhibit the exercise of individual freedoms affirmatively
guaranteed by the Constitution, such as the freedom of speech
or religion. A generally worded statute, when construed to
punish conduct which cannot be constitutionally punished is
unconstitutionally vague to the extent that it fails to give
adequate warning of the boundary between the
constitutionally permissible and the constitutionally
impermissible applications of the statute.[26]
63 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
In Blo Umpar Adiong vs. Commission on Elections,[27] for
instance, we struck down as void for overbreadth provisions
prohibiting the posting of election propaganda in any place
including private vehicles other than in the common poster
areas sanctioned by the COMELEC. We held that the
challenged provisions not only deprived the owner of the
vehicle the use of his property but also deprived the citizen of
his right to free speech and information. The prohibition
in Adiong, therefore, was so broad that it covered even
constitutionally guaranteed rights and, hence, void for
overbreadth. In the present case, however, appellant did not
even specify what constitutionally protected freedoms are
embraced by the definition of recruitment and placement that
would render the same constitutionally overbroad. (People
vs. Dela Piedra)
The overbreadth doctrine, decrees that “a governmental
purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of
protected freedoms.” (Estrada vs. Sandiganbayan)
The 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 Court whose activities are constitutionally protected.
(Separate opinion of Justice Mendoza in Cruz v. Secretary of
Environment and Natural Resources, 347 SCRA 128, 2000) It is
a type of facial challenge that prohibits the government from
achieving its purpose by means that “sweep unnecessarily
broadly, reaching constitutionally protected as well as
unprotected activity.
300. How may the government regulate the broadcast
media?
 Broadcasting has to be licensed. Airwave frequencies
have to be allocated among qualified users. A
broadcast corporation cannot simply appropriate a
certain frequency without regard for government
regulation or for the rights of others. (Eastern
Broadcasting vs Dans)
 The ownership and management of mass media shall
be limited to citizens of the Philippines, as to
corporations, cooperative and associations, shall be
wholly owned and managed by such citizens.
 The Congress shall regulate or prohibit monopolies
in commercial mass media when the public interest
so requires. No combinations in restraint of trade or
unfair competition shall be allowed.
301. May the government validly suspend the showing
of a TV show or the appearance of a broadcaster in a TV
show? Why?
Yes. But even as we uphold the power of the MTRCB to review
and impose sanctions for violations of PD 1986, its decision to
suspend petitioner must be modified, for nowhere in that
issuance, particularly the power-defining Sec. 3 nor in the
MTRCB Schedule of Administrative Penalties effective January
1, 1999 is the Board empowered to suspend the program host
or even to prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the broadcast
of such television programs or cancel permits for exhibition,
but it may not suspend television personalities, for such
would be beyond its jurisdiction. The MTRCB cannot extend
its exercise of regulation beyond what the law provides. Only
persons, offenses, and penalties clearly falling clearly within
the letter and spirit of PD 1986 will be considered to be
within the decrees penal or disciplinary operation. And when
it exists, the reasonable doubt must be resolved in favor of the
person charged with violating the statute and for whom the
penalty is sought. Thus, the MTRCBs decision in
Administrative Case No. 01-04 dated September 27, 2004 and
the subsequent order issued pursuant to said decision must
be modified. The suspension should cover only the television
program on which petitioner appeared and uttered the
offensive and obscene language, which sanction is what the
law and the facts obtaining call for. (Soriano vs. MTRCB)
302. Commercial Speech
It is communication which “no more than proposes a
commercial transaction. Advertisements of goods or of
services is an example of this. (Bernas, the 1987 Constitution of
the Republic of the Philippines Comprehensive Reviewer 2006)
Q: In order for government to curtail commercial speech
what must be shown?
A: To enjoy protection, commercial speech:
1. Must not be false or misleading (Friedman v. Rogers,
440 US 1 (1979) and 2. Should not propose an illegal
transaction, Pittsburgh Press Co. v Human Relations
Commissions, 413 US 376(1973).
2. Should not propose an illegal transaction, Pittsburgh
Press Co. v Human Relations Commissions, 413 US
376(1973).
Note: However, even truthful and lawful commercial speech
maybe regulated if (1) government has a substantial interest
to protect; (2) the regulation directly advances that interest;
and (3) it is not more than extensive than is necessary to
protect that interest. (Central Hudson Gas & Electric Corp v.
Public Service Commission of NY, 447 US 557 (1980)
303. Private v. Government Speech
Government Speech Private Speech
A speech where the government The right of a person to
may advance or restrict its own freely speak one’s mind is
speech in a manner that would a highly valued freedom
clearly be forbidden were it in a republican and
regulating the speech of a democratic society.
private citizen. (doctrine was (Ashcroft v. Free Speech
implied in Wooley v. Maynard in Coalition, 535 U.S. 234
1971) (2002))
304. Heckler’s Veto
A heckler's veto occurs when an acting party's right to
freedom of speech is curtailed or restricted by the
government in order to prevent a reacting party's behavior.
The term Heckler’s Veto was coined by University of Chicago
professor of law Harry Kalven.
It may be in the guise of a permit requirement in the holding
of rallies, parades, or demonstrations conditioned on the
payment of a fee computed on the basis of the cost needed to
64 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
keep order in view of the expected opposition by persons
holding contrary views. (Gorospe, 2006, citing Forsyth County
v. Nationalist Movement, 315 U.S. 568, 1942)
305. What is unprotected speech? What are the so-
called unprotected speech?
 Libel
 Obscenity
 Grave threats
 Contempt of court
 Incitement to rebellion or sedition
The government can do prior restraint and subsequent
punishment in case of unprotected speech.
306. What is the Miller Test?
According to the Miller test, a film, book or magazine is
obscene if it
1) appeals to a prurient interest when contemporary
community standards are applied;
2) is patently offensive; and
3) lacks serious literary, artistic, political or scientific value
when taken as a whole
307. What is the test to determine if seditious speech
is punishable?
Clear and present danger rule is the test to determine if
seditious speech is punishable.
308. What are the elements of libel?
A public and malicious imputation of a crime, vice or defect,
real or imaginary or any act omission, status tending to cause
dishonor, discredit or contempt of a natural or judicial person,
or blacken the memory of one who is dead (Art 353, Revised
Penal Code)
 There must be identity of person
 There must be malicious imputation
 The result to damage of reputation
 There must be publication
309. Public figure doctrine
Honest criticisms on conduct of public officials and public
figure are insulated from libel judgments.
The guarantees of freedom of speech and press prohibit a
public official or public figure from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e.,
with knowledge that it was false or with reckless disregard of
whether it was false or not. (Borjal vs. CA)
310. Fair commentaries on matters of public interest
Fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel
or slander. The doctrine of fair comment means that while in
general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until
his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable,
it must either be a false allegation of fact or a comment based
on a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial that
the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (Borjal vs. CA)
Liberty of abode & right to travel
311. What are the limitations to the liberty of abode?
The liberty of abode may be impaired only upon lawful order
of the court and within the limits prescribed by law.
312. When may the right to travel be impaired?
The limitations are the interest of national security, public
safety or public health, as may be provided by law.
With respect to the right to travel, it is settled that only a
court may issue a hold departure order against an individual
addressed to the Bureau of Immigration and Departure.
However, administrative authorities, such as passport‐
officers, may likewise curtail such right in the interest of
national security, public safety, or public health, as may be
provided by law.
313. Are hold departure orders and immigration
watch lists valid?
Yes. DEPARTMENT CIRCULAR NO. 4 Provides that:
Section 1. Hold Departure Order. - The Secretary of Justice
may issue an HDO, under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal
cases falling within the jurisdiction of courts below the
Regional Trial Courts (RTCs).
If the case against the accused is pending trial, the application
under oath of an interested party must be supported by (a) a
certified true copy of the complaint or information and (b) a
Certification from the Clerk of Court concerned that criminal
case is still pending.
(b) Against the alien whose presence is required either as a
defendant, respondent, or witness in a civil or labor case
pending litigation, or any case before an administrative
agency of the government.
The application under oath of an interested party must be
supported by (a) a certified true copy of the subpoena or
summons issued against the alien and (b) a certified true copy
complaint in civil, labor or administrative case where the
presence of the alien is required. (c) The Secretary of Justice
may likewise issue an HDO against any person, either motu
proprio, or upon the request by the Head of a Department of
the Government; the head of a constitutional body or
commission; the Chief Justice of the Supreme Court for the
Judiciary; the Senate President or the House Speaker for the
Legislature, when the adverse party is the Government or any
of its agencies or instrumentalities, or in the interest of
national security, public safety or public health.
65 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Section 2. Watchlist Order. - The Secretary of Justice may
issue a WLO, under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal
cases pending trial before the Regional Trial Court.
The application under oath of an interested party must be
supported by (a) certified true copy of an Information filed
with the court, (b) a certified true copy of the Prosecutor's
Resolution; and (c) a Certification from the Clerk of Court
concerned that criminal case is still pending.
(b) Against the respondent, irrespective of nationality, in
criminal cases pending preliminary investigation, petition for
review, or motion for reconsideration before the Department
of Justice or any of its provincial or city prosecution offices.
The application under oath of an interested party must be
supported by (a) certified true copy of the complaint filed,
and (b) a Certification from the appropriate prosecution office
concerned that the case is pending preliminary investigation,
petition for review, or motion for reconsideration, as the case
may be.
(c) The Secretary of Justice may likewise issue a WLO against
any person, either mtu proprio, or upon the request of any
government agency, including commissions, task forces or
similar entities created by the Office of the President,
pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A.
No. 9208) and/or in connection with any investigation being
conducted by it, or in the interest of national security, public
safety or public health.
314. What is the legal basis of the right to return to
one’s country?
The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only
of the liberty of abode and the right to travel. Nevertheless,
the right to return may be considered as a generally accepted
principle of International law, and under the Constitution, is
part of the law of the land. However, it is distinct and separate
from the right to travel and enjoys a different protection
under the Intl. Covenant of Civil and Political Rights. (Marcos
v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989)
315. May a court prohibit a person admitted to bail
from leaving the Philippines? Why?
Yes. Holding an accused in a criminal case within the
reach of the Courts by preventing his departure from the
Philippines must be considered as a valid restriction on his
right to travel so that he may be dealt with in accordance with
law. The offended party in any criminal proceeding is the
People of the Philippines. It is to their best interest that
criminal prosecutions should run their course and proceed to
finality without undue delay, with an accused holding himself
amenable at all times to Court Orders and processes.
(Defensor vs. Vasquez)
ASAS
Right to information
316. What are the limitations to the right to
information?

Constitutional basis
The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded
the citizen, subject to such limitations as may be provided by
law. (Article 3, Section 7, 1987 Constitution)
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
(Article 2, Section 28, 1987 Constitution)
Limitations
The "information" and the "transactions" referred to
in the subject provisions of the Constitution have as yet no
defined scope and extent. There are no specific laws
prescribing the exact limitations within which the right may
be exercised or the correlative state duty may be obliged.
However, the following are some of the recognized
restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3)
criminal matters, and (4) other confidential information.
(Chavez vs. PCGG et al., G.R. No. 130716, December 9, 1998,
Panganiban, J.)
National Security and Intelligence Information. At
the very least, this jurisdiction recognizes the common law
holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military,
diplomatic and other national security matters. But where
there is no need to protect such state secrets, the privilege
may not be invoked to withhold documents and other
information, provided that they are examined "in strict
confidence" and given "scrupulous protection."
Likewise, information on inter-government
exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the
sake of national interest.
Trade Secrets and Banking Transactions. The
drafters of the Constitution also unequivocally affirmed that,
aside from national security matters and intelligence
information, trade or industrial secrets (pursuant to the
Intellectual Property Code and other related laws) as well as
banking transactions (pursuant to the Secrecy of Bank
Deposits Act) are also exempted from compulsory disclosure.
Criminal Matters. Also excluded are classified law
enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of
criminals, which courts may nor inquire into prior to such
arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public
access to, for example, police information regarding rescue
operations, the whereabouts of fugitives, or leads on covert
criminal activities.
Other Confidential Information. The Ethical
Standards Act further prohibits public officials and employees
from using or divulging "confidential or classified information
66 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
officially known to them by reason of their office and not
made available to the public."
Other acknowledged limitations to information
access include diplomatic correspondence, closed door
Cabinet meetings and executive sessions of either house of
Congress, as well as the internal deliberations of the Supreme
Court.
Alternative Answer
General Rule: The access must be for a lawful
purpose and subject to reasonable conditions by the
custodian of the records.
Exceptions: The right does not extend to the
following:
a.) Information affecting national security, military
and diplomatic secrets. It also includes inter-government
exchanges prior to consultation of treaties and executive
agreement as may reasonably protect the national interest;
b.) Matters relating to investigation, apprehension,
and detention of criminals which the court may not inquire
into prior to arrest, prosecution and detention;
c.) Trade and industrial secrets and other banking
transactions as protected by Intellectual Property Code and
the Secrecy of Bank Deposits Act;
d.) Other confidential information falling under the
scope of the Ethical Safety Act concerning classified
information.
317. Public records and documents
This covers information on matters of public
concern. It pertains to access to official records, documents
and papers pertaining to official acts, transactions or
decisions, as well as to government research data used as
basis for policy development.
The right to information contemplates inclusion of
negotiations leading to the consummation of transaction.
(Chavez vs. PEA and AMARI, G.R. No. 133250, July 9, 2002)
Note: The right only affords access to records,
documents, and papers, which means the opportunity to
inspect and copy them at his expense. The exercise is also
subject to reasonable regulations to protect the integrity of
public records and to minimize disruption of government
operations.
318. Access to courts
Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to any
person by reason of poverty. (Section 11, Article 3, 1987
Constitution)
Access to court records
The term "judicial record" or "court record" does not
only refer to the orders, judgment or verdict of the courts. It
comprises the official collection of all papers, exhibits and
pleadings filed by the parties, all processes issued and returns
made thereon, appearances, and word-for-word
testimony which took place during the trial and which are in
the possession, custody, or control of the judiciary or of the
courts for purposes of rendering court decisions. It has also
been described to include any paper, letter, map, book, other
document, tape, photograph, film, audio or video recording,
court reporter's notes, transcript, data compilation, or other
materials, whether in physical or electronic form, made or
received pursuant to law or in connection with the
transaction of any official business by the court, and includes
all evidence it has received in a case.
In determining whether a particular information is of
public concern, there is no right test. In the final analysis, it is
for the courts to determine on a case to case basis whether
the matter at issue is of interest or importance as it relates to
or affect the public.
In fine, access to court records may be permitted at
the discretion and subject to the supervisory and protective
powers of the court, after considering the actual use or
purpose for which the request for access is based and
the obvious prejudice to any of the parties. In the exercise of
such discretion, the following issues may be relevant:
"whether parties have interest in privacy, whether
information is being sought for legitimate purpose or for
improper purpose, whether there is threat of particularly
serious embarrassment to party, whether information is
important to public health and safety, whether sharing of
information among litigants would promote fairness and
efficiency, whether party benefiting from confidentiality
order is public entity or official, and whether case involves
issues important to the public." (Hilado et al. vs. Reyes et al.,
G.R. No. 163155, July 21, 2006, Carpio-Morales, J.)
319. Access to government contracts
It is incumbent upon the PCGG and its officers, as
well as other government representatives, to disclose
sufficient public information on any proposed settlement they
have decided to take up with the ostensible owners and
holders of ill-gotten wealth. Such information, though, must
pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations
or communications during the stage when common
assertions are still in the process of being formulated or are in
the "exploratory" stage. There is a need, of course, to observe
the same restrictions on disclosure of information in general,
as discussed earlier — such as on matters involving national
security, diplomatic or foreign relations, intelligence and
other classified information. (Chavez vs. PCGG et al., G.R. No.
130716, December 9, 1998, Panganiban, J.)
320. Is a government proposal on an ongoing contract
negotiation privileged? Why?
Yes. Information, however, on on-going evaluation
or review of bids or proposals being undertaken by the
bidding or review committee is not immediately accessible
under the right to information. While the evaluation or review
is still on-going, there are no "official acts, transactions, or
decisions" on the bids or proposals. However, once the
committee makes its official recommendation, there arises a
67 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
"definite proposition" on the part of the government. From
this moment, the public’s right to information attaches, and
any citizen can access all the non-proprietary information
leading to such definite proposition. (Initiatives for Dialogue
and Empowerment through Alternative Legal Services, Inc.
(IDEALS, Inc.) et al. vs. Power Sector Assets and Liabilities
Management Corporation (PSALM) et al., G.R. No. 192088,
October 9, 2012, Villarama, J.)
321. Differentiate the to information on matters of
public concern and access to official records, documents,
and papers pertaining to official acts, transactions, or
decisions
The Court, however, distinguished the duty to
disclose information from the duty to permit access to
information on matters of public concern under Sec. 7, Art. III
of the Constitution. Unlike the disclosure of information
which is mandatory under the Constitution, the other aspect
of the people’s right to know requires a demand or request
for one to gain access to documents and paper of the
particular agency. Moreover, the duty to disclose covers only
transactions involving public interest, while the duty to allow
access has a broader scope of information which embraces
not only transactions involving public interest, but any matter
contained in official communications and public documents of
the government agency. Such relief must be granted to the
party requesting access to official records, documents and
papers relating to official acts, transactions, and decisions that
are relevant to a government contract. (Initiatives for
Dialogue and Empowerment through Alternative Legal
Services, Inc. (IDEALS, Inc.) et al. vs. Power Sector Assets and
Liabilities Management Corporation (PSALM) et al., G.R. No.
192088, October 9, 2012, Villarama, J.)
322. Access to diplomatic negotiations
There is a distinction between the text of the treaty
and the offers and the negotiations. They may compel the
government to disclose the text of the treaty but not the offers
between RP and Japan, because these are negotiations of
executive departments. Diplomatic communication
negotiation is a privileged information. (Akbayan vs. Aquino,
G.R. No. 170516, July 16, 2008)
Unlawful Searches & Seizures
323. When does the search or seizure violate the
Constitution?
The search or seizure violates the Constitution when
it does not conform to the requirements of the fundamental
law as follows:
The requisites for the issuance of a search warrant
are: (1) probable cause is present; (2) such probable cause
must be determined personally by the judge; (3) the judge
must examine, in writing and under oath or affirmation, the
complainant and the witnesses he or she may produce; (4) the
applicant and the witnesses testify on the facts personally
known to them; and (5) the warrant specifically describes the
place to be searched and the things to be seized. According to
petitioner, there was no probable cause. Probable cause for a
search warrant is defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the
objects sought in connection with the offense are in the place
sought to be searched. A finding of probable cause needs only
to rest on evidence showing that, more likely than not, a crime
has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion;
it requires less than evidence which would justify
conviction. The judge, in determining probable cause, is to
consider the totality of the circumstances made known to him
and not by a fixed and rigid formula, and must employ a
flexible, totality of the circumstances standard. The existence
depends to a large degree upon the finding or opinion of the
judge conducting the examination.
It must be remembered that the warrant issued must
particularly describe the place to be searched and persons or
things to be seized in order for it to be valid. A designation or
description that points out the place to be searched to the
exclusion of all others, and on inquiry unerringly leads the
peace officers to it, satisfies the constitutional requirement of
definiteness. In the present case, Search Warrant No. 570-9-
1197-24 specifically designates or describes the residence of
the petitioner as the place to be searched. Incidentally, the
items were seized by a barangay tanod in a nipa hut, 20
meters away from the residence of the petitioner. The
confiscated items, having been found in a place other
than the one described in the search warrant, can be
considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of
petitioner's constitutional guaranty against unreasonable
searches and seizure. (Castillo v. People, G.R. No. 185128,
January 30, 2012)
324. What is the basic requirement for the
Constitutional prohibition to apply?
The basic requirement for the Constitutional
prohibition to apply is the State Action Doctrine as enunciated
in the case of Atienza v. Commission on Elections, G.R. No.
188920, February 16, 2010:
The constitutional limitations on the exercise of the
state’s powers are found in Article III of the Constitution or
the Bill of Rights. The Bill of Rights, which guarantees against
the taking of life, property, or liberty without due process
under Section 1 is generally a limitation on the state’s powers
in relation to the rights of its citizens. The right to due process
is meant to protect ordinary citizens against arbitrary
government action, but not from acts committed by private
individuals or entities. In the latter case, the specific statutes
that provide reliefs from such private acts apply. The right to
due process guards against unwarranted encroachment by
the state into the fundamental rights of its citizens and cannot
be invoked in private controversies involving private parties.
325. When is there a government or state action?
There is a government or state action when the State
in the exercise of its inherent powers interferes with the life,
liberty, and property of its citizens or subjects.
326. In general, when is a search unreasonable?
In general, search is unreasonable when there is an
unreasonable government intrusion to the right of privacy of
an individual or the right to be let alone.
68 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
327. What are the requirements for a valid search
warrant?
Requisites for the issuance of search warrant:
a. Probable cause is present;
b. Such probable cause must be determined
personally by the judge;
c. The judge must examine in writing and under oath
and affirmation, the complainant and the witnesses he or she
may produce;
d. The applicant and the witnesses testify on the facts
personally known to them; and
e. The warrant specifically describes the place to be
searched and things to be seized. (Castillo v. People, GR No.
185128, January 30, 2012)
328. What are the requirements for a valid arrest
warrant?
The requisites of a valid search warrant are as
follows: (a.) It must be based upon probable cause; (b.) The
probable cause must be determined personally by the judge;
(c.) The determination must be made after examination under
oath or affirmation of the complainant and the witnesses he
may produce; (d.) It must personally described the place to be
searched and the persons or things to be seized. (Cruz,
Constitutional Law, 2007)
329. When may a warrantless search be deemed
valid?
The following are the instances when a warrantless
search is allowed: (i) a warrantless search incidental to a
lawful arrest; (ii) search of evidence in "plain view;" (iii)
search of a moving vehicle; (iv) consented warrantless search;
(v) customs search; (vi) a "stop and frisk" search; and (vii)
exigent and emergency circumstances. (Luz v. People, G.R. No.
197788, February 29, 2012)
330. Probable cause
Probable cause for a search warrant is defined as
such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the
offense are in the place sought to be searched. (Castillo v.
People, G.R. No. 185128, January 30, 2012)
Probable cause is such facts and circumstances
antecedent to the issuance of a warrant that in themselves are
sufficient to induce a cautious man to rely on them and act in
pursuance thereof.
331. Limitations on a search incident to a lawful
arrest
Searches incidental to a lawful arrest require that a
crime be committed in flagrante delicto, and the search
conducted within the vicinity and within reach by the person
arrested is done to ensure that there are no weapons, as well
as to preserve the evidence. (People v. Cogaed, G.R. No.
200334, July 30, 2014)
332. Requirements for a valid search of a moving
motor vehicle

With regard to the search of moving vehicles, this
had been justified on the ground that the mobility of motor
vehicles makes it possible for the vehicle to be searched to
move out of the locality or jurisdiction in which the warrant
must be sought.
This in no way, however, gives the police officers
unlimited discretion to conduct warrantless searches of
automobiles in the absence of probable cause. When a vehicle
is stopped and subjected to an extensive search, such a
warrantless search has been held to be valid only as long as
the officers conducting the search have reasonable or
probable cause to believe before the search that they will find
the instrumentality or evidence pertaining to a crime, in the
vehicle to be searched. (People vs. Mariacos, G.R. No. 188611,
June 16, 2016, Nachura, J.)
333. Requirements for seizure of evidence in plain
view
Under the plain view doctrine, objects falling in the
plain view of an officer who has a right to be in the position to
have that view are subject to seizure and may be presented as
evidence. The plain view doctrine applies when the following
requisites concur: (1) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (2) the
discovery of the evidence in plain view is inadvertent; and (3)
it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or
otherwise subject to seizure. (Sanchez vs. People, G.R. No.
204589, November 19, 2014)
334. Requirements for a valid consented search
Neither was there a consented warrantless search.
Consent to a search is not to be lightly inferred, but shown by
clear and convincing evidence. It must be voluntary in order
to validate an otherwise illegal search; that is, the consent
must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. (Luz v. People,
G.R. No. 197788, February 29, 2012)
335. Terry search.
The Terry search originated from the US case
entitled Terry vs. Ohio.
“Stop and frisk” searches (sometimes referred to as
Terry searches are necessary for law enforcement. That is,
law enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced
with the need to protect the privacy of citizens in accordance
with Article III, Section 2 of the Constitution. (People v.
Cogaed, G.R. No. 200334, July 30, 2014)
It is a limited protective search of outer clothing of
weapons. Probable cause is not required but a genuine
reason must exist in light of a police officer’s experience and
surrounding conditions to warrant the belief that the person
detained has weapons concealed. (Malacat vs. CA, G.R. No.
123595, December 12 1997)
336. Requirements for a valid Terry search
69 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The balance lies in the concept of “suspiciousness”
present in the situation where the police officer finds himself
or herself in. This may be undoubtedly based on the
experience of the police officer. Experienced police officers
have personal experience dealing with criminals and criminal
behavior. Hence, they should have the ability to discern —
based on facts that they themselves observe — whether an
individual is acting in a suspicious manner. Clearly, a basic
criterion would be that the police officer, with his or her
personal knowledge, must observe the facts leading to the
suspicion of an illicit act.”
“The case of Cogaed was different. He was simply a
passenger carrying a bag and traveling aboard a
jeepney. There was nothing suspicious, moreover, criminal,
about riding a jeepney or carrying a bag. The assessment of
suspicion was not made by the police officer but by the
jeepney driver. It was the driver who signalled to the police
that Cogaed was “suspicious.”
It is the police officer who should observe facts that
would lead to a reasonable degree of suspicion of a
person. The police officer should not adopt the suspicion
initiated by another person. This is necessary to justify that
the person suspected be stopped and reasonably
searched. Anything less than this would be an infringement
upon one’s basic right to security of one’s person and effects.
Normally, “stop and frisk” searches do not give the
law enforcer an opportunity to confer with a judge to
determine probable cause. In Posadas v. Court of Appeals,
one of the earliest cases adopting the “stop and frisk” doctrine
in Philippine jurisprudence, this court approximated the
suspicious circumstances as probable cause:
The probable cause is that when the petitioner acted
suspiciously and attempted to flee with the buri bag there was
a probable cause that he was concealing something illegal in
the bag and it was the right and duty of the police officers to
inspect the same.
For warrantless searches, probable cause was
defined as “a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of
the offense with which he is charged.”
“Police officers cannot justify unbridled searches and
be shielded by this exception, unless there is compliance with
the “genuine reason” requirement and that the search serves
the purpose of protecting the public. As stated in Malacat:
[A] “stop-and-frisk” serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that
the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against
the police officer.
The “stop and frisk” search was originally limited to
outer clothing and for the purpose of detecting dangerous
weapons. As in Manalili, jurisprudence also allows “stop and
frisk” for cases involving dangerous drugs.” (People v. Cogaed,
G.R. No. 200334, July 30, 2014)
337. Are warrantless searches pursuant to routine
airport security procedure valid?
Yes. In People v. Johnson, which also involved seizure
of a dangerous drug from a passenger during a routine frisk at
the airport, this Court ruled that such evidence obtained in a
warrantless search was acquired legitimately pursuant to
airport security procedures, thus:
Persons may lose the protection of the search and
seizure clause by exposure of their persons or property to the
public in a manner reflecting a lack of subjective expectation
of privacy, which expectation society is prepared to recognize
as reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking
and terrorism has come increased security at the nation’s
airports. Passengers attempting to board an aircraft routinely
pass through metal detectors; their carry-on baggage as well
as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what
the objects are. There is little question that such searches are
reasonable, given their minimal intrusiveness, the gravity of
the safety interests involved, and the reduced privacy
expectations associated with airline travel. Indeed, travelers
are often notified through airport public address systems,
signs, and notices in their airline tickets that they are subject
to search and, if any prohibited materials or substances are
found, such would be subject to seizure. These
announcements place passengers on notice that ordinary
constitutional protections against warrantless searches and
seizures do not apply to routine airport procedures. (Sales v.
People, G.R. No. 191023, February 06, 2013)
338. Do mandatory drug, alcohol and blood tests
violate the right against unreasonable searches? Explain
Pertaining to candidates
It is not allowed but on different constitutional
ground. It ought to be made abundantly clear, however, that
the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on
its having infringed the constitutional provision defining the
qualification or eligibility requirements for one aspiring to
run for and serve as senator. (SJS vs. DDB, G.R. No. 157870,
November 3, 2008)
Pertaining to secondary and tertiary schools
No. It is within the prerogative of educational
institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is
subject to fair, reasonable, and equitable requirement.
In sum: (a.) Schools and their administrators stand
in loco parentis with respect to their students; (b.) Minor
students have contextually fewer rights than an adult and are
subjects to the custody and supervision of their parents,
guardians, and schools; (c.) Schools acting in loco parentis,
have the duty to safeguard the health and well-being of their
students and may adopt such measure as reasonably
necessary to discharge such duty; and (d.) Schools have the
70 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
right to impose conditions on applicants for admission that
are fair, just, and non-discriminatory. (SJS vs. DDB, G.R. No.
157870, November 3, 2008)
Pertaining to public and private offices
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a
government search or intrusion. And whether a search at
issue hews to the reasonableness standard is judged by the
balancing of the government - mandated intrusion on the
individual's privacy interest against the promotion of some
compelling state interest. In the criminal context,
reasonableness requires showing of probable cause to be
personally determined by a judge. Given that the drug -
testing policy for employees--and students for that matter--
under RA 9165 is in the nature of administrative search
needing what was referred to in Vernonia as "swift and
informal disciplinary procedures," the probable - cause
standard is not required or even practicable. (SJS vs. DDB, G.R.
No. 157870, November 3, 2008)
339. What is the basic requirement in all valid
warrantless searches?
*The warrant specifically describes the place to be
searched and things to be seized.
Purpose: The evident purpose and intent of this
requirement is to limit the things to be seized to those, and
only those, particularly described in the search warrant—to
leave officers of the law with no discretion regarding
what articles they should seize, to the end that
unreasonable searches and seizures may not be committed,
that abuses may not be committed.
340. What are the consequences of an unlawful search
or seizure?
Any evidence obtained in such search and seizure
“shall be inadmissible as evidence for any purpose in any
proceeding.” (Section 3(2), Art. III, 1987 Constitution)
except if there is warrantless search.
341. Exclusionary rule
Any evidence obtained in violation of [the right
against unreasonable searches and seizures] shall be
inadmissible for any purpose in any proceeding. (Section
3(2), Article 2, 1987 Constitution)
342. Fruit of the poisonous tree doctrine
The Constitution provides: “Any evidence obtained
in violation of [the right against unreasonable searches and
seizures] shall be inadmissible for any purpose in any
proceeding.”
Otherwise known as the exclusionary rule or the
fruit of the poisonous tree doctrine, this constitutional
provision originated from Stonehill v. Diokno. This rule
prohibits the issuance of general warrants that encourage law
enforcers to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded as evidence
because it is “the only practical means of enforcing the
constitutional injunction against unreasonable searches and
seizures.” It ensures that the fundamental rights to one’s
person, houses, papers, and effects are not lightly infringed
upon and are upheld. (People v. Cogaed, G.R. No. 200334, July
30, 2014)
343. Valid instances of warrantless arrests
Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting
to commit an offense; (in flagrante delicto)
b) When an offense has just been committed, and he has
probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; (doctrine of hot
pursuit) and
c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another. (Sec. 5, Rule 113, Rules of Court)
d) An arrest by a bondsman for the purpose of
surrendering the accused.
e) Where the accused attempt to leave the country
without the permission of the court.
344. Meaning of probable cause for a valid
warrantless arrest
When an offense has been committed and he has
personal knowledge of the facts indicating that the person to
be arrested has committed the crime.
345. Requirements for a valid in flagrante arrest
(1) The person to be arrested must execute an overt
act indicating 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. (People v. Nazareno, G.R.
No. 201363 March 18, 2013)
346. Overt act requirement
The person to be arrested must execute an overt act
indicating that he has just committed, is actually committing,
or is attempting to commit a crime.
Such overt act is done in the presence or within the
view of the arresting officer.
347. Requirements for a valid hot pursuit arrest
a. An offense has been committed (close proximity
between the arrest and the time of commission of the crime)
71 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
b. The offense has just been committed; and
c. Probable cause based on personal knowledge of
facts and circumstances that the person/s to be arrested
committed it.
348. Administrative arrest
The Constitution does not distinguish between
warrants in a criminal case and administrative warrants in
administrative proceedings. And if one suspected of having
committed a crime is entitled to a determination of the
probable cause against him, by a judge, why should one
suspected of a violation of an administrative nature deserve
less guarantee? Of course it is different if the order of arrest is
issued to carry out a final finding of a violation, either by an
executive or legislative officer or agency duly authorized for
the purpose, as then the warrant is not that mentioned in the
Constitution which is issuable only probable cause. Such, for
example, would be a warrant of arrest to carry out a final
order of deportation, or to effect compliance of an order of
contempt. (Vivo v. Montesa, G.R. No. L-24576, July 29,
1968)
*There is an administrative arrest as an incident to
deportation proceeding.
349. Legality of drug, alcohol and blood tests
Mandatory drug testing, alcohol test, and blood test
are in the nature of administrative search where the probable
standard is not required.
Rights of persons under investigation
350. What are the Constitutional rights or Miranda
rights of persons under investigation for the commission
of an offense?
a. The right to be informed of his right to remain
silent; that any statement he makes may be used as evidence
against him.
b. To have a competent and independent counsel
preferably of his own choice.
c. If the person cannot afford the services of a
counsel, he must be provided with one.
d. These rights cannot be waived except in writing
and in the presence of counsel.
351. At what point will these rights become available
to a person?
a. When the person is already under custodial
investigation.
b. Custodial investigation involves any questioning
initiated by law enforcement.
c. During “critical pre-trial” steps in criminal process.
352. What does custodial investigation mean?
Custodial investigation involves any questioning by
law enforcement people after a person is taken into custody
or deprived of his freedom in any significant manner. That
includes "inviting" a person to be investigated in connection
of a crime of which he's suspect and without prejudice to the
"inviting" officer for any violation of law. If a person is taken
into custody and the interrogation/questioning tends to elicit
incriminating statements, RA 7438 becomes operative.
(People vs. Tan, GR 117321, February 11, 1998.)
353. Are these rights available during a police line up?
No, a police line-up is not considered a part of any
custodial inquest because it is conducted before the stage of
investigation is reached. (People v. Bravo, GR No. 135562)
Here, the process has not yet shifted from the
investigating to the accusatory stage.
When the accused having become the focus of
attention by the police after he had been pointed to by a
person as the possible perpetrator of the crime, it was held
then out of Court identification that was conducted by the
police, the accused was already under custodial investigation.
(People v. Lara, GR No. 199877, Aug. 13, 2012)
354. May these rights be invoked in administrative
investigations?
No, these rights can be invoked only in criminal
investigations.
355. State the Supreme Court’s guidelines on Miranda
rights as expressed in the case of People v. Mahinay
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known
to and understood by said person;
2. He must be warned that he has a right to remain silent and
that any statement he makes may be used as evidence against
him;
3. He must be informed that he has the right to be assisted at
all times and have the presence of an independent and
competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for him;
and that a lawyer may also be engaged by any person in his
behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he
must be informed that no custodial investigation in any form
shall be conducted except in the presence of his counsel or
after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he
has the right to communicate or confer by the most expedient
means – telephone, radio, letter or messenger – with his
lawyer (either retained or appointed), any member of his
immediate family, or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by
his counsel, or be visited by/confer with duly accredited
national or international non-government organization. It
shall be the responsibility of the officer to ensure that this is
accomplished;
72 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
7. He must be informed that he has the right to waive any of
said rights provided it is made voluntarily, knowingly and
intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing
AND in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insist on his waiver
and chooses to speak;
9. That the person arrested must be informed that he may
indicate in any manner at any time or stage of the process that
he does not wish to be questioned with warning that once he
makes such indication, the police may not interrogate him if
the same had not yet commenced, or the interrogation must
ceased if it has already begun;
10. The person arrested must be informed that his initial
waiver of his right to remain silent, the right to counsel or any
of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have
answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence,
as the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole or in
part, shall be inadmissible in evidence.
356. State the rule on extra-judicial confessions
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation shall be in
writing and signed by such person in the presence of his
counsel or in the latter's absence, upon a valid waiver, and in
the presence of any of the parents, elder brothers and sisters,
his spouse, the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel as
chosen by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding. (Sec. 2(d), RA
7438)
What is sought to be avoided is the "evil of extorting
from the very mouth of the person undergoing interrogation
for the commission of an offense, the very evidence with
which to prosecute and thereafter convict him. (People vs.
Bonola 274 SCRA 238 [1997])
The alleged infringement of the constitutional rights
of the accused while under custodial investigation is relevant
and material only to cases in which an extra-judicial
admission or confession extracted from the accused becomes
the basis of his conviction. People vs. Tiadula, 292 SCRA
596 (1998)
357. Meaning of right to be informed
In Andaya v. People (G.R. No. 75930 June 8, 1990)
the Court expounded on the constitutional right to be
informed of the nature and cause of the accusation against the
accused.
x x x As early as the 1904 case of U.S. v. Karelsen, the
rationale of this fundamental right of the accused was already
explained in this wise:
 The object of this written accusation was – First. To When can the right be invoked:
furnish the accused with such a description of the charge
against him as will enable him to make his defense; and > The right to counsel can be invoked at any stage of the
second, to avail himself of his conviction or acquittal for proceedings, even on appeal
protection against a further prosecution for the same cause;
and third, to inform the court of the facts alleged, so that it > However, it can also be waived
may decide whether they are sufficient in law to support a
conviction, if one should be had. In order that this > The accused is deemed to have waived his right to counsel
requirement may be satisfied, facts must be stated, not when he voluntarily submits himself to the jurisdiction of the
conclusions of law. Every crime is made up of certain acts and Court and and proceeds with his defense
intent; these must be set forth in the complaint with
reasonable particularity of time, place, names (plaintiff and > But in two cases, the Court held that the defendant cannot
defendant), and circumstances. In short, the complaint must raise for the first time on appeal his right to have an attorney.
contain a specific allegation of every fact and circumstances If the question is not raised in the trial court, the prosecution
necessary to constitute the crime charged. may go to trial. The question will not be considered in the
appellate court for the first time when the accused fails to
It is fundamental that every element constituting the raise it in the lower court.
offense must be alleged in the information. The main purpose
of requiring the various elements of a crime to be set out in CASANA
the information is to enable the accused to suitably prepare
his defense because he is presumed to have no independent 359. How may these rights be waived?
knowledge of the facts that constitute the offense. The
allegations of facts constituting the offense charged are Any waiver by a person arrested or detained under
substantial matters and an accused’s right to question his the provisions of Article 125 of the Revised Penal Code, or
conviction based on facts not alleged in the information under custodial investigation, shall be in writing and signed
cannot be waived. No matter how conclusive and convincing by such person in the presence of his counsel; otherwise the
the evidence of guilt may be, an accused cannot be convicted waiver shall be null and void and of no effect. (Section 2€, RA
of any offense unless it is charged in the information on which 7438.
he is tried or is necessarily included therein. To convict him
of a ground not alleged while he is concentrating his defense
against the ground alleged would plainly be unfair and 360. What are the requisites for a valid waiver?
underhanded. The rule is that a variance between the
allegation in the information and proof adduced during trial 1. It must be in writing
shall be fatal to the criminal case if it is material and 2. Signed by the person under custodial investigation
prejudicial to the accused so much so that it affects his 3. In the presence of his counsel
substantial rights.[14] (Citations omitted; underscoring
supplied) 361. Exclusionary rule in relation to violation of
Miranda rights
It is settled that it is the allegations in the Information
that determine the nature of the offense, not the technical (3) Any confession or admission obtained in
name given by the public prosecutor in the preamble of the violation of Section 12 or Section 17, Article III of the 1987
Information. From a legal point of view, and in a very real Constitution shall be inadmissible in evidence.
sense, it is of no concern to the accused what is the technical
name of the crime of which he stands charged. It in no way Freedom of religion
aids him in a defense on the merits. That to which his
attention should be directed, and in which he, above all things
else, should be most interested, are the facts alleged. The real
question is not did he commit a crime given in the law some 362. What does the Non-establishment clause mean?
technical and specific name, but did he perform the acts
alleged in the body of the information in the manner therein
set forth.
It simply means that:
358. Meaning of right to counsel
a. The State cannot set up a church;
During the trial, the right to counsel means the
right to effective counsel. During trial, the purpose of the
counsel is not so much to protect the accused from being
forced to confess, but rather is to defend the accused. b. Nor pass laws which aids one religion; aid all
religion, or prefer one religion over another nor force nor
On the other hand, a custodial investigation
has stricter requirements. A custodial investigation requires influence a person to go to or remain away from church
the presence of a competent and independent counsel, who is against his will; or
preferably the accused’s own choice. Furthermore, the
right to counsel could only be waived in writing and in the
presence of counsel.
c. Force to profess a belief or disbelief;

73 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER


d. The State cannot openly or secretly participate in
the affairs of any religious organization or group and vice
versa. (Everson vs. Board of Education, 330 US 1 cited in
Estrada vs. Soledad Escritor, 492 SCRA 1)
363. What are the provisions in the Constitution that
support the Non-establishment clause?
a. No law shall be made respecting an establishment
of religion or prohibiting the free exercise thereof. (Sec. 5,
Art. III)
b. A religious sect or denomination cannot be
registered as a political party. (Sec. 2(5), Art. IX-C)
c. No Sectoral representative from religious
sector. (Sec. 5(2), Art. VI)
d. No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government
orphanage or leprosarium. (Sec. 29 (2), Art. VI)
e. At the option expressed in writing by the
parents or guardians, religion shall be allowed to be
taught to their children or wards in public elementary
and high schools within the regular class hours by
instructors designated or approved by the religious
authorities of the religion to which the children or wards
belong, without additional cost to the Government. (Sec.
3(3), Art. XIV)
364. State the provisions in the Constitution that allow
State support or entanglement with religion?
a. Charitable institutions, churches and personages
or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
74 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from
taxation. (Sec. 28(3), Art. VI)
b. No public money or property shall be
appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or
of any priest, preacher, minister, other religious teacher, or
dignitary as such, except when such priest, preacher, minister,
or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium. (Sec.
29(2), Art. VI)
c. At the option expressed in writing by the
parents or guardians, religion shall be allowed to be
taught to their children or wards in public elementary
and high schools within the regular class hours by
instructors designated or approved by the religious
authorities of the religion to which the children or wards
belong, without additional cost to the Government. (Sec.
3(3), Art. XIV)
d. Educational institutions, other than those
established by religious groups and mission boards, shall
be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum of
the capital of which is owned by such citizens. The
Congress may, however, require increased Filipino equity
participation in all educational institutions. The control
and administration of educational institutions shall be
vested in citizens of the Philippines.
No educational institution shall be established
exclusively for aliens and no group of aliens shall
comprise more than one-third of the enrollment in any
school. The provisions of this sub section shall not apply
to schools established for foreign diplomatic personnel
and their dependents and, unless otherwise provided by
law, for other foreign temporary residents. (Sec. 4(2), Art.
XIV)
365. What are the requirements for religion to be
taught in public elementary and high schools?
a. It should be at the option expressed in writing
by the parents or guardians.
 b. To be taught within the regular class hours by
instructors designated or approved by the religious
authorities of the religion to which the children or wards
belong.
c. Without additional cost to the Government.
(Sec. 3(3), Art. XIV)
366. What is the so-called Lemon Test?
>"Lemon test" (named after the lead plaintiff Alton
Lemon), which details the requirements for legislation
concerning religion. It has threefold:
1. The statute must not result in an "excessive
government entanglement" with religious
affairs. (also known as the Entanglement Prong)
Factors:
a. Character and purpose of
institution benefited.
b. Nature of aid the state provides.
c. Resulting relationship between
government and religious authority.
2. The statute must not advance nor inhibit religious
practice (also known as the Effect Prong)
3. The statute must have a secular legislative
purpose. (also known as the Purpose Prong)
If any of these prongs are violated, the government's
action is deemed unconstitutional under the non-
establishment clause. (Lemon v. Kurtzman, 403 U.S.
602 (1971)
>A regulation is constitutional when: a) it has a
secular legislative purpose; b) it neither advances nor
prohibits religion; and c) it does not foster an excessive
entanglement with religion. (The Diocese of Bacolod v.
COMELEC, GR No. 205728, January 21, 2015)
367. Benevolent accommodation or neutrality test
The theory of benevolent
neutrality or accommodation is premised on a different
view of the wall of separation, associated with Williams,
founder of the Rhode Island colony. Unlike the Jeffersonian
wall that is meant to protect the state from the church, the
wall is meant to protect the church from the state. This
doctrine was expressed in Zorach v. Clauson, which held, viz:
The First Amendment, however, does not say that in
every and all respects there shall be a separation of Church
and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to
each other - hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property
taxes. Municipalities would not be permitted to render police
or fire protection to religious groups. Policemen who helped
75 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals to
the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help
me God in our courtroom oaths- these and all other
references to the Almighty that run through our laws, our
public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object
to the supplication with which the Court opens each session:
God save the United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions
presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities
by adjusting the schedule of public events, it follows the best
of our traditions. For it then respects the religious nature of
our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find in the
Constitution a requirement that the government show a
callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious
influence.
Benevolent neutrality recognizes that religion plays
an important role in the public life of the United States as
shown by many traditional government practices which,
to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of In God We Trust on
American currency; the recognition of America as one nation
under God in the official pledge of allegiance to the flag; the
Supreme Courts time-honored practice of opening oral
argument with the invocation God save the United States and
this Honorable Court; and the practice of Congress and every
state legislature of paying a chaplain, usually of a particular
Protestant denomination, to lead representatives in
prayer. These practices clearly show the preference for one
theological view point the existence of and potential for
intervention by a god over the contrary theological viewpoint
of atheism. Church and government agencies also cooperate
in the building of low-cost housing and in other forms of poor
relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral
dimension.
Examples of accommodations in American
jurisprudence also abound, including, but not limited to the
U.S. Court declaring the following acts as constitutional: a
state hiring a Presbyterian minister to lead the legislature in
daily prayers, or requiring employers to pay workers
compensation when the resulting inconsistency between
work and Sabbath leads to discharge; for government to give
money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior; or to provide
religious school pupils with books; or bus rides to religious
schools; or with cash to pay for state-mandated standardized
tests. (Estrada v. Escritor, A.M. No. P-02-1651, June 22,
2006)
368. What does the Free-exercise clause mean?
 >The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights. (Sec. 5,
Art. III, 1987 Constitution)
>The pinnacle of free exercise protection and the
theory of accommodation in the in the case of Sherbert v.
Verner, which ruled that state regulation that indirectly
restrains or punishes religious belief or conduct must be
subjected to strict scrutiny under the Free Exercise Clause.
>Free exercise clause prohibits the government from
inhibiting religious beliefs with penalties for religious belief
and practice.
> The Free Exercise Clause accords absolute
protection to individual religious convictions and beliefs and
proscribes government from questioning a person’s beliefs or
imposing penalties or disabilities based solely on those
beliefs. The Clause extends protection to both beliefs and
unbelief. (Estrada v. Escritor, supra.)
369. What are the two basic aspects of religious
freedom?
a. The right to believe –which is absolute.
b. The right to act on one’s belief – maybe
regulated if its actualization clashes with the accepted norms
of social behavior and established order and decency.
370. Which one is absolute?
>The right to believe is absolute.
371. What is the belief-action test?
>Belief-action test allows absolute protection to
belief but not to action. (Belief-action test has already been
abandoned. (Estrada v. Escritor, supra.)
76 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
>It is a test used in determining whether or not an
act is within the coverage of freedom to believe which is
absolute as long as the belief is confined within the realm of
thought.
372. What kind of protection is accorded to religious
speech and expressive religious conduct?
Next to belief which enjoys virtually absolute
protection, religious speech and expressive religious
conduct are accorded the highest degree of protection.
Thus, in the 1940 case of Cantwell v. Connecticut, the Court
struck down a state law prohibiting door-to-door solicitation
for any religious or charitable cause without prior approval of
a state agency. The law was challenged by Cantwell, a member
of the Jehovah’s Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the
prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields the tenets of one
may seem the rankest error to his neighbor. To persuade others
to his point of view, the pleader, as we know, resorts to
exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But
the people of this nation have ordained in the light of history,
that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion
and right conduct on the part of citizens of a democracy.
(Estrada v. Escritor, supra.)
>It is subject to regulation of the State in case of a
clear and present danger of substantive evil.
373. What kind of protection is given to religious
conduct?
IN THE AREA OF RELIGIOUS EXERCISE AS A
PREFERRED FREEDOM, HOWEVER, MAN STANDS
ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE
STATE, and so the state interest sought to be upheld must be
so compelling that its violation will erode the very fabric of
the state that will also protect the freedom. In the absence of a
showing that the state interest exists, man must be allowed to
subscribe to the Infinite. (Estrada v. Escritor, supra.)

