Professional Documents
Culture Documents
iv
F. RIGHT TO BE INFORMED ......................... 179 III. POWERS OF ADMINISTRATIVE AGENCIES
H. RIGHT TO CONFRONTATION ................... 180 .................................................................. 198
I. TRIAL IN ABSENTIA .................................... 181 A. QUASI-LEGISLATIVE (RULE-MAKING)
I.1 WHEN CAN TRIAL IN ABSENTIA BE DONE ... 181 POWER ........................................................ 198
I.2 WHEN PRESENCE OF THE ACCUSED IS A A.1 LEGISLATIVE DELEGATION.........................199
DUTY ................................................................... 181 A.2. LEGISLATIVE RULES AND INTERPRETATIVE
I.3 TRIAL IN ABSENTIA ...................................... 181 RULES, DISTINGUISHED...................................199
XVII. WRIT OF HABEAS CORPUS............... 182 A.3. REQUISITES FOR VALIDITY .......................201
A.4. POWER TO AMEND, REVISE, ALTER OR
XVIII. WRITS OF AMPARO, HABEAS DATA REPEAL RULES................................................. 202
AND KALIKASAN....................................... 184 B. QUASI-JUDICIAL (ADJUDICATORY) POWER
A. WRIT OF AMPARO.................................... 184 ................................................................... 202
A.1 BASIS............................................................ 184 B.1. SOURCE ..................................................... 203
A.2 PETITION FOR WRIT ................................... 184 B.2. DISTINCTIONS FROM JUDICIAL
B. WRIT OF HABEAS DATA ........................... 185 PROCEEDINGS ................................................. 203
B.3. POWERS INCLUDED IN QUASI-JUDICIAL
XIX. SELF-INCRIMINATION CLAUSE ......... 187 FUNCTION ........................................................ 203
A. SCOPE AND COVERAGE .......................... 187 B.4. ADMINISTRATIVE DUE PROCESS ............204
B. APPLICATION........................................... 187 C. FACT-FINDING, INVESTIGATIVE, LICENSING
C. IMMUNITY STATUTES .............................. 188 AND RATE-FIXING POWERS ....................... 208
C.1. ASCERTAINMENT OF FACT ......................208
XX. INVOLUNTARY SERVITUDE AND C.2. INVESTIGATIVE POWERS .........................208
POLITICAL PRISONERS............................. 188 C.3. LICENSING FUNCTION .............................209
C.4. FIXING OF RATES, WAGES, PRICES ........209
XXI. EXCESSIVE FINES AND CRUEL AND
INHUMAN PUNISHMENTS ........................ 189 IV. JUDICIAL RECOURSE AND REVIEW ..... 210
A. DOCTRINE OF PRIMARY ADMINISTRATIVE
XXII. NON-IMPRISONMENT FOR DEBTS.... 191 JURISDICTION .............................................. 211
A.1. WHEN THE DOCTRINE IS INAPPLICABLE: 212
XXIII. DOUBLE JEOPARDY ......................... 192 A.2. EFFECT ....................................................... 212
A. REQUISITES ............................................. 192 B. DOCTRINE OF EXHAUSTION OF
B. MOTIONS FOR RECONSIDERATION AND ADMINISTRATIVE REMEDIES ...................... 213
APPEALS ...................................................... 192 B.1. EXCEPTIONS TO THE DOCTRINE OF
C. DISMISSAL WITH CONSENT OF ACCUSED EXHAUSTION OF REMEDIES: ........................... 213
..................................................................... 193 B.2. EFFECT OF FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES: ..........................214
XXIV. EX POST FACTO AND BILLS OF C. DOCTRINE OF FINALITY OF
ATTAINDER ............................................... 193 ADMINISTRATIVE ACTION ........................... 214
A. EX POST FACTO LAWS ............................. 193
B. BILLS OF ATTAINDER .............................. 194
LOCAL
ADMINISTRATIVE LAW GOVERNMENTS
I. GENERAL PRINCIPLES ........................... 196 I. PUBLIC CORPORATIONS........................ 217
A. DEFINITION.............................................. 196 A. CONCEPT.................................................. 217
B. HISTORICAL CONSIDERATIONS .............. 196 A.1. COMPARISON [MARTIN] ............................ 217
A.2. TEST TO IDENTIFY PUBLIC OR PRIVATE
II. ADMINISTRATIVE AGENCIES ................ 196
CHARACTER ...................................................... 217
A. DEFINITION.............................................. 196
B. CLASSIFICATIONS ................................... 219
B. WHEN IS AN AGENCY ADMINISTRATIVE? 196 B.1. TRADITIONAL (PRE-LOCAL GOV’T CODE)
C. MANNER OF CREATION........................... 197 CLASSIFICATIONS [SINCO]............................... 219
D. KINDS ...................................................... 197
II. MUNICIPAL CORPORATIONS ............... 220
v
A. ELEMENTS .............................................. 220 F.12. FULL DISCLOSURE OF FINANCIAL AND
B. NATURE AND FUNCTION........................ 220 BUSINESS INTERESTS OF SANGGUNIAN
B.1. DUAL NATURE........................................... 220 MEMBERS ......................................................... 239
B.2. DUAL FUNCTIONS .................................... 220
V. LOCAL INITIATIVE AND REFERENDUM 240
C. REQUISITES FOR CREATION, CONVERSION,
A. LOCAL INITIATIVE ................................... 240
DIVISION, MERGER, OR DISSOLUTION ....... 220
A.1. PROCEDURE [SEC. 122, LGC] .....................241
C.1. GENERAL REQUIREMENTS ...................... 220
B. LOCAL REFERENDUM ............................. 241
C.2. SPECIFIC REQUIREMENTS....................... 223
B.1. INITIATIVE V. REFERENDUM .....................241
C.3. OTHER LGUS ............................................. 224
C.4. OTHER MATERIAL CHANGES .................. 225 VI. CORPORATE POWERS ........................ 242
III. PRINCIPLES OF LOCAL AUTONOMY ....226 A. TO SUE AND BE SUED ............................. 243
A. LOCAL AUTONOMY ................................ 226 B. TO ACQUIRE AND SELL PROPERTY (REAL
A.1. DECLARATION OF POLICY ....................... 226 OR PERSONAL) ........................................... 243
B. DECENTRALIZATION V. DEVOLUTION .... 226 C. TO ENTER INTO CONTRACTS .................. 243
C. GENERAL SUPERVISION OVER LOCAL C.1. REQUISITES ............................................... 243
C.2. ULTRA VIRES CONTRACTS ...................... 244
GOVERNMENTS ...........................................227
C.1 PRESIDENT’S POWER OF SUPERVISION ..227 VII. LIABILITY OF LOCAL GOVERNMENT
D. LOCAL FISCAL AUTONOMY .....................227 UNITS ....................................................... 245
D.1. SOURCES OF LGU FUNDS ........................ 228
A. IN CONTRACTS....................................... 245
D.2. INTERNAL REVENUE ALLOTMENTS ....... 228
B. IN TORTS ................................................ 246
E. CONSULTATIONS.................................... 228
C. PERSONAL LIABILITY OF THE PUBLIC
IV. POWERS OF LOCAL GOVERNMENT UNITS OFFICIAL..................................................... 246
..................................................................229 IX. SUCCESSION OF ELECTIVE OFFICIALS 248
A. POLICE POWER (GENERAL WELFARE
A. SUCCESSION IN PERMANENT VACANCIES
CLAUSE)...................................................... 229
................................................................... 248
B. EMINENT DOMAIN .................................. 230 A.1. VACANCY IN THE LOCAL CHIEF EXECUTIVE
C. TAXING POWER ...................................... 232 [SEC. 44, LGC]................................................... 248
C.1. FUNDAMENTAL PRINCIPLES ON TAXATION A.2. PERMANENT VACANCIES IN THE
BY AN LGU ........................................................ 232 SANGGUNIAN [FARIÑAS V. BARBA, G.R. NO.
C.2. WITHDRAWAL OF LOCAL TAX EXEMPTION 116763 (1996); SEC. 45, LGC] ............................ 249
PRIVILEGES ...................................................... 232 A.3. RESIGNATION OF ELECTIVE OFFICIALS . 250
C.3. REAL PROPERTY TAXATION.................... 232 B. SUCCESSION IN TEMPORARY VACANCIES
C.4. OTHER LIMITATIONS ON TAXING POWERS
[SEC. 46, LGC].............................................. 251
OF LGUS ............................................................233
B.1. EXTENT OF DUTY EXERCISED BY
D. RECLASSIFICATION OF LANDS .............. 233 TEMPORARY SUCCESSOR ............................... 251
E. CLOSURE AND OPENING OF ROADS ...... 234 B.2. TERMINATION OF TEMPORARY
F. LEGISLATIVE POWER .............................. 234 INCAPACITY ...................................................... 252
F.1. WHO MAY EXERCISE ................................. 234 B.3. LEAVES OF ABSENCE ............................... 252
F.2. ORDINANCE V. RESOLUTION .................. 234
F.3. PRESIDING OFFICER ................................ 235 X. DISCIPLINE OF LOCAL OFFICIALS........ 252
F.4. INTERNAL RULES OF PROCEDURE ........ 235 A. DISCIPLINE OF ELECTIVE OFFICIALS .......252
F.5. QUORUM ................................................... 236 A.1. GROUNDS FOR DISCIPLINARY ACTION .. 252
F.6. SANGGUNIAN SESSIONS ......................... 236 A.2. JURISDICTION ........................................... 252
F.7 SPECIAL SESSIONS .................................... 236 A.3. GROUNDS FOR DISCIPLINARY ACTION.. 253
F.8. NO SUBPOENA AND CONTEMPT POWERS A.4. REMOVAL AND OTHER SANCTIONS ....... 255
........................................................................... 237
F.9. APPROVAL AND VETO OF ORDINANCES 237 XI. ADMINISTRATIVE APPEAL .................. 256
F.10. PUBLICATION AND EFFECTIVITY OF A. PERIOD FOR APPEAL UNDER THE LGC ..256
ORDINANCES .................................................... 237 B. TO WHOM APPEALABLE:.........................256
F.11. REVIEW OF ORDINANCES/ RESOLUTIONS C. DOCTRINE OF CONDONATION................256
[SEC. 59, LGC] .................................................. 238 D. DISCIPLINE OF APPOINTIVE OFFICIALS .. 257
D.1. DISCIPLINARY AUTHORITY ...................... 257
vi
D.2. PREVENTIVE SUSPENSION OF APPOINTIVE B.2. RESTRICTIONS ON THE POWER OF
OFFICIALS......................................................... 257 CONGRESS TO PRESCRIBE QUALIFICATIONS:
E. RECALL ................................................... 257 ............................................................................277
E.1. REQUISITES ............................................... 257 C. TIME OF POSSESSION OF QUALIFICATIONS
E.2. PROCEDURE ............................................. 258 .................................................................... 277
D. QUALIFICATIONS PRESCRIBED BY THE
XII. TERM LIMITS ...................................... 260
CONSTITUTION ........................................... 278
A. LENGTH OF TERM................................... 260
E. PARTICULAR QUALIFICATIONS ............... 279
A.1. R.A. NO. 9164: SYNCHRONIZED BARANGAY
E.1. RELIGIOUS TEST OR QUALIFICATION IS NOT
AND SANGGUNIANG BARANGAY ELECTIONS
REQUIRED ........................................................ 279
(2002) ............................................................... 260
E.2. QUALIFICATION STANDARDS AND
A.2. R.A. NO. 9006: FAIR ELECTIONS ACT..... 260
REQUIREMENTS UNDER THE CIVIL SERVICE
B. LIMITATION OF CONSECUTIVE TERMS ... 260
LAW ................................................................... 279
B.1. WHAT CONSTITUTES A TERM OF OFFICE
.......................................................................... 260 V. DISABILITIES AND INHIBITIONS OF
PUBLIC OFFICERS ..................................... 281
A. DISQUALIFICATIONS TO HOLD PUBLIC
PUBLIC OFFICERS OFFICE ......................................................... 281
B. CONSTITUTIONAL DISQUALIFI-CATIONS 281
I. GENERAL PRINCIPLES .......................... 264 B.2. SPECIFIC CONSTITUTIONAL
A. CONCEPT AND APPLICATION ................. 264 DISQUALIFICATIONS ....................................... 282
C. CREATION, MODIFICATION AND ABOLITION C. OTHER DISQUALIFICATIONS AND
OF PUBLIC OFFICE ...................................... 266 PROHIBITIONS ............................................282
C.1. CREATION OF PUBLIC OFFICE ................ 266 C.1. IN GENERAL ............................................... 282
D.2. WHO ARE NOT PUBLIC OFFICERS .......... 267 C.2. PROHIBITION ON HOLDING OFFICES IN THE
PRIVATE SECTOR ............................................. 282
II. MODES OF ACQUIRING TITLE TO PUBLIC C.3. PROHIBITION ON NEPOTIC
OFFICE ..................................................... 268 APPOINTMENTS; EXCEPTIONS ....................... 283
III. MODES AND KINDS OF APPOINTMENT VI. POWERS AND DUTIES OF PUBLIC
................................................................. 269 OFFICERS ................................................. 284
A. NATURE AND CHARACTERISTICS OF A. CLASSIFICATION OF POWERS AND DUTIES
APPOINTMENTS ......................................... 269 [DE LEON]................................................... 284
A.1. APPOINTMENT IS A DISCRETIONARY A.1. AS TO NATURE .......................................... 284
POWER. ............................................................ 269 A.2. AS TO THE OBLIGATION OF THE OFFICER
A.3. APPOINTMENT V. DESIGNATION ............. 271 TO PERFORM HIS POWERS AND DUTIES ...... 284
B. CLASSIFICATION OF APPOINTMENTS ..... 271 B. AUTHORITY OF PUBLIC OFFICERS ......... 284
B.1. PERMANENT AND TEMPORARY ............... 271 C. DUTIES OF PUBLIC OFFICERS ................ 285
B.2. PRESIDENTIAL APPOINTMENTS ..............272
C. RULES ON ACCEPTANCE AND REVOCATION VII. RIGHTS OF PUBLIC OFFICERS ........... 286
.................................................................... 275 VIII. LIABILITIES OF PUBLIC OFFICERS..... 289
C.1. FOUR ELEMENTS OF A VALID, EFFECTIVE,
A. IN GENERAL ........................................... 289
AND COMPLETED APPOINTMENT ................. 275
B. THREE-FOLD RESPONSIBILITY OF PUBLIC
C.2. RULE ON ACCEPTANCE ........................... 276
C.3. IRREVOCABILITY OF A VALID, EFFECTIVE, OFFICERS ................................................... 289
AND COMPLETED APPOINTMENT ................. 276 B.1.LIABILITY OF MINISTERIAL
OFFICERS[NACHURA] ......................................290
IV. ELIGIBILITY AND QUALIFICATION C. PREVENTIVE SUSPENSION AND BACK
REQUIREMENTS ....................................... 276 SALARIES ................................................... 290
A. DEFINITIONS........................................... 276 D. ILLEGAL DISMISSAL, REINSTATEMENT AND
B. POWER TO PRESCRIBE QUALIFICATIONS BACK SALARIES...........................................292
..................................................................... 277
IX. IMMUNITY OF PUBLIC OFFICERS ........ 293
B.1. WHO MAY PRESCRIBE QUALIFICATIONS 277
A. RATIONALE ............................................. 293
vii
A.1. OTHER PUBLIC POLICY CONSIDERATIONS: D.1. PROMOTION .............................................. 302
.......................................................................... 293 D.2. TRANSFER ................................................ 303
B. OFFICIAL IMMUNITY DISTINGUISHED FROM D.3. REINSTATEMENT...................................... 303
STATE IMMUNITY........................................ 293 D.4. DETAIL....................................................... 303
C. PRESIDENTIAL IMMUNITY FROM SUIT ... 293 D.5. REASSIGNMENTAN EMPLOYEE MAY BE
REASSIGNED FROM ONE ORGANIZATIONAL
X. DE FACTO OFFICERS ............................ 294 UNIT TO ANOTHER IN THE SAME AGENCY.... 303
A. DE FACTO DOCTRINE.............................. 294 D.6. REEMPLOYMENT...................................... 303
B. DE FACTO OFFICER DEFINED ................. 294 XIII. ACCOUNTABILITY OF PUBLIC OFFICERS
C. OFFICE CREATED UNDER AN
................................................................. 304
UNCONSTITUTIONAL STATUTE .................. 295
A. IMPEACHMENT....................................... 304
D. LEGAL EFFECT OF ACTS OF DE FACTO
A.1. IMPEACHABLE OFFICERS ......................... 304
OFFICERS [MONROY V. CA (1967)]............... 295 A.2. GROUNDS FOR IMPEACHMENT .............. 304
D.1. DE FACTO OFFICER’S OFFICIAL ACTS ARE A.3. PROCEDURE ............................................. 304
NOT SUBJECT TO COLLATERAL ATTACK....... 295 A.4. JUDGMENT ................................................ 304
E. LIABILITY OF DE FACTO OFFICER [DE LEON] B. OMBUDSMAN [AGPALO, 2005] .............. 304
.................................................................... 295 B.1. FUNCTIONS................................................ 304
F. RIGHT TO COMPENSATION OF DE FACTO B.2. JUDICIAL REVIEW IN ADMINISTRATIVE
OFFICER...................................................... 296 PROCEEDINGS ................................................. 306
B.3. JUDICIAL REVIEW IN PENAL PROCEEDINGS
XI. TERMINATION OF OFFICIAL RELATION ........................................................................... 306
................................................................. 296 C. SANDIGANBAYAN .................................. 306
A. EXPIRATION OF THE TERM OR TENURE OF C.3. OFFICIALS AND PRIVATE INDIVIDUALS
OFFICE ........................................................ 296 SUBJECT TO ITS JURISDICTION ...................... 307
B. REACHING THE AGE LIMIT (RETIREMENT) C.4. EXCLUSIVE APPELLATE JURISDICTION .. 307
.................................................................... 296 C.5. APPELLATE JURISDICTION OF THE
C. DEATH OR PERMANENT DISABILITY ...... 296 SUPREME COURT ............................................ 307
D. RESIGNATION......................................... 297 D. ILL-GOTTEN WEALTH.............................. 307
E. ACCEPTANCE OF AN INCOMPATIBLE XIV. TERM LIMITS ..................................... 309
OFFICE ........................................................ 297
F. ABANDONMENT OF OFFICE ................... 298
G. PRESCRIPTION OF RIGHT TO OFFICE..... 298
H. REMOVAL ............................................... 298
ELECTION LAW
I. IMPEACHMENT ........................................ 299 I. SUFFRAGE............................................... 311
J. ABOLITION............................................... 299 A. DEFINITIONS ........................................ 311
K. CONVICTION OF A CRIME ....................... 300 B. SOURCES OF ELECTION LAWS ............ 311
L. NON-USER .............................................. 300 C. KINDS OF ELECTIONS .......................... 311
M. RECALL .................................................. 300 D. ELECTION PERIOD .............................. 312
N. FILING OF A CERTIFICATE OF CANDIDACY
BY AN APPOINTIVE OFFICIAL ..................... 300 II. QUALIFICATION AND
DISQUALIFICATION OF VOTERS ............... 312
XII. THE CIVIL SERVICE .............................. 301
A. QUALIFICATIONS, IN GENERAL............... 312
A. SCOPE ........................................................... 301
B. DISQUALIFICATIONS, IN GENERAL ..........313
B. JURISDICTION OF THE CIVIL SERVICE
C. SPECIAL RULES FOR OVERSEAS ABSENTEE
COMMISSION (CSC) ..................................... 301
VOTERS ........................................................313
B.1. EXCLUSIVE JURISDICTION ........................ 301
C.1. QUALIFICATIONS ....................................... 313
C. APPOINTMENTS TO THE CIVIL SERVICE .. 301
C.2. DISQUALIFICATIONS ................................ 313
C.1. CLASSIFICATION OF POSITIONS IN THE
CIVIL SERVICE ................................................... 301 III. REGISTRATION OF VOTERS .......... 314
C.2. RECALL OF APPOINTMENTS ................... 302 A. DEFINITION AND NATURE ...................... 314
C.3. APPOINTMENTS NOT REQUIRING CSC
B. SYSTEM OF CONTINUING REGISTRATION
APPROVAL ....................................................... 302
OF VOTERS .................................................. 315
C.4. LIMITATIONS ON POWER TO APPOINT .. 302
B.1. PERIOD OF REGISTRATION ...................... 315
D. PERSONNEL ACTIONS............................ 302
viii
B.2. MANNER OF REGISTRATION FOR B. FILING OF CERTIFICATES OF CANDIDACY
ILLITERATE OR DISABLED VOTERS ............... 315 .................................................................... 328
B.3. ELECTION REGISTRATION BOARDS ....... 315 C. MINISTERIAL DUTY OF COMELEC TO
B.4. CHANGE OF RESIDENCE OR ADDRESS . 315
RECEIVE CERTIFICATES OF CANDIDACY ..... 330
B.5. CHALLENGES TO RIGHT TO REGISTER .. 315
D. NUISANCE CANDIDATES......................... 330
C. REMEDY IN CASE OF
E. PETITION TO DENY OR CANCEL
APPROVAL/DISAPPROVAL OF APPLICATION
CERTIFICATES OF CANDIDACY ....................331
FOR REGISTRATION .................................... 316
F. EFFECTS OF DISQUALIFICATION ............. 332
D. DEACTIVATION OF REGISTRATION ......... 316
G. WITHDRAWAL OF CANDIDATES ......... 333
D.1. DEFINITION................................................ 316
D.2. CAUSES OF DEACTIVATION .................... 316 VII. CAMPAIGN.................................... 334
D.3. REACTIVATION OF REGISTRATION ........ 317 A. PREMATURE CAMPAIGNING ................... 334
E. CERTIFIED LIST OF VOTERS ................ 317 A.1. PROHIBITED CAMPAIGNING DAYS .......... 334
E.1. DEFINITIONS .............................................. 317 A.2. CAMPAIGN PERIODS ................................ 334
E.2. GROUNDS WHEN LIST OF VOTERS WILL BE A.3. EQUAL ACCESS TO MEDIA TIME AND
ALTERED ........................................................... 317 SPACE ............................................................... 335
E.3. ANNULMENT OF BOOK OF VOTERS ....... 317 A.4. ELECTION SURVEYS ................................. 335
F. SPECIAL RULES FOR OVERSEAS A.5. RALLIES, MEETINGS, OTHER POLITICAL
ABSENTEE VOTERS ..................................... 318 ACTIVITY ........................................................... 336
B. PROHIBITED CONTRIBUTIONS................ 336
IV. INCLUSION AND EXCLUSION
B.1. DEFINITIONS .............................................. 336
PROCEEDINGS .......................................... 319 B.2. PROHIBITED CONTRIBUTIONS ................ 336
A. JURISDICTION IN INCLUSION AND B.3. PROHIBITED FUND-RAISING ACTIVITIES 337
EXCLUSION CASE ........................................ 319 B.4. PROHIBITED DONATIONS........................ 337
B. PROCESS ................................................. 319 B.5. PROHIBITED WHETHER DIRECTLY OR
C. SPECIAL RULES ON OVERSEAS ABSENTEE INDIRECTLY ...................................................... 337
VOTERS........................................................ 319 C. LAWFUL AND PROHIBITED ELECTION
PROPAGANDA............................................. 337
V. POLITICAL PARTIES ......................... 320 C.1. LAWFUL ELECTION PROPAGANDA ......... 338
A. LEGAL BASIS AND PURPOSE.................. 320 C.2. PROHIBITED ACTS .................................... 338
B. DEFINITIONS........................................... 320 D. LIMITATIONS ON EXPENSES ................... 338
B.1. POLITICAL PARTIES, IN GENERAL ........... 320 D.1. FOR CANDIDATES ..................................... 338
B.2. UNDER THE PARTY-LIST SYSTEM .......... 320 D.2. FOR CANDIDATES WITHOUT A POLITICAL
C. JURISDICTION OF THE COMELEC OVER PARTY ............................................................... 338
POLITICAL PARTIES ..................................... 321 D.3. FOR POLITICAL PARTIES ......................... 339
D. REGISTRATION ........................................ 321 E. STATEMENT OF CONTRIBUTIONS AND
D.1. PURPOSES OF REGISTRATION ................. 321 EXPENSES ................................................... 339
D.2. REGISTRATION UNDER THE PARTY-LIST E.1. EFFECT OF FAILURE TO FILE STATEMENT
SYSTEM ............................................................. 321 ........................................................................... 339
D.3. GROUPS WHICH CANNOT BE REGISTERED E.2. ADMINISTRATIVE FINES (EXCEPT
AS POLITICAL PARTIES ................................... 322 CANDIDATES FOR ELECTIVE BARANGAY
E. GROUNDS FOR REFUSAL/CANCELLATION OFFICE) [SEC. 14, RA 7166] ............................... 339
OF REGISTRATION...................................... 322 VIII. BOARD OF ELECTION INSPECTORS
F. NOMINATION OF PARTY-LIST
(BEI) AND BOARD OF CANVASSERS (BOC)
REPRESENTATIVES .................................... 323
G. PARAMETERS IN ALLOCATION OF SEATS
339
A. BOARD OF ELECTION INSPECTORS ........ 339
FOR PARTY-LIST REPRESENTATIVES......... 323
A.1. COMPOSITION OF BOARD OF ELECTION
H. GUIDELINES AS TO WHO MAY PARTICIPATE
INSPECTORS .................................................... 339
IN THE PARTY-LIST ELECTIONS .................. 324 A.2. POWERS OF BOARD OF ELECTION
I. EFFECT OF CHANGE OF AFFILIATION ...... 325 INSPECTORS .................................................... 340
VI. CANDIDACY ................................... 326 B. BOARD OF CANVASSERS ....................... 340
B.1. DEFINITIONS AND FUNCTIONS................ 340
A. QUALIFICATIONS OF CANDIDATES ........ 326
B.2. COMPOSITION OF BOARD OF CANVASSERS
A.1. QUALIFICATIONS ...................................... 326
[SEC. 20, R.A. 6646] ......................................... 340
A.2. DISQUALIFICATIONS................................ 326
ix
C. PROCLAMATION ..................................... 342 B. PREFERENTIAL DISPOSITION OF ELECTION
C.1. WHEN PROCLAMATION VOID .................. 342 OFFENSES ................................................... 352
C.2. PARTIAL PROCLAMATION ....................... 342 B.1. ELECTION OFFENSES................................ 352
C.3. ELECTION RESULTING IN A TIE ............... 342 B.2. PENALTIES ................................................ 354
C.4 PROCLAMATION OF A LONE CANDIDATE C. ARRESTS IN CONNECTION WITH ELECTION
.......................................................................... 342 CAMPAIGN ..................................................354
IX. REMEDIES AND JURISDICTION IN D. PRESCRIPTION........................................354
ELECTION LAW ......................................... 343 E. GRANT OF TRANSACTIONAL IMMUNITY .354
A. PETITION NOT TO GIVE DUE COURSE TO OR F. PROHIBITED ACTS UNDER RA 9369........ 355
CANCEL A CERTIFICATE OF CANDIDACY.... 343
B. PETITION FOR DISQUALIFICATION......... 343
C. PETITION TO DECLARE FAILURE OF PUBLIC
ELECTIONS ................................................. 345
C.1. WHAT CONSTITUTES AN ELECTION ........ 345 INTERNATIONAL LAW
C.2. FAILURE OF ELECTIONS .......................... 345
C.3. DECLARATION OF FAILURE OF ELECTION I. CONCEPTS .............................................357
.......................................................................... 345 A. OBLIGATIONS ERGA OMNES ................... 357
C.4. JURISDICTION........................................... 345 A.1. DEFINITION ................................................ 357
C.5. REQUISITES .............................................. 345 B. JUS COGENS............................................358
C.6. PROCEDURE ............................................. 345 B.1. DEFINITION ................................................ 358
D. PRE-PROCLAMATION CONTROVERSY ... 346 C. CONCEPT OF EX AEQUO ET BONO ..........358
D.1. JURISDICTION ........................................... 346
D.2. WHEN NOT ALLOWED ............................. 346 II. INTERNATIONAL AND NATIONAL LAW 359
D.3. NATURE OF PROCEEDINGS .................... 346 A. INTERNATIONAL AND NATIONAL
D.4. ISSUES THAT MAY BE RAISED ................ 346 (MUNICIPAL) LAW, DISTINGUISHED............359
D.5. ISSUES THAT CANNOT BE RAISED ..........347 B. RELATIONSHIP ........................................359
D.6. PROCEDURE..............................................347 B.1. THEORIES................................................... 359
D.7 EFFECT OF FILING OF PRE-PROCLAMATION
CONTROVERSY ................................................ 348 III. SOURCES............................................. 360
D.8. EFFECT OF PROCLAMATION OF WINNING A. IN GENERAL ........................................... 360
CANDIDATE ...................................................... 349 B. TREATIES AND CONVENTIONS .............. 360
D.9. EFFECT OF FILING PETITION TO ANNUL OR
C. CUSTOMARY INTERNATIONAL LAW ....... 361
SUSPEND PROCLAMATION ............................ 349
D. GENERAL PRINCIPLES OF LAW .............. 362
E. ELECTION PROTEST................................ 349
E. JUDICIAL DECISIONS AND TEACHINGS OF
E.1. NATURE ..................................................... 350
E.2. PURPOSE .................................................. 350 HIGHLY QUALIFIED PUBLICISTS.................. 363
E.3. WHO MAY FILE .......................................... 350 F. NON-SOURCES........................................ 363
E.4. WHEN ........................................................ 350
IV. SUBJECTS............................................ 364
E.5. WHO HAS JURISDICTION ......................... 350
E.6. GROUNDS ................................................. 350
A. SUBJECTS AND OBJECTS DISTINGUISHED
E.7. PAYMENT OF DOCKET FEE ...................... 350 ....................................................................364
E.8. EFFECT OF FILING PETITION TO ANNUL OR B. OBJECTIVE AND SPECIAL PERSONALITY 364
TO SUSPEND THE PROCLAMATION............... 350 C. STATES ....................................................364
F. QUO WARRANTO .................................... 350 D. INTERNATIONAL ORGANIZATIONS ........368
F.1. WHO MAY FILE........................................... 350 D.1. PRECONDITIONS FOR INTERNATIONAL
F.2. WHEN TO FILE........................................... 350 PERSONALITY .................................................. 368
F.3. WHO HAS JURISDICTION ......................... 350 D.2. CAPACITY TO BRING CLAIM FOR
F.4. GROUNDS .................................................. 351 REPARATION OF THE UNITED NATIONS ....... 368
F.5. EXECUTION PENDING APPEAL ................ 351 D.3. INDIVIDUALS............................................. 368
x
B. CONSULAR RELATIONS........................... 373 D.1. FUNDAMENTAL PRINCIPLES ................... 389
B.1. ESTABLISHMENT AND SEVERANCE ......... 373 D.2. PROCEDURE ............................................. 389
B.2. CONSULS ................................................... 373 D.3. EXTRADITION AND DEPORTATION
B.3. RANKS ........................................................ 373 DISTINGUISHED ............................................... 389
B.4. CONSULAR FUNCTIONS ........................... 373
B.5. RIGHT TO CONSULAR ASSISTANCE ........374
XI. INTERNATIONAL HUMAN RIGHTS LAW
B.6. NECESSARY DOCUMENTS .......................374 ................................................................. 390
B.7. IMMUNITIES AND PRIVILEGES .................374 A. DEFINITION ............................................ 390
B. CLASSIFICATION .................................... 390
VI. GENERAL PRINCIPLES OF TREATY LAW
C. UNIVERSAL DECLARATION OF HUMAN
.................................................................. 376 RIGHTS ........................................................ 391
A. CONCEPT .................................................376 D. INTERNATIONAL COVENANT ON CIVIL AND
A.1. UNDER INTERNATIONAL LAW..................376
POLITICAL RIGHTS ...................................... 391
A.2. UNDER PHILIPPINE LAW ..........................376
E. INTERNATIONAL COVENANT ON
B. TREATY-MAKING PROCESS .....................378
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
B.1. INVALID TREATIES .....................................379
B.2. GROUNDS FOR TERMINATION ................379 .................................................................... 392
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special process distinct from and more (2) Constitution of Sovereignty - provides
involved than the method of changing how the Constitution may be changed; i.e.
ordinary laws. It is supposed that by such Art. XVII
a special procedure, the constitution is
(3) Constitution of Liberty - states the
rendered difficult to change and thereby
fundamental rights of the people; e.g. Art.
acquires a greater degree of stability. A
III [Lambino v. COMELEC, G.R. No.174153.
constitution is classified as flexiblewhen it
October 25, 2006]
may be changed in the same manner and
through the same body that enacts
ordinary legislation. The Constitution of C. AMENDMENTS AND REVISIONS
the UK is flexible.