374. What is the sole valid justification for a prior
restraint or limitation on religious freedom?
In Ebralinag v. The Division Superintendent of
Schools which involved several Jehovahs Witnesses who
were expelled from school for refusing to salute the flag, sing
the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the
religious freedom issue, a unanimous Court overturned an
earlier ruling denying such exemption, using the grave and
imminent danger test, viz:
The sole justification for a prior
restraint or limitation on the exercise of
religious freedom (according to the late
Chief Justice Claudio Teehankee in his
dissenting opinion in German v. Barangan,
135 SCRA 514, 517) is the existence of
a grave and present dangerof a character
both grave and imminent, of a serious
evil to public safety, public morals, public
health or any other legitimate public
interest, that the State has a right (and duty)
to prevent. Absent such a threat to public
safety, the expulsion of the petitioners from
the schools is not justified. (Cited in
Estrada v. Escritor, supra.)
375. What is the compelling state interest test from a
benevolent neutrality stance?
>Compelling state interest – State interest must be
so compelling that its violation will erode the very fabric of
the State that will also protect the freedom. In the absence of
showing that such State interest exists, man must be allowed
to subscribe to the Infinite. (Estrada v. Escritor, supra.)
>It is the test used to determine if the interests of the
State are compelling enough to justify infringement of
religious freedom.
> The benevolent neutrality theory believes that
with respect to governmental actions, accommodation of
religion may be allowed, not to promote the governments
favored form of religion, but to allow individuals and groups
to exercise their religion without hindrance.
376. What are the steps to be followed to apply this
test?
77 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Three-step Process:
a. Has the Statute or government action created
burden on the free exercise of religion?
Courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief since
the free exercise clause prohibits inquiring about its truth.
b. Is there a sufficiently compelling state interest
to justify this infringement of religious liberty?
In this step, the government has to establish that its
purposes are legitimate for the State and that they are
compelling.
c. Has the State in achieving its legitimate
purpose used the least intrusive means possible so that
the free exercise is not infringed any more that necessary
to achieve the legitimate goal of the State?
The analysis requires the State to show that the
means in which it is achieving its legitimate State objective is
at least intrusive means, or it has chosen a way to achieve its
legitimate State end that imposes as little as possible
intrusion on religious beliefs.
Rights of the accused under Section 14
377. What are the rights of the accused under Section
14, Article III of the Constitution?
1. No person shall be held to answer for a criminal
offense without due process of law.
2. In all criminal prosecutions:
a. The accused shall be presumed innocent until the
contrary is proved.
b. Shall enjoy the right to be heard by himself and
counsel.
c. To be informed of the nature and cause of the
accusation against him.
d. To have a speedy, impartial, and public trial.
e. To meet the witnesses face to face.
f. To have compulsory process to secure the
attendance of witnesses and the production of evidence in his
behalf.
However, after arraignment, trial may proceed
notwithstanding the absence of the accused: Provided, that he
has been duly notified and his failure to appear is
unjustifiable.
378. Essential requirements of criminal due process
a. The accused has been heard in a court of
competent jurisdiction.
b. The accused is proceeded against under the
orderly process of law.
 c. The accused has been given notice and the
opportunity to be heard.
d. The judgment rendered was within the authority
of Constitutional law. (Mejia v. Pamaran, G.R. No. L-56741-
42 April 15, 1988)
379. Delay in the resolution of a case as a violation of
due process
When available:
“It must be here emphasized that the right to a
speedy disposition of a case, like the right to speedy trial, is
deemed violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays; or when
unjustified postponements of the trial are asked for and
secured, or when without cause or justifiable motive a long
period of time is allowed to elapse without the party having
his case tried. Equally applicable is the balancing test used to
determine whether a defendant has been denied his right to a
speedy trial, or a speedy disposition of a case for that matter,
in which the conduct of both the prosecution and the
defendant are weighed, and such factors as length of the
delay, reason for the delay, the defendant's assertion or non-
assertion of his right, and prejudice to the defendant resulting
from the delay, are considered." (Gonzales vs.
Sandiganbayan, 199 SCRA 298, 307)
380. The right of the State to due process
>The State and the offended party are entitled to due
process. The State and more so, the offended party, is also
entitled to due process of law.
>The judgment of acquittal was vacated upon a
finding by the Court that there was bias and partiality on the
part of judge and prosecutor.
>In Merciales v. Court of Appeals (G.R. No.
124171. March 18, 2002), it was held that the Petitioner
(mother of the rape victim) was denied due process when the
public prosecutor who was under legal obligation to pursue
the action on her behalf, reneged on that obligation and
refused to perform his sworn duty.
381. Presumption of innocence
In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved.
(Sec. 14(2), Art.III, 1987 Constitution)
>The requirement of proof beyond reasonable doubt
is a necessary corollary of the constitutional right to presume
innocent. (People v. Dramayo, G.R. No. L-21325 October
29, 1971)
382. Presumption of regularity of performance of
official duty vs. presumption of innocence
78 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The presumption of regularity of the performance of
official function cannot by itself affect the constitutional
presumption of innocence of an accused when the
Prosecution’s evidence is weak.
If the inculpatory facts and circumstance are capable
of two or more explanations, one of which is consistent with
innocence of the accused and the other is consistent with
guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction.
But where it is not the sole basis for conviction, the
presumption of regularity of performance may prevail over
the constitutional presumption of innocence. ( People vs.
Acuram, 209 SCRA 281)
383. Give at least four procedural consequences of the
right to be presumed innocent?
a. Equipose rule
b. Every circumstance favoring the innocence of the
accused must be taken into account.
c. The proof against the accused must survive the test
of reason.
d. The strongest suspicion must not be permitted to
sway judgment.
384. Equipoise rule
Under the equipoise rule, when the evidence of both
sides are equally balanced, constitutional presumption of
innocence should tilt the scales in favor of the accused.
(Corpuz v. People, GR No. 74259, 11 July 1991)
385. Right to be heard by himself and counsel
In criminal cases, the right of the accused to be
assisted by counsel is immutable. Otherwise, there will be a
grave denial of due process. The right to counsel proceeds
from the fundamental principle of due process which basically
means that a person must be heard before being condemned.9
In People v. Ferrer, the essence of the right to
counsel was enunciated:
The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits
himself to the cause for the defense and acts accordingly. The
right assumes an active involvement by the lawyer in the
proceedings, particularly at the trial of the case, his bearing
constantly in mind of the basic rights of the accused, his being
well-versed on the case, and his knowing the fundamental
procedures, essential laws and existing jurisprudence. The
right of an accused to counsel finds substance in
the performance by the lawyer of his sworn duty of
fidelity to his client. Tersely put, it means an efficient and
truly decisive legal assistance and not a simple perfunctory
representation. (Cited in the case of Callangan v. People,
G.R. No. 153414 June 27, 2006)
386. May the accused waive his right to counsel during
trial?
No, the right to counsel during the trial is not subject
to waiver. (Flores v. Ruiz, 90 SCRA 428) because “even the
most intelligent or educated man may have no skill in the
science of law, particularly in the rules of procedure and
without counsel, he may be convicted NOT because he is
GUILTY but because he DOES NOT know how to establish his
innocence” (People v. Holgado, 86 Phil 752). Thus, the
conviction of the accused in the lower court was set aside and
the case was remanded for new trial, as the accused was
represented by someone who was not a member of the
Philippine bar (People vs. Santociles GR No. 109149,
December 21, 1999). But the failure of the record to disclose
affirmatively that the trial court advised the accused of his
right to counsel is not sufficient ground to reverse conviction.
The trial court must be presumed to have complied with the
procedure prescribed by law for the hearing and trial of cases,
and such presumption can be overcome only by affirmative
showing to the contrary (People v. Agbayani, GR No.
122770, January 16, 1998)
387. Is the right of the accused to choose his own
counsel during trial absolute?
General Rule: No, the right of the accused to choose
his own counsel during trial is not absolute. While the right to
be represented by counsel during the trial is absolute, the
option of the accused to hire one of his own choice is
limited. Such option cannot be used to sanction
reprehensible dilatory tactics, to trifle with the Rules of Court,
or to prejudice the equally important rights of the State and
the offended party to a speedy and adequate justice (People
v. Serzo, GR. No. 118435, June 20, 1997).
Exception: xxx Upon motion, the accused may be
allowed to defend himself in person when it sufficiently
appears to the court that he can properly protect his right
without the assistance of counsel. (Sec.1, R115, Rules of
Court)
388. When is negligence of counsel considering denial
of right to be heard?
The long standing rule is that a client is bound by the
mistake of his lawyer. (Andrada v People, GR No. 135222,
March 04, 2005) except when the negligence or
incompetence of counsel is deemed so GROSS as to have
prejudiced the Constitutional right of the accused to be heard.
389. Meaning of right of the accused to be informed of
the nature and cause of the accusation against him
So that the accused can adequately prepare for his
defense, obviously, he cannot do so if he has to guess at the
79 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
change that has been leveled against him because of the
ambiguous language of the complaint or information.
The Rules of Court provides that “whenever possible,
a complaint or information should state the designation given
to the offense by the Statute” besides the statements
constituting the same. If there is no such designation,
reference should be made to the section or subsection.
Rationale for this right:
a. To furnish the accused with such a description of
the charge against him as will enable him to make his defense.
b. To avail himself of his conviction or acquittal for
protection against further prosecution for the same cause.
c. To inform the Court of the facts alleged so that it
may decide whether they are sufficient in law to support a
conviction. If one should be had. (US v. Karelsen, GR No.
1376, Jan. 21, 1904)
390. What are the requirements of this right?
a. Information must state the name of the accused.
b. Designation given to the offense by the statute.
c. Statement of the acts or omission so complained of
as resulting to the crime.
d. Name of the offended party.
e. Approximate time and date of commission of
offense.
f. Place where the offense was committed.
g. Every element of the offense must be alleged in the
complaint of information.
391. Give the procedural consequences of the right to
be informed?
a. The accused cannot be convicted thereof due to
violation of due process.
b. The accused, if the information fails to allege
material element of the offense, cannot be convicted even if
the prosecution is able to present evidence during trial with
respect to such elements.
392. What must be alleged in the criminal
information?
a. Section 6, Rule 110, Rules of Court:
Sufficiency of complaint or information. — A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate
date of the commission of the offense; and the place where
the offense was committed.
 b. When an offense is committed by more than one
person, all of them shall be included in the complaint or
information.
c. Specify the qualifying and aggravating
circumstances
d. If there is no designation of the offense, reference
shall be made to the section or subsection of the Statute
punishing it.
393. May the accused be convicted of a crime for
which he was not charged? Briefly explain?
No, the accused may not be convicted of a crime for
which he was not charged. It will violate the rule on the right
of the accused to be informed of the nature and cause of the
accusation against him. Hence, the accused cannot be
convicted even if duly proven.
It is settled that what characterizes the charge is the
actual recital of facts in the complaint or information. For
every crime is made up of certain acts and intent which must
be set forth in the complaint or information with reasonable
particularity of time, place, names (plaintiff and defendant),
and circumstances. In other words, the complaint must
contain a specific allegation of every fact and circumstance
necessary to constitute the crime charged, the accused being
presumed to have no independent knowledge of the facts that
constitute the offense. (People v. Flores, Jr. G. R. No.
128823-24. December 27, 2002)
394. Can the accused waive his right to counsel during
trial?
Refer to question no. 386
395. Can the accused waive his right to be informed of
the nature and cause of the accusation against him?
No, the accused may not waive his right to be
informed of the nature and cause of the accusation against
him. However, the defense may waive the right to enter a plea
and let the Court enter a plea of “NOT GUILTY.”
396. Meaning of speedy trial
A trial free from vexatious, capricious, and
oppressive delays; but justice and fairness not speed are the
objectives. (Acebedo v. Sarmiento, G.R. No. L-28025,
December 16, 1970)
397. Meaning of impartial trial
a. The accused is entitled to “cold” neutrality of an
impartial judge.
80 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
b. An impartial tribunal is bound by the bill of rights
and the strict rules of evidence and procedure.
c. A judge should not only render a just, correct and
impartial decision but should do so in such a manner as to be
free from any suspicion as to its fairness and impartiality and
as to his integrity. While a judge should possess proficiency in
law in order that he can competently construe and enforce the
law, it is more important that he should act and behave in
such a manner that the parties before him should have
confidence in his impartiality. (State Prosecutor v. Muro,
236 SCRA 505)
398. Meaning of public trial
Publicity of the trial is necessary to prevent abuses
that may be committed by the Court to the prejudice of the
Defendant. People have a right to attend the proceeding not
only because of their interest therein but also, so they can see
whether or not the Constitutional safeguards for the benefit of
the accused are being observed.
399. Meaning of right to meet witness face to face
a. It is the right to cross-examine the complainant
and witnesses.
b. The testimony of a witness who has not submitted
himself to cross-examination is not admissible as evidence.
c. The affidavit of the witnesses who are not
presented during the trial and thus are not subjected to cross-
examination are inadmissible because they are hearsay.
d. But the right to cross-examine witness may be
waived.
400. Actual cross-examination vs. opportunity to
cross-examine
a. Mere opportunity and not actual cross-
examination is the essence of the right to cross-examine.
b. The court held that the right to cross-examination
is a personal one which may be waived expressly or impliedly
by conduct amounting to a renunciation of the right to cross-
examination.
c. The common basic principle underlying the
application of the rule on implied waiver is that the party was
given the opportunity to confront and cross-examine an
opposing witness but failed to take advantage of it for reasons
attributable to himself alone. (Savory Luncheonette vs.
Lakas ng Manggagawang Pilipino, G.R. No. L-38964,
January 31, 1975)
DIMAPILIS

401. Meaning of right to compulsory process
Right to compulsory process to secure attendance of witness
and production of evidence.
402. What are the requisites for compelling the
attendance of witnesses or production of evidence in
behalf of the accused?
Requirements for the exercise of the right to secure
attendance of witness:
1. The witness is really material
2. The attendance of the witness was previously obtained
3. The witness will be available at the time desired
4. No similar evidence could be obtained
403. Trial in absentia
Trial in absentia may proceed if the following requisites are
present:
1. Accused has been validly arraigned
2. Accused has been duly notified of the dates of hearing
3. Failure to appear is unjustifiable
Q: Can there be promulgation of judgment in absentia?
A: Promulgation of judgment in absentia is valid provided
that the essential elements are present:
1. Judgment be recorded in the criminal docket
2. Copy be served upon accused or counsel
Note: Recording the decision in the criminal docket
of the court satisfies the requirement of notifying the
accused of the decision wherever he may be.
(Estrada v. People, G.R. No. 162371, Aug. 25, 2005)
404. When is the presence of the accused mandatory?
1. During arraignment and plea
2. During trial, for identification, unless the accused has
already stipulated on his identity during the pre‐trial and that
he is the one who will be identified by the witnesses as the
accused in the criminal case
3. During promulgation of sentence, unless for a light offense,
in which case the accused may appear by counsel or
representative. At such stages of the proceedings, his
presence is required and cannot be waived (People vs. Grano)
Note: While the accused is entitled to be present during
promulgation of judgment, the absence of his counsel during
such promulgation does not affect its validity.
4.Also the promulgation of judgment must be read in the
presence of the accused. The proper clerk of court shall give
notice to the accused personally requireing him to be present
at the promulgation of decision. The presence of the accused
81 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
would not be required in a conviction for light offense.
(Section 6 Rule 120 of the Rules of Court)
Right to bail
405. Who is entitled to bail?
Constitutional Basis:
Article III. SECTION 13. All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
406. When is bail a matter of right?
Rule 114. Section 4. Bail, a matter of right; exception. — All
persons in custody shall be admitted to bail as a matter of
right, with sufficient sureties, or released on recognize as
prescribed by law or this Rule (a) before or after conviction
by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua, or life
imprisonment. Bail as a matter of right
As of October 1, 1994 and rule 114, a person charged with a
crime punishable by life imprisonment is no longer entitled to
bail as a matter of right and instead falls under the above
exception.
When bail is a matter of right:
1. Before or after conviction by the MTC;
2. Before conviction, for all offenses punishable by a
penalty lower than reclusion perpetua
407. When is bail a matter of discretion?
Rule 114 Section 5. Bail, when discretionary. — Upon
conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment,
admission to bail is discretionary. The application for bail may
be filed and acted upon by the trial court despite the filing of a
notice of appeal, provided it has not transmitted the original
record to the appellate court. However, if the decision of the
trial court convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for bail
can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the
pendency of the appeal under the same bail subject to the
consent of the bondsman.
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution,
with notice to the accused, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated
by the circumstance of reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under
probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that he may commit
another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any
party, review the resolution of the Regional Trial Court after
notice to the adverse party in either case. (5a)
408. Does a person who is not under detention have a
right to bail?
General Rule:
A person who is free cannot be granted bail but it is not
necessary that he be charged formally before he can file bail,
so long as he is under arrest.
Only persons under detention may petition for bail, for the
purpose of bail is to secure their provisional release. It follows
that one who is not in the custody of the law cannot ask for
bail.
Note: The rule considers “custody of the law” and does not
cover person who is in the enjoyment of his physical liberty. A
fugitive therefore may not apply for bail unless he gives
himself up first so he may be placed in the custody of law.
Exception:
Bail to guarantee appearance of a witness
A prosecution witness may be required to post bail to ensure
their appearance when:
1. There is substitution for information;
2. The court believes that a material witness will not
appear in the trial
409. Does a person under detention but not yet
formally charged have a right to bail?
But in order that a person can invoke this constitutional
precept, it is not necessary that he should wait until a formal
complaint or information is filed against him. From the
82 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
moment he is placed under arrest, detention or restraint by
the officers of the law, he can claim this guarantee of the Bill
of Rights, and this right he retains unless and until he is
charged with a capital offense and evidence of his guilt is
strong. Indeed if, as admitted on all sides, the precept protects
those already charged under a formal complaint or
information, there seems to be no legal or just reason for
denying its benefits to one as against whom the proper
authorities may even yet conclude that there exists no
sufficient evidence of guilt. To place the former in a more
favored position than the latter would be, to say the least,
anomalous and absurd. If there is a presumption of innocence
in favor of one already formally charged with criminal offense
(Constitution, Article III, section 1[17], a fortiori, this
presumption should be indulged in favor of one not yet so
charged, although already arrested or detained.
(Teehankee vs. Rovira)
410. Is the hearing for the application for bail
mandatory?
Yes. A hearing for the application of bail is to be conducted
when a person in custody for the commission of an offense
punishable by Death, reclusion perpetua or life imprisonment.
Bail in this type is not a matter of right.
When the granting of bail is not a matter of right or is merely
discretionary, a hearing whether summary or otherwise in
the discretion of the court should first be conducted to
determine the existence of strong evidence or lack of it,
against the accused to enable the Judge to make an intelligent
assessment of the evidence presented by the parties.
411. After receiving an application for bail, what are
the things that a judge must do?
"(1) Notify the prosecutor of the hearing of the application for
bail or require him to submit his recommendation (Section
18, Rule 114 of the Rules of Court as amended;
"(2) Conduct a hearing of the application for bail regardless of
whether or not the prosecution refuses to present evidence to
show that the guilt of the accused is strong for the purpose of
enabling the court to exercise its sound discretion (Sections 7
and 8, supra);
"(3) Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the prosecution
(Baylon v. Sison, supra);
"(4) If the guilt of the accused is not strong, discharge the
accused upon the approval of the bailbond. (Section 19,
supra). Otherwise, petition should be denied."
The Court added: "The above-enumerated procedure should
now leave no room for doubt as to the duties of the trial judge
in cases of bail applications. So basic and fundamental is it to
conduct a hearing in connection with the grant of bail in the
proper cases that it would amount to judicial apostasy for any
member of the judiciary to disclaim knowledge or awareness
thereof." (Narciso vs. Santa Romana Cruz)
412. When is a hearing bail is discretionary, what is
mandatory?
We laid down the following rules outlining the duties of the
judge in case an application for bail is filed:
Xxx
2. Where bail is a matter of discretion, conduct a hearing of
the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt
of the accused is strong for the purpose of enabling the court
to exercise its sound discretion (Section 7 and 8, id.);
xxx
This Court has uniformly ruled that even if the prosecution
refuses to adduce evidence or fails to interpose any objection
to the motion for bail, it is still mandatory for the court to
conduct a hearing or ask searching and clarificatory questions
from which it may infer the strength of the evidence of guilt,
or lack of it, against the accused. Where the prosecutor
refuses to adduce evidence in opposition to the application to
grant and fix bail, the court may ask the prosecution such
questions as would ascertain the strength of the States
evidence or judge the adequacy of the amount of bail.
Irrespective of respondent judges opinion that the evidence of
guilt against the accused is not strong, the law and settled
jurisprudence demand that a hearing be conducted before
bail may be fixed for the temporary release of the accused, if
bail is at all justified. (Zuo Vs. Macabebe)
When the grant of bail is discretionary, due process requires
that the prosecution must be given an opportunity to present,
within a reasonable time, all the evidence that it may desire to
introduce before the court should resolve the motion for bail.
Whether bail is a matter of right or discretion, reasonable
notice of hearing is required to be given to the prosecutor or
fiscal or at least must be asked for his recommendation
because in fixing the amount of bail, the Judge is required to
take into account as provided in the Rule.
See also answer in no. 410.
413. When bail is discretionary, what is the burden of
the prosecution?
When the grant of bail is discretionary, the prosecution has
the burden of proving that the evidence of guilt is strong.
Basis:
83 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Section 8. Rule 114 - Burden of proof in bail
application. — At the hearing of an application for bail filed
by a person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or life
imprisonment, the prosecution has the burden of showing
that evidence of guilt is strong.
414. What must it do to discharge this burden?
It must produce all the evidence that it may desire to
introduce before the court should resolve the motion for bail.
415. What is the limitation on the power of the court
to set bail?
 Excessive bail shall not be allowed
 Amount of bail shall be in accordance with rule:
The judge who issued the warrant or granted the application
shall fix a reasonable amount of bail considering primarily,
but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.
416. Does a prospective extradite have the right to
bail? Is the right to bail limited to criminal proceedings?
Briefly explain.
The Philippines, along with the other members of the family
of nations, committed to uphold the fundamental human
rights as well as value the worth and dignity of every person.
This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity of
every human person and guarantees full respect for human
rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty
and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and
order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every
person under detention such remedies which safeguard their
fundamental right to liberty. These remedies include the right
to be admitted to bail. While this Court in Purganan limited
the exercise of the right to bail to criminal proceedings,
however, in light of the various international treaties giving
recognition and protection to human rights, particularly the
right to life and liberty, a reexamination of this Court’s ruling
in Purganan is in order.
 First, we note that the exercise of the State’s power
to deprive an individual of his liberty is not
necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such as
deportation and quarantine,4 have likewise been
detained.
Second, to limit bail to criminal proceedings would be
to close our eyes to our jurisprudential history.
Philippine jurisprudence has not limited the exercise
of the right to bail to criminal proceedings only. This
Court has admitted to bail persons who are not
involved in criminal proceedings. In fact, bail has
been allowed in this jurisdiction to persons in
detention during the pendency of administrative
proceedings, taking into cognizance the obligation of
the Philippines under international conventions to
uphold human rights.
Extradition has thus been characterized as the right of a
foreign power, created by treaty, to demand the surrender of
one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to
surrender him to the demanding state.8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal, an
extradition proceeding is not by its nature criminal, for it is
not punishment for a crime, even though such punishment
may follow extradition.10 It is sui generis, tracing its existence
wholly to treaty obligations between different nations.11 It is
not a trial to determine the guilt or innocence of the
potential extraditee.12 Nor is it a full-blown civil action, but
one that is merely administrative in character.13 Its object is
to prevent the escape of a person accused or convicted of a
crime and to secure his return to the state from which he fled,
for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is
characterized by the following: (a) it entails a deprivation of
liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by
Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary
detention of the accused" if such "will best serve the interest
of justice." We further note that Section 20 allows the
requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of the
request for extradition;" and that release from provisional
arrest "shall not prejudice re-arrest and extradition of the
accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly
administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a
prolonged restraint of liberty, and forced to transfer to
the demanding state following the
proceedings. "Temporary detention" may be a necessary
step in the process of extradition, but the length of time of the
detention should be reasonable.
Records show that private respondent was arrested on
September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained for
over two (2) years without having been convicted of any
84 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
crime. By any standard, such an extended period of detention
is a serious deprivation of his fundamental right to liberty. In
fact, it was this prolonged deprivation of liberty which
prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of
bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to
due process under the Constitution.
The applicable standard of due process, however, should not
be the same as that in criminal proceedings. In the latter, the
standard of due process is premised on the presumption of
innocence of the accused. As Purganancorrectly points out, it
is from this major premise that the ancillary presumption in
favor of admitting to bail arises. Bearing in mind the purpose
of extradition proceedings, the premise behind the issuance of
the arrest warrant and the "temporary detention" is the
possibility of flight of the potential extraditee. This is based on
the assumption that such extraditee is a fugitive from
justice.15 Given the foregoing, the prospective extraditee thus
bears the onus probandi of showing that he or she is not a
flight risk and should be granted bail.
An extradition proceeding being sui generis, the standard of
proof required in granting or denying bail can neither be the
proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases.
While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply
given the object of extradition law which is to prevent the
prospective extraditee from fleeing our jurisdiction. In his
Separate Opinion in Purganan, then Associate Justice, now
Chief Justice Reynato S. Puno, proposed that a new standard
which he termed "clear and convincing evidence" should
be used in granting bail in extradition cases. According to
him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence.
The potential extraditee must prove by "clear and convincing
evidence" that he is not a flight risk and will abide with all the
orders and processes of the extradition court.
In this case, there is no showing that private respondent
presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial court
to determine whether private respondent may be granted bail
on the basis of "clear and convincing evidence."
(Government of Hongkong vs Olalia)
417. Do soldiers under court martial have the right to
bail?
We find that the right to bail invoked by the private
respondents in G.R. Nos. 95020 has traditionally not been
recognized and is not available in the military, as an exception
to the general rule embodied in the Bill of Rights. This much
was suggested in Arula, where we observed that "the right to
a speedy trial is given more emphasis in the military where
the right to bail does not exist.
The justification for this exception was well explained by the
Solicitor General as follows:

The unique structure of the military should be enough reason
to exempt military men from the constitutional coverage on
the right to bail.
The argument that denial from the military of the right to bail
would violate the equal protection clause is not acceptable.
This guaranty requires equal treatment only of persons or
things similarly situated and does not apply where the subject
of the treatment is substantially different from others. The
accused officers can complain if they are denied bail and other
members of the military are not. But they cannot say they
have been discriminated against because they are not allowed
the same right that is extended to civilians. (Comendador vs
Villa)
Legal assistance & access to courts
418. Free legal assistance
SECTION 11. Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to
any person by reason of poverty.
The integrated Bar of the Philippines provides deserving
indigents with free legal aid, including representation in
courts.
419. Free access to courts
SECTION 11. Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to
any person by reason of poverty.
Habeas corpus, habeas data, amparo
420. What is the writ of habeas corpus?
A Latin phrase which literally means “you have the body.”
Basically, it is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with day and cause of his capture
and detention, to do, submit to, and receive whatsoever the
court or judge awarding the writ shall consider in that behalf.
It is a remedy to all cases of illegal confinement or detention:
1. By which a party is deprived of his liberty or;
2. By which the rightful custody of any person is
withheld from the person entitled thereto.
421. Give instances when this privilege is available?
The Writ of Habeas Corpus extends to all cases of illegal
confinement or detention by which any person is deprived of
his liberty, or by which the rightful custody of any person is
withheld from the one entitled thereto.
 There has been deprivation of a constitutional right
resulting in a restraint of a person;
 The court has no jurisdiction to impose sentence;
85 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
 An excessive penalty has been imposed in which case
the sentence is void as to the excess
422. When may this privilege be suspended?
SECTION 15. The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or rebellion
when the public safety requires it.
423. What are the limitations to the power to suspend
this privilege?
SECTION 16. Article VII. Xxx In case of invasion or rebellion,
when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in
accordance with its rules without any need of a call.
Xxx
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
in or directly connected with the invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
424. Writ of amparo
It is a remedy available to any person whose right to life,
liberty, and security has been violated or is threatened with
violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ covers
extralegal killings and enforced disappearances or threats
thereof. (Rule on Writ of Amparo)
425. What rights are protected by the writ of amparo?
 extralegal killings - Killings committed without due
process of law, legal safeguards or judicial
proceedings. (Secretary of National Defense v.
Manalo, G.R. No. 180906, Oct. 7, 2008) These include
the illegal taking of life regardless of the motive,
summary and arbitrary executions, salvaging even of
suspected criminals, and threats to take the life of
persons who are openly critical of erring government
officials and the like.
  enforced disappearances or threats thereof - An
arrest, detention or abduction of a person by a
government official or organized groups or private
individual acting with the direct or indirect
acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons
outside the protection of law. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
426. What remedies may be obtained under the writ
of amparo?
The writ of amparo is an extraordinary and independent
remedy that provides rapid judicial relief, as it partakes of a
summary proceeding that requires only substantial evidence
to make the appropriate interim and permanent reliefs
available to the petitioner. It is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence
that will require full and exhaustive proceedings. Rather, it
serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances.
It is preventive in that it breaks the expectation of impunity in
the commission of these offenses, and it is curative in that it
facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action.
Interim Reliefs under the writ:
SEC. 14. Interim Reliefs. — Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may
grant any of the following reliefs:
(a) Temporary Protection Order. – The court,
justice or judge, upon motion or motu proprio, may
order that the petitioner or the aggrieved party and
any member of the immediate family be protected in
a government agency or by an accredited person or
private institution capable of keeping and securing
their safety. If the petitioner is an organization,
association or institution referred to in Section 3(c)
of this Rule, the protection may be extended to the
officers involved.
The Supreme Court shall accredit the persons and
private institutions that shall extend temporary
protection to the petitioner or the aggrieved party
and any member of the immediate family, in
accordance with guidelines which it shall issue.
The accredited persons and private institutions shall
comply with the rules and conditions that may be
imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession or control of a
86 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
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 motion shall state in detail the place or places to
be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge
of the enforced disappearance or whereabouts of the
aggrieved party.
If the motion is opposed on the ground of national
security or of the privileged nature of the
information, the court, justice or judge may conduct
a hearing in chambers to determine the merit of the
opposition.
The movant must show that the inspection order is
necessary to establish the right of the aggrieved
party alleged to be threatened or violated.
The inspection order shall specify the person or
persons authorized to make the inspection and the
date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.
(c) Production Order. – The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession, custody or control of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which
constitute or contain evidence relevant to the
petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf
of the movant.
The motion may be opposed on the ground of
national security or of the privileged nature of the
information, in which case the court, justice or judge
may conduct a hearing in chambers to determine the
merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of all
the parties.
(d) Witness Protection Order. – The court, justice
or judge, upon motion or motu proprio, may refer
the witnesses to the Department of Justice for
admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions capable of
keeping and securing their safety.
427. Writ of habeas data
It is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by unlawful
act or omission of a public official or employee, or of a private
individual or entity engaged in gathering, collecting or storing
data or information regarding the person, family, home and
correspondence of the aggrieved party.
428. What rights are protected by the writ of habeas
data?
Right to privacy in life, liberty or security is violated or
threatened by unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in
gathering, collecting or storing data or information regarding
the person, family, home and correspondence of the aggrieved
party.
429. What remedies may be obtained under the writ
of habeas data?
The writ of habeas data provides a judicial remedy to protect
a person’s right to control information regarding oneself,
particularly in instances where such information is being
collected through unlawful means in order to achieve
unlawful ends. As an independent and summary remedy to
protect the right to privacy—especially the right to
informational privacy—the proceedings for the issuance of
the writ of habeas data does not entail any finding of criminal,
civil or administrative culpability. If the allegations in the
petition are proven through substantial evidence, then the
Court may (a) grant access to the database or information; (b)
enjoin the act complained of; or (c) in case the database or
information contains erroneous data or information, order its
deletion, destruction or rectification. Balao v. Arroyo
430. Writ of habeas corpus v. writ of amparo
A writ of amparo is distinguished from the writ of habeas
corpus in that it covers violations of constitutional and civil
rights other than unlawful deprivation of liberty, like enforced
disappearances and extralegal killings.
431. Writ of habeas corpus v. writ of habeas data
The function of the proceeding of habeas corpus is to inquire
into the legality of ones detention.
The writ of habeas data mandates the military and other
government agents to release information about the victims
of enforced disappearances and extralegal killings.
432. Writ of amparo v. writ of habeas data
Habeas data essentially allows families of victims of enforced
disappearance to petition the courts to compel government
and security officials to allow access to documents about the
missing.
87 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The writ of amparo on the other hand, denies state officials
the defense of denial with which they normally evade
petitions for habeas corpus that families of missing persons
file and compels them instead to exert efforts to find these
missing persons or face sanctions.
433. State the remedies available under the writ of
amparo and writ of habeas data
See 426 and 429
434. Is the principle of command responsibility
applicable in a petition for a writ of amparo?
If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the
author who, at the first instance, is accountable for, and has
the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial
measures that may be appropriate under the premises to
protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to
fix criminal liability on respondents preparatory to criminal
prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there
be any. (Rubrico vs. Arroyo)
The inapplicability of the doctrine of command responsibility
in an amparo proceeding does not, by any measure, preclude
impleading military or police commanders on the ground that
the complained acts in the petition were committed with their
direct or indirect acquiescence. Commanders may therefore
be impleaded—not actually on the basis of command
responsibility—but rather on the ground of their
responsibility, or at least accountability. Balao v. Arroyo
435. Is the writ of amparo a remedy against the
actions of private individuals?
Yes. It is a remedy available to any person whose right to life,
liberty, and security has been violated or is threatened with
violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a
writ of amparo may lie against a private individual or entity.
But even if the person sought to be held accountable or
responsible in an amparo petition is a private individual or
entity, still, government involvement in the disappearance
remains an indispensable element. Here, petitioners are mere
security guards at Grand Royale Subdivision in Brgy. Lugam,
Malolos City and their principal, the Asian Land, is a private
entity. They do not work for the government and nothing has
been presented that would link or connect them to some
covert police, military or governmental operation. As
discussed above, to fall within the ambit of A.M. No. 07-9-12-
SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark
of State participation differentiates an enforced
disappearance case from an ordinary case of a missing
person. Navia vs Pardico
Right against self-incrimination
436. May a person not accused of a crime avail of this
right?
Yes. It may be claimed not only by the accused but also by any
witness to whom a question calling for an incriminating
answer is addressed.
437. When may this right be invoked?
The right is available not only in criminal prosecutions but
also in all other government proceedings, including civil
actions and administrative or legislative investigations that
possess a criminal or penal aspect—but not to private
investigations done by private individual (BPI vs. CASA, 430
SCRA 261).
The privilege against self‐incrimination can be claimed only
when the specific question, incriminatory in character, is
actually addressed to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a
subpoena, to decline to appear before the court at the time
appointed. The privilege against self‐incrimination is not self‐
executing or automatically operational. It must be claimed. It
follows that the right may be waived, expressly, or impliedly,
as by a failure to claim it at the appropriate time.
438. What kind of compulsion does this right cover?
The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand ofcounsel is not
required.
Note: It applies only to testimonial compulsion and
production of documents, papers and chattels in court except
when books of account are to be examined in the exercise of
police power and the power of taxation. An accused may be
compelled to be photographed or measured, his garments
may be removed, and his body may be examined. However, an
order requiring the accused to write so that his handwriting
may be validated with the documentary evidence is covered
by the constitutional proscription against self‐incrimination.
439. Is the use of the body of the accused as evidence
violative of this right?
88 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
No. The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and
not the inclusion of his body in evidence when it may be
material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand ofcounsel is not
required.
Note: in the case of Dela Cruz vs People, the SC ruled that the
taking of urine sample violates the constitutional right of the
accused because the taking of urine sample was not related to
the offense imputed to the accused.
We emphasize that the circumstances in Gutangare clearly
different from the circumstances of petitioner in the instant
case. First, Gutang was arrested in relation to a drug case.
Second, he volunteered to give his urine. Third, there were
other pieces of evidence that point to his culpability for the
crimes charged. In the present case, though, petitioner was
arrested for extortion; he resisted having his urine sample
taken; and finally, his urine sample was the only available
evidencethat was used as basis for his conviction for the use
of illegal drugs.
The drug test was a violation of petitioner’s right to privacy
and right against self-incrimination.
440. May the accused be compelled to produce
documents, papers and chattels that may be used against
him?
No. Prohibition extends to the compulsion for the production
of documents, papers and chattels that may be used against
the witness except when the state has the right to the same
such as book of accounts of corporation.
441. May the accused be compelled to produce a
specimen of his handwriting that will be used against
him?
No. Section 17 of the 1987 Constitution, “no person shall be
compelled to be a witness against himself.” Since the
provision prohibits compulsory testimonial incrimination, it
does not matter whether the testimony is taken by oral or
written. Writing is not purely a mechanical act because it
requires the application of intelligence and attention. The
purpose of the privilege is to avoid and prohibit thereby the
repetition and recurrence of compelling a person, in a
criminal or any other case, to furnish the missing evidence
necessary for his conviction. (Bermudez v. Castillo, July 26,
1937; Beltran v. Samson, G.R. No. 32025, September 23, 1929)
ASAS
Right to speedy disposition of cases
442. State the right to speedy disposition of cases?
All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies. (Article 3, Section 16, 1987
Constitution)
443. Who is entitled to this right?
This protection extends to all citizens and covers the
periods before, during and after trial, affording broader
protection than Section 14(2), which guarantees merely the
right to a speedy trial. However, just like the constitutional
guarantee of speedy trial, speedy disposition of cases is a
flexible concept. It is consistent with delays and depends
upon the circumstances. What the Constitution prohibits are
unreasonable, arbitrary and oppressive delays, which render
rights nugatory. (Lumanog v. People, G.R. No. 182555 :
September 7, 2010, Villarama)
444. How is this right to different to the right to
speedy trial?
The distinctions are as follows:
a.) As to applicability. The right to speedy
disposition of cases applies to criminal, civil, quasi-judicial,
and administrative cases whereas right to speedy trial applies
only to criminal cases.
b.) As to nature of the right. The right to speedy
disposition of cases is a constitutional right while the right to
speedy trial is a statutory right.
c.) As to coverage. The coverage of the right to
speedy disposition of cases is from commencement of the
case up to its termination while right to speedy trial covers
only the presentation of evidence.
Right against involuntary servitude
445. What are the instances when involuntary
servitude is deemed valid?
The instances where involuntary servitude is valid
are as follows:
a.) Punishment for a crime for which the party has
been duly convicted;
b.) Personal military or civil service in the interest of
national defense;
c.) In naval enlistment, a person who enlists in a
merchant ship may be compelled to remain in the service
until the end of a voyage;
d.) Posse comitatus or conscription of able-bodied
men for the apprehension of criminals;
e.) Return to work order issued by the DOLE Secretary or the
President; and
89 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
f.) Minors under patria potestas and obliged to obey their
parents.
Prohibited punishments
446. What kinds of punishments are prohibited under
Section 10, Article III of the Constitution?
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
The employment of physical, psychological, or
degrading punishment against any prisoner or detainee or the
use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law. (Section 19,
Article 3, 1987 Constitution)
447. When is a punishment cruel, degrading or
inhuman?
A penalty is cruel and inhuman if it involves torture
and lingering suffering. It is degrading if it exposes a person
to public humiliation.
448. When may Congress impose the death penalty?
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to
reclusion perpetua. (Section 19(1), Article 3, 1987
Constitution)
449. Is death by lethal injection cruel and unusual
punishment?
In Echegaray v. Executive Secretary, this Court in
a per curiam Decision held that Republic Act No. 8177, even if
it does not provide in particular the details involved in the
execution by lethal injection, is not cruel, degrading or
inhuman, and is thus constitutional. Any infliction of pain in
lethal injection is merely incidental in carrying out the
execution of the death penalty and does not fall within the
constitutional proscription against cruel, degrading or
inhuman punishment.
The Court adopted the American view that what is
cruel and unusual is not fastened to the obsolete but may
acquire meaning as public opinion becomes enlightened by
humane justice and must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society. (Perez vs. People, G.R. No. 164763, February 12, 2008,
Reyes, R.T. J.)
450. When is a fine excessive?

Whether or not the penalties prescribed by law upon
conviction of violations of particular statutes are too severe or
are not severe enough are questions as to which
commentators on the law may fairly differ; but it is the duty of
the courts to enforce the will of the legislator in all cases
unless it clearly appears that a given penalty falls within the
prohibited class of excessive fines or cruel and unusual
punishments. Manifestly a fine of P300 prescribed for the
violation of the provisions of the Opium Law does not fall
within the prohibited class of penalties.
The question is not whether, in the opinion of the
court, the minimum fine prescribed by law is in excess of that
which the court might consider expedient or advisable were it
called upon to prescribe such penalty. The exercise of
discretion in this regard is conferred not upon the court but
upon the legislator. Hence the courts will be justified in
declaring a fine prescribed by statute to be excessive, only in
those cases where it is so clearly so, considering the nature of
the violation of the law for which it is prescribed, that all
right-minded men will agree that it exceeds the utmost limit
of punishment which the violation of the law demands.
In a former case we discuss at length the nature and
the gravity of the injury to the body politic which it is asserted
would result from the unchecked spread of the opium habit,
and we then expressed our belief that the legislator was
clearly within his prerogative in enacting the statute defining
an penalizing the unauthorized use of the drug and its
derivatives. (U.S. vs. Lim Sing, 23, Phil. Rep., 424.) Adhering to
the doctrine and the reasoning of that opinion we have no
hesitation in holding that in prescribing a minimum penalty of
P300 for the violation of the penal provisions of that statute,
the legislator did not exceed the limits of the discretion
conferred upon him in that regard, and that this penalty is not
therefore excessive in the sense in which that word is used in
the Philippine Bill of Rights. (US vs. Valera, G.R. No. L-8956,
February 4, 1914 Carson, J.)
The right against double jeopardy
451. What is the basic meaning of the right against
double jeopardy?
No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act.
(Section 21, Article 3, 1987 Constitution)
Double jeopardy refers to a situation wherein the
accused, after having been previously convicted or acquitted
of an offense or the proceedings against him terminated
without his express consent, is again charged with the same
offense.
90 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
452. What are the three related protections covered
by this right?
Double jeopardy provides three related protections:
(1) against a second prosecution for the same offense after
acquittal, (2) against a second prosecution for the same
offense after conviction, and (3) against multiple punishments
for the same offense. (People vs. Dela Torre, G.R. No. 137953-
58, April 11, 2002, Panganiban, J.)
453. What are the requisites for double jeopardy to
attach?
Double jeopardy exists when the following requisites
are present: (1) a first jeopardy attached prior to the second;
(2) the first jeopardy has been validly terminated; and (3) a
second jeopardy is for the same offense as in the first. A first
jeopardy attaches only (a) after a valid indictment; (b) before
a competent court; (c) after arraignment; (d) when a valid
plea has been entered; and (e) when the accused was
acquitted or convicted, or the case was dismissed or
otherwise terminated without his express consent. (People v.
Nazareno, G.R. No. 168982, August 5, 2009)
454. What are the exceptions to the rule that jeopardy
will not attach if the case is dismissed with the consent of
the accused?
The exceptions are as follows: (a.) Dismissal of the
case upon a demurrer to evidence; and (b.) Dismissal based
on the denial of the accused’s right to speedy trial.
455. What is the finality of acquittal rule?
A judgment of acquittal is final and is no longer
reviewable. It is also immediately executory and the State
may not seek its review without placing the accused in double
jeopardy. (People v. Nazareno, G.R. No. 168982, August 5,
2009)
456. What are the exceptions to this rule?
A petition for certiorari under Rule 65, not appeal, is
the remedy to question a verdict of acquittal whether at the
trial court or at the appellate level. In our jurisdiction, We
adhere to the finality-of-acquittal doctrine, that is, a judgment
of acquittal is final and unappealable. The rule, however, is
not without exception. In several cases,9the Court has
entertained petitions for certiorari questioning the acquittal
of the accused in, or the dismissals of, criminal cases. Thus, in
People v. Louel Uy, the Court has held:
Like any other rule, however, the above said rule is
not absolute. By way of exception, a judgment of acquittal in a
criminal case may be assailed in a petition for certiorari
under Rule 65 of the Rules of Court upon clear showing by
the petitioner that the lower court, in acquitting the accused,
committed not merely reversible errors of judgment but
also grave abuse of discretion amounting to lack or excess of
jurisdiction or a denial of due process, thus rendering the
assailed judgment void. As offense subject of the second prosecution (second
offense) necessarily includes the offense charged in the
In People v. Laguio, Jr. where the acquittal of the
former complaint or information (first offense) when some of
accused was via the grant of his demurrer to evidence, We
pointed out the propriety of resorting to a petition the essential elements or ingredients of the second offense , as
for certiorari. Thus: alleged in the complaint or information, constitute the first
offense. (Section 5, Rule 120 of the Rules of Court)
By this time, it is settled that the appellate court may
review dismissal orders of trial courts granting an accused’s 459. What is the rule on supervening facts?
demurrer to evidence. This may be done via the special civil
action of certiorari under Rule 65 based on the ground of
The rule allows the prosecution of another offense if
grave abuse of discretion, amounting to lack or excess of
jurisdiction. Such dismissal order, being considered void subsequent development changes the character of the first
judgment, does not result in jeopardy. Thus, when the order indictment under which he may have already been charged or
of dismissal is annulled or set aside by an appellate court in convicted.
an original special civil action via certiorari, the right of the
accused against double jeopardy is not violated. (People vs. 460. When may courts review a judgment of acquittal?
Hon. Enrique C. Asis, G.R. No. 173089, August 25, 2010,
Mendoza, J.)
An instance when the State can challenge a judgment
of acquittal is pursuant to the exercise of our judicial power
457. What is the “same evidence test”?
“to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
It must be noticed that the protection of the
part of any branch or instrumentality of the Government,” as
Constitution inhibition is against a second jeopardy for
implemented through the extraordinary writ of certiorari
the same offense, the only exception being, as stated in the
under Rule 65 of the Rules of Court. In such instance,
same Constitution, that "if an act is punished by a law and an
however, no review of facts and law on the merits, in the
ordinance, conviction or acquittal under either shall
manner done in an appeal, actually takes place; the focus of
constitute a bar to another prosecution for the same act." The
the review is on whether the judgment is per se void on
phrase same offense, under the general rule, has always been
jurisdictional grounds, i.e., whether the verdict was rendered
construed to mean not only the second offense charged is
by a court that had no jurisdiction; or where the court has
exactly the same as the one alleged in the first information,
appropriate jurisdiction, whether it acted with grave abuse of
but also that the two offenses are identical. There is identity
discretion amounting to lack or excess of jurisdiction. In other
between the two offenses when the evidence to support a
words, the review is on the question of whether there has
conviction for one offense would be sufficient to warrant a
been a validly rendered decision, not on the question of the
conviction for the other. This so called "same-evidence test"
decision’s error or correctness. Under the exceptional nature
which was found to be vague and deficient, was restated by
of a Rule 65 petition, the burden—a very heavy one—is on
the Rules of Court in a clearer and more accurate form. Under
the shoulders of the party asking for the review to show the
said Rules there is identity between two offenses not only
presence of a whimsical or capricious exercise of judgment
when the second offense is exactly the same as the first, but
equivalent to lack of jurisdiction; or of a patent and gross
also when the second offense is an attempt to commit the first
abuse of discretion amounting to an evasion of a positive duty
or a frustration thereof, or when it necessary includes or is
or a virtual refusal to perform a duty imposed by law or to act
necessarily included in the offense charged in the first
in contemplation of law; or to an exercise of power in an
information. (Carmelo vs. People, G.R. No. L-3580, March 22,
arbitrary and despotic manner by reason of passion and
1950, Moran, C.J.)
hostility. (People vs. Nazareno, 595 SCRA 438(2009)
458. To raise double jeopardy as a defense, must the
Prohibition on ex post facto laws and bills of attainder
second offense be the same as the first? Briefly explain.

461. Give at least six kinds of ex post facto laws

As a rule, the second offense must be the same as the
first. By way of exception, if an act is punished by a law and
The kinds of ex-post facto law are as follows:
an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
a.) Every law that make criminal an act done before
the passage of the law and which was innocent when done,
The phrase same offense, under the general rule, has
and punishes such an act;
always been construed to mean not only the second offense
charged is exactly the same as the one alleged in the first
b.) Every law that aggravates a crime, or makes it
information, but also that the two offenses are identical.
greater than it was when committed;
(Carmelo vs. People, G.R. No. L-3580, March 22, 1950, Moran,
C.J.)

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 c.) Every law that changes punishment, and inflict a
greater punishment than the law annexed to the crime when
committed;
d.) Every law that alters the legal rules of evidence,
and receives less or different testimony that the law required
at the time of the commission of the offense, in order to
convict the offender;
e.) Every law which, assuming to regulate civil rights
and remedies only, in effect imposes a penalty or the
deprivation of right for something which when done was
lawful; and
f.) Every law which deprives person accused of crime
of some lawful protection to which they have become entitled,
such as the protection of a former conviction or acquittal, or
of a proclamation of amnesty.
462. What are the characteristics of an ex post facto
law?
The characteristics of ex-post facto law are as
follows:
a.) It refers to criminal matters;
b.) It is retroactive in its application;
c.) It is prejudicial to the accused.
463. Meaning of a bill of attainder
A bill of attainder is a legislative act that inflicts
punishment without trial, its essence being the substitution of
legislative fiat for a judicial determination of guilt.
464. Characteristics of a bill of attainder
A bill of attainder is a legislative act that inflicts
punishment without trial, its essence being the substitution of
legislative fiat for a judicial determination of guilt. It is only
when statute applies either to named individuals or to easily
ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial that it becomes a
bill of attainder.
465. May a bill of attainder be an ex post facto law?
Yes. Nor is it enough that the statute specify persons
or groups in order that it may fall within the ambit of the
prohibition against bills of attainder. It is also necessary that
it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a
legislative adjudication of guilt. As Justice Frankfurter
observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post facto features. This is the
historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be
passed.' ... Therefore, if [a statute] is a bill of attainder it is also
92 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
an ex post facto law. But if it is not an ex post facto law, the
reasons that establish that it is not are persuasive that it
cannot be a bill of attainder." (People vs. Ferrer, G.R. No. L-
32613-14, December 27, 1972, Castro, J.)
466. May an ex post facto law be at the same time a bill
of attainder?
Yes. Same reason as in No. 465.
PUBLIC OFFICERS
467. How are public offices created?
Public offices are created by: (a.) the Constitution;
(b.) valid statutory enactments; and (c.) authority of law.
(Secretary of DOTC vs. Mabalot, G.R. No. 138200,
February 27, 2002)
468. Is a public office property?
No. It is a public trust. It is not a property and is
outside the commerce of man. It cannot be subject of a
contract. It is not a vested right. It cannot be inherited.
(Section 1, Article 11, 1987 Constitution, Santos vs.
Secretary of Labor, G.R. No. L-21624, February 27, 1968)
Principle of public office is a public trust. It means
that the public officer holds the public office in trust for the
benefit of the people – whom such officers are required to be
accountable at all times, and to serve with utmost
responsibility, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives. (Section 1, Article 11, 1987
Constitution)
The concept of public office is not a property. It
means no officer can acquire vested right in the holding of a
public office, nor can his right to hold the office be
transmitted to his heirs upon his death. Nevertheless, the
right to hold public office is a protected right – secured by due
process and the provision of the Constitution on security of
tenure. (Santos vs. Secretary of Labor, G.R. No. L-21624,
February 27, 1968)
469. Who are public officers?
"Public officer" includes elective and appointive officials and
employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving
compensation, even nominal, from the government. (Section
2(b), R.A. No. 3019, Anti-Graft and Corrupt Practices Act)
Any person who, by direct provision of the law, popular
election or appointment by competent authority, shall take
part in the performance of public functions in the Government
of the Philippine Islands, of shall perform in said Government
or in any of its branches public duties as an employee, agent
or subordinate official, of any rank or class. (Article 203 of
the Revised Penal Code)
470. Who has the power to prescribe qualifications for
public office?
Apart from the qualifications provided for in the Constitution,
the power to prescribe additional qualifications for elective
office and grounds for disqualification therefrom, consistent
with the constitutional provisions, is vested in Congress.
The constitution is very clear that it is congress that shall
prescribe the qualifications (and disqualifications) of
candidates for local government positions. (Amora vs.
COMELEC, G.R. No. 192280, January 25, 2011, Nachura, J.)
Congress cannot either appoint the Commissioner of the
Service, or impose upon the President the duty to appoint any
particular person to said office. The appointing power is the
exclusive prerogative of the President, upon which no
limitations may be imposed by Congress, except those
resulting from the need of securing the concurrence of the
Commission on Appointments and from the exercise of the
limited legislative power to prescribe the qualifications to a
given appointive office. (Manalang vs. Quitoriano et al.,
G.R. No. L-6898, April 30, 1954, Concepcion, J.)
471. What are the modes of acquiring title to public
office?
Public offices are filled up either by: (a.)
appointment; (b.) election; (c.) in some instances, by contract
or by some other modes authorized by law.
472. What is the meaning of appointment?
Appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the
functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure
for the person chosen unless he is replaceable at pleasure
because of the nature of his office. It is said to be essentially
executive in nature.
CASANA
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473. Appointment v. designation
Appointment is the selection by the proper authority of an
individual who is to exercise the functions of an office.
Designation, on the other hand, connotes merely the
imposition of additional duties, upon a person already in the
public service by virtue of an earlier appointment or election
(Santiago vs. Commission on Audit, 199 SCRA 125;
Political Law Review by Gonzales, pp. 184-185). A mere
"designation" does not confer upon the designee security of
tenure in the position or office which he occupies in an
"acting" capacity only. Thus did this Court made such a
distinction:
Appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the
functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure
for the person chosen unless he is replaceable at pleasure
because of the nature of his office. Designation, on the other
hand, connotes merely the imposition by law of additional
duties on an incumbent official . . . It is said that appointment
is essentially executive while designation is legislative in
nature.
Designation may also be loosely defined as an appointment
because it likewise involves the naming of a particular person
to a specified public office. That is the common understanding
of the term. However, where the person is merely designated
and not appointed, the implication is that he shall hold the
office only in a temporary capacity and may be replaced at will
by the appointing authority. In this sense, the designation is
considered only an acting or temporary appointment, which
does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the
designation of the petitioner cannot sustain his claim that he
has been illegally removed. . . Appointment involves the
exercise of discretion, which because of its nature cannot be
delegated." (Binamira vs. Garrucho, 188 SCRA 158 cited in
the case of Sevilla v. Court of Appeals, G.R. No. 88498, June
9, 1992)
474. What is the basic nature of the power to appoint?
 The appointing power is essentially an executive
function.
 Appointment is an essentially discretionary power
and must be performed by the officer in which it is
vested according to his best lights, the only condition
being that the appointee should possess the
qualifications required by the law. If he does, then
the appointment cannot be faulted on the ground
that there are others better qualified who should
have been preferred. This is a political question
involving consideration of wisdom which only the
appointing authority can decide. (Luego vs. Civil
Service Commission, 143 SCRA 327
 not only at the time of his election or appointment
475. What are the modes and kinds of appointment? but also during his incumbency.

1. Permanent – Extended to a person who meets all the  A qualification standard expresses the minimum
requirements for the position to which he is being appointed, requirements for a class of positions in terms of
education, training and experience, civil service
including the appropriate eligibility required, for the position
eligibility, physical fitness, and other qualities
and thus enjoys security of tenure. required for successful performance. The degree of
qualifications of an officer or employee shall be
2. Temporary – Extended to a person who may not possess determined by the appointing authority on the basis
the requisite qualifications or eligibility and is revocable at of the qualification standard for the particular
will without necessity of just cause or investigation. However, position. (Section 22, EO No. 292)
if the appointment is for a specific period, the appointment
477. What are the disabilities and inhibitions of
may not be revoked until the expiration of the term.
specific public officers?
Note: Temporary appointments shall not exceed 12 months.
The 1987 Constitution provides that:
Acquisition of civil service eligibility will not automatically
convert the temporary appointment into a permanent one.
A. Members of Congress shall not:
(Prov. Of Camarines Sur v. Court of Appeals, G.R. No.
1. Appear as counsel before any court, electoral tribunal, or
104639, July 14, 1995).
quasi‐judicial and other administrative bodies;
3. Regular appointment – one made by the President while
2. Shall not be interested in any contract with, or in any
the Congress is in session, takes effect only after confirmation
franchise, or special privilege granted by the Government, or
by the CA, and once approved, continues until the end of the
any subdivision, agency or instrumentality thereof, including
term of the appointee.
GOCCs, or its subsidiary;
4. Ad interim appointment – one made by the President
3. Shall not intervene in any matter before any office of the
while Congress is not in session, takes effect immediately, but
Government for his pecuniary benefit or where he may be
ceases to be valid if disapproved by the CA or upon the next
called upon to act on account of his office.
adjournment of Congress.

Q: Is a lawyer member who is also a member of the Legislature

476. What are the eligibility and qualification
absolutely prohibited from engaging the private practice of
requirements for specific public offices?
law?
1. Eligibility – It is the state or quality of being legally fit or
A: No. He is only prohibited from “appearing” as counsel
qualified to be chosen.
before any court of justice or before the Electoral Tribunals,
or quasi‐judicial and other administrative bodies. The word
2. Qualification – This refers to the act which a person,
appearance includes not only arguing a case before any such
before entering upon the performance of his duties, is by law
body but also filing a pleading on behalf of a client such as
required to do such as the taking, and often, subscribing and
filing a motion, plea or answer. Neither is his name allowed to
filing of an official oath, and, in some cases, the giving of an
appear in such pleadings by itself or as part of a firm name
official bond.
under the signature of another qualified lawyer. (Ruben E.
Agpalo, Administrative Law, Law on Public Officers and
It may refer to:
Election Law, 2005 ed., p. 410)
a. Endowments, qualities or attributes which make an
individual eligible for public office, (e.g. citizenship); or
B. The President, Vice President, Members of the Cabinet,
and their deputies or assistants, unless otherwise
b. The act of entering into the performance of the functions of
allowed by the Constitution, shall not:
a public office, (i.e. taking oath of office).
1. Directly or indirectly practice any other profession;
Note: These qualifications must be possessed at the time of
2. Participate in any business, or be financially interested in
the appointment or election and continuously for as long as
any contract with or in any franchise, or special privilege
the official relationship continues. (Aguila v. Genato, G. R No.
granted by the Government, or any subdivision, agency or
L‐55151, Mar. 17, 1981).
instrumentality thereof, including GOCCs, or its subdivisions;
shall avoid conflict of interest in the conduct of their office.
 To entitle a public officer to hold office, he must
possess all the qualifications and none of the
disqualification prescribed by law for the position C. Members of the Constitutional Commission shall not:

94 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

1. Hold any other office or employment or engage in the
practice of any profession or in the active management or
control of any business which in anyway may be affected by
the functions of his office (Section 2, Article IX-A);
2. Be financially interested, directly or indirectly, in any
contract with, or in any franchise, or special privilege granted
by the Government, or any subdivision, agencies or
instrumentalities including GOCCs, or their subsidiaries.
These shall also apply to the Ombudsman and his deputies
during his term.
D. No officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan
political campaign. (Section 2(4), Article IX-B)
E. No loan, guaranty, or other form of financial
accommodation for any business purpose may be granted,
directly or indirectly, by any government-owned or controlled
bank or financial institution to the President, the Vice-
President, the Members of the Cabinet, the Congress, the
Supreme Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have
controlling interest, during their tenure. (Section 16, Article
XI)
F. No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
(Section 7, Article IX-B)
G. No elective or appointive public officer or employee shall
receive additional, double, or indirect compensation, unless
specifically authorized by law, nor accept without the consent
of the Congress, any present, emolument, office, or title of any
kind from any foreign government. (Section 8, Article IX-B)
H. Local Chief Executives (governors, city and municipal
mayors) are prohibited from practicing their profession.
(LGC)
I. Sanggunian members may practice their profession, engage
in any occupation, or teach in schools except during session
hours. (LGC)
J. Doctors of medicine who are likewise local officials may
practice their profession even during official hours of work in
cases of emergency provided that they do not derive monetary
compensation therefrom. (LGC)
95 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
478. What are the requirements for a valid
appointment to the civil service?
a. The appointing authority be vested with the power to make
the appointment at the time the appointment is made.
b. The appointee possesses all the qualification, including
appropriate civil service eligibility, and none of the
disqualifications prescribed by law for the position.
c. The position is vacant.
d. The appointment has been approved by the Civil Service
Commission.
e. The appointee accepts the appointment by taking the oath
and entering the discharge of his office.
Note: If any one of these requisite is lacking, the appointment
is invalid and the officer who assumes and discharges the
functions thereof, may only be considered a de facto officer.
479. What is the role of the Civil Service Commission
with regard to the appointment process?
Section 9 of Presidential Decree (P.D.) No. 807 (Civil Service
Decree of the Philippines)[22] relevantly provides:
Section 9. Powers and Functions of the Commission. The
Commission shall administer the Civil Service and shall have the
following powers and functions:
xxx xxx xxx
(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess the
appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon issue by the
appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved
by the Commission, if this should take place, without
prejudice to the liability of the appointing authority for
appointments issued in violation of existing laws or rules:
Provided, finally, That the Commission shall keep a record of
appointments of all officers and employees in the civil service.
All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing
authority within thirty days from issuance, otherwise, the
appointment becomes ineffective thirty days thereafter.
(Obiasca v. Basallote, G.R. No. 176707, February 17, 2010)
480. Who are career and non-career officers of the
civil service?
Presidential Decree No. 807 provides for the following
classifications:
Section 4. Position Embraced in the Civil Service. The Civil
Service embraces every branch, agency, subdivision, and
instrumentality of the government, including every
government-owned or controlled corporations whether
performing governmental or proprietary function.
Positions in the Civil Service shall be classified into career
service and non-career service.
Section 5. The Career Service shall be characterized by (1)
entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly
technical qualifications; (2) opportunity for advancement to
higher career positions; and (3) security of tenure.
The Career Service shall include:
1. Open Career positions for appointment to which prior
qualification in an appropriate examination is required;
2. Closed Career positions which are scientific or highly
technical in nature; these include the faculty and academic
staff of state colleges and universities, and scientific and
technical positions in scientific or research institutions which
shall establish and maintain their own merit systems;
3. Positions in the Career Executive Service; namely,
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the
President;
4. Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the
Foreign Service Officers in the Department of Foreign Affairs;
5. Commissioned officers and enlisted men of the Armed
Forces which shall maintain a separate merit system;
6. Personnel of government-owned or controlled
corporations, whether performing governmental or
proprietary functions, who do not fall under the non-career
service; and
7. Permanent laborers, whether skilled, semi-skilled, or
unskilled.
Section 6. The Non-Career Service shall be characterized by
(1) entrance on bases other than those of the usual tests of
merit and fitness utilized for the career service; and (2)
tenure which is limited to a period specified by law, or which
is coterminous with that of the appointing authority or
96 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
subject to his pleasure, or which is limited to the duration of a
particular project for which purpose employment was made.
The Non-Career Service shall include:
1. Elective officials and their personal or confidential staff;
2. Department Heads and other officials of Cabinet rank who
hold positions at the pleasure of the President and their
personal or confidential staff(s);
3. Chairman and members of commissions and boards with
fixed terms of office and their personal or confidential staff;
4. Contractual personnel or those whose employment in the
government is in accordance with a special contract to
undertake a specific work or job, requiring special or
technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall
exceed one year, and performs or accomplishes the specific
work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency; and
5. Emergency and seasonal personnel.
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to
which requires examinations shall be grouped into three
major level as follows:
1. The first level shall include clerical, trades, crafts, and
custodial service positions which involve non-professional or
subprofessional work in a non-supervisory or supervisory
capacity requiring less than four years of collegiate studies;
2. The second level shall include professional, technical, and
scientific positions which involve professional, technical, or
scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to Division
Chief level; and
3. The third level shall cover positions in the Career Executive
Service.
(b) Except as herein otherwise provided, entrance to the first
two levels shall be through competitive examinations, which
shall be open to those inside and outside the service who
meet the minimum qualification requirements. Entrance to a
higher level does not require previous qualification in the
lower level. Entrance to the third level shall be prescribed by
the Career Executive Service Board.
(c) Within the same level, no civil service examination shall be
required for promotion to a higher position in one or more
related occupational groups. A candidate for promotion
should, however, have previously passed the examination for
that level.
Distinctions: An appointment is complete when all the requisites for the
position have been met, namely:
Career Service Non-Career Service
Entrance based on merits and a. A written appointment to a vacant position extended by one
fitness except positions which who has the power to do so in favor of a qualified appointee.
are: Entrance other than based
1.primarily confidential; on the merit and fitness. b. Approved by the Civil Service Commission
2. highly technical; and
3. Policy determining.
Determined by competitive Determine not by c. Accepted by the appointee by taking his oath of office
examination competitive examination
Opportunity for advancement d. Entering the discharge of the duties
No such opportunity
to higher career position
Tenure is limited to a Note: Absence of any one of these requisites makes the
period specified by law, appointment incomplete or invalid. Only when the public
coterminous with the officer has satisfied the prerequisite of oath that his right
appointing authority or
to enter into the position becomes plenary and complete.
subject to his pleasure, or
There is security of tenure
which is limited to the
duration of a particular 483. May an appointment be revoked or recalled?
purpose. (Jocom v. How?
Regalado, G.R. No. 77373,
Aug. 22, 1991). The general rule is that an appointment once made is
irrevocable and not subject to reconsideration. The rule is
481. What are the steps in the appointment process? qualified: assent, confirmation, or approval of some other
officer or body is needed before the appointment may issue
A. For Regular Appointments which need confirmation of and be deemed complete.
the Commission on Appointments (CA):
An appointment is not final and complete until and after the
1. Nomination by the President same is approved by the CSC.
2. Confirmation by the CA
3. Issuance of the commission Revocation of an appointment, to be successful, must be made
4. Acceptance by the appointee before the appointment is completed or before its approval by
the CSC in case of appointments in the civil service.
Note: In case of Ad Interim Appointments, the nomination,
issuance of the appointment and acceptance by the appointee 484. Permanent v. Temporary appointment
precede the confirmation by the CA.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the
B. For appointments which do not need confirmation by Administrative Code of 1987, as amended, classifying the
the CA: appointment status of public officers and employees in the
career service, reads:
1. Appointment by appointing authority.
2. Issuance of the commission SEC. 27. Employment Status. – Appointment in the career
3. Acceptance by the appointee service shall be permanent or temporary.

Note: Acceptance of the appointment by the appointee is the
last act that completes the appointing process.
C. For appointment to the Career Service of the Civil
Service:
(1) Permanent status. A permanent appointment shall be
issued to a person who meets all the requirements for the
position to which he is being appointed, including appropriate
eligibility prescribed, in accordance with the provisions of
law, rules and standards promulgated in pursuance thereof.

1. An appointment to the Career Service of the civil service is
not deemed complete until attestation approval by the CSC
without the favorable certification or approval of the CSC; no
title to the office can be deemed to be permanently vested in
favor of the appointee, and appointment can still be revoked
or withdrawn by the appointing authority.
482. When is an appointment considered complete?
97 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(2) Temporary appointment. In the absence of appropriate
eligibles and it becomes necessary in the public interest to fill
a vacancy, a temporary appointment shall be issued to a
person who meets all the requirements for the position to
which he is being appointed except the appropriate civil
service eligibility: Provided, That such temporary
appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service
eligible becomes available.
It is clear that a permanent appointment can issue only to a
person who possesses all the requirements for the position to
which he is being appointed, including the appropriate
eligibility. Differently stated, as a rule, no person may be
appointed to a public office unless he or she possesses the
requisite qualifications. The exception to the rule is where, in
the absence of appropriate eligibles, he or she may be
appointed to it merely in a temporary capacity.
Such a temporary appointment is not made for the benefit of
the appointee. Rather, an acting or temporary appointment
seeks to prevent a hiatus in the discharge of official functions
by authorizing a person to discharge the same pending the
selection of a permanent appointee. In Cuadra v. Cordova,
this Court defined a temporary appointment as "one made in
an acting capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the appointing
power." Thus, the temporary appointee accepts the position
with the condition that he shall surrender the office when
called upon to do so by the appointing authority. Under
Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the
same Code, the term of a temporary appointment shall be 12
months, unless sooner terminated by the appointing
authority. Such pre-termination of a temporary appointment
may be with or without cause as the appointee serves merely
at the pleasure of the appointing power. (CSC v. Darangina,
G.R. No. 167472, January 31, 2007)
485. Holder-over concept
Absent an express or implied constitutional or statutory
provision to the contrary, an officer is entitled to stay in office
until his successor is appointed or chosen and has qualified.
(The phrase “has qualified” means the offcers taking oath and
entering the discharge of his office following his election or
appointment.)
The legislative intent of not allowing holdover must be clearly
expressed or at least implied in the legislative enactment,
otherwise it is reasonable to assume that the law-making
body favors the same.
The concept of holdover when applied to a public officer
implies that the office has a fixed term and the incumbent is
holding onto the succeeding term. It is usually provided by
law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their
successors have been elected and qualified. Where this
provision is found, the office does not become vacant upon
the expiration of the term if there is no successor 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. (Lecaroz v.
Sandiganbayan, G.R. No. 130872, March 25, 1999)
98 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
486. State the nepotism rule under the Administrative
Code
(1) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or
office, or of the persons exercising immediate supervision
over him, are hereby prohibited.
As used in this Section, the word “relative” and members of
the family referred to are those related within the third
degree either of consanguinity or of affinity.
(2) The following are exempted from the operation of the
rules on nepotism:
(a) persons employed in a confidential capacity,
(b) teachers,
(c) physicians, and
(d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.
The restriction mentioned in subsection (1) shall not be
applicable to the case of a member of any family who, after his
or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein
of both husband and wife may be allowed.
(3) In order to give immediate effect to these provisions,
cases of previous appointments which are in contravention
hereof shall be corrected by transfer, and pending such
transfer, no promotion or salary increase shall be allowed in
favor of the relative or relatives who were appointed in
violation of these provisions. (Section 59, Chapter 8, Book V,
Title I, Subtitle A)
487. State the nepotism rule under the Local
Government Code
Limitation to Appointments. - No person shall be appointed
in the career service of the local government if he is related
within the fourth civil degree of consanguinity or affinity to
the appointing or recommending authority. (Section79, Title
III, LGC)
488. State the nepotism rule under the Constitution
The spouse and relatives by consanguinity or affinity within
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, including government-owned or controlled conditions for promotion shall be promoted to the higher
corporations and their subsidiaries. (Section, Article VII) position when it becomes vacant.

 Nepotism is defined as an appointment issued in However, the appointing authority may promote an employee
favor of a relative within the third civil degree of who is not next-in-rank but, who possesses superior
consanguinity or affinity of any of the following: (1) qualifications and competence compared to a next-in-rank
appointing authority; (2) recommending authority; employee who merely meets the requirements for the
(3) chief of the bureau or office; and (4) person
position. (Espanol v. CSC, G.R. No. 85479, March 3, 1992)
exercising immediate supervision over the
appointee. By way of exception, the following shall
not be covered by the prohibition: (1) persons 491. What are the requirement for appointment to the
employed in a confidential capacity; (2) teachers; (3) Career Executive Service?
physicians; and (4) members of the Armed Forces of
the Philippines. (CSC v. Cortes, G.R. No. 200103, A. Career Executive Service
April 23, 2014)
The Career Executive Service is the ‘third level’ or the
489. What are primarily confidential positions?
managerial class in the group of career positions in the
Philippine civil service. The CES was created by Presidential
An incumbent of a primarily confidential position holds office
Decree No. 1 to "form a continuing pool of well-selected and
at the pleasure of the appointing power. When the pleasure
development-oriented career administrators who shall
turns into displeasure, the incumbent is not removed or
provide competent and faithful service."
dismissed from office — his term merely expires (Santos v.
Macaraig, 208 SCRA 74 citing Ingles vs. Mutuc, 26 SCRA
The CES is also a public personnel system separate from that
171).
of the first two levels of positions in the Philippine civil
service.
"Primarily confidential" denotes "not only confidence in the
aptitude of the appointee for the duties of the office but
B. The CES Concept
primarily close intimacy which insures freedom of
intercourse without embarrassment or freedom from
The CES operates on the ‘rank concept’. Career Executive
misgivings of betrayals of personal trust or confidential
Service Officers (CESOs) are ‘appointed’ to ranks and
matters of state" (Pinero vs. Hechanova, 18 SCRA 417;
‘assigned’ to CES positions. As such, they can be re-assigned
citing De los Santos vs. Mallare, 87 Phil. 289).
or transferred from one CES position to another and from one
office to another but not oftener than once every two years.
490. Next-in-rank rule
The CES is like the Armed Forces and the Foreign Service
where the officers are also appointed to ranks and assigned to
Section 19, paragraph 6, Article VIII of Presidential Decree No.
positions.
807 defines a qualified next-in-rank as an employee
appointed on a permanent basis to a position previously
C. Requirements
determined to be next-in-rank to the vacancy proposed to
be filled and who meets the requisites for appointment
Appointment to appropriate classes in the Career Executive
thereto as previously determined by the appointing
Service shall be made by the President form a list of career
authority and approved by the respondent commission.
executive eligibles recommended by the Board. Such
appointees shall be made on the basis of rank.
Pursuant to. the provisions of Section 9(b) and Section 19 of
Presidential Decree No. 807, the CSC promulgated Resolution
Provided that appointments to the higher ranks which qualify
No. 83-343 (Rules on Promotion); Sections 2 and 4 of which
the incumbents to assignments as undersecretary and heads
provide:
of bureaus and officer and equivalent positions shall be with
confirmation of the Commission on Appointments. The
Sec. 2. Whenever a position in the first level becomes vacant,
President may, however, in exceptional cases, appoint any
the employees in the ministry or agency who occupy positions
person who is not a Career Executive Service eligible;
deemed to be next-in-rank to the vacancy, shall be considered
Provided that, such appointee shall subsequently take the
for promotion. In the second level, those employees in the
required CES examination and that he shall not be promoted
government service who occupy next-in-rank position shall
to a higher class until he qualifies in such examination.
be considered for promotion to the vacancy.
(Resolution No. 1240, CSC)

Sec. 4. An employee who holds a next-in-rank position who is

a. The employee must pass the Career Executive Service
deemed the most competent and qualified, possesses an
examination.
appropriate civil service eligibility, and, meets the other

99 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

b. Issuance of certificate of eligibility from the Career
Executive Board.
c. The President’s approval of appointment of eligible career
executive employee.
492. What is the meaning of security of tenure of those
in the CES?
As the recent case of Amores vs. Civil Service
Commission explains:
Security of tenure in the career executive
service, which presupposes a permanent
appointment, takes place upon passing the CES
examinations administered by the CES Board. It is
that which entitles the examinee to conferment of
CES eligibility and the inclusion of his name in the
roster of CES eligibles. Under the rules and
regulations promulgated by the CES
Board, conferment of the CES eligibilityis done
by the CES Board through a formal board
resolution after an evaluation has been done of
the examinees performance in the four
stages of the CES eligibility examinations. Upon
conferment of CES eligibility and compliance
with the other requirements prescribed by the
Board, an incumbent of a CES position may
qualify for appointment to a CES
rank. Appointment to a CES rank is made by the
President upon the Boards recommendation. It
is this process which completes the officials
membership in the CES and confers on him
security of tenure in the CES. Petitioner does not
seem to have gone through this definitive process.
(emphasis, italics and underscoring supplied)
Clearly, for an examinee or an incumbent to be a
member of the CES and be entitled to security of tenure,
she/he must pass the CES examinations, be conferred CES
eligibility, comply with the other requirements prescribed by
the CES Board, and be appointed to a CES rank by the
President. (PEZA v. Mercado, G.R. No. 172144, March 09,
2010)
493. What is the basic remedy to question the right of
a person to hold an appointive or elective office?
The remedy is to file for Petition for Quo Warranto.
 Action by Government against individuals. — An action for
the usurpation of a public office, position or franchise
may be commenced by a verified petition brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position or
franchise;
100 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(b) A public officer who does or suffers an act
which, by the provision of law, constitutes a ground for the
forfeiture of his office; or
(c) An association which acts as a corporation
within the Philippines without being legally incorporated or
without lawful authority so to act. (Section 1, Rule 66, Rules
of Court)
 Quo warranto tests the title to one’s office claimed by
another and has for its object the ouster of the holder
from its enjoyment. (Garces v. Court of Appeals,
G.R. No. 114795. July 17, 1996)
 The remedy of quo warranto has been extended to
cover a voter’s action contesting the election of any
officer on the ground of ineligibility or disloyalty to
the State and jurisdiction over such action is vested
in the Comelec (2nd paragraph, Sec. 189, 1978
Election Code) (Regatcho v. Cleto, G.R. No. L-
61946. December 21, 1983)
494. May title to public office be attacked collaterally?
No. The title to a public office may not be contested except
directly, by quo warranto proceedings; and it cannot be
assailed collaterally, even through mandamus or a motion to
annul or set aside order.
In Nacionalista Party v. De Vera (85 Phil. 126),the Court ruled
that prohibition does not lie to inquire into the validity of the
appointment of a public officer.
x x x [T]he writ of prohibition, even when directed
against persons acting as judges or other judicial
officers, cannot be treated as a substitute for quo
warranto or be rightfully called upon to perform
any of the functions of the writ. If there is a court,
judge or officer de facto, the title to the office and
the right to act cannot be questioned by
prohibition. If an intruder takes possession of a
judicial office, the person dispossessed cannot
obtain relief through a writ of prohibition
commanding the alleged intruder to cease from
performing judicial acts, since in its very nature
prohibition is an improper remedy by which to
determine the title to an office. (Topacio v. Santos
Ong, G.R. No. 179895, December 18, 2008)
495. What are the powers and duties of public officers
in general?
a. Powers:
1. Those expressly conferred upon him by the Act
appointing him;
2. Those expressly annexed to the office by law;
3. Those attached to the office by common law as
incidents to it.
 4. All powers necessary for the effective exercise of
the express powers are deemed impliedly granted. (Doctrine
of Necessary Implication) (Pimentel v. COMELEC, G.R. No. L‐
53581, Dec. 19, 1980)
b. Duties:
1. To be accountable to the people;
2. To serve the people with utmost responsibility,
integrity, and efficiency;
3. To act with patriotism and justice and to lead
modest lives;
4. To submit a declaration under oath of his assets,
liabilities, and net worth upon assumption of office and as
often thereafter as may be required by law;
5. To owe the State and the Constitution allegiance at
all times.
496. What are the liabilities of public officers?
Three‐fold responsibility/liability of public officers:
1. Criminal liability
2. Civil liability
3. Administrative liability
497. What are the rights of public officers?
1. Right to hold office -which is just and legal claim to enjoy
the powers and responsibility.
2. Right to compensation/salary –The basis is a public
officer’s legal title to the office. The law attaches the
compensation to the position. If there is no compensation
attached to the office and the public officer accepted it, he is
not entitled to recover as he is presumed to have accepted it
without pay.
3. Right to Security of Tenure- granted to civil service
employees. No public officer can remove without cause.
4. Right to appointments
5. Right to vacation and sick leave
6. Right to maternity leave
7. Right to retirement pay
8. Right to longevity pay
9. Right to pension
10. Right to self‐organization
11. Right to protection of temporary employees.
498. Preventive suspension and back salaries
 A public official is not entitled to any compensation if
he has not rendered any service and the justification
for the payment of the salary during the period of
suspension if that suspension was unjustified or that
the official was innocent. To entitle to payment of
salary during suspension, there must be
101 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
reinstatement or exoneration. (Reyes v Hernandez,
G.R. No. 47346, 8 April 1941)
 “Employees who are preventively suspended
pending investigation are not entitled to the payment
of their salaries even if they are exonerated, we do
not agree with the government that they are not
entitled to compensation for the period of their
suspension pending appeal if eventually they are
found innocent”.
Employees are entitled to compensation for the
period of their suspension pending appeal if
eventually they are found innocent.
Employees who are placed under preventive
suspension pending investigation is not entitled to
compensation because suspension is not a penalty but a
means of enabling the disciplining authority to conduct an
unhampered investigation. (Gloria v. Court of Appeals, G.R.
No. 140359. June 19, 2000)
 The issue of entitlement to back salaries, for the
period of suspension pending appeal, of a
government employee who had been dismissed but
was subsequently exonerated is settled in our
jurisdiction. The Courts starting point for this
outcome is the no work-no pay principle public
officials are only entitled to compensation if they
render service. We have excepted from this general
principle and awarded back salaries even for
unworked days to illegally dismissed or unjustly
suspended employees based on the constitutional
provision that no officer or employee in the civil
service shall be removed or suspended except for
cause provided by law;] to deny these employees
their back salaries amounts to unwarranted
punishment after they have been exonerated from
the charge that led to their dismissal or suspension.
The present legal basis for an award of back salaries
is Section 47, Book V of the Administrative Code of 1987.
Section 47. Disciplinary Jurisdiction. x x x.
(4) An appeal shall not stop the decision
from being executory, and in case the
penalty is suspension or removal, the
respondent shall be considered as having
been under preventive suspension during
the pendency of the appeal in the event he
wins an appeal. (italics ours)
This provision, however, on its face, does not
support a claim for back salaries since it does not expressly
provide for back salaries during this period; our established
rulings hold that back salaries may not be awarded for the
period of preventive suspension[16]as the law itself
authorizes its imposition so that its legality is beyond
question.
 functions, are not liable to third persons, either for
the misfeasances or positive wrongs, or for the
To resolve the seeming conflict, the Court crafted nonfeasances, negligences, or omissions of duty of
two conditions before an employee may be entitled to back their official subordinates. (McCarthy vs. Aldanese,
salaries: a) the employee must be found innocent of the G.R. No. L‐19715, March 5, 1923)
charges and b) his suspension must be unjustified.The
reasoning behind these conditions runs this way: although an  except: a) where the public official is charged in his
employee is considered under preventive suspension during official capacity for acts that are unlawful and
the pendency of a successful appeal, the law itself only injurious to the rights of others; b) not exempt in
authorizes preventive suspension for a fixed period; hence, their personal capacity form liability arising from
his suspension beyond this fixed period is unjustified and acts committed in bad faith; c) where the public
must be compensated. (CSC v. Cruz, G.R. No. 187858, August official is clearly being sued not on his official
09, 2011) capacity but in his personal capacity although the
acts complained of may have been committed while
Q: What are the distinctions between preventive suspension he occupied a public position.
pending investigation and pending appeal?
 The immunity of public officers from liability for the
Pending investigation Pending Appeal non‐feasances, negligence or omissions of duty of
Not a penalty but only a Punitive in character their official subordinates and even for the latter’s
means of enabling the misfeasances or positive wrongs rests upon obvious
disciplinary authority an considerations of public policy, the necessities of the
unhampered investigation public service and the perplexities and
embarrassments of a contrary doctrine. (Alberto V.
After the lapse of 90 days, If exonerated, he should be Reyes, Wilfredo B. Domo‐Ong and Herminio C.
the law provides that he be reinstated with full pay for Principio vs Rural Bank of San Miguel (Bulacan),
automatically reinstated the period of suspension INC., G.R. No. 154499, Feb. 27, 2004)
During such preventive If during the appeal he
suspension, the employee is remains suspended and the 501. De facto officers
not entitled to payment of penalty imposed is only
salaries reprimand, the suspension A de facto officer is one who assumed office under the color of
pending appeal becomes a known appointment or election but which appointment or
illegal and he is entitled to election is void for reasons that the officer was not eligible, or
back salary corresponding to
that there was want of power in the electing body, or that
the period of suspension
there was some other defect or irregularity in its exercise,
wherein such ineligibility, want of power, or defect being
499. Illegal dismissal, reinstatement and back
unknown to the public.
salaries

Note: A de facto officer is entitled to emoluments for actual

In Gabriel v. Domingo (G.R. No. 87420, 17 September 1990)
services rendered, and he cannot be made to reimburse funds
this Court held that an illegally dismissed government
disbursed during his term of office because his acts are valid
employee who is later ordered reinstated is entitled to back
as those of a de jure officer.
wages and other monetary benefits from the time of his illegal
dismissal up to his reinstatement. This is only fair and
Elements:
sensible because an employee who is reinstated after having
been illegally dismissed is considered as not having left his
1. Without a known appointment or election, but under such
office and should be given a comparable compensation at the
circumstances of reputation or acquiescence as were
time of his reinstatement.
calculated to induce people, without inquiry, to submit to or
invoke his action, supposing him to the be the officer he
If the illegal dismissal, including the refusal to reinstate an
assumed to be; or
employee after a finding of unlawful termination, is found to
have been made in bad faith or due to personal malice of the
2. Under color of a known and valid appointment or election,
superior officers then they will be held personally
but where the officer has failed to conform to some precedent
accountable for the employees back salaries; otherwise, the
requirement or condition (e.g., taking an oath or giving a
government disburses funds to answer for such arbitrary
bond);
dismissal. (cited in Constantino-David v. Pangandaman-
Gania, G.R. No. 156039. August 14, 2003)
3. Under color of a known election or appointment, void
because:
500. Immunity of public officers
a. The officer was not eligible
b. There was a want of power in the electing or
 It is well settled as a general rule that public officers
of the government, in the performance of their public appointing body

102 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 c. There was a defect or irregularity in its exercise;
such ineligibility, want of power, or defect being unknown to
the public
4. Under color of an election or an appointment by or
pursuant to a public, unconstitutional law, before the same is
adjudged to be such.
Note: Here, what is unconstitutional is not the act creating the
office, but the act by which the officer is appointed to an office
legally existing. (Norton v. County of Shelby, 118 U.S. 425)
502. Are de facto officers entitled to salaries?
As a rule, the rightful incumbent of the public office may
recover from a de facto officer the salaries received by the
latter during the time of the latter's wrongful tenure even
though he entered into the office in good faith and under a
colorable title. The de facto officer takes the salaries at his
risks and must therefore account to the de jure officer for the
amounts he received. However, where there is no de jure
officer, a de facto officer shall be entitled to the salaries and
emoluments accruing during the period when he actually
discharged the duties. (Monroy v. CA, G.R. No. L‐23258, Jul
1, 1967)
DIMAPILIS
503. May salaries of public officers be garnished?
No. The salary of public officer cannot by garnishment,
attachment or other form of execution be seized before being
paid to him, and appropriated to payment of his debts.
Public policy also prohibits the assignment of unearned
salaries or fees.
Agreements affecting compensation are void as contrary to
law.
504. State the prohibition on dual positions for
elective and appointive offices.
A. Members of Congress shall not:
1. Appear as counsel before any court, electoral tribunal, or
quasi‐judicial and other administrative bodies;
2. Shall not be interested in any contract with, or in any
franchise, or special privilege granted by the Government, or
any subdivision, agency or instrumentality thereof, including
GOCCs, or its subsidiary;
3. Shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be
called upon to act on account of his office
103 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
B.
Section 13, Article VII of the 1987 Constitution, provides:
SEC. 13. The President, Vice-
President, the Members of the Cabinet,
and their deputies or assistants shall not,
unless otherwise provided in this
Constitution, hold any other office or
employment during their tenure. They
shall not, during said tenure, directly or
indirectly practice any other profession,
participate in any business, or be financially
interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the
conduct of their office.
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure,
the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever
the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal
negation. The phrase unless otherwise provided in this
Constitution must be given a literal interpretation to refer
only to those particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or acting
as President in those instances provided under Section 7,
pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.[29] [EMPHASIS SUPPLIED.]
FUNA VS. EXECUTIVE SECRETARY
C. Members of the Constitutional Commission shall not:
To safeguard the independence of these Commissions, the
1987 Constitution, among others,31 imposes under Section 2,
Article IX-A of the Constitution certain inhibitions and
disqualifications upon the Chairmen and members to
strengthen their integrity, to wit:
(a) Holding any other office or employment during
their tenure;
(b) Engaging in the practice of any profession;
 (c) Engaging in the active management or control of
any business which in any way may be affected by
the functions of his office; and
(d) Being financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies or
instrumentalities, including government-owned or –
controlled corporations or their subsidiaries. Funa v.
Chairman, Civil Service Commission, G.R. No. 191672,
November 25, 2014
D. Appointive officials:
Section 7, paragraph (2),Article IX-B reads:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of
his position, no appointive official shall hold any other office
or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
In Funa v. Ermita,33 where petitioner challenged the
concurrent appointment of Elena H. Bautista as
Undersecretary of the Department of Transportation and
Communication and as Officer-in-Charge of the Maritime
Industry Authority, the Court reiterated the pronouncement
in Civil Liberties Union v. The Executive Secretary on the
intent of the Framers on the foregoing provision of the 1987
Constitution, to wit:
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment in
the government during their tenure when such is allowed
by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable
only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants. Funa v. Chairman,
Civil Service Commission, G.R. No. 191672, November 25,
2014
505. Does the rule against holding of dual positions
apply to offices held in an ex-officio capacity?
No. As to the meaning of ex officio, the Court has decreed in
Civil Liberties Union v. Executive Secretary that –
x x x x The term ex officio means "from office; by virtue of
office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex
officio likewise denotes an "act done in an official character,
104 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
or as a consequence of office, and without any other
appointment or authority other than that conferred by the
office." An ex officio member of a board is one who is a
member by virtue of his title to a certain office, and without
further warrant or appointment. x x x
The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The reason
is that these services are already paid for and covered by the
compensation attached to his principal office. x x x Funa v.
Chairman, Civil Service Commission, G.R. No. 191672,
November 25, 2014
506. State the constitutional restriction on double
compensation
SECTION 8. No elective or appointive public officer or
employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign
government.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation.
507. Termination of Official Relation
Modes of terminating official relationships:
 Expiration of term or tenure
 Reaching the age limit for retirement
 esignation
 ecall
 emoval
 bandonment
 cceptance of an incompatible office
 Abolition of office
 Prescription of the right to office
 Impeachment
 Death
 Failure to assume office
 Conviction of a crime
 Filing for a certificate of candidacy
508. Scope of civil service
The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the government including
GOCCs with original charters.
Section 3, Article IX-B of the 1987 Constitution describes the
CSC as the central personnel agency of the government and is
principally mandated to establish a career service and adopt
measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil
service; to strengthen the merit and rewards system; to
integrate all human resources development programs for all
levels and ranks; and to institutionalize a management
climate conducive to public accountability.
509. Criterion for appointment and mode of selection
Whoever fulfills all the qualifications prescribed by law for a
particular position may be appointed therein.
Note: The CSC cannot disapprove an appointment just
because another person is better qualified, as long as the
appointee is himself qualified. It cannot add qualifications
other than those provided by law. (Cortez v. CSC, G.R. No.
92673 March 13, 1991)
1. Appoint only according to merit and fitness
2. Require competitive examination
Except:
a. Policy‐determining – tasked to formulate a method of
action for the government or any of its subdivisions.
b. Primarily confidential – duties are not merely clerical
but devolve upon the head of an office, which, by reason
of his numerous duties, delegates his duties to others, the
performance of which requires skill, judgment, trust and
confidence.
c. Highly technical – requires technical skill or training in
the highest degree
510. Accountability public officers
Officer holds the public office in trust for the benefit of the
people—to whom such officers are required to be
accountable at all times, and to serve with utmost
responsibility, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives. (Sec. 1, Art. XI, Constitution)
511. State the prohibition against partisan political
activity
SECTION 2. (4) No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or
partisan political campaign.
Partisan political activity
- It is an act designed to promote the election or defeat of a
particular candidate/s to a public office. It is also known as
“electioneering” (Sec. 79, Omnibus Election Code).
Officers or employees in the Civil Service including members
of the Armed Forces cannot engage in such activity except to
vote. They shall not use their official authority or influence to
coerce the political activity of any person (Sec. 55, Subtitle A,
Title I, Book V, 1987 Administrative Code).
Execption. Kind of public officers may engage in partisan
political activities?
105 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
1. Those holding political offices, such as the President of the
Philippines; Vice President of the Philippines; Executive
Secretary/Department Secretaries and other Members of the
Cabinet; All other elective officials at all levels; and those in
the personal and confidential staff of the above officials.
However, it shall be unlawful for them to solicit contributions
from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.
2. National, provincial, city and municipal elective officials.
(Alejo Santos v. Yatco, G.R. No. L‐ 16133, Nov. 6, 1959)
512. May civil servants engage in a strike?
While the Constitution recognizes the right of public
employees to organize, they are prohibited from staging
strikes, demonstrations, mass leaves, walk‐outs and other
forms of mass action which may result to temporary cessation
of work or disturbance of public service. Their right to self
organization is limited only to form unions or to associate
without including the right to strike. Labor unions in the
government may bargain for better terms and conditions of
employment by either petitioning the Congress for better
terms and conditions, or negotiating with the appropriate
government agencies for the improvement of those not fixed
by law. (SSS Employees Assn. v. CA, G.R No. 85279, Jul
28,1989)
513. What is the meaning of security of tenure?
It means that no officer or employee in the civil service shall
be suspended or dismissed except for a cause provided by law
and after due process or after he shall have been given the
opportunity to defend himself.
Note: Once an appointment is issued and completed and the
appointee assumes the position, he acquires a legal right, not
merely an equitable right to the position. (Lumigued v. Exevea,
G.R. No. 117565, Nov. 18, 1997)
It attaches once an appointment is issued and the moment the
appointee assumes a position in the civil service under a
completed appointment, he acquires a legal, not merely
equitable, right (to the 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 by
removal, except for cause, and with previous notice and
hearing. (Aquino v. CSC, G.R. No. 92403 April 22, 1992)
514. Who are covered by security of tenure?
Regardless of the characterization of the position held by a
government employee covered by civil service rules, be it
career or non career position, such employee may not be
removed without just cause (Jocom v. Regalado, G.R. No.
77373,Aug. 22, 1991).
Acceptance of a temporary appointment or assignment
without reservation or upon one’s own volition is deemed
waiver of security of tenure (Palmera v. Civil Service
Commission, G.R. No. 110168, Aug.4, 1994).
515. Give examples of personnel actions that amounts
to illegal dismissal.
1. Removal for just cause or non-compliance with
prescribe procedure
2. Demotion tantamount to unlawful removal if no
causes is shown for it or if it is not part of any
disciplinary action (Horeza vs. Ongpin)
3. Unconsented transfer resulting in demotion in rank
or salary is tantamount to removal without just
cause. (palma-Fernandez vs Dela Paz)
516. What is the jurisdiction of the Civil Service
Commission with regard to disciplinary actions against
members of the civil service?
Exclusive jurisdiction over:
1. Disciplinary cases
2. Cases involving personnel actions affecting the civil
service employees such as:
a. Appointment through certification
b. Promotion
c. Transfer
d. Reinstatement
e. Re-employment
f. Reassignment
g. Demotion
h. Separation
3. Employment status
4. Qualification standards
Includes an authority to recall appointment which has been
initially approved when it shown that the same was issued in
disregard of pertinent civil service laws, rules and regulations.
Functions and authority are limited to approving or reviewing
appointments to determine their compliance with the civil
service law. On its own, the CSC does not have the power to
terminate employment or to drop members from the roll.
517. What is the extent of the disciplinary powers of
the President with respect to appointive officials?
It is only in those cases in which the office is held at the
pleasure of the appointing power and where the power of
removal is exercisable at its mere discretion, that the officer
may be removed without notice or hearing. (Alajar vs. Alba)
The power of removal may be implied from power to appoint
however, the President cannot remove officials appointed by
him when the Constitution prescribed certain methods for
separation of such officer from public service. (Example:
Chairman of constitutional commissions) The power may be
exercised only for causes as may be provided by law and in
accordance with the administrative procedure.
106 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Members of the cabinet of such officer whose continuity in
office depends upon the pleasure of the President may be
removed at any time.
518. What is the extent of the disciplinary powers of
the President with respect to local officials?
Untramelled discretionary power to remove does not apply to
appointed officers whose term of office is definite, much less
elective officers. As has been pointedly stated: "Fixity of tenure
destroy the power of removal at pleasure otherwise incident to
the appointing power; the reason of this rule is the evident
repugnance between the fixed term and the power of
arbitrary removal. . . .
An inferential authority to remove at pleasure cannot be
declared, since the existence of a defined term, ipso facto,
negatives such an inference, and implies a contrary
presumption, i.e., that the incumbent shall hold office to the
end of his term subject to removal for cause. (Alajar vs. Alba)
The President exercises only the power of general supervision
over local government.
519. What are specific grounds for removal or
suspension in the civil service?
 Dishonesty
 Oppression
 eglect of duty
 isconduct
 isgraceful and immoral conduct
 iscourtesy in the course of official duties
 nefficiency and incompetence in the performance of
official duties
 onviction of a crime involving moral turpitude
 Being notoriously undesirable
 Falsification of official documents
 Habitual drunkenness
 Gambling
 Refusal to perform official duty or render overtime
service
 Physical or mental incapacity due to immoral or
vicious habits
 Willful refusal to pay just debts or willful failure to
pay taxes
520. Who may impose preventive suspensions of
public officers?
As to Appointive officials:
a. Not Presidential appointee
1. By proper disciplining authority
2. Against any subordinate officer
b. Presidential appointee
Can only be investigated and removed from office
after due notice and hearing by the president under
 the principle that the power to remove is inherent in thereof. (Words and Phrases, Vol. 1, p. 127, citing Board of
power to appoint. Com'rs of Dearbon County v Droege, Ind. App., 66 N.E. 2d 134,
138)
As to Elective officials:

Authority to impose Respondent Local Official 526. What is the liability of public officers for
suspension belongs unexplained wealth?
to the
RA3019. Section 8. Dismissal due to unexplained wealth. If in
President Elective official of a province, highly
accordance with the provisions of Republic Act Numbered
urbanized or independent
component city One thousand three hundred seventy-nine, a public official
has been found to have acquired during his incumbency,
Governor elective official of a component city whether in his name or in the name of other persons, an
of municipality amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that
Mayor Elective official of a barangay. (Sec fact shall be a ground for dismissal or removal. Properties in
63[a], LGC)
the name of the spouse and unmarried children of such public
official may be taken into consideration, when their
521. When is reinstatement with back wages allowed?
acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the
522. Is preventive suspension without pay allowed?
enforcement of this section, notwithstanding any provision of
Briefly explain.
law to the contrary.

Pending investigation:
Only when the accumulated wealth becomes manifestly
During such preventive suspension, the employee is not
disproportionate to the employees income or other sources of
entitled to payment of salaries.
income and the public officer/employee fails to properly
account or explain his other sources of income, does he
Pending appeal:
become susceptible to dishonesty because when a public
If during the appeal he remains suspended and the penalty
officer takes an oath or office, he or she binds himself or
imposed is only reprimand, the suspension pending appeal
herself to faithfully perform the duties of the office and use
becomes illegal and he is entitled to back salary
reasonable skill and diligence, and to act primarily for the
corresponding to the period of suspension
benefit of the public. Thus, in the discharge of duties, a public
officer is to use that prudence, caution and attention which
523. What is the limitation on the power to reorganize
careful persons use in the management of their affairs.
or abolish public offices?
(Ombudsman vs Racho)

1. Must be made in good faith;

2. Clear intent to do away with the office;
3. Must not be for personal or political reasons; and
4. Must not be contrary to law.
524. When is a reorganization or abolition of office in
bad faith?
 Significant number of increase in positions in the
new staffing pattern
 One is abolished and one is created with
substantially the same functions
 Incumbents are replaced with less qualified
employees
 Reclassification of offices in the department or
agency and reclassified offices perform substantially
the same function as the original one
 Removal violated the order of separation
525. When is there an abandonment of office?
It is the voluntary relinquishment of an office by the holder
with the intention of terminating his possession and control
527. When may a public officer be liable for the acts of
his subordinates?
Doctrine of Command Responsibility:
This doctrine provides that a superior officer is liable for the
acts of his subordinate in the following instances:
1. He negligently or willfully employs or retains unfit or
incompetent subordinates;
2. He negligently or willfully fails to require his
subordinates to conform to prescribed regulations;
3. He negligently or carelessly oversees the business of the
office as to give his subordinates the opportunity for
default;
4. He directed, cooperated, or authorized the wrongful act;
5. The law expressly makes him liable. (Sec.38‐39, Chap. 9,
Book I, E.O. No. 292, Administrative Code of 1987)
528. Impeachment
It is a method by which persons holding government
positions of high authority, prestige, and dignity and with

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definite tenure may be removed from office for causes closely
related to their conduct as public officials.
Note: It is a national inquest into the conduct of public men.
(Outline on Political Law, Nachura, 2006)
529. Powers of the Ombudsman
He is tasked to entertain complaints addressed to him against
erring public officers and take all necessary actions thereon.
Note: The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this
constitutional body not merely functional but also effective.
Under R.A. No. 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove
from government service an erring public official other than a
member of Congress and the Judiciary. (Estarija v. Ranada,
G.R No. 159314, June 26, 2006).
Over the years the scope of the powers of the Ombudsman
under Section 12 has been clarified thus settling various
disputed issues:
1. The ombudsman can investigate only officers of
government owned corporations with original charter.
(Khan, Jr v Ombudsman, G.R. No. 125296, July 20. 2006)
2. The jurisdiction of the Ombudsman over disciplinary cases
involving public school teachers has been modified by Section
9 of R.A. 4670, otherwise known as the Magna Carta for Public
School Teachers, which says that such cases must first go to a
committee appointed by the Secretary of Education.
(Ombudsman v. Estandarte, GR 168670, April 13, 2007.)
3. The Ombudsman Act authorizes the Ombudsman to impose
penalties in administrative cases. (Ombudsman v. CA,
November 22, 2006; Ombudsman v. Lucero,November 24, 2006)
Note: According to the Local Government Code, elective
officials may be dismissed only by the proper court. “Where
the disciplining authority is given only the power to suspend
and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to
remove.”(Sangguniang Barangay v. Punong Barangay, G.R. No.
170626, March 3, 2008)
4. The Special Prosecutor may not file an information without
authority from the Ombudsman. (Perez v. Sandigabayan, G.R.
No. 166062, September 26, 2006)
5. The Ombudsman has been conferred rule making power to
govern procedures under it. (703 Buencamino v. CA, GR
175895,April 4, 2007)
6. The power to investigate or conduct a preliminary
investigation on any Ombudsman case may be exercised by an
investigator or prosecutor of the Office of the Ombudsman, or
by any Provincial or City Prosecutor or their assistance, either
in their regular capacities or as deputized Ombudsman
prosecutors. (Honasan II v. Panel of Investigators of the DOJ,
G.R. No.159747, April 13, 2004)
108 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
7. A preventive suspension will only last ninety (90) days, not
the entire duration of the criminal case. (Villasenor v
Sandiganbayan G.R. No. 180700, March 4, 2008)
530. What is the extent of the jurisdiction of the
Ombudsman with respect to administrative cases?
Section 19 of the Ombudsman Act further enumerates the
types of acts covered by the authority granted to the
Ombudsman:
SEC. 19. Administrative Complaints. ‐ The Ombudsman shall
act on all complaints relating, but not limited to acts or
omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary
ascertainment of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification
In the exercise of its duties, the Ombudsman is given full
administrative disciplinary authority. His power is not limited
merely to receiving, processing complaints, or recommending
penalties. He is to conduct investigations, hold hearings,
summon witnesses and require production of evidence and
place respondents under preventive suspension. This
includes the power to impose the penalty of removal,
suspension, demotion, fine, or censure of a public officer or
employee. (Ombudsman v. Galicia, G.R. No. 167711, October 10,
2008)
531. Judicial review of Ombudsman proceedings and
resolutions
In the exercise of its investigative power, this Court has
consistently held that courts will not interfere with the
discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense
charged. He may dismiss the complaint forthwith if he finds it
to be insufficient in form and substance or if he otherwise
finds no ground to continue with the inquiry; or he may
proceed with the investigation of the complaint if, in his view,
it is in due and proper form. (Ocampo v. Ombudsman, 225
SCRA 725, 1993)
Note: In Garcia‐Rueda v. Pascasio, G.R. No. 118141. September
5, 1997, the Court held that “while the Ombudsman has the
full discretion to determine whether or not a criminal case is
to be filed, the Court is not precluded from reviewing the
Ombudsman’s action when there is grave abuse of discretion.”