[ART. XVIII –AMENDMENTS OR REVISIONS]
N.B. The Philippine Constitution is written,
enacted and rigid.
Date of Effectivity of the 1987 Const.: February C.1 CONCEPTS
2, 1987, the date of the plebiscite, and not on Amendments – An addition or change within
the date its ratification was proclaimed. [De the lines of the original constitution as will
Leon v. Esguerra, G.R. No. 78059, August 31, effect an improvement, or better carry out the
1987] purpose for which it was framed; a change
that adds, reduces or deletes without altering
the basic principles involved; affects only the
A.5. BASIC PRINCIPLES specific provision being amended. [Lambino v.
(1) Verba legis– whenever possible, the COMELEC, G.R. No.174153. October 25, 2006]
words used in the Constitution must be Revisions – A change that alters a basic
given their ordinary meaning except principle in the constitution, like altering the
where technical term are employed; principle of separation of powers or the system
(2) Ratio legis est anima– words of the of checks-and-balances; alters the substantial
Constitution should be interpreted in entirety of the constitution, as when the
accordance with the intent of the framers; change affects substantial provisions of the
constitution. [Id.]
(3) Ut magis valeat quam pereat– the
Constitution should be interpreted as a Difference– Revision generally affects several
whole [Francisco v. House of provisions of the constitution, while
Representatives, 415 SCRA 44 (2003)] amendment generally affects only the specific
provision being amended [Id.] This distinction
is significant because the 1987 Constitution
A.6. TYPES OF JUDICIAL REVIEW allows people’s initiative only for the purpose
of amending, not revising, the Constitution.
US Judicial Review [See Lambino, supra]
Europe Judicial
Review (Followed by the
PHL)
Legal tests
Constitutional US Supreme Court:
Courts: centralized, decentralized; all courts Lambino considered the two-part test: the
only one court can can exercise judicial quantitative test and the qualitative test.
exercise review
(1) Quantitative test– The court examines
Principaliter: Incidenter: question only the number of provisions affected and
questions are that is recognized by the does not consider the degree of the
independent of disputes Court must be part of change.
the controversy
(2) Qualitative test – The court inquires into
B. PARTS OF A CONSTITUTION the qualitative effects of the proposed
(1) Constitution of Government – establishes change in the constitution. The main
the structure of government, its branches inquiry is whether the change will
and their operation; e.g. Art. VI, VII, VIII, IX “accomplish such far reaching changes in
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the nature of our basic governmental plan (ii) Enabling Law: Constitutional
as to amount to a revision.” The changes provision
on amendments via
include those to the “fundamental People’s Initiative not self-
framework or the fundamental powers of [Defensor-Santiago v.
executory
its Branches,” and those that “jeopardize COMELEC, 270 SCRA 170 (1997)]
the traditional form of government and
(2) Ratification– the proposed amendment
the system of check and balances.”
shall be submitted to the people and shall
Whether there is an alteration in the
be deemed ratified by the majority of the
structure of government is a proper
votes cast in a plebiscite, held not earlier
subject of inquiry. [See Lambino, supra.]
than 60 days nor later than 90 days:
C.2 PROCEDURE
(a) After approval of the proposal by
There are two steps in the amendatory Congress or ConCon;
process: (1) proposal, and (2) ratification
(b) After certification by the COMELEC of
(1) Proposal– The adoption of the suggested sufficiency of petition of the people.
change in the Constitution.
(a) Congress (as a Constituent
Doctrine of Proper Submission – A plebiscite
Assembly) – a vote of 3/4 of ALL its
may be held on the same day as a regular
members.
election [Gonzales v. COMELEC, 21 SCRA 774].
(b) Constitutional Convention – Called The entire Constitution must be submitted for
into existence by (i) 2/3 of all members ratification at one plebiscite only. The people
of Congress OR (ii) the electorate, in a must have a proper “frame of reference”.
referendum called for by a majority of [Dissent ofTolentino v. COMELEC, 41 SCRA
all members of Congress [CONST., art. 702]. No “piecemeal submission,” e.g.
XVII, sec. 3] submission of age amendment ahead of other
proposed amendments. [Lambino v.
(c) People(through a People’s Initiative)
COMELEC, G.R. No.174153. October 25, 2006]
– petition of at least 12% of the total
number of registered voters; every N.B. The process of revision is the same in all
legislative district must be respects except that it cannot be proposed via
represented by at least 3% of the a People’s Initiative. [See Lambino, supra]
registered voters therein.
Judicial Review of Amendments – The validity
(i) Limitation on Initiative: No of the process of amendment is not a political
amendment in this manner shall question because the Court must review if
be authorized (1) within 5 years constitutional processes were followed. [See
following the ratification of the Lambino, supra]
1987 Const. nor (2) more often
than once every 5 years thereafter.
C.3. SUMMARY OF TWO STAGES OF AMENDATORY/ REVISION PROCESS
By Proposal Ratification
A. Congress (as
By a vote of 3/4 of all its
Constituent
members
Assembly)
(In practice) per internal
Via Plebiscite, 60-90
B. Constitutional rules, limited by the
Amendments days after submission of
Convention Doctrine of Proper
the amendments
Submission
Upon COMELEC’s
C. People’s
certification of the
Initiative
sufficiency of the petition
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A. Congress (as
By a vote of 3/4 of all its
Revision Constituent
members
Assembly) Via Plebiscite, 60-90
(In practice) per internal days after submission of
B. Constitutional rules, limited by the the revision
Convention Doctrine of Proper
Submission
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Express consent
Jurisprudential Basis: Effected only by the will of the legislature
(1) Positivist Theory - There can be no legal through the medium of a duly enacted statute;
right as against the authority that makes may be embodied either in a general law or a
the laws on which the right depends. Also special law:
called the doctrine of Royal Prerogative of
General Law
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Authorizes any person who meets the agents within the meaning of the
conditions stated in the law to sue the provision.
government in accordance with the procedure
(c) Liability under the Local Government
in the law; e.g.
Code
Local government units and their
(1) Money claims arising from contract express officials are not exempt fromliability for
or implied death or injury to persons or damage to
property. [Section 24, LGC]
(1) Incorporated– If the charter provides that B.6. EXCEPTIONS TO PRIOR CONSENT
the agency can sue, then the suit will lie. RULE
The provision in the charter constitutes
Case law provides that the following are well-
express consent. [See SSS v. Court of
recognized exceptions when the state/public
Appeals, 120 SCRA 707 (1983)]
officer MAY be sued without prior consent:
(2) Unincorporated – There must be an
(1) To compel him to do an act required by
inquiry unto the principal functions of
law;
government.
(2) To restrain him from enforcing an act
(a) If governmental:NO suit without
claimed to be unconstitutional;
consent. [Bureau of Printing v. Bureau
of Printing Employees Association (3) To compel the payment of damages from
(1961)] an already appropriated assurance fund or
to refund tax over-payments from a fund
(b) If proprietary: Suit will lie, because
already available for the purpose;
when the state engages in principally
proprietary functions, it descends to (4) To secure a judgment that the officer
the level of a private individual, and impleaded may satisfy by himself without
may, therefore be vulnerable to suit. the State having to do a positive act to
[Civil Aeronautics Administration v. assist him;
Court of Appeals (1988)]. State may (5) Where the government itself has violated
only be liable for proprietary acts (jure
its own laws. [Sanders v. Veridiano II, G.R.
gestionis) and not for sovereign acts No. L-46930(1988)]
(jure imperii).
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(a) Life Sec. 11. The State values the dignity of every
human person and guarantees full respect
(b) Liberty for human rights.
(c) Property (6) Family as basic social institution [Sec. 12]
and natural and primary right and duty of
parents in the rearing of the youth [Id.]
(10) Separation of Church and State [Sec. 6]
Sec. 12. The State recognizes the sanctity of
Sec. 6. The separation of Church and State family life and shall protect and strengthen
shall be inviolable. the family as a basic autonomous social
institution. It shall equally protect the life of
the mother and the life of the unborn from
Policies [sec. 7-28]: Guidelines for the conception. The natural and primary right
orientation of the state [Bernas] and duty of parents in the rearing of the
youth for civic efficiency and the
development of moral character shall
(1) Independent foreign policy [Sec. 7] receive the support of the Government.
Sec. 7. The State shall pursue an
independent foreign policy. In its relations The right and duty referred to here is primary,
with other states, the paramount not exclusive. The State as parens patriae has
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an inherent right to aid parents in the moral (12) Right to a balanced and healthful ecology
development of the youth. Hence, the [Sec.16, Oposa v. Factoran]
provision in the RH Law mandating the
Sec. 16. The State shall protect and advance
teaching of age- and development-
the right of the people to a balanced and
appropriate reproductive health education is
healthful ecology in accord with the rhythm
not per se unconstitutional; a ruling on its
and harmony of nature.
constitutionality would be premature absent
an actual curriculum formulated by the Dept.
of Education. [Imbong v. Ochoa, G.R. No.
(13) Priority to education, science and
204819, Apr. 8, 2014, on the constitutionality
technology, arts, culture, and sports [Sec. 17]
of the RH Law]
Sec. 17. The State shall give priority to
education, science and technology, arts,
(7) Protection of the life of the mother and the culture, and sports to foster patriotism and
life of the unborn from conception [Sec. 12, nationalism, accelerate social progress, and
supra] promote total human liberation and
The question of when life begins is a scientific development.
and medical issue that should not be decided
[in the RH petitions] without proper hearing
and evidence. [Imbong v. Ochoa, supra] (14) Labor as a primary social economic force
[Sec.18]
Sec. 18. The State affirms labor as a primary
(8) Vital role of youth in nation-building [Sec. social economic force. It shall protect the
13] rights of workers and promote their welfare.
Sec. 13. The State recognizes the vital role
of the youth in nation-building and shall
promote and protect their physical, moral, (15) Self-reliant and independent national
spiritual, intellectual, and social well-being. economy [Sec.19]
It shall inculcate in the youth patriotism and Sec. 19. The State shall develop a self-
nationalism, and encourage their reliant and independent national economy
involvement in public and civic affairs. effectively controlled by Filipinos.
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Sec. 22. The State recognizes and promotes implements a policy of full public disclosure
the rights of indigenous cultural of all its transactions involving public
communities within the framework of interest.
national unity and development.
See discussion, vis-à-vis the right to
information (Art. III, Sec. 7) in the
(19) Community-based, sectoral organizations Constitutional Law II reviewer.
[Sec.23]
Sec. 23. The State shall encourage non- D. SEPARATION OF POWERS
governmental, community-based, or
sectoral organizations that promote the The government established by the
welfare of the nation. Constitution follows fundamentally the theory
of separation of powers into the legislative, the
executive and the judicial [Angara v. Electoral
(20) Role of communication and information Commission, G.R. No. 45081. July 15, 1936].
in nation-building [Sec.24] Separation of powers is not expressly provided
Sec. 24. The State recognizes the vital role for in the Constitution. But it obtains from
of communication and information in actual division [found in Sec. 1 of Articles VI, VII,
nation-building. and VIII]. Each department has exclusive
cognizance of matters within its jurisdiction,
and is supreme within its own sphere. [Angara
(21) Autonomy of local governments [Sec. 25] v. Electoral Commission, supra]
Sec. 25. The State shall ensure the Separation of powers is founded on the belief
autonomy of local governments. that, by establishing equilibrium among the
three power holders, harmony will result,
power will not be concentrated and thus
(22) Equal access for public service and tyranny will be avoided [Bernas].
prohibition of political dynasties [Sec. 26] The separation of powers is a fundamental
Sec. 26. The State shall guarantee equal principle in our system of government. Any
access to opportunities for public service system that is violative of this principle is
and prohibit political dynasties as may be unconstitutional and void. [See Belgica v.
defined by law. Ochoa, G.R. No. 208566, Nov. 19, 2013, on the
unconstitutionality of the PDAF]
The state policy against political dynasties is
not self-executing. It does not provide a The Pork Barrel System violates the
judicially enforceable constitutional right but separation of powers because it is a form of
merely specifies a guideline for legislative or post-enactment authority in the
executive action. [Belgica v. Ochoa, G.R. No. implementation or enforcement of the budget.
208566, Nov. 19, 2013] (1) By giving individual legislators the (a)
power to determine projects after the
General Appropriations Act (GAA) is
(23) Honesty and integrity in public service passed, and, (b) through congressional
[Sec. 27] committees, authority in the areas of fund
Sec. 27. The State shall maintain honesty release and realignment, the system
and integrity in the public service and take encroaches on the Executive’s power to
positive and effective measures against implement the law.
graft and corruption. (2) Furthermore, identification of a project by
a legislator being a mandatory
requirement before his PDAF can be
(24) Policy of full public disclosure [Sec. 28] tapped as a source of funds, his act
Sec. 28. Subject to reasonable conditions becomes indispensable in the entire
prescribed by law, the State adopts and budget execution process. [Belgica, supra]
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F. DELEGATION OF POWERS
The Pork Barrel system is unconstitutional,
among others, because it violates the system
of checks and balances. F.1. RULE OF NON-DELEGATION OF
(1) It deprives the president of his item-veto LEGISLATIVE POWER
power.As lump-sum appropriations, the Principle: Delegata potestas non potest
actual projects under each congressman’s delegari – What has been delegated can no
PDAF are determined (by the longer be delegated.
congressman) only after the GAA is
passed. The president, then, would not be
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political authority is made effective in the The legitimacy of the Aquino government is
Philippines, whether pertaining to: not a justiciable matter. It belongs to the
realm of politics where only the people of the
(a) the autonomous regions,
Philippines are the judge. And the people have
(b) the provincial, city, municipal, or barangay made the judgment; they have accepted the
subdivisions, or government of President Corazon C. Aquino
which is in effective control of the entire
(c) other forms of local government. [Sec. 2(1),
country so that it is not merely a de facto
Bk. I, Administrative Code]
government but in fact and law a de jure
government. Moreover the community of
“Government” is that institution or aggregate nations has recognized the legitimacy of the
of institutions by which an independent present government. All the eleven members
society makes and carries out those rules of of this Court as reorganized have sworn to
action which are necessary to enable men to uphold the fundamental law of the Republic
live in a social state or which are imposed upon under her government. (In re Bermudez (1986)
the people forming that society by those who citing Lawyers League for a Better Philippines
possess the power or authority of prescribing v. Aquino (1986)]
them. [US v. Dorr (1903)] EDSA I vs. EDSA II
In fine, the legal distinction between EDSA
G.2. AS TO THE EXISTENCE OR ABSENCE People Power I and EDSA People Power II is
OF CONTROL clear. EDSA I involves the exercise of the
people power of revolution which overthrew
i. De jure the whole government. EDSA II is an exercise
(1) Has rightful title; of people power of freedom of speech and
freedom of assembly to petition the
(2) But has no power or control, either government for redress of grievances which
because this has been withdrawn from it, only affected the office of the President. EDSA
or because it has not yet actually entered I is extra-constitutional and the legitimacy of
into the exercise thereof. [In re Letter of the new government that resulted from it
Associate Justice Puno, (1992)] cannot be the subject of judicial review, while
ii. De facto EDSA II is intra-constitutional and the
resignation of the sitting President that it
Government of fact, that is, it actually caused and the succession of the Vice
exercises power or control without legal title. President as President are subject to judicial
[Co Kim Cham v. Valdes, (1945)] review. EDSA I presented a political question;
(1) DE FACTO PROPER– The government EDSA II involved legal questions.
that gets possession and control of, or Even if the petitioner can prove that he did not
usurps, by force or by the voice of the resign, still, he cannot successfully claim that
majority, the rightful legal gov’t and he is a President on leave on the ground that
maintains itself against the will of the he is merely unable to govern temporarily.
latter. That claim has been laid to rest by Congress
(2) INDEPENDENT GOVERNMENT– That and the decision that respondent Arroyo is the
established as an independent gov’t by de jure president, made by a co-equal branch
the inhabitants of a country who rise in of government, cannot be reviewed by this
insurrection against the parent state. Court. [Estrada v. Desierto / Estrada v. Arroyo
(2001)]
(3) That which is established and maintained
by military forces who invade and occupy G.3. AS TO CONCENTRATION OF POWERS
a territory of the enemy in the course of i. Presidential – there is separation of
war, and which is denominated as a gov’t executive and legislative branches of
of paramount force, like the Second government
Republic established by the Japanese
belligerent. ii. Parliamentary – There is a fusion of
executive and legislative powers in the
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Parliament, although the actual exercise ii. Federal – one in which the powers of the
of the executive powers is vested on the government are divided between two sets
Prime Minister. (De Leon) of organs, one for national affairs and one
for local affairs. [DE LEON]
G.4. AS TO CENTRALIZATION
i. Unitary – One in which the control of the
national and local affairs is exercised by
the national and local government
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(4) votes passed. (4) Shall not intervene in any matter before
any office of the government when it is for
his pecuniary benefit or where he may be
called upon to act on account of his office.
[Art. VI, Sec. 14]
The Pork Barrel System “runs afoul” of Art.
VI, Sec. 14 because in “allowing legislators
to intervene in the various phases of
project implementation – a matter before
another office of government – [the Pork
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(3) Potential conflicts of interest: Members of the majority of those present in the session,
must notify House, if conflict arises from the there being a quorum, is required.
filing of a proposed legislation which they
Exceptions to Doctrine of Shifting Majority:
authored. [Id.]
(1) Votes where requirement is based on “ALL
THE MEMBERS OF CONGRESS” –
(4) Amounts paid to/expenses incurred by requirement is based on the entire
each member: To be reported annually by the composition of a House or Congress (in its
COA. [Art. VI, Sec. 20] entirety), regardless of the number of
Members present or absent
Sec. 20. The records and books of accounts
of the Congress shall be preserved and be
open to the public in accordance with law, Vote
and such books shall be audited by the Required
Commission on Audit which shall publish Houses
Action (all Basis
annually an itemized list of amounts paid to voting
members
and expenses for each Member. )
Override 2/3 Separately Art.
presidential (House VI,
D. QUORUM AND VOTING MAJORITIES veto where bill Sec.
originated 27(1)
votes first)
D.1. QUORUM
Grant of tax Majority (Silent) Art.
Majority of each House shall constitute a exemptions VI,
quorum, although a smaller number may Sec.
adjourn from day to day and may compel the 27(4)
attendance of absent members. Elect Majority Separately Art.
In computing a quorum, members who are President in VII,
case of tie Sec.
outside the country, thus outside of each 4,
House’s coercive jurisdiction, are not included. par. 5
“Majority” refers to the number of members Confirm Majority Separately Art.
within the “jurisdiction” of the Congress (those appoint- VII,
it can order arrested for the purpose of ment of VP Sec. 9
questioning). In this case, one Senator was out
Revoke or Majority Jointly Art.
of the Philippines which is not within the extend (a) VII,
“jurisdiction” of the Senate, so that the Martial Law Sec.
working majority was 23 Senators. or (b) 18
suspension
of writ of
There is a difference between a majority of "all Habeas
members of the House" and a majority of "the Corpus
House", the latter requiring less number than Confirm Majority (Silent) Art.
the first. Therefore, an absolute majority (12) of amnesty VII,
all members of the Senate less one (23) grant Sec.
constitutes constitutional majority of the 19,
Senate for the purpose of the quorum. par. 2
[Avelino v. Cuenco, (1949)] Submit Majority (Silent) Art.
question of XVII,
calling a Sec. 3
D.2. VOTING MAJORITIES Const. Prevailing
Doctrine of Shifting Majority – For each Convention view: by
to the default,
House of Congress to pass a bill, only the votes electorate houses
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Call for 2/3 vote Art. instate a member who has been expelled by it.
Const. separately XVII, [Alejandrino v. Quezon, (1924) 46 Phil 83]
Convention (because Sec. 3
Congress The immunity for speech given to a member of
Propose 3/4 is Art. congress is not a bar to the power of congress
amend- bicameral) XVII, to discipline its members [Osmena v.
ments as Sec.
Const. 1(1)
Pendatun, (1960) 109 Phil 863]
Assembly
F. ELECTORAL TRIBUNAL AND THE
COMMISSION ON APPOINTMENTS
(2) Other Special Cases, i.e. NOT out of all
members Electoral Tribunals
Action Vote Required Basis Art., VI, Sec. 17. The Senate and the House of
Determine 2/3 of both Houses, Art. VII, Representatives shall each have an Electoral
President’s voting separately Sec. 11, Tribunal which shall be the sole judge of all
disability par. 4 contests relating to the election, returns, and
Declaring a 2/3 of both Houses (in Art. VI, qualifications of their respective Members.
State of joint session), voting Sec. Each Electoral Tribunal shall be composed of
War separately 23(1) 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
E. DISCIPLINE OF MEMBERS Members of the Senate or the House of
Representatives, as the case may be, who
Each house may punish its members for shall be chosen on the basis of proportional
disorderly behavior, and with the concurrence representation from the political parties and
of 2/3 of ALL its members, with: [SED-FIC] the parties or organizations registered under
(1) Suspension (shall not exceed 60 days) the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be
(2) Expulsion its Chairman.
Two Types
Other disciplinary measures:
(1) Senate Electoral Tribunal (SET)
(1) Deletion of unparliamentary remarks from
(2) House Electoral Tribunal (HRET)
the record
N.B. There is a Presidential Electoral Tribunal
(2) Fine
(PET), but it is governed by different provisions.
(3) Imprisonment
The tribunals which have jurisdiction over the
(4) Censure question of the qualifications of the President,
the Vice-President, Senators and the
Members of the House of Representatives was
The suspension contemplated in the made clear by the Constitution. There is no
Constitution is different from the suspension such provision for candidates for these
prescribed in the Anti-Graft and Corrupt positions. [Poe-Llamanzares v. COMELEC,
Practices Act (RA 3019). The former is punitive G.R. No. 221697 (2016)] (N.B. Outside of the
in nature while the latter is preventive. bar coverage)
[Defensor-Santiago v. Sandiganbayan, G.R.
Composition
No. 118364, August 10, 1995].
(1) 3 Supreme Court justices, designated by
The determination of congress when it comes
Chief Justice; Senior Justice in the
to disciplining its members is respected by the
Electoral Tribunal shall be its Chairman
court. As such, the Supreme court does not
have the power to compel congress to re-
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(2) 6 members of the Senate or House, as the a candidate is already considered a member of
case may be, chosen on the basis of the House.
proportional representation from parties
To be considered a member, in turn, there
Composition Rules must be a concurrence of the following: (1) a
valid proclamation; (2) a proper oath (a)
(1) The ET shall be constituted within 30 days
before the Speaker and (b) in open session;
after the Senate and the House shall have
and (3) assumption of office. [Id.]
been organized with the election of the
President and the Speaker. [Sec. 19] The Court in Ongsiako-Reyes clarified that the
doctrine that “once a proclamation has been
(2) Members chosen enjoy security of tenure
made, COMELEC’s jurisdiction is already lost
and cannot be removed by mere
[…] and the HRET’s own jurisdiction begins”
temporary change of party affiliation.
only applies in the context of a candidate who
(Bondoc v. Pineda, 201 SCRA 793).
has not only been proclaimed and sworn in,
Valid grounds/just cause for termination of but has also assumed office. [Id.]
membership to the tribunal:
Election Contest- one where a defeated
(1) Expiration of Congressional term of office; candidate challenges the qualification and
claims for himself the seat of a proclaimed
(2) Death or permanent disability;
winner.
(3) Resignation from political party which one
Supreme Court has jurisdiction over the
represents in the tribunal;
Electoral Commission for the purpose of
(4) Removal from office for other valid determining the character, scope and extent
reasons. of the constitutional grant to the Electoral
Note: Disloyalty to party and breach of party Commission as "the sole judge of all contests
discipline are not valid grounds for the relating to the election, returns and
expulsion of a member of the tribunal. qualifications of the members of the National
[Bondoc, supra] Assembly." [Angara v. Electoral Commission
(1936)]
N.B.: Constitution mandates that the HRET
F.1. NATURE “shall be the sole judge of all contests relating
Jurisdiction:sole judge of all contests relating to the election, returns and qualifications” of
to the election, returns, and qualifications of its members. By employing the word “sole,”
their respective members. the Constitution is emphatic that the
jurisdiction of the HRET in the adjudication of
When does it acquire jurisdiction: election contests involving its members is
Traditional formulation: ET has jurisdiction exclusive and exhaustive. Its exercise of power
only (1) when there is an election contest, and is intended to be its own — full, complete and
(2) only after the proclamation of a candidate. unimpaired. [Duenas Jr. v. HRET, G.R. No.
[Lazatin v. HRET(1988)] 185401, (2009)]
In the absence of election contest, and before
proclamation, jurisdiction remains with Independence of the Electoral Tribunals
COMELEC. [Id.] But the proclamation of a
congressional candidate following the Since the ET’s are independent constitutional
election divests the COMELEC of jurisdiction bodies, independent even of the respective
over […] the proclaimed representative in favor House, neither Congress nor the Courts may
of the HRET. [Tañada v. COMELEC, G.R. No. interfere with procedural matters relating to
207199, Oct. 22, 2013] the functions of the ET’s. [Macalintal v.
Presidential Electoral Tribunal, G.R. No.
But see Ongsiako-Reyes v. COMELEC (G.R. No. 191618, Nov. 23, 2010]
207264, Jun. 25, 2013) where the Court held
that an Electoral Tribunal acquires jurisdiction The HRET was created to function as a
only after (1) a petition is filed before it, and (2) nonpartisan court although two-thirds of its
members are politicians.
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which is then submitted to the respective Exception: President certifies to the necessity
chambers for approval. Upon approval, of its immediate enactment to meet a public
the bill may be engrossed. calamity or emergency
The Bicam report need not pass through three Presidential certification dispenses with the (1)
readings. The Bicam may also include entirely printing requirement and (2) readings on
new provisions and substitutions. [See separate days requirement [Kida v Senate, G.R.
Tolentino v. Sec. of Finance (1994), Phil. No. 196271, Oct. 11, 2011, citing Tolentino v.
Judges Association v. Prado (1993)] Secretary of Finance]
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(2) It shall remain in force and effect until the (6) Imposition of tariffs designed to
general appropriations bill is passed by encourage and protect locally produced
Congress. goods against competition for imports.
Limitations
For Special Appropriations Bills (1) Public purpose – Power to tax should be
exercised only for a public purpose.
(1) Shall specify the purpose for which it is
intended (2) Uniform and equitable
(2) Shall be supported by funds (a) Operates with the same force and
effect in every place where the subject
(a) actually available as certified by the
of it is found
National Treasurer; or
(b) Classification for the purpose of
(b) to be raised by corresponding revenue
taxation is not prohibited per se, BUT
proposal therein
it must comply with the Test of Valid
Classification [See Ormoc Sugar
Limitation on Use of Public Funds [Sec. 29]
Central v. Ormoc City [1968], on equal
protection and local taxes]
(1) No money shall be paid out of the National
Treasury except in pursuance of an
appropriation made by law. Test of Valid Classification
(2) However, this rule does not prohibit (1) Based on substantial distinctions which
continuing appropriations, e.g. for debt make real differences
servicing, for the reason that this rule does
not require yearly or annual appropriation. (2) Germane to the purpose of law
[See Guingona v. Carague (1991)] (3) Applies to present and future
conditions substantially identical to
those of the present
Four phases of Government’s budgeting
(4) Applies equally to those who belong to
process:
the same class
(1) Budget preparation
(2) Legislative authorization
Progressive
(3) Budget execution
The rate increases as the tax base increases
(4) Budget accountability
Tax burden is based on the taxpayers’ capacity
to pay
Taxation[Sec. 28] Suited to the social conditions of the people
Nature of provision Reflects aim of the Convention that legislature
Sec. 28 is a listing of the limits on the inherent following social justice command should use
and otherwise unlimited power taxation as an instrument for more equitable
distribution of wealth
Purposes of taxation
Progressive taxation is a directive to Congress
(1) Pay debts and provide for the common and is not a judicially enforceable right
defense and general warfare; [Tolentino v. Secretary of Finance, supra]
(2) Raise revenue;
(3) Instrument of national and social policy; Constitutional Tax Exemptions:
(4) Instrument for extermination of (1) Charitable institutions, churches and
undesirable acts and enterprises; parsonages or convents appurtenant
(5) Tool for regulation; thereto, mosques, non-profit cemeteries,
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Trial
Verified complaint or resolution[Sec. 3(4)]
The SENATE shall have the sole power to try
FILED by 1/3 of all the members of the HOR; and decide all cases of impeachment. [Sec.
trial by Senate forthwith proceeds 3(6)]
By virtue of the expanded judicial review (art.
VIII, sec. 1[2]), the Court’s power of judicial
review extends over justiciable issues arising
in impeachment proceedings. [Francisco v.
HOR (2003)]
BUT the question of whether or not Senate
Impeachment Rules were followed is a
political question. [Corona v. Senate, G.R. No.
200242, Jul. 17, 2012]
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(1) Constituent power, or the power to (5) A resident of the Philippines for at least 10
propose amendements to the Constitution years immediately preceding such
election. [Art. VII, Sec. 2]
(2) Legislative Inquiries
Election:
(3) Appropriation
(1) Regular Election – Second Monday of May
(4) Taxation
(2) National Board of Canvassers (President
(5) Concurrence in treaties and international and Vice-President) – Congress
agreements
(a) Returns shall be transmitted to
(6) War powers and delegation power Congress, directed to the Senate
President
(b) Joint public session – not later than 30
days after election date; returns to be
opened in the presence of the Senate
and HOR in joint session
Jurisprudence on Canvassing:
Congress may validly delegate the initial
determination of the authenticity and due
execution of the certificates of canvass to a
Joint Congressional Committee, composed of
members of both houses. [Lopez v. Senate,
G.R. No. 163556, June 8, 2004]
Even after Congress has adjourned its regular
session, it may continue to perform this
constitutional duty of canvassing the
presidential and vice-presidential election
results without need of any call for a special
session by the President. […] Only when the
board of canvassers has completed its
functions is it rendered functus officio.
[Pimentel, Jr. v. Joint Committee of Congress,
G.R. No. 163783, June 22, 2004].
If the COMELEC is proscribed from conducting
an official canvass of the votes cast for the
President and Vice-President, it is, with more
reason, prohibited from making an “unofficial”
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canvass of said votes. [Brillantes v. COMELEC, by the privilege and submit to the court's
G.R. No. 163193, June 15, 2004] jurisdiction. [Soliven v. Makasiar (1988);
Beltran v. Makasiar (1988)].
The Supreme Court as Presidential Electoral
Tribunal: The Supreme Court, sitting en banc, BUT presidential decisions may be questioned
shall be the sole judge of all contests relating before the courts where there is grave abuse of
to the election, returns and qualifications of discretion or that the President acted without
the President or Vice-President, and may or in excess of jurisdiction.[Gloria v. Court of
promulgate its rules for the purpose. Appeals, G.R. No. 119903, Aug. 15, 2000]
Term of Office: 6 years, which shall begin at Immunity co-extensive with tenure and
noon on the 30th day of June next following the covers only official duties.After tenure, the
day of the election and shall end at noon of the Chief Executive cannot invoke immunity from
same day 6 years thereafter. [Art. VII, Sec. 4] suit for civil damages arising out of acts done
by him while he was President which were not
The PRESIDENT is not eligible for re-election.
performed in the exercise of official duties.
Note: No person who has succeeded as [Estrada v. Desierto, G.R. Nos. 146710-15,
President and has served for more than 4 March 2, 2001]
years shall be qualified for election to the
Cannot be invoked by a non-sitting president.
same office for any length of time. [Art. VII, Sec.
This presidential privilege of immunity cannot
4]
be invoked by a non-sitting president even for
acts committed during his or her tenure.
Courts look with disfavor upon the presidential
A. PRIVILEGES, INHIBITIONS,
privilege of immunity, especially when it
DISQUALIFICATIONS impedes the search for truth or impairs the
vindication of a right. [Saez v. Macapagal-
A.1. PRESIDENTIAL PRIVILEGES Arroyo, 681 SCRA 678 (2012), on an Amparo
petition.]
Exception:The president may be sued if the
President act is one not arising from official conduct.
Official residence [See Estrada v. Desierto, 353 SCRA 452, 523
(2001)]
The president shall have an official residence.
[Sec. 6]
Salary Presidential Privilege
Determined by law. Shall not be decreased The power of the government to withhold
during tenure. No increase shall take effect information from the public, the courts, and
until after the expiration of the term of the the Congress. [Schwart]
incumbent during which such increase was It is "the right of the President and high-level
approved. [Sec. 6] executive branch officers to withhold
Presidential Immunity information from Congress, the courts, and
ultimately the public." [Rozell]
The President as such cannot be sued,
enjoying as he does immunity from suit N.B. Case law uses the term presidential
privilege to refer to either (1) immunity from
But the validity of his acts can be tested by an
suit (i.e. immunity from judicial processes, see
action against other executive officials. Neri v. Senate, infra; accord. Saez v.
[Carillo vs. Marcos (1981)]
Macapagal-Arroyo, supra); or (2) executive
The privilege may be invoked ONLY by the privilege (see Akbayan v. Aquino (2008), as
President. — Immunity from suit pertains to discussed below.
the President by virtue of the office and may be
invoked only by the holder of the office; not by
any other person in the President's behalf. The A.2. THE VICE-PRESIDENT
President may waive the protection afforded
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Qualifications, election and term of office and (4) Strictly avoid conflict of interest in the
removal are same as the President, except conduct of their office [Sec. 13]
that no Vice-President shall serve for more
(5) May not appoint (a) spouse or (b) relatives
than 2 successive terms.
by consanguinity or affinity within the
The Vice-President may be appointed as fourth civil degree as members of
member of the Cabinet; such requires no Constitutional Commissions, or the Office
confirmation by the Commission of of the Ombudsman, or as Secretaries,
Appointments. Undersecretaries, chairmen or heads of
bureaus or offices, including government-
owned or controlled corporation and their
A.3. PROHIBITIONS ON THE EXECUTIVE subsidiaries.
DEPARTMENT
The stricter prohibition applied to the
The following prohibitions apply to: President and his official family under Art. VII,
Sec. 13, as compared to the prohibition
(1) President
applicable to appointive officials in general
(2) Vice-President, under Art. IX-B, Sec. 7, par. 2, which is proof of
(3) The members of the Cabinet, and their the intent of the 1987 Constitution to treat
deputies or assistants them as a class by itself and to impose upon
said class stricter prohibitions. [Civil Liberties
Prohibited Acts Union v. Executive Secretary (1991)]
(1) Shall not receive any other emoluments
from the government or any other source.
[For President and Vice-President, Sec. 6] Exceptions to rule prohibiting executive
officials from holding additional positions:
(2) Unless otherwise provided in the
constitution, shall not hold any other President
office or employment. [Sec. 13] (1) The President can assume any or all
(a) The prohibition does not include posts Cabinet posts (because the departments
occupied by executive officials without are mere extensions of his personality,
additional compensation in an ex- according to the Doctrine of Qualified
officio capacity, as provided by law or Political Agency, so no objection can be
as required by the primary functions of validly raised based on Art. VII, Sec. 13.)
the said official’s office. (2) The President can assume ex officio
(b) The ex-officio position being actually positions. (e.g. The President is the
(i.e. merely additional duty) and in Chairman of NEDA. [Art. XII, Sec. 9])
legal contemplation part of the Vice-President
principal office, it follows that the
official concerned has no right to “xxx The Vice-President may be appointed as
receive additional compensation for member of the Cabinet. Such appointment
his services in said position. (National requires no confirmation” [Art. VII, Sec. 3]
Amnesty Commission v. COA, G.R. No.
156982, September 8, 2004)
(3) Shall not directly or indirectly (a) practice Cabinet
any other profession; (b) participate in any Art. VII, Sec. 13. The President, Vice-President,
business; or (c) be financially interested in the Members of the Cabinet, and their
any contract with, or in any franchise or deputies or assistants shall not, unless
special privilege granted by the otherwise provided in this Constitution, hold
government or any subdivision, agency, or any other office or employment during their
instrumentality thereof, including tenure. […]
government-owned or controlled
corporations or their subsidiaries. [Sec. 13] Art. IX-B, Sec. 7. No elective official shall be
eligible for appointment or designation in any
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capacity to any public office or position during that the laws be faithfully executed. [Art. VII,
his tenure. Sec. 17]
Unless otherwise allowed by law or by the The President’s power to conduct
primary functions of his position, no appointive investigations to aid him in ensuring the
official shall hold any other office or faithful execution of laws – in this case,
employment in the Government or any fundamental laws on public accountability
subdivision, agency or instrumentality thereof, and transparency – is inherent in the
including Government-owned or controlled President’s powers as the Chief Executive […]
corporations or their subsidiaries. [T]he purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into
"[U]nless otherwise provided by the matters which the President is entitled to
Constitution." [Art. VII, Sec. 13] Only cases know so that he can be properly advised and
contemplated are: guided in the performance of his duties
(1) The Vice-President being appointed as relative to the execution and enforcement of
member of the cabinet. the laws of the land. [Biraogo v. Philippine
Truth Commission (2010)]
(2) The Vice-President acting as president
when one has not yet been chosen or One Executive:This power is exercised by the
qualified. [Art. VII, Sec. 7(2),(3)] President. [Art. VII, Sec. 1]
(3) The Secretary of Justice sitting as ex- As administrative head of the government, the
officio member of the Judicial and Bar President is vested with the power to execute,
Council. [Art. VIII, Sec. 8(1)]; [Civil Liberties administer and carry out laws into practical
Union, supra] operation. [National Electrification
Commission vs. CA (1997)]
Thus, the Constitution allows a Cabinet
member to hold another office provided: Presidential Powers (Summary)
(a) It is in an ex-officio capacity and without (1) Executive Power - Power to enforce and
additional compensation; administer laws;
(b) Such is necessitated by the primary (2) Power of Appointment - Legislative can
functions of his position (e.g. Secretary of create office, but only executive can fill
Trade and Industry as Chairman of NDC; it; Congress cannot circumvent this by
Secretary of Agrarian Reform as Chairman setting very narrow qualifications, such
of the Land Bank); AND that only one person is qualified to hold
office (See Flores v. Drilon, G.R. No.
(c) Such is allowed by law. [Civil Liberties 104732, Jun. 22, 1993)
Union, supra]
(3) Power of Control – (a) Nullify, modify
N.B. Art. IX-B, Sec. 7 is the general rule for judgments of subordinates [See Art. VII,
appointed officials. It is not an exception to Art. Sec. 17]; (b) undo or redo actions of
VII, Sec. 13, which is a specific rule for subordinates; and (c) lay down rules for
members of the Cabinet, their deputies and the performance of subordinates’
assistants inter alia. [See Civil Liberties Union, duties;
supra]
(4) Power of Supervision - Oversight
function; see to it that rules, which they
B. POWERS did not make, are followed;
(5) Commander-in-Chief Powers [Art. VII,
B.1. EXECUTIVE AND ADMINISTRATIVE Sec. 18]
POWERS IN GENERAL (a) Call Out Power - Armed forces to
Executive power suppress lawless violence;
The power to enforce, implement, and (b) Suspension of Writ of Habeas
administer laws. The president shall ensure Corpus- Only (a) in times of
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rebellion or invasion AND (b) when Sec. 16. The President shall nominate and,
required by public safety with the consent of the Commission on
(c) Martial Law – N.B. Does not Appointments, appoint the heads of the
suspend Constitution executive departments, ambassadors, other
public ministers and consuls, or officers of the
(6) Power over Legislation armed forces from the rank of colonel or naval
(a) Veto Power captain, and other officers whose
appointments are vested in him in this
(b) Power to Declare Emergency - Constitution. He shall also appoint all other
Declaration only; exercise of officers of the Government whose
emergency power is vested in appointments are not otherwise provided for
Congress, but may be delegated by by law, and those whom he may be authorized
it to the President. by law to appoint. The Congress may, by law,
(c) Integrative Power - Powers shared vest the appointment of other officers lower in
with legislative (e.g. appointments rank in the President alone, in the courts, or in
requiring confirmation, rule- the heads of departments, agencies,
making); legislation during times of commissions, or boards. […]
emergency Definition: The selection, by the authority
(7) Diplomatic Powers - Including Power to vested with the power, of an individual who is
Enter into Treaties to exercise the functions of a given office.
(8) Residual Power - To protect the general
welfare of people; founded on duty of Appointment is distinguished from:
President as steward of the people;
includes powers unrelated to execution (1) Designation – Imposition of additional
of any provision of law [See Marcos v. duties, usually by law, on a person already
Manglapus] in the public service.
(9) Other Powers (2) Commission – Written evidence of the
appointment.
(a) Power to Pardon - Reprieve,
commute, pardon, remit fines and
forfeitures after final judgment [Art. Elements for a valid appointment:
VII, Sec. 19(1)]
(3) Authority to appoint and evidence of the
(b) Power to Grant Amnesty - With exercise of the authority;
concurrence of majority of all
members of Congress (4) Transmittal of the appointment paper and
evidence of the transmittal (preferably
(c) Borrowing Power - Contract or through the Malacañang Records Office);
guarantee foreign loans with
concurrence of Monetary Board (3) Vacant position at the time of
[Art. VII, Sec. 20] appointment; and
(d) Budgetary Power - Submit to (4) Receipt of the appointment paper and
congress budget of bills and acceptance of the appointment by the
expenditures [Art. VII, Sec. 22] appointee who possesses all the
qualifications and none of the
(e) Informing Power – Address disqualifications.
Congress during opening of session,
or at any other time [Art. VII, Sec. All these elements should always apply,
23] regardless of when the appointment is made,
whether outside, just before, or during the
appointment ban. [Velicaria-Garafil v. Office
B.2. POWER OF APPOINTMENT of the President, G.R. No. 203372 (2015)] (N.B.
Outside of the bar coverage)
In General
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(4) Those other officers lower in rank whose Steps in the appointing process:
appointment is vested by law in the
Nomination by the President
President.
Notes:
In the case of ad interim appointments, steps
For the Supreme Court, the appointment
1, 3 and 4 precede step 2.
must be made 90 days from when the
vacancy occurs [Art VIII, Sec. 4(1)]
For lower courts, appointment shall be An appointment is deemed complete only
issued within 90 days from submission of upon acceptance. [Lacson v. Romero, 84 Phil.
the list 740 (1949)]
(2) Ombudsman and his 5 deputies (for Luzon, Appointment is essentially a discretionary
Visayas, Mindanao, general and military) power, the only condition being that the
[Art. XI, Sec. 9] appointee, if issued a permanent appointment,
should possess the minimum qualification
All vacancies shall be filled within 3 months
after they occur.
requirements, including the Civil Service
eligibility prescribed by law for the position.
This discretion also includes the
Sarmiento v. Mison (1987): determination of the nature or character of the
appointment.
Const. Text: "The Congress may, by law, vest
in the appointment of other officers lower in
rank in the President alone". This meant that Regular and recess (ad interim)
until a law is passed giving such appointing appointments
power to the President alone, then such
2 Kinds of Appointments Requiring
appointment has to be confirmed.
Confirmation:
Held:The inclusion of the word "alone" was an
(3) Regular: if the CA (Congress) is in session;
oversight. Thus, the Constitution should read
and
"The Congress may, by law, vest the
appointment of other officers lower in rank in (4) Ad Interim: during the recess of Congress
the President." (because the CA shall meet only while
Congress is in session [Art. VI, Sec. 19])
Regular appointment
(1) Made by the President while Congress is in
session
(2) Takes effect only after confirmation by the
Commission on Appointments (CA)
(3) Once approved, continues until the end of
the term. Note: The mere filing of a motion
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next adjournment of the Congress. (art. VII, (1) Appointments extended by an Acting
sec. 16[2]) President shall remain effective unless
revoked by the elected President within
ninety days from his assumption or re-
Midnight Appointments Ban assumption of office. [Art. VII, Sec. 14]
General Rule: Two months immediately (2) Midnight appointments ban applies to the
before the next presidential elections (2nd acting president.
Monday of March), and up to the end of his
"term" (June 30), a President (or Acting
President) shall not make appointments. (Art. Power of Removal
VII, Sec. 15) General Rule: The power of removal may be
Exception: Temporary appointments to implied from the power of appointment.
executive positions, when continued vacancies Exception: The President cannot remove
will: (a) prejudice public service; or (b) officials appointed by him where the
endanger public safety. Constitution prescribes certain methods for
separation of such officers from public service,
e.g. Chairmen and Commissioners of
Limited to Executive Department- The Constitutional Commissions who can be
prohibition against midnight appointment removed only by impeachment, or judges who
applies only to positions in the executive are subject to the disciplinary authority of the
department. [De Castro v. JBC, G. R. No. Supreme Court.
191002, Mar. 17, 2010]
Career Civil Service: Members of the career
N.B. In re: Valenzuela [A.M. No. 98-5-01-SC, civil service of the Civil Service who are
November 9, 1998], which extended the appointed by the President may be directly
prohibition for midnight appointments to the disciplined by him (Villaluz v. Zaldivar, 15
judiciary, was effectively overturned. SCRA 710)
Serve at the pleasure of the president: Cabinet
Limited to Caretaker Capacity- While members and such officers whose continuity in
"midnight appointments" (i.e. made by office depends upon the pleasure of the
outgoing President near the end of his term) president may be replaced at any time, but
are not illegal, they should be made in the legally speaking, their separation is effected
capacity of a "caretaker" [a new president not by removal but by expiration of their term
being elected], doubly careful and prudent in of the appointee.
making the selection, so as not to defeat the
policies of the incoming administration.
Hence, the issuance of 350 appointments in
one night and the planned induction of almost
all of them a few hours before the
inauguration of the new President may be
regarded as abuse of presidential prerogatives.
[Aytona v. Castillo (1962)] (N.B. The 1935
Const. did not contain an explicit prohibition
on midnight appointments)
Applies only to President- Ban does not
extend to appointments made by local elective
officials. There is no law that prohibits local
elective officials from making appointments
during the last days of his or her tenure. [De
Rama v. CA (2001)]
Appointing power of the ACTING
PRESIDENT
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Control
Power to Abolish Offices
Control is essentially the power to [a] alter or
modify or nullify or set aside what a Generally, power to abolish a public office is
subordinate officer had done in the legislative. BUT, as far as bureaus, offices, or
performance of his duties and to [b] substitute agencies of the executive dep’t are concerned,
the judgment of the former with that of the power of control may justify him to inactivate
latter. [Biraogo v Philippine Truth Commission functions of a particular office. (See Buklod ng
(2010)] Kawaning EIIB v. Zamora, 360 SCRA 718
[2001], where the President effectively
The President may, by executive or abolished the Economic Intelligence Bureau
administrative order, direct the reorganization by “deactivating” it, transferring its functions
of government entities under the Executive to other agencies.)
Department. This is also sanctioned under the
Constitution, as well as other statutes [e.g. In establishing an executive department,
Admin. Code]. This recognizes the recurring bureau or office, the legislature necessarily
need of every President to reorganize his or her ordains an executive agency’s position in the
office “to achieve simplicity, economy and scheme of administrative structure. Such
efficiency,” in the manner the Chief Executive determination is primary, but subject to the
deems fit to carry out presidential directives President’s continuing authority to reorganize
and policies. [Tondo Medical Employees v CA the administrative structure. [Anak Mindanao
[2007]] v. Executive Secretary (2007)]
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General Supervision over Local Government includes the ability of the President to restrict
Units and the Autonomous Regions the travel, movement and speech of military
officers, activities which may otherwise be
The President shall exercise general
sanctioned under civilian law. [Gudani v.
supervision over local governments. [Art. X,
Senga, G.R. No. 170165, August 15, 2006]
Sec. 4]
The President shall exercise general
supervision over autonomous regions to Graduated Powers – Art. VII, sec. 18 grants
ensure that laws are faithfully executed. [Art. the President, as Commander-in-Chief, a
X, Sec. 16] “sequence” of “graduated power[s].” From
the most to the least benign, these are: (1)
The President may suspend or remove local
the calling out power, (2) the power to
officials by virtue of the power delegated to
suspend the privilege of the writ of habeas
him by Congress through the Local
corpus, and the (3) power to declare martial
Government Code. The Constitution also
law. In the exercise of the latter two powers,
places local governments under the general
the Constitution requires the concurrence of
supervision of the president [supra], and also
two conditions, namely, an actual invasion
allows Congress to include in the local
or rebellion, and that public safety requires
government code provisions for removal of
the exercise of such power. However, as we
local officials (see Art. X, Sec. 3). [See Ganzon
observed in Integrated Bar of the
v. CA (1991)]
Philippines v. Zamora, “these conditions are
not required in the exercise of the calling out
B.4. MILITARY POWERS power. The only criterion is that ‘whenever
it becomes necessary,’ the President may
Commander-in-chief powers[Art. VII, Sec. 18] call the armed forces ‘to prevent or suppress
(1) He may call out such armed forces to lawless violence, invasion or rebellion.’
prevent or suppress lawless violence, [Sanlakas v. Executive Secretary (2004)]
invasion or rebellion.
(2) He may suspend the privilege of the writ of Call out the AFP to prevent lawless violence
habeas corpus, or
This is merely a police measure meant to quell
(3) He may proclaim martial law over the disorder. As such, the Constitution does not
entire Philippines or any part thereof. regulate its exercise radically.
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required under the Consititution: a review of (4) Limit on Calling out Power. —Test of
the factual basis of the Constitution. [Lagman Arbitrariness: The question is not whether
v. Medialdea, G.R. 231658, (2017) NB: Outside the President or Congress acted correctly,
Bar Coverage] but whether he acted arbitrarily in that the
action had no basis in fact. [IBP v. Zamora,
Note: Calling-out power is purely discretionary
(2000)]. This amounts to a determination
on the President; the Constitution does not
of whether or not there was grave abuse of
explicitly provide for a judicial review of its
discre¬tion amounting to lack or excess of
factual basis. (IBP v. Zamora [2001])
jurisdiction.
(2) The jurisdiction of the SC may be invoked
in a proper case.
There are 4 ways, then, for the proclamation
Although the Constitution reserves
or suspension to be lifted:
to the Supreme Court the power to
review the sufficiency of the factual (1) Lifting by the President himself
basis of the proclamation or
(2) Revocation by Congress
suspension in a proper suit, it is
implicit that the Court must allow (3) Nullification by the Supreme Court
Congress to exercise its own review
(4) By operation of law, after 60 days
powers, which is automatic rather
than initiated. Only when Congress Cf. RA 7055 (1991) "An Act Strengthening
defaults in its express duty to Civilian Supremacy over the Military by
defend the Constitution through Returning to the Civil Courts the Jurisdiction
such review should the Supreme over Certain Offenses involving Members of
Court step in as its final rampart. the Armed Forces of the Philippines, other
The constitutional validity of the Persons Subject to Military Law, and the
President’s proclamation of martial Members of the Philippine National Police,
law or suspension of the writ of Repealing for the Purpose Certain Presidential
habeas corpus is first a political Decrees"
question in the hands of Congress RA 7055 effectively placed upon the civil
before it becomes a justiciable one courts the jurisdiction over certain offenses
in the hands of the Court. involving members of the AFP and other
If the Congress procrastinates or members subject to military law.
altogether fails to fulfill its duty RA 7055 provides that when these individuals
respecting the proclamation or commit crimes or offenses penalized under
suspension within the short time the RPC, other special penal laws, or local
expected of it, then the Court can government ordinances, regardless of
step in, hear the petitions whether civilians are co-accused, victims, or
challenging the President’s action, offended parties which may be natural or
and ascertain if it has a factual juridical persons, they shall be tried by the
basis. [Fortun v. Macapagal-Arroyo, proper civil court, except when the offense, as
G.R. No. 190293, Mar. 20, 2012] determined before arraignment by the civil
(3) Petition for habeas corpus court, is service-connected in which case it
shall be tried by court-martial.
(a) When a person is arrested without a
warrant for complicity in the rebellion The assertion of military authority over
or invasion, he or someone else in his civilians cannot rest on the President's power
behalf has the standing to question as Commander in Chief or on any theory of
the validity of the proclamation or martial law. As long as civil courts remain
suspension. open and are regularly functioning, military
tribunals cannot try and exercise jurisdiction
(b) Before the SC can decide on the
over civilians for offenses committed by them
legality of his detention, it must first
and which are properly cognizable by civil
pass upon the validity of the
courts. To hold otherwise is a violation of the
proclamation or suspension.
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upon which the sentence shall be amnesty proclamation covered only acts in the
suspended. [Reyes] furtherance of resistance to duly constituted
authorities of the Republic and applies only to
members of the MNLF, or other anti-
Application of Pardoning Powers to Admin. government groups. [Macagaan v. People
Cases (1987)]
(1) If the President can grant reprieves, [Respondents] may avail of the tax amnesty
commutations and pardons, and remit even if they have pending tax assessments. A
fines and forfeitures in criminal cases, with tax amnesty, being a general pardon or
much more reason can she grant executive intentional overlooking by the State of its
clemency in administrative cases, which authority to impose penalties on persons
are clearly less serious than criminal otherwise guilty of evasion or violation of a
offenses. revenue or tax law, partakes of an absolute
forgiveness or waiver by the Government of its
(2) However, the power of the President to
right to collect what otherwise would be due it.
grant executive clemency in administrative
[Republic v. IAC (1991)]
cases refers only toadministrative cases in
the Executive branch. [Llamas v. Executive
Secretary (1991)]
B.6. DIPLOMATIC POWER
Removal of Administrative Penalties or
Scope of Diplomatic Power
Disabilities
The President, being the head of state, is
In meritorious cases and upon regarded as the sole organ and authority in
recommendation of the (Civil Service) external relations and is the country’s sole
Commission, the President may commute or representative with foreign nations. As the
remove administrative penalties or disabilities chief architect of foreign policy, the President
imposed upon officers or employees in acts as the country’s mouthpiece with respect
disciplinary cases, subject to such terms and to international affairs.
conditions as he may impose in the interest of
the service. [Sec. 53, Chapter 7, Subtitle A, The President is vested with the authority to:
Title I, Book V, Administrative Code of 1987] (1) Deal with foreign states and governments;
(2) Extend or withhold recognition;
Who may avail of amnesty? (3) Maintain diplomatic relations;
Generally: Individuals who form part of the (4) Enter into treaties; and
class of persons covered by an amnesty
proclamation whose acts constitute the (5) Transact the business of foreign relations.
political offenses covered by the same. [Pimentel v. Executive Secretary, G.R. No.