ASAS
ADMINISTRATIVE LAW
532. How are administrative agencies created?
Administrative agencies are created by: (a.)
Constitutional provision; (b.) Authority of law; and (c.)
Legislative enactment.
533. Powers of administrative agencies in general
Quasi Legislative – otherwise known as the power
of subordinate legislation and permits the body to promulgate
rules intended to carry out the provisions of particular laws.
It is well settled in this jurisdiction that administrative
authorities are vested with the power to make rules and
regulations because it is impracticable for the lawmakers to
provide general regulations for various and varying details of
management.
The quasi legislative power may be defined as the
authority delegated by the law-making body to the
administrative body to adopt rules and regulations intended
to carry out the provisions of a law and implement a
legislative policy.
Quasi-judicial – its power of adjudication, enables the
administrative body to resolve, in a manner essentially
judicial, factual, and sometimes even legal questions
incidental to its primary power of enforcement of the law.
The quasi-judicial power has been defined as the
power of administrative authorities to make determinations
of facts in the performance of their official duties and to apply
the law as they construe it to the facts so found. The exercise
of this power is only incidental to their main function, which
is the enforcement of the law.
To better enable the administrative body to exercise
its quasi-judicial authority, it is also vested with what are
known as determinative powers and functions. Professor
Freund classifies them generally into the enabling powers and
directing powers. The latter includes the dispensing, the
examining, and the summary powers.
The enabling powers are those that permit the doing
of an act which the law undertakes to regulate and which
would be unlawful without government approval. The most
common example is the issuance of licenses to engage in a
particular business or occupation.
The directing powers order the doing or
performance of particular acts to ensure compliance with the
law and are often exercised for corrective purposes. Thus, the
109 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
DENR may require factories to use certain chemicals to
protect the environment.
The dispensing power allows the administrative
officer to relax the general operation of a law or exempt from
the performance of a general duty, as when a student is
excused from physical education requirements for health
reasons, or when residential buildings are permitted by the
zoning board to remain in an area designated as commercial
or industrial.
Summary powers are those involving the use by
administrative authorities of force upon persons or things
without the necessity of previous judicial warrant. Examples
are the padlocking by the mayor’s office of filthy restaurants
or moviehouses exhibiting obscene movies, the shooting
down of a mad dog on the loose, the take-over by the Bangko
Sentral ng Pilipinas of mismanaged banks, and the
confiscation by the customs authorities of articles which are
prohibited per se.
534. Meaning of Quasi-Legislative (Rule Making) power
See No. 533
535. Kinds of administrative rules and regulations
Legislative regulations. A legislative rule is in the
matter of subordinate legislation, designed to implement a
primary legislation by providing the details thereof.
Legislative rules and regulations are accorded by the courts
or by express provision of statute the force and effect of law
immediately upon going into effect. In such instances, the
administrative agency is acting in a legislative capacity,
supplementing the statute, filling in the details, or “making
the law”, and usually acting pursuant to a specific delegation
of legislative power. A legislative rule is in the nature of
subordinate legislation, designed to implement a primary
legislation by providing the details thereof.
Legislative regulation is further classified into
supplementary and contingent. The supplementary
regulation is intended to fill in the details of the law and “to
make explicit what is only general.” Its purpose is to enlarge
upon a statute, subject only to the standards fixed therein, to
ensure its effective enforcement in accordance with
legislative will.
The contingent regulation is so called because it is
issued upon the happening of a certain contingency which the
administrative body is given the discretion to determine or
ascertain, under and pursuant to the law, by its own terms,
makes its own action depend, or to find the facts or conditions
properly prescribed under which a law is passed will or will
not operate, that is, for putting in effect, applying or
suspending the law.
 Interpretative regulations. An interpretative rule
is designed to provide guidelines to the law which the
administrative agency is in charge of enforcing.
Interpretative regulations are those which purport to do no
more than interpret the statute being administered, to say
what it means. They constitute the administrator’s
construction of a statute.
536. Requisites for validity
a.) It must be promulgated in accordance with the
prescribed procedure;
b.) It must be reasonable;
c.) It must be issued under the authority of the law;
d.) It must be within the scope and purview of the
law;
e.) Administrative regulations, issued for the purpose of
implementing existing law, pursuant to a valid delegation are
included in the term “laws” under Article 2, of the Civil Code
and must therefore be published in order to be effective; and
f.) Filing with the Office of the National Administrative
Register (ONAR) of the University of the Philippines Law
Center.
537. Publication: when and when not required
See No. 536(e). But mere 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.
538. Quasi-Judicial (Adjudicatory) power
See No. 533.
539. Meaning and requirement of administrative due
process
While administrative determinations of contested
cases are by their nature judicial, there is no requirement for
strict adherence to technical rules as are observed in truly
judicial proceedings. The atmosphere of administrative
tribunals may be one of expeditiousness or liberally
conceived remedies and, whether by provision of statute,
official rule or judicial decision, it is a general rule that they
are unrestricted by the technical or formal rules of procedure
which govern trials before a court, especially where the
administrative order has the effect of only prima facie
evidence.
According to Justice Laurel in the landmark case
of Ang Tibay vs. CIR, the following are the cardinal rights
and principles to be observed in administrative
proceedings:
1.) Right to a hearing which includes the right to
present one’s case and submit evidence in support thereof;
110 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
2.) The tribunal must consider the evidence
presented;
3.) The decision must be supported by evidence;
4.) Such evidence must be substantial;
5.) The decision must be based on the evidence
presented at the hearing or at least contained in the record,
and disclosed to the parties affected;
6.) The tribunal or body or any of its judges must act
on its own independent consideration of the law and the facts
of the controversy in arriving at a decision;
7.) The board or body should render decision that
parties know the various issues involved and reason for such
decision; and
8.) Officer or tribunal must be vested with competent
jurisdiction and must be impartial and honest.
540.) Administrative appeal and review
Administrative appeal. It refers to a review by a
higher agency of decisions rendered by an administrative
agency, commenced by petition of an interested party.
Administrative appeals are established by the 1987
Administrative Code, which will govern primarily in the
absence of specific law applicable. Under the 1987
Administrative Code, administrative appeals from a decision
of an administrative agency are taken to the Department
Head.
Administrative review. Administrative appeals are
not the only way by which a decision of an administrative
agency may be reviewed. A superior officer or department
head may upon his or her own volition review a subordinate’s
decision pursuant to the power of control.
Administrative reviews by a superior officer are,
however, subject to the caveat that a final and executory
decision is not included within the power of control, and
hence, can no longer be altered by administrative review.
541. Administrative res judicata
The doctrine of res judicata applies only to judicial or
quasi-judicial proceedings and not to the exercise of purely
administrative functions. Administrative proceedings are
non-litigious and summary in nature; hence, res judicata does
not apply.
The principle of res judicata applies only to the
exercise of administrative agencies of their quasi-judicial
power and may not be invoked in connection with their
exercise of purely administrative functions. (Montemayor
vs. Bundalian, 405 SCRA 264)
542. Explain the fact-finding, investigative, licensing, and
rate-fixing powers of administrative agencies
Fact-finding is not adjudication and it cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial
agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a
judicial function. To be considered as such, the act of receiving
evidence and arriving at factual conclusions in a controversy
must be accompanied by the authority of applying the law to
the factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be
provided by law. (Cariño vs. Commission on Human Rights
& Biraogo vs. The Philippine Truth Commission as cited
in Pichay vs. Office of the Deputy Executive Secretary for
Legal Affairs Investigative and Adjudicatory Division
(ODESLA-IAD) et al., G.R. No. 196425, July 24, 2012,
Perlas-Bernabe, J.)
Investigate, commonly understood, means to examine,
explore, inquire or delve or probe into, research on, study.
The dictionary definition of investigate is to observe or study
closely: inquire into systematically: to search or inquire into:
xx to subject to an official probe xx: to conduct an official
inquiry. The purpose of investigation, of course, is to
discover, to find out, to learn, obtain information. Nowhere
included or intimated is the notion of settling, deciding or
resolving the controversy involved in the facts inquired into
by application of the law to the facts established by the
inquiry.
The legal meaning of investigate is essentially the same: to
follow up step by step by patient inquiry or observation. To
trace or track; to search into; to examine and inquire into with
care and accuracy; to find out by careful inquisition;
examination; the taking of evidence; a legal inquiry; to
inquire; to make an investigation; investigation being in turn
described as an administrative function, the exercise of which
ordinarily does not require a hearing xx an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning
a certain matter or matters. (Cariño vs. Commission on
Human Rights, 6 SCRA 836)
Licensing power. The action of an administrative
agency in granting or denying, or in suspending or revoking, a
license, permit, franchise, or certificate of public convenience
and necessity.
Rate fixing. It is the power usually delegated by the
legislature to administrative agencies for the latter to fix the
rates which public utility companies may charge the public.
111 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Note: Fixing rate is essentially legislative but may be
delegated.
The administrative agencies perform this function
either by issuing rules and regulations in the exercise of their
quasi-legislative power or by issuing orders affecting a
specified person in the exercise of its quasi-judicial power.
The function of prescribing rates by an administrative agency
may be either a legislative and adjudicative function. Where
the rules and/or rates laid down are meant to apply to all
enterprises of a given kind throughout the country, they may
partake of a legislative character. If the fixing of the rates, the
giving of prior notice and hearing to the affected parties is not
a requirement of due process, except where the legislature
itself requires it.
Where the rules and rate imposed apply exclusively to a
particular party, based upon a finding of fact, then, its function
is quasi-judicial in character. As regards rate prescribed by
the administrative agency in the exercise of its quasi-judicial
function, prior notice and hearing are essential to the validity
of such rates. But an administrative agency may be
empowered by law to approve provisionally, when demanded
by urgent public need, rates of public utilities without a
hearing.
543. Are notice and hearing required for the issuance of
an administrative rule? Briefly explain
See No. 542.
In addition, as a general rule, notice and hearing are
not essential to the validity of an administrative action where
the administrative body acts in the exercise of executive,
administrative, or legislative functions; but where the public
administrative body acts in a judicial or quasi-judicial matter,
and its acts are particular and immediate rather than general
and prospective, the person whose rights or property may be
affected by the action is entitled to notice and hearing.
(Philippine Consumers Foundation Inc. vs. Secretary of
DECS, G.R. No. 78385, August 31, 1987)
It should be understandable that when an administrative rule
is merely interpretative in nature, its applicability needs
nothing further than its bare issuance for it gives no real
consequence more than what the law itself has already
prescribed. When, upon the other hand, the administrative
rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of
the law but substantially adds to or increases the burden of
those governed, it behooves the agency to accord at least to
those directly affected a chance to be heard, and thereafter to
be duly informed, before that new issuance is given the force
and effect of law. (GMA Network v. Commission on
Elections, G.R. No. 205357, September 2, 2014)
544. Are notice and hearing required for the issuance of a
decision or resolution in the exercise of adjudicative
functions? Briefly explain
See Nos. 542 and 543.
545. What are the judicial recourses, remedies or modes
of review of the exercise of quasi-legislative powers of an
administrative agency?
Rule 63 – Declaratory Relief and Similar
Remedies. Any person interested under a deed, will, contract
or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation
thereof bring an action in the appropriate RTC to determine
the question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
Rule 65 – Petition for Certiorari, Prohibition, and
Mandamus
546. What are the judicial recourses, remedies, or modes
of review of the exercise of quasi-judicial powers of an
administrative agency?
Rule 43 – Appeals from the (Court of Tax Appeals)
and Quasi-Judicial Agencies to the Court of Appeals
Rule 64 – Review of Judgments and Final Orders or
Resolutions of the COMELEC and COA (in relation to Rule 65 –
Petition for Certiorari, Prohibition, and Mandamus)
Rule 65 – Petition for Certiorari, Prohibition, and
Mandamus
547.) Doctrine of Primary Jurisdiction
Under the principle of primary jurisdiction, courts
cannot or will not determine a controversy involving a
question within the jurisdiction of an administrative body
prior to the decision of that question by the administrative
tribunal where:
(a.) The question demands administrative determination
requiring special knowledge, experience, and services of the
administrative tribunal;
(b.) The question requires determination of technical and
intricate issues of fact;
(c.) The uniformity of ruling is essential to comply with
purposes of the regulatory statute administered.
548. Doctrine of exhaustion of administrative remedies
112 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
It states that when there is "a procedure for
administrative review, x x x appeal, or reconsideration, the
courts x x x will not entertain a case unless the available
administrative remedies have been resorted to and the
appropriate authorities have been given an opportunity to act
and correct the errors committed in the administrative
forum." (Alejandro vs. Office of the Ombudsman Fact-
Finding and Intelligence Bureau, G.R. No. 173121, April 3,
2013, Brion, J.)
549. Exceptions to the Doctrine of Exhaustion
a.) When the question is purely legal;
b.) When the administrative body is in estoppel;
c.) When the act complained of is patently illegal
amounting to lack or excess of
jurisdiction;
d.) When there is an urgent need for judicial
intervention;
e.) When the claim involved is small;
f.) When irreparable damage will be suffered;
g.) When there is no other plain, speedy, and
adequate remedy;
h.) When strong public interest is involved;
i.) When the subject of the controversy is private
land;
j.) In quo warranto proceedings;
k.) Violation of due process;
l.) When the respondent is a Department Secretary whose
acts as an Alter Ego of the President bears the implied and
assumed approval of the latter (Doctrine of Qualified Political
Agency);
m.) When it would be unreasonable;
n.) When no administrative review is provided by law;
o.) When the issue of non-exhaustion has been rendered
moot;
p.) When it would amount to the nullification of the claim;
550. Doctrine of finality of administrative action
The doctrine provides that no resort to courts will be
allowed unless administrative action has been completed and
there is nothing left to be done in the administrative
structure.
551. Power of Administrative Agencies to cite for
Contempt; when and when not available.
Like the subpoena power, the power to punish for
contempt is essentially judicial and cannot be claimed as an
inherent right by the administrative body. To be validly
exercised, it must be expressly conferred upon the body and,
additionally, must be used only in connection with its quasi-
judicial as distinguished from its purely administrative or
routinary functions.

As a rule, where, say a subpoena of the
administrative body is disregarded, the person summoned
may not be directly disciplined by that body. The proper
remedy is for the administrative body to seek the assistance
of the courts of justice for the enforcement of its order.
Section 12, Rule 71 of the Rules of Court. Unless
otherwise provided by law, this Rule shall apply to contempt
committed against persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted pursuant to the
authority granted to them by law to punish for contempt. The
RTC of the place wherein the contempt has been committed
shall have jurisdiction over such charges as may be filed
therefor.
ELECTION LAW
552.) Meaning of Suffrage
It is the right to vote in the election of officers chosen
by the people and in the determination of questions
submitted to the people. It includes: (a.) election; (b.)
plebiscite; (c.) initiative; and (d.) referendum.
The right of suffrage is the right to vote. It is the
expression of the sovereign will of the people. In a
democracy, “the people, combined, represent the sovereign
power of the state. Their sovereignty is exercised through the
ballot of the registered voters in duly appointed elections held
from time to time, by means of which they choose their
officials for definite and fixed periods, and to whom they
entrust, for the time being, as their representatives, the
exercised of the powers of government.
The right of suffrage is an attribute of sovereignty
which resides in the people and entitles them to have a direct
participation in government. It is the bedrock of all
republican institutions. It is a recognition that the people in
their sovereign character are the fountain head of
governmental authority, and that their right to participate in
the power process is indispensable for democratic
government to constitute an effective instrument of social
control.
The right of suffrage is predicated upon the theory
that the people who bear the burden of government should
share in the privilege of choosing the officials of government.
That is the theory of representative form of government.
(Agpalo, Comments on the Omnibus Election Code, 2004)
Constitutional basis:
Suffrage may be exercised by all citizens of the
Philippines, not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately
preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of
suffrage. (Section 1, Article 5, 1987 Constitution)
113 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the
disabled and the illiterates 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 Elections
may promulgate to protect the secrecy of the ballot. (Section
2, Article 5, 1987 Constitution)
553.) Initiative
Initiative is a process of law-making by the people
themselves without the participation and against the wishes
of their elected representatives. (Agpalo, Comments on the
Omnibus Election Code, 2004)
It is the power of the people to propose amendments
to the Constitution or to propose or enact legislation. (UST
Golden Notes)
554.) Referendum
Consists merely of the electorate approving or
rejecting what has been drawn up or enacted by a legislative
body. (Agpalo, Comments on the Omnibus Election Code, 2004)
It is the power of the electorate to approve or reject
legislation through an election called for that purpose. (UST
Golden Notes)
Note: The process and the voting in an initiative are
more complex than in a referendum where the voters will
simply write either “Yes” or “No” in the ballot.
555.) Plebiscite
In modern constitutional law, the term “plebiscite”
means that which is given to a vote of the entire people or the
aggregate of the enfranchised individuals composing a state
or nation expressing their choice for a proposed measure.
Under our Constitution, it refers to the constituent act of
those citizens not otherwise disqualified by law, who are
eighteen years of age or over and who shall have resided in
the Philippines for a t least six months preceding a political
exercise.
Plebiscite is also the means by which the voters in
the affected areas consent to the change in the form of local
government. (Agpalo, Comments on the Omnibus Election
Code, 2004)
Who may elect
556.) Who may exercise this right: Qualification and
disqualification of voters
Constitutional basis:
Suffrage may be exercised by all citizens of the
Philippines, not otherwise disqualified by law, who are at
least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately
preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of
suffrage. (Section 1, Article 5, 1987 Constitution)
The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad.
The Congress shall also design a procedure for the
disabled and the illiterates 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 Elections
may promulgate to protect the secrecy of the ballot. (Section
2, Article 5, 1987 Constitution)
Substantive basis:
Omnibus Election Code
Section 117. Qualifications of a voter. - Every citizen
of the Philippines, not otherwise disqualified by law, eighteen
years of age or over, who shall have resided in the Philippines
for one year and in the city or municipality wherein he
proposes to vote for at least six months immediately
preceding the election, may be registered as a voter.
Any person who transfers residence to another city,
municipality or country solely by reason of his occupation;
profession; employment in private or public service;
educational activities; work in military or naval reservations;
service in the army, navy or air force; the constabulary or
national police force; or confinement or detention in
government institutions in accordance with law, shall be
deemed not to have lost his original residence.
Section 118. Disqualifications. - The following shall
be disqualified from voting:
(a) Any person who has been sentenced by final
judgment to suffer imprisonment for not less than one year,
such disability not having been removed by plenary pardon or
granted amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five years after
service of sentence.
(b) Any person who has been adjudged by final
judgment by competent court or tribunal of having committed
any crime involving disloyalty to the duly constituted
government such as rebellion, sedition, violation of the anti-
subversion and firearms laws, or any crime against national
security, unless restored to his full civil and political rights in
accordance with law: Provided, That he shall regain his right
to vote automatically upon expiration of five years after
service of sentence.
(c) Insane or incompetent persons as declared by
competent authority.
Republic Act No. 8189 – Voter’s Registration Act
of 1996
Section 9. Who may Register. All citizens of the
Philippines not otherwise disqualified by law who are at least
eighteen (18) years of age, and who shall have resided in the
Philippines for at least one (1) year, and in the place wherein
114 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
they propose to vote, for at least six (6) months immediately
preceding the election, may register as a voter.
Any person who temporarily resides in another city,
municipality or country solely by reason of his occupation,
profession, employment in private or public service,
educational activities, work in the military or naval
reservations within the Philippines, service in the Armed
Forces of the Philippines, the National Police Forces, or
confinement or detention in government institutions in
accordance with law, shall not be deemed to have lost his
original residence.
Any person, who, on the day of registration may not have
reached the required age or period of residence but, who, on
the day of the election shall possess such qualifications, may
register as a voter.
Section 11. Disqualification. The following shall be
disqualified from registering:
a) Any person who has been sentenced by final
judgment to suffer imprisonment of not less than one (1)
year, such disability not having been removed by plenary
pardon or amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five (5) years
after service of sentence;
b) Any person who has been adjudged by final
judgment by a competent court or tribunal of having
committed any crime involving disloyalty to the duly
constituted government such as rebellion, sedition, violation
of the firearms laws or any crime against national security,
unless restored to his full civil and political rights in
accordance with law: Provided, That he shall automatically
reacquire the right to vote upon expiration of five (5) years
after service of sentence; and
c) Insane or incompetent persons declared as such
by competent authority unless subsequently declared by
proper authority that such person is no longer insane or
incompetent.
Republic Act No. 9189 – Overseas Absentee
Voting Act of 2003
Sec. 4. Coverage. – All citizens of the Philippines
abroad, who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may vote
for president, vice-president, senators and party-list
representatives.
Sec. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
1. Those who have lost their Filipino citizenship in
accordance with Philippine laws;
2. Those who have expressly renounced their
Philippine citizenship and who have pledged allegiance to a
foreign country;
3. Those who have committed and are convicted in a
final judgment by a court or tribunal of an offense punishable
by imprisonment of not less than one (1) year, including those
who have committed and been found guilty of Disloyalty as
defined under Article 137 of the Revised Penal Code, such
disability not having been removed by plenary pardon or
amnesty; Provided, however, That any person disqualified to
vote under this subsection shall automatically acquire the
right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take
cognizance of final judgments issued by foreign courts or
tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on
execution of judgments;
4. An immigrant or a permanent resident who is
recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also
state that he/she has not applied for citizenship in another
country. Failure to return shall be the cause for the removal of
the name of the immigrant or permanent resident from the
National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
5. Any citizen of the Philippines abroad previously
declared insane or incompetent by competent authority in the
Philippines or abroad, as verified by the Philippine embassies,
consulates or foreign service establishments concerned,
unless such competent authority subsequently certifies that
such person is no longer insane or incompetent
557.) Registration of Voters
Omnibus Election Code
Section 126. Registration of voters. - On the seventh
and sixth Saturdays before a regular election or on the second
Saturday following the day of the proclamation calling for a
new special election, plebiscite or referendum, any person
desiring to be registered as a voter shall accomplish in
triplicate before the board of election inspectors a voter's
affidavit in which shall be stated the following data:
(a) Name, surname, middle name, maternal surname;
(b) Date and place of birth;
(c) Citizenship;
(d) Periods of residence in the Philippines and in the
place of registration;
(e) Exact address with the name of the street and
house number or in case there is none, a brief
description of the locality and the place;
(f) A statement that the applicant has not been
previously registered, otherwise he shall be required
to attach a sworn application for cancellation of his
previous registration; and
(g) Such other information or data which may be
required by the Commission.
The voter's affidavit shall also contain three
specimens of the applicant's signature and clear and legible
prints of his left and right hand thumbmarks and shall be
sworn to and filed together with four copies of the latest
identification photograph to be supplied by the applicant.
The oath of the applicant shall include a statement that he
does not have any of the disqualifications of a voter and that
he has not been previously registered in the precinct or in any
other precinct.
115 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Before the applicant accomplishes his voter's
affidavit, the board of election inspectors shall appraise the
applicant of the qualifications and disqualifications
prescribed by law for a voter. It shall also see to it that the
accomplished voter's affidavit contain all the data therein
required and that the applicant's specimen signatures, the
prints of his left and right hand thumbmarks and his
photograph are properly affixed in each of the voter's
affidavit.
Republic Act No. 8189 – Voter’s Registration Act
of 1996
Section 7. General Registration of
Voters. Immediately after the barangay elections in 1997, the
existing certified list of voters shall cease to be effective and
operative. For purposed of the May 1998 elections and all
elections, plebiscites, referenda, initiatives, and recalls
subsequent thereto, the Commission shall undertake a
general registration of voters before the Board of Election
Inspectors on June 14, 15, 21, and 22 and, subject to the
discretion of the Commission, on June 28 and 29, 1997 in
accordance with this Act.
Section 8. System of Continuing Registration of
Voters. The personal filing of application of registration of
voters shall be conducted daily in the office of the Election
Officer during regular office hours. No registration shall,
however, be conducted during the period starting one
hundred twenty (120) days before a regular election and
ninety (90) days before a special election.
Section 10. Registration of Voters. A qualified voter
shall be registered in the permanent list of voters in a precinct
of the city or municipality wherein he resides to be able to
vote in any election. To register as a voter, he shall personally
accomplish an application form for registration as prescribed
by the Commission in three (3) copies before the Election
Officer on any date during office hours after having acquired
the qualifications of a voter.
The application shall contain the following data:
a) Name, surname, middle name, and/or maternal
surname;
b) Sex;
c) Date, and place of birth;
d) Citizenship;
e) Civil status, if married, name of spouse;
f) Profession, occupation or work;
g) Periods of residence in the Philippines and in the
place of registration;
h) Exact address with the name of the street and
house number for location in the precinct maps
maintained by the local office of the Commission, or
in case there is none, a brief description of his
residence, sitio, and barangay;
i) A statement that the applicant possesses all the
qualifications of a voter;
j) A statement that the applicant is not a registered
voter of any precinct; and
k) Such information or data as may be required by
the Commission.
The application for registration shall contain three
(3) specimen signatures of the applicant, clear and legible
rolled prints of his left and right thumbprints, with four (4)
identification size copies of his latest photograph, attached
thereto, to be taken at the expense of the Commission.
Before the applicant accomplishes his application for
registration, the Election Officer shall inform him of the
qualifications and disqualifications prescribed by law for a
voter, and thereafter, see to it that the accomplished
application contains all the data therein required and that the
applicant’s specimen signatures, fingerprints, and
photographs are properly affixed in all copies of the voter’s
application.
Section 14. Illiterate or Disabled Applicants. Any
illiterate person may register with the assistance of the
Election Officer or any member of an accredited citizen’s
arms. The Election Officer shall place such illiterate person
under oath, ask him the questions, and record the answers
given in order to accomplish the application form in the
presence of the majority of the members of the Board. The
Election Officer or any member of an accredited citizen’s arm
shall read the accomplished form aloud to the person assisted
and ask him if the information given is true and correct The
accomplished form shall be subscribed by the applicant in the
presence of the Board by means of thumbmark or some other
customary mark and it shall be subscribed and attested by the
majority of the members of the Board.
The attestation shall state the name of the person
assisted, the name of the Election Officer or the member of the
accredited citizen’s arm who assisted the applicant, the fact
that the Election Officer placed the applicant under oath, that
the Election Officer or the member of the accredited citizen’s
arm who assisted the applicant read the accomplished form to
the person assisted, and that the person assisted affirmed its
truth and accuracy, by placing his thumbmark or some other
customary mark on the application in the presence of the
Board.
The application for registration of a physically
disabled person may be prepared by any relative within the
fourth civil degree of consanguinity or affinity or by the
Election Officer or any member of an accredited citizen’s arm
using the data supplied by the applicant. The fact of illiteracy
or disability shall be so indicated in the application.
Republic Act No. 10367 – Mandatory Biometrics
Voter’s Registation
Section 3. Who Shall Submit for Validation. –
Registered voters whose biometrics have not been captured
shall submit themselves for validation.
Section 4. Who Shall Conduct the Validation. – The
City or Municipal Election Officer shall conduct the validation.
Section 5. Commencement of Validation. – The
Commission shall conduct validation beginning July 1, 2013,
consistent with the continuing registration under Republic
Act No. 8189.
Section 6. Publication and Notice Requirement. – The
Commission shall cause the publication of the commencement
of the validation in two (2) newspapers of general circulation.
The City or Municipal Election Officer shall serve individual
written notices by registered mail with return card to the
116 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
voters concerned at their latest address in the voter’s
registration record and post the list of the voters concerned in
the city or municipal bulletin board and in the local COMELEC
office.
Section 7. Deactivation. – Voters who fail to submit
for validation on or before the last day of filing of application
for registration for purposes of the May 2016 elections shall
be deactivated pursuant to this Act.
Section 8. Reactivation. – Those deactivated under
the preceding section may apply for reactivation after the May
2016 elections following the procedure provided in Section
28 of Republic Act No. 8189.
Section 9. Database Security. – The database
generated by biometric registration shall be secured by the
Commission and shall not be used, under any circumstance,
for any purpose other than for electoral exercises.
Section 10. Mandatory Biometrics Registration. – The
Commission shall implement a mandatory biometrics
registration system for new voters.
Section 11. Prohibited Acts. – The following shall be
election offenses punishable under Sections 263 and 264 of
Batas Pambansa Bilang 881, as amended, otherwise known as
the "Omnibus Election Code":
(a) Any person who shall prohibit, impede, obstruct
or prevent a registered voter or a new voter from submitting
his or her biometrics for capture through the use of force,
intimidation or monetary consideration; and
(b) Any public official or person who, under the guise
of implementing this Act, shall unjustifiably and without due
process, cause the deactivation or reactivation of any
registered voter.
CASANA
558. Who has jurisdiction over inclusion and
exclusion proceedings
Jurisdiction in Inclusion and Exclusion Case. The
Municipal and Metropolitan Trial Courts shall have original
and exclusive jurisdiction over all cases of inclusion and
exclusion of voters in their respective cities or municipalities.
Decisions of the Municipal or Metropolitan Trial Courts may
be appealed by the aggrieved party to the Regional Trial Court
within five (5) days from receipt of notice thereof. Otherwise,
said decision shall become final and executory. The regional
trial court shall decide the appeal within ten (10) days from
the time it is received and the decision shall immediately
become final and executory. No motion for reconsideration
shall be entertained. (Section 33, RA 8189, The Voter’s
Registration Act of 1996)
559. Who may vote under the absentee voting law?
 All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of
age on the day of elections, may vote for president, vice-
president, senators and party-list representatives. (Section 4,
RA 9189, The Overseas Absentee Voting Act of 2003)
560. May dual citizens vote in Philippine elections?
 Yes, RA 9225 (Citizenship Retention and Re-
acquisition Act of 2003), allows dual citizens to
register as overseas absentee voters. Under the said
Act, dual citizens enjoy the full civil and political
rights of Filipino as guaranteed by the Philippine
Constitution and the existing Philippine laws.
 Declaration of Policy - It is hereby declared the
policy of the State that all Philippine citizens of
another country shall be deemed not to have lost
their Philippine citizenship under the conditions of
this Act. (Section 2, RA 9225)
 Civil and Political Rights and Liabilities - Those
who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and
responsibilities under existing laws of the
Philippines. (Section 5, RA 9225)
Who may be elected
561. Qualification of individual candidates
A. President
No person may be elected President unless:
1. He is a natural-born citizen of the Philippines;
2. A registered voter;
3. Able to read and write;
4. At least forty years of age on the day of the election; and
5. A resident of the Philippines for at least ten years
immediately preceding such election. (Section 2, Article VII,
1987 Constitution)
B. Vice President
There shall be a Vice-President who shall have the same
qualifications and term of office and be elected with and in the
same manner as the President. He may be removed from
office in the same manner as the President. (Section 3,
Article VII, 1987 Constitution)
C. Senators
No person shall be a Senator unless:
1. He is a natural-born citizen of the Philippines;
117 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
2. On the day of the election, is at least thirty-five years of age;
3. Able to read and write;
4. A registered voter; and
5. A resident of the Philippines for not less than two years
immediately preceding the day of the election. (Section 3,
Article VI, 1987 Constitution)
D. District Representatives
No person shall be a Member of the House of Representatives
unless:
1. He is a natural-born citizen of the Philippines;
2. On the day of the election, is at least twenty-five years of
age;
3. Able to read and write;
4. Except the party-list representatives, a registered voter in
the district in which he shall be elected; and
5. A resident thereof for a period of not less than one year
immediately preceding the day of the election. (Section 6,
Article VI, 1987 Constitution)
E. Party-List Representatives (Sectoral representatives):
1.Natural born citizen of the Philippines
2.Able to read and write
3. Resident of the Philippines for a period not less than 1 year
immediately preceding the ay of the election
4. Bona fide member of the sector he seeks to represent
5. On the day of the election is at least 25 years old but in case
of youth sectoral representative, at least 25 years and not
more than 25 years old at the day of the election
F. Elective Local Officials
Qualifications:
1. An elective local official must be a citizen of the Philippines;
2. A registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang
bayan, the district where he intends to be elected;
3. A resident therein for at least one (1) year immediately
preceding the day of the election; and
4. Able to read and write Filipino or any other local language
or dialect. (Section 39(a), RA 7160)
Age:
(b) Candidates for the position of governor, vice-governor, or
member of the sangguniang panlalawigan, or mayor, vice-
mayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-one (21) years of age
on election day.
(c) Candidates for the position of mayor or vice-mayor of
independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age
on election day.
(d) Candidates for the position of member of the sangguniang
panlungsod or sangguniang bayan must be at least eighteen
(18) years of age on election day.
(e) Candidates for the position of punong barangay or
member of the sangguniang barangay must be at least
eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least
fifteen (15) years of age but not more than twenty-one (21)
years of age on election day. (Section 39, RA 7160)
562. Residency, meaning and elements
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the
physical presence of a person in a given area, community or
country. The essential distinction between residence and
domicile in law is that residence involves the intent to leave
when the purpose for which the resident has taken up his
abode ends. One may seek a place for purposes such as
pleasure, business, or health. If a person's intent be to remain,
it becomes his domicile; if his intent is to leave as soon as his
purpose is established it is residence. It is thus, quite
perfectly normal for an individual to have different residences
in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of choice.
In Uytengsu vs. Republic, we laid this distinction quite clearly:
There is a difference between domicile and
residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile"
denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another.
Residence is not domicile, but domicile is residence
coupled with the intention to remain for an
unlimited time. A man can have but one domicile for the same
purpose at any time, but he may have numerous places
of residence. His place of residence is generally his
place of domicile, but it is not by any means
necessarily so since no length of residence without
intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile
are dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly
and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.
(Romualdez-Marcos v. COMELEC, G.R. No. 119976
September 18, 1995)
563. Change of residency: requisites
118 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
To acquire a new domicile a domicile by choice the following
must concur:
(1) Residence or bodily presence in a new locality;
(2) An intention to remain there; and
(3) An intention to abandon the old domicile. In other words,
there must be an animus non revertendi with respect to the
old domicile, and an animus manendi at the domicile of choice.
The intent to remain in or at the domicile of choice must be
for an indefinite period of time and the acts of the person
must be consistent with this intent. (Romualdez-Marcos v.
COMELEC cited in Mitra v. COMELEC, G.R. No. 191938,
October 19, 2010)
564. Give examples of subjective standards that
cannot be used for determining residency
a. In considering the residency issue, the COMELEC practically
focused solely on its consideration of Mitra’s residence at
Maligaya Feedmill, on the basis of mere photographs of the
premises. In the COMELEC’s view (expressly voiced out by the
Division and fully concurred in by the En Banc), the Maligaya
Feedmill building could not have been Mitra’s residence
because it is cold and utterly devoid of any indication of
Mitra’s personality and that it lacks loving attention and
details inherent in every home to make it one’s residence.This
was the main reason that the COMELEC relied upon for its
conclusion.
Such assessment, in our view, based on the interior design
and furnishings of a dwelling as shown by and examined only
through photographs, is far from reasonable; the COMELEC
thereby determined the fitness of a dwelling as a person’s
residence based solely on very personal and subjective
assessment standards when the law is replete with standards
that can be used. Where a dwelling qualifies as a residence –
i.e., the dwelling where a person permanently intends to
return to and to remain – his or her capacity or inclination to
decorate the place, or the lack of it, is immaterial. (Mitra v.
COMELEC, G.R. No. 191938, October 19, 2010)
b. Voter Certification, Registration and COCs in previous
elections
The COMELEC correctly ruled that the Voter Certification
issued by the COMELEC Election Officer, Atty. Juan B. Aguila,
Jr., was not conclusive proof that petitioner had been a
resident of Lipa City since April 2007. (Sabili v. Commission
on Elections, G.R. No. 193261, April 24, 2012)
c. Certifications regarding the family members
Also, it is petitioner’s domicile which is at issue, and not that
of his children. But even assuming that it was petitioner
himself (rather than his children) who attended educational
institutions or who registered as a voter in a place other than
Lipa City, we have held that "absence from residence to
pursue studies or practice a profession or registration as a
voter other than in the place where one is elected, does not
constitute loss of residence." In fact, Section 117 of the
Omnibus Election Code provides that transfer of residence to
any other place by reason of one's "occupation; profession;
employment in private and public service; educational
activities; work in military or naval reservations; service in
the army, navy or air force, the constabulary or national
police force; or confinement or detention in government
institutions in accordance with law" is not deemed as loss of
residence. (Sabili v. Commission on Elections, G.R. No.
193261, April 24, 2012)
d. Affidavits of residents
Moreover, even assuming the truth of the allegation in the
Affidavits that petitioner was "rarely seen" in the area, this
does not preclude the possibility of his residence therein. In
Fernandez v. House of Representatives Electoral Tribunal
(G.R. No. 187478, December 21, 2009), we held that the
averments of certain barangay health workers – that they
failed to see a particular candidate whenever they made
rounds of the locality of which he was supposed to be a
resident – is of no moment. It is possible that the candidate
was out of the house to attend to his own business at the time.
The law does not require a person to be in his home twenty-
four (24) hours a day, seven (7) days a week, to fulfill the
residency requirement. (Sabili v. Commission on Elections,
G.R. No. 193261, April 24, 2012)
e. Income Tax Returns
The Income Tax Returns of petitioner presented below
showed that petitioner had been paying his Income Tax (2007
and 2008) to the Revenue District Office of Lipa City. In
waving aside his Income Tax Returns, the COMELEC held that
these were not indications of residence since Section 51(B) of
the National Internal Revenue Code does not only state that it
shall be filed in a person’s legal residence, but that it may
alternatively be filed in a person’s principal place of business.
(Sabili v. Commission on Elections, G.R. No. 193261, April
24, 2012)
565. Disqualifications of individual candidates under
the Constitution
A. President and Vice-President
The President and the Vice-President shall be elected by
direct vote of the people for a term of six years which shall
begin at noon on the thirtieth day of June next following the
day of the election and shall end at noon of the same date six
years thereafter. The President shall not be eligible for any
reelection. No person who has succeeded as President and
has served as such for more than four years shall be qualified
for election to the same office at any time.
No Vice-President shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of the service for the full term for which he was
elected. (Section 4, Article VII, 1987 Constitution)
119 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
B. Senators
The term of office of the Senators shall be six years and shall
commence, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.
No Senator shall serve for more than two 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. (Section
4, Article VI, 1987 Constitution)
C. Members of the House of Representatives
The Members of the House of Representatives shall be elected
for a term of three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of June next
following their election.
No member of the House of Representatives shall serve for
more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term
for which he was elected. (Section 7, Article VI, 1987
Constitution)
D. Elective Local Officials
The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he
was elected. (Section 8, Article X, 1987 Constitution)
Note: The word “election” in Section 8, Article X of the
Constitution refers to regular and not to special or recall
elections. Accordingly, a three-termer elective official is
qualified to run for the same position in the special election,
such as in recall election or one called to fill a vacancy.
(Socrates v. COMELEC G.R. No. 154512, November 12,
2002)
566. Disqualification of individual candidates under
statutes
A. Section 12, BP 881 (Omnibus Election Code of the
Philippines)
Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more
than eighteen months or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or
granted amnesty.
This disqualifications to be a candidate herein provided shall
be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
his service of sentence, unless within the same period he
again becomes disqualified.
B. Section 68, BP 881
Any candidate who, in an action or protest in which he is a
party is declared by final decision of a competent court guilty
of, or found by the Commission of having:
(a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing
electoral functions;
(b) committed acts of terrorism to enhance his candidacy;
(c) spent in his election campaign an amount in excess of that
allowed by this Code;
(d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of
or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of
a foreign country in accordance with the residence
requirement provided for in the election laws.
Note:
Sec. 80- Election Campaign or partisan political activity
outside campaign period.
Sec. 83- Removal, destruction, or defacement of lawful
election propaganda
Sec. 85- Prohibited forms of election propaganda
Sec.86- Regulation of election propaganda through mass
media
Sec. 261- Prohibited acts which are considered as election
offenses
C. Section 40, RA 7160 (LGC)
The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence;
(b) Those removed from office as a result of an
administrative case;
120 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political
cases here or abroad;
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and
continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
Note: When a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes
cast in his favor cannot be declared stray. (Codilla v. De
Venecia, G.R. No. 150605, Dec. 10, 2002)
567. Qualification and disqualification of party list
candidates
A. Qualifications:
For a party list organization to participate in the elections, it
must comply with the following:
On April 2, 2013, the Court, in Atong Paglaum Inc. v.
Commission on Elections, laid down new parameters to be
observed by the COMELEC in screening parties, organizations
or associations seeking registration and/or accreditation
under the party-list system, viz:
1. Three different groups may participate in the
party-list system: (1) national parties or
organizations, (2) regional parties or organizations,
and (3) sectoral parties or organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize
along sectoral lines and do not need to represent any
marginalized and underrepresented sector. 3.
Political parties can participate in party-list elections
provided they register under the party-list system
and do not field candidates in legislative district
elections. A political party, whether major or not,
that fields candidates in legislative district elections
can participate in party-list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be
"marginalized and underrepresented or lacking in
"well-defined political constituencies." It is enough
that their principal advocacy pertains to the special
interests and concerns of their sector. The sectors
that are marginalized and underrepresented include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-
 defined political constituencies" include
professionals, the elderly, women, and the youth.
5. A majority of the members of the sectoral parties
or organizations that represent the ''marginalized
and underrepresented must belong to the
marginalized and underrepresented sector they
represent. Similarly, a majority of the members of
sectoral parties or organizations that lack "well-
defined political constituencies" must belong to the
sector they represent. The nominees of sectoral
parties or organizations that represent the
"marginalized and underrepresented" or that
represent those who lack "well-defined political
constituencies," either must belong to their
respective sectors, or must have a track record or
advocacy for their respective sectors. The nominees
of national and regional parties or organizations
must be bona-fide members of such parties or
organizations.
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some of
their nominees are disqualified, provided that they
have at least one nominee who remains qualified.
(Abang Lingkod Party List v. COMELEC, G.R. No.
206952, October 22, 2013)
B. Disqualifications:
Refusal and/or Cancellation of Registration. The COMELEC
may, motu propio or upon verified complaint of any
interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral
party, organization or coalition on any of the following
grounds:
(1) It is a religious sect or denomination,
organization or association, organized for religious
purposes;
(2) It advocates violence or unlawful means to seek
its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or through any of its
officers or members or indirectly through third
parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or
regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding
elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in
the two (2) preceding elections for the constituency
121 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
in which it has registered. (Section 6, RA 7941,
Party-List System Act)
568. Qualification and disqualification of party list
nominees
Qualifications of Party-List Nominees:
No person shall be nominated as party-list representative
unless:
1. he is a natural-born citizen of the Philippines;
2. a registered voter;
3. a resident of the Philippines for a period of not less than
one (1)year immediately preceding the day of the election;
4. able to read and write;
5.a bona fide member of the party or organization which he
seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of
age on the day of the election.
6. In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed
to continue in office until the expiration of his term. (Section
9, RA 7941, Party-List System Act)
7. The nominees of sectoral parties or organizations that
represent the "marginalized and underrepresented" or that
represent those who lack "well-defined political
constituencies," either must belong to their respective sectors,
or must have a track record or advocacy for their respective
sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or
organizations. (Abang Lingkod Party List v. COMELEC, G.R.
No. 206952, October 22, 2013)
Other actors in the election process
569. State the powers of the Commission on Elections
under the Constitution.
The Commission on Elections shall exercise the following
powers and functions:
(1) Enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum,
and recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on
election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of the
number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government; and accredit citizens’ arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in
national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be
prescribed by law.
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall. (Section 2, Article
IX-C, 1987 Constitution)
570. What are the conditions for the COMELEC to
exercise its power to regulate the media or public
utilities?
The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public
utilities, media of communication or information, all grants,
122 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
special privileges, or concessions granted by the Government
or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation
or its subsidiary.
Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and
credible elections. (Section 4, Article IX-C, 1987
Constitution)
Note: The power may only be exercised over the media not
over practitioners.
571. May the COMELEC compel newspapers to give
free print space to candidates to ensure equal
opportunities during elections? Briefly explain.
No. In Philippine Press Institute v. COMELEC (G.R. No. L-
119694 May 22, 1995), the Court held that to
compel print media companies to donate “COMELEC space”
amounts to “taking” of private personal property without
payment of the just compensation required
in expropriation cases. Moreover, the element of necessity for
the taking has not been established by respondent COMELEC,
considering that the newspapers were not unwilling to sell
advertising space. The taking of private property for public
use is authorized by the constitution, but not without
payment of just compensation. Also Resolution No. 2772 does
not constitute a valid exercise of the police power of the state.
In the case at bench, there is no showing of existence of a
national emergency to take private property of newspaper
or magazine publishers.
572. May the COMELEC prevent the publication of
surveys of voter preference during the election period?
Briefly explain.
No. In SWS v. COMELEC (G.R. No. 147571, 05 May 2001), the
Court declared unconstitutional Section 5.4 of RA 9005
prohibiting publication of election survey results.
“We hold that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech,
expression, and the press by prohibiting the publication of
election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding
a national election and seven (7) days before a local election.
Because of the preferred status of the constitutional rights of
speech, expression, and the press, such a measure is vitiated
by a weighty presumption of invalidity. Indeed, any system of
prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity. . . . The
Government thus carries a heavy burden of showing
justification for the enforcement of such restraint. There is
thus a reversal of the normal presumption of validity that
inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the
Constitution, which gives the COMELEC supervisory power to
regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of
invalidity attaches to a measure like 5.4. For as we have
pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under
Art. IX-C, 4 is limited to ensuring equal opportunity, time,
space, and the right to reply as well as uniform and
reasonable rates of charges for the use of such media facilities
for public information campaigns and forums among
candidates. This Court stated:
The technical effect of Article IX (C) (4) of the Constitution
may be seen to be that no presumption of invalidity arises in
respect of exercises of supervisory or regulatory authority on
the part of the COMELEC for the purpose of securing equal
opportunity among candidates for political office, although
such supervision or regulation may result in some limitation
of the rights of free speech and free press.
573. What are the prohibitions on members of the
armed forces and the civil service during elections?
 Professionalism in the armed forces and adequate
remuneration and benefits of its members shall be a
prime concern of the State. The armed forces shall be
insulated from partisan politics.
No member of the military shall engage directly
or indirectly in any partisan political activity, except
to vote. (Section 5(3), Article XVI, 1987
Constitution)
 No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering
or partisan political campaign. (Section 2(4), Article
IX-B, 1987 Constitution)
574. May the COMELEC ban the media from conduct
and publication of exit polls on elections? Why?
No. On January 28, 2000, the Court gave its final ruling that
"the holding of exit polls and the dissemination of their
results through mass media constitute an essential part of the
freedoms of speech and of the press" (ABS-CBN v. COMELEC,
G.R. 133486). This had the later effect of keeping exit polling
safe from the publication ban, and is one of our strongest
arguments as to the unconstitutionality, as well, of a ban on
publishing pre-election surveys.
575. May the COMELEC ban the conduct of election
surveys? Why?
123 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
No. The COMELEC may not ban the conduct of election
surveys because: (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression
of a category of expression even though such suppression is
only for a limited period, and (3) the governmental interest
sought to be promoted can be achieved by means other than
suppression of freedom of expression. (SWS v. COMELEC,
G.R. No. 147571, May 5, 2001)
The electoral process
576. Election period
Unless otherwise fixed by the Commission in special cases,
the election period shall commence ninety days before the
day of the election and shall end thirty days after. (Section 9,
Article IX-C, 1987 Constitution)
Campaign period:
1. Presidential and Vice presidential election – 90 days;
2. Election of members of the Congress and local election – 45
days;
3. Barangay Election – 15 days
4. Special election under Art. VIII, Sec. 5(2) of the Constitution
– 45 days
Note: The campaign periods shall not include the day before
and the day of the election (Sec. 3 OEC)
577. Effect of filing on appointive and elective officers
Effects of Filing Certificates of Candidacy. –
 a) Any person holding a public appointive office or
position including active members of the Armed
Forces of the Philippines, and other officers and
employees in government-owned or controlled
corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of
candidacy.
b) Any person holding an elective office or position
shall not be considered resigned upon the filing of
his certificate of candidacy for the same or any other
elective office or position. (COMELEC
Resolution No. 8678)
The aforementioned were not declared unconstitutional when
the court reversed its prior decision in the case of Quinto v.
COMELEC (22 February 2010) through a resolution on the
MR.
Section 4 of COMELEC Resolution 8678 Compliant with Law
Section 4 of COMELEC Resolution 8678 is a faithful reflection
of the present state of the law and jurisprudence on the
matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA
9369, which reiterates Section 66 of the Omnibus Election
Code, any person holding a public appointive office or
position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-
owned or -controlled corporations, shall be considered ipso
facto resigned from his office upon the filing of his certificate
of candidacy.
Incumbent Elected Official. – Upon the other hand, pursuant
to Section 14 of RA 9006 or the Fair Election Act, which
repealed Section 67 of the Omnibus Election Code and
rendered ineffective Section 11 of R.A. 8436 insofar as it
considered an elected official as resigned only upon the start
of the campaign period corresponding to the positions for
which they are running, an elected official is not deemed to
have resigned from his office upon the filing of his certificate
of candidacy for the same or any other elected office or
position. In fine, an elected official may run for another
position without forfeiting his seat.
These laws and regulations implement Section 2(4), Article
IX-B of the 1987 Constitution, which prohibits civil service
officers and employees from engaging in any electioneering or
partisan political campaign.
The intention to impose a strict limitation on the participation
of civil service officers and employees in partisan political
campaigns is unmistakable
578. Substitution of candidates
If after the last day for the filing of certificates of candidacy, an
official candidate of a political party: (1) dies, (2) withdraws
or is (3) disqualified for any cause, a person belonging to, and
certified by, the same political party may file a certificate of
candidacy not later than mid•]day of election day to replace
the candidate who died, withdrew or was disqualified.
(COMELEC Reso. No. 9140)
Note: However, no substitution shall be allowed for any
independent candidate. (Ibid.)
Requisites:
GR:
1. The substitute must belong to the same party
2. The deceased, disqualified or withdrawn candidate must
have duly file a valid certificate of candidacy. (Ibid.)
 Substitution can only take place on the first day of
campaign period until not later than mid-day of
election day. (COMELEC Reso. No. 9140)
579. Withdrawal of candidates
The Election Code allows a person who has filed a certificate
of candidacy to withdraw the same prior to the election by
submitting a written declaration under oath. There is no
provision of law which prevents a candidate from
withdrawing his certificate of candidacy before the election.
Section 77 of the Election Code provides:
Sec. 77. Candidates in case of death, disqualification or
withdrawal of another. – If after the last day for the filing of
certificates of candidacy, an official candidate of a registered
or accredited political party dies, withdraws or is disqualified
for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to
replace the candidate who died, withdrew or was disqualified.
The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later
than mid-day of election day of the election. If the death,
withdrawal or disqualification should occur between the day
before the election and midday of election day, said certificate
may be filed with any board of election inspectors in the
political subdivision where he is candidate or, in case of
candidates to be voted for by the entire electorate of the
country, with the Commission. (Cerafica v. COMELEC, G.R.
No. 205136, December 2, 2014)
580. Nuisance candidates
We have ruled that a nuisance candidate is one whose
certificate of candidacy is presented and filed to cause
confusion among the electorate by the similarity of the names
of the registered candidate or by other names which
demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has
been filed and thus prevent a faithful determination of the
true will of the electorate (Fernandez vs. Fernandez, 36
SCRA 1 [1970] cited in Martinez III v. House of
Representatives Electoral Tribunal and Benhur l.
Salimbangon, G.R. No. 189034, January 12, 2010)
581. Petition to Deny or Cancel Certificates of
Candidacy

XPN: This does not include those cases where the certificate
Requisites:
of candidacy of the person to be substituted had been denied
due course and canceled under Section 78 of the Omnibus
1. Material misrepresentation in the qualifications for elective
Election Code. While the law enumerated the occasion where
office, which includes age, residency, citizenship, and any
a candidate may be validly substituted, there is no mention of
other legal qualifications necessary to run for an elective
the case where a candidate is excluded not only by
office; and
disqualification but also by denial and cancellation of his
certificate of candidacy. (Ong v. Alegre, G.R. No. 163295,
2. Deliberate attempt to mislead, misinform or hide a fact
January 23, 2006)
which would otherwise render a candidate ineligible. Note:
These two requirements must concur to warrant the
cancellation of the certificate of candidacy.