158088, July 6, 2005]
(Asked 5 times in the Bar; answers from case
law)
Amnesty Proclamation No. 76 applies even to Treaty-making power
Hukbalahaps already undergoing sentence No treaty or international agreement shall be
upon the date of its promulgation. The valid and effective unless concurred in by at
majority of the Court believes that by its least two-thirds of all the members of the
context and pervading spirit the proclamation Senate. [Art. VII, Sec. 21]
extends to all members of the Hukbalahap. Treaty -As defined by the Vienna Convention
[Tolentino v. Catoy (1948)] on the Law of Treaties, “an international
The SC agreed with the Sandiganbayan that in instrument concluded between States in
fact the petitioners were expressly disqualified written form and governed by international
from amnesty. The acts for which they were law, whether embodied in a single instrument
convicted were ordinary crimes without any or in two or more related instruments, and
political complexion and consisting only of whatever its particular designation.” [Bayan v.
diversion of public funds to private profit. The
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Executive Secretary, G.R. No. 138570, Oct. 10, [Saguisag v. Executive Secretary, G.R. No.
2000] 212426 (2016)] (N.B. Outside of the bar
coverage)
Other terms for a treaty: act, protocol,
agreement, compromis d’ arbitrage, Visiting Forces Agreement (VFA)
concordat, convention, declaration, exchange
The VFA, which is the instrument agreed upon
of notes, pact, statute, charter and modus
to provide for the joint RP-US military
vivendi.
exercises, is simply an implementing
Note: It is the President who RATIFIES a treaty agreement to the main RP-US Military
(not the Senate), the Senate merely Defense Treaty. The VFA is therefore valid for
CONCURS. [Bayan v. Executive Secretary, it is a presence “allowed under” the RP-US
supra]Thus, the President cannot be Mutual Defense Treaty. Since the RP-US
compelled to submit a treaty to the Senate for Mutual Defense Treaty itself has been ratified
concurrence; she has the sole power to submit and concurred in by both the Philippine
it to the Senate and/or to ratify it. [Bayan Senate and the US Senate, there is no
Muna v. Romulo (2011)] violation of the Constitutional provision
resulting from such presence. [Nicolas v.
Romulo (2009)]
Military Bases Treaty
Art. XVIII, Sec. 25. After the expiration in 1991 of Executive Agreements
the Agreement between the Philippines and the
United States of America concerning Military (1) Entered into by the President
Bases, foreign military bases, troops, or facilities (2) May be entered into without the
shall not be allowed in the Philippines except concurrence of the Senate.
under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a (3) Distinguished from treaties- International
majority of the votes cast by the people in a agreements involving political issues or
national referendum held for that purpose, and changes in national policy and those
recognized as a treaty by the other contracting involving international agreements of
State. permanent character usually take the form
of TREATIES. But the international
The President, however, may enter into an agreements involving adjustments in detail
executive agreement on foreign military bases, carrying out well-established national
troops, or facilities, if: policies and traditions and those involving
(a) it is not the instrument that allows the a more or less temporary character usually
presence of foreign military bases, take the form of EXECUTIVE
troops, or facilities; or AGREEMENTS. [Commissioner of Customs
vs. Eastern Sea Trading (1961)]
(b) it merely aims to implement an
existing law or treaty However, From the point of view of
international law, there is no
Sec. 25 refers solely to the initial entry of the difference between treaties and
foreign military bases, troops, or facilities. executive agreements in their binding
To determine whether a military base or effect upon states concerned as long
facility in the Philippines, which houses or is as the negotiating functionaries have
accessed by foreign military troops, is foreign remained within their powers. The
or remains a Philippine military base or distinction between an executive
facility, the legal standards are: agreement and a treaty is purely a
constitutional one and has no
(a) independence from foreign control;
international legal significance.
(b) sovereignty and applicable law; and [USAFFE Veterans Assn. v. Treasurer
(1959)]
(c) national security and territorial
integrity. NOTE: An executive agreement that does not
require the concurrence of the Senate for its
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ratification may not be used to amend a treaty [Qua Chee Gan v. Deportation Board,
that, under the Constitution, is the product of supra]
the ratifying acts of the Executive and the
Senate. [Bayan Muna v. Romulo (2011)]
Scope of the power
(1) The Deportation Board can entertain
Two Classes of Executive Agreements
deportation based on grounds not
(1) Agreements made purely as executive acts specified in Sec. 37 of the Immigration Law.
affecting external relations and The Board has jurisdiction to investigate
independent of or without legislative the alien even if he had not been convicted
authorization, which may be termed as yet.
presidential agreements; and
(2) The President’s power to deport aliens and
(2) Agreements entered into in pursuance of to investigate them subject to deportation
acts of Congress, or Congressional- are provided in [now, Chapter 3, Book III,
Executive Agreements. of the Admin. Code of 1987].
(3) The State has inherent power to deport
undesirable aliens. This power is
Although the President may, under the
exercised by the President.
American constitutional system enter into
executive agreements without previous (4) There is no legal or constitutional
legislative authority, he may not, by executive provision defining the power to deport
agreement, enter into a transaction which is aliens because the intention of the law is
prohibited by statutes enacted prior thereto. to grant the Chief Executive the full
He may not defeat legislative enactments that discretion to determine whether an alien’s
have acquired the status of law by indirectly residence in the country is so undesirable
repealing the same through an executive as to affect the security, welfare or interest
agreement providing for the performance of of the state.
the very act prohibited by said laws. [Gonzales
(5) The Chief Executive is the sole and
v. Hechanova (1963)]
exclusive judge of the existence of facts
Once the Senate performs the power to concur which would warrant the deportation of
with treaties or exercise its prerogative within aliens. [Go Tek v. Deportation Board
the boundaries prescribed by the Constitution, (1977)]
the concurrence cannot be viewed as an abuse
of power, much less a grave abuse of
discretion. [Bayan v. Executive Secretary, B.7. POWERS RELATIVE TO
supra, on the constitutionality of the Visiting APPROPRIATION MEASURES
Forces Agreement]
Contracting and guaranteeing foreign loans
Requisites for contracting and guaranteeing
Deportation of Undesirable Aliens foreign loans:
The President may deport only according to (1) With the concurrence of the monetary
grounds enumerated by law, otherwise it board [Art. VII, Sec. 20]
would be unreasonable and undemocratic.
(2) Subject to limitations as may be provided
[Qua Chee Gan v. Deportation Board (1963)]
by law [Art. XII, Sec. 2]
(3) Information on foreign loans obtained or
2 Ways of Deporting an Undesirable Alien guaranteed shall be made available to the
public [Art. XII, Sec. 2]
(1) By order of the President after due
investigation, pursuant to [now Ch. 3, Bk.
III of the Admin. Code of 1987];
Cf. Republic Act 4860
(2) By the Commissioner of Immigration
An Act Authorizing The President Of The
under Section 37 of the Immigration Law
Philippines To Obtain Such Foreign Loans And
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(3) The bill passed is the special law to elect (2) Deliberative Process Privilege (Executive
the President and Vice-President. Officials): refer to materials that comprise
part of a process by which governmental
Limitations to the Veto Power:
decisions and policies are formulated.
The President may only veto bills as a whole. This includes diplomatic processes. [See
(See Legislative Power of Congress) Akbayan v. Aquino (2008)]
Exception: In appropriation, revenue, or tariff Varieties of Executive Privilege (US):
bills, the President may veto particular items.
(1) State secrets privilege - invoked by U.S.
It is true that the Constitution provides a Presidents, beginning with Washington,
mechanism for overriding a veto [Art. VI, Sec. on the ground that the information is of
27(1)]. Said remedy, however, is available only such nature that its disclosure would
when the presidential veto is based on policy subvert crucial military or diplomatic
or political considerations but not when the objectives.
veto is claimed to be ultra vires. In the latter
(2) Informer’s privilege - the privilege of the
case, it becomes the duty of the Court to draw
Government not to disclose the identity of
the dividing line where the exercise of
persons who furnish information of
executive power ends and the bounds of
violations of law to officers charged with
legislative jurisdiction begin. [PHILCONSA v.
the enforcement of that law.
Enriquez (1994)]
(3) Generic privilege for internal
B.10. RESIDUAL POWERS
deliberations - has been said to attach to
General doctrine:The President has unstated intragovernmental documents reflecting
residual powers, which are implied from the advisory opinions, recommendations and
grant of executive power necessary for her to deliberations comprising part of a process
comply with her Constitutional duties, such as by which governmental decisions and
to safeguard and protect the general welfare. policies are formulated. [Senate v. Ermita,
It includes powers unrelated to the execution G.R. No. 163783, Jun. 22, 2004]
of any provision of law. [See Marcos v.
Manglapus (1988)]
Scope: This jurisdiction recognizes the
In Marcos v. Manglapus, supra, the Court held
common law holding that there is a
that then-President Corazon Aquino had the
"governmental privilege against public
power to prevent the Marcoses from returning
disclosure with respect to state secrets
to the Philippines on account of the volatile
regarding military, diplomatic and other
national security situation. This was limited
national security matters." Closed-door
only by two standards: (1) there must be a
Cabinet meetings are also a recognized
factual basis for the impairment of the
limitation on the right to information.
Marcoses’ right to return (as distinguished
from their right to travel, which is a Note: Executive privilege is properly invoked in
constitutional right); and (2) the impairment relation to specific categories of information
must not be arbitrary. and not to categories of persons—it attaches
to the information and not the person. Only
N.B. The decision was pro hac vice.
the [1] President (and the [2] Executive
Secretary, by order of the President) can
invoke the privilege. (Senate v. Ermita, supra).
B.11. EXECUTIVE PRIVILEGE
Synthesis of Jurisprudential Doctrines
2 Kinds of Executive Privilege in Neri v.
Senate (2008) The following are the requisites for invoking
presidential privilege:
(1) Presidential Communications Privilege
(President): communications are (1) Formal claim of privilege:For the privilege
presumptively privileged; president must to apply there must be a formal claim of
be given freedom to explore alternatives in the privilege. Only the President or the
policy-making. Executive Secretary (by authority of the
President) can invoke the privilege; and
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(2) Specificity requirement:A formal and proximity” with the President (i.e. officials
proper claim of executive privilege who stand proximate to the President, not
requires a specific designation and only by reason of their function, but also by
description of the documents within its reason of their positions in the Executive’s
scope as well as precise and certain organizational structure);
reasons for preserving confidentiality.
(3) No adequate need:The privilege may be
Without this specificity, it is impossible for
overcome by a showing of adequate need,
a court to analyze the claim short of
such that the information sought “likely
disclosure of the very thing sought to be
contains important evidence,” and by the
protected. [Senate v. Ermita, supra]
unavailability of the information
Once properly invoked, a presumption arises elsewhere by an appropriate investigating
that it is privileged. If what is involved is the authority. [Neri v. Senate, supra. See
presumptive privilege of presidential Akbayan v. Aquino (2008) for application
communications when invoked by the of this principle.]
President on a matter clearly within the
Diplomatic Negotiations Privilege
domain of the Executive, the said presumption
dictates that the same be recognized and be While the final text of the Japan-Philippines
given preference or priority, in the absence of Economic Partnership Agreement (JPEPA)
proof of a compelling or critical need for may not be kept perpetually confidential, the
disclosure by the one assailing such offers exchanged by the parties during the
presumption. [Neri v. Senate, G.R. No. 180843, negotiations continue to be privileged even
Mar. 25, 2008] after the JPEPA is published. The Japanese
representatives submitted their offers with the
understanding that “historic confidentiality”
Requisites for validity of claim of privilege: would govern the same. Disclosing these
offers could impair the ability of the
(1) Quintessential and non-delegable
Philippines to deal not only with Japan but
presidential power:Power subject of the
with other foreign governments in future
legislative inquiry must be expressly
negotiations. The objective of the privilege is
granted by the Constitution to the
to enhance the quality of agency decisions. In
President, e.g commander-in-chief,
assessing claim of privilege for diplomatic
appointing, pardoning, and diplomatic
negotiations, the test is whether the privilege
powers;
being claimed is indeed supported by public
(2) Operational Proximity Test: It must be policy. This privilege may be overcome upon
authored, solicited, and received by a “sufficient showing of need”. [Akbayan v.
close advisor of the President or the Aquino (2008)]
President himself. The judicial test is that
an advisor must be in “operational
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C. RULES ON SUCCESSION
C.1. PRESIDENT
Death or permanent disability of Vice-President-elect shall
the President-elect become President
President-elect fails to qualify Vice-President-elect shall act as
President until the President-
elect shall have qualified
President shall not have been Vice-President-elect shall act as
Vacancy chosen President until a President shall
at the have been chosen and qualified.
Beginning
of the No President and Vice-President Senate President or, in case of In the event of inability of
term chosen nor shall have qualified, his inability, Speaker of the the SP and Speaker,
or both shall have died or House of Representatives, shall Congress shall, by law,
become permanently disabled act as President until a provide for the manner in
President or a Vice-President which one who is to act as
shall have been chosen and President shall be selected
qualified. until a President or Vice-
President shall have
qualified.
Death, permanent disability, Vice-President shall become
removal from office, or President
resignation of the President
Death, permanent disability, Senate President or, in case of Congress shall, by law,
removal from office, or his inability, the Speaker of the provide who shall serve as
Vacancy resignation of President AND House of Representatives, shall Presidentin case of death,
during Vice-President act as President until a permanent disability, or
the term President or Vice-President shall resignation of the Acting
be elected and qualified. President. He shall serve
until the President or the
Vice-President shall have
been elected and qualified.
When President transmits to the Such powers and duties shall be
Senate President and the discharged by the Vice-President
Speaker of the House his written as Acting President, until the
Temporary declaration that he is unable to President transmits to them a
disability discharge the powers and duties written declaration to the
of his office contrary
When a Majority of all the The Vice-President shall
members of the Cabinet transmit immediately assume the powers
to the Senate President and the and duties of the office as Acting
Speaker their written declaration President until the President
that the President is unable to transmits to the Senate
discharge the powers and duties President and Speaker his
of his office written declaration that no
inability exists.
If after the President transmits Congress determines by a 2/3 Congress shall convene, if
his declaration of his ability to vote of both houses, voting not in session, within 48
discharge his office, and a separately, that the President is hours. And if within 10 days
majority of members of the unable to discharge the powers from receipt of the last
Cabinet transmit within 5 days and duties of his office, the Vice- written declaration or, if not
to the Senate President and President shall act as President; in session, within 12 days
Speaker their written declaration otherwise, the President shall after it is required to
that the President is unable to continue exercising the powers assemble.
discharge the powers and duties and duties of his office
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[Art. VII, Sec. 10] – The Congress shall, at 10AM of the 3rd day after the vacancy in the offices of the President and
Vice-President occurs:
the offices of the President and Vice-President occurs:
(1) Convene in accordance with its rules without need of a call; and
(2) Within seven days, enact a law calling for a special election to elect a President and a Vice-President to be held
not earlier than forty-five days nor later than sixty days from the time of such call.
The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special
election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph
4, Section 25, Article V1 of this Constitution. The convening of the Congress cannot be suspended nor the special
election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date
of the next presidential election.
[Art. VII, Sec. 9.] The President shall nominate a Vice-President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all the members of both
houses of Congress voting separately.
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Cases that are or have become moot and Legislators, when the powers of Congress are
academic, i.e. cease to present a justiciable being impaired. [PHILCONSA v. Enriquez, GR
controversy due to supervening events [David No. 113105 (1994)]
v. Macapagal-Arroyo (2006)]. Citizens, when the enforcement of a public
Locus standi right is involved. [Tañada vs Tuvera, GR No. L-
Legal standing or locus standi refers to a 63915 (1985)]
party’s personal and substantial interest in a Any Filipino citizen in representation of others,
case, arising from the direct injury it has including minors or generations yet unborn,
sustained or will sustain as a result of the may file an action to enforce rights or
challenged governmental action. Legal obligations under environmental laws
standing calls for more than just a generalized [Resident Marine Mammals of the Protected
grievance. The term “interest” means a Seascape Tanon Strait v. Reyes, G.R. No.
material interest, an interest in issue affected 180771 (2015)]
by the governmental action, as distinguished
from mere interest in the question involved, or Special Rules on Standing (Requisites)
a mere incidental interest. Unless a person’s
(1) Appropriation;
constitutional rights are adversely affected by Taxpayer
a statute or governmental action, he has no (2) Disbursement
legal standing to challenge the statute or (1) Direct injury,
governmental action. [CREBA v. Energy (2) Public right; OR Art. VII,
Regulatory Commission, G.R. No. 174696 Sec. 18 (on the sufficiency of
(2010)] Citizen the factual basis for martial
A proper party is one who has sustained or is law or suspension of the
privilege of the writ of
in imminent danger of sustaining a direct
Habeas Corpus)
injury as a result of the act complained of[IBP v.
Zamora, GR No. 141284 (2000)]. The alleged Voter Right of suffrage is involved
injury must also be capable of being redressed (1) Authorized;
by a favorable judgment [Tolentino v. (2) Affects legislative
Legislator
COMELEC, G.R. No. 148334 (2004)]. prerogatives (i.e. a
Requires partial consideration of the merits of derivative suit)
the case in view of its constitutional and public (1) Litigants must have
policy underpinnings [Kilosbayan vs Morato, injury-in-fact;
GR No. 118910(1995)] (2) Litigants must have
May be brushed aside by the court as a mere close relation to the third-
procedural technicality in view of Third-Party party; and
transcendental importance of the issues Standing (3) There is an existing
hindrance to the third
involved [Kilosbayan v. Guingona G.R. No. party’s ability to protect its
113375 (1994)]; Tatad v. DOE, G.R. No. 114222, own interest. [White Light v.
(1995)]. City of Manila , G.R. No.
Who are proper parties? 122846(2009)]
Taxpayers, when public funds are involved. (1) Any Filipino citizen;
[Tolentino v. Comelec, G.R. No. 148334(2004)] Enforcement
(2) In representation of
Government of the Philippines, when of
others, including minors or
questioning the validity of its own laws. Environmental
generations yet unborn
Laws
[People v. Vera, G.R. No. L-45685 (1937)] [Resident Marine Mammals
of the Protected Seascape
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the court will decline exercising its power of D. APPOINTMENTS TO THE JUDICIARY
judicial review. MTC/ MCTC
Justices of SC RTC Judge
Chavez v. COMELEC: Judicial review shall Judge (B.P.
and Collegiate (B.P. 129, 129, Sec.
involve only those resulting in grave abuse of Courts Sec. 15) 26)
discretion by virtue of an agency’s quasi-
judicial powers, and not those arising from its Citizenship
administrative functions. Natural-born Filipino
The issue is a political question.
Age
Even when all requisites for justiciability have
been met, judicial review will not be exercised At least 40 years At least 35 At least 30
old years old years old
when the issue involves a political question.
But see Francisco v. House of Representatives Experience
(2001). At the same time, the Court has the 15 years or more (a) Has been engaged for
duty to determine whether or not there has as a judge of a at least 5 years in the
been grave abuse of discretion by any lower court or practice of law* in the PHL;
has been OR (b) has held public
instrumentality of government under its office in the PHL requiring
engaged in the
expanded judicial review powers. (This allowed practice of law admission to the practice of
the SC to interfere in a traditionally purely in the PHL for law as an indispensable
political process, i.e. impeachment, when the same period requisite
questions on compliance with Constitutional
processes were involved.)
Tenure [Art. VIII, Sec. 11]
Guidelines for determining whether a question
Hold office during good behavior until they
is political or not:[Baker v. Carr (369 US 186), as
reach the age of 70 or
cited in Estrada v. Desierto, GR Nos. 146710-15
(2001)]: become incapacitated to discharge their
duties
There is a textually demonstrable
constitutional commitment of the issue to a Character [Art. VIII, Sec. 7(3)]
political department; Person of proven competence, integrity,
Lack of judicially discoverable and probity and independence
manageable standards for resolving it; *“Practice of law” is not confined to litigation. It
The impossibility of deciding without an initial means any activity in and out of court, which
policy determination of a kind clearly for non- requires the application of law, legal procedure,
knowledge, training and experience. [ Cayetano v.
judicial discretion; Monsod (1991)]
Impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate branches of D.1. CONSTITUTIONAL REQUIREMENTS
government; Supreme Court Justice
An unusual need for unquestioning adherence (1) Natural born citizens
to a political decision already made;
Potentiality of embarrassment from (2) At least 40 years of age
multifarious pronouncements by various (3) Engaged in the practice of law or a judge
departments on one question of 15 years or more
(4) Must be of proven competence, integrity,
probity and independence.
Lower Collegiate Courts
(1) Natural born citizen
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(2) Member of the Philippine Bar Republic Act No. 296, or the Judiciary Act of
(3) Must be of proven competence, integrity, 1948. [Famela Dulay v. Judicial and Bar
probity and independence Council, GR No. 202143 (2012)]
(4) Such additional requirements provided
by law. Appointment, Tenure, Salary of JBC Members
Ex-officio members - None apply since the
Lower Courts
position in the Council is good only while the
(1) Filipino citizens (Rules of the Judicial and person is the occupant of the office.
Bar Council, Nov. 2000, Rule 2. Note the Only ONE representative from Congress -
conflict between the Rules and B.P. 129; Former practices of giving ½ vote or (more
the Rules cite the Constitutional
requirement, but disregarded the first recently) 1 full vote each for the Chairmen of
clause of Art. VIII, Sec. 7(2), i.e. “The the House and Senate Committees on Justice
Congress shall prescribe the is invalid. Any member of Congress, whether
qualifications of judges of lower courts from the upper or lower house, is
[…]”) constitutionally empowered to represent the
(2) Member of the Philippine Bar entire Congress.
The framers intended the JBC to be composed
(3) Must be of proven competence, integrity,
probity and independence. of 7 members only. Intent is for each co-equal
branch of gov’t to have one representative.
(4) Such additional requirements provided
There is no dichotomy between Senate and
by law.
HOR when Congress interacts with other
Note: In the case of judges of the lower courts, branches. But the SC is not in a position to say
the Congress may prescribe other who should sit. The lone representative from
qualifications. (art.VIII, sec. 7[3].
Congress is entitled to one full vote. [Chavez v.
JBC, G.R. No. 202242, Jul. 17, 2012]
D.2. JUDICIAL AND BAR COUNCIL Regular members [Art. VIII, Sec. 8(2)] - The
regular members shall be appointed by the
Composition President with the consent of the Commission
Ex-officio members [Art. VIII, Sec. 8(1)] on Appointments. The term of the regular
Chief Justice as ex-officio Chairman members is 4 years.
Secretary of Justice But the term of those initially appointed shall
One representative of Congress be staggered in the following way so as to
Regular members [Art. VIII, Sec. 8(1)] create continuity in the council:
Representative of the Integrated Bar IBP representative - 4 years
Professor of Law Law professor - 3 years
Retired member of the SC Retired justice - 2 years
Representative of private sector Private sector - 1 year
Secretary ex-officio [Art. VIII, Sec. 8(3)] – Clerk
of Court of the SC, who shall keep a record of Primary function: Recommend appointees to
its proceedings; not a member of the JBC. the judiciary; may exercise such other
In the absence of the Chief Justice because of functions and duties as the SC may assign to
his impeachment, the most Senior Justice of it. [Art. VIII, Sec. 8(5)]
the Supreme Court,who is not an applicant Note: Judges may not be appointed in any
for Chief Justice, should participate in the acting or temporary capacity as this would
deliberations for the selection of nominees for undermine the independence of the judiciary.
the said vacant post and preside over the
proceedings, pursuant to Section 12 of Supervisory authority of SC over JBC
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Shall not exceed 6 months without the nullity. The judgment is valid. [People v.
consent of the judge concerned Mendoza, G.R. No. 143702(2001)]
Order a change of venue or place of trial Even when there is delay and no decision or
to avoid a miscarriage of justice; resolution is made within the prescribed
period, there is no automatic affirmance of the
(2) Appoint all officials and employees of
appealed decision. [Sesbreño v CA , G.R. No.
the Judiciary in accordance with the Civil
161390 (2008)]
Service Law;
The Sandiganbayan, while of the same level as
(3) Supervision over all courts and the
the Court of Appeals, functions as a trial court.
personnel thereof;
Therefore the period for deciding cases which
(4) Discipline judges of lower courts, or applies to the Sandiganbayan is the three (3)
order their dismissal. month period, not the twelve (12) month
period. [In Re Problems of Delays in Cases
Note: The qualifications of judges of lower
before the Sandiganbayan, A. M. No. 00-8-
courts as stated by the Constitution are 05-SC (2001)]
minimum requirements. The JBC may
determine or add more qualifications when
such policies are necessary and incidental to
the function conferred nu the Constitution to
the JBC. [Villanueva v JBC, G.R. No. 211833
(2015)]
Original Jurisdiction [Art. VIII, sec. 5[1]] See SC Resolution dated February 14, 2012,
“In Re: Production of Court Records and
Cases affecting ambassadors, other public Documents and the Attendance of Court
ministers and consuls officials and employees as witnesses under
Petition for certiorari the subpoenas of February 10, 2012 and the
Petition for prohibition various letters for the Impeachment
Petition for mandamus Prosecution Panel dated January 19 and 25,
Petition for quo warranto 2012.”
Petition for habeas corpus Background: The Senate Impeachment Court
(during the Impeachment Trial of Chief Justice
Note: Original jurisdiction also extends to writs Corona), issued a subpoena ad testificandum
of amparo, habeas data, and the environmental et duces tecum for certain documents relating
to the FASAP cases, the League of Cities cases,
writ of kalikasan and Gutierrez v. House Committee on Justice,
Appellate Jurisdiction[Art. VIII, Sec. 5(2)]– on as well as the attendance of certain court
appeal or certiorari (as the Rules of Court officials. The Supreme Court refused, invoking
provide), SC may review, revise, reverse, judicial privilege.
modify, or affirm final judgments and orders of
lower courts in:
Judicial Privilege
Cases involving the constitutionality or validity
of any treaty, international or executive A form of deliberative process privilege; Court
agreement, law, presidential decree, records which are pre-decisional and
deliberative in nature are thus protected and
proclamation, order, instruction, ordinance, or
cannot be the subject of a subpoena
regulation, except in circumstances where the
Court believes that resolving the issue of A document is predecisionalif it precedes, in
temporal sequence, the decision to which it
constitutionality of a law or regulation at the
relates.
first instance is of paramount importance and
immediately affects the social, economic and A material is deliberative on the other hand, if
moral well being of the people [Moldex Realty v it reflects the give-and-take of the
consultative process. The key question is
HLURB, G.R. No. 149719 (2007)] whether disclosure of the information would
discourage candid discussion within the
Cases involving the legality of any tax, impost, agency.
assessment, or toll, or any penalty imposed in
Judicial Privilege is an exception to the
relation thereto general rule of transparency as regards
Cases in which the jurisdiction of any lower access to court records.
court is in issue
Court deliberations are traditionally
Criminal cases where the penalty imposed is considered privileged communication.
reclusion perpetua or higher.
Cases where only a question of law is involved.
Note: A party who has not appealed from a Summary of Rules
decision may not obtain any affirmative relief The following are privileged documents or
from the appellate court other than what he had communications, and are not subject to
obtained from the lower court, if any, whose disclosure:
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(1) Court actions such as the result of the Since the Court is higher than the
raffle of cases and the actions taken by individual justices or judges, no sitting or
the Court on each case included in the retired justice or judge, not even the Chief
agenda of the Court’s session on acts Justice, may claim exception without the
done material to pending cases, except consent of the Court.
where a party litigant requests
information on the result of the raffle of
the case, pursuant to Rule 7, Section 3 of G. REQUIREMENTS FOR DECISIONS
the Internal Rules of the Supreme Court AND RESOLUTIONS
(IRSC);
Art. VIII, Sec. 13.The conclusions of the Supreme
(2) Court deliberations or the deliberations Court in any case submitted to it for decision en
of the Members in court sessions on cases banc or in division shall be reached in consultation
and matters pending before the Court; before the case is assigned to a Member for the
(3) Court records which are “pre-decisional” writing of the opinion of the Court. A certification
and “deliberative” in nature, in particular, to this effect signed by the Chief Justice shall be
documents and other communications issued and a copy thereof attached to the record of
which are part of or related to the the case and served upon the parties. Any
deliberative process, i.e., notes, drafts, Members who took no part, or dissented, or
research papers, internal discussions, abstained from a decision or resolution, must
internal memoranda, records of internal state the reason therefor. The same requirements
deliberations, and similar papers. shall be observed by all lower collegiate courts.
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Scope of the Civil Service (b) Closed career positions – e.g. scientific
or highly technical in nature;
Embraces all branches, subdivisions,
instrumentalities and agencies of the (c) Career Executive Service – e.g.
Government, including GOCCs with original undersecretaries, bureau directors
charters. [Sec. 2(1), Art. IX-B].
(d) Career Officers – Other than those
The University of the Philippines, having an belonging to the Career Executive
original charter, is clearly part of the CSC. [UP Service who are appointed by the
v. Regino, G.R. No. 88167 (1993)] President, e.g. those in the foreign
service
The Civil Service does not include
government-owned or controlled corporations (e) Positions in the AFP although
which are organized as subsidiaries of governed by a different merit system
government-owned or controlled corporations
(f) Personnel of GOCCs with original
under the general corporation law. [National
charters
Service Corp. vs. NLRC, GR No. L-69870
(1988)] (g) Permanent laborers, whether skilled,
semi-skilled or unskilled
(2) Non-career Service – Characterized by
Composition:
entrance on bases other than those of
A Chairman and 2 Commissioners the usual tests utilized for the career
service; tenure limited to a period
specified by law, or which is co-
Qualifications:[Art. IX-B, Sec. 1(1)] terminus with that of the appointing
authority or subject to his pleasure, or
(1) Natural-born citizens of the
which is limited to the duration
Philippines;
(a) Elective officials, and their personal
(2) At the time of their appointment, at
and confidential staff;
least 35 years of age;
(b) Department heads and officials of
(3) With proven capacity for public
Cabinet rank who hold office at the
administration; and
pleasure of the President, and their
(4) Must not have been candidates for any personal and confidential staff;
elective position in the election
(c) Chairmen and members of
immediately preceding their
commissions and bureaus with fixed
appointment.
terms;
(d) Contractual personnel;
Classes of Service: [CSC vs. Sojor, GR No.
(e) Emergency and seasonal personnel.
168766 (2008)]
(1) Career Service – Characterized by
entrance (a) based on merit and Note: Except as otherwise provided by the
fitness to be determined, as far as Constitution or by law, the Civil Service
practicable, by competitive Commission shall have the final authority to
examinations, OR (b) based on highly pass upon the removal, separation and
technical qualifications; with suspension of all officers and employees in the
opportunity for advancement to civil service and upon all matters relating to
higher career positions and security of the conduct, discipline and efficiency of such
tenure. officers and employees. [CSC vs. Sojor, GR No.
168766 (2008)]
(a) Open career positions – Where prior
qualification in an appropriate
examination is required.
Employees in the civil service may not resort to
strikes, walkouts and other temporary work
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cognizable by the Commission in the (c) GOCCs with no original charters and
exercise of its powers under Sec. 2(2), their subsidiaries;
Art IX-C.
(d) Non-governmental entities receiving
(2) Jurisdiction over a petition to cancel a subsidy or equity, directly or indirectly,
certificate of candidacy. from or through the Government,
which are required by law or the
(3) Even cases appealed from the RTC or
granting institution to submit such
MTC have to be heard and decided in
audit as a condition of subsidy or
division before they may be heard en
equity.
banc.
Complementing the constitutional power of
the COA to audit accounts of “non–
If the COMELEC exercises its quasi-judicial governmental entities receiving subsidy or
functions then the case must be heard through equity xxx from or through the government” is
a division. Upon motion for reconsideration of Section 14(1), Book V of the Administrative
a decision, the case is heard en banc. [Manzala Code, which authorizes the COA to audit
v. COMELEC, G.R. No. 176211(2007)] accounts of non–governmental entities
“required to pay xxx or have government share”
If the COMELEC exercises its administrative
but only with respect to “funds xxx coming
functions then it must act en banc. [Bautista v.
from or through the government.”
COMELEC, G.R. No. 15496-97 (2003)]
Despite its non–governmental character, the
Manila Economic and Cultural Office handles
Composition: A Chairman and 6 government funds in the form of the
Commissioners. “verification fees” it collects on behalf of the
Qualifications: DOLE and the “consular fees” it collects under
Section 2(6) of EO No. 15, s. 2001. Hence, the
(1) Must be natural-born citizens; accounts of the MECO pertaining to its
(2) At least 35 years of age; collection of such “verification fees” and
“consular fees” should be audited by the COA.
(3) Holders of a college degree; [Funa v. Manila Economic and Cultural Office,
(4) Have not been candidates in the G.R. No. 193462 (2014)]
immediately preceding election; COA does not have the exclusive power to
(5) Majority, including the Chairman, examine and audit government agencies. The
must be members of the Philippine framers of the Constitution were fully aware of
Bar who have been engaged in the the need to allow independent private audit of
practice of law for at least 10 years. certain government agencies in addition to the
[Art. IX-C, Sec. 1] COA audit [DBP v. COA, G.R. No. 88435
(2002)]
(2) Exclusive Authority to
B.3. COMMISSION ON AUDIT
(a) Define the scope of its audit and
Powers and Functions examination;
(1) Examine, audit, and settle accounts (b) Establish techniques and methods
pertaining to government funds or required ;
property: its revenue, receipts,
expenditures, and uses (c) Promulgate accounting and auditing
rules and regulations.
Post-audit basis:
The Constitution grants the COA the exclusive
(a) Constitutional bodies, commissions authority to define the scope of its audit and
and offices; examination, and establish the techniques
(b) Autonomous state colleges and and methods therefor. This includes giving the
universities; COA Assistant Commissioner and General
Counsel the authority to deputize a special
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audit team. [The Special Audit Team, Constitution [Funa v. Civil Service Commission,
Commission on Audit v. Court of Appeals, G.R. G.R. No. 191672 (2014)].
No. 174788 (2013)].
D. JURISDICTION
Note: Art. IX-D, Sec. 3. No law shall be passed
exempting any entity of the Government or its
subsidiaries in any guise whatever, or any D.1. CIVIL SERVICE COMMISSION
investment of public funds, from the
The CSC has been granted by the Constitution
jurisdiction of the Commission on Audit.
and the Administrative Code jurisdiction over
Composition: A Chairman and 2 all civil service positions in the government
Commissioners service, whether career or non-career. The
Qualifications: specific jurisdiction, as spelled out in the CSC
Revised Uniform Rules on Administrative
(1) Natural born Filipino citizens Cases in the Civil Service, did not depart from
(2) At least 35 years of age the general jurisdiction granted to it by law.
[Civil Service Commission v. Sojor, G.R. No.
(3) CPAs with not less than 10 years of 168766 (2008)]; see CSC Resolution No.
auditing experience OR members of 991936 detailing the disciplinary and non-
the Philippine bar with at least 10 disciplinary jurisdiction]
years practice of law
The Board of Regents (BOR) of a state
Note: At no time shall all members belong to university has the sole power of administration
the same profession. over the university. But although the BOR of
NORSU is given the specific power under its
charter to discipline its employees and officials,
C. PROHIBITED OFFICES AND there is no showing that such power is
INTERESTS exclusive. The CSC has concurrent jurisdiction
over a president of a state university. [CSC v.
No member of the Constitutional
Sojor, supra]
Commissions shall, during their tenure:
(1) Hold any other office or employment.
This is similar to the prohibition Appellate Jurisdiction
against executive officers. It applies to
The appellate power of the CSC will only apply
both public and private offices and
when the subject of the administrative cases
employment.
filed against erring employees is in connection
(2) Engage in the practice of any with the duties and functions of their office,
profession. and not in cases where the acts of
complainant arose from cheating in the civil
(3) Engage in the active managementor
service examinations.[Cruz v. CSC, G.R. No.
control of any business which in any
144464, (2001)]
way may be affected by the functions
of his office.
(4) Be financially interested, directly or D.2. COMMISSION ON ELECTIONS
indirectly, in any contract with, or in
The Constitution vested upon the COMELEC
any franchise or privilege granted by, judicial powers to decide all contests relating
the Government, its subdivisions,
to elective local officialsas therein provided.
agencies or instrumentalities,
[Garcia v. De Jesus, G.R. No. 97108-09 (1992)]
including GOCCs or their subsidiaries.
[Art. IX-A, Sec. 2] Exclusive: All contests relating to the elections,
returns and qualifications of all elective
The CSC Chairman cannot be a member of a
regional, provincial, and city officials.
government entity that is under the control of
the President without impairing the
independence vested in the CSC by the 1987
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Jurisdiction over intra-party disputes: The (b) Autonomous state colleges and
COMELEC has jurisdiction over cases universities;
pertaining to party leadership and the
(c) Other government-owned or
nomination of party-list representatives. The
controlled corporations and their
COMELEC’s powers and functions under the
subsidiaries; and
Constitution, "include the ascertainment of
the identity of the political party and its The Boy Scouts of the Philippines (BSP) is a
legitimate officers responsible for its acts." public corporation and its funds are subject
The power to register political parties to the COA’s audit jurisdiction. (Boy Scouts
necessarily involves the determination of the of the Philippines v. COA, GR No. 177131
persons who must act on its behalf. Thus, the (2011])
COMELEC may resolve an intra-party
(d) Such non-governmental entities
leadership dispute, in a proper case brought
receiving subsidy or equity, directly
before it, as an incident of its power to register
or indirectly, from or through the
political parties. [Lokin v. COMELEC, GR No.
government, which are required by
193808 (2012)]
law or the granting institution to
Appellate: All contests involving elected submit to such audit as a condition
municipal officialsdecided by trial courts of of subsidy or equity. [Phil. Society
general jurisdiction, or involving elective for the Prevention of Cruelty of
barangay officials decided by a court of limited Animals v. COA, G.R. 169752,
jurisdiction. [Garcia, supra] (2007)]
Jurisdiction to issue writs of certiorari: The The Constitution formally embodies the
COMELEC may issue a writ of certiorari in aid long established rule that private entities
of its appellate jurisdiction. Interpreting the who handle government funds or subsidies
phrase "in aid of its appellate jurisdiction,” if a in trust may be examined or audited in their
case may be appealed to a particular court or handling of said funds by government
judicial tribunal or body, then said court or auditors. [Blue Bar Coconut Philippines, Inc.
judicial tribunal or body has jurisdiction to v. Tantuico, G.R. No. L-47051(1988)]
issue the extraordinary writ of certiorari, in aid Primary Jurisdiction over Money Claims
of its appellate jurisdiction. [Bulilis v. Nuez,
G.R. No. 195953 (2011)] Limited to liquidated claims: The COA has
primary jurisdiction to pass upon a private
D.3. COMMISSION ON AUDIT
entity’s money claims against a provincial
Art. IX-D, Sec. 1. The Commission on Audit gov’t. However, the scope of the COA’s
shall have the power, authority, and duty to authority to take cognizance of claims is
examine, audit, and settle all accounts circumscribed by cases holding statutes of
pertaining to the revenue and receipts of, similar import to mean only liquidated claims,
and expenditures or uses of funds and or those determined or readily determinable
property, owned or held in trust by, or from vouchers, invoices, and such other
pertaining to the Government, or any of its papers within reach of accounting officers.
subdivisions, agencies, or instrumentalities, [Euro-Med Laboratories, Phil. Inc. v. Province
including government-owned and of Batangas, G.R. No. 148106 (2006)]
controlled corporations with original
No jurisdiction over their validity or
charters, and on a post-audit basis:
constitutionality: The jurisdiction of the COA
(a) Constitutional bodies, commissions over money claims against the government
and officers that have been granted does not include the power to rule on the
fiscal autonomy under the constitutionality or validity of laws. [Parreño v
Constitution; COA, G.R. No. 162224 (2007)]
LGUs, though granted local fiscal
autonomy, are still within the audit E. REVIEW OF FINAL ORDERS,
jurisdiction of the COA. [Veloso v. COA, GR RESOLUTIONS, AND DECISIONS
No. 193677 (2011)]
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protection of the laws. All exhort the State to Special Qualifications [C.A. 473, Sec. 3] – ANY
render social justice. [Poe-Llamanzares v will result to reduction of 10-year period to 5
COMELEC, G.R. No. 221697 (2016)] years
(1) Having honorably held office under the
B. MODES OF ACQUIRING CITIZENSHIP Government of the Philippines or under that of
Generally, two modes of acquiring citizenship: any of the provinces, cities, municipalities, or
(1) By Birth political subdivisions thereof;
(a) Jus Soli - “right of soil;” person’s nationality (2) Established a new industry or introduced a
is based on place of birth; formerly effective in useful invention in the Philippines;
the Philippines, see Roa v. Collector of (3) Married to a Filipino woman;
Customs (1912) (4) Engaged as a teacher in the Philippines in
(b) Jus Sanguinis – “right of blood;” person’s a public or recognized private school not
nationality follows that of his natural parents. established for the exclusive instruction of
The Philippines currently adheres to this children of persons of a particular nationality
principle. or race, in any of the branches of education or
(2) By Naturalization industry for a period of 2 years or more;
(5) Born in the Philippines.
B.1. NATURALIZATION
Disqualifications [C.A. 473, Sec. 4]
Concept (1) Persons opposed to organized government
Process by which a foreigner is adopted by the or affiliated with groups who uphold and teach
country and clothed with the privileges of a doctrines opposing all organized
native-born citizen. The applicant must prove governments;
that he has all of the qualifications and none (2) Persons defending or teaching the
of the disqualifications for citizenship. necessity or propriety of violence, personal
Qualifications [C.A. 473, Sec. 2] assault, or assassination for the success of
(1) Not less than twenty-one years of age on their ideas;
the day of the hearing of the petition; (3) Polygamists or believers in polygamy;
(2) Resided in the Philippines for a continuous (4) Persons convicted of crimes involving
period of 10 years or more; moral turpitude;
(3) Of good moral character; believes in the (5) Persons suffering from mental alienation
principles underlying the Philippine or incurable contagious diseases;
Constitution; conducted himself in a proper (6) Persons who during the period of their stay,
and irreproachable manner during the entire have not mingled socially with the Filipinos, or
period of his residence towards the who have not evinced a sincere desire to learn
government and community and embrace the customs, traditions, and
(4) Must own real estate in the Philippines ideals of the Filipinos;
worth P5,000 or more OR must have lucrative (7) Citizens or subjects of nations with whom
trade, profession, or lawful occupation; the Philippines is at war
(5) Able to speak or write English or Spanish 8) Citizens or subjects of a foreign country
or anyone of the principal languages; other than the United States, whose laws do
(6) Enrolled his minor children of school age in not grant Filipinos the right to become
any of the recognized schools where naturalized citizens or subject thereof;
Philippine history, government and civics are
taught or prescribed as part of the school Burden of Proof
curriculum, during the entire period of the The applicant must comply with the
residence in the Philippines required of him; jurisdictional requirements, establish his or
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her possession of the qualifications and none nor res judicata may be invoked to bar the
of the disqualifications enumerated under the State from initiating an action for the
law, and present at least two (2) character cancellation or nullification of the certificate of
witnesses to support his allegations. [Go v naturalization thus issued. [Yao Mun Tek v.
Republic of the Philippines, G.R. No. 202809 Republic (1971)]
(2014)]
C. DUAL CITIZENSHIP AND DUAL
B.2. DENATURALIZATION ALLEGIANCE
Concept C.1. DUAL CITIZENSHIP
Process by which grant of citizenship is Allows a person who acquires foreign
revoked. citizenship to simultaneously enjoy the rights
he previously held as a Filipino citizen.
Grounds [C.A. 473, Sec. 18] – upon the proper
motion of the Sol. Gen. or the provincial fiscal, C.2. DUAL ALLEGIANCE
naturalization may be cancelled when
(1) Naturalization certificate was fraudulently (1) Aliens who are naturalized as Filipinos but
remain loyal to their country of origin;
or illegally obtained [See Po Soon Tek v.
Republic, 60 SCRA 98 (1974)] (2) Public officers who, while serving the
government, seek citizenship in another
(2) If, within the five years next following the
country.
issuance, he shall return to his native country
or to some foreign country and establish his “Dual citizens” are disqualified from running
permanent residence there for any elective local position. [Local
(3) Remaining for more than one year in his Government Code, Sec. 40(d)]; this should be
read as referring to “dual allegiance”
native country or the country of his former
Once a candidate files his candidacy, he is
nationality, or two years in any other foreign
deemed to have renounced his foreign
country, shall be considered as prima facie
citizenship in case of dual citizenship.
evidence of his intention of taking up his
[Mercado v. Manzano (1999)]
permanent residence in the same;
(4) Petition was made on an invalid Clearly, in including sec. 5 in Article IV on
citizenship, the concern of the Constitutional
declaration of intention;
(5) Minor children of the person naturalized Commission was not with dual citizens per se
but with naturalized citizens who maintain
failed to graduate from the schools mentioned
in sec. 2, through the fault of their parents, their allegiance to their countries of origin
either by neglecting to support them or by even after their naturalization. Hence, the
transferring them to another school or schools. phrase “dual citizenship” in R.A. No. 7160, sec.
(6) If he has allowed himself to be used as a 40(d) and in R.A. No. 7854, sec. 20 must be
understood as referring to “dual allegiance.”
dummy in violation of the Constitutional or
Consequently, persons with mere dual
legal provision requiring Philippine citizenship
citizenship do not fall under this
as a requisite for the exercise, use or
enjoyment of a right, franchise or privilege. disqualification. For candidates with dual
citizenship, it should suffice if, upon the filing
of their certificates of candidacy, they elect
Naturalization is never final and may be
revoked if one commits acts of moral turpitude. Philippine citizenship to terminate their status
[Republic v. Guy (1982)] as persons with dual citizenship considering
Judgment directing the issuance of a that their condition is the unavoidable
certificate of naturalization is a mere grant of consequence of conflicting laws of different
states.
a political privilege and that neither estoppel
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citizenship under this Act shall enjoy full civil (1) Citizens of the Philippines from birth
and political rights and be subject to all without having to perform any act to acquire
attendant liabilities and responsibilities under or perfect their Philippine citizenship; and
existing laws of the Philippines and the (2) Those who elect Philippine citizenship in
following conditions: accordance with [Art. IV, Sec. 1(3)]
(1) Those intending to exercise their right of The term "natural-born citizens," is defined to
suffrage must meet the requirements under include "those who are citizens of the
Sec. 1, Art. V of the Constitution, RA 9189, Philippines from birth without having to
otherwise known as "The Overseas Absentee perform any act to acquire or perfect their
Voting Act of 2003" and other existing laws; Philippine citizenship." [Tecson v. COMELEC
(2) Those seeking elective public office in the (2004)]
Philippines shall meet the qualifications for A person who renounces all foreign citizenship
holding such public office as required by the under Sec. 5(2) of RA 9225 recants this
Constitution and existing laws and, at the time renunciation by using his foreign passport
of the filing of the certificate of candidacy, afterwards (Maquiling v COMELEC, G.R. No.
make a personal and sworn renunciation of 195649 (2013)].
any and all foreign citizenship before any
public officer authorized to administer an F.2. WHO MUST BE NATURAL-BORN?
oath; (1) President [Art. VII, Sec. 2]
(3) Those appointed to any public office shall (2) Vice-President [Art. VII, Sec. 3]
subscribe and swear to an oath of allegiance (3) Members of Congress [Sec. 3 and 6, Art. VI]
to the Republic of the Philippines and its duly (4) Justices of SC and lower collegiate courts
constituted authorities prior to their [Sec. 7(1), Art. VIII]
assumption of office: provided, that they (5) Ombudsman and his deputies [Sec. 8, Art.
renounce their oath of allegiance to the XI]
country where they took that oath; (6) Members of Constitutional Commissions
(4) Those intending to practice their profession (7) CSC [Art. IX-B, Sec. 1(1)]
in the Philippines shall apply with the proper (8) COMELEC [Art. IX-C, Sec.1]
authority for a license or permit to engage in (9) COA [Art. IX-D, Sec. 1(1)]
such practice; and (10) Members of the central monetary
(5) That right to vote or be elected or authority [Art. XII, Sec. 20]
appointed to any public office in the (11) Members of the Commission on Human
Philippines cannot be exercised by, or Rights [Art. XIII, Sec. 17(2)]
extended to, those who: The Constitutional provision (i.e. “whose
(a) are candidates for or are occupying any fathers are citizens”) does not distinguish
public office in the country of which they are between “legitimate” or “illegitimate”
naturalized citizens; and/or paternity. Civil Code provisions on illegitimacy
(b) are in active service as commissioned or govern private and personal relations, not
non-commissioned officers in the armed one’s political status. [Tecson v. COMELEC,
forces of the country which they are supra, on the petition for disqualification
naturalized citizens. against presidential candidate FPJ]
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A public utility is a business or service engaged The term “patrimony” pertains to heritage,
in regularly supplying the public with some and given the history of the Manila Hotel, it
commodity or service of public consequence. has become a part of our national economy
A joint venture falls within the purview of an and patrimony. Thus, the Filipino First policy
“association” pursuant to Sec. 11, Art. XII and provision of the Constitution is applicable.
must comply with the 60%-40% Filipino Such provision is per se enforceable, and
foreign capitalization requirement. [JG requires no further guidelines or
Summit Holdings v. CA (2001)] implementing rules or laws for its operation.
What “capital” is covered- the 60% [Manila Prince Hotel v. GSIS, (1990)]
requirement applies to both the voting control The Constitution does not impose a policy of
and the beneficial ownership of the public Filipino monopoly of the economic
utility. Therefore, it shall apply uniformly, environment. It does not rule out the entry of
separately, and across the board to all classes foreign investments, goods, and services.
of shares, regardless of nomenclature or While it does not encourage their unlimited
category, comprising the capital of the entry into the country, it does not prohibit
corporation. (e.g. 60% of common stock, 60% them either. In fact, it allows an exchange on
of preferred voting stock, and 60% of the basis of equality and reciprocity, frowning
preferred non-voting stock.) [Gamboa v. Teves, only on foreign competition that is unfair. The
G.R. No. 176579, October 9, 2012] key, as in all economies in the world, is to strike
Interpretation in line with Constitution’s intent a balance between protecting local
to ensure a “self-reliant and independent businesses and allowing the entry of foreign
national economy effectively-controlled by investments and services. [Tañada v. Angara
Filipinos.”(See Gamboa v. Teves, supra, June (1997)]
28, 2011) Art. XII, Sec. 12. The State shall promote the
In the original decision, only the voting stocks preferential use of Filipino labor, domestic
were subject to the 60% requirement. [Id.] materials and locally produced goods, and
adopt measures that help make them
There is some controversy in the interpretation competitive.
of the resolution on the motion for
reconsideration. EXPLORATION, DEVELOPMENT, AND
(a) There is the question of whether the UTILIZATION OF NATURAL RESOURCES
grandfather rule should be applied. Art. XII, Sec. 2, par. 4. The President may enter
(b)The dispositive merely denied the MRs, but into agreements with foreign-owned
did not reiterate the newer interpretation. corporations involving either technical or
In any case, the released SEC guidelines financial assistance for large-scale
comply with the strictest interpretation of exploration, development, and utilization of
Gamboa v. Teves. minerals, petroleum, and other mineral oils
according to the general terms and conditions
B.1. FILIPINO FIRST provided by law, based on real contributions to
Art. XII, Sec. 10. In the grant of rights, the economic growth and general welfare of
privileges, and concessions covering the the country. In such agreements, the State
national economy and patrimony, the State shall promote the development and use of
shall give preference to qualified Filipinos. The local scientific and technical resources.
State shall regulate and exercise authority The State, being the owner of the natural
over foreign investments within its national resources, is accorded the primary power and
jurisdiction and in accordance with its national responsibility in the exploration, development
goals and priorities. and utilization thereof. As such it may
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corporations, or associations qualified to Art. XII, Sec. 14The practice of all profession in
acquire or hold lands of the public domain. the Philippines shall be limited to Filipino
[Art. XII, Sec. 7] citizens, save in the case prescribed by law.
Exceptions: Like the legal profession, the practice of
(1) Hereditary succession (art. XII, sec. 7) medicine is not a right but a privilege
(2) A natural-born citizen of the Philippines burdened with conditions as it directly involves
who has lost his Philippine citizenship may be the very lives of the people. A fortiori, this
a transferee of private lands, subject to power includes the power of Congress to
limitations provided by law. (art. XII, sec. 8) prescribe the qualifications for the practice of
Consequence of sale to non-citizens: Any sale professions or trades which affect the public
or transfer in violation of the prohibition is null welfare, the public health, the public morals,
and void. (Ong Ching Po. V. CA) When a and the public safety; and to regulate or
disqualified foreigner later sells it to a control such professions or trades, even to the
qualified owner (e.g. Filipino citizen), the point of revoking such right altogether.
defect is cured. The qualified buyer owns the [Imbong v. Ochoa, supra]
land.(See Halili v. CA, G.R. No. 113538, March
12, 1998) G. ORGANIZATION AND REGULATION
OF CORPORATIONS, PRIVATE AND
Q: Can a former owner file an action to recover PUBLIC (STEWARDSHIP CONCEPT)
the property? Art. XII, Sec. 6. The use of property bears a
A: Yes. The Court in Philippine Banking Corp. social function, and all economic agents shall
v. Lui She, (21 SCRA 52) abandoned the contribute to the common good. Individuals
application of the principle of in pari delicto. and private groups, including corporations,
Thus, the action will lie. cooperatives, and similar collective
HOWEVER, land sold to an alien which was organizations, shall have the right to own,
later transferred to a Filipino citizen OR when establish, and operate economic enterprises,
the alien later becomes a Filipino citizen can subject to the duty of the State to promote
no longer be recovered by the vendor, because distributive justice and to intervene when the
there is no longer any public policy involved. common good so demands.
[Republic v. IAC, 175 SCRA 398] Art. XIII, Sec. 6The State shall apply the
Foreigners are allowed to own condominium principles of agrarian reform or stewardship,
units and shares in condominium corporations whenever applicable in accordance with law,
up to not more than 40% of the total and in the disposition or utilization of other natural
outstanding capital stock of a Filipino-owned resources, including lands of the public
or controlled corporation. Under this set up, domain under lease or concession suitable to
the ownership of the land is legally separated agriculture, subject to prior rights, homestead
from the unit itself. The land is owned by a rights of small settlers, and the rights of
Condominium Corporation and the unit owner indigenous communities to their ancestral
is simply a member in this Condominium lands.
Corporation. As long as 60% of the members
of this Condominium Corporation are Filipinos,
H. MONOPOLIES, RESTRAINT OF
the remaining members can be foreigners. TRADE AND UNFAIR COMPETITION
[Hulst v. PR Builders (2008)]
H.1. MONOPOLIES
F. PRACTICE OF PROFESSIONS The State shall regulate or prohibit
monopolies when the public interest so
requires. No combinations in restraint of trade
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or unfair competition shall be allowed. [Art. XII, companies and other institutions performing
Sec. 19] similar functions
Although the Constitution enshrines free Qualifications of the Governors:
enterprise as a policy, it nevertheless reserves (1) Natural-born Filipino;
to the Government the power to intervene (2) Known probity, integrity and patriotism;
whenever necessary for the promotion of the (3) Majority shall come from the private sector
general welfare. [Philippine Coconut Subject to such other qualifications and
Dessicators v. PCA (1998)] disabilities as may be provided by law
Monopolies are not per se prohibited by the Until the Congress otherwise provides, the
Constitution but may be permitted to exist to Central Bank of the Philippines operating
aid the government in carrying on an under existing laws, shall function as the
enterprise or to aid in the performance of central monetary authority. Currently, the
various services and functions in the interest of central monetary authority is the Bangko
the public. Nonetheless, a determination must Sentral ng Pilipinas.
first be made as to whether public interest
requires a monopoly. As monopolies are
subject to abuses that can inflict severe
prejudice to the public, they are subject to a IX. Social Justice and
higher level of State regulation than an
ordinary business undertaking. [Agan, Jr. v.
Human Rights
PIATCO (2003)] A. CONCEPT OF SOCIAL JUSTICE
An “exclusivity clause” in contracts is allowed. Art. II, Sec. 10. The State shall promote social
An “exclusivity clause” is defined as justice in all phases of national development.
agreements which prohibit the obligor from Art. XIII, Sec. 1. The Congress shall give highest
engaging in "business" in competition with priority to the enactment of measures that
the obligee. protect and enhance the right of all the people
Contracts requiring exclusivity are not per se to human dignity, reduce social, economic,
void. Each contract must be viewed vis-à-vis and political inequalities, and remove cultural
all the circumstances surrounding such inequities by equitably diffusing wealth and
agreement in deciding whether a restrictive political power for the common good.
practice should be prohibited as imposing an To this end, the State shall regulate the
unreasonable restraint on competition. acquisition, ownership, use, and disposition of
Restrictions upon trade may be upheld when property and its increments.
not contrary to public welfare and not greater Art. XIII, Sec. 2. The promotion of social justice
than is necessary to afford a fair and shall include the commitment to create
reasonable protection to the party in whose economic opportunities based on freedom of
favor it is imposed. [Avon v. Luna (2006)] initiative and self-reliance.
Social justice is "neither communism, nor
H.2. CENTRAL MONETARY AUTHORITY despotism, nor atomism, nor anarchy," but the
[ART. XII, SEC. 20] humanization of laws and the equalization of
Functions: social and economic forces by the State so that
(1) Provide policy directions in the areas of justice in its rational and objectively secular
money, banking, and credit; conception may at least be approximated.