124 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER


A verified petition may be filed exclusively on the ground that
any material representation contained in the certificate as
required under Section 74 is FALSE. The petition may be filed
not later than 25 days from the time of filing of the certificate
of candidacy, and shall be decided, after due notice and
hearing, not later than 15 days before the election. (Section
78, B.P. 881 Omnibus Election Code)
Note: Jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC in division, not with the
COMELEC en banc. (Garvida v. Sales, G.R. No. 122872,
September 10, 1997)
582. What are the basic requirements for cancellation
of CoC for material misrepresentation?
 Please refer to question no. 581
 Section 78 states that the false representation in the
contents of the COC required under Section 74 must
refer to material matters in order to justify the
cancellation of the COC. What then constitutes a
material misrepresentation?
In Salcedo II v. Commission on Elections, petitioner
Victorino Salcedo II filed with the COMELEC a
petition seeking cancellation of respondent Ermelita
Salcedo's (Ermelita) COC on the ground that she had
made material misrepresentation by stating her
surname as Salcedo. Petitioner claimed that Ermelita
had no right to use the surname Salcedo, since her
marriage to Neptali Salcedo was void. The COMELEC
En Banc found that Ermelita did not commit any
misrepresentation nor usurp another's name since
she had the right to use her husband's surname for
being married to him, and thus, validated her
proclamation as Mayor of Sara, Iloilo. Salcedo
appealed the COMELEC's resolution, and we held:
In case there is a material misrepresentation in the
certificate of candidacy, the Comelec is authorized to
deny due course to or cancel such certificate upon
the filing of a petition by any person pursuant to
Section 78 x x x
As stated in the law, in order to justify the
cancellation of the certificate of candidacy under
Section 78, it is essential that the false
representation mentioned therein pertain[s] to a
material matter for the sanction imposed by this
provision would affect the substantive rights of a
candidate — the right to run for the elective post for
which he filed the certificate of candidacy. Although
the law does not specify what would be considered
as a "material representation," the Court has
interpreted this phrase in a line of decisions applying
Section 78 of the Code.
xxxx
125 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Therefore, it may be concluded that the material
misrepresentation contemplated by Section 78 of the
Code refer to qualifications for elective office. This
conclusion is strengthened by the fact that the
consequences imposed upon a candidate guilty of
having made a false representation in his certificate
of candidacy are grave — to prevent the candidate
from running or, if elected, from serving, or to
prosecute him for violation of the election laws. It
could not have been the intention of the law to
deprive a person of such a basic and substantive
political right to be voted for a public office upon just
any innocuous mistake.
x x x xAside from the requirement of materiality, a
false representation under Section 78 must consist of
a "deliberate attempt to mislead, misinform, or hide
a fact which would otherwise render a candidate
ineligible." In other words, it must be made with an
intention to deceive the electorate as to one’s
qualifications 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
provision.
In Aratea v. Commission on Elections, we
proclaimed Estela D. Antipolo, the alleged second
placer, as Mayor of San Antonio, Zambales, being the
one who remained as the sole qualified candidate for
the mayoralty post and obtained the highest number
of votes, since the COC of Romeo D. Lonzanida, the
first placer, was declared void ab initio. We find that
violation of the three-term limit is an eligibility
affecting the qualification of a candidate to elective
office and the misrepresentation of such is a ground
to grant the petition to deny due course or cancel a
COC. We said that:
Section 74 requires the candidate to certify that he is
eligible for the public office he seeks election. Thus,
Section 74 states that "the certificate of candidacy
shall state that the person filing x x x is eligible for
said office." The three-term limit rule, enacted to
prevent the establishment of political dynasties and
to enhance the electorate’s freedom of choice, is
found both in the Constitution and the law. After
being elected and serving for three consecutive
terms, an elective local official cannot seek
immediate reelection for the same office in the next
regular election because he is ineligible. One who has
an ineligibility to run for elective public office is not
"eligible for [the] office." As used in Section 74, the
word "eligible" means having the right to run for
elective public office, that is, having all the
qualifications and none of the ineligibilities to run for
the public office. (Villafuerte v. COMELEC, G.R. No.
206698, February 25, 2014)
DIMAPILIS
583. When is a representation material?
Section 78 of the Omnibus Election Code states that a
certificate of candidacy may be denied or cancelled when
there is false material representation of the contents of
the certificate of candidacy.
The critical material facts are those that refer to a candidates
qualifications for elective office, such as his or her citizenship
and residence. The candidates status as a registered voter in
the political unit where he or she is a candidate similarly falls
under this classification as it is a requirement that, by law
(the Local Government Code), must be reflected in the COC.
The reason for this is obvious: the candidate, if he or she wins,
will work for and represent the political unit where he or she
ran as a candidate. (Mitra vs. COMELEC)
584. Can an honest mistake constitute a false material
misrepresentation?
No. The false representation under Section 78 must likewise
be a deliberate attempt to mislead, misinform, or hide a fact
that would otherwise render a candidate ineligible. Given the
purpose of the requirement, it must be made with the
intention to deceive the electorate as to the would-be
candidates qualifications for public office. Thus, the
misrepresentation that Section 78 addresses cannot be the
result of a mere innocuous mistake, and cannot exist in a
situation where the intent to deceive is patently absent, or
where no deception on the electorate results. The deliberate
character of the misrepresentation necessarily follows from a
consideration of the consequences of any material falsity: a
candidate who falsifies a material fact cannot run; if he runs
and is elected, he cannot serve; in both cases, he can be
prosecuted for violation of the election laws. (Mitra vs.
COMELEC)
585. Give the various grounds for disqualification
under the Omnibus Election Code.
Sec. 12. Disqualification. — Any person who has been declared
by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been
given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall
be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section
68 of the Omnibus Election Code are specifically enumerated:
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or
protest in which he is a party is declared by final decision by a
competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
126 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and
104; (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election laws.
(Emphasis supplied)
Additional: Disqualification under LGC
Sec. 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one
(1) year or more of imprisonment, within two (2) years after
serving sentence;
586. Effect of Disqualification
Art. 30. Effects of the penalties of perpetual or temporary
absolute disqualification. — The penalties of perpetual or
temporary absolute disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices and employments
which the offender may have held, even if conferred by
popular election.
2. The deprivation of the right to vote in any election for
any popular elective office or to be elected to such office.
3. The disqualification for the offices or public
employments and for the exercise of any of the rights
mentioned.
In case of temporary disqualification, such disqualification as
is comprised in paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for
any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary
special disqualification. — The penalties of perpetual or
temporary special disqualification for public office,
profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or
calling affected.
2. The disqualification for holding similar offices or
employments either perpetually or during the term of the
sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary
special disqualification for the exercise of the right of suffrage.
— The perpetual or temporary special disqualification for
the exercise of the right of suffrage shall deprive the
offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in
any popular election for any public office or to be elected to
such office.Moreover, the offender shall not be permitted
to hold any public office during the period of his
disqualification.
Art. 42. Prisión mayor — Its accessory penalties. — The
penalty of prision mayor shall carry with it that oftemporary
absolute disqualification and that of perpetual special
disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by
operation of law,24 the accessory penalties of temporary
absolute disqualification and perpetual special
disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any
popular elective office or to be elected to such office.” The
duration of temporary absolute disqualification is the same as
that of the principal penalty of prisión mayor. On the other
hand, under Article 32 of the Revised Penal Code, perpetual
special disqualification means that "the offender shall not
be permitted to hold any public office during the period
of his disqualification,” which is perpetually. Both
temporary absolute disqualification and perpetual special
disqualification constitute ineligibilities to hold elective public
office.A person suffering from these ineligibilities is
ineligible to run for elective public office, and commits a
false material representation if he states in his certificate
of candidacy that he is eligible to so run. (Ara Tea v.
Commission on Elections)
587. Distinguish: disqualification v. cancellation of
certificate of candidacy
A. Distinction between a petition for disqualification and a
petition to deny due course to/cancel a certificate of
candidacy
The Omnibus Election Code23 (OEC) provides for certain
remedies to assail a candidate’s bid for public office. Among
these which obtain particular significance to this case are: (1)
a petition for disqualification under Section 68; and (2) a
petition to deny due course to and/or cancel a certificate of
candidacy under Section 78. The distinctions between the two
are well-perceived.
Primarily, a disqualification case under Section 68 of the
OEC is hinged on either: (a) a candidate’s possession of a
permanent resident status in a foreign country;24 or (b) his or
her commission of certain acts of disqualification. Anent the
latter, the prohibited acts under Section 68 refer to election
offenses under the OEC, and not to violations of other penal
laws. Accordingly, the same provision (Section 68) states that
any candidate who, in an action or protest in which he or she
127 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
is a party, is declared by final decision of a competent court
guilty of, or found by the COMELEC to have committed any of
the foregoing acts shall be disqualified from continuing as a
candidate for public office, or disallowed from holding the
same, if he or she had already been elected.
It must be stressed that one who is disqualified under Section
68 is still technically considered to have been a candidate,
albeit proscribed to continue as such only because of
supervening infractions which do not, however, deny his or
her statutory eligibility. In other words, while the candidate’s
compliance with the eligibility requirements as prescribed by
law, such as age, residency, and citizenship, is not in question,
he or she is, however, ordered to discontinue such candidacy
as a form of penal sanction brought by the commission of the
above-mentioned election offenses.
On the other hand, a denial of due course to and/or
cancellation of a CoC proceeding under Section 78 of the
OEC36 is premised on a person’s misrepresentation of any of
the material qualifications required for the elective office
aspired for. It is not enough that a person lacks the relevant
qualification; he or she must have also made a false
representation of the same in the CoC.
The nature of a Section 78 petition was discussed in the case
of Fermin v. COMELEC,38 where the Court illumined:
Let it be misunderstood, the denial of due course to or the
cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the
qualifications required of the public office he/she is running
for. It is noted that the candidates states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the
OEC, therefore, is to be read in relation to the constitutional
and statutory provisions on qualifications or eligibility for
public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding
under Section 253 of the OEC since they both deal with the
eligibility or qualification of a candidate, with the distinction
mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate.
Corollary thereto, it must be noted that the deliberateness of
the misrepresentation, much less one’s intent to defraud, is of
bare significance in a Section 78 petition as it is enough that
the person’s declaration of a material qualification in the CoC
be false. In this relation, jurisprudence holds that an express
finding that the person committed any deliberate
misrepresentation is of little consequence in the
determination of whether one’s CoC should be deemed
cancelled or not.39 What remains material is that the petition
essentially seeks to deny due course to and/or cancel the CoC
on the basis of one’s ineligibility and that the same be granted
without any qualification.40
Pertinently, while a disqualified candidate under Section 68 is
still considered to have been a candidate for all intents and
purposes, on the other hand, a person whose CoC had been
denied due course to and/or cancelled under Section 78 is
deemed to have not been a candidate at all. The reason being
is that a cancelled CoC is considered void ab initio and thus,
cannot give rise to a valid candidacy and necessarily, to valid
votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, a person who
certificate is cancelled or denied due course under Section 78
is not treated as a candidate at all, as if he/she never filed a
CoC. (Tagolino v. House of Representatives)
588. Prohibited acts during campaign
Section 85. Prohibited forms of election propaganda. - It shall
be unlawful:
(a) To print, publish, post or distribute any poster,
pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless they
bear the names and addresses of the printer and payor as
required in Section 84 hereof;
(b) To erect, put up, make use of, attach, float or display
any billboard, tinplate-poster, balloons and the like, of
whatever size, shape, form or kind, advertising for or
against any candidate or political party;
(c) To purchase, manufacture, request, distribute or
accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic
goods or materials, wallets, shirts, hats, bandanas,
matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed to
wear hats and/or shirts or T-shirts advertising a
candidate;
(d) To show or display publicly any advertisement or
propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as
hereinafter provided; and
(e) For any radio broadcasting or television station to sell
or give free of charge air time for campaign and other
political purposes except as authorized in this Code
under the rules and regulations promulgated by the
Commission pursuant thereto.
Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or torn down
by the representative of the Commission upon specific
authority of the Commission.
589. Prohibited contributions
128 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Section 95. Prohibited contributions. - No contribution for
purposes of partisan political activity shall be made directly
or indirectly by any of the following:
(a) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the making of
any loan to a candidate or political party by any such
public or private financial institutions legally in the
business of lending money, and that the loan is made in
accordance with laws and regulations and in the ordinary
course of business;
(b) Natural and juridical persons operating a public
utility or in possession of or exploiting any natural
resources of the nation;
(c) Natural and juridical persons who hold contracts or
sub-contracts to supply the government or any of its
divisions, subdivisions or instrumentalities, with goods
or services or to perform construction or other works;
(d) Natural and juridical persons who have been granted
franchises, incentives, exemptions, allocations or similar
privileges or concessions by the government or any of its
divisions, subdivisions or instrumentalities, including
government-owned or controlled corporations;
(e) Natural and juridical persons who, within one year
prior to the date of the election, have been granted loans
or other accommodations in excess of P100,000 by the
government or any of its divisions, subdivisions or
instrumentalities including government-owned or
controlled corporations;
(f) Educational institutions which have received grants of
public funds amounting to no less than P100,000.00;
(g) Officials or employees in the Civil Service, or members
of the Armed Forces of the Philippines; and
(h) Foreigners and foreign corporations.
It shall be unlawful for any person to solicit or receive
any contribution from any of the persons or entities
enumerated herein.
Section 96. Soliciting or receiving contributions from foreign
sources. - It shall be unlawful for any person, including a
political party or public or private entity to solicit or receive,
directly or indirectly, any aid or contribution of whatever
form or nature from any foreign national, government or
entity for the purposes of influencing the results of the
election.
Section 97. Prohibited raising of funds. - It shall be unlawful
for any person to hold dances, lotteries, cockfights, games,
boxing bouts, bingo, beauty contests, entertainments, or
cinematographic, theatrical or other performances for the
purpose of raising funds for an election campaign or for the
support of any candidate from the commencement of the
election period up to and including election day; or for any
person or organization, whether civic or religious, directly or
indirectly, to solicit and/or accept from any candidate for
public office, or from his campaign manager, agent or
representative, or any person acting in their behalf, any gift,
food, transportation, contribution or donation in cash or in
kind from the commencement of the election period up to and
including election day; Provided, That normal and customary
religious stipends, tithes, or collections on Sundays and/or
other designated collection days, are excluded from this
prohibition.
590. Limitations on campaign expenses
Section 100. Limitations upon expenses of candidates. - No
candidate shall spend for his election campaign an aggregate
amount exceeding one peso and fifty centavos for every voter
currently registered in the constituency where he filed his
candidacy: Provided, That the expenses herein referred to
shall include those incurred or caused to be incurred by the
candidate, whether in cash or in kind, including the use, rental
or hire of land, water or aircraft, equipment, facilities,
apparatus and paraphernalia used in the campaign: Provided,
further, That where the land, water or aircraft, equipment,
facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is
hereby empowered to assess the amount commensurate with
the expenses for the use thereof, based on the prevailing rates
in the locality and shall be included in the total expenses
incurred by the candidate.
Section 101. Limitations upon expenses of political parties. - A
duly accredited political party may spend for the election of
its candidates in the constituency or constituencies where it
has official candidates an aggregate amount not exceeding the
equivalent of one peso and fifty centavos for every voter
currently registered therein. Expenses incurred by branches,
chapters, or committees of such political party shall be
included in the computation of the total expenditures of the
political party.
Expenses incurred by other political parties shall be
considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this
Code.
Section 102. Lawful expenditures. - To carry out the
objectives of the preceding sections, no candidate or treasurer
of a political party shall, directly or indirectly, make any
expenditure except for the following purposes:
(a) For travelling expenses of the candidates and campaign
personnel in the course of the campaign and for personal
expenses incident thereto;
(b) For compensation of campaigners, clerks,
stenographers, messengers, and other persons actually
employed in the campaign;
(c) For telegraph and telephone tolls, postage, freight and
express delivery charges;
(d) For stationery, printing and distribution of printed
matters relative to candidacy;
(e) For employment of watchers at the polls;
129 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(f) For rent, maintenance and furnishing of campaign
headquarters, office or place of meetings;
(g) For political meetings and rallies and the use of sound
systems, lights and decorations during said meetings and
rallies;
(h) For newspaper, radio, television and other public
advertisements;
(i) For employment of counsel, the cost of which shall not
be taken into account in determining the amount of
expenses which a candidate or political party may have
incurred under Section 100 and 101 hereof;
(j) For copying and classifying list of voters, investigating
and challenging the right to vote of persons registered in
the lists the costs of which shall not be taken into account in
determining the amount of expenses which a candidate or
political party may have incurred under Sections 100 and
101 hereof; or
(k) For printing sample ballots in such color, size and
maximum number as may be authorized by the Commission
and the cost of such printing shall not be taken into account
in determining the amount of expenses which a candidate
or political party may have incurred under Sections 100
and 101 hereof.
Sec. 13 of RA 7166. Authorized Expenses of Candidates
and Political Parties. - The agreement amount that a
candidate or registered political party may spend for election
campaign shall be as follows:
1. For candidates. - Ten pesos (P10.00) for President
and Vice-President; and for other candidates Three
Pesos (P3.00) for every voter currently registered in
the constituency where he filed his certificate of
candidacy: Provided, That a candidate without any
political party and without support from any political
party may be allowed to spend Five Pesos (P5.00) for
every such voter; and
2. For political parties. - Five pesos (P5.00) for every
voter currently registered in the constituency or
constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding any
contribution in cash or in kind to any candidate or political
party or coalition of parties for campaign purposes, duly
reported to the Commission shall not be subject to the
payment of any gift tax.
591. Statements of contributions and expenses
Sec. 14. Statement of Contributions and Expenditures;
Effect of Failure to File Statement. - Every candidate and
treasurer of the political party shall, within thirty (30) days
after the day of the election, file in duplicate with the offices of
the Commission the full, true and itemized statement of all
contributions and expenditures in connection with the
election.
No person elected to any public offices shall enter upon the
duties of his office until he has filed the statement of
contributions and expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file
the statements or reports in connection with electoral
contributions and expenditures are required herein shall
constitute an administrative offense for which the offenders
shall be liable to pay an administrative fine ranging from One
thousand pesos (P1,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a
writ of execution issued by the Commission against the
properties of the offender.
It shall be the duty of every city or municipal election
registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election
all candidates residing in his jurisdiction to comply with their
obligation to file their statements of contributions and
expenditures.
For the commission of a second or subsequent offense under
this section, the administrative fine shall be from Two
thousand pesos (P2,000.00) to Sixty thousand pesos
(P60,000.00), in the discretion of the Commission. In addition,
the offender shall be subject to perpetual disqualification to
hold public office.
592. Premature campaigning, is it illegal? Briefly
explain.
Section 80. Election campaign or partisan political activity
outside campaign period. - It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or
partisan political activity except during the campaign period:
Provided, That political parties may hold political conventions
or meetings to nominate their official candidates within thirty
days before the commencement of the campaign period and
forty-five days for Presidential and Vice-Presidential election.
(Note: Applying the ruling in Penera vs. COMELEC, there will be
no premature campaigning that can be committed by a
candidate to speak of under Section 80 kasi a person will only
be considered as candidate only during the start of the
campaign period for which he filed his certificate of candidacy.
Tama ba? So the answer is No, it is not illegal. Kindly check. :) )
a) Section 15 of Republic Act 8436, as amended, which states
that a person who files his certificate of candidacy will only be
considered a candidate at the start of the campaign period,
and unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of such campaign period.
Thus, applying said law:
(1) The effective date when partisan political acts become
unlawful as to a candidate is when the campaign period starts.
Before the start of the campaign period, the same partisan
political acts are lawful.
130 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(2) Accordingly, a candidate is liable for an election offense
only for acts done during the campaign period, not before. In
other words, election offenses can be committed by a
candidate only upon the start of the campaign period. Before
the start of the campaign period, such election offenses
cannot be so committed. Since the law is clear, the Court has
no recourse but to apply it. The forum for examining the
wisdom of the law, and enacting remedial measures, is not the
Court but the Legislature.
b) Contrary to the assailed Decision, Section 15 of R.A. 8436,
as amended, does not provide that partisan political acts done
by a candidate before the campaign period are unlawful, but
may be prosecuted only upon the start of the campaign
period. Neither does the law state that partisan political acts
done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the start of
the campaign period. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.
c) That Section 15 of R.A. 8436 does not expressly state that
campaigning before the start of the campaign period is lawful,
as the assailed Decision asserted, is of no moment. It is a basic
principle of law that any act is lawful unless expressly
declared unlawful by law. The mere fact that the law does not
declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of
R.A. 8436 that partisan political activities before the start of
the campaign period are lawful. It is sufficient for Congress to
state that “any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign
period.” The only inescapable and logical result is that the
same acts, if done before the start of the campaign period, are
lawful.
d) The Court’s 11 September 2009 Decision also reversed
Lanot vs. COMELEC (G.R. No. 164858; 16 November 2006).
Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations
of the legislators who explained that the early deadline for
filing certificates of candidacy under R.A. 8436 was set only to
afford time to prepare the machine-readable ballots, and they
intended to preserve the existing election periods, such that
one who files his certificate of candidacy to meet the early
deadline will still not be considered as a candidate.
(Penera vs. COMELEC)
593. Powers of the board of election inspector in
general
Section 168. Powers of the board of election inspectors. - The
board of election inspectors shall have the following powers
and functions:
 a. Conduct the voting and counting of votes in their
respective polling places;
b. Act as deputies of the Commission in the supervision
and control of the election in the polling places wherein
they are assigned, to assure the holding of the same in a
free, orderly and honest manner; and
c. Perform such other functions prescribed by this Code
or by the rules and regulations promulgated by the
Commission.
594. Powers of the board of canvassers in general
Performs a purely ministerial function, that of compiling and
adding the results as they appear in the returns transmitted
to it. (Guiao vs. COMELEC)
The COMELEC shall have direct control and supervision over
the board of canvasser.s
595. Explain the duty of the Board of Canvassers to
proclaim the winner.
Section 231. Canvass by the board.
Xxx
The respective board of canvassers shall prepare a certificate
of canvass duly signed and affixed with the imprint of the
thumb of the right hand of each member, supported by a
statement of the votes received by each candidate in each
polling place and, on the basis thereof, shall proclaim as
elected the candidates who obtained the highest number of
votes cast in the province, city, municipality or barangay.
Failure to comply with this requirement shall constitute an
election offense.
596. Doctrine of statistical improbability
The doctrine of statistical improbability was first pronounced
in Lagumbay v. Commission on Elections, in which the Court
upheld the power and duty of the COMELEC to reject the
returns of about 50 precincts affecting the elections of
Senators, because their results were contrary to all statistical
probabilities, thus:
It appearing therein that contrary to all statistical
probabilities in the first set, in each precinct the number of
registered voters equalled the number of ballots and the
number of votes reportedly cast and tallied for each and every
candidate of the Liberal Party, the party in power; whereas,
all the candidates of the Nacionalista Party got exactly zero;
and in the second set, again contrary to all statistical
probabilities all the reported votes were for candidates of the
Liberal Party, all of whom were credited with exactly the
same number of votes in each precinct, ranging from 240 in
one precinct to 650 in another precinct; whereas, all the
candidates of the Nacionalista Party were given exactly zero
in all said precincts.
131 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Lagumbay expounded on the doctrine of statistical
improbability and the doctrines effect on the power of the
COMELEC to reject the results reflected in the election returns
when such returns showed prima facie that they did not
reflect the true and valid reports of regular voting.
Xxx
Under Lagumbay, therefore, the doctrine of statistical
improbability is applied only where the unique uniformity of
tally of all the votes cast in favor of all the candidates
belonging to one party and the systematic blanking of all the
candidates of all the opposing parties appear in the election
return. The doctrine has no application where there
is neither uniformity of tallies norsystematic blanking of the
candidates of one party. Thus, the bare fact that a candidate
for public office received no votes in one or two
precincts, standing alone and without more, cannot
adequately support a finding that the subject election returns
are statistically improbable. Verily, a zero vote for a particular
candidate in the election returns is but one strand in the web
of circumstantial evidence that the electoral returns were
prepared under duress, force and intimidation.
The Court has thus warned that the doctrine of statistical
improbability must be restrictively viewed, with the utmost
care being taken lest in penalizing fraudulent and corrupt
practices which is truly called for innocent voters become
disenfranchised, a result that hardly commends itself.
Remedies in election law
597. Petition Not to Give Due Course to Certificate of
Candidacy: When can it be filed and on what ground/s
SEC. 78.Petition to deny due course to or cancel a certificate of
candidacy. - A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-
five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing,
not later than fifteen days before the election.
The false representation that these provisions mention
pertains to a material fact, not to a mere innocuous
mistake. This is emphasized by the consequences of any
material falsity: a candidate who falsifies a material fact
cannot run; if he runs and is elected, cannot serve; in both
cases, he or she can be prosecuted for violation of the election
laws.60 Obviously, these facts are those that refer to a
candidate’s qualifications for elective office, such as his or her
citizenship and residence.
Separate from the requirement of materiality, a false
representation under Section 78 must consist of a "deliberate
attempt to mislead, misinform, or hide a fact, which would
otherwise render a candidate ineligible." In other words, it
must be made with the intention to deceive the electorate as
to the would-be candidate's qualifications for public office.
(Jalover v. Osmena)

598. Petition to Declare Failure of Elections: When
can it be filed and on what ground/s
Section 6 of the Omnibus Election Code provides, “If, on
account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not
been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and
hearing, 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,
suspended or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.” This provision was reflected in Section 2, Rule 26 of
the COMELEC Rules of Procedure.
In Banaga vs. COMELEC, which was cited in the challenged
resolution, enumerated the instances when failure of
elections may be declared as follows: (1) the election in any
polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud or other analogous
causes; (2) the election in any polling place had been
suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud
or other analogous causes; or (3) after the voting and during
the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes.
Before the COMELEC can act on a verified petition
seeking to declare a failure of elections, two conditions must
concur: (1) no voting took place in the precinct or precincts
on the date fixed by law, or even if there was voting, the
election resulted in a failure to elect; and (2) the votes not
cast would have affected the result of the elections. The cause
of such failure of election could only be any of the
following: force majeure, violence, terrorism, fraud or other
analogous causes.
599. Pre-Proclamation Controversy: When can it be
filed and on what ground/s
Section 241. Definition. - 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 Commission, or any matter raised under Sections 233,
234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.
Grounds:
The issues that may be ventilated in a pre-
proclamation controversy are enumerated in Section 243 of
132 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
the Omnibus Election Code as follows: (1.) Illegal
composition or proceedings of the board of canvassers; (2.)
The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of the Omnibus Election Code; (3.) The election
returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not
authentic; and (4.) When substitute or fraudulent returns in
controverted polling places were canvassed, the results of
which materially affected the standing of the aggrieved
candidate or candidates. (Abdul Gaffar P.M. Dibaratun vs.
COMELEC)
Procedure under RA 7166:
Sec. 15. Pre-proclamation Cases Not Allowed in Elections
for President Vice-President, Senator, and Member of the
House of Representatives. - For purposes of the elections for
President, Vice-President, Senator and Member of the House
of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of the election returns or
the certificates of canvass, as the case may be. However, this
does not preclude the authority of the appropriate canvassing
body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass
or election returns before it.
Questions affecting the composition or proceedings of the
board of canvassers may be initiated in the board or directly
with the Commission in accordance with Section 19 hereof.
Any objection on the election returns before the city or
municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Area, shall be specifically noticed in the minutes of their
respective proceedings.
Sec. 17. Pre-proclamation Controversies; How
Commenced. - Questions affecting the composition or
proceedings of the board of canvassers may be initiated in the
board or directly with the Commission. However, matters
raised under Sections 233, 234, 235 and 236 of the Omnibus
Election Code in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns, and
the certificates of canvass shall be brought in the first instance
before the board of canvassers only.
Sec. 18. Summary Disposition of Pre-proclamation
Controversies. - All pre-proclamation controversies on
election returns or certificates of canvass shall, on the basis of
the records and evidence elevated to it by the board of
canvassers, be disposed of summarily by the Commission
within seven (7) days from receipt thereof. Its decisions shall
be executory after the lapse of seven (7) days for receipts by
the losing party of the decision of the Commission.
Sec. 19. Consented Composition or Proceedings of the
Board: Period to Appeal: Decision by the Commission. -
Parties adversely affected by a ruling of the board of
canvassers on questions affecting the composition or
proceedings of the board may appeal the matter to the
Commission within three (3) days from a ruling thereon. The
Commission shall summarily decided the case within five (5)
days from the filing thereof.
Note:
Section 9. No pre‐proclamation cases are allowed in
case of barangay election. (R.A. No. 6679)
600. What are manifest errors?
To be manifest, the errors must appear on the face of the
certificates of canvass or election returns sought to be
corrected and/or objections thereto must have been made
before the board of canvassers and specifically noted in the
minutes of their respective proceedings. (Chavez vs.
COMELEC)
One that is visible to the eye or obvious to the understanding,
and is apparent from the papers to the eye of the appraiser
and collector, and does not include an error which may, by
evidence to make it more clear. (O’hara vs COMELEC)
601. What are the grounds to declare failure of
elections?
See answer to no. 598
602. Election Protest: When can it be filed and on
what ground/s
Requisites:
Must be filed by any candidate who has filed a certificate of
candidacy and has been voted upon for the same office.
When to file:
Within 10 days from the proclamation of the results of the
election.
 The period for filing election protest is suspended
during the pendency of a pre-proclamation
controversy (Gatchalian vs. COMELEC)
 Where, after 5 days from the proclamation of the
winning candidate, the loser files a motion for
reconsideration, only five (5) days of the ten (10) day
reglementary period to file an election protest
remained. (Roquero vs COMELEC)
Grounds:
On the grounds of fraud, terrorism, irregularities or illegal
acts committed before, during or after the casting and
counting of votes. (Nachura)
Additional:
1. Fraud
2. Vote‐buying
3. Terrorism
4. Presence of flying voters
5. Misreading or misappreciation of ballots
6. Disenfranchisement of voters
7. Unqualified members of board of election inspector
8. Other election irregularities.
133 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Purpose:
The purpose of an election protest is to ascertain whether the
candidate proclaimed elected by the board of canvassers is
the true and lawful choice of the electorate. Such a proceeding
is usually instituted on the theory that the election returns,
which are deemed prima facie to be true reports of how the
electorate voted on election day and which serve as the basis
for proclaiming the winning candidate, do not accurately
reflect the true will of the voters due to alleged irregularities
that attended the counting of ballots. In a protest prosecuted
on such a theory, the protestant ordinarily prays that the
official count as reflected in the election returns be set aside
in favor of a revision and recount of the ballots, the results of
which should be made to prevail over those reflected in the
returns pursuant to the doctrine that "in an election contest
where what is involved is the number of votes of each
candidate, the best and most conclusive evidence are the
ballots themselves." (Eriguel v. Commission on Elections)
603. Quo Warranto: When can it be filed and on what
ground/s
A quo warranto proceeding in elective office can be filed by
any registered voter in the constituency on the grounds of
ineligibility or disloyalty to the Republic.
It is a proceeding to determine the right to the use or exercise
of an office and to oust the holder from its enjoyment, if his
claim is not well founded or if he has forfeited his right to
enjoy the privilege.
When to File:
Within 10 days from proclamation of the results of the
election
604. Election protest v. quo warranto
Unlike an election protest, which can only be filed by a
candidate, any voter can file a petition for quo warranto.
605. Who may prosecute individuals for election
offenses
The COMELEC is vested with the power of a public prosecutor
with the exclusive authority to conduct the preliminary
investigation and prosecution of election offenses punishable
under the Omnibus Election Code. (Sec. 265, B.P. 881 Omnibus
Election Code)
Note:
The COMELEC en banc may delegate such authority to any
public prosecutor but always subject to the control and
supervision of the COMELEC. (People v. Delgado, G.R. No.
Nos. 93419‐32, September 18, 1990)
What are the election offenses?
1. Vote buying and vote selling
2. Conspiracy to bribe voters
3. Wagering upon result of election
4. Coercion of subordinates
5. Threats, intimidation, terrorism, use of fraudulent device or
other forms of coercion
6. Coercion of election officials and employees
7. Appointment of new employees, creation of new position,
promotion, giving of salary increases
8. Intervention of public officers and employees
9. Undue influence
10. Unlawful electioneering
11. Others. (Sec. 261, B.P. 881 Omnibus Election Code)
606. Outline the jurisdiction of various
courts/tribunals in election controversies
Jurisdiction over Election Contest:
1. Original and exclusive:
COMELEC – sole judge of all contests relating to elections,
returns, and qualifications of all elective regional, provincial
and city officials.
Supreme Court en banc – President and Vice President
SET – Senator
HRET – representative
RTC – over contests for municipal officials
MeTC or MTC – for barangay officials
Note:
HRET begins only after the candidate is considered a Member
of the House of Representatives, as stated in Section 17,
Article VI of the 1987 Constitution:
Section 17. The Senate and the House of Representatives shall
each have an Electoral Tribunal which shall be the sole judge
of all contests relating to the election, returns, and
qualifications of their respective Members.
2. Appellate
a. From decision of the RTC and MTC (re:
municipal and barangay officials), appeal shall
be made exclusively to the COMELEC whose
decision shall be final, executor and
unappealable.
b. From decisions of COMELEC and Electoral
Tribunal, review shall be made via Petition for
review on certiorari (R65) with the SC on the
ground of GAD or violation of due process.
607. Are decisions of the House and Senate Electoral
Tribunals in contests involving the elections, returns and
qualifications of the Members of the House or Senate
appealable? Can these decisions be reviewed?
Decision of HRET is not appealable under R45 but reviewable
under R65. In Puzon vs HRET, SC ruled that review of a
decision of the Electoral Tribunal is possible only in the
exercise of supervisory or extraordinary jurisdiction and only
upon showing of error that results from whimsical,
134 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
capricious, unwarranted, arbitrary and despotic exercise of
power.
DIMAPILIS
583. When is a representation material?
Section 78 of the Omnibus Election Code states that a
certificate of candidacy may be denied or cancelled when
there is false material representation of the contents of
the certificate of candidacy.
The critical material facts are those that refer to a candidates
qualifications for elective office, such as his or her citizenship
and residence. The candidates status as a registered voter in
the political unit where he or she is a candidate similarly falls
under this classification as it is a requirement that, by law
(the Local Government Code), must be reflected in the COC.
The reason for this is obvious: the candidate, if he or she wins,
will work for and represent the political unit where he or she
ran as a candidate. (Mitra vs. COMELEC)
584. Can an honest mistake constitute a false material
misrepresentation?
No. The false representation under Section 78 must likewise
be a deliberate attempt to mislead, misinform, or hide a fact
that would otherwise render a candidate ineligible. Given the
purpose of the requirement, it must be made with the
intention to deceive the electorate as to the would-be
candidates qualifications for public office. Thus, the
misrepresentation that Section 78 addresses cannot be the
result of a mere innocuous mistake, and cannot exist in a
situation where the intent to deceive is patently absent, or
where no deception on the electorate results. The deliberate
character of the misrepresentation necessarily follows from a
consideration of the consequences of any material falsity: a
candidate who falsifies a material fact cannot run; if he runs
and is elected, he cannot serve; in both cases, he can be
prosecuted for violation of the election laws. (Mitra vs.
COMELEC)
585. Give the various grounds for disqualification
under the Omnibus Election Code.
Sec. 12. Disqualification. — Any person who has been declared
by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been
given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall
be deemed removed upon the declaration by competent
authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section
68 of the Omnibus Election Code are specifically enumerated:
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or
protest in which he is a party is declared by final decision by a
competent court guilty of, or found by the Commission of
having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and
104; (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this
Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election laws.
(Emphasis supplied)
Additional: Disqualification under LGC
Sec. 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by one
(1) year or more of imprisonment, within two (2) years after
serving sentence;
586. Effect of Disqualification
See answer to 587
587. Distinguish: disqualification v. cancellation of
certificate of candidacy
A. Distinction between a petition for disqualification and a
petition to deny due course to/cancel a certificate of
candidacy
The Omnibus Election Code23 (OEC) provides for certain
remedies to assail a candidate’s bid for public office. Among
these which obtain particular significance to this case are: (1)
a petition for disqualification under Section 68; and (2) a
petition to deny due course to and/or cancel a certificate of
candidacy under Section 78. The distinctions between the two
are well-perceived.
Primarily, a disqualification case under Section 68 of the
OEC is hinged on either: (a) a candidate’s possession of a
permanent resident status in a foreign country;24 or (b) his or
her commission of certain acts of disqualification. Anent the
latter, the prohibited acts under Section 68 refer to election
offenses under the OEC, and not to violations of other penal
laws. Accordingly, the same provision (Section 68) states that
135 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
any candidate who, in an action or protest in which he or she
is a party, is declared by final decision of a competent court
guilty of, or found by the COMELEC to have committed any of
the foregoing acts shall be disqualified from continuing as a
candidate for public office, or disallowed from holding the
same, if he or she had already been elected.
It must be stressed that one who is disqualified under Section
68 is still technically considered to have been a candidate,
albeit proscribed to continue as such only because of
supervening infractions which do not, however, deny his or
her statutory eligibility. In other words, while the candidate’s
compliance with the eligibility requirements as prescribed by
law, such as age, residency, and citizenship, is not in question,
he or she is, however, ordered to discontinue such candidacy
as a form of penal sanction brought by the commission of the
above-mentioned election offenses.
On the other hand, a denial of due course to and/or
cancellation of a CoC proceeding under Section 78 of the
OEC36 is premised on a person’s misrepresentation of any of
the material qualifications required for the elective office
aspired for. It is not enough that a person lacks the relevant
qualification; he or she must have also made a false
representation of the same in the CoC.
The nature of a Section 78 petition was discussed in the case
of Fermin v. COMELEC,38 where the Court illumined:
Let it be misunderstood, the denial of due course to or the
cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the
qualifications required of the public office he/she is running
for. It is noted that the candidates states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the
OEC, therefore, is to be read in relation to the constitutional
and statutory provisions on qualifications or eligibility for
public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or
cancel such certificate. Indeed, the Court has already likened a
proceeding under Section 78 to a quo warranto proceeding
under Section 253 of the OEC since they both deal with the
eligibility or qualification of a candidate, with the distinction
mainly in the fact that a "Section 78" petition is filed before
proclamation, while a petition for quo warranto is filed after
proclamation of the winning candidate.
Corollary thereto, it must be noted that the deliberateness of
the misrepresentation, much less one’s intent to defraud, is of
bare significance in a Section 78 petition as it is enough that
the person’s declaration of a material qualification in the CoC
be false. In this relation, jurisprudence holds that an express
finding that the person committed any deliberate
misrepresentation is of little consequence in the
determination of whether one’s CoC should be deemed
cancelled or not.39 What remains material is that the petition
essentially seeks to deny due course to and/or cancel the CoC
on the basis of one’s ineligibility and that the same be granted
without any qualification.40
Pertinently, while a disqualified candidate under Section 68 is
still considered to have been a candidate for all intents and
purposes, on the other hand, a person whose CoC had been
denied due course to and/or cancelled under Section 78 is
deemed to have not been a candidate at all. The reason being
is that a cancelled CoC is considered void ab initio and thus,
cannot give rise to a valid candidacy and necessarily, to valid
votes.41 In Talaga v. COMELEC42 (Talaga), the Court ruled that:
x x x x While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, a person who
certificate is cancelled or denied due course under Section 78
is not treated as a candidate at all, as if he/she never filed a
CoC. (Tagolino v. House of Representatives)
588. Prohibited acts during campaign
Section 85. Prohibited forms of election propaganda. - It shall
be unlawful:
(a) To print, publish, post or distribute any poster,
pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless they
bear the names and addresses of the printer and payor as
required in Section 84 hereof;
(b) To erect, put up, make use of, attach, float or display
any billboard, tinplate-poster, balloons and the like, of
whatever size, shape, form or kind, advertising for or
against any candidate or political party;
(c) To purchase, manufacture, request, distribute or
accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic
goods or materials, wallets, shirts, hats, bandanas,
matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed to
wear hats and/or shirts or T-shirts advertising a
candidate;
(d) To show or display publicly any advertisement or
propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as
hereinafter provided; and
(e) For any radio broadcasting or television station to sell
or give free of charge air time for campaign and other
political purposes except as authorized in this Code
under the rules and regulations promulgated by the
Commission pursuant thereto.
Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or torn down
by the representative of the Commission upon specific
authority of the Commission.
136 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
589. Prohibited contributions
Section 95. Prohibited contributions. - No contribution for
purposes of partisan political activity shall be made directly
or indirectly by any of the following:
(a) Public or private financial institutions: Provided,
however, That nothing herein shall prevent the making of
any loan to a candidate or political party by any such
public or private financial institutions legally in the
business of lending money, and that the loan is made in
accordance with laws and regulations and in the ordinary
course of business;
(b) Natural and juridical persons operating a public
utility or in possession of or exploiting any natural
resources of the nation;
(c) Natural and juridical persons who hold contracts or
sub-contracts to supply the government or any of its
divisions, subdivisions or instrumentalities, with goods
or services or to perform construction or other works;
(d) Natural and juridical persons who have been granted
franchises, incentives, exemptions, allocations or similar
privileges or concessions by the government or any of its
divisions, subdivisions or instrumentalities, including
government-owned or controlled corporations;
(e) Natural and juridical persons who, within one year
prior to the date of the election, have been granted loans
or other accommodations in excess of P100,000 by the
government or any of its divisions, subdivisions or
instrumentalities including government-owned or
controlled corporations;
(f) Educational institutions which have received grants of
public funds amounting to no less than P100,000.00;
(g) Officials or employees in the Civil Service, or members
of the Armed Forces of the Philippines; and
(h) Foreigners and foreign corporations.
It shall be unlawful for any person to solicit or receive
any contribution from any of the persons or entities
enumerated herein.
Section 96. Soliciting or receiving contributions from foreign
sources. - It shall be unlawful for any person, including a
political party or public or private entity to solicit or receive,
directly or indirectly, any aid or contribution of whatever
form or nature from any foreign national, government or
entity for the purposes of influencing the results of the
election.
Section 97. Prohibited raising of funds. - It shall be unlawful
for any person to hold dances, lotteries, cockfights, games,
boxing bouts, bingo, beauty contests, entertainments, or
cinematographic, theatrical or other performances for the
purpose of raising funds for an election campaign or for the
support of any candidate from the commencement of the
election period up to and including election day; or for any
person or organization, whether civic or religious, directly or
indirectly, to solicit and/or accept from any candidate for
public office, or from his campaign manager, agent or
representative, or any person acting in their behalf, any gift,
food, transportation, contribution or donation in cash or in
kind from the commencement of the election period up to and
including election day; Provided, That normal and customary
religious stipends, tithes, or collections on Sundays and/or
other designated collection days, are excluded from this
prohibition.
590. Limitations on campaign expenses
Section 100. Limitations upon expenses of candidates. - No
candidate shall spend for his election campaign an aggregate
amount exceeding one peso and fifty centavos for every voter
currently registered in the constituency where he filed his
candidacy: Provided, That the expenses herein referred to
shall include those incurred or caused to be incurred by the
candidate, whether in cash or in kind, including the use, rental
or hire of land, water or aircraft, equipment, facilities,
apparatus and paraphernalia used in the campaign: Provided,
further, That where the land, water or aircraft, equipment,
facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is
hereby empowered to assess the amount commensurate with
the expenses for the use thereof, based on the prevailing rates
in the locality and shall be included in the total expenses
incurred by the candidate.
Section 101. Limitations upon expenses of political parties. - A
duly accredited political party may spend for the election of
its candidates in the constituency or constituencies where it
has official candidates an aggregate amount not exceeding the
equivalent of one peso and fifty centavos for every voter
currently registered therein. Expenses incurred by branches,
chapters, or committees of such political party shall be
included in the computation of the total expenditures of the
political party.
Expenses incurred by other political parties shall be
considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this
Code.
Section 102. Lawful expenditures. - To carry out the
objectives of the preceding sections, no candidate or treasurer
of a political party shall, directly or indirectly, make any
expenditure except for the following purposes:
(a) For travelling expenses of the candidates and campaign
personnel in the course of the campaign and for personal
expenses incident thereto;
(b) For compensation of campaigners, clerks,
stenographers, messengers, and other persons actually
employed in the campaign;
(c) For telegraph and telephone tolls, postage, freight and
express delivery charges;
(d) For stationery, printing and distribution of printed
matters relative to candidacy;
137 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(e) For employment of watchers at the polls;
(f) For rent, maintenance and furnishing of campaign
headquarters, office or place of meetings;
(g) For political meetings and rallies and the use of sound
systems, lights and decorations during said meetings and
rallies;
(h) For newspaper, radio, television and other public
advertisements;
(i) For employment of counsel, the cost of which shall not
be taken into account in determining the amount of
expenses which a candidate or political party may have
incurred under Section 100 and 101 hereof;
(j) For copying and classifying list of voters, investigating
and challenging the right to vote of persons registered in
the lists the costs of which shall not be taken into account in
determining the amount of expenses which a candidate or
political party may have incurred under Sections 100 and
101 hereof; or
(k) For printing sample ballots in such color, size and
maximum number as may be authorized by the Commission
and the cost of such printing shall not be taken into account
in determining the amount of expenses which a candidate
or political party may have incurred under Sections 100
and 101 hereof.
Sec. 13 of RA 7166. Authorized Expenses of Candidates
and Political Parties. - The agreement amount that a
candidate or registered political party may spend for election
campaign shall be as follows:
3. For candidates. - Ten pesos (P10.00) for President
and Vice-President; and for other candidates Three
Pesos (P3.00) for every voter currently registered in
the constituency where he filed his certificate of
candidacy: Provided, That a candidate without any
political party and without support from any political
party may be allowed to spend Five Pesos (P5.00) for
every such voter; and
4. For political parties. - Five pesos (P5.00) for every
voter currently registered in the constituency or
constituencies where it has official candidates.
Any provision of law to the contrary notwithstanding any
contribution in cash or in kind to any candidate or political
party or coalition of parties for campaign purposes, duly
reported to the Commission shall not be subject to the
payment of any gift tax.
591. Statements of contributions and expenses
Sec. 14. Statement of Contributions and Expenditures;
Effect of Failure to File Statement. - Every candidate and
treasurer of the political party shall, within thirty (30) days
after the day of the election, file in duplicate with the offices of
the Commission the full, true and itemized statement of all
contributions and expenditures in connection with the
election.
No person elected to any public offices shall enter upon the
duties of his office until he has filed the statement of
contributions and expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file
the statements or reports in connection with electoral
contributions and expenditures are required herein shall
constitute an administrative offense for which the offenders
shall be liable to pay an administrative fine ranging from One
thousand pesos (P1,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a
writ of execution issued by the Commission against the
properties of the offender.
It shall be the duty of every city or municipal election
registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election
all candidates residing in his jurisdiction to comply with their
obligation to file their statements of contributions and
expenditures.
For the commission of a second or subsequent offense under
this section, the administrative fine shall be from Two
thousand pesos (P2,000.00) to Sixty thousand pesos
(P60,000.00), in the discretion of the Commission. In addition,
the offender shall be subject to perpetual disqualification to
hold public office.
592. Premature campaigning, is it illegal? Briefly
explain.
Section 80. Election campaign or partisan political activity
outside campaign period. - It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or
association of persons, to engage in an election campaign or
partisan political activity except during the campaign period:
Provided, That political parties may hold political conventions
or meetings to nominate their official candidates within thirty
days before the commencement of the campaign period and
forty-five days for Presidential and Vice-Presidential election.
(Note: Applying the ruling in Penera vs. COMELEC, there will be
no premature campaigning that can be committed by a
candidate to speak of under Section 80 kasi a person will only
be considered as candidate only during the start of the
campaign period for which he filed his certificate of candidacy.
Tama ba? So the answer is No, it is not illegal. Kindly check. :) )
a) Section 15 of Republic Act 8436, as amended, which states
that a person who files his certificate of candidacy will only be
considered a candidate at the start of the campaign period,
and unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of such campaign period.
(1) The effective date when partisan political acts become
unlawful as to a candidate is when the campaign period starts.
Before the start of the campaign period, the same partisan
political acts are lawful.
(2) Accordingly, a candidate is liable for an election offense
only for acts done during the campaign period, not before. In
other words, election offenses can be committed by a
candidate only upon the start of the campaign period. Before
the start of the campaign period, such election offenses
cannot be so committed. Since the law is clear, the Court has
no recourse but to apply it. The forum for examining the
wisdom of the law, and enacting remedial measures, is not the
Court but the Legislature.
b) Contrary to the assailed Decision, Section 15 of R.A. 8436,
as amended, does not provide that partisan political acts done
by a candidate before the campaign period are unlawful, but
may be prosecuted only upon the start of the campaign
period. Neither does the law state that partisan political acts
done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the start of
the campaign period. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.
c) That Section 15 of R.A. 8436 does not expressly state that
campaigning before the start of the campaign period is lawful,
as the assailed Decision asserted, is of no moment. It is a basic
principle of law that any act is lawful unless expressly
declared unlawful by law. The mere fact that the law does not
declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of
R.A. 8436 that partisan political activities before the start of
the campaign period are lawful. It is sufficient for Congress to
state that “any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign
period.” The only inescapable and logical result is that the
same acts, if done before the start of the campaign period, are
lawful.
d) The Court’s 11 September 2009 Decision also reversed
Lanot vs. COMELEC (G.R. No. 164858; 16 November 2006).
Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations
of the legislators who explained that the early deadline for
filing certificates of candidacy under R.A. 8436 was set only to
afford time to prepare the machine-readable ballots, and they
intended to preserve the existing election periods, such that
one who files his certificate of candidacy to meet the early
deadline will still not be considered as a candidate.
(Penera vs. COMELEC)

Thus, applying said law:

138 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

593. Powers of the board of election inspector in
general
Section 168. Powers of the board of election inspectors. - The
board of election inspectors shall have the following powers
and functions:
a. Conduct the voting and counting of votes in their
respective polling places;
b. Act as deputies of the Commission in the supervision
and control of the election in the polling places wherein
they are assigned, to assure the holding of the same in a
free, orderly and honest manner; and
c. Perform such other functions prescribed by this Code
or by the rules and regulations promulgated by the
Commission.
594. Powers of the board of canvassers in general
Performs a purely ministerial function, that of compiling and
adding the results as they appear in the returns transmitted
to it. (Guiao vs. COMELEC)
The COMELEC shall have direct control and supervision over
the board of canvasser.s
595. Explain the duty of the Board of Canvassers to
proclaim the winner.
Section 231. Canvass by the board.
Xxx
The respective board of canvassers shall prepare a certificate
of canvass duly signed and affixed with the imprint of the
thumb of the right hand of each member, supported by a
statement of the votes received by each candidate in each
polling place and, on the basis thereof, shall proclaim as
elected the candidates who obtained the highest number of
votes cast in the province, city, municipality or barangay.
Failure to comply with this requirement shall constitute an
election offense.
596. Doctrine of statistical improbability
The doctrine of statistical improbability was first pronounced
in Lagumbay v. Commission on Elections, in which the Court
upheld the power and duty of the COMELEC to reject the
returns of about 50 precincts affecting the elections of
Senators, because their results were contrary to all statistical
probabilities, thus:
It appearing therein that contrary to all statistical
probabilities in the first set, in each precinct the number of
registered voters equalled the number of ballots and the
number of votes reportedly cast and tallied for each and every
candidate of the Liberal Party, the party in power; whereas,
all the candidates of the Nacionalista Party got exactly zero;
and in the second set, again contrary to all statistical
probabilities all the reported votes were for candidates of the
139 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Liberal Party, all of whom were credited with exactly the
same number of votes in each precinct, ranging from 240 in
one precinct to 650 in another precinct; whereas, all the
candidates of the Nacionalista Party were given exactly zero
in all said precincts.
Lagumbay expounded on the doctrine of statistical
improbability and the doctrines effect on the power of the
COMELEC to reject the results reflected in the election returns
when such returns showed prima facie that they did not
reflect the true and valid reports of regular voting.
Xxx
Under Lagumbay, therefore, the doctrine of statistical
improbability is applied only where the unique uniformity of
tally of all the votes cast in favor of all the candidates
belonging to one party and the systematic blanking of all the
candidates of all the opposing parties appear in the election
return. The doctrine has no application where there
is neither uniformity of tallies norsystematic blanking of the
candidates of one party. Thus, the bare fact that a candidate
for public office received no votes in one or two
precincts, standing alone and without more, cannot
adequately support a finding that the subject election returns
are statistically improbable. Verily, a zero vote for a particular
candidate in the election returns is but one strand in the web
of circumstantial evidence that the electoral returns were
prepared under duress, force and intimidation.
The Court has thus warned that the doctrine of statistical
improbability must be restrictively viewed, with the utmost
care being taken lest in penalizing fraudulent and corrupt
practices which is truly called for innocent voters become
disenfranchised, a result that hardly commends itself.
Remedies in election law
597. Petition Not to Give Due Course to Certificate of
Candidacy: When can it be filed and on what ground/s
SEC. 78.Petition to deny due course to or cancel a certificate of
candidacy. - A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-
five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing,
not later than fifteen days before the election.
The false representation that these provisions mention
pertains to a material fact, not to a mere innocuous
mistake. This is emphasized by the consequences of any
material falsity: a candidate who falsifies a material fact
cannot run; if he runs and is elected, cannot serve; in both
cases, he or she can be prosecuted for violation of the election
laws.60 Obviously, these facts are those that refer to a
candidate’s qualifications for elective office, such as his or her
citizenship and residence.
Separate from the requirement of materiality, a false
representation under Section 78 must consist of a "deliberate
attempt to mislead, misinform, or hide a fact, which would
otherwise render a candidate ineligible." In other words, it
must be made with the intention to deceive the electorate as
to the would-be candidate's qualifications for public office.
(Jalover v. Osmena)
598. Petition to Declare Failure of Elections: When
can it be filed and on what ground/s
Section 6 of the Omnibus Election Code provides, “If, on
account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not
been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases
the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and
hearing, 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,
suspended or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to
elect.” This provision was reflected in Section 2, Rule 26 of
the COMELEC Rules of Procedure.
In Banaga vs. COMELEC, which was cited in the challenged
resolution, enumerated the instances when failure of
elections may be declared as follows: (1) the election in any
polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud or other analogous
causes; (2) the election in any polling place had been
suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud
or other analogous causes; or (3) after the voting and during
the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes.
Before the COMELEC can act on a verified petition
seeking to declare a failure of elections, two conditions must
concur: (1) no voting took place in the precinct or precincts
on the date fixed by law, or even if there was voting, the
election resulted in a failure to elect; and (2) the votes not
cast would have affected the result of the elections. The cause
of such failure of election could only be any of the
following: force majeure, violence, terrorism, fraud or other
analogous causes.
599. Pre-Proclamation Controversy: When can it be
filed and on what ground/s
Section 241. Definition. - 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
140 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
the Commission, or any matter raised under Sections 233,
234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.
Grounds:
The issues that may be ventilated in a pre-
proclamation controversy are enumerated in Section 243 of
the Omnibus Election Code as follows: (1.) Illegal
composition or proceedings of the board of canvassers; (2.)
The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of the Omnibus Election Code; (3.) The election
returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not
authentic; and (4.) When substitute or fraudulent returns in
controverted polling places were canvassed, the results of
which materially affected the standing of the aggrieved
candidate or candidates. (Abdul Gaffar P.M. Dibaratun vs.
COMELEC)
Procedure under RA 7166:
Sec. 15. Pre-proclamation Cases Not Allowed in Elections
for President Vice-President, Senator, and Member of the
House of Representatives. - For purposes of the elections for
President, Vice-President, Senator and Member of the House
of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of the election returns or
the certificates of canvass, as the case may be. However, this
does not preclude the authority of the appropriate canvassing
body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass
or election returns before it.
Questions affecting the composition or proceedings of the
board of canvassers may be initiated in the board or directly
with the Commission in accordance with Section 19 hereof.
Any objection on the election returns before the city or
municipal board of canvassers, or on the municipal
certificates of canvass before the provincial board of
canvassers or district boards of canvassers in Metro Manila
Area, shall be specifically noticed in the minutes of their
respective proceedings.
Sec. 17. Pre-proclamation Controversies; How
Commenced. - Questions affecting the composition or
proceedings of the board of canvassers may be initiated in the
board or directly with the Commission. However, matters
raised under Sections 233, 234, 235 and 236 of the Omnibus
Election Code in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns, and
the certificates of canvass shall be brought in the first instance
before the board of canvassers only.
Sec. 18. Summary Disposition of Pre-proclamation
Controversies. - All pre-proclamation controversies on
election returns or certificates of canvass shall, on the basis of
the records and evidence elevated to it by the board of
canvassers, be disposed of summarily by the Commission
within seven (7) days from receipt thereof. Its decisions shall
be executory after the lapse of seven (7) days for receipts by
the losing party of the decision of the Commission.
Sec. 19. Consented Composition or Proceedings of the
Board: Period to Appeal: Decision by the Commission. -
Parties adversely affected by a ruling of the board of
canvassers on questions affecting the composition or
proceedings of the board may appeal the matter to the
Commission within three (3) days from a ruling thereon. The
Commission shall summarily decided the case within five (5)
days from the filing thereof.
Note:
Section 9. No pre‐proclamation cases are allowed in
case of barangay election. (R.A. No. 6679)
600. What are manifest errors?
To be manifest, the errors must appear on the face of the
certificates of canvass or election returns sought to be
corrected and/or objections thereto must have been made
before the board of canvassers and specifically noted in the
minutes of their respective proceedings. (Chavez vs.
COMELEC)
One that is visible to the eye or obvious to the understanding,
and is apparent from the papers to the eye of the appraiser
and collector, and does not include an error which may, by
evidence to make it more clear. (O’hara vs COMELEC)
601. What are the grounds to declare failure of
elections?
See answer to no. 598
602. Election Protest: When can it be filed and on
what ground/s
Requisites:
Must be filed by any candidate who has filed a certificate of
candidacy and has been voted upon for the same office.
When to file:
Within 10 days from the proclamation of the results of the
election.
 The period for filing election protest is suspended
during the pendency of a pre-proclamation
controversy (Gatchalian vs. COMELEC)
 Where, after 5 days from the proclamation of the
winning candidate, the loser files a motion for
reconsideration, only five (5) days of the ten (10) day
reglementary period to file an election protest
remained. (Roquero vs COMELEC)
Grounds:
On the grounds of fraud, terrorism, irregularities or illegal
acts committed before, during or after the casting and
counting of votes. (Nachura)
Additional:
141 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
1. Fraud
2. Vote‐buying
3. Terrorism
4. Presence of flying voters
5. Misreading or misappreciation of ballots
6. Disenfranchisement of voters
7. Unqualified members of board of election inspector
8. Other election irregularities.
Purpose:
The purpose of an election protest is to ascertain whether the
candidate proclaimed elected by the board of canvassers is
the true and lawful choice of the electorate. Such a proceeding
is usually instituted on the theory that the election returns,
which are deemed prima facie to be true reports of how the
electorate voted on election day and which serve as the basis
for proclaiming the winning candidate, do not accurately
reflect the true will of the voters due to alleged irregularities
that attended the counting of ballots. In a protest prosecuted
on such a theory, the protestant ordinarily prays that the
official count as reflected in the election returns be set aside
in favor of a revision and recount of the ballots, the results of
which should be made to prevail over those reflected in the
returns pursuant to the doctrine that "in an election contest
where what is involved is the number of votes of each
candidate, the best and most conclusive evidence are the
ballots themselves." (Eriguel v. Commission on Elections)
603. Quo Warranto: When can it be filed and on what
ground/s
A quo warranto proceeding in elective office can be filed by
any registered voter in the constituency on the grounds of
ineligibility or disloyalty to the Republic.
It is a proceeding to determine the right to the use or exercise
of an office and to oust the holder from its enjoyment, if his
claim is not well founded or if he has forfeited his right to
enjoy the privilege.
When to File:
Within 10 days from proclamation of the results of the
election
604. Election protest v. quo warranto
Unlike an election protest, which can only be filed by a
candidate, any voter can file a petition for quo warranto.
605. Who may prosecute individuals for election
offenses
The COMELEC is vested with the power of a public prosecutor
with the exclusive authority to conduct the preliminary
investigation and prosecution of election offenses punishable
under the Omnibus Election Code. (Sec. 265, B.P. 881 Omnibus
Election Code)
Note:
Decision of HRET is not appealable under R45 but reviewable
The COMELEC en banc may delegate such authority to any under R65. In Puzon vs HRET, SC ruled that review of a
public prosecutor but always subject to the control and decision of the Electoral Tribunal is possible only in the
supervision of the COMELEC. (People v. Delgado, G.R. No.
exercise of supervisory or extraordinary jurisdiction and only
Nos. 93419‐32, September 18, 1990)
upon showing of error that results from whimsical,
What are the election offenses? capricious, unwarranted, arbitrary and despotic exercise of
1. Vote buying and vote selling power.
2. Conspiracy to bribe voters
3. Wagering upon result of election
4. Coercion of subordinates LOCAL GOVERNMENTS
5. Threats, intimidation, terrorism, use of fraudulent device or ASAS
other forms of coercion
6. Coercion of election officials and employees
7. Appointment of new employees, creation of new position, 608.) Concept of public corporation
promotion, giving of salary increases
8. Intervention of public officers and employees It is one created by the State either by general or
9. Undue influence special act for purposes of administration of local government
10. Unlawful electioneering or rendering service in public interest.
11. Others. (Sec. 261, B.P. 881 Omnibus Election Code)
Criterion to determine whether a corporation is
606. Outline the jurisdiction of various public corporation: By the relationship of the corporation to
courts/tribunals in election controversies the State; if created by the State as its own agency to help it in
carrying out its governmental functions, it is public,
Jurisdiction over Election Contest: otherwise, it is private.

3. Original and exclusive: Dual characteristics of public corporation: (a.) Public

or governmental – acts as an agent of the State for the
COMELEC – sole judge of all contests relating to elections, government of the territory and its inhabitants; (b.) Private or
returns, and qualifications of all elective regional, provincial proprietary – acts as an agent of the community in the
administration of local affairs. As such, it acts as separate
and city officials.
entity for its own purposes and not a subdivision of the State.
Supreme Court en banc – President and Vice President
SET – Senator
HRET – representative 609.) Public corporations vs. government-owned and
RTC – over contests for municipal officials controlled corporations
MeTC or MTC – for barangay officials
Public Corporation Government Owned and
Note: Controlled Corporations
As to Purpose
Administration of local Performance of functions
HRET begins only after the candidate is considered a Member government relating to public needs
of the House of Representatives, as stated in Section 17, whether governmental or
Article VI of the 1987 Constitution: proprietary in nature
Section 17. The Senate and the House of Representatives shall Who creates
each have an Electoral Tribunal which shall be the sole judge By the State either by general By Congress or by
of all contests relating to the election, returns, and or special act incorporators
qualifications of their respective Members. How created
By legislation (1.) Original charters or
4. Appellate special laws; (2.) General
c. From decision of the RTC and MTC (re: corporation law as a stock or
municipal and barangay officials), appeal shall non-stock corporation
be made exclusively to the COMELEC whose
decision shall be final, executor and 610.) Classifications of public corporations
unappealable.
d. From decisions of COMELEC and Electoral Public – organized for the government of the portion
Tribunal, review shall be made via Petition for of the State.
review on certiorari (R65) with the SC on the
ground of GAD or violation of due process. Private – formed for some private purpose, benefit,
aim or end.
607. Are decisions of the House and Senate Electoral
Quasi-public – a private corporation that renders
Tribunals in contests involving the elections, returns and
public service or supplies public wants; public corporations
qualifications of the Members of the House or Senate created as agencies of the State for narrow and limited
appealable? Can these decisions be reviewed?

142 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

purposes without the powers and liabilities of self-governing
corporations.
Public corporations are classified as:
Quasi-corporation – created by the State for a
narrow or limited purpose.
Municipal corporations – body politic and
corporate constituted by the incorporation of inhabitants for
purposes of local government. It is established by the law
partly as an agency of the State to assist in the civil
government of the country, but chiefly to regulate and
administer the local or internal affairs of the city, town or
district which is incorporated.
611.) Elements of municipal corporations
The essential elements of municipal corporations
are: (a.) legal creation; (b.) corporate name; (c.) inhabitants
constituting the population who are vested with political and
corporate powers; and (d.) territory.
612.) Nature and function of municipal corporations
It is a body politic and corporate constituted by the
incorporation of inhabitants for purposes of local
government. It is established by the law partly as an agency
of the State to assist in the civil government of the country,
but chiefly to regulate and administer the local or internal
affairs of the city, town or district which is incorporated.
613.) Requisites for Creation, Conversion, Division, Merger or
Dissolution
Constitutional basis
No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria
established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Section 10, Article X, 1987
Constitution)
Substantive basis
Local Government Code
Section 6. Authority to Create Local Government
Units. - A local government unit may be created, divided,
merged, abolished, or its boundaries substantially altered
either by law enacted by Congress in the case of a province,
city, municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan or
sangguniang panlungsod concerned in the case of a barangay
located within its territorial jurisdiction, subject to such
limitations and requirements prescribed in this Code.
Section 7. Creation and Conversion. - As a general
rule, the creation of a local government unit or its conversion
from one level to another level shall be based on verifiable
indicators of viability and projected capacity to provide
services, to wit:
(a) Income. - It must be sufficient, based on
acceptable standards, to provide for all essential government
143 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
facilities and services and special functions commensurate
with the size of its population, as expected of the local
government unit concerned;
Note: Income for the last consecutive year shall be
at least:
Province – P 20 million
Highly Urbanized City – P 50 million
City – P 20 million (P 100 million per RA
9009 amending Sec. 450 of LGC)
Municipality – P 2.5 million
(b) Population. - It shall be determined as the total
number of inhabitants within the territorial jurisdiction of the
local government unit concerned; and
Note: The required minimum population should be:
Barangay – 2000 but 5000 in Metro Manila
and highly urbanized cities
Municipality – 25,000
City – 150,000
Province – 250,000
(c) Land Area. - It must be contiguous, unless it
comprises two or more islands or is separated by a local
government unit independent of the others; properly
identified by metes and bounds with technical descriptions;
and sufficient to provide for such basic services and facilities
to meet the requirements of its populace.
Note: Area requirements are:
Province – 2000 sq. k.
City – 100 sq. k.
Municipality – 50 sq. k.
Compliance with the foregoing indicators shall be
attested to by the Department of Finance (DOF), the National
Statistics Office (NSO), and the Lands Management Bureau
(LMB) of the Department of Environment and Natural
Resources (DENR).
Section 8. Division and Merger. - Division and merger
of existing local government units shall comply with the same
requirements herein prescribed for their creation: Provided,
however, That such division shall not reduce the income,
population, or land area of the local government unit or units
concerned to less than the minimum requirements prescribed
in this Code: Provided, further, That the income classification
of the original local government unit or units shall not fall
below its current classification prior to such division.
The income classification of local government units
shall be updated within six (6) months from the effectivity of
this Code to reflect the changes in their financial position
resulting from the increased revenues as provided herein.
Section 9. Abolition of Local Government Units. - A
local government unit may be abolished when its income,
population, or land area has been irreversibly reduced to less
than the minimum standards prescribed for its creation under
Book III of this Code, as certified by the national agencies
mentioned in Section 7 hereof to Congress or to the
sangguniang concerned, as the case may be.
The law or ordinance abolishing a local government
unit shall specify the province, city, municipality, or barangay
with which the local government unit sought to be abolished
will be incorporated or merged.
Section 10. Plebiscite Requirement. - No creation,
division, merger, abolition, or substantial alteration of
boundaries of local government units shall take effect unless
approved by a majority of the votes cast in a plebiscite called
for the purpose in the political unit or units directly affected.
Said plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days
from the date of effectivity of the law or ordinance effecting
such action, unless said law or ordinance fixes another date.
614.) Meaning of local autonomy
Under the 1987 Constitution, it simply means
decentralization, it does not make local governments
sovereign within the State or an “imperium in imperio” (Basco
vs. PAGCOR, G.R. No. 91649, May 14, 1991)
Local autonomy includes both administrative and
fiscal autonomy. Under existing law, local government units,
in addition to having administrative autonomy in the exercise
of their functions, enjoy fiscal autonomy as well. Fiscal
autonomy means that local government have the power to
create their own sources of revenue in addition to their
equitable share in the national taxes released by the national
government, as well as the power to allocate their sources in
accordance with their own priorities. It extends to the
preparation of their budgets, and local officials in turn have to
work within the constraints thereof. They are not formulated
at the national level and imposed on local governments,
whether they are relevant to local needs and resources or not.
(Angeles, Restatement of the Law on Local Governments, 2005)
615.) Meaning of fiscal autonomy
Fiscal autonomy means that local government have
the power to create their own sources of revenue in addition
to their equitable share in the national taxes released by the
national government, as well as the power to allocate their
sources in accordance with their own priorities. It extends to
the preparation of their budgets, and local officials in turn
have to work within the constraints thereof. They are not
formulated at the national level and imposed on local
governments, whether they are relevant to local needs and
resources or not. (Angeles, Restatement of the Law on Local
Governments, 2005)
616.) Extent and limitation of LGU’s taxing power
Constitutional basis
Each local government unit shall have the power to
create its own sources of revenues and to levy taxes, fees and
charges subject to such guidelines and limitations as the
Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges shall accrue
exclusively to the local governments. (Section 5, Article X,
1987 Constitution)
Substantive basis
Local Government Code
Sec. 129. Power to Create Sources or Revenue. — Each
local government unit shall exercise its power to create its
144 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
own sources of revenue and to levy taxes, fees, and charges
subject to the provisions herein, consistent with the basic
policy of local autonomy. Such taxes, fees, and charges shall
accrue exclusively to the local government units.
Section 130. Fundamental Principles. – The
following fundamental principles shall govern the exercise of
the taxing and revenue-raising powers of local government
units:
(a) Taxation shall be uniform in each local government unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the
taxpayer’s ability to pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national
economic policy, or in restraint of trade;
(c.) The collection of local taxes, fees, charges, and other
impositions shall in no case be let to any private person;
(d.) The revenue collected pursuant to the provisions of this
Code shall inure solely to the benefit of, and be subject to the
disposition by, the local government unit levying the tax, fee,
charge or other imposition unless otherwise specifically
provided herein; and
(e) Each local government unit shall, as far as practicable,
evolve a progressive system of taxation.
617.) Extent and limitation of LGUs eminent domain power
Eminent Domain. - A local government unit may,
through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public
use, or purpose or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted:
Provided, further, That the local government unit may
immediately take possession of the property upon the filing of
the expropriation proceedings and upon making a deposit
with the proper court of at least fifteen percent (15%) of the
fair market value of the property based on the current tax
declaration of the property to be expropriated: Provided,
finally, That, the amount to be paid for the expropriated
property shall be determined by the proper court, based on
the fair market value at the time of the taking of the property.
(Section 19 of the LGC)
Thus, the following essential requisites must concur
before an LGU can exercise the power of eminent domain:
(1.) An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the LGU, to
exercise the power of eminent domain or pursue
expropriation proceedings over a particular private property;
(2.) The power of eminent domain is exercised for public use,
purpose or welfare, or for the benefit of the poor and the
landless; (3.) There is payment of just compensation, as
required under Section 9, Article III of the Constitution, and
other pertinent laws; (4.) A valid and definite offer has been
previously made to the owner of the property sought to be
expropriated, but said offer was not accepted. (Parañaque vs.
V.M. Realty Corporation, G.R. No. 127820, July 20, 1998,
Panganiban, J.)
618.) Extent and limitation of LGUs police power

General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among
their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants. (Section 16 of
the LGC)
Police power is inherent in the state but not in
municipal corporations. Before a municipal corporation may
exercise such power, there must be a valid delegation of such
power by the legislature which is the repository of the
inherent powers of the State. A valid delegation of police
power may arise from express delegation, or be inferred from
the mere fact of the creation of the municipal corporation;
and as a general rule, municipal corporations may exercise
police powers within the fair intent and purpose of their
creation which are reasonably proper to give effect to the
powers expressly granted, and statutes conferring powers on
public corporations have been construed as empowering
them to do the things essential to the enjoyment of life and
desirable for the safety of the people. (Binay vs. Domingo, G.R.
No. 92389, September 11, 1991, Paras, J.)
The general welfare clause has two branches. One
branch attaches itself to the main trunk of municipal
authority, and relates to such ordinances and regulations as
may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by
law. With this class we are not here directly concerned. The
second branch of the clause is much more independent of the
specific functions of the council which are enumerated by law.
It authorizes such ordinances "as shall seem necessary and
proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort,
and convenience of the municipality and the inhabitants
thereof, and for the protection of property therein. (US vs.
Salaveria, G.R. No. L-13678, November 12, 1918)
Requisites and limitations: (a.) The interest of the
public generally as distinguished from those of the particular
class, require the interference of the State (Equal protection
clause); (b.) The means employed are reasonably necessary
for the attainment of the object sought to be accomplished
and not duly oppressive; (c.) Exercisable only within the
territorial limits, except for protection of water supply; (d.)
Must not be contrary to the Constitution and the laws.
To invoke the exercise of police power, not only must
it appear that the interest of the public generally requires an
interference with private rights, but the means adopted must
be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. 17 The
legislature may not, under the guise of protecting the public
interest, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful
145 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
occupations. In other words, the determination as to what is a
proper exercise of its police power is not final or conclusive,
but is subject to the supervision of the courts. (Balacuit vs.
CFI, G.R. No. L-38429, June 30, 1988)
619.) Extent and limitation of the power to close and open
roads
Closure and Opening of Roads. -
(a) A local government unit may, pursuant to an
ordinance, permanently or temporarily close or open any
local road, alley, park, or square falling within its jurisdiction:
Provided, however, That in case of permanent closure, such
ordinance must be approved by at least two-thirds (2/3) of all
the members of the sanggunian, and when necessary, an
adequate substitute for the public facility that is subject to
closure is provided.
(b) No such way or place or any part thereof shall be
permanently closed without making provisions for the
maintenance of public safety therein. A property thus
permanently withdrawn from public use may be used or
conveyed for any purpose for which other real property
belonging to the local government unit concerned may be
lawfully used or conveyed: Provided, however, That no
freedom park shall be closed permanently without provision
for its transfer or relocation to a new site.
(c) Any national or local road, alley, park, or square
may be temporarily closed during an actual emergency, or
fiesta celebrations, public rallies, agricultural or industrial
fairs, or an undertaking of public works and highways,
telecommunications, and waterworks projects, the duration
of which shall be specified by the local chief executive
concerned in a written order: Provided, however, That no
national or local road, alley, park, or square shall be
temporarily closed for athletic, cultural, or civic activities not
officially sponsored, recognized, or approved by the local
government unit concerned.
(d) Any city, municipality, or barangay may, by a duly
enacted ordinance, temporarily close and regulate the use of
any local street, road, thoroughfare, or any other public place
where shopping malls, Sunday, flea or night markets, or
shopping areas may be established and where goods,
merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.
(Section 21 of the LGC)
620.) Extent and limitation of legislative power
Substantive provisions of LGC
Section 48. Local Legislative Power. - Local
legislative power shall be exercised by the sangguniang
panlalawigan for the province; the sangguniang panlungsod
for the city; the sangguniang bayan for the municipality; and
the sangguniang barangay for the barangay.
Section 49. Presiding Officer. –
(a) The vice-governor shall be the presiding officer of
the sangguniang panlalawigan; the city vice-mayor, of the
sangguniang panlungsod; the municipal vice-mayor, of the
sangguniang bayan; and the punong barangay, of the
sangguniang barangay. The presiding officer shall vote only to
break a tie.
(b) In the event of the inability of the regular
presiding officer to preside at a sanggunian session, the
members present and constituting a quorum shall elect from
among themselves a temporary presiding officer. He shall
certify within ten (10) days from the passage of ordinances
enacted and resolutions adopted by the sanggunian in the
session over which he temporarily presided.
Section 50. Internal Rules of Procedure. -
(a) On the first regular session following the election
of its members and within ninety (90) days
thereafter, the sanggunian concerned shall adopt or
update its existing rules of procedure.
(b) The rules of procedure shall provided for the
following:
(1) The organization of the sanggunian and
the election of its officers as well as the
creation of standing committees which shall
include, but shall not be limited to, the
committees on appropriations, women and
family, human rights, youth and sports
development, environmental protection,
and cooperatives; the general jurisdiction of
each committee; and the election of the
chairman and members of each committee;
(2) The order and calendar of business for
each session;
(3) The legislative process;
(4) The parliamentary procedures which
include the conduct of members during
sessions;
(5) The discipline of members for
disorderly behavior and absences without
justifiable cause for four (4) consecutive
sessions, for which they may be censured,
reprimanded, or excluded from the session,
suspended for not more than sixty (60)
days, or expelled: Provided, That the
penalty of suspension or expulsion shall
require the concurrence of at least two-
thirds (2/3) vote of all the sanggunian
members: Provided, further, That a member
convicted by final judgment to
imprisonment of at least one (1) year for
any crime involving moral turpitude shall
be automatically expelled from the
sanggunian; and
(6) Such other rules as the sanggunian may
adopt.lawphil™
Section 51. Full Disclosure of Financial and Business Interests
of Sanggunian Members. -
(a) Every sanggunian member shall, upon
assumption to office, make a full disclosure of his
business and financial interests, or professional
relationship or any relation by affinity or
consanguinity within the fourth civil degree, which
he may have with any person, firm, or entity affected
by any ordinance or resolution under consideration
by the sanggunian of which he is a member, which
relationship may result in conflict of interest. Such
relationship shall include:
146 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(1) Ownership of stock or capital, or
investment, in the entity or firm to which
the ordinance or resolution may apply; and
(2) Contracts or agreements with any
person or entity which the ordinance or
resolution under consideration may affect.
In the absence of a specific constitutional or
statutory provision applicable to this
situation, "conflict of interest" refers in
general to one where it may be reasonably
deduced that a member of a sanggunian
may not act in the public interest due to
some private, pecuniary, or other personal
considerations that may tend to affect his
judgment to the prejudice of the service or
the public.
(b) The disclosure required under this Act shall be
made in writing and submitted to the secretary of the
sanggunian or the secretary of the committee of
which he is a member. The disclosure shall, in all
cases, form part of the record of the proceedings and
shall be made in the following manner:
(1) Disclosure shall be made before the
member participates in the deliberations on
the ordinance or resolution under
consideration: Provided, That, if the
member did not participate during the
deliberations, the disclosure shall be made
before voting on the ordinance or resolution
on second and third readings; and
(2) Disclosure shall be made when a
member takes a position or makes a
privilege speech on a matter that may affect
the business interest, financial connection,
or professional relationship described
herein.
Section 52. Sessions. -
(a) On the first day of the session immediately
following the election of its members, the sanggunian
shall, by resolution, fix the day, time, and place of its
regular sessions. The minimum numbers of regular
sessions shall be once a week for the sangguniang
panlalawigan, sangguniang panlungsod, and
sangguniang bayan, and twice a month for the
sangguniang barangay.
(b) When public interest so demands, special
sessions may be called by the local chief executive or
by a majority of the members of the sanggunian.
(c) All sanggunian sessions shall be open to the
public unless a closed-door session is ordered by an
affirmative vote of a majority of the members
present, there being a quorum, in the public interest
or for reasons of security, decency, or morality. No
two (2) sessions, regular or special, may be held in a
single day.
(d) In the case of special sessions of the sanggunian,
a written notice to the members shall be served
personally at the member's usual place of residence
at least twenty-four (24) hours before the special
session is held.
Unless otherwise concurred in by two-thirds (2/3)
vote of the sanggunian members present, there being
a quorum, no other matters may be considered at a
special session except those stated in the notice.
 (e) Each sanggunian shall keep a journal and record
of its proceedings which may be published upon
resolution of the sanggunian concerned.
Section 53. Quorum. -
(a) A majority of all the members of the sanggunian
who have been elected and qualified shall constitute
a quorum to transact official business. Should a
question of quorum be raised during a session, the
presiding officer shall immediately proceed to call
the roll of the members and thereafter announce the
results.
(b) Where there is no quorum, the presiding officer
may declare a recess until such time as a quorum is
constituted, or a majority of the members present
may adjourn from day to day and may compel the
immediate attendance of any member absent
without justifiable cause by designating a member of
the sanggunian to be assisted by a member or
members of the police force assigned in the
territorial jurisdiction of the local government unit
concerned, to arrest the absent member and present
him at the session.
(c) If there is still no quorum despite the
enforcement of the immediately preceding
subsection, no business shall be transacted. The
presiding officer, upon proper motion duly approved
by the members present, shall then declare the
session adjourned for lack of quorum.
Section 54. Approval of Ordinances. -
(a) Every ordinance enacted by the sangguniang
panlalawigan, sangguniang panlungsod, or
sangguniang bayan shall be presented to the
provincial governor or city or municipal mayor, as
the case may be. If the local chief executive
concerned approves the same, he shall affix his
signature on each and every page thereof; otherwise,
he shall veto it and return the same with his
objections to the sanggunian, which may proceed to
reconsider the same. The sanggunian concerned may
override the veto of the local chief executive by two-
thirds (2/3) vote of all its members, thereby making
the ordinance or resolution effective for all legal
intents and purposes.
(b) The veto shall be communicated by the local chief
executive concerned to the sanggunian within fifteen
(15) days in the case of a province, and ten (10) days
in the case of a city or a municipality; otherwise, the
ordinance shall be deemed approved as if he had
signed it.
(c) Ordinances enacted by the sangguniang barangay
shall, upon approval by the majority of all its
members, be signed by the punong barangay.
Section 55. Veto Power of the Local Chief Executive. -
(a) The local chief executive may veto any ordinance
of the sanggunian panlalawigan, sangguniang
panlungsod, or sanggunian bayan on the ground that
it is ultra vires or prejudicial to the public welfare,
stating his reasons therefor in writing.
(b) The local chief executive, except the punong
barangay, shall have the power to veto any particular
item or items of an appropriations ordinance, an
ordinance or resolution adopting a local
development plan and public investment program,
or an ordinance directing the payment of money or
147 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
creating liability. In such a case, the veto shall not
affect the item or items which are not objected to.
The vetoed item or items shall not take effect unless
the sanggunian overrides the veto in the manner
herein provided; otherwise, the item or items in the
appropriations ordinance of the previous year
corresponding to those vetoed, if any, shall be
deemed reenacted.
(c) The local chief executive may veto an ordinance
or resolution only once. The sanggunian may
override the veto of the local chief executive
concerned by two-thirds (2/3) vote of all its
members, thereby making the ordinance effective
even without the approval of the local chief executive
concerned.
Section 56. Review of Component City and Municipal
Ordinances or Resolutions by the Sangguniang Panlalawigan.
(a) Within three (3) days after approval, the
secretary to the sanggunian panlungsod or
sangguniang bayan shall forward to the sangguniang
panlalawigan for review, copies of approved
ordinances and the resolutions approving the local
development plans and public investment programs
formulated by the local development councils.
(b) Within thirty (30) days after the receipt of copies
of such ordinances and resolutions, the sangguniang
panlalawigan shall examine the documents or
transmit them to the provincial attorney, or if there
be none, to the provincial prosecutor for prompt
examination. The provincial attorney or provincial
prosecutor shall, within a period of ten (10) days
from receipt of the documents, inform the
sangguniang panlalawigan in writing of his
comments or recommendations, which may be
considered by the sangguniang panlalawigan in
making its decision.
(c) If the sangguniang panlalawigan finds that such
an ordinance or resolution is beyond the power
conferred upon the sangguniang panlungsod or
sangguniang bayan concerned, it shall declare such
ordinance or resolution invalid in whole or in part.
The sangguniang panlalawigan shall enter its action
in the minutes and shall advise the corresponding
city or municipal authorities of the action it has
taken.
(d) If no action has been taken by the sangguniang
panlalawigan within thirty (30) days after
submission of such an ordinance or resolution, the
same shall be presumed consistent with law and
therefore valid.
Section 57. Review of Barangay Ordinances by the
Sangguniang Panlungsod or Sangguniang Bayan. -
(a) Within ten (10) days after its enactment, the
sangguniang barangay shall furnish copies of all
barangay ordinances to the sangguniang panlungsod
or sangguniang bayan concerned for review as to
whether the ordinance is consistent with law and
city or municipal ordinances.
(b) If the sangguniang panlungsod or sangguniang
bayan, as the case may be, fails to take action on
barangay ordinances within thirty (30) days from
receipt thereof, the same shall be deemed approved.
(c) If the sangguniang panlungsod or sangguniang
bayan, as the case may be, finds the barangay
 ordinances inconsistent with law or city or municipal
ordinances, the sanggunian concerned shall, within
thirty (30) days from receipt thereof, return the
same with its comments and recommendations to
the sangguniang barangay concerned for adjustment,
amendment, or modification; in which case, the
effectivity of the barangay ordinance is suspended
until such time as the revision called for is effected.
Section 58. Enforcement of Disapproved Ordinances or
Resolutions. - Any attempt to enforce any ordinance or any
resolution approving the local development plan and public
investment program, after the disapproval thereof, shall be
sufficient ground for the suspension or dismissal of the
official or employee concerned.
Section 59. Effectivity of Ordinances or Resolutions. -
(a) Unless otherwise stated in the ordinance or the
resolution approving the local development plan and
public investment program, the same shall take
effect after ten (10) days from the date a copy
thereof is posted in a bulletin board at the entrance
of the provincial capitol or city, municipal, or
barangay hall, as the case may be, and in at least two
(2) other conspicuous places in the local government
unit concerned.
(b) The secretary to the sanggunian concerned shall
cause the posting of an ordinance or resolution in the
bulletin board at the entrance of the provincial
capitol and the city, municipal, or barangay hall in at
least two (2) conspicuous places in the local
government unit concerned not later than five (5)
days after approval thereof.
The text of the ordinance or resolution shall be
disseminated and posted in Filipino or English and in
the language understood by the majority of the
people in the local government unit concerned, and
the secretary to the sanggunian shall record such fact
in a book kept for the purpose, stating the dates of
approval and posting.
(c) The gist of all ordinances with penal sanctions
shall be published in a newspaper of general
circulation within the province where the local
legislative body concerned belongs. In the absence of
any newspaper of general circulation within the
province, posting of such ordinances shall be made in
all municipalities and cities of the province where
the sanggunian of origin is situated.
(d) In the case of highly urbanized and independent
component cities, the main features of the ordinance
or resolution duly enacted or adopted shall, in
addition to being posted, be published once in a local
newspaper of general circulation within the city:
Provided, That in the absence thereof the ordinance
or resolution shall be published in any newspaper of
general circulation.
Requisites of a valid ordinance: (a.) Must not
contravene the Constitution or any Statute; (b.) Must not be
unfair or oppressive; (c.) Must not be partial or
discriminatory; (d.) Must not prohibit but may regulate trade;
(e.) Must be general and consistent with public policy; (e.)
Must not be unreasonable.
148 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
621.) Liability for torts and contracts
Article 2189 of the NCC. The local government unit
is liable in damages for death or injuries suffered by reason of
the defective condition of roads, streets, bridges, public
buildings and other public works.
Article 2180(6) of the NCC. The State is responsible
when it acts through a special agent.
Article 34. The local government unit is subsidiarily
liable for damages suffered by a person by reason of the
failure or refusal of a member of the police force to render aid
and protection in case of danger to life and property.
If engaged in governmental functions, the local
government is not liable:
If the injury is caused in the course of the
performance of a governmental function or duty no recovery,
as a rule, can be had from the municipality unless there is an
existing statute on the matter, nor from its officers, so long as
they performed their duties honestly and in good faith or that
they did not act wantonly and maliciously. In Palafox, et al., v.
Province of Ilocos Norte, et al., 1958, a truck driver employed
by the provincial government of Ilocos Norte ran over Proceto
Palafox in the course of his work at the construction of a road.
The Supreme Court in affirming the trial court's dismissal of
the complaint for damages held that the province could not be
made liable because its employee was in the performance of a
governmental function — the construction and maintenance
of roads — and however tragic and deplorable it may be, the
death of Palafox imposed on the province no duty to pay
monetary consideration.
With respect to proprietary functions, the settled
rule is that a municipal corporation can be held liable to third
persons ex contract or ex delicto. (Torio vs. Fontanilla)
If engaged in proprietary functions, local
government is liable:
Operation of ferry service is a proprietary function.
The municipality is negligent and thus liable for having
awarded a franchise to operate ferry service to another
notwithstanding the previous grant of the franchise to the
plaintiff. (Mendoza vs. De Leon)
With respect to contracts:
A municipal corporation, like an ordinary person, is
liable on a contract it enters into, provided that the contract is
intra vires. In City of Manila vs. IAC, the City was held liable in
damages for breach of contract, even if the contract does not
contain a penalty clause. If the contract is ultra vires, the
municipal corporation is not liable.
Doctrine of implied municipal liability. A
municipality may become obligated upon an implied contract
to pay the reasonable value of the benefits accepted or
appropriated by it as to which it has the general power to
contract. (Province of Cebu vs. IAC)
622.) May local governments be sued?
Yes.
 Section 22(a)(c) of the LGC. Each local government
unit, as a corporation, shall have the following powers: xxx To
sue and be sued.
Section 24 of the LGC. Local government units and
their officials are not exempt from liability for death or injury
to persons or damage to property.
623.) Are properties of local governments exempt from
execution?
624.) Requisites of entering into a valid contract
a.) The local government unit has the express,
implied or inherent power to enter into the particular
contract;
b.) The contract is entered into by the proper
department, board, committee, officer or agent. Unless
otherwise provided by the Code, no contract may be entered
into by the local chief executive on behalf of the local
government unit concerned without prior authorization by
the sanggunian concerned.
c.) The contract must comply with certain
substantive requirements, i.e. when expenditure of public
fund is to be made, there must be an actual appropriation and
a certificate of availability of funds;
d.) The contract must comply with the formal
requirements of written contracts e.g. Statute of Frauds.
625.) Doctrine of implied municipal liability
Doctrine of implied municipal liability. A their ranking as defined herein.
municipality may become obligated upon an implied contract
to pay the reasonable value of the benefits accepted or
appropriated by it as to which it has the general power to
contract. (Province of Cebu vs. IAC)
626.) Settlement of boundary disputes
Jurisdictional Responsibility for Settlement of
Boundary Dispute. - Boundary disputes between and among
local government units shall, as much as possible, be settled
amicably. To this end:
(a) Boundary disputes involving two (2) or more
barangays in the same city or municipality shall be referred
for settlement to the sangguniang panlungsod or sangguniang
bayan concerned.
(b) Boundary disputes involving two (2) or more
municipalities within the same province shall be referred for
settlement to the sangguniang panlalawigan concerned.
(c) Boundary disputes involving municipalities or
component cities of different provinces shall be jointly
referred for settlement to the sanggunians of the province
concerned.
(d) Boundary disputes involving a component city or
municipality on the one hand and a highly urbanized city on
the other, or two (2) or more highly urbanized cities, shall be
jointly referred for settlement to the respective sanggunians
of the parties.
149 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
(e) In the event the sanggunian fails to effect an
amicable settlement within sixty (60) days from the date the
dispute was referred thereto, it shall issue a certification to
that effect. Thereafter, the dispute shall be formally tried by
the sanggunian concerned which shall decide the issue within
sixty (60) days from the date of the certification referred to
above. (Section 118 of the LGC)
Appeal. - Within the time and manner prescribed by
the Rules of Court, any party may elevate the decision of the
sanggunian concerned to the proper Regional Trial Court
having jurisdiction over the area in dispute. The Regional
Trial Court shall decide the appeal within one (1) year from
the filing thereof. Pending final resolution of the disputed area
prior to the dispute shall be maintained and continued for all
legal purposes. (Section 119 of the LGC)
627.) Succession of elective officials
It is governed by the following provisions of the LGC:
Section 44. Permanent Vacancies in the Offices of the
Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a
permanent vacancy occurs in the office of the governor or
mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy
occurs in the offices of the governor, vice-governor, mayor, or
vice-mayor, the highest ranking sanggunian member or, in
case of his permanent inability, the second highest ranking
sanggunian member, shall become the governor, vice-
governor, mayor or vice-mayor, as the case may be.
Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to
(b) If a permanent vacancy occurs in the office of the
punong barangay, the highest ranking sanggunian barangay
member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the
punong barangay.
(c) A tie between or among the highest ranking
sanggunian members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only
the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy
arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from
office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of succession as provided in the
Chapter, ranking in the sanggunian shall be determined on the
basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each
district in the immediately preceding local election.
Section 45. Permanent Vacancies in the
Sanggunian. -
(a) Permanent vacancies in the sanggunian where
automatic succession provided above do not apply shall be
filled by appointment in the following manner:
 (1) The President, through the Executive Secretary,
in the case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the sangguniang
panlungsod of component cities and the sangguniang bayan;
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation of the
sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the
nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to
the position next higher in rank created the last vacancy in the
sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the same political
party as that of the sanggunian member who caused the
vacancy and shall serve the unexpired term of the vacant
office. In the appointment herein mentioned, a nomination
and a certificate of membership of the appointee from the
highest official of the political party concerned are conditions
sine qua non, and any appointment without such nomination
and certification shall be null and void ab initio and shall be a
ground for administrative action against the official
responsible therefore.
(c) In case or permanent vacancy is caused by a
sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation of
the sanggunian concerned, appoint a qualified person to fill
the vacancy.
(d) In case of vacancy in the representation of the
youth and the barangay in the sanggunian, said vacancy shall
be filled automatically by the official next in rank of the
organization concerned.
Section 46. Temporary Vacancy in the Office of the
Local Chief Executive. -
(a) When the governor, city or municipal mayor, or
punong barangay is temporarily incapacitated to perform his
duties for physical or legal reasons such as, but not limited to,
leave of absence, travel abroad, and suspension from office,
the vice-governor, city or municipal vice-mayor, or the
highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and
functions of the local chief executive concerned, except the
power to appoint, suspend, or dismiss employees which can
only be exercised if the period of temporary incapacity
exceeds thirty (30) working days.
(b) Said temporary incapacity shall terminate upon
submission to the appropriate sanggunian of a written
declaration by the local chief executive concerned that he has
reported back to office. In cases where the temporary
incapacity is due to legal causes, the local chief executive
concerned shall also submit necessary documents showing
that said legal causes no longer exist.
(c) When the incumbent local chief executive is
traveling within the country but outside his territorial
jurisdiction for a period not exceeding three (3) consecutive
days, he may designate in writing the officer-in-charge of the
150 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
said office. Such authorization shall specify the powers and
functions that the local official concerned shall exercise in the
absence of the local chief executive except the power to
appoint, suspend, or dismiss employees.
(d) In the event, however, that the local chief
executive concerned fails or refuses to issue such
authorization, the vice-governor, the city or municipal vice-
mayor, or the highest ranking sangguniang barangay member,
as the case may be, shall have the right to assume the powers,
duties, and functions of the said office on the fourth (4th) day
of absence of the said local chief executive, subject to the
limitations provided in subsection (c) hereof.
(e) Except as provided above, the local chief
executive shall in no case authorize any local official to
assume the powers, duties, and functions of the office, other
than the vice-governor, the city or municipal vice-mayor, or
the highest ranking sangguniang barangay member, as the
case may be.
628.) Discipline of local officials: Who may exercise and on
what grounds
It is governed by the following provisions of the LGC:
Section 60. Grounds for Disciplinary Actions. - An
elective local official may be disciplined, suspended, or
removed from office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral
turpitude or an offense punishable by at least prision
mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this
Code and other laws.
An elective local official may be removed from office
on the grounds enumerated above by order of the proper
court.
Section 61. Form and Filing of Administrative
Complaints. - A verified complaint against any erring local
elective official shall be prepared as follows:
(a) A complaint against any elective official of a
province, a highly urbanized city, an independent
component city or component city shall be filed
before the Office of the President;
(b) A complaint against any elective official of a
municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the
Office of the President; and
(c) A complaint against any elective barangay official
shall be filed before the sangguniang panlungsod or
 sangguniang bayan concerned whose decision shall
be final and executory.
Section 62. Notice of hearing. -
(a) Within seven (7) days after the administrative
complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall
require the respondent to submit his verified answer
within fifteen (15) days from receipt thereof, and
commence the investigation of the case within ten
(10) days after receipt of such answer of the
respondent.
(b) When the respondent is an elective official of a
province or highly urbanized city, such hearing and
investigation shall be conducted in the place where
he renders or holds office. For all other local elective
officials, the venue shall be the place where the
sanggunian concerned is located.
(c) However, no investigation shall be held within
ninety (90) days immediately prior to any local
election, and no preventive suspension shall be
imposed within the said period. If preventive
suspension has been imposed prior to the 90-day
period immediately preceding local election, it shall
be deemed automatically lifted upon the start of
aforesaid period.
Section 63. Preventive Suspension. -
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an
elective official of a province, a highly
urbanized or an independent component
city;
(2) By the governor, if the respondent is an
elective official of a component city or
municipality; or
(3) By the mayor, if the respondent is an
elective official of the barangay.
(b) Preventive suspension may be imposed at any
time after the issues are joined, when the evidence of
guilt is strong, and given the gravity of the offense,
there is great probability that the continuance in
office of the respondent could influence the
witnesses or pose a threat to the safety and integrity
of the records and other evidence: Provided, That,
any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days:
Provided, further, That in the event that several
administrative cases are filed against an elective
official, he cannot be preventively suspended for
more than ninety (90) days within a single year on
the same ground or grounds existing and known at
the time of the first suspension.
(c) Upon expiration of the preventive suspension, the
suspended elective official shall be deemed
reinstated in office without prejudice to the
continuation of the proceedings against him, which
shall be terminated within one hundred twenty
(120) days from the time he was formally notified of
the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the
151 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
duration of such delay shall not be counted in
computing the time of termination of the case.
(d) Any abuse of the exercise of the power of
preventive suspension shall be penalized as abuse of
authority.
Section 64. Salary of Respondent Pending
Suspension. - The respondent official preventively suspended
from office shall receive no salary or compensation during
such suspension; but upon subsequent exoneration and
reinstatement, he shall be paid full salary or compensation
including such emoluments accruing during such suspension.
Section 65. Rights of Respondent. - The respondent
shall be accorded full opportunity to appear and defend
himself in person or by counsel, to confront and cross-
examine the witnesses against him, and to require the
attendance of witnesses and the production of documentary
process of subpoena or subpoena duces tecum.
Section 66. Form and Notice of Decision. -
(a) The investigation of the case shall be terminated
within ninety (90) days from the start thereof.
Within thirty (30) days after the end of the
investigation, the Office of the President or the
sanggunian concerned shall render a decision in
writing stating clearly and distinctly the facts and the
reasons for such decision. Copies of said decision
shall immediately be furnished the respondent and
all interested parties.
(b) The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor
shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the
qualifications required for the office.
(c) The penalty of removal from office as a result of
an administrative investigation shall be considered a
bar to the candidacy of the respondent for any
elective position.
Section 67. Administrative Appeals. - Decisions in
administrative cases may, within thirty (30) days from receipt
thereof, be appealed to the following:
(a) The sangguniang panlalawigan, in the case of
decisions of the sangguniang panlungsod of
component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of
decisions of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities
and independent component cities.
Decisions of the Office of the President shall be final and
executory.
Section 68. Execution Pending Appeal. - An appeal
shall not prevent a decision from becoming final or executory.
The respondent shall be considered as having been placed
under preventive suspension during the pendency of an
appeal in the event he wins such appeal. In the event the
appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the
appeal.
629.) State the nepotism rule under the LGC
 Limitation to Appointments. - No person shall be
appointed in the career service of the local government if he is
related within the fourth civil degree of consanguinity or
affinity to the appointing or recommending authority.
(Section 79 of the LGC)
630.) Preventive suspension
See No. 627
631.) Removal
See No. 627
632.) Administrative Appeal
See No. 627
633.) Doctrine of Condonation
The re-election of a local officials bars the
continuation of the administrative case against him, in as
much as the re-election of the official is tantamount to
condonation by the people of whatever past misdeeds he may
have committed.
634.) Appointive officials
Officials common to all municipalities, cities,
provinces are as follows: (a.) Secretary of the Sanggunian;
(b.) Treasurer; (c.) Assessor; (d.) Accountant; (e.) Budget
officer; (f.) Planning and Development Coordinator; (g.)
Engineer; (h.) Health Officer; (i.) Civil Registrar; (j.)
Administrator; (k.) Legal Officer; (l.) Agriculturist; (m.) Social
Welfare and Development Officer; (n.) Environment and
Natural Resources Officer; (o.) Architect; (p.) Information
officer; (q.) Cooperative Officer; (r.) Population Officer; (s.)
Veterinarian; (t.) General Services Officer.
635.) Recall
It is governed by the following provisions of the LGC:
Section 69. By Whom Exercised. - The power of recall
for loss of confidence shall be exercised by the registered
voters of a local government unit to which the local elective
official subject to such recall belongs.
Section 70. Initiation of the Recall Process. -
(a) Recall may be initiated by a preparatory recall
assembly or by the registered voters of the local government
unit to which the local elective official subject to such recall
belongs.
(b) There shall be a preparatory recall assembly in
every province, city, district, and municipality which shall be
composed of the following:
(1) Provincial level. - All mayors, vice-
mayors, and sanggunian members of the
municipalities and component cities;
(2) City level. - All punong barangay and
sanggunian barangay members in the city;
(3) Legislative District level. - In case where
sangguniang panlalawigan members are
elected by district, all elective municipal
officials in the district; and in cases where
sangguniang panlungsod members are
152 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
elected by district, all elective barangay
officials in the district; and
(4) Municipal level. - All punong barangay
and sangguniang barangay members in the
municipality.
(c) A majority of all the preparatory recall assembly
members may convene in session in a public place and initiate
a recall proceedings against any elective official in the local
government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a
resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session
called for the purpose.
(d) Recall of any elective provincial, city, municipal,
or barangay official may also be validly initiated upon petition
of at least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned
during the election in which the local official sought to be
recalled was elected.
(1) A written petition for recall duly signed
before the election registrar or his
representative, and in the presence of a
representative of the petitioner and a
representative of the official sought to be
recalled and, and in a public place in the
province, city, municipality, or barangay, as
the case may be, shall be filed with the
COMELEC through its office in the local
government unit concerned. The COMELEC
or its duly authorized representative shall
cause the publication of the petition in a
public and conspicuous place for a period of
not less than ten (10) days nor more than
twenty (20) days, for the purpose of
verifying the authenticity and genuineness
of the petition and the required percentage
of voters.
(2) Upon the lapse of the aforesaid period,
the COMELEC or its duly authorized
representative shall announce the
acceptance of candidates to the position and
thereafter prepare the list of candidates
which shall include the name of the official
sought to be recalled.
Section 71. Election on Recall. - Upon the filing of a
valid resolution or petition for recall with the appropriate
local office of the COMELEC, the Commission or its duly
authorized representative shall set the date of the election on
recall, which shall not be later than thirty (30) days after the
filing of the resolution or petition for recall in the case of the
barangay, city, or municipal officials. and forty-five (45) days
in the case of provincial officials. The official or officials
sought to be recalled shall automatically be considered as
duly registered candidate or candidates to the pertinent
positions and, like other candidates, shall be entitled to be
voted upon.
Section 72. Effectivity of Recall. - The recall of an
elective local official shall be effective only upon the election
and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during
the election on recall. Should the official sought to be recalled
receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.