(2) Supervise the operations of banks; Social justice means the promotion of the
(3) Exercise such regulatory powers as may be welfare of all the people, the adoption by the
provided by law over the operations of finance Government of measures calculated to insure
economic stability of all the competent
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elements of society, through the maintenance Rights shall continue to exercise its present
of a proper economic and social equilibrium in functions and powers.
the interrelations of the members of the The approved annual appropriations of the
community, constitutionally, through the Commission shall be automatically and
adoption of measures legally justifiable, or regularly released.
extraconstitutionally, through the exercise of
powers underlying the existence of all Powers and functions
governments on the time-honored principle of (1) Investigate, on its own or on complaint by
salus populi est suprema lex. Social justice, any party, all forms of human rights violations
therefore, must be founded on the recognition involving civil and political rights;
of the necessity of interdependence among (2) Adopt its operational guidelines and rules
divers and diverse units of a society and of the of procedure, and cite for contempt for
protection that should be equally and evenly violations thereof in accordance with the Rules
extended to all groups as a combined force in of Court;
our social and economic life, consistent with (3) Provide appropriate legal measures for the
the fundamental and paramount objective of protection of human rights of all persons
the state of promoting the health, comfort, within the Philippines, as well as Filipinos
and quiet of all persons, and of bringing about residing abroad, and provide for preventive
"the greatest good to the greatest number." measures and legal aid services to the under-
[Calalang v. Williams, G.R. 47800, December privileged whose human rights have been
2, 1940] violated or need protection;
Social Justice, as the term suggests, should be (4) Exercise visitorial powers over jails, prisons,
used only to correct an injustice. Magkalas or detention facilities;
cannot take solace in this provision, (5) Establish a continuing program of research,
considering that the NHA’s order of relocating education, and information to enhance
petitioner to her assigned lot and demolishing respect for the primacy of human rights;
her property on account of her refusal to (6) Recommend to Congress effective
vacate was consistent with the Urban measures to promote human rights and to
Development and Housing Act’s fundamental provide for compensation to victims of
objective of promoting social justice in the violations of human rights, or their families;
manner that will inure to the common good. (7) Monitor the Philippine Government's
[Magkalas v. NHA (2008)] compliance with international treaty
obligations on human rights;
B. COMMISSION ON HUMAN RIGHTS (8) Grant immunity from prosecution to any
Art. XIII, Sec. 17. There is hereby created an person whose testimony or whose possession
independent office called the Commission on of documents or other evidence is necessary or
Human Rights. convenient to determine the truth in any
The Commission shall be composed of a investigation conducted by it or under its
Chairman and four Members who must be authority;
natural-born citizens of the Philippines and a (9) Request the assistance of any department,
majority of whom shall be members of the Bar. bureau, office, or agency in the performance of
The term of office and other qualifications and its functions;
disabilities of the Members of the Commission (10) Appoint its officers and employees in
shall be provided by law. accordance with law; and
Until this Commission is constituted, the (11) Perform such other duties and functions as
existing Presidential Committee on Human may be provided by law. [Art. XIII, Sec. 18]
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As should at once be observed, only the first of study programs particularly those that
the enumerated powers and functions bears respond to community needs; and
any resemblance to adjudication or (5) Provide adult citizens, the disabled, and
adjudgment. The Constitution clearly and out-of-school youth with training in civics,
categorically grants to the Commission the vocational efficiency, and other skills.
power to investigate all forms of human rights
violations involving civil and political rights. B. ACADEMIC FREEDOM
But it cannot try and decide cases (or hear and
Art. XIV, Sec. 5 (2). Academic freedom shall be
determine causes) as courts of justice, or even
enjoyed in all institutions of higher learning.
quasi-judicial bodies do. To investigate is not
Four essential freedoms of a university:
to adjudicate or adjudge. Whether in the
(1) Who may teach
popular or the technical sense, these terms
(2) What may be taught
have well understood and quite distinct
(3) How it shall teach
meanings. [Cariño v. CHR, G.R. No. 96681,
(4) Who may be admitted to study [Garcia v.
December 2, 1991]
Faculty Admission Committee, 68 SCRA 277
(1975) citing J. Frankfurter, concurring in
X. Education, Science, Sweezy v. New Hampshire, 354 US 232 (1937)]
Institutional academic freedom includes the
Technology, Arts, right of the school or college to decide for itself,
its aims and objectives, and how best to attain
Culture and Sports them free from outside coercion or
A. RIGHT TO EDUCATION PROVISIONS interference save possibly when the overriding
[ART. XIV] public interest calls for some restraint.
The right to discipline the student likewise
Sec. 1. The State shall protect and promote the
finds basis in the freedom "what to teach."
right of all citizens to quality education at all
Indeed, while it is categorically stated under
levels, and shall take appropriate steps to
the Education Act of 1982 that students have
make such education accessible to all. Sec. 2.
a right "to freely choose their field of study,
The State shall:
subject to existing curricula and to continue
(1) Establish, maintain, and support a
their course therein up to graduation," such
complete, adequate, and integrated system of
right is subject to the established academic
education relevant to the needs of the people
and disciplinary standards laid down by the
and society;
academic institution. [DLSU Inc., v. CA, G.R.
(2) Establish and maintain, a system of free
No. 127980, December 19, 2007]
public education in the elementary and high
school levels. Without limiting the natural
The PMA, as the primary training and
rights of parents to rear their children,
educational institution of the AFP, has the
elementary education is compulsory for all
right to invoke academic freedom in the
children of school age;
enforcement of its internal rules and
(3) Establish and maintain a system of
regulations, which are the Honor Code and the
scholarship grants, student loan programs,
Honor System in particular. [Cudia v. PMA
subsidies, and other incentives which shall be
Superintendent, G.R. No. 211362, (2015)]
available to deserving students in both public
and private schools, especially to the under-
privileged;
Highest budgetary priority to education
(4) Encourage non-formal, informal, and
indigenous learning systems, as well as self-
learning, independent, and out-of-school
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POLITICAL LAW
CONSTITUTIONAL
LAW 2
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Important Notes:
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(2) Contrastwith statutory due process, which To this end, the State shall regulate the
may be invoked against private individuals. acquisition, ownership, use, and disposition
[See, generally, labor cases on illegal of property and its increments.
termination.] This does not form part of the
Bill of Rights.
In General
Due process of law simply states that “[i]t is
part of the sporting idea of fair play to hear "the
other side" before an opinion is formed or a
decision is made by those who sit in judgment.”
[Ynot v. IAC (1987)]
It covers any governmental action which
constitutes a deprivation of some person's life,
liberty, or property.
Definition
Due process furnishes a standard to which the
governmental action should conform in order
that deprivation of life, liberty or property, in
each appropriate case, be valid. xxx It is
responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively
pit, arbitrariness is ruled out and unfairness
avoided. xxx Correctly it has been identified as
freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play.
[Ichong v. Hernandez (1957)]
A law hears before it condemns, which
proceeds upon inquiry and renders judgment
only after trial. [Darthmouth College v.
Woodward, 4 Wheaton 518]
Life is also the right to a good life. [Bernas] It Noted exceptions to due process
includes the right of an individual to his body in
(1) Aconclusive presumption, bars the
its completeness, free from dismemberment,
admission of contrary evidence as long as
and extends to the use of God-given faculties
such presumption is based on human
which make life enjoyable. [Malcolm]
experience or there is a rational connection
Understood to include ―quality of life – which between the fact proved and the fact
is entitlement to a life lived with assurance that ultimately presumed there from.
government he established and consented to
(2) There are instances when the need for
will protect the security of person means [1]
expeditious actionwill justify omission of
freedom from fear; [2] guarantee of bodily and
these requisites—e.g. in the summary
psychological integrity, and [3] guarantee of
abatement of a nuisance per se, like a mad
protection of one‘s rights by the government
dog on the loose, which may be killed at
[Secretary of National Defense v Manalo].
sight because of the immediate danger it
poses to the safety and lives of the people.
Liberty“includes the right to exist and the right (3) Pornographic materials, contaminated
to be free from arbitrary personal restraint or meat and narcotic drugs areinherently
servitude. [It] includes the right of the citizen to pernicious and may be summarily
be free to use his faculties in all lawful ways[.]” destroyed.
[Rubi v. Provincial Board]
(4) The passport of a person sought for a
Property is anything that can come under the criminal offensemay be cancelled without
right of ownership and be the subject of hearing, to compel his return to the country
contract. It represents more than the things a he has fled.
person owns; it includes the right to secure, use
(5) Filthy restaurants may be summarily
and dispose of them. [Torraco v. Thompson, 263
padlocked in the interest of the public
US 197]
health and bawdy houses to protect the
public morals. [Ynot v. IAC (1987)]
Scope and limitations In such instances,previous judicial hearing
may be omitted without violation of due
Universal in application to all persons without
process in view of: 1) the nature of the property
regard to any difference in race, color or
involved; or 2) the urgency of the need to
nationality.
protect the general welfare from a clear and
Artificial persons are covered by the protection present danger.
but only insofar as their property is concerned
[Smith Bell and Co. v. Natividad, 40 Phil. 163]
The guarantee extends to aliens and includes A. RELATIVITY OF DUE PROCESS
the means of livelihood. [Villegas v. HiuChiong,
86 SCRA 275]
The concept of due process is flexible for not all
The due process clause has to do with the situations calling for procedural safeguards
legislation enacted in pursuance of the police call for the same kind of procedure. [Secretary
power. xxx The guaranty of due process, as has of Justice v. Lantion (2000)]
often been held, demands only that the law
shall not be unreasonable, arbitrary or Consideration of what procedures due process
capricious, and that the means selected shall may require under any given set of
have a real and substantial relation to the circumstances must begin with a
subject sought to be attained. [Ichong v. determination of the precise nature of the
Hernandez (1957)] government function involved as well as of the
private interest that has been affected by
governmental action.” [Cafeteria & Restaurant
Workers Union v. McElroy (1961)]
To say that the concept of due process is
flexible does not mean that judges are at large
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to apply it to any and all relationships. Its (3) It shall be enforced according to the regular
flexibility is in its scope once it has been methods of procedure prescribed; and
determined that some process is due; it is a
(4) It shall be applicable alike to all the citizens
recognition that not all situations calling for
of the state or to all of a class. [Rubi v.
procedural safeguards call for the same kind of
Provincial Board of Mindoro (1919)]
procedure. [Morrissey v. Brewer (1972)]
Note : The allowance or denial of motions In the conduct of the criminal proceedings, it
for extension rests principally on the sound cannot be said that the State has been denied
discretion of the court to which it is due process unless there is an indication that
addressed, but such discretion must be the special prosecutor deliberately and willfully
exercised wisely and prudently, with a view failed to present available evidence or that
to substantial justice. Poverty is recognized other evidence could be secured. [People v.
as a sufficient ground for extending Sandiganbayan(2012)]
existing period for filing. The right to
appeal is part of due process of law. [Reyes
v. CA (1977)] In Academic Disciplinary Proceedings
Requisites:
E. HIERARCHY OF RIGHTS
When the Bill of Rights also protects property This requires the government to show an
rights, the primacy of human rights over overriding or compelling government interest
property rights is recognized. Because these so great that it justifies the limitation of
freedoms are “delicate and vulnerable, as well fundamental constitutional rights. The courts
as supremely precious in our society” and the make the decision of whether or not the
“threat of sanctions may deter their exercise purpose of the law makes the classification
almost as potently as the actual application of necessary.
sanctions,” they “need breathing space to
There is compelling state interest when:
survive,” permitting government regulation
only “with narrow specificity.” [Philippine (1) The state have a compelling
Blooming Mills Employees Organization v. reason/interest to reach into such
Philippine Blooming Mills Co., Inc. (1973)] legislation infringing into the private
domain; and
If the liberty involved were freedom of the mind
or the person, the standard for the validity of (2) There is no other alternative
governmental acts is much more rigorous and
Strict scrutiny was applied in determining
exacting, but where the liberty curtailed affects
whether the requirements of substantive due
at the most rights of property, the permissible
process were met in an ordinance challenged in
scope of regulatory measure is wider. [Ermita-
as unconstitutional in White Light. The
Malate Hotel and Motel Operators Association,
requirements of due process that must concur
Inc. v. City Mayor of Manila (1967)]
(as held in the case) are:
Running through various provisions of the
(1) Interest of the public generally, as opposed
Constitution are various provisions to protect
to a class;
property—but always with the explicit or
implicit reminder that property has a social (2) Means must be reasonably necessary for
dimension and that the right to property is the accomplishment of the purpose and
weighted with a social obligation. [BERNAS] not unduly oppressive of private rights
(3) No other alternative less intrusive of private
rights
F. JUDICIAL STANDARDS OF REVIEW
(4) Reasonable relation must exist between
the purposes of the measure and the
F.1. “RATIONAL BASIS TEST” means employed for its accomplishment.
[White Light Corporation v. City of Manila
There is an evil at hand for correction and the (2009)]
particular legislative measure was a rational
way to correct it. [Williamson v. Lee Optical
(1955)] F.3. “INTERMEDIATE SCRUTINY TEST”
This test is applicable for economic, property, A third standard, denominated as heightened
commercial legislation. [White Light or immediate scrutiny, was later adopted by the
Corporation v. City of Manila (2009)] U.S. Supreme Court for evaluating
classifications based on gender and legitimacy.
While the test may have first been articulated in
equal protection analysis, it has in the United
F.2. “STRICT SCRUTINY TEST” States since been applied in all substantive due
process cases as well. [White Light Corporation
This test is triggered when a fundamental v. City of Manila (2009)]
constitutional right is limited by a law, (i.e.
freedom of the mind and curtailment of
political process).
Summary of White Light Levels of Scrutiny
Scope
Natural and juridical persons (the equal
protection clause extends to artificial persons
but only insofar as their property is
concerned.)
(1) A corporation as an artificial person is
protected under the Bill of Rights against
denial of due process, and it enjoys the
equal protection of the law. [Smith, Bell
and Co., v. Natividad (1919)]
(2) A corporation is also protected against
unreasonable searches and seizures. [See
Stonehill v. Diokno (1967)]
(3) It can only be proceeded against by due
process of law, and is protected against
unlawful discrimination. [Bache and Co. v.
Ruiz (1971)]
the Test of Valid Classification is to be applied.) Serrano does not appear to have
applied under the Rational Basis standard. been reapplied (except in separate
(Note that in Serrano, where the Court opinions), hence its application remains
applied Strict Scrutiny, the Test of Valid unclear.
Classification was mentioned but not
The warrant must refer to one specific offense. • Mere affidavits of the complainant
[Castro v. Pabalan (1976)] and his witnesses are thus not
The Dangerous Drugs Act is a special law that sufficient.
deals specifically with dangerous drugs which • The examining Judge has to take
are subsumed into “prohibited” and depositions in writing of the
“regulated” drugs, and defines and penalizes complainant and the witnesses he
categories of offenses which are closely may produce and attach them to the
related or which belong to the same class or record.
species; thus, one search warrant may be
validly issued for several violations thereof. • Such written deposition is necessary in
[People v. Dichoso (1993)] order that the Judge may be able to
properly determine the existence or
non-existence of the probable cause,
Requisites (Search Warrant): to hold liable for perjury the person
giving it if it will be found later that his
(a) Existence of probable cause declarations are false.
Probable cause – such facts and • It is axiomatic that the examination
circumstances which would lead a must be probing and exhaustive, not
reasonably discreet and prudent man to merely routine or pro-forma, if the
believe that (a) an offense has been claimed probable cause is to be
committed and that (b) the objects sought established. [Nala v. Barroso, Jr.]
in connection with the offense are in the
place sought to be searched. [Burgos v. There must be a conduct of own
Chief of Staff (1984)] inquiry regarding intent and
justification of the application
Cf. for Warrant of Arrest – such facts and
circumstances that would lead a • The examining magistrate must not
reasonably discreet and prudent man to simply rehash the contents of the
believe that (a) a crime has been affidavit but must make his own
committed and (b) the person to be inquiry on the intent and justification
arrested is probably guilty thereof. [Allado of the application. [Roan v. Gonzales
v. Diokno (1994)] (1984)]
(b) Personal determination of probable cause Oath – any form of attestation that he is
by the judge. bound in conscience to perform an act
faithfully or truthfully; an outward pledge
On determining probable cause:The
given by the person taking it that his
magistrate must make an exhaustive and
attestation or promise is made under an
probing examination of witnesses and
immediate sense of his responsibility to
applicant and not merely routine or pro
God
forma examination [Nala v. Barroso, Jr.
(2003)] Requisites:
The determination of probable cause calls (1) Must refer to facts
for an exercise of judgment after a judicial
(2) Such facts are of personal knowledge
appraisal of the facts and should not be
of the petitioner or applicant or
allowed to be delegated in the absence of
witnesses. Not hearsay.
any rule to the contrary.
Test of sufficiency of an oath
(c) After personal examination under oath or
affirmation of the complainant and the “Whether or not it was drawn in a manner
witnesses he may produce. that perjury could be charged against the
affiant and he be held liable for damages.”
How it is done: In the form of searching
questions and answers, in writing and (d) On the basis of their personal knowledge
under oath [Rule 126, Sec. 6, ROC] of the facts they are testifying to. [Nala v.
Barroso, Jr. (2003); Burgos v. AFP (1984);
Any evidence obtained in violation [of this or General rule: Probable cause required.
the preceding section] shall be inadmissible
“The essential requisite of probable cause
for any purpose in any proceding. [Art. III, Sec.
must still be satisfied before a warrantless
3]
search and seizure can be lawfully conducted.”
The unconstitutionality of the search and the In these cases, probable cause (warrantless
seizure or the use of a void search warrant, searches) must be “based on reasonable
renders the items seized inadmissible in ground of suspicion or belief that a crime has
evidence. Exclusion is the only practical way of been committed or is about to be committed.”
enforcing the constitutional privelage. [People v. Aruta (1998)]
[Stonehill v. Diokno]
N.B. InAruta, the standards for probable cause
Exception to General Warrants: General are different from those required for the
descriptions will not invalidate the entire issuance of warrants. Arutaimplies that the
warrant if other items have been particularly reasonableness of a warrantless search is
described. [Uy v. BIR (2000)] determined by the (1) informationreceived and
used as a basis for the search, and (2)
additional factors and circumstances. The two,
Conduct of the Search [Sec. 7, Rule 126, ROC] taken together, constitute the probable cause
which justifies warrantless searches and
(1) In the presence of a lawful occupant
seizures. [Aruta, supra]
thereof or any member of his family, OR
(2) If occupant or members of the family are
absent, in the presence of 2 witnesses of C.1. WARRANTLESS SEARCHES
sufficient age and discretion, residing in RECOGNIZED BY JURISPRUDENCE
the same locality.
Summary [People v. Aruta, supra]
Failure to comply with Sec. 7 Rule 126
(6) Search incidental to a lawful arrest (ROC
invalidates the search. [People v. Gesmundo
(1993)] Rule 113, Sec. 5)
(7) Plain view doctrine
When Forcible Entry Justified
(8) Search of a moving vehicle
Force may be used in entering a dwelling if (9) Consented warrantless search (waiver of
justified by Rule 126 ROC. e.g. Occupants of right against unreasonable searches and
the house refused to open the door despite the seizures)
fact that the searching party knocked several
times, and the agents saw suspicious (10) Customs search
movements of the people inside the house. (11) Stop and frisk
[People v. Salanguit (2001)] (12) Exigent and emergency circumstances
(13) Visual search at checkpoints – not among
those enumerated in People v. Aruta, but
Unlawful Search also recognized as an exception to the
Police officers arrived at appellant’s residence warrant requirement by Aniag v.
and “side-swiped” appellant’s car (which was COMELEC (1994) and Valmonte v. De Villa
parked outside) to gain entry into the house. (1989, 1990)
Appellant’s son, who is the only one present in
the house, opened the door and was
immediately handcuffed to a chair after being C.2. SEARCH INCIDENT TO A LAWFUL
informed that they are policemen with a ARREST
warrant to search the premises. [People v. A person lawfully arrested may be
Benny Go (2003)] searched for dangerous weapons or
anything which may be used as proof of
the commission of an offense, without a
C. WARRANTLESS SEARCHES search warrant. [Sec. 12, Rule 126, Rules
of Court]
C.3. PLAIN VIEW DOCTRINE mere visual search, where the occupants are
not subjected to physical or body search. On
Things seized are within plain view of a
the other hand, when the vehicle is stopped
searching party.
and subjected to an extensive search, it would
Requisites: be constitutionally permissible only if the
officers conducting the search had reasonable
(1) Prior valid intrusion based on valid
or probable cause to believe, before the search
warrantless arrest in which the police are
that either the motorist is a law offender or
legally present in the pursuit of their
they will find the instrumentality or evidence
official duties
pertaining to a crime in the vehicle to be
(2) Evidence was inadvertently discovered by searched. [Caballes v. Court of Appeals (2002);
the police who had the right to be where People v. Libnao (2003)]
they are
(3) Evidence must be immediately apparent
C.5. VALID EXPRESS WAIVER MADE
(4) “Plain view” justified mere seizure of VOLUNTARILY AND INTELLIGENTLY
evidence without further search [People v.
Requisites:
Aruta, supra; N.B. substantially the same as
Nala v. Barroso requirements] (1) Must appear that right exists;
An object is in “plain view” if the object (2) Person involved had actual or constructive
itself is plainly exposed to sight. Where the knowledge of the existence of such right;
seized object is inside a closed package,
(3) Said person had an actual intentto
the object is not in plain view and,
relinquish the right. [Aruta, supra]
therefore, cannot be seized without a
warrant. However, if the package In this case, mere failure to object to the
proclaims its contents, whether by its search and seizure does not constitute a
distinctive configuration, its transparency, waiver.
or if its contents are obvious to an observer,
Right to be secure from unreasonable search
then the content are in plain view, and
may be waived. Waiver may be express or
may be seized. [Caballes v. Court of
implied. When one voluntarily submits to a
Appeals (2002)]
search or consents to have it made of his
If the package is such that it contains person/premises, he is precluded from later
prohibited articles, then the article is complaining. [People v. KaguiMalasugui
deemed in plain view. [People v. Nuevasm (1936)]
(2007)]
There is presumption against waiver by the
courts. It is the State that has the burden of
proving, by clear and convincing evidence,
C.4. SEARCH OF MOVING VEHICLES
that the necessary consent was obtained and
Securing a search warrant is not practicable that it was voluntarily and freely given.
since the vehicle can be quickly moved out of [Caballes v. Court of Appeals (2002)]
the locality or jurisdiction in which the warrant
When accused checked in his luggage as
must be sought. [Papa v. Mago (1968)]
passenger of a plane, he agreed to the
“Stop and search” without a warrant at inspection of his luggage in accordance with
military or police checkpoints has been customs laws and regulations, and thus
declared not to be illegal per se so long as it is waived any objection to a warrantless search.
required by exigencies of public order and [People v. Gatward, 267 SCRA 785]
conducted in a way least intrusive to motorists.
Mere passive conformity is not consent or a
[Valmonte v. de Villa (1989)]
valid waiver under the constitutional guaranty.
For a mere routine inspection, the search is [Anaig v. COMELEC]
normally permissible when it is limited to a
C.6. CUSTOMS SEARCH fear for his own or other’s safety. [Terry v.
The police are allowed to conduct warrantless Ohio, 1968]
searches in behalf of the Department of Test: WON a reasonably prudent man in the
Customs. circumstances would be warranted in the
They are authorized to examine, open any box, belief that his safety or that of others was in
trunk, or other containers where he has danger [Terry v. Ohio (1968)].
reasonable cause to believe that such items
were hidden from customs search. [People v. Guidelines of Stop and Frisk
Mago (1968)]
(1) When police officer observes unusual
Sec. 219 of the Customs Modernization and conduct;
Tariff Actstates that no warrant is required for
police or authorized persons to pass, enter, (2) This conduct leads him to believe, also in
search any land, enclosure, building,
light of his experience, that criminal
warehouse, vessels, aircrafts, vehicles but not
dwelling. activity may be afoot
Purpose of customs search: To verify whether (3) The persons with whom he is dealing may
or not Custom duties and taxes were paid for be armed and presently dangerous
their importation.
C.7. STOP AND FRISK SEARCHES (4) Also, in the course of investigating his
behavior of the man, after identifying
There should be a genuine reason to “stop-
himself as a police officer – the man is
and-frisk in the light of the police officer’s
experience and surrounding conditions to entitled to a limited search of outer
warrant a belief that the person detained has clothing because:
weapons concealed. [Malacat v. CA (1997),
citing Terry v. Ohio] (a) Fear of his own safety
Police officer has a right to stop a citizen on (b) Fear of public’s safety that a crime
street and pat him for a weapon in the interest might ensue
of protecting himself from the person with
whom he was dealing by making sure that he [Manalili v. CA, 1997]
is not armed. The police officer should properly introduce
The right of an agent, to protect himself and himself and make initial inquiries, approach
others, to conduct a carefully limited search of and restrain a person who manifests unusual
outer clothing of such persons as listed below and suspicious conduct, in order to check the
in an attempt to discover weapons which latter’s outer clothing for possibly concealed
might be used to assault him. Such search is weapons. The apprehending police officer
reasonable under the 4th amendment: must have a genuine reason, inaccordance
with the police officer’s experience and the
(1) Where a police officer observes unusual surrounding conditions, to warrant the belief
conduct which leads him reasonably to that the person to be held has weapons or
conclude in light of his experience that contraband concealed about him[People v. Sy
criminal activity may be afoot and that the Chua (2003)].
person with whom he is dealing may be Summary of Test for validity of a stop-and-
armed and presently dangerous; fristk search:
(2) Where in the course of the investigation of (1) There must be a specific and articulable
this behavior he identifies himself as a facts which, taken together with rational
policeman and makes reasonable inferences, reasonably warrant the
inquiries; and intrusion.
(3) Where nothing in the initial stages of the (2) The officer must identify himself and make
encounter serves to dispel his reasonable reasonable inquiries.
Type Requisites
Incident to a Lawful Arrest Arresting officer may search
[Chimel v. CA] (a) The arrestee’s person to
(i) Discover or remove weapons and
(ii) Seize evidence to prevent concealment or destruction; and
(b) The area “within the immediate control” of the arrestee, i.e. area
from which he might gain possession of a weapon or
destructible evidence.
Plain View (a) Prior valid intrusion based on the valid warrantless arrest in
[People v. Aruta] which the police are legally present in the pursuit of their official
duties
(b) Evidence was inadvertently discovered by the police who had the
right to be where they are
(c) Evidence must be immediately apparent
(d) “Plain view” justified mere seizure of evidence without further
search
Vehicle Checkpoint (a) Vehicle is neither searched; nor its occupants subjected to a
[Valmonte v. de Villa] body search; and
(b) Inspection of the vehicle is merely limited to a visual search.
Search of a Moving Vehicle Extensive search without a warrant valid only if the officers had
[Aniag v. COMELEC] reasonable or probable cause to believe before the search that
(a) The motorist was a law offender; or
(b) They would find the evidence of a crime in the vehicle.
committed and the time of the arrest. If Appellant is estopped from questioning
there was an appreciable lapse of time the illegality of the arrest when he
between arrest and commission of crime, voluntarily submitted himself to the
warrant of arrest must be secured. jurisdiction of the court by entering a plea
[Nachura] of not guilty and by participating in the
trial. [People v. Salvatierra (1997)]
Warrantless arrest of accused for selling
marijuana 2 days after he escaped is Failure to raise the question of
invalid. [People v. Kimura (2004)] admissibility during the trial is waiver of
the right to assert inadmissibility on
The warrantless arrest only 3 hours after
appeal. [Manalili v. CA (1997)]
the killing was held valid since personal
knowledge was established as to the fact Scope of Waiver: Waiver is limited to the
of death and facts indicating that the illegal arrest. It does not extend to the
accused killed the victim. [People v. search made as an incident thereto, or the
Gerente (1993)] subsequent seizure of evidence allegedly
found during the search. [People v. Peralta
(2004)]
Personal Knowledge: Experience of an
officer which gives the idea that there is
probable cause that the person caught is (5) Violent insanity
responsible. It has been ruled that
“personal knowledge of facts” in arrests
without a warrant must be based on E. ADMINISTRATIVE ARRESTS
probable cause, which means an actual
belief or reasonable grounds of suspicion.
[Cadua v. Court of Appeals (1999)] General Rule: Only the judge has the power to
issue a warrant after the proper procedure has
There is no personal knowledge when the
been duly taken.
commission of a crime and identity of the
accused were merely furnished by an Exceptions:
informant, or when the location of the
(1) In cases of deportation of illegal and
firearm was given by the wife of the
undesirable aliens, whom the President or
accused. It is not enough that there is
the Commissioner of Immigration may
reasonable ground to believe that the
order arrested, following a final order of
person to be arrested has committed a
deportation, for the purpose of
crime. That a crime has actually been
deportation.[Salazar v. Achacoso (1990)]
committed is an essential precondition.
[People v. Burgos (1986)] (2) For deportation proceedings, a warrant of
arrest may be issued by administrative
authorities only for the purpose of carrying
(3) Escaped Prisoners:When the person to be out a final finding of a violation of law and
arrested is a prisoner who has escaped not for the sole purpose of investigation or
from a penal establishment or place prosecution. It may be issued only after
where he is serving final judgment or is the proceeding has taken place as when
temporarily confined while his case is there is already a final decision of the
pending, or has escaped while being administrative authorities.
transferred from one confinement to
another
F. DRUG, ALCOHOL AND BLOOD TESTS
Additional Exceptions (Not in the Rules):
The Court held that Randomized Drug Testing
(RDT) for students and employees does not
(4) When the right is voluntarily waived violate the right to privacy in the Constitution.