Section 73. Prohibition from Resignation. - The
elective local official sought to be recalled shall not be allowed
to resign while the recall process is in progress.
Section 74. Limitations on Recall. -
(a) Any elective local official may be the subject of a
recall election only once during his term of office for
loss of confidence.
(b) No recall shall take place within one (1) year
from the date of the official's assumption to office or
one (1) year immediately preceding a regular local
election.
Section 75. Expenses Incident to Recall Elections. - All
expenses incident to recall elections shall be borne by the
COMELEC. For this purpose, there shall be included in the
annual General Appropriations Act a contingency fund at the
disposal of the COMELEC for the conduct of recall elections.
636.) Term limits
Three years starting from the noon of June 30, 1992
or such date as may be provided by law, except that of elective
barangay officials. No local officials shall serve for more than
three consecutive terms in the same position. The term of
office of barangay officials and members of the sangguniang
kabataan shall be for five (5) years, which shall begin after the
regular election of barangay officials on the second Monday of
May 1997
NATIONAL ECONOMY AND PATRIMONY/SOCIAL JUSTICE
& HUMAN RIGHTS/EDUCATION, SCIENCE, TECHNOLOGY,
ARTS, CULTURE AND SPORTS
637.) Meaning of Regalian Doctrine
Section 2, Article 12 of the 1987 Constitution. All
lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of
natural resources shall be under the full control and
supervision of the State. The State may directly undertake
such activities or it may enter into co-production, joint
venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the
grant.
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
Filipino citizens.
The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as
153 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
cooperative fish farming, with priority to subsistence
fishermen and fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with
foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development,
and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by
law, based on real contributions to the economic growth and
general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and
technical resources.
The President shall notify the Congress of every
contract entered into in accordance with this provision,
within thirty days from its execution
Jura regalia is a feudal concept introduced by
Spaniards which is based on the State’s power of dominium,
which is the capacity of the State to own or acquire property.
The theory of the feudal system was that title to all lands was
originally held by the King, and while the use of lands was
granted out to others who were permitted to hold them under
certain conditions, the King theoretically retained the title. By
fiction of law, the King was regarded as the original
proprietor of all lands, and the true and only source of title,
and from him all lands were held. The theory of jura regalia
was therefore nothing more than a natural fruit of conquest.
The Regalian doctrine extends not only to land but also to "all
natural wealth that may be found in the bowels of the
earth." Spain, in particular, recognized the unique value of
natural resources, viewing them, especially minerals, as an
abundant source of revenue to finance its wars against other
nations. Mining laws during the Spanish regime reflected this
perspective.
The Regalian doctrine and the American system
differ in one essential respect. Under the Regalian theory,
mineral rights are not included in a grant of land by the state;
under the American doctrine, mineral rights are included in a
grant of land by the government.
The Regalian Doctrine pervades in the 1935, 1973,
and 1987 Constitution. However, conspicuously absent in
Section 2, Article 12, of the 1987 Constitution is the provision
in the 1935 and 1973 Constitutions authorizing the State to
grant licenses, concessions, or leases for the exploration,
exploitation, development, or utilization of natural resources.
By such omission, the utilization of inalienable lands of public
domain through "license, concession or lease" is no longer
allowed under the 1987 Constitution. (La Bugal-B’laan Tribal
Association vs. Ramos, 445 SCRA 1, G.R. No. 127882, January 27,
2004, Carpio-Morales, J.)
638.) Filipino first policy
Filipino first policy means that Filipinos should be
given preference in the grant of concessions, privileges and
rights covering the national patrimony.
Pertinent Constitutional Provisions
Section 10, Article 12. The Congress shall, upon
recommendation of the economic and planning agency, when
the national interest dictates, reserve to citizens of the
Philippines or to corporations or associations at least sixty
per centum of whose capital is owned by such citizens, or
such higher percentage as Congress may prescribe, certain
areas of investments. The Congress shall enact measures that
will encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall
give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance
with its national goals and priorities.
Section 11, Article 12. No franchise, certificate, or
any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws of
the Philippines, at least sixty per centum of whose capital is
owned by such citizens; nor shall such franchise, certificate,
or authorization be exclusive in character or for a longer
period than fifty years. Neither shall any such franchise or
right be granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress
when the common good so requires. The State shall
encourage equity participation in public utilities by the
general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be
limited to their proportionate share in its capital, and all the
executive and managing officers of such corporation or
association must be citizens of the Philippines.
Section 12, Article 12. The State shall promote the
preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make
them competitive.
Section 13, Article 12. The State shall pursue a trade
policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and
reciprocity.
Section 14, Article 12. The sustained development of
a reservoir of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level technical
manpower and skilled workers and craftsmen in all fields
shall be promoted by the State. The State shall encourage
appropriate technology and regulate its transfer for the
national benefit. The practice of all professions in the
Philippines shall be limited to Filipino citizens, save in cases
prescribed by law.
639.) Meaning of academic freedom
Academic freedom shall be enjoyed in all institutions
of higher learning. (Section 5(2), Article 14, 1987 Constitution)
Academic freedom or, to be precise, the institutional
autonomy of universities and institutions of higher learning
has been enshrined in the Constitution. The essential
freedoms of academic freedom on the part of schools are
as follows: (a.) the right to determine who may teach; (b.) the
right to determine what may be taught; (c.) the right to
determine how it shall be taught; (d.) the right to determine
who may be admitted to study. The Honor Code is just but
one way for the PMA to exercise its academic freedom. If it
determines that a cadet violates it, then it has the right to
154 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
dismiss said cadet. In this case, based on its findings, Cudia
lied – which is a violation of the Honor Code. (Cudia vs. The
Superintendent of the Philippine Military Academy, G.R. No.
211362, February 24, 2015)
640.) May aliens own lands in the Philippines? What are the
exceptions to this rule?
As a general rule, no.
Lands of the public domain are classified into
agricultural, forest or timber, mineral lands and national
parks. Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and not to exceed one
thousand hectares in area. Citizens of the Philippines may
lease not more than five hundred hectares, or acquire not
more than twelve hectares thereof, by purchase, homestead,
or grant.
Taking into account the requirements of
conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall
determine, by law, the size of lands of the public domain
which may be acquired, developed, held, or leased and the
conditions therefor. (Section 3, Article 12, 1987 Constitution)
Save in cases of hereditary succession, no private
lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold
lands of the public domain. (Section 7, Article 12, 1987
Constitution)
Notwithstanding the provisions of Section 7 of this
Article, a natural-born citizen of the Philippines who has lost
his Philippine citizenship may be a transferee of private lands,
subject to limitations provided by law. (Section 8, Article 12,
1987 Constitution)
Exceptions:
1.) In cases of hereditary succession. (Section 7,
Article 12, 1987 Constitution)
2.) A natural-born citizen of the Philippines who has
lost his Philippine citizenship may be a transferee of private
lands, subject to limitations provided by law. (Section 8,
Article 12, 1987 Constitution)
This Constitutional provision is implemented by B.P.
185, pertinent provision of it reads:
Any natural-born citizen of the Philippines who has
lost Philippine citizenship and who has the legal capacity to
enter into contract under Philippine laws may be a transferee
of a private land up to a maximum area of 1000 square
meters, in the case of urban land, or 1 hectare in the case of
rural land, to be used by him as his residence. In the case of
married couples, one of them may avail of the privilege herein
granted; Provided, That if both shall avail of the same, the
total area acquired shall not exceed the maximum herein
fixed.

In case the transferee already owns urban or rural
lands for residential purposes, he shall still be entitled to be a
transferee of additional urban or rural lands for residential
purposes which, when added to those already owned by him,
shall not exceed the maximum areas herein authorized.
(Section 2, B.P. 185)
A transferee under this Act may acquire not more
than two lots which should be situated in different
municipalities or cities anywhere in the Philippines; Provided,
That the total area thereof shall not exceed 1,000 square
meters in the case of urban land or 1 hectare in the case of
rural lands for use by him as urban land shall be disqualified
from acquiring rural land, and vice versa. (Section 3, B.P. 185)
3.) In case of corporation, at least 60% of its capital is
owned by Filipinos. (not sure, please verify)
PUBLIC INTERNATIONAL LAW
641.) Meaning of international law
International law, sometimes called the law of
nations, may be defined as the body of accepted rules and
principles which regulate the conduct of States and other
international persons as they interact in the world
community.
Rules of conduct which modern civilized States
regard as being binding on them in their relations with one
another, with a force comparable in nature and degree to that
binding on the conscientious person to obey the laws of his
country, and which he also regards as being enforceable by
appropriate means in case of infringement. (Coquia &
Defensor-Santiago, International Law and World
Organizations, 2005)
642.) Give two examples of general principles of law
recognized by civilized nations.
General principles of law recognized by civilized
nations has been understood as general principles of justice
as closely linked to natural law. Most of the principles
claimed to have originated in natural law are general
principles of justice.
Some examples of general principles of law are
principles of consent, reciprocity, equality of states, validity of
agreements, good faith.
These rules are derived mainly from natural law,
observed and recognized by civilized nations, e.g., res
judicata, prescription, pacta sunt servanda and estoppel.
643.) Give examples of principles recognized as customary
international law.
(a.) It may plausibly be contended that command
responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this
jurisdiction on the theory that the command responsibility
doctrine now constitutes a principle of international law or
customary international law in accordance with the
incorporation clause of the Constitution. (Rubrico et al. vs.
155 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Gloria Macapagal-Arroyo et al., G.R. No. 183781, February 18,
2010, Velasco, Jr., J.)
(b.) This rule finds an even stronger hold in the case
of crimes against humanity. It has been held that genocide,
war crimes and crimes against humanity have attained the
status of customary international law. Some even go so far as
to state that these crimes have attained the status of jus
cogens.
Customary international law or international custom
is a source of international law as stated in the Statute of the
ICJ. It is defined as the "general and consistent practice of
states recognized and followed by them from a sense of legal
obligation." In order to establish the customary status of a
particular norm, two elements must concur: State practice,
the objective element; and opinio juris sive necessitates, the
subjective element. (Bayan Muna vs. Romulo, G.R. No. 159618,
February 1, 2011, Velasco, Jr.)
(c.) In accordance with the generally accepted
principle of international law of the present day including the
Hague Convention the Geneva Convention and significant
precedents of international jurisprudence established by the
United Nation all those person military or civilian who have
been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held
accountable therefor. (Kuroda vs. Jalandoni, G.R. No. L-2662,
March 26, 1949, Moran, C.J.)
(d.) The point is that, as shown by the foregoing
treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the
Philippines "adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of . . . cooperation and amity with all nations."
(Tañada et al. vs. Angara et al., G.R. No. 118295, May 2, 1997,
Panganiban, J.)
644.) Obligations Erga Omnes
Even the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis. Even if we
sidestep the question of whether jus cogens norms existed in
1951, petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone)
in international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. The concept was recognized by the ICJ in
Barcelona Traction: x x x an essential distinction should be
drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-
vis another State in the field of diplomatic protection. By their
very nature, the former are the concern of all States. In view
of the importance of the rights involved, all States can be held
to have a legal interest in their protection; they are
obligations erga omnes.
 Such obligations derive, for example, in
contemporary international law, from the outlawing of acts of See No. 644.
aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, CASANA
including protection from slavery and racial discrimination.
Some of the corresponding rights of protection have entered 646. Concept of Aeguo Et Bono
into the body of general international law … others are
conferred by international instruments of a universal or
quasi-universal character.
 "Ex aequo et bono" means that the litigants settle the
The Latin phrase, ‘erga omnes,’ has since become one matter among themselves fairly and squarely.
of the rallying cries of those sharing a belief in the emergence (Ilusorio v. Ilusorio, G.R. No. 139789, July 19, 2001)
of a value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal  The case may be submitted on the principle of what
concept, its full potential remains to be realized in practice. is good and just. The International Court of Justice
may decide a case ex aequo et bono, that is,
The term is closely connected with the international according to the rules of equity. (Political Law
law concept of jus cogens. In international law, the term "jus Reviewer, Suarez, 2015)
cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting
647. What is soft law?
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority. “Soft Law”, others prefer to call this source of international
law as “non-treaty agreements.” They are not international
Early strains of the jus cogens doctrine have existed agreements concluded as treaties and therefore not covered
since the 1700s, but peremptory norms began to attract by the Vienna Convention on the Law of Treaties.
greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in
International Law. The recognition of jus cogens gained even
more force in the 1950s and 1960s with the ILC’s preparation Other sources of soft law are administrative rules which guide
of the Vienna Convention on the Law of Treaties the practice of states in relation to international
(VCLT). Though there was a consensus that certain organizations. These are mostly administrative procedures
international norms had attained the status of jus cogens, the that are carried out with varying degrees of consistency and
ILC was unable to reach a consensus on the proper criteria for uniformity that may eventually ripen into customary law or
identifying peremptory norms. become formalized later on in treaties.

After an extended debate over these and other

theories of jus cogens, the ILC concluded ruefully in 1963 that
"there is not as yet any generally accepted criterion by which
to identify a general rule of international law as having the
character of jus cogens." In a commentary accompanying the
draft convention, the ILC indicated that "the prudent course
seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of
international tribunals." Thus, while the existence of jus
cogens in international law is undisputed, no consensus exists
on its substance, beyond a tiny core of principles and rules.
Soft law plays an important role in international relations
because often states prefer non-treaty obligations as simpler
and more flexible foundation for their future relations. The
difference lies mainly in the wish of the parties to model their
relationship in a way that excludes the application of treaty or
customary law on the consequences of a breach of obligations.
(Introduction to Public International Law, Bernas S.J.,
2009)

Of course, we greatly sympathize with the cause of

petitioners, and we cannot begin to comprehend the 648. What is the doctrine of incorporation?
unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the
 The Philippines renounces war as an instrument of
petitioners appear to be without a remedy to challenge those
national policy, adopts the generally accepted
that have offended them before appropriate fora. Needless to
principles of international law as part of the law of
say, our government should take the lead in protecting its
the land and adheres to the policy of peace, equality,
citizens against violation of their fundamental human rights.
justice, freedom, cooperation, and amity with all
Regrettably, it is not within our power to order the Executive
nations. (Section 2, Article II, 1987 Constitution)
Department to take up the petitioners’ cause. Ours is only the
power to urge and exhort the Executive Department to take
 The courts have applied the rules of
up petitioners’ cause. (Vinuya et al. vs. Romulo, G.R. No.
international law in a number of cases even
162230, April 28, 2010, Del Castillo, J.)
if such rules had not previously been subject
of statutory enactments, because these
645.) Jus cogens

156 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 generally accepted principles of international or executive agreement, law presidential decree,
international law are automatically part of proclamation, order, instruction, ordinance, or regulation is in
our own laws. question. xxx”

It means that the rules of International law form part

of the law of the land and no legislative action is required to
make them applicable in a country. By this doctrine, the
Philippines is bound by generally accepted principles of
international law, which are considered to be automatically
part of our own laws. (Tañada v. Angara, G.R. No. 118295,
May 2, 1997)
If the conflict is with respect to international law and
statute, the rules of international law are given equal standing
with, but are not superior to, national legislative enactments.
A treaty may repeal a statute, and a statute may repeal a
treaty; thus, the principle of lex posterior derogate priori, that
which comes last in time, will usually be upheld by the
municipal tribunal.

The doctrine of incorporation is applied whenever

municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between a  If the conflict is to be decided by the an
rule of international law and the provisions of the internationally created tribunal, the recognized
Constitution or statute of the local state. Efforts should first principle is that national laws must yield to laws of
be exerted to harmonize them, so as to give effect to both nations.
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 Ratio: International law provides the standards by
Section 2, Article II of the Constitution. In a situation which legality of State’s conduct is to be determined.
however, where the conflict is irreconcilable and a choice has
to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be
If the conflict is between a treaty and a municipal
upheld by the municipal courts for the reason that such courts
law, from the view point of the State itself, our Constitution
are organs of municipal law and are accordingly bound by it
provides that a treaty may be declared unconstitutional by
in all circumstances. The fact that international law has been
the Courts. From this point of view, the municipal law
made part of the law of the land does not pertain to or imply
prevails. The example is the case of Inchong v. Hernandez
the primacy of international law over national or municipal
(G.R. No. L-7995, May 31, 1957), where it was held that the
law in the municipal sphere. The doctrine of incorporation, as
Retail Trade Nationalization Law prevails over the Treaty of
applied in most countries, decrees that rules of international
Amity with China. (This decision, however, no longer holds.
law are given equal standing with, but are not superior to,
Under the new Retail Trade Liberalization Act of 2000,
national legislative enactments. Accordingly, the principle of
foreign individuals or corporations can now engage in retail
lex posterior derogat priori takes effect – a treaty may repeal a
trade subject to the conditions and limitations prescribed by
statute and a statute may repeal a treaty. In states where the
the said law.) (Political Law Reviewer, Suarez, 2015)
Constitution is the highest law of 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 v. Lantion, G.R. No. 650. What are the recognized sources of international
139465, January 18, 2000) law?

649. Which should prevail? International law or

municipal law? Sources of International Law are often classified into formal
sources and material sources.

It depends.
 Formal Sources can refer to various processes by
which rules come into existence. Thus, for instance,
legislation is a formal source of law. So are treaty
 If the conflict is to be decided by a local court and the making and judicial decision making as well as the
case is with respect to the conflict of public
practice of states.
international law and our Constitution, then our
Constitution should be upheld being the highest law
of the land.  Material Sources, on the other hand, are not
concerned with how rules come into existence but
rather with substance and content of the obligation.
Ratio: Section 5(2)(a), Article VIII of the 1987
They identify what the obligations are. In this sense,
Constitution provides that the Supreme Court shall have the
state practice, UN resolutions, treaties, judicial
power to review, revise, reverse, modify, or affirm on appeal
decisions, and writing of jurists are material sources
or certiorari, as the law or the Rules of Court may provide,
in so far as they identify wat obligations are. They
final judgments and orders of lower courts in: “xxx All cases in
which the constitutionality or validity of any treaty,
157 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
 are also sometimes called to as “evidence” of
international law. c) Duration (UST Golden Notes)

 Sources of International Law: 652. What is the difference between a treaty and an
international agreement?

1. The Court, whose function is to decide in
accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by the
contesting states; (treaties) - determine the rights and duties
of states just as individual rights are determined by contracts.
Their binding force comes from the voluntary decision of
sovereign states to obligate themselves to a mode of behavior.
b. international custom, as evidence of a general
practice accepted as law; (custom or customary
International law)- “a general and consistent practice of
states followed by them form a sense of legal obligation.”
(Third Reinstatement of Foreign Relations Law of the
United Nation)
a) International agreement – shall refer to a contract or
understanding, regardless of nomenclature, entered into
between the Philippines and another government in written
form and governed by international law, whether embodied
in a single instrument or in two or more related instruments.
b) Treaties – international agreements entered into by the
Philippines which require legislative concurrence after
executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
c) Executive agreements – similar to treaties except that
they do not require legislative concurrence. (Executive Order
No. 459 cited in Abaya v. Ebdane, G.R. No. 167919, February
14, 2007)

c. the general principles of law recognized by

civilized nations; - these have reference not to principles of
international law but to principles of municipal law common
to the legal systems of the world.
d. subject to the provisions of Article 59, judicial
decisions (have no binding force except between the parties
and in respect of that particular case) and the teachings of
the most highly qualified publicists of the various nations
(they are institutions which write on international law), as
subsidiary means for the determination of rules of law.
653. Who are the subjects of international law?
a) State – is a community of persons, more or less
numerous, permanently occupying a fixed territory,
possessing an organized government, independent of
external control, to which a great body of inhabitants render
habitual obedience.

2. This provision shall not prejudice the power of the

b) Colony – is a dependent political community. It is
Court to decide a case ex aequo et bono, if the parties agree
composed of citizens of the same country who have migrated
thereto. (Section 38, Statute of the International Court of
therefrom to live in another country but remain subject to the
Justice cited in Introduction to Public International Law,
mother State.
Bernas S.J., 2009)
651. What are the two basic elements of customary
international law?
c) Dependencies – territories different from the
country in which supreme sovereign power resides, but
belongs rightfully to it. Hence, still subject to the loss which
 a) The material factor (practice of states or usus) the sovereign may impose.
– This is how states behave. It includes several
elements: duration, consistency, and generality of the
practice of states.
d) Belligerent – when the insurgency has reached a
serious proportion, the rebels, instead of being merely
b) The subjective factor (psychological factor)
– This is why do states behave the way they do. Introduction considered insurgents, may be called “belligerents.”
to Public International Law, Bernas S.J., 2009)

 a) Uniformity, consistency, and general practice. e) Political entities legally proximate to States.
(e.g. The former free city of Pazig)
How to establish?
1. Presentation of bilateral treaties
2. Conclusion of international agreement or
f) Condominium – the joint exercise of State power
conference within a particular territory by means of an autonomous local
3. Resolution of the UN General Assembly
administration acting as an agent of the State.
b) Opinion juris et necessitates
-The belief that a certain form of behavior is
obligatory is what makes practice an
international law.
158 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
 g) International Territories – special states created
by multilateral treaties and protected by an international
organization.
h) UN administration of territories immediately
prior to independence. (e.g. UN transitional administration
of East Timor)
i) International Organizations
j) Agencies of States – entities acting as agent of
states with delegated powers. (e.g. Arbitral Tribunal)
h) United Nations. An international subject.
 Subject of international law is an entity directly
endowed with rights as well as obligations in the
international legal order.
Example: In the exercise of its rights, the Philippines, as a
sovereign State, can enforce said right and may even sue in
the International Court of Justice. On the other hand, the
Philippine Republic may be sued in the international tribunal
for its official actuations. (Political Law Reviewer, Suarez,
2015)
 Other types of personalities:
a) non-self governing people
b) national liberation monument
c) state in statu nascendi – the continuity of the
political entity of the state, in certain cases, in order
to give effect to acts done before independence.
d) legal construction – the opposite of statu nascendi,
when called for a state’s legal entity, may be
protected in certain cases even though the state has
politically ceased to exist.
e) entities sui generis (e.g. Holy See and the Vatican)
f) individual – a natural person’s acts may be the
bases for the prosecution of piracy, war crime,
genocide, crimes against humanity, crimes of
aggression.
654. Cardinal principles under the United Nations
charter
159 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
 The organization is supposed to act in accordance
with the following principles:
a) Good faith
b) Sovereign equality
c) Peaceful settlement of disputes
d) Avoidance of threat or use of force
e) Members to assist UN
f) UN to ensure that non-members will act properly
g) Non-intervention (Suarez, 2015, ibid.)
655. When is the use of force by States permitted
under international law?
The use of force by states is controlled by both
customary international law and by treaty law.
The UN Charter reads in Article 2(4):
“All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.”
This rule was "enshrined in the United Nations Charter in
1945 for a good reason: to prevent states from using force as
they felt so inclined"
Exceptions:
a) The Security Council, under powers granted in articles 24
and 25, and Chapter VII of the Charter, may
authorize collective action to maintain or enforce
international peace and security.
b) A state is exercising its inherent right of individual or
collective self-defiance recognized by Article 51 of the UN
Charter ("Nothing in the present Charter shall impair the
inherent right to individual or collective self-defence if an
armed attack occurs against a state.").
656. May states that are not signatories to the UN
Charter be bound by the UN Charter?
The UN Charter is the treaty that constituted the United
Nations in 1945. It is legally bonding upon the contracting
States, and it so happens that virtually every country in the
world is member of the UN and therefore, legally bound by
the charter.
Article 102, UN Charter
a) Every treaty and every international agreement entered
into by any Member of the United Nations after the present
Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it.
b) No party to any such treaty or international agreement
which has not been registered in accordance with the
provisions of paragraph 1 of this Article may invoke that
treaty or agreement before any organ of the United Nations.
In the Charter of the League of Nations, a treaty had to be
registered to enter into force, but in the UN Charter a treaty
(or international agreement – both expressions are used to
ensure broad coverage) can enter into force without being
registered. However, the UN Member States have undertaken
the legal obligation to register their treaties and there is an
incentive (or rather a penalty) if a treaty is filed: only
registered treaties can be invoked before the UN Organs,
including the Security Council and the International Court of
Justice.
657. Role and function of the General Assembly,
Security Council and International Court of Justice
a) General Assembly
The General Assembly (GA) is the main deliberative,
policymaking and representative organ of the UN
Composition: Consists of all the members of the organization,
each of which is entitled to send not more than five
representatives and five alternatives.
Voting Power: Each member has only one vote.
Classification of functions:
1. Deliberative, like initiating studies and making
recommendations for the development of international law,
etc.;
2. Supervisory, such as receiving and considering annual and
special reports from other organs of the UN;
3. Financial, like consideration and approval of the budget of
the organization, like apportionment of expenses, etc.;
160 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
4. Elective, such as the election of the non-permanent
members of the Security Council; and
5. Constituent, such as the admission of members and the
amendment of the Charter.
Session of the General Assembly: Its regular session is held
once a year. It may hold special sessions called by the
Secretary General at the request of the Security Council or a
majority of the members.
Required vote on several questions:
1. On important questions (e.g. peace, security, membership,
elections, trusteeship, system, budget) 2/3 vote of the
members present and voting is required;
2. On other questions, a simple majority is sufficient. To
classify a question as important, the vote required is a simple
majority.
b) Security Council
It is the key organ in the maintenance of international peace
and security.
Composition: It is composed of five (5) permanent members,
namely: China, France, Russia, the United Kingdom, and the
United States; and ten (10) elective-members, elected for two-
year terms by the General Assembly, five from African and
Asian States, two from Latin American States, two from
Western European and other States, and one form eastern
European States.
Voting Power: For the elective members, no immediate re-
election is allowed.
Classification of functions: The Security Council is expected
to function continuously, and sessions may be called at any
time; thus, the representative of the member States should
always be available.
The Security Council takes the lead in determining the
existence of a threat to the peace or act of aggression. It calls
upon the parties to a dispute to settle it by peaceful means
and recommends methods of adjustment or terms of
settlement. In some cases, the Security Council can resort to
imposing sanctions or even authorize the use of force to
maintain or restore international peace and security.
The Security Council also recommends to the General
Assembly the appointment of the Secretary-General and the
admission of new Members to the United Nations. And,
together with the General Assembly, it elects the judges of the
International Court of Justice
Required vote on several questions: Each member of the
Security Council shall have one vote, but distinction is made
between permanent members and non-permanent members
in the resolution of substantive questions.
c. International Court of Justice
It is the principal judicial organ of the UN. (Art. 1, Statute of
the International Court of Justice)
The Court’s role is to settle, in accordance with international
law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies.
Composition: The Court shall be composed of a body of
independent judges, elected regardless of their nationality
from among persons of high moral character, who possess the
qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults
of recognized competence in international law.
1. The Court shall consist of fifteen members, no two of whom
may be nationals of the same state.
2. A person who for the purposes of membership in the Court
could be regarded as a national of more than one state shall
be deemed to be a national of the one in which he ordinarily
exercises civil and political rights. (Article 2 and 3, ibid,)
How are they elected? The members of the Court shall be
elected by the General Assembly and by the Security Council
from a list of persons nominated by the national groups in the
Permanent Court of Arbitration. (Article 4, ibid.)
Term of office: The members of the Court shall be elected for
nine years and may be re-elected; provided, however, that of
the judges elected at the first election, the terms of five judges
shall expire at the end of three years and the terms of five
more judges shall expire at the end of six years. (Article 13,
ibid.)
161 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Jurisdiction of the case: The jurisdiction of the Court
comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United
Nations or in treaties and conventions in force. (Article 36,
ibid.)
Basis of Court’s jurisdiction: It is based on the consent of
the parties.
Article 36 of the Statute provides, “The states parties to the
present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the
jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
breach of an international obligation. “
Can it give advisory opinion? Yes. The Court may give an
advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with
the Charter of the United Nations to make such a request.
(Article 65, ibid.) (e.g. General Assembly or Security Council or
other organs of the UN when authorized by the General
Assembly) (Suarez, 2015)
658. Diplomatic and consular law in general
The Vienna Convention on Diplomatic Relations (1961) is the
codification of rules of international law particularly
applicable to the political relations of the States. Diplomatic
relations between states are entered into by mutual consent.
The Vienna Convention on Consular Relations (1967) is the
codification of rules of international law particularly
applicable to consular relations. While consular relations
between states are entered into by mutual consent, consular
relations are more specific than diplomatic relations.
Consuls attend to administrative and economic matters
between the sending and the receiving states. However, a
diplomatic mission may still perform consular functions.
659. What are the immunities enjoyed by diplomatic
agents?
a) Under Vienna Convention on Diplomatic Relations (1961)
for official acts performed in the exercise of their functions,
diplomatic agents enjoy a special privileges including
immunity from jurisdiction, which is the effect of suspending
the laws of the States to which they are accredited, or
exemptions of the administrative courts, civil and criminal
matters, both national and local, including exemptions from
arrests, litigation, civil lawsuits, subpoenas and legal
penalties.
b) In the same vein, the right of inviolability guaranteed to a
duly accredited diplomatic representative is that no one can
steal his residence, his means of transport, offices or files, nor
enter his residence or office without his permission. Unless
there is a waiver by the sending State to the immunity of a
diplomatic agent, he may not be arrested or tried, nor shall he
be impaired in any way against his person, his dignity and
freedom.
c) These privileges are also granted to the diplomatic agent’s
family living under the same roof and who are not nationals of
the receiving country. Similarly, he has the right to
inviolability of the administrative and technical staff of the
mission and service staff, whose members are not nationals of
the receiving State and not permanent residents of the same.
d) There are also exemptions and privileges, as defined by
international conventions and domestic legislation of States,
and preserved by the principle of reciprocity referred to as
courtesy privileges. These exemptions and privileges are
granted especially as it relates to the payment of taxes and
customs duties and the right to not having their luggage
checked by custom authorities in their country of post.
e) The diplomatic mission should be exempt from all taxes in
the receiving state tax. Likewise, the sending States and the
chief of mission are exempt from all taxes and levies national,
regional or municipal, levies on the premises of the mission if
the State is the owner or tenant, except in those cases that
represent payment for public or private services and not
related to the exercise their official capacity. The regime
applicable to consular officials, i.e., the facilities, privileges
and immunities enjoyed are listed in the Vienna Convention
on Consular Relations.
f) Others that enjoy privileges and immunities in this area are
representatives of international organisations as the
international officials have to respect conventional rules and
bilateral agreements between their agencies and the State
concerned or the host receiving State.
660. What protections are guaranteed to premises of
embassies, cars, correspondence, and residences of
diplomatic agents?
Vienna Convention on Diplomatic Relations (1961)
provides:
Article 22
162 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
1. The premises of the mission shall be inviolable. The agents
of the receiving State may not enter them, except with the
consent of the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity.
3. The premises of the mission, their furnishings and other
property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment or
execution.
Article 24
The archives and documents of the mission shall be inviolable
at any time and wherever they may be.
Article 27
1. The receiving State shall permit and protect free
communication on the part of the mission for all official
purposes. In communicating with the Government and the
other missions and consulates of the sending State, wherever
situated, the mission may employ all appropriate means,
including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless
transmitter only with the consent of the receiving State.
2. The official correspondence of the mission shall be
inviolable. Official correspondence means all correspondence
relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear
visible external marks of their character and may contain only
diplomatic documents or articles intended for official use.
5. The diplomatic courier, who shall be provided with an
official document indicating his status and the number of
packages constituting the diplomatic bag, shall be protected
by the receiving State in the performance of his functions. He
shall enjoy person inviolability and shall not be liable to any
form of arrest or detention.

6. The sending State or the mission may designate diplomatic
couriers ad hoc. In such cases the provisions of paragraph 5 of
this article shall also apply, except that the immunities therein
mentioned shall cease to apply when such a courier has
delivered to the consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a
commercial aircraft scheduled to land at an authorized port of
entry. He shall be provided with an official document
indicating the number of packages constituting the bag but he
shall not be considered to be a diplomatic courier. The
mission may send one of its members to take possession of
the diplomatic bag directly and freely from the captain of the
aircraft.
Article 30
1. The private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the
mission.
2. His papers, correspondence and, except as provided in
paragraph 3 of Article 31, his property, shall likewise enjoy
inviolability.
Article 36
2. The personal baggage of a diplomatic agent shall be exempt
from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this article, or
articles the import or export of which is prohibited by the law
or controlled by the quarantine regulations of the receiving
State. Such inspection shall be conducted only in the presence
of the diplomatic agent or of his authorized representative
661. State the immunities of a diplomatic agent from
the jurisdiction of the receiving state. Give the exceptions,
if any.
Vienna Convention on Diplomatic Relations (1961)
provides:
Article 23
1. The sending State and the head of the mission shall be
exempt from all national, regional or municipal dues and
taxes in respect of the premises of the mission, whether
163 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
owned or leased, other than such as represent payment for
specific services rendered.
2. The exemption from taxation referred to in this article shall
not apply to such dues and taxes payable under the law of the
receiving State by persons contracting with the sending State
or the head of the mission.
Article 28
The fees and charges levied by the mission in the course of its
official duties shall be exempt from all dues and taxes.
Article 29
The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention. The receiving
State shall treat him with due respect and shall take all
appropriate steps to prevent any attack on his person,
freedom or dignity
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction,
except in the case of:
(a) A real action relating to private immovable property
situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purposes of the
mission;
(b) An action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as
a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a
witness.
3. No measures of execution may be taken in respect of a
diplomatic agent except in the cases coming under
subparagraphs (a), (b) and (c) of paragraph 1 of this article,
and provided that the measures concerned can be taken
without infringing the inviolability of his person or of his
residence.

4. The immunity of a diplomatic agent from the jurisdiction of
the receiving State does not exempt him from the jurisdiction
of the sending State.
662. What is the meaning of persona non grata?
An individual who is unaccepted to or unwelcome by the
receiving State. (Suarez, 2015, ibid.)
663. What is a treaty?
A treaty is "an international agreement concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation."
(Vienna Convention on the Law of Treaties of 1969)
664. Requisites for validity of treaties.
 The five essential requisites of a valid treaty are:
(VACLA)
1. Be entered into by parties with the treaty‐making Capacity
2. Through their Authorized representatives
3. Without the attendance of duress, fraud, mistake, or other
Vice of consent
4. On any Lawful subject‐matter
5. In Accordance with their respective constitutional process
 In the Philippine setting the power to ratify a treaty is
vested in the President. The role of the Senate is confined
simply to giving or withholding its consent (veto power).
For this matter, it is competent for the President to refuse
to submit a treaty to the Senate or having secure its
consent for its ratification, to refuse to ratify it. But, as a
rule he cannot ratify a treaty without the concurrence of
2/3 of all members of the Senate.
164 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Under this rule, the general practice of treaty-making
power is vested to the executive department of the
government. The President holds the highest executive office.
Thus, the President as provided for in the Constitution has the
power to abrogate a treaty if such act obtained the consent of
the other country-party. It is not therefore necessary for the
Senate to give its concurrence as such is only needed upon
ratifying a treaty.
 Is VFA a treaty? In the case of Bayan v. Zamora G.R No.
138570, Oct. 10, 2000, VFA was considered a treaty
because the Senate concurred in via 2/3 votes of all its
members. But in the point of view of the US Government,
it is merely an executive agreement.
665. What are the grounds for termination of treaties?
1. Termination of the treaty or withdrawal of a party in
accordance with the terms of the treaty.
2. Extinction of one of the parties to the treaty.
3. Mutual agreement of all the parties to terminate the treaty.
4. Denunciation of the treaty by one of the parties.
5. Supervening impossibility of performance.
6. Conclusion of a subsequent treaty inconsistent between the
same parties.
7. Violation of the treaty by one of the parties.
8. Doctrine of rebus sic stantibus (How? a) If the treaty
establishes a boundary; or b) If the fundamental change is the
result of a breach by the party invoking it of an obligation
under the treaty or of any other obligation owed to any other
party to the treaty.)
9. Outbreak of war between the parties to the treaty.
10. Severance of diplomatic or consular relations
11. The emergence of new peremptory norm of general
international law renders void and terminates any existing
treaty in conflict with such norm. (UST Golden Notes)
Grounds for Invalidity
1. Error
2. Fraud
3. Corruption of a representative of a State
4. Coercion of a representative of a State
5. Coercion of a State by threat or use of force
6. Violation of jus cogens norm (UST Golden Notes)
 The termination of a treaty or the withdrawal of a
party may take place:
(a) in conformity with the provisions of the treaty; or (b) at
any time by consent of all the parties after consultation with
the other contracting States. (Article 54, Vienna Convention
on the Law of Treaties)
 A treaty shall be considered as terminated if all the
parties to it conclude a later treaty relating to the
same subject-matter and:
(a) it appears from the later treaty or is otherwise established
that the parties intended that the matter should be governed
by that treaty; or
(b) the provisions of the later treaty are so far incompatible
with those of the earlier one that the two treaties are not
capable of being applied at the same time. (Article 59, ibid.)
It states that a fundamental change of circumstances which
determined the parties to accept a treaty, if it has resulted in a
radical transformation of the extent of the obligations
imposed by it, may under certain conditions, afford the party
affected a ground to invoke the termination of the treaty. The
change must have increased the burden of the obligations to
be executed to the extent of rendering performance
essentially different from the original intention.
Requisites:

 Termination or suspension of the operation of a

treaty as a consequence of its breach:
1. A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for
terminating the treaty or suspending its operation in whole or
in part.
2. A material breach of a multilateral treaty by one of the
parties entitles:
(PRUTIS )
1. The change must not have been caused by the Party
invoking the doctrine
2. The doctrine cannot operate Retroactively, (i.e., it must not
adversely affect provisions which have already been complied
with prior to the vital change in the situation )
3. The change must have been Unforeseen or unforeseeable
at the time of the perfection of the treaty

(a) the other parties by unanimous agreement to suspend the 4. The doctrine must be invoked within a reasonable Time
operation of the treaty in whole or in part or to terminate it
either: (i) in the relations between themselves and the
defaulting State, or (ii) as between all the parties;
5. The duration of the treaty must be Indefinite
(b) a party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole or
in part in the relations between itself and the defaulting State; 6. The change must be so Substantial that the foundation of
the treaty must have altogether disappeared.
(c) any party other than the defaulting State to invoke the
breach as a ground for suspending the operation of the treaty
in whole or in part with respect to itself if the treaty is of such
a character that a material breach of its provisions by one 667. Treatment of Aliens
party radically changes the position of every party with
respect to the further performance of its obligations under the
treaty.
 Flowing from its right to existence and as an
attribute of sovereignty, as a general rule, no state is
3. A material breach of a treaty, for the purposes of this under the obligation to admit aliens. The State can
article, consists in: determine in what cases and under what conditions
it may admit aliens.
(a) a repudiation of the treaty not sanctioned by the present
Convention; or  The right includes the power to regulate the entry
and stay of aliens, and the state has the right to expel
(b) the violation of a provision essential to the aliens from its territory through deportation.
accomplishment of the object or purpose of the treaty.
 Q: How should States treat aliens within their
4. The foregoing paragraphs are without prejudice to any territory?
provision in the treaty applicable in the event of a breach.
A: The standards to be used are the following:
5. Paragraphs 1 to 3 do not apply to provisions relating to the
1. National treatment/ equality of treatment –
protection of the human person contained in treaties of a
Aliens are treated in the same manner as nationals of
humanitarian character, in particular to provisions
the State where they reside.
prohibiting any form of reprisals against persons protected by
such treaties. (Article 60, ibid.)
2. Minimum international standard – However
harsh the municipal laws might be, against a State’s
666. What is the meaning of rebus sic stantibus? own citizens, aliens should be protected by certain
minimum standards of humane protection.

165 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

 Note: States protect aliens within their jurisdiction 6. Double Criminality Rule – The act for which the
in the expectation that their own nationals will be extradition is sought must be punishable in both States.
properly treated when residing or sojourning
abroad. (UST Golden Notes)

 Procedure for extradition when a foreign State

requests from the Philippines:
668. Extradition, fundamental principles and
procedure
1. File/issue request through diplomatic representative with:

 Extradition - It is the right of a foreign power, created by

treaty, to demand the surrender of one accused or a. Decision of conviction
convicted of a crime within its territorial jurisdiction, and
the correlative duty of the other State to surrender. b. Criminal charge and warrant of arrest

c. Recital of facts
Basis for extradition:
d. Text of applicable law designating the offense

e. Pertinent papers
The extradition of a person is required only if there is a treaty
between the State of refuge and the State of origin. As a
gesture of comity, however, a State may extradite anyone.
Furthermore, even with a treaty, crimes which are political in 2. DFA forwards request to DOJ
character are exempted.

3. DOJ files petition for extradition with RTC

 Fundamental Principles governing extradition

4. Upon receipt of a petition for extradition and its supporting

1. Based on the consent of the State expressed in a treaty.
documents, the judge must study them and make, as soon as
possible, a prima facie finding whether:

(a) They are sufficient in form and substance,;

2. Principle of Specialty – a fugitive who is extradited may be
tried only for the crime specified in the request for extradition
(b)They show compliance with the Extradition
and included in the list of offenses in the extradition treaty.
Treaty and Law; and

(c) The person sought is extraditable. At his

discretion, the judge may require the submission of further
3. Any person may be extradited, whether he be a national of
documentation or may personally examine the affiants and
the requesting State, of the State of refuge or of another State.
witnesses of the petitioner. If, in spite of this study and
He need not be a citizen of the requesting State.
examination, no prima facie finding is possible, the petition
may be dismissed at the discretion of the judge.

4. Political or religious offenders are generally not subject to

extradition.
Note: Attendant clause is a provision in an
extradition treaty which states that the murder or
assassination of the head of a state or any member of his
family will not be considered as a political offense and
therefore extraditable.
5. On the other hand, if the presence of a prima facie case is
determined, then the magistrate must immediately issue a
warrant for the arrest of the extraditee, who is at the same
time summoned to answer the petition and to appear at
scheduled summary hearings.
6. Hearing (provide counsel de officio if necessary);

5. The offense must have been committed within the territory

7. Appeal to CA within ten days whose decision shall be final
of the requesting State or against its interest
and executory;

8. Decision forwarded to DFA through the DOJ;

166 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
9. Individual placed at the disposal of the authorities of 671. Nationality principle and statelessness
requesting State – costs and expenses to be shouldered by
requesting State. (UST Golden Notes)

 Under the Nationality principle, the State has

669. Extradition v. deportation
Extradition
Effected at the request of the
State of origin
Based on offenses committed
in the State of origin
Calls for the return of the
fugitive to the State or origin
Deportation
Unilateral act of the local
state
Based on causes arising in
the local State
Undesirable alien may be
deported to a State other
than his own or the State of
origin (1995 Bar Question)
jurisdiction over its nationals anywhere in the world
based on the theory that a national is entitled to the
protection of the State whenever he may be, and thus, is
bound to it by duty of obedience and allegiance, unless he
is prepared to renounce his nationality.
It is then applicable to civil matters:
“Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.”
(Article 15, New Civil Code)

670. Jurisdiction of states: territoriality principle The principle does not apply in criminal offenses.

 Jurisdiction of states means the authority to affect legal
interest. Corresponding to the powers of the government,
jurisdiction can be:
a) Jurisdiction to prescribe norms of conduct (legislative
jurisdiction)
 Statelessness- It is the condition or status of an
individual who is either:
1. De Jure Stateless persons ‐ stripped of their nationality by
their former government and without having an opportunity
to acquire another.

b) Jurisdiction to enforce the norms prescribed (executive
jurisdiction)
c) Jurisdiction to adjudicate (judicial jurisdiction) (Bernas,
2009, ibid.)
2. De Facto Stateless persons ‐ those who possess a
nationality whose country does not give them protection
outside their own country and who are commonly referred to
as refugees. (Frivaldo v. COMELEC, G.R. No. 123755, June 28,
1996)

672. Nationality principle

 Jurisdiction is the power or authority exercised by a state

over land, persons, property, transactions and events.
The basic problem of jurisdiction centers upon which Please refer to the preceding question.
state has sovereignty or legal control over land, persons,
property, transactions and events in various situations.
673. Protective principle
 Territoriality Principle – the State may exercise
jurisdiction only within its territory. While there is no
territorial limit in the exercise of jurisdiction over civil
matters, a State as a general rule, has criminal Under the protective principle, a state may exercise
jurisdiction only over offenses committed within its jurisdiction over conduct outside its territory that threatens
territory, except: its security as long as the conduct is generally recognized as
criminal by states in the international community. This
a) Continuing offenses conditional clause excludes acts committed in the exercise of
b) Acts prejudicial to the national security or vital the liberty guaranteed to an alien by the law of the place
interests of the State where the act is committed.
c) Universal crimes
d) Offenses covered by special agreements

167 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER

Examples:
a) Plot to overthrow the government
b) Forging currency
c) Plot to break immigration rules (Bernas, 2009,
ibid.)
d) Article 2, Revised Penal Code
674. Universality principle
The Universality Principle recognizes that certain
activities, universally dangerous to states and their subjects
require authority in all community members to punish such
acts whenever they may occur, even absent a link between the
state and the parties or the acts in question. The principle
started in piracy (in international law), means any illegal act
of violence or depredation committed for private ends on the
high seas or outside the territorial control of the state. Now
the principle covers not just piracy but also genocide, crimes
against humanity, war crimes, aircraft piracy, and terrorism.
There is also a growing support for universal jurisdiction over
crimes against human rights. (Bernas, 2009, ibid.)
675. Passive personality principle
The passive personality principle. The passive
personality principle asserts that a state may apply law--
particularly criminal law--to an act committed outside its
territory by a person not its national where the victim of the
act was its national. The principle has not been generally
accepted for ordinary torts or crimes, but it is increasingly
accepted as applied to terrorist and other organized attacks
on a state's nationals by reason of their nationality, or to
assassination of a state's diplomatic representatives or other
officials. Restatement (Third) of the Foreign Relations Law
of the United States cited in Bernas, 2009, ibid.)
676. How may conflict of jurisdiction of states be
settled?
Since there are various accepted principles for assuming
jurisdiction, more than one state may have a valid claim to
jurisdiction.
a) Balancing Test – when the answer to the three questions
below is Yes, the court will assume jurisdiction.
1. Is there an actual or intended effect on the State?
168 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
2. Is the effect sufficiently large to present a
cognizable injury to the State?
3. Are the interests of, and link to, the State
sufficiently strong?
b) International comity – even when a State has basis for
exercising jurisdiction, it will refrain from doing so if its
exercise will be unreasonable.
c) Forum non conveniens – If in the whole circumstances of
the case it be discovered that there is a real unfairness to one
of the suitors in permitting the choice of a forum which is not
the natural or proper forum, either on the ground of
convenience of the trial.
677. Give at least 5 valid modes of acquiring territory
under international law.
a) Discovery and effective occupation
After discovering territory, there must be:
1. an effective occupation
2. intention to act as a sovereign over that territory
(animus occupandi)
3. continuous display of authority
4. the exercise of local administration (licensing,
customs, ordinary court function, registry of deed) is a better
proof of sovereignty than title or treaty.
 Potrico Doctrine- Island nearest to coastal states
(particularly those within the state territorial sea)
belongs to such states.
 Territory not belonging to any state or terra nullius is
placed under the sovereignty of the claiming state.
b) Cession (by treaty)
Cession may be voluntary, through a treaty or a sale.
Example: The sale of Alaska by Russia to the USA; or through
a treaty or donation. Example: The donation of Sabah by
Borneo to the Sultanate of Sulu.
Cession may also be involuntary, or forced. Such as
the treaty entered into by the USA and Spain after the
Spanish-American war although the treaty was denominated
by sale; whereby Spain ceded the Philippines, Puerto Rico,
and Guam to the USA for $20M.
c) Prescription
Territory may also be acquired through open,
continuous, and uninterrupted possession over a long period
of time:
1. under the title of sovereignty
2. peaceful and uninterrupted
3. public
4. endure for a length of time
d) Conquest
This mode of acquisition is no longer recognized in
as much as the UN Charter prohibits resort to threat or use of
force against the territorial integrity or political independence
of any State. Thus, the annexation of Kuwait by Iraq was
declared null and void by the UN Security Council Resolution
No. 662 even before the UN Charter, under the Stimson
Doctrine (The Stimson Doctrine is a policy of the United
States federal government, enunciated in a note of January 7,
1932, to Japan and China, of non-recognition of international
territorial changes that were executed by force. The doctrine
was an application of the principle of ex injuria jus non oritur).
e) Accretion
The increase in the land area of the State, either
through natural means or artificially, through human labor.
678. Law of the Sea in general
International Law of the Sea (ILS) is a body of treaty rules
and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of jurisdiction
over maritime regimes.
679. United Nations Convention on the Law of the Sea
UNCLOS defines the rights and obligations of nations in their
use of the world’s oceans, establishing rules for business, the
environment and the management of marine natural
resources.
680. Baseline
169 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
It 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 maritime boundary of the coastal
State.
How are baselines formed?
1. Mouths of Rivers – If a river flows directly into the sea, the
baseline shall be a straight line across the mouth of the river
between points on the low‐water line of its banks. (Article 9,
UNLOS)
2. Bays – Where the distance between the low‐water marks of
the natural entrance points:
a. Does not exceed 24 nautical miles – closing line may be
drawn between these two low‐water marks, and the waters
enclosed thereby shall be considered as internal waters.
(Article 10 [4], UNCLOS)
b. Exceeds 24 nautical miles–straight baseline of 24 nautical
miles shall be drawn within the bay in such a manner as to
enclose the maximum area of water that is possible with a line
of that length. (Article 10 [5], UNCLOS)
Note: This relates only to bays the coasts of which
belong to a single State and does not apply to “historic” bays.
(Article 10 (1), UNCLOS)
681. Archipelagic States
- are states constituted wholly by one or more
archipelagos and may include other islands. (Article
46, UNCLOS)
 Archipelago means a group of islands, including
parts of islands, interconnecting waters and other
natural features which are so closely interrelated
that such islands, waters and other natural features
form an intrinsic geographical, economic and
political entity, or which historically have been
regarded as such (Article 46, UNCLOS)
(1) Straight Archipelagic Baselines
By joining the outermost points of the outermost islands and
drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which
the ration of the water to the area of the land, including atolls,
is between 1 to 1 and 9 to 1. (Article 47, UNCLOS)
Guidelines in drawing archipelagic baselines:
1. The length of such baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles. (Article 47 [2],
UNCLOS)
2. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago. (Article 47[3], UNCLOS)
3. Such baselines shall not be drawn to and from low tide
elevations (Article 47[4], UNCLOS)
Note: Unless lighthouses or similar installations
which are permanently above sea level have been built on
them or where a low•]tide elevation is situated wholly or
partly at a distances not exceeding the breath of the territorial
sea from the nearest island. (Ibid)
4. It shall not be applied in such a manner as to cut off from
the high seas or the exclusive economic zone the territorial
sea of another State. (Article 47[5], UNCLOS)
5. If a part of the archipelagic water of an archipelagic State
lies between two parts of an immediately adjacent
neighboring State, existing rights and all other legitimate
interests which the latter State has traditionally exercised in
such waters and all rights stipulated by agreement between
those States shall continue and be respected. (Article 47[6],
UNCLOS)
(2) Archipelagic Waters
 These are waters enclosed by the archipelagic baselines,
regardless of their depth or distance from the coast.
(Article 49[1], UNCLOS)
 Q: Does sovereignty of the archipelagic state extend to
the archipelagic waters?
A: Yes, but is subject to the right of innocent passage
which is the same nature as the right of innocent passage in
170 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
the territorial sea. (Article 49[1] in relation to Article 52[1],
UNCLOS)
 Q: What are the other rights by which they are subject to?
A: 1. Rights under existing agreement on the part of the third
states should be respected; (Article 51[1], UNCLOS)
2. The traditional fishing rights and other legitimate activities
of the immediately adjacent neighboring States (Ibid)
3. Existing submarine cables laid by other States and “passing
though its waters without making a windfall” as well as the
maintenance and replacement of such cables upon being
notified of their location and the intention to repair or replace
them. (Article 51[2], UNCLOS)
 Q: Does the right of innocent passage exist in archipelagic
waters?
A: Yes. As a rule, ships of all States enjoy the right of
innocent passage through archipelagic waters. (Article 52[1},
UNCLOS)
 Q: May the right of innocent passage be suspended in
some areas of its archipelagic waters?
A: Yes. But such suspension must be:
1. Without discrimination in form or in fact among
foreign ships;
2. Essential for the protection of its security; and
3. Shall take effect only after having been duly
published. (Article 52[2], UNCLOS) (UST Golden Notes)
(3) Archipelagic Sea Lanes Passage
It is the right of foreign ships and aircraft to have continuous,
expeditious and unobstructed passage in sea lanes and air
routes through or over the archipelagic waters and the
adjacent territorial sea of the archipelagic state, “in transit
between one part of the high seas or an exclusive economic
zone.” All ships and aircraft are entitled to the right of
archipelagic sea lanes passage. (Article 53[1] in relation with
Article 53[3], UNCLOS)
DIMAPILIS
682. What are internal waters?
Internal waters are all waters landwards from the baseline of
the territory (UN Law of the Sea).
Bodies of water within the mass, such as rivers, lakes, canals,
gulfs, bays and straits. (Nachura)
These are waters of lakes, rivers and bays landward of the
baseline of the territorial sea. Waters on the landward side of
the baseline of the territorial sea also form part of the internal
waters of the coastal state. However, in the case of
archipelagic states, waters landward of the baseline other
than those of rivers, bays, and lakes, are archipelagic waters.
(Magallona, 2005; Article 8 [1], UNCLOS)
683. What are the rights of states with respect to their
internal waters?
Sovereignty over these waters is the same in extent as
sovereignty over land, and it is not subject to the right of
innocent passage. However, in Saudi Arabia vs. Aramco, the
arbitrator said that according to international law – ports of
every state must be open to foreign vessels and can only be
cloased when vital interest of the states so requires. But
according to the Nicaragua vs. US, a coastal state may regulate
access to its ports. (Bernas)
684. What is the territorial sea?
The territorial sea is the belt of sea outwards from the
baseline and up to 12 nautical miles beyond. The baseline is
the low-water line along the coast as marked on large scale
charts officially recognized by the coastal state. The width of
the territorial sea is measured from the baseline.
Distinguish briefly but clearly between the territorial sea
and the internal waters of the Philippines.
Territorial water is defined by historic right or treaty limits
while internal water is defined by the archipelago doctrine.
The territorial waters, as defined in the Convention on the
Law of the Sea, has a uniform breadth of 12 miles measured
from the lower water mark of the coast; while the outermost
points of our archipelago which are connected with baselines
and all waters comprised therein are regarded as internal
waters. (2004 Bar Question)
Note:
Importance of the distinction between internal waters
and territorial sea.
In the territorial sea, a foreign State can claim for its ships the
right of innocent passage, whereas in the internal waters of a
State no such right exists. (Salonga & Yap, 1992)
685. Give at least four examples of acts that are not
deemed exercise of “innocent passage” under the
UNCLOS.
Innocent passage is passage that is not prejudicial to the
peace, good order or security of the coastal state. Article 19
(2) enumerates acts that are not considered innocent passage
thus:
171 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
2. Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the coastal
State if in the territorial sea it engages in any of the following
activities:
(a) any threat or use of force against the sovereignty,
territorial integrity or political independence of the coastal
State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United
Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of
the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or
security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military
device;
(g) the loading or unloading of any commodity, currency or
person contrary to the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this
Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of
communication or any other facilities or installations of the
coastal State;
(l) any other activity not having a direct bearing on passage.
686. What are the rights of a state with respect to its
territorial sea?
The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an
archipelagic State, its archipelagic waters, to an adjacent belt
of sea, described as the territorial sea. (Article 2)
The sovereignty of the coastal state over its territorial sea and
the airspace above it as well as the seabed under is the same
as its sovereignty over the land territory.
687. What is the exclusive economic zone?
It gives the coastal State sovereign rights over all economic
resources of the sea, sea‐bed and subsoil in an area extending
not more than 200 nautical miles beyond the baseline from
which the territorial sea is measured. (Magallona, 2005;
Articles 55 & 57, UNCLOS))
Article55: Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent
to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of
other States are governed by the relevant provisions of this
Convention.
Article57 Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond
200 nautical miles from the baselines from which the breadth
of the territorial sea is measured.
688. What are the rights of a state with respect to its
exclusive economic zone?
Article56 Rights, jurisdiction and duties of the coastal State in
the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources,
whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration
of the zone, such as the production of energy from the water,
currents and winds;
(b) jurisdiction as provided for in the relevant provisions of
this Convention with regard to:
(i) the establishment and use of artificial islands, installations
and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine
environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State
shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of
this Convention.
3. The rights set out in this article with respect to the seabed
and subsoil shall be exercised in accordance with Part VI.
689. What is a continental shelf?
Article76 Definition of the continental shelf
1. The continental shelf of a coastal State comprises the
seabed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural prolongation
of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin
does not extend up to that distance.
The continental shelf refers to:
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a. The seabed and the subsoil of the submarine areas
adjacent to the coastal state but outside the
territorial sea, to a depth of two hundred meters or
beyond that limit, to where the depth allows
exploitation, and
b. The seabed and subsoil of areas adjacent to islands
690. What are the rights of a state with respect to its
continental shelf?
The coastal state has the right to explore and exploit its
natural resources, to erect installations needed and to erect a
safety zone over its installations with a radius of 500 meters.
The right does not affect the right of navigation of others.
Moreover the right does not extend to non-resource material
in the shelf area such as wrecked ship and their cargoes.
Article77 Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and exploiting
its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the
sense that if the coastal State does not explore the continental
shelf or exploit its natural resources, no one may undertake
these activities without the express consent of the coastal
State.
3. The rights of the coastal State over the continental shelf do
not depend on occupation, effective or notional, or on any
express proclamation.
4. The natural resources referred to in this Part consist of the
mineral and other non-living resources of the seabed and
subsoil together with living organisms belonging to sedentary
species, that is to say, organisms which, at the harvestable
stage, either are immobile on or under the seabed or are
unable to move except in constant physical contact with the
seabed or the subsoil.
691. What is the extended continental shelf?
It is that portion of the continental shelf that lies beyond the
200 nautical miles limit in the juridical/legal continental
Shelf.
692. What are the rights of a state with respect to its
extended continental shelf?
The state has the exclusive right to explore and exploit
mineral and non-living resources of the extended continental
shelf.
693. What is the hot pursuit doctrine?
Art. 111 allows the hot pursuit of a vessel where there is good
reason to believe that the ship has violated laws or
regulations of coastal state. The pursuit must commence
when the foreign vessel is within the internal waters, the
archipelagic waters, the territorial waters of the contiguous
zone of the pursuing state. It may continue to the high seas if
the pursuit has not been interrupted. If the foreign ship is in
the contiguous zone, it may be pursued only for violations of
the rights of the coastal state in the contiguous zone.
Mutatis mutandis, the right of hot pursuit shall also apply to
violations of applicable laws and regulations of the coastal
state in the EEZ or the continental shelf including the safety
zones of the shelf.
Hot pursuit must stop as soon as the ship pursued enters the
territorial waters if its own state or of a third state.
Hot pursuit may be carries out only by warships or military
aircraft or any other ship or aircraft properly marked for that
purpose.
Its elements are the following:
The pursuit must be commenced when the ship is
within the internal waters, territorial sea or the contiguous
zone of the pursuing State, and may only be continued outside
if the pursuit has not been interrupted
2. It is continuous and unabated
3. Pursuit conducted by a warship, military aircraft,
or government ships authorized to that effect.
694. Tribunal of the Law of the Sea
International Tribunal of the Law of the Sea (ITLoS)
It is an independent judicial body established by the Third
United Nations Convention on the Law of the Seato adjudicate
disputes arising out of the interpretation and application of
the Convention. It was established after Ambassador Arvido
Pardo Malta addressed the General Assembly of the United
Nations and called for “an effective international regime over
the seabed and ocean floor beyond a clearly defined national
jurisdiction”. Its seat is in Hamburg, Germany.
Its jurisdiction comprises all disputes and all applications
submitted to it and all matters specifically provided for in any
other agreement which confers jurisdiction to the Tribunal.
695. When and how does the Tribunal of the Law of
the Sea acquire jurisdiction over a dispute?
Its jurisdiction comprises all disputes and all applications
submitted to it and all matters specifically provided for in any
other agreement which confers jurisdiction to the Tribunal.
696. What is the doctrine of state responsibility?
A State may be held responsible for an international
delinquency directly or indirectly imputable to it which
causes injury to the national of another State. Liability will
attach to the State where its treatment of the alien falls below
the international standard of justice or where it is remiss in
according him the protection or redress that is warranted by
the circumstances.
Requisites for the enforcement of the doctrine of State
Responsibility:
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1. The injured alien must first exhaust all local remedies; and
2. He must be represented in the international claim for
damages by his own State
Elements:
1. The elements of the internationally wrongful act
2. Attributability of the wrongful act to the state
3. Enforcement of the obligation that arises from the
wrongful act.
697. What are the peaceful means of settling
international disputes?
Peaceful Settling of Dispute, UN Charter
Article 33
1. The parties to any dispute, the continuance of which
is likely to endanger the maintenance of
international peace and security, shall, first of all,
seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful
means of their own choice.
2. The Security Council shall, when it deems necessary,
call upon the parties to settle their dispute by such
means.
Article 36
1. The Security Council may, at any stage of a dispute of
the nature referred to in Article 33 or of a situation
of like nature, recommend appropriate procedures
or methods of adjustment.
2. The Security Council should take into consideration
any procedures for the settlement of the dispute
which have already been adopted by the parties.
3. In making recommendations under this Article the
Security Council should also take into consideration
that legal disputes should as a general rule be
referred by the parties to the International Court of
Justice in accordance with the provisions of the
Statute of the Court.
Article 37
1. Should the parties to a dispute of the nature referred
to in Article 33 fail to settle it by the means indicated
in that Article, they shall refer it to the Security
Council.
2. If the Security Council deems that the continuance of
the dispute is in fact likely to endanger the
maintenance of international peace and security, it
shall decide whether to take action under Article 36
or to recommend such terms of settlement as it may
consider appropriate.
Article 38
Without prejudice to the provisions of Articles 33 to 37, the
Security Council may, if all the parties to any dispute so
request, make recommendations to the parties with a view to
a pacific settlement of the dispute.
The peaceful means of settling dispute mentioned in the
Charter may be classified into:
1. non-judicial methods (negotiation, enquiry,
mediation, conciliation);
2. quasi-judicial method (arbitration)
3. judicial method.
698. What is the jurisdiction of the ICJ in contentious
jurisdiction?
Article 36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions
in force.
2. The states parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the
breach of an international obligation.
3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of
several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-
General of the United Nations, who shall transmit copies
thereof to the parties to the Statute and to the Registrar of the
Court.
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of
the International Court of Justice for the period which they
still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the
Court.
Note: Jurisdiction of the ICJ is applicable only to disputes
between the states and disputes are settled by international
law and not domestic law. But the Court has jurisdiction only
when a case is referred to it by the parties.
699. When may the ICJ issue advisory opinions?
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Article 65
1. The Court may give an advisory opinion on any legal
question at the request of whatever body may be authorized
by or in accordance with the Charter of the United Nations to
make such a request.
2. Questions upon which the advisory opinion of the Court is
asked shall be laid before the Court by means of a written
request containing an exact statement of the question upon
which an opinion is required, and accompanied by all
documents likely to throw light upon the question.
700. How binding are decisions of the ICJ?
The decision of the ICJ is only binding between the parties.
ARTICLE 59
The decision of the Court has no binding force except between
the parties and in respect of that particular case.
701. State the rights protected under the Universal
Declaration of Human Rights
The Universal Declaration of Human Rights
Article 1. All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.
Article 2. Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis
of the political, jurisdictional or international status of the
country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other
limitation of sovereignty.
Article 3. Everyone has the right to life, liberty and security of
person.
Article 4. No one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms.
Article 5. No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
Article 6 Everyone has the right to recognition everywhere as
a person before the law.
Article 7. All are equal before the law and are entitled without
any discrimination to equal protection of the law. All are
entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to
such discrimination.
Article 8. Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.
Article 9. No one shall be subjected to arbitrary arrest,
detention or exile.

Article 10. Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in
the determination of his rights and obligations and of any
criminal charge against him.
Article 11.
(1) Everyone charged with a penal offence has the right to be
presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary
for his defence.
(2) No one shall be held guilty of any penal offence on account
of any act or omission which did not constitute a penal
offence, under national or international law, at the time when
it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence
was committed.
Article 12. No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or
attacks.
Article 13.
(1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his
own, and to return to his country.
Article 14.
(1) Everyone has the right to seek and to enjoy in other
countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts
contrary to the purposes and principles of the United Nations.
Article 15.
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.
Article 16.
(1) Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to
marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full
consent of the intending spouses.
(3) The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
Article 17.
(1) Everyone has the right to own property alone as well as in
association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest
his religion or belief in teaching, practice, worship and
observance.
Article 19. Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions
175 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
without interference and to seek, receive and impart
information and ideas through any media and regardless of
frontiers.
Article 20.
(1) Everyone has the right to freedom of peaceful assembly
and association.
(2) No one may be compelled to belong to an association.
Article 21.
(1) Everyone has the right to take part in the government of
his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in
his country.
(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free
voting procedures.
Article 22. Everyone, as a member of society, has the right to
social security and is entitled to realization, through national
effort and international co-operation and in accordance with
the organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the
free development of his personality.
Article 23.
(1) Everyone has the right to work, to free choice of
employment, to just and favourable conditions of work and to
protection against unemployment.
(2) Everyone, without any discrimination, has the right to
equal pay for equal work.
(3) Everyone who works has the right to just and favourable
remuneration ensuring for himself and his family an existence
worthy of human dignity, and supplemented, if necessary, by
other means of social protection.
(4) Everyone has the right to form and to join trade unions for
the protection of his interests.
Article 24.
Everyone has the right to rest and leisure, including
reasonable limitation of working hours and periodic holidays
with pay.
Article 25.
(1) Everyone has the right to a standard of living adequate
for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and
necessary social services, and the right to security in the event
of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock,
shall enjoy the same social protection.
Article 26.
(1) Everyone has the right to education. Education shall be
free, at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and
professional education shall be made generally available and
higher education shall be equally accessible to all on the basis
of merit.
(2) Education shall be directed to the full development of the
human personality and to the strengthening of respect for
human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations,
racial or religious groups, and shall further the activities of
the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education
that shall be given to their children.
Article 27.
(1) Everyone has the right freely to participate in the cultural
life of the community, to enjoy the arts and to share in
scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or
artistic production of which he is the author.
Article 28. Everyone is entitled to a social and international
order in which the rights and freedoms set forth in this
Declaration can be fully realized.
Article 29.
(1) Everyone has duties to the community in which alone the
free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall
be subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general
welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised
contrary to the purposes and principles of the United Nations.
Article 30. Nothing in this Declaration may be interpreted as
implying for any State, group or person any right to engage in
any activity or to perform any act aimed at the destruction of
any of the rights and freedoms set forth herein.
702. State the rights protected under the
International Covenant on Civil and Political Rights
(ICCPR)
1. Right to self‐determination
2. Right to an effective remedy
3. Equal right of men and women to the enjoyment of all the
civil and political rights
4. Right to life
5. Not to be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, freedom
from medical or scientific experimentation except with his
consent
6. Freedom from slavery and servitude
7. Right to liberty and security of person
8. Right to be treated with humanity and with respect for
the inherent dignity of the human person
9. No imprisonment on the ground of inability to fulfill a
contractual obligation
10. Right to liberty of movement and freedom to choose his
residence
11. Right to a fair and public hearing by a competent,
independent and impartial tribunal established by law
12. No one shall be held guilty of an criminal offense on
account of any act or omission which did not constitute a
criminal office, under national or international law, at the
time when it was committed
13. Right to recognition everywhere as a person before the
law
14. Right to privacy
15. Right to freedom of thought, conscience and religion
176 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
16. Right to freedom of expressions
17. Right of peaceful assembly
18. Right of freedom of association
19. Right to marry and to found a family
20. Right to such measures of protection as are required by
his status as a minor, name and nationality
21. Right to participation, suffrage and access to public
service
22. Right to equal protection of the law
23. Right of minorities to enjoy their own culture, to profess
and practice their religion and to use their own language.
703. State the rights protected under the
International Covenant on Economic, Social and Cultural
Rights (ICESCR)
Right to:
1. Self‐determination
2. Work and accompanying rights
3. Social Security and other Social rights
4. Adequate Standards of living
5. Physical and Mental Health
6. Education
7. Take part in cultural life
8. Enjoy the benefits of scientific progress and applications
704. International armed conflicts
Differentiate between an armed conflict contemplated under
the IHL and under R.A. 9851?
1.“All cases of declared war or any other armed conflict which
may arise between two or more of the Highest contracting
parties, even if the State of war is not recognized by one of
them” (Article 2, Geneva convention of 1949). It also applies
to armed conflict between the government and a rebel or
insurgent movement (Article 3, Geneva convention of 1949).
2. Under R.A. 9851, it is any use of force or armed violence
between States or a protracted armed violence between
governmental authorities and organized groups or between
such groups within a State provided that it gives rise or may
give rise to a situation to which the Geneva Conventions of 12
August 1949 including their common Article 3, apply.
Instances that are not covered by an armed conflict:
It does not include internal disturbances or tensions such as:
1. Riots
2. Isolated and sporadic acts of violence
3. Other acts of a similar nature
705. Internal or non-international Armed Conflict
A non-international (or "internal") armed conflict refers to a
situation of violence involving protracted armed
confrontations between government forces and one or more
organized armed groups, or between such groups themselves,
arising on the territory of a State.
In contrast to an international armed conflict, which opposes
the armed forces of States, in a non-international armed
conflict at least one of the two opposing sides is a non-State
armed group.
When does IHL apply in terms of non‐international
armed conflicts?
A: Humanitarian law is intended for the armed forces,
whether regular or not, taking part in the conflict, and
protects every individual or category of individuals not or no
longer actively involved in the hostilities. E.g.: wounded or
sick fighters; people deprived of their freedom as a result of
the conflict; civilian population; medical and religious
personnel.
Each Party to a conflict shall be bound to apply to the
following provisions:
1. Persons taking no active part in the hostilities, including
armed forces who have laid down their arms and those placed
hors de combat be treated humanely, without any adverse
distinction founded on race, color, religion or faith, sex, birth
or wealth, or any other similar criteria. To these end, the
following acts are and shall remain prohibited at any time and
any place whatsoever with respect to the abovementioned
persons:
a. Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture
b. Taking of hostages
c. Outrages against personal dignity, in particular humiliating
and degrading treatment
d. The passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
706. War of National Liberation
These are armed conflicts in which people are fighting against
colonial domination and alien occupation and against racist
regimes in the exercise of their right to self determination.
[Article 1(4), Protocol I] These are sometimes called
insurgencies, rebellions or wars of independence.
707. Core international obligations of states in
International Humanitarian Law
Essential rules of IHL:
1. The parties to a conflict must at all times distinguish
between the civilian population and combatants
2. Neither the civilian population as a whole nor individual
civilians may be attacked
3. Attacks may be made sole against military objectives
4. People who do not or can no longer take part in the
hostilities are entitled to respect for their lives and for their
physical and mental integrity and must be treated with
humanity, without any unfavorable distinction whatever.
5. It is forbidden to kill or wound an adversary who
surrenders or who can no longer take part in the fighting
6. Neither the parties to the conflict nor members of their
armed forces have an unlimited right to choose methods and
means of warfare
7. It is forbidden to use weapons or methods of warfare that
are likely to cause unnecessary losses and excessive suffering.
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8. The wounded and sick must be collected and cared for by
the party to the conflict which has them in its power.
9. Medical personnel and medical establishments, transports
and equipment must be spared. The red cross or red crescent
is the distinctive sign indicating that such persons and objects
must be respected
10. Captured combatants and civilians who find themselves
under the authority of the adverse party are entitled to
respect for their lives, their dignity, their personal rights and
their political, religious and other convictions and must be
protected against all acts of violence or reprisals; entitled to
exchange of news with their families and receive aid and
enjoy basic judicial guarantees.
708. Treatment of Civilians
In cases not covered by other international agreements,
civilians and combatants remain under the protection and
authority of the principles of international law derived from
established custom, from the principles of humanity and from
the dictates of public conscience.
709. Prisoners of War
Convention (III) relative to the Treatment of Prisoners of
War. Geneva, 12 August 1949. Art 4.
A. Prisoners of war, in the sense of the present Convention,
are persons belonging to one of the following categories, who
have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as
well as members of militias or volunteer corps forming part of
such armed forces.
(2) Members of other militias and members of other
volunteer corps, including those of organized resistance
movements, belonging to a Party to the conflict and operating
in or outside their own territory, even if this territory is
occupied, provided that such militias or volunteer corps,
including such organized resistance movements, fulfil the
following conditions:
(a) that of being commanded by a person responsible for his
subordinates;
(b) that of having a fixed distinctive sign recognizable at a
distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the
laws and customs of war.
(3) Members of regular armed forces who profess allegiance
to a government or an authority not recognized by the
Detaining Power.
(4) Persons who accompany the armed forces without
actually being members thereof, such as civilian members of
military aircraft crews, war correspondents, supply
contractors, members of labour units or of services
responsible for the welfare of the armed forces, provided that
they have received authorization, from the armed forces
which they accompany, who shall provide them for that
purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and
apprentices, of the merchant marine and the crews of civil
aircraft of the Parties to the conflict, who do not benefit by
more favourable treatment under any other provisions of
international law.
(6) Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to resist
the invading forces, without having had time to form
themselves into regular armed units, provided they carry
arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war
under the present Convention:
(1) Persons belonging, or having belonged, to the armed
forces of the occupied country, if the occupying Power
considers it necessary by reason of such allegiance to intern
them, even though it has originally liberated them while
hostilities were going on outside the territory it occupies, in
particular where such persons have made an unsuccessful
attempt to rejoin the armed forces to which they belong and
which are engaged in combat, or where they fail to comply
with a summons made to them with a view to internment.
(2) The persons belonging to one of the categories
enumerated in the present Article, who have been received by
neutral or non-belligerent Powers on their territory and
whom these Powers are required to intern under
international law, without prejudice to any more favourable
treatment which these Powers may choose to give and with
the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67,
92, 126 and, where diplomatic relations exist between the
Parties to the conflict and the neutral or non-belligerent
Power concerned, those Articles concerning the Protecting
Power. Where such diplomatic relations exist, the Parties to a
conflict on whom these persons depend shall be allowed to
perform towards them the functions of a Protecting Power as
provided in the present Convention, without prejudice to the
functions which these Parties normally exercise in conformity
with diplomatic and consular usage and treaties.
Where its independence and integrity are guaranteed by an
international convention on the condition that such State
obligates itself to never take up arms against any other State,
except for self‐defense, or enter into such international
obligations as would indirectly involve a war.
Note: A State seeks neutralization where it is weak and does
not wish to take active part in international politics. The
power that guarantees its neutralization may be motivated
either by balance of power considerations or by desire to
make the State a buffer between the territories of the great
powers.
Rights and duties of a neutral State:
1. Abstain from taking part in the hostilities and from giving
assistance to either belligerent;
2. Prevent its territory and other resources from being used in
the conduct of hostilities(Right of territorial Integrity); and
3. Acquiesce in certain restrictions and limitations the
belligerents may find necessary to impose.
4. To continue diplomatic relations with other neutral states
and with the belligerents (Right of diplomatic
communications).
Obligations of belligerents:
1. Respect the status of the neutral State;
2. Avoid any act that will directly or indirectly involve it in
their conflict and to submit to any lawful measure it may take
to maintain or protect its neutrality.
Restraints on neutral States:
1. Blockade
2. Contraband of war
3. Free ships make free goods
711. Distinguish the jurisdictions of the International
Court of Justice and the International Criminal Court.

C. This Article shall in no way affect the status of medical International Criminal International Court of
personnel and chaplains as provided for in Article 33 of the Court Justice
present Convention. As to what created each
Rome Statute UN Charter
Rights and privileges of prisoners of war: As to jurisdiction
Has criminal jurisdiction to Does not have criminal
1. They must be treated humanely, shall not be subjected to prosecute individuals jurisdiction to prosecute
physical or mental torture, shall be allowed to communicate individuals
with their families, and may receive food, clothing, As to parties
educational and religious articles. Individuals States
As to independence
2. They may not be forced to reveal military data except the The ICC is independent of the The ICJ is the principal
name, rank, serial number, army and regimental number and UN judicial organ of the UN
date of birth; they may not be compelled to work for military
services
The ICC is an independent judicial institution created by the
treaty known as Rome Statute with the power to try and
3. All their personal belonging except their arms and military
punish individuals for the most serious crimes of
papers remain their property.
international concern:
1. Genocide
710. Law on Neutrality
2. Crimes against humanity
3. Crimes of aggression, and
It is non‐participation, directly or indirectly, in a war between
4. War crimes.
contending belligerents. This exists only during war time and
is governed by the law of nations. Examples of these states are
712. May the International Criminal Court acquire
Switzerland, Sweden, The Vatican City, Costa Rica.
jurisdiction over the person of the Head of State of a
signatory State?
When is a State considered as a neutralized State?

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Yes. The court may hold accountable any person aged 18 or
older at the time of the crime without regard to the
individual’s official duties or functions. Therefore, heads of
State, legislators, and other high‐ranking government officials
are not exempt from criminal responsibility.
Rome Statute:
Article 27 Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any
distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a
government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and
of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to
the official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its
jurisdiction over such a person.
713. Under the ICJ Statute, may a superior officer be
held responsible for the crimes committed by forces
under his command? Briefly explain
Article 28 Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under
this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a
military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control, or
effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such
forces, where:
(i) That military commander or person either knew or, owing
to the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power
to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and
prosecution.
(b) With respect to superior and subordinate relationships
not described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective
authority and control, as a result of his or her failure to
exercise control properly over such subordinates, where: (i)
The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates
were committing or about to commit such crimes; (ii) The
crimes concerned activities that were within the effective
responsibility and control of the superior; and (iii) The
superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their
commission or to submit the matter to the competent
authorities for investigation and prosecution.
179 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
714. International Environment Law: Give at least
seven basic principles of international environmental law
and briefly explain each.
Rio Declaration on Environment and Development
Principle 1 Human beings are at the centre of concerns for
sustainable development. They are entitled to a healthy and
productive life in harmony with nature.
Principle 2 States have, in accordance with the Charter of the
United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the
responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of
national jurisdiction.
Principle 3 The right to development must be fulfilled so as to
equitably meet developmental and environmental needs of
present and future generations.
Principle 4 In order to achieve sustainable development,
environmental protection shall constitute an integral part of
the development process and cannot be considered in
isolation from it.
Principle 5 All States and all people shall cooperate in the
essential task of eradicating poverty as an indispensable
requirement for sustainable development, in order to
decrease the disparities in standards of living and better meet
the needs of the majority of the people of the world.
Principle 6 The special situation and needs of developing
countries, particularly the least developed and those most
environmentally vulnerable, shall be given special priority.
International actions in the field of environment and
development should also address the interests and needs of
all countries.
Principle 7 States shall cooperate in a spirit of global
partnership to conserve, protect and restore the health and
integrity of the Earth's ecosystem. In view of the different
contributions to global environmental degradation, States
have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they
bear in the international pursuit to sustainable development
in view of the pressures their societies place on the global
environment and of the technologies and financial resources
they command.
Principle 8 To achieve sustainable development and a higher
quality of life for all people, States should reduce and
eliminate unsustainable patterns of production and
consumption and promote appropriate demographic policies.
Principle 9 States should cooperate to strengthen endogenous
capacity-building for sustainable development by improving
scientific understanding through exchanges of scientific and
technological knowledge, and by enhancing the development,
adaptation, diffusion and transfer of technologies, including
new and innovative technologies.
Principle 10 Environmental issues are best handled with
participation of all concerned citizens, at the relevant level. At
the national level, each individual shall have appropriate
access to information concerning the environment that is held
by public authorities, including information on hazardous
materials and activities in their communities, and the
opportunity to participate in decision-making processes.
States shall facilitate and encourage public awareness and
participation by making information widely available.
Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided.
Principle 11 States shall enact effective environmental
legislation. Environmental standards, management objectives
and priorities should reflect the environmental and
development context to which they apply. Standards applied
by some countries may be inappropriate and of unwarranted
economic and social cost to other countries, in particular
developing countries.
Principle 12 States should cooperate to promote a supportive
and open international economic system that would lead to
economic growth and sustainable development in all
countries, to better address the problems of environmental
degradation. Trade policy measures for environmental
purposes should not constitute a means of arbitrary or
unjustifiable discrimination or a disguised restriction on
international trade.
Unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be
avoided. Environmental measures addressing transboundary
or global environmental problems should, as far as possible,
be based on an international consensus.
Principle 13 States shall develop national law regarding
liability and compensation for the victims of pollution and
other environmental damage. States shall also cooperate in an
expeditious and more determined manner to develop further
international law regarding liability and compensation for
adverse effects of environmental damage caused by activities
within their jurisdiction or control to areas beyond their
jurisdiction.
Principle 14 States should effectively cooperate to discourage
or prevent the relocation and transfer to other States of any
activities and substances that cause severe environmental
degradation or are found to be harmful to human health.
Principle 15 precautionary principle
In order to protect the environment, the precautionary
approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent
environmental degradation.
Principle 16 Polluter Pays Principle
National authorities should endeavour to promote the
internalization of environmental costs and the use of
economic instruments, taking into account the approach that
the polluter should, in principle, bear the cost of pollution,
with due regard to the public interest and without distorting
international trade and investment.
180 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
Principle 17 Environmental impact assessment, as a national
instrument, shall be undertaken for proposed activities that
are likely to have a significant adverse impact on the
environment and are subject to a decision of a competent
national authority.
Principle 18 States shall immediately notify other States of
any natural disasters or other emergencies that are likely to
produce sudden harmful effects on the environment of those
States. Every effort shall be made by the international
community to help States so afflicted.
Principle 19 States shall provide prior and timely notification
and relevant information to potentially affected States on
activities that may have a significant adverse transboundary
environmental effect and shall consult with those States at an
early stage and in good faith.
Principle 20 Women have a vital role in environmental
management and development. Their full participation is
therefore essential to achieve sustainable development.
Principle 21 The creativity, ideals and courage of the youth of
the world should be mobilized to forge a global partnership in
order to achieve sustainable development and ensure a better
future for all.
Principle 22 Indigenous people and their communities and
other local communities have a vital role in environmental
management and development because of their knowledge
and traditional practices. States should recognize and duly
support their identity, culture and interests and enable their
effective participation in the achievement of sustainable
development.
Principle 23 The environment and natural resources of people
under oppression, domination and occupation shall be
protected.
Principle 24 Warfare is inherently destructive of sustainable
development. States shall therefore respect international law
providing protection for the environment in times of armed
conflict and cooperate in its further development, as
necessary.
Principle 25 Peace, development and environmental
protection are interdependent and indivisible.
Principle 26 States shall resolve all their environmental
disputes peacefully and by appropriate means in accordance
with the Charter of the United Nations.
Principle 27 States and people shall cooperate in good faith
and in a spirit of partnership in the fulfilment of the principles
embodied in this Declaration and in the further development
of international law in the field of sustainable development.
715. Principle 21 of Stockholm Declaration
The Stockholm Declaration, or the Declaration of the United
Nations Conference on the Human Environment, was adopted
on June 16, 1972 in Stockholm, Sweden. It contains 26
principles and 109 recommendations regarding the
preservation and enhancement of the right to a healthy
environment.
Principle 21 of the Stockholm Declaration declares that
States have:
1. The sovereign right to exploit their own resources pursuant
to their own environmental policies, and
2. The responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of
national jurisdiction.
Is Principle 21 of the Stockholm Declaration a part of
customary law?
Yes. The Court recognizes that the environment is daily under
threat and that the use of nuclear weapons could constitute a
catastrophe for the environment. The court also recognizes
that the environment is not an abstraction but represents the
living space, the quality of life and the very human beings,
including generations unborn. The existence of the general
obligation of States to ensure that activities within their
jurisdiction and control respect the environment of other
States or of areas beyond national control is now part of the
corpus of international law relating to the environment.
(Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, July 8, 1996). The Court has also no
difficulty in acknowledging that the concerns expressed by
Hungaray for its natural environment in the region affected
by the Gabcikovo‐Nagyamaros Project related to an “essential
interes” of the State, within the meaning given to that
expression in Article 33 of the Draft of the International Law
Commission. (Case Concerning the Gabcikovo‐Nagyamaros
Project, September 25, 1997)
716. What is the Madrid system for international
registration of trademarks? What is the Madrid protocol?
The Madrid System is a one stop solution for registering and
managing marks worldwide.
The Protocol Relating to the Madrid Agreement Concerning
the International Registration of Marks -- the Madrid Protocol
-- is one of two treaties comprising the Madrid System for
international registration of trademarks. The protocol is a
filing treaty and not a substantive harmonization treaty. It
provides a cost-effective and efficient way for trademark
holders -- individuals and businesses -- to ensure protection
for their marks in multiple countries through the filing of one
application with a single office, in one language, with one set
of fees, in one currency. Moreover, no local agent is needed to
file the application. While an International Registration may
be issued, it remains the right of each country or contracting
party designated for protection to determine whether or not
protection for a mark may be granted. Once the trademark
office in a designated country grants protection, the mark is
protected in that country just as if that office had registered it.
The Madrid Protocol also simplifies the subsequent
management of the mark, since a simple, single procedural
step serves to record subsequent changes in ownership or in
the name or address of the holder with World Intellectual
Property Organization's International Bureau. The
International Bureau administers the Madrid System and
181 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
coordinates the transmittal of requests for protection,
renewals and other relevant documentation to all members.
717. What is the importance of the Paris Convention
on the Protection of Industrial Property?
The Paris Convention applies to industrial property in the
widest sense, including patents, trademarks, industrial
designs, utility models (a kind of "small-scale patent"
provided for by the laws of some countries), service marks,
trade names (designations under which an industrial or
commercial activity is carried out), geographical indications
(indications of source and appellations of origin) and the
repression of unfair competition.
The substantive provisions of the Convention fall into three
main categories: national treatment, right of priority, common
rules.
(1) Under the provisions on national treatment, the
Convention provides that, as regards the protection of
industrial property, each Contracting State must grant
the same protection to nationals of other Contracting States
that it grants to its own nationals. Nationals of non-
Contracting States are also entitled to national treatment
under the Convention if they are domiciled or have a real and
effective industrial or commercial establishment in a
Contracting State.
(2) The Convention provides for the right of priority in the
case of patents (and utility models where they exist), marks
and industrial designs. This right means that, on the basis of a
regular first application filed in one of the Contracting States,
the applicant may, within a certain period of time (12 months
for patents and utility models; 6 months for industrial designs
and marks), apply for protection in any of the other
Contracting States. These subsequent applications will be
regarded as if they had been filed on the same day as the first
application. In other words, they will have priority (hence the
expression "right of priority") over applications filed by
others during the said period of time for the same invention,
utility model, mark or industrial design. Moreover, these
subsequent applications, being based on the first application,
will not be affected by any event that takes place in the
interval, such as the publication of an invention or the sale of
articles bearing a mark or incorporating an industrial design.
One of the great practical advantages of this provision is that
applicants seeking protection in several countries are not
required to present all of their applications at the same time
but have 6 or 12 months to decide in which countries they
wish to seek protection, and to organize with due care the
steps necessary for securing protection.
(3) The Convention lays down a few common rules that all
Contracting States must follow. The most important are:
(a) Patents. Patents granted in different Contracting States
for the same invention are independent of each other: the
granting of a patent in one Contracting State does not oblige
other Contracting States to grant a patent; a patent cannot be
refused, annulled or terminated in any Contracting State on
the ground that it has been refused or annulled or has
terminated in any other Contracting State.
The inventor has the right to be named as such in the
patent.
The grant of a patent may not be refused, and a patent may
not be invalidated, on the ground that the sale of the patented
product, or of a product obtained by means of the patented
process, is subject to restrictions or limitations resulting from
the domestic law.
Each Contracting State that takes legislative measures
providing for the grant of compulsory licenses to prevent the
abuses which might result from the exclusive rights conferred
by a patent may do so only undercertain conditions. A
compulsory license (a license not granted by the owner of the
patent but by a public authority of the State concerned), based
on failure to work or insufficient working of the patented
invention, may only be granted pursuant to a request filed
after three years from the grant of the patent or four years
from the filing date of the patent application, and it must be
refused if the patentee gives legitimate reasons to justify this
inaction. Furthermore, forfeiture of a patent may not be
provided for, except in cases where the grant of a compulsory
license would not have been sufficient to prevent the abuse.
In the latter case, proceedings for forfeiture of a patent may
be instituted, but only after the expiration of two years from
the grant of the first compulsory license.
(b) Marks. The Paris Convention does not regulate the
conditions for the filing and registration of marks which
are determined in each Contracting State by domestic law.
Consequently, no application for the registration of a mark
filed by a national of a Contracting State may be refused, nor
may a registration be invalidated, on the ground that filing,
registration or renewal has not been effected in the country
of origin. The registration of a mark obtained in one
Contracting State is independent of its possible registration
in any other country, including the country of origin;
consequently, the lapse or annulment of the registration of a
mark in one Contracting State will not affect the validity of the
registration in other Contracting States.
Where a mark has been duly registered in the country of
origin, it must, on request, be accepted for filing and
protected in its original form in the other Contracting States.
Nevertheless, registration may be refused in well-defined
cases, such as where the mark would infringe the acquired
rights of third parties; where it is devoid of distinctive
character; where it is contrary to morality or public order; or
where it is of such a nature as to be liable to deceive the
public.
If, in any Contracting State, the use of a registered mark is
compulsory, the registration cannot be canceled for non-use
until after a reasonable period, and then only if the owner
cannot justify this inaction.
Each Contracting State must refuse registration and prohibit
the use of marks that constitute a reproduction, imitation or
translation, liable to create confusion, of a mark used for
182 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER
identical and similar goods and considered by the competent
authority of that State to be well known in that State and to
already belong to a person entitled to the benefits of the
Convention.
Each Contracting State must likewise refuse registration and
prohibit the use of marks that consist of or contain, without
authorization, armorial bearings, State emblems and official
signs and hallmarks of Contracting States, provided they have
been communicated through the International Bureau of
WIPO. The same provisions apply to armorial bearings, flags,
other emblems, abbreviations and names of certain
intergovernmental organizations.
Collective marks must be granted protection.
(c) Industrial Designs. Industrial designs must be protected
in each Contracting State, and protection may not be forfeited
on the ground that articles incorporating the design are not
manufactured in that State.
(d) Trade Names. Protection must be granted to trade names
in each Contracting State without there being an obligation to
file or register the names.
(e) Indications of Source. Measures must be taken by each
Contracting State against direct or indirect use of a false
indication of the source of goods or the identity of their
producer, manufacturer or trader.
(f) Unfair competition. Each Contracting State must provide
for effective protection against unfair competition.
Baka lang maitanong sa Bar haha:
Distinguishing between Hard and Soft International Law
A distinction is often made between hard and soft
international law. Hard international law generally refers to
agreements or principles that are directly enforceable by a
national or international body. Soft international law refers to
agreements or principles that are meant to influence
individual nations to respect certain norms or incorporate
them into national law. Soft international law by itself is not
enforceable. It serves to articulate standards widely shared,
or aspired to, by nations.
Similar parallels can be found at the national level. Often an
official, a legislative body, or an agency will announce a new
public policy or priority. In this announcement, or
proclamation, there are often pledges to incorporate this new
policy or priority into specific legal provisions. While the
announcement itself is not enforceable in court, it nonetheless
can have a powerful influence on the development and
implementation of specific legal provisions.
Private international law generally concerns business
transactions between citizens or corporations of different
countries. Because most of the rules governing these private
transactions are enforceable in the courts of the concerned
countries, these rules are usually deemed hard international
law. Most of international environmental law, however,
concerns general principles agreed upon among nations.
Although these principles sometimes oblige countries to
adopt implementing legislation, they are not usually
enforceable on their own in court.

The soft status of international environmental law, and most

international law, is a result of concerns over sovereignty.
Nations are generally reluctant to surrender control over
their territory, peoples, and affairs to external international
authorities. Even when nations have joined in international
agreements, many of them have added reservations to
preserve their right to decline to be bound by particular parts
of the agreement. The exercise of this power weakens the
total effectiveness of many international agreements.

***Culled from the assigned cases; UST Golden Notes; Political

Law Reviewer by Nachura; Introduction to Public International
Law by Bernas; Political Law Reviewer by Suarez; Agunday and
Jenny Notes; Atty. Callanta 2011 Notes

Note: This reviewer was prepared before Atty. Medina’s lecture

and some revisions/corrections after the lecture were not
reflected here.

183 POLITICAL LAW REVIEW/SHIENGLAIASAS REVIEWER