(estoppel). Students do not have rational expectation of
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Concept
Zones of privacy are recognized and protected
in our laws. Within these zones, any form of
intrusion is impermissible unless excused by
law and in accordance with customary legal inadmissible for any purpose in any
process. The meticulous regard we accord to proceeding. [Art. III, Sec. 3]
these zones arises not only from our conviction
that the right to privacy is a "constitutional
right" and "the right most valued by civilized A. PRIVATE AND PUBLIC
men," but also from our adherence to the COMMUNICATIONS
Universal Declaration on Human Rights which
mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and Requisites of Existence of Privacy Right (Test
"everyone has the right to the protection of the of Reasonable Expectation Of Privacy)
law against such interference or attacks."
(1) Subjective:A person has exhibited an
The Constitution does not have a specific actual expectation of privacy; and
provision protecting the right to privacy. It is a
penumbral right formed from the shadows (2) Objective:The expectation be one that
created by several constitutional provisions. society is prepared to recognize as
That is to say, the right to privacy is located reasonable. [Pollo v. Constantino-David
within the zones created by various provisions (2011)]
of the Constitution and various statutes which
protect aspects of privacy. [Ople v. Torres]
B. INTRUSION, WHEN ALLOWED
Ople v. Torres (1998) has enumerated several
provisions of the Bill of Rights where the right
of privacy is enshrined (penumbras): (1) By lawful order of the court
(1) Sec. 3 – Privacy of communication Probable cause in Sec. 2, Art. III should be
(2) Sec. 1 – Life, liberty, and property followed for the court to allow intrusion.
Particularity of description is needed for
(3) Sec. 2 – Unreasonable searches and written correspondence, but if the
seizures intrusion is done through wire-taps and
(4) Sec. 6 – Liberty of abode the like, there is no need to describe the
content. However, identity of the person or
(5) Sec. 8 – Right to form associations persons whose communication is to be
(6) Sec. 17 – Right against self-incrimination intercepted, and the offense or offenses
sought to be prevented, and the period of
the authorization given shouldbe specified.
It has also indicated that zones of privacy are or
recognized and protected in our laws:
(2) When public safety or public order
(1) Civil Code requires otherwise, as may be provided by
(2) RPC law.
(3) Anti-Wiretapping Law
(4) Security of Bank Deposits Act In Ayer Productions Pty. Ltd. v. Capulong (1988)
(hint: Enrilecase), the right to be let alone is
(5) Intellectual Property Code not an absolute right. A limited intrusion to a
Privacy of Communications and person’s privacy has long been regarded as
Correspondence permissible where that person is a public
figure and the information sought to be
(1) The privacy of communication and elicited from him or to be published about him
correspondence shall be inviolable constitute matters of public character. The
except upon lawful order of the court, or interest sought to be protected by the right to
when public safety or order requires privacy is the right to be free from
otherwise, as prescribed by law. unwarranted publicity, from the wrongful
(2) Any evidence obtained in violation of publicizing of the private affairs and activities
this or the preceding section shall be
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of an individual which are outside the realm of Padilla, he admits that he induced a little
legitimate public concern. romance in the film.
Intrusion has to be based upon a non-judicial
government official’s assessment that public
Right of Privacy v. Freedom of Access to
safety and order demands such intrusion,
Information
limited to the provisions of law. To hold
otherwise would be to opt for a government of Kilusang Mayo Uno v. Director-General,
men, and not of laws. NEDA(2006) stated that personal matters are
exempt or outside the coverage of the people’s
right to information on matters of public
Public order and safety– the security of concern. The data treated as “strictly
human lives, liberty and property against the confidential” under EO 420 being matters of
activities of invaders, insurrectionist and public concern, these data cannot be released
rebels. [1971 Constitutional Convention, Session to the public or the press.
of November 25, 1972]
As compared with Ople v. Torres (1998), where
the Court ruled that no constitutional infirmity
on the right of privacy was shown by EO 420
Right of Privacy v. Freedom of Speech and
which streamlines and harmonizes the
Communication
existing ID system within each government
Because of the preferred character of the agency. According to the Court, it even
constitutional rights of the freedom of speech narrowly limits the data that can be collected,
and of expression, a weighty presumption of recorded, and shown as compared to AO 308
invalidity vitiates measures of prior restraint (National ID System) which was not narrowly
upon the exercise of such freedoms. [Ayer v. drawn.
Capulong, supra]
Right of privacy of a public figure is necessarily
Two-part test to determine the
narrower than that of an ordinary citizen. [Ayer
reasonableness of person’s expectation of
v. Capulong, supra]
privacy
(1) Whether by his conduct, the individual has
Public Figure – a person who, by his exhibited an expectation of privacy
accomplishments, fame, or mode of living, or
(2) Whether his expectation is one that
by adopting a profession or calling which gives
society recognizes as reasonable
the public a legitimate interest in his doing, his
affairs and his character, has become public Note that factual circumstances of the case
personage. Why? determine the reasonableness of the
expectation. However, other factors such as
• They had sought publicity and consented to customs, physical surroundings and practices
it, so they could not complain. of a particular activity, may serve to create or
• Their personalities and their affairs had diminish this expectation. [Ople v. Torres,
already become public and could no longer supra]
be regarded as their own private business. Forms of Correspondence Covered:
• The press had a privilege, under the (1) Letters
constitution, to inform the public about
those that have become legitimate matters (2) Messages
of public interest. (3) Telephone calls
But as held in Lagunzad v. Soto (1979), being a (4) Telegrams, and the like [Bernas]
public figure does not automatically destroy in
toto a person’s right to privacy. In the case at
bar, while it is true that the producer exerted Valid and Invalid Enroachments on the Right
efforts to present a true-to-life story of Moises to Privacy:
The general rule is that an encroachment on (1) Justified at inception: if there are
the right to privacy is invalid when: reasonable grounds for suspecting that it
will turn up evidence that the employee is
(1) There is a reasonable expectation of guilty of work-related misconduct.
privacy, and
(2) Scope of intrusion is reasonable: if
(2) If there is no compelling state interest. measures used in the search are
reasonable related to the search’s
objectives, and it is not highly intrusive.
Effects of Valid Intrusions
[Pollo, supra]
(1) Section 3(2) Article III aka the Exclusionary
Right may be invoked against the wife who
rule
went to the clinic of her husband and there
(2) Generally applicable against government took documents consisting of private
intrusions communications between her husband and
his alleged paramour. [Zulueta v. Court of
(3) Zulueta v. CA (jurisprudence that applied
Appeals(1996)]
the Exclusionary rule against private
citizens) N.B. While Zuluetaseems to be an exception to
the State Action Requirement, Zulueta’s
Other imports from Jurisprudence: application of the exclusionary rule has only
Anti-Wire Tapping Act (RA 4200), clearly and been cited once but to a state action.
unequivocally makes it illegal for any person, See also: R.A. No. 10173, Data Privacy Act (2012)
not authorized by all the parties to any private
communication, to secretly record such Exclusionary rule
communications by means of a tape recorder. Any evidence obtained in violation of Article III,
The law does not make any distinction. Section 3 (right to privacy of communications
[Ramirez v. Court of Appeals, 248 SCRA 590] and correspondence) or Section 2 (right
An extension telephone is not among the against unlawful search and seizures) shall be
devices enumerated in Sec.1 of RA 4200. There inadmissible for any purpose in any
must be either a physical interruption through proceeding. This applies not only to
a wiretap or the deliberate installation of a testimonial evidence but also to documentary
device or arrangement in order to overhear, and object evidence.
intercept, or record the spoken words. The Q: Can the exclusionaryrule be applied as
telephone extension in this case was not against private individuals who violate the
installed for that purpose. It just happened to right to privacy?
be there for ordinary office use. [Ganaan v. IAC
(1986)] A: Yes. Although generally, the Bill of Rights
can only be invoked against violations of the
E.O. 424 (s. 2005), adopting a unified multi- government, the Court has recognized an
purpose ID system for government, does not instance where it may also be applied as
violate the right to privacy because it (1) against a private individual.
narrowly limits the data that can be collected,
recorded, and released compared to Thus, in a legal separation case [Zulueta v CA]
existingID systems, and (2) provides where the wife took her husband‘s private
safeguards to protect the confidentiality of the documents and papers to be used as
data collected. [KMU v. Director-General, evidence in the case, without his knowledge
(2006)] and consent, the Court held that the
intimacies between husband and wife do
An intrusion into the privacy of workplaces is not justify any one of them in breaking the
valid if it conforms to the standard of drawers and cabinets of the other and in
reasonableness. Under this standard, both ransacking them for any telltale evidence of
inception and scope of intrusion must be marital infidelity. A person, by contracting
reasonable. marriage, does not shed his/her integrity or
his right to privacy as an individual and the
constitutional protection is ever available to
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The right to informational privacy, as a specific component of the right to privacy, may yield to an overriding
legitimate state interest. [Gamboa v. Chan (2012)]
A. NATURE AND SCOPE But the right is not absolute and may include
certain exceptions such as pornography, false
The primacy and high esteem accorded or misleading advertisement, advocacy of
freedom of expression is a fundamental imminent lawless action and danger to
postulate of our constitutional system. This national security
right was elevated to constitutional status […]
reflecting our own lesson of history, both
political and legal, that freedom of speech is Basis
an indispensable condition for nearly every Art. III, Sec. 4. No law shall be passed
other form of freedom. abridging the freedom of speech, of
The scope of freedom of expression is so broad expression, or of the press, or the right of
that it extends protection to nearly all forms of the people peaceably to assemble and
communication. It protects speech, print and petition the government for redress of
assembly regarding secular as well as political
grievances.
causes, and is not confined to any particular
field of human interest. The protection covers
myriad matters of public interest or concern
embracing all issues, about which information Art. III, Sec. 18(1). No person shall be
is needed or appropriate, so as to enable detained solely by reason of his political
members of society to cope with the beliefs and aspirations.
exigencies of their period. [Chavez v. Gonzales
(2008)]
All are indispensable to the “uninhibited,
robust and wide-open debate in the free
Speech, expression, and press include: marketplace of ideas.” [Abrams v. US (1919)]
(1) Written or spoken words (recorded or not) While indeed, the news item subject of the
present case might have ruffled the
(2) Symbolic speech (e.g. wearing armbands sensitivities of plaintiff, this Court however
as symbol of protest) believes that the alleged defamatory articles
Butviolation of the Hotel’s Grooming fall within the purview of a qualifiedly
Standards by labor union members privileged matter, and that therefore, it cannot
constitutes illegal strike and therefore an be presumed to be malicious. The onus of
unprotected speech. [NUWHRAIN-APL- proving malice is accordingly shifted to the
IUF Dusit Hotel Nikko Chapter v. CA plaintiff, that is, that he must prove that the
(2008)] defendants were actuated by ill-will in what
they caused to be printed and published, with
(3) Movies a design to carelessly or wantonly injure the
Any and all modes of protection are embraced plaintiff. [U.S. v. Bustos (1909)]
in the guaranty. It is reinforced by Sec. 18(1), Art. A.1 PRIOR RESTRAINT
3.
Prior restraint – refers to official
J. Holmes: It is freedom for the thought that we governmental restrictions on the press or
hate, no less than for the thought that agrees other forms of expression in advance of actual
with us. publication or dissemination.Freedom from
Scope of Right prior restraint is largely freedom from
government censorship of publications,
Speech, expression, and press include every whatever the form of censorship, and
form of expression, whether oral, written, tape
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provoking the vengeance of the officials he has Slander or libel, lewd and obscene speech, as
criticized (chilling effect). well as “fighting words” are not entitled to
constitutional protection and may be
If criticism is not to be conditioned on the
penalized. [Chavez v. Gonzales (2008)]
government’s consent, then neither should it
be subject to the government’s subsequent
chastisement.
Obscenity
Examples of Valid Subsequent Restraints: Obscenity is a class of speech that is not under
(1) Libel. Every defamatory imputation is the protection of the freedom of expression. It
presumed to be malicious. [Alonzo v. CA is of slight social value as a step to truth that
(1995)]
any benefit that may be derived from them is
Exceptions: clearly outweighed by the social interest in
(a) Private communication in the order and morality [Chaplinsky v. New
performance of any legal, moral or Hampshire, 315 U.S. 568, 1942].
social duty
(b) Fair and true report of any judicial,
legislative or other official
proceedings
(2) Obscenity. The determination of what is
obscene is a judicial function. [Pita v. CA
(1989)]
(3) Contempt for criticism/publications
tending to impede, obstruct, embarrass or
influence the courts in administering
justice in a pending suit or proceeding (sub
judice) [People v. Alarcon (1939)]
(4) Imputation of irregularities in the judiciary
must strike a balance between the right to
free press and the reputation of judges. A
reporter is prohibited from recklessly
disregarding a private reputation without
any bona fide effort to ascertain the truth
thereof [In Re: Jurado (1995)]
(5) Right of students to free speech in school
premises must not infringe on the school’s
right to discipline its students [Miriam
College Foundation v. CA (2000)]
Exceptions:
(a) Fair comment on matters of public
interest. Fair comment is that which is
true or, if false, expresses the real
opinion of the author based upon
reasonable degree of care and on
reasonable grounds.
(b) Criticism of official conduct is given
the widest latitude. [US v.
Bustos(1918)]
Unprotected Speech
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Pictures depicting native inhabitants in their about a hundred customers, were howling and
native dresses as they appear and live in their shouting, “sigemuna, sigenakakalibog” (go
native homelands are not obscene or indecent. ahead first, go ahead, it is erotic), during the
The pictures in question merely depict persons performance. [People v. Aparici (Court of
as they actually live, without attempted Appeals 1955)]
presentation of persons in unusual postures or
dress. The aggregate judgment of the
Philippine community, the moral sense of all
the people in the Philippines, would not be
shocked by photographs of this type. [People v.
Kottinger (1923)]
Test to be applied: Clear and Present Danger As the size of these groups increases, the
Test (discussed infra). chances for members of such groups to
recover damages on tortious libel become
elusive. This principle is said to embrace two
Freedom of Expression and National Security important public policies:
Where a fictitious suicide photo and letter (1) Where the group referred to is large, the
were published in newspapers of general courts presume that no reasonable reader
circulation expressing disappointments of the would take the statements as so literally
Roxas administration and instructing fictitious applying to each individual member; and
wife to teach their children to burn pictures of
(2) The limitation on liability would
the President, SC held that such act
satisfactorily safeguard freedom of speech
constitutes inciting to sedition.
and expression, as well as of the press,
It suggests or incites rebellious conspiracies or effecting a sound compromise between
riots and tends to stir up the people against the conflicting fundamental interests
the constituted authorities, or to provoke involved in libel cases. [MVRS v. Islamic
violence from opposition groups who may Da’Wah Council of the Phil (2003)]
seek to silence the writer, which is the sum and
substance of the offense under consideration.
[Espuelas v. People (1951)] Actual Malice Standard for Public Officials
and Matters of Public Interest
Freedom of Expression and Libel
Libel is not a constitutionally protected speech Even if the defamatory statement is false, no
and that the government has an obligation to liability can attach if it relates to official
conduct, unless the public official concerned
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proves that the statement was made with culminating events of the EDSA revolution.
actual malice — that is, with knowledge that it [Ayer Productions v. Capulong (1988)]
was false or with reckless disregard of whether
it was false or not. [Vasquez v. CA (1999) citing
New York Times v. Sullivan (1964)] Freedom of Expression and the
Administration of Justice
SC Administrative Circular No. 08-2008
implements a rule of preference for the The administration of justice and the freedom
imposition of fine only rather than of the press, though separate and distinct, are
imprisonment in libel suits. equally sacred, and neither should be violated
False reports about a public official or other by the other. The press and the courts have
person are not shielded by the cardinal right to correlative rights and duties and should
free speech enshrined in the Constitution. cooperate to uphold the principles of the
Making knowingly false statements made with Constitution and laws, from which the former
reckless disregard of the truth does not enjoy receives its prerogative and the latter its
constitutional protection. The guaranty of free jurisdiction [In Re Macasaet, A.M. No. 07-09-
speech cannot be considered as according 13-SC, 8 August 2008].
protection to the disclosure of lies, gossip or
rumor [In Re Jurado, A.M. No. 93-2-037-SC, 6 The Court in People vs Godoy [312 Phil. 977,
April 1995]. 1995] has also said that obstructing, by means
of the spoken or written word, the
administration of justice by the courts has
Therefore, an injured person must prove that been described as an abuse of the liberty of
the alleged statements are either: the speech or the press such as will subject the
(1) Knowingly false abuser to punishment for contempt of court.
performance. For like the executive and the the compelling interest standard applied to
legislative branches, the judiciary is rooted in content-based restrictions. [Chavez v.
the soil of democratic society, nourished by the Gonzales (2008)]
periodic appraisal of the citizen whom it is
expected to serve. Content-Neutral (US v. O’Brien) test – A
government regulation is sufficiently justified
But it is the cardinal condition of all such if:
criticism that it shall be bona fide, and shall
not spill over the walls of decency and (1) It is within the constitutional power;
propriety. A wide chasm exists between fair (2) It furthers an important or substantial
criticism, on the one hand, and abuse and government interest;
slander of courts and the judges thereof, on
(3) The government interest is unrelated to
the other [In Re Almacen, G.R. No. 27654, 18
the suppression of free expression;
February 1970].
(4) The incident restriction is no greater than
essential to the furtherance of that
Freedom of Expression and Obscenity interest.
Determination: Community standard
Pictures depicting native inhabitants in their
native dresses as they appear and live in their Freedom of Assembly
native homelands are not obscene or indecent. The right to freedom of speech and to
The pictures in question merely depict persons peaceably assemble, and petition the
as they actually live, without attempted government for redress of grievances are
presentation of persons in unusual postures or fundamental personal rights of the people
dress. The aggregate judgment of the guaranteed by the constitutions of democratic
Philippine community, the moral sense of all countries. City or town mayors are not
the people in the Philippines, would not be conferred the power to refuse to grant the
shocked by photographs of this type. [People v. permit, but only the discretion in issuing the
Kottinger (1923)] permit to determine or specify the streets or
public places where the parade may pass or
A hula-hula dance portraying a life of a widow the meeting may be held. [Primicias v. Fugoso
who lost her guerrilla husband cannot be (1948)]
considered protected speech if the audience,
about a hundred customers, were howling and The right to peaceably assemble and petition
shouting, “sigemuna, sigenakakalibog” (go for redress of grievances is, together with
ahead first, go ahead, it is erotic), during the freedom of speech, of expression, and of the
performance. [People v. Aparici (Court of press, a right that enjoys primacy in the realm
Appeals 1955)] of constitutional protection. For these rights
constitute the very basis of a functional
democratic polity, without which all the other
B.2 CONTENT-NEUTRAL RESTRICTIONS rights would be meaningless and unprotected
[Bayan vsErmita, G.R. Nos. 158786, etc.,19
Regulations on the incidents of speech — time, October 2007].
place and manner — under well-defined
standards. [Newsounds, supra]
Absent any clear and present danger of a
When the speech restraints take the form of substantive evil, peaceable assembly in public
a content-neutral regulation, only a places like streets or parks cannot be denied.
substantial governmental interest is required [J.B.L. Reyes v. Bagatsing (1983)]
for its validity. Because regulations of this type
are not designed to suppress any particular The Calibrated Pre-emptive Response (CPR),
message, they are not subject to the strictest insofar as it would purport to differ from or be
form of judicial scrutiny but an intermediate in lieu of maximum tolerance, is null and void.
approach— somewhere between the mere CPR serves no valid purpose if it means the
rationality that is required of any other law and same thing as maximum tolerance [Sec. 3 [c]
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of B.P. 880], and is illegal if it means There is a need to address the situation
something else. Accordingly, what is to be adverted to by petitioners where mayors do
followed is and should be that mandated by not act on applications for a permit and when
the law itself, namely, maximum tolerance. the police demand a permit and the rallyists
[Bayan v. Ermita (2007)] could not produce one, the rally is
immediately dispersed. [Bayan v. Ermita,
supra]
B.P. 880 not unconstitutional
In such a situation, as a necessary
B.P. No. 880 is not an absolute ban of public consequence and part of maximum tolerance,
assemblies but a restriction that simply rallyists who can show the police an
regulates the time, place and manner of the application duly filed on a given date can, after
assemblies. The law is not vague or overbroad. two (2) days from said date, rally in
There is, likewise, no prior restraint, since the accordance with their application without the
content of the speech is not relevant to the need to show a permit, the grant of the permit
regulation. A fair and impartial reading of B.P. being then presumed under the law, and it will
No. 880 thus readily shows that it refers to all be the burden of the authorities to show that
kinds of public assemblies that would use there has been a denial of the application, in
public places. [Bayan v. Ermita, supra] which case the rally may be peacefully
dispersed following the procedure of
maximum tolerance prescribed by the law.
Freedom Parks [Bayan v. Ermita, supra]
B.P. 880 provides that every city and
municipality must set aside a freedom park
within six months from the law’s effectivity in C. FACIAL CHALLENGES AND THE
1985. Section 15 of the law provides for an OVERBREADTH DOCTRINE
alternative forum through the creation of
General Rule: A party can question the validity
freedom parks where no prior permit is needed
of a statute only if, as applied to him, it is
for peaceful assembly and petition at any time.
unconstitutional. [Southern Hemisphere v.
Without such alternative forum, to deny the
Anti-Terrorism Council (2010)]
permit would in effect be to deny the right to
peaceably assemble. [Bayan v. Ermita, supra] Exception: Facial Challenges
Test Definition
Dangerous Limitations on speech are permissible once a rational connection has been
Tendency Doctrine established between the speech restrained and the dangercontemplated.
Balancing of When particular conduct is regulated for public order, and the regulation results in
Interests Test an indirect abridgment of speech, the court must determine which of the two
[Soriano v. conflicting interestsdemand greater protection.
Laguardia]
Factors to consider:
(1) Social value of the freedom restricted;
(2) Specific thrust of the restriction, i.e. direct or indirect, affects many or few;
(3) Value of the public interest sought to be secured by the regulation;
(4) Whether the restriction is reasonably appropriate and necessary for the
protection of the public interest;
(5) Whether the necessary safeguarding of the public interest may be achieved by
a measure less restrictive of the protected freedom.
Clear and Present Speech may be restrained because there is a substantial danger that the speech will
Danger Rule likely lead to an evil the government has a right to prevent. Requires that the evil
consequences sought to be prevented must be substantive, “extremely serious and
the degree of imminence extremely high.”
The Four Aspects of Freedom of the Press Censorship is allowable only under the
[Chavez v. Gonzales, 2008] clearest proof of a clear and present dangerof
a substantive evil to public safety, morals,
health or any other legitimate public interest:
(1) freedom from prior restraint;
(1) There should be no doubt what is feared
(2) freedom from punishment
may be traced to the expression
subsequent to publication;
complained of.
(3) freedom of access to information; and
(2) Also, there must be reasonable
(4) freedom of circulation apprehension about its imminence. It does
not suffice that the danger is only
probable. [Gonzales v. Kalaw-Katigbak
Print vs Broadcast Media (1985)]
Limited intrusion into a person’s privacy is
While all forms of communication are entitled permissible when that person is a public figure
to the broad protection of freedom of and the information sought to be published is
expression clause, the freedom of film, of a public character.
television and radio broadcasting is somewhat What is protected is the right to be free from
lesser in scope than the freedom accorded to unwarranted publicity, from the wrongful
newspapers and other print media [Chavez vs publicizing of the private affairs of an
Gonzales, supra]. individual which are outside the realm of
public concern. [Ayer Productions v.Capulong,
Radio and TV enjoy a narrower scope of supra]
protection because of the ff reasons:
(1) the scarcity of the frequencies by which Television Censorship
the medium operates [i.e., airwaves are P.D. 1986 gave MTRCB the power to screen,
physically limited while print medium may review and examine all television programs.
be limitless];
By the clear terms of the law, the Board has
(2) its pervasiveness as a medium; and the power to “approve, delete, or prohibit the
exhibition and/or television broadcasts of
(3) its unique accessibility to children. television programs. The law also directs the
[Federal Communications Commission v. Board to apply contemporary Filipino culture
values as standard to determine those which
Pacifica Foundation, 438 U.S. 726 [1978]]
are objectionable for being immoral, indecent,
contrary to law and/or good customs injurious
But all forms of media, whether print or to the prestige of the Republic of the
broadcast, are entitled to the broad protection Philippines and its people, or with a
of the freedom of speech and expression dangerous tendency to encourage the
clause. The test for limitations on freedom of commission of a violence or of a wrong or a
expression continues to be the clear and crime.
present danger rule [Eastern Broadcasting The law gives the Board the power to screen,
Corp vsDans, G.R. No. 59329, 19 July 1985]. review and examine all “television programs”
Movie Censorship whether religious, public affairs, news
documentary, etc. (When the law does not
When MTRCB rated the movie, make any exception, courts may not exempt
“KapitsaPatalim” as fit “For Adults Only”, SC something therefrom). [Iglesiani Cristo v. CA
ruled that there was no grave abuse of (1996)]
discretion.
Also, notwithstanding the fact that freedom of
religion has been accorded a preferred status,
Iglesiani Cristo’s program is still not exempt
from MTRCB’s power to review. Freedom of
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expression and of the press has not been speeches. Besides, laws provide for such
declared of preferred status. [MTRCB v. ABS- actions:
CBN (2005)]
(1) Act No. 8130. Franchise for Far Eastern;
On the program of Dating Daan, Soriano radio to be open to the general public but
made crude remarks like subject to regulations
“lihitimonganakngdemonyo, sinungaling, etc.”
(2) Comm. No. Act 98.Sec. of Interior and/or
MTRCB preventively suspended him and his
the Radio Board is empowered to censor
show. SC held that the State has a compelling
what is considered “neither moral,
interest to protect the minds of the children
educational or entertaining, and
who are exposed to such materials. [Soriano v.
prejudicial to public interest.” The Board
Laguardia (2009)]
can forfeit the license of a broadcasting
The SC could not compel TV stations and radio station.
stations, being indispensable parties, to give
(3) Sec. of the Interior, Dept. Order No.
UNIDO free air time as they were not
13.Requires submission of daily reports to
impleaded in this case. UNIDO must seek a
Sec. of Interior/Radio Board re: programs
contract with these TV stations and radio
before airing. For speeches, a manuscript
stations at its own expense. [UNIDO v.
or short gist must be submitted. [Santiago
COMELEC (1981)]
v. Far Eastern Broadcasting (1941)]
The television camera is a powerful weapon
Strict rules have also been allowed for radio
which intentionally or inadvertently can
because of its pervasive quality and because of
destroy an accused and his case in the eyes of
the interest in the protection of children. [FCC
the public.
v. Pacifica Foundation (1978)]
Considering the prejudice it poses to the
defendant’s right to due process as well as to F. COMMERCIAL SPEECH
the fair and orderly administration of justice,
and considering further that the freedom of
the press and the right of the people to Commercial speech is protected speech
information may be served and satisfied by although commercial advertising in the U.S.
less distracting, degrading and prejudicial has not been accorded the same level of
means, live radio and television coverage of protection given to political speech. One case
the court proceedings shall not be allowed. No set down the requirements for protection of
video shots or photographs shall be permitted commercial speech:
during the trial proper. Video footages of court (1) Speech must not be false, misleading or
hearings for news purposes shall be limited proposing an illegal activity;
and restricted. [Secretary of Justice v.
Sandiganbayan (2001)] (2) Government interest sought to be served
by regulation must be substantial;
Regardless of the regulatory schemes that
broadcast media is subjected to, the Court has (3) The regulation must advance government
consistently held that the clear and present interest; and
danger test applies to content-based (4) The regulation must not be overbroad.
restrictions on media, without making a [Bernas]
distinction as to traditional print or broadcast
media. [Chavez v. Gonzales (2008)]
Radio Censorship G. PRIVATE VERSUS GOVERNMENT
SPEECH
In the case of Santiago v Far Eastern
Broadcasting (1941), the SC did not uphold
claim that Far Eastern Broadcasting had no Parliamentary immunity guarantees the
right to require the submission of the members the freedom of expression without
manuscript. It is the duty of Far Eastern fear of being made responsible in criminal or
Broadcasting to require the submission of a civil actions before courts or forum outside of
manuscript as a requirement in broadcasting Congress. But this does not protect them from
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A.2 BASIS
“[T]he principle of separation of Church and A.3 ACTS NOT PERMITTED BY NON-
State is based on mutual respect. Generally, ESTABLISHMENT CLAUSE
the State cannot meddle in the internal affairs
(1) Prayer and Bible-reading in public schools
of the church, much less question its faith and
[Abington School District v. Schemp (1963)]
dogmas or dictate upon it. It cannot favor one
religion and discriminate against another. On (2) Financial subsidy for parochial schools
the other hand, the church cannot impose its [Lemon v. Kurtzman (1971)]
beliefs and convictions on the State and the
(3) Religious displays in public spaces:
rest of the citizenry. It cannot demand that the
Display of granite monument of 10
nation follow its beliefs, even if it sincerely
commandments in front of a courthouse is
believes that they are good for the country.”
unconstitutional for being unmistakably
[Imbong v. Ochoa (2014), on the
non-secular. [Glassroth vs. Moore, 335
constitutionality of the RH Law]
F.3d 1282 (11th Cir. 2003)]
Rooted in the separation of Church and State.
(4) Mandatory religious subjects or
Relevant provisions of the Constitution:
prohibition of secular subjects (evolution)
(1) Art. II, Sec. 6: “The separation of Church in schools [Epperson v. Arkansas (1968)]
and State shall be inviolable.”
(5) Mandatory bible reading in school (a form
(2) Art. IX-C, Sec. 2(5): “Religious of preference for belief over non-belief)
denominations and sects shall not be [School District v. Schempp (1963)]
registered [as political parties].”
(6) Word “God” in the Pledge of Allegiance:
(3) Art. VI, Sec. 5(2): “For three consecutive religious vs. atheist students [Newdow v.
terms after the ratification of this US (2003)]
Constitution, one-half of the seats
allocated to party-list representatives
shall be filled, as provided by law, by A.4 ACTS PERMITTED BY NON-
selection or election from […] sectors as ESTABLISHMENT CLAUSE
may be provided by law,except the
religious sector.”
Constitutionally created
(4) Art. VI, Sec. 29(2): “No public money or
property shall be appropriated, applied, (1) Tax exemption
paid, or employed, directly or indirectly, Art. VI, Sec. 28 (3). Charitable institutions,
for the use, benefit, or support of any sect, churches and personages or convents
church, denomination, sectarian appurtenant thereto, mosques, non-profit
institution, or system of religion, or of any cemeteries, and all lands, buildings, and
priest, preacher, minister, other religious improvements, actually, directly, and
teacher, or dignitary as such, except when exclusively used for religious, charitable, or
such priest, preacher, minister, or educational purposes shall be exempt from
dignitary is assigned to the armed forces, taxation.
or to any penal institution, or government
orphanage or leprosarium.”
(2) Operation of sectarian schools
Art. XIV, Sec. 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…
Art. XIV, Sec. 3(3). At the option expressed in Corporation of the Presiding Bishop (434
writing by the parents or guardians, religion Mass. 141)]
shall be allowed to be taught to their
children or wards in public elementary and
high schools within the regular class hours A.5 TWO STANDARDS USED IN DECIDING
by instructors designated or approved by RELIGION CLAUSE CASES
the religious authorities of the religion to (1) Separation – protects the principle of
which the children or wards belong, without church-separation with a rigid reading of
additional cost to the Government. the principle
(a) Strict Separation
(4) Limited public aid to religion
• The wall of separation is meant to
Art. VI, Sec. 29(2). No public money or protect the state from the church
property shall be appropriated, applied,
• There is an absolute barrier to
paid, or employed, directly or indirectly, for
formal interdependence of religion
the use, benefit, or support of any sect,
and state
church, denomination, sectarian institution,
or system of religion, or of any priest, • There is hostility between the two
preacher, minister, other religious teacher,
or dignitary as such, except when such (b) Strict Neutrality or tamer separation
priest, preacher, minister, or dignitary is • Requires the state to be neutral in
assigned to the armed forces, or to any its relation with groups of religious
penal institution, or government orphanage believer; the relationship is not
or leprosarium. necessarily adversarial
• Allow for interaction between
Jurisprudence church and state, but is strict with
regard to state action which would
(1) Religious activities with secular threaten the integrity of religious
purpose/character. — Postage stamps commitment
depicting Philippines as the site of a
significant religious event – promotes • The basis of government action has
Philippine tourism. [Aglipay v. Ruiz, (64 a secular criteria and religion may
Phil. 201)] not be used as a basis for
classification of purposes
(2) Government sponsorship of town fiestas.
– has secular character [Garces v. Estenzo • Public policy and the constitution
(1981)] require the government to avoid
religion-specific policy
(3) Book lending program for students in
parochial schools. – benefit to parents
and students [Board of Education v. Allen, (2) Benevolent neutrality and the Doctrine of
392 U.S. 236] Accommodation (infra.)
(4) Display of crèche in a secular setting –
depicts origins of the holiday [Lynch v.
Donnely (1984)] B. FREE EXERCISE CLAUSE
(5) Financial support for secular academic
facilities (i.e. library and science center) in
parochial schools – has secular use [Tilton The Free Exercise Clause affords absolute
v. Richardson (403 U.S. 672)] protection to individual religious convictions.
However, the government is able to regulate
(6) Exemption from zoning requirements to
the times, places, and manner of its exercise
accommodate unique architectural
features of religious buildings i.e. [Cantwell v. Connecticut]. “Under the Free
Mormon’s tall pointed steeple [Martin v. Exercise Clause, religious belief is absolutely
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• National board examinations such as the abstracts, summaries and the like.
CPA Board Exams [Antolin v. Domondon [Valmonte v. Belmonte (1989)]
(2010)] (3) Based on reasonable regulation for the
• Names of nominees of partylists [Bantay convenience of and for order in the office that
Republic v. COMELEC (2007)] has custody of the documents. [Baldoza v.
Dimaano (1976)]
• Negotiations leading to the consummation
of the transaction [Chavez v. PEA and Amari • Discretion does not carry with it the
(2002)] authority to prohibit access, inspection,
examination, or copying. [Lantaco v.
Llamas (1981)]
A. LIMITATIONS • The authority to regulate the manner
of examining public records does not
carry with it the power to prohibit x xx
The right of the people to information must be Thus, while the manner of examining
balanced against other genuine interest public records may be subject to
necessary for the proper functioning of the reasonable regulation by the government
government (Bernas) agency in custody thereof, the duty to
disclose the information of public
Restrictions to the right to information may concern, and to afford access to public
be: records cannot be discretionary on the
(1) Based on kinds of information. part of said agencies. [Legaspi v. CSC
(1987)]
Exempted information:
(4) Based on availability.
(a) Privileged information rooted in
separation of powers Right available only to citizens
(b) Information of military and diplomatic In case of denial of access, the government
secrets agency has the burden of showing that the
information requested is not of public concern,
(c) Information affecting national and or if it is of public concern, that the same has
economic security been exempted by law from the operation of
(d) Information on investigations of the guarantee. [Legaspi v. CSC (1987)]
crimes by law enforcers before
prosecution [Chavez v. PEA and Amari,
(2002)] B. PUBLICATION OF LAWS AND
(e) Trade secrets and banking REGULATIONS
transactions [Chavez v. PCGG (1998)]
(f) Offers exchanged during diplomatic General: Full publication is a condition for
negotiations [Akbayan v. Aquino law’s effectivity.
(2008)]
Scope: All statutes (includes those of local
(g) Other confidential matters (i.e. RA application and private laws), presidential
6713, closed door Cabinet meetings, decrees and executive orders by President
executive sessions, or internal acting under power either directly conferred
deliberations in the Supreme Court) by the Constitution or validly delegated by the
[Chavez v. PCGG (1998)] legislature, and administrative rules and
(2) Based on access: regulations for implementing existing laws,
charter of a city, circulars by Monetary Board.
(a) Opportunity to inspect and copy
records at his expense. [Chavez v. PEA Internal regulations and letter of instructions
and Amari, (2002)] concerning guidelines for subordinates and
not the public are not included.
(b) Not the right to compel custodians of
official records to prepare lists,
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Effectivity: Fifteen days after publication obvious prejudice to any of the parties. [Hilado,
unless a different effectivity date is fixed by the et al v. Judge (2006)]
legislature [Tañada v. Tuvera (1986)]
Note: See Constitutional Law I Reviewer
Note: Tañada v. Tuvera explains that the (Judicial Department) for a detailed discussion
publication of laws and regulations is also a of the rules on disclosure of court records.
due process concern.
Requisites:
(1) The communications relate to a
"quintessential and non-delegable
power" of the President
(2) The communications are "received" by a
close advisor of the President.
(3) There is no adequate showing of a
compelling need that would justify the
limitation of the privilege and of the
unavailability of the information
elsewhere by an appropriate investigating
authority.
The government must comply with the heavy (2) The forced inclusion of a member would
burden of showing that the organization in significantly affect the organization’s
fact presents a clear and present danger of ability to advocate public or private
substantive evil which the state has the right viewpoints [Boy Scouts of America v. Dale
to protect. (Bernas) (2000)]
Does not include the right to compel others to
form an association. But there may be
Scope: The right is recognized as belonging to situations in which, by entering into a contract,
people whether employed or unemployed, one may also be agreeing to join an
and whether employed in the government or association. (Bernas)
in the private sector. Includes the right to
unionize. If a land buyer who buys a lot with an
annotated lien that the lot owner becomes an
The State does not infringe on the automatic member of a homeowners’
fundamental right to form lawful associations association thereby voluntarily joins the
when it leaves to citizens the power and liberty association. [Bel-Air Village Association
to affiliate or not affiliate with labor unions. vsDiokno (1989)]
[Victoriano v. Elizalde (1974)]
As lot owner, PADCOM is a regular member of
Every group has a right to join the democratic the association. No application for
process, association itself being an act of membership is necessary x xx PADCOM was
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Private Property
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 v. Chinese Community, physical possession of the said excess and all
40 Phil 349] beneficial rights accruing to the owner in favor
of the farmer-beneficiary. [Assoc. of Small
Generally, all private property capable of
Land Owners in the Phils., Inc. v. Sec. of
ownership may be expropriated, except
Agrarian Reform (1989)]
money and chooses in action. [Republic v.
PLDT (1969)] Sequestration is merely “intended to prevent
the destruction of sequestered properties and,
A chose in action is a proprietary right in
thereby, to conserve and presever them,
personam, such as debts owned by another
pending the judicial determination in the
person, a share in a joint-stock company, or a
appropriate proceeding of whether the
claim for damages in tort; it is the right to
property was in truth ill-gotten”. It is not
bring an action to recover a debt, money or
meant to deprive the owner or possessor of his
thing [Black’s Law Dictionary]
title or any right to his property and vest the
It should be clarified that even if under PD 27, same in the sequestering agency, the
tenant farmers are “deemed owners” as of Government or any other person, as these can
October 21, 1972 x xx [c]ertain requirements be done only for the causes and by the process
must also be complied with, such as payment laid down by law. [Republic v. Estate of Hans
of just compensation, before full ownership is Menzi (2012)]
vested upon the farmers. [Heirs of Dr.Deleste v
LBP (2011)]
Due Process
Hearing or procedure for determination of
Taking
propriety of the expropriation or the
The exercise of the power of eminent domain reasonableness of the compensation must be
does not always result in the taking or provided. [Belen v. CA (1991)]
appropriation of title to the expropriated
property; it may only result in the imposition of
a burden upon the owner of the condemned B. EXPANSIVE CONCEPT OF “PUBLIC
property, without loss of title or possession. USE”
[National Power Corporation v. Gutierrez, 193
SCRA 1]
Public use as a requirement for the valid
exercise of the power of eminent domain is
Requisites for a valid taking: now synonymous with public interest, public
(1) The expropriator must enter a private benefit, public welfare and public convenience.
property It includes the broader notion of indirect
public benefit or advantage. Public use as
(2) Entry must be for more than a traditionally understood as “actual use by the
momentary period public” has already been abandoned.
(3) Entry must be under warrant or color Mining industry plays a pivotal role in the
of legal authority economic development of the country and is a
(4) Property must be devoted to public vital tool in the government’s thrust of
use or otherwise informally accelerated recovery. Thus, that public use is
appropriated or injuriously affected negated by the fact that the state would be
taking private properties for the benefit of
(5) Utilization of the property must be in private mining firms or mining contractors is
such a way as to oust the owner and not at all true. [Didipio Earth Savers (DESAMA)
deprive him of beneficial enjoyment of v. Gozun (2006)]
the property. [Republic v. Castelvi
(1974)] The idea that "public use" means "use by the
public" has been discarded. At present,
The taking contemplated is not a mere whatever may be beneficially employed for the
limitation of the use of the land. What is
required is the surrender of the title to and the
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UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(3) Where the amount allowed is either Moreno v. Mactan-Cebu International Airport
grossly inadequate or excessive. (2005)]
[National Power Corporation v. De la Cruz,
If the expropriation order provides otherwise
G.R. No. 156093, February 2, 2007]
[See MCIAA v. CA (2000)]
When determined
E. MISCELLANEOUS APPLICATION
General rule: At the time of the filing of the
case
Exception: If the value of the property “Taking” Under Social Justice Clause
increased because of the use to which the Agrarian Reform [Art. XIII, Sec. 4]: This
expropriator has put it, the value is that of the provision is an exercise of the police power of
time of the taking. [NAPOCOR v. CA (1996)] the State through eminent domain
Legal interest: 6%, time when payment is due [Association of Small Landowners v. Secretary
to actual payment of Agrarian Reform] as it is a means to regulate
private property.
Retention limits prescribed by the
C.2 EFFECT OF DELAY Comprehensive Agrarian Reform Law is also
Just compensation means not only the correct form of taking under the power of eminent
amount to be paid to the owner of the land but domain. The taking contemplated is not a
also payment within a reasonable time from mere limitation on the use of the land, but the
its taking [Eslaban v. De Onorio, G.R. No. surrender of the title to and physical
146062, June 28, 2001] possession of the excess and all beneficial
rights accruing to the owner in favor of the
General rule on delay of payment: For non- beneficiary. [Sta. Rosa Realty & Development
payment, the remedy is the demand of Corp. v. Court of Appeals, G.R. No. 112526,
payment of the fair market value of the October 12, 2001]
property and not the recovery of possession of
the expropriated lots. [Republic of the
Philippines v. Court of Appeals, G.R. No. 146587,
July 2, 2002; Reyes v. National Housing
Authority, G.R. No. 147511, January 29, 2003]
Exception: When the government fails to pay
just compensation within five years from the
finality of the judgment in the expropriation
proceedings, the owners concerned shall have
the right to recover possession of their
property. [Republic of the Philippines v. Vicente
Lim, G.R. No. 161656, June 29, 2005]
Sec 4, RA 9999.Requirements for Availment.- the case favorable to the indigent, unless the
For purposes of availing of the benefits and court otherwise provides.
services as envisioned in this Act, a lawyer or
professional partnership shall secure a
If the applicant for exemption meets the salary
certification from the Public Attorney's Office and property requirements under Section 19 of
(PAO), the Department of Justice (DOJ) or Rule 141, then the grant of the application is
accredited association of the Supreme Court mandatory. On the other hand, when the
indicating that the said legal services to be application does not satisfy one or both
provided are within the services defined by the requirements, then the application should not
Supreme Court, and that the agencies cannot be denied outright; instead, the court should
provide the legal services to be provided by apply the “indigency test” under Sec. 21 of
the private counsel. Rule 3 and use its should discretion in
determining the merits of the prayer for
For purpose of determining the number of exemption. [Sps. Algura v. LGU of Naga City
hours actually provided by the lawyer and/or (2006)]
professional firm in the provision of legal
services, the association and/or organization Note: The significance of having an explicit
duly accredited by the Supreme Court shall “free access” provisions in the Constitution
issue the necessary certification that said may be gathered from the rocky road which
legal services were actually undertaken. “free access” seems to have traveled in
American jurisprudence. The American
Sec. 5, RA 9999. Incentives to Lawyers. - For constitution does not have an explicit free
purposes of this Act, a lawyer or professional access provision and, hence, its free access
partnerships rendering actual free legal doctrine has been developed as implicit from
services, as defined by the Supreme Court, both the equal protection clause and the due
shall be entitled to an allowable deduction process clause. [Bernas]
from the gross income, the amount that could
have been collected for the actual free legal Exemption of cooperatives from payment of
services rendered or up to ten percent (10%) court and sheriff fees no longer stands.
of the gross income derived from the actual Cooperatives can no longer invoke RA 9520,
performance of the legal profession, as amended by RA 9520, as basis for
whichever is lower: Provided, That the actual exemption from the payment of legal fees.
free legal services herein contemplated shall [Re: In the matter of clarification of exemption
be exclusive of the minimum sixty (60)-hour from payment of all court and sheriffs fees of
mandatory legal aid services rendered to cooperatives (2012)
indigent litigants as required under the Rule
on Mandatory Legal Aid Services for
Practicing Lawyers, under BAR Matter No.
2012, issued by the Supreme Court.
Includes issuing an invitation to a person not elicit a confession the accused may not yet
under investigation in connection with an avail of the services of his lawyer.[Escobedo vs.
offense he is suspected to have committed. Illinois of the United States Federal Supreme
[Sec. 2, RA 7438] Court (1964)]
However,given the clear constitutional intent
in the 1987 Constitution, the moment there is
CUSTODIAL INVESTIGATION REPORT
a move or even an urge of said investigators to
(1) Reduced to writing by the investigating elicit admissions or confessions or even plain
officer. information which may appear innocent or
(2) It shall be read and adequately explained innocuous at the time, from said suspect, he
to person arrested or detained by counsel should then and there be assisted by counsel,
or assisting counsel in a language or unless he waives the right, but the waiver shall
dialect known to him. be made in writing and in the presence of
counsel. [Gamboa vs. Cruz (1988)]
Non-compliance with second requirement will
render the report null and void and of no effect
whatsoever. [Sec 2c, RA 7438]
B. REQUISITES
Essence: Effective communication by the
A.2 CRITICAL PRE-TRIAL STAGE investigator of rights of accused [People vs.
Agustin (1995)]
Any critical confrontation by the prosecution
at pretrial proceedings where the results
might well determine his fate and where the
(a) Right to Remain Silent
absence of counsel might derogate from his
right to a fair trial. [U.S. v. Wade, 388 U.S. 218 The warning is needed simply to make the
(1967)] person under custodial investigation aware of
the existence of the right.
This warning is the threshold requirement for
A.3 SHOW-UP AND POLICE LINE-UP
an intelligent decision as to its exercise.
General: No right to counsel More importantly, such a warning is an
Out-of-court identification like a “show-up” absolute pre-requisite in overcoming the
(accused is brought face to face with the inherent pressures of the interrogation
witness for identification), or “police line-up” atmosphere.
(suspect is identified by witness from a group
of persons gathered for that purpose). Further, the warning will show the individual
that his interrogators are prepared to
Exception: Right to counsel if accusatory. recognize his privilege should he choose to
The moment there is a move or even an urge exercise it.
of said investigators to elicit admissions or
confessions or even plain information which
may appear innocent or innocuous at the time, (b) Right against Self-Incrimination under
from said suspect. [Gamboa v Cruz (1988)] Art. III, Sec. 12
Police Line-Ups The warning of the right to remain silent must
When petitioner was identified by the be accompanied by the explanation that
complainant at the police line-up, he had not anything said can and will be used against the
been held yet to answer for a criminal offense. individual in court.
The police line-up is not a part of the custodial This warning is needed in order to make him
inquest, hence, he was not yet entitled to aware not only of the privilege to remain silent,
counsel. but also of the consequences of forgoing it.
Thus, it was held that when the process had
not yet shifted from the investigatory to the
accusatory as when police investigation does (c) Right to Counsel
Rights of Persons Arrested, Detained or Duties of Public Officers. – (f) Any person
Under Custodial Investigation; Duties of arrested or detained or under custodial
Public Officers. – investigation shall be allowed visits by or
conferences with:
(a) Any person arrested, detained or under
custodial investigation shall at all times (1) Any member of his immediate family, or
be assisted by counsel; otherwise the
(2) Any medical doctor;
waiver shall be null and void and of no
effect. [RA 7438, Rights of Persons under (3) Priest or religious minister
Custodial Investigation, Section 2.]
(a) chosen by him; or
Essence:when a counsel is engaged by anyone (b) By his counsel; or
acting on behalf of the person under
investigation, or appointed by the court upon (c) By any national non-governmental
petition by said person or by someone on his organization duly accredited by the
behalf. [People v. Espiritu, G.R. No. 128287, Commission on Human Rights or
February 2, 1999] (d) By any international non-
Competent and independent counsel governmental organization duly
preferably of the suspect’s own choice. accredited by the Office of the
President.
Not independent counsel : special counsel,
prosecutor, counsel of the police or a (e) The person's "immediate family"
municipal attorney whose interest is adverse shall include his or her spouse,
to that of the accused[People v. Fabro], fiancé or fiancée, parent or child,
mayor[People v. Taliman], barangay brother or sister, grandparent or
captain[People v. Tomaquin]. grandchild, uncle or aunt, nephew
or niece, and guardian or ward.
A lawyer who was applying for work in the NBI
cannot be considered independent because he
cannot be expected to work against the Exclusionary Rule
interest of a police agency he was hoping to
join, as a few months later, he in fact was According to this rule, once the primary source
admitted into its work force. [People vs. (the tree) is shown to have been unlawfully
Januario (1997)] obtained, any secondary or derivative
evidence (the fruit) derived from it is also
Not competent counsel: lawyer signing only inadmissible. Stated otherwise, illegally
as witness [People v. Ordono], mayor of town seized evidence is obtained as a direct result
where accused is detained [People v. Velarde]. of the illegal act, whereas the fruit of the
Failure to ask for a lawyer does not constitute poisonous tree is the indirect result of the
a waiver. same illegal act. The fruit of the poisonous
tree is at least once removed from the illegally
No effective waiver of the right to counsel
seized evidence, but it is equally inadmissible.
during interrogation can be recognized unless
The rule is based on the principle that
specifically made after the warnings have
evidence illegally obtained by the State should
been given.
not be used to gain other evidence because
Request for assistance of counsel before any the originally illegally obtained evidence
interrogation cannot be ignored/denied by taints all evidence subsequently obtained.
authorities. Not only right to consult with an [People vs. Samontanez (2000)]
attorney but right to be given a lawyer to
Violations of the Miranda rights render
represent him if he’s indigent
inadmissible only the extrajudicial confession
or admission made during the custodial
(d) Rights to Visitation and Conference investigation. The admissibility of other
Sec. 2. Rights of Persons Arrested, evidence is not affected even if obtained or
Detained or Under Custodial Investigation; taken in the course of the custodial
investigation. [People v. Malimit (1996)]
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prosecutor or require him to submit his regularly, legally and within the confines of
recommendation. procedural due process, that is, after
evaluation of the evidence submitted by the
prosecution. [Taborite vs. Sollesta, supra]
Exceptions:
Bail for the provisional liberty of the accused,
(1) When charged with an offense punishable regardless of the crime charged, should be
by reclusion perpetua. allowed independently of the merits of the
(2) The right to bail is not available to the charge, provided his continued incarceration
military, as an exception to the bill of is clearly shown to be injurious to his health or
rights. [People v. Reyes, 212 SCRA 402] to endanger his life. Indeed, denying him bail
despite imperiling his health and life would
not serve the true objective of preventive
In this jurisdiction, before a judge may grant incarceration during the trial [Enrile v.
an application for bail, whether bail is a matter Sandiganbayan(2015)]
of right or discretion, the prosecutor must be
given reasonable notice of hearing or he must
be asked to submit his recommendation.
[Taborite vs. Sollesta, (2009)]
The prosecution must first be accorded an
opportunity to present evidence. It is on the
basis of such evidence that judicial discretion
is exercised in determining whether the
evidence of guilt of the accused is strong. In
other words, discretion must be exercised
All persons, except those charged (1) In case the evidence of guilt is strong. In such a case, according
with offenses punishable by to People v. San Diego (1966), the court's discretion to grant bail
reclusion perpetua when evidence of must be exercised in the light of a summary of the evidence
guilt is strong, shall, before presented by the prosecution.
conviction, be bailable by sufficient
Thus, the order granting or refusing bail must contain a
sureties, or be released on
summary of the evidence for the prosecution followed by the
recognizance as may be provided by
conclusion on whether or not the evidence of guilt is strong
law. The right to bail shall not be
(Note: it is not the existence of guilt itself which is concluded but
impaired even when the privilege of
the strength of the probability that guilt exists).
the writ of habeas corpus is
suspended. Excessive bail shall not (2) In extradition proceedings.
be required. Extradition courts do not render judgments of conviction or
acquittal so it does not matter WON the crimes the accused is
being extradited for is punishable by reclusion perpetua [US
Government v. Judge Puruganan and Mark Jimenez (2002)]
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. [Government of Hong Kong SAR v. Olalia
(2007)]
Standards for Fixing Bail for the purpose of enabling the court to
exercise its sound discretion; (Section 7
Rule 114. Sec. 9. Amount of bail; guidelines. – and 8)
The judge who issued the warrant or granted the (3) Decide whether the guilt of the accused is
application shall fix a reasonable amount of bail strong based on the summary of evidence
considering primarily, but not limited to, the of the prosecution;
following factors:
(4) If the guilt of the accused is not strong,
(a) Financial ability of the accused to give bail; discharge the accused upon the approval
(b) Nature and circumstance of the offense; of the bailbond (Section 19) Otherwise
petition should be denied.
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
C. PRESUMPTION OF INNOCENCE
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
The requirement of proof beyond reasonable
(g) Probability of the accused appearing at the doubt is a necessary corollary of the
trial; constitutional right to be presumed innocent.
(h) Forfeiture of other bail; [People v. Dramavo (1971)]
(i) The fact that the accused was a fugitive from The accused cannot present evidence before
justice when arrested; and the prosecution does so, even if the accused
pleads guilty. It violates the presumption of
(j) Pendency of other cases where the accused is innocence. [Alejandro v. Pepito (1980)]
on bail.
The presumption of regularity (in official
Excessive bail shall not be required. duties) cannot by itself prevail over the
presumption of innocence of the accused. But
where it is not the sole basis for conviction, the
presumption of regularity of performance of
Discretion is with the court called upon to rule official functions may prevail over the
on the question of bail. We must stress, constitutional presumption of innocence.
however, that where conditions imposed upon [People v. Acuram (2000)]
a defendant seeking bail would amount to a
refusal thereof and render nugatory the
constitutional right to bail, we will not hesitate C.1. EQUIPOISE RULE
to exercise our supervisory powers to provide
the required remedy. [DelaCamara v. Enage Where the evidence adduced by the parties is
(1971)] evenly balanced, the constitutional
presumption of innocence should tilt the
balance in favor of the accused. [Corpuz v.
Duties of a trial judge in case an application People (1991)]
for bail is filed [Cortes vs. Cabal (1997)]: In order that circumstantial evidence may
(1) In all cases, whether bail is a matter of warrant conviction, the following requisites
right or of discretion, notify the prosecutor must concur:
of the hearing of the application for bail or
(1) There is more than one circumstance
require him to submit his
recommendation (Section 18, Rule 114 as (2) The facts from which the inferences are
amended); derived are proven
(2) Where bail is a matter of discretion, (3) The combination of all the circumstances
conduct a hearing of the application for is such as to produce conviction beyond
bail regardless of whether or not the reasonable doubt. [People v. Bato, G.R.
prosecution refuses to present evidence to No. 113804, January 16, 1998]
show that the guilt of the accused is strong
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UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
(2) Reason for delay The Court agrees that the right to cross-
examine is a constitutional right anchored on
(3) Assertion/failure to assert right by the due process. It is a statutory right found in
accused Section 1(f), Rule 115 of the Revised Rules of
N.B. Failure to assert means waiver of Criminal Procedure which provides that the
privilege. accused has the right to confront and cross-
examine the witnesses against him at the
(4) Prejudice caused by the delay [Roquero v. trial. However, the right has always been
The Chancellor of UP Manila] understood as requiring not necessarily an
RA 8493 is a means of enforcing the right of actual cross-examination but merely an
the accused to a speedy trial. The spirit of the opportunity to exercise the right to cross-
law is that the accused must go on record in examine if desired. What is proscribed by
statutory norm and jurisprudential precept is I.1 WHEN CAN TRIAL IN ABSENTIA BE
the absence of the opportunity to cross- DONE
examine. The right is a personal one and may
3 requisites:
be waived expressly or impliedly. [People vs.
Escote Jr. (2003)] (1) Accused failed to appear for trial despite
postponement and notice
The task of recalling a witness for cross
examination is, in law, imposed on the party (2) Failure to appear is unjustified
who wishes to exercise said right. This is so
(3) After arraignment
because the right, being personal and
waivable, the intention to utilize it must be
expressed. Silence or failure to assert it on If not then the right of the accused to be
time amounts to a renunciation thereof. Thus, informed of the nature and cause of
it should be the counsel for the opposing party accusation against him will be impaired for
who should move to cross-examine plaintiffs lack of arraignment [Borja v. Mendoza (1977)]
witnesses [Fulgado vs. Court of Appeals et. al.,
(1990)]. Consequences: Waiver of right to cross-
examine and present evidence [Gimenez vs.
Nazareno (1988)]
Rule on Examination of a Child Witness[AM
No. 004-07-SC]
I.2 WHEN PRESENCE OF THE ACCUSED IS A
The judge may exclude any person, including DUTY
the accused, whose presence or conduct
causes fear to the child. (1) Arraignment and Plea
(2) During Trial, for identification
Compulsory Process (3) Promulgation of Sentence
(1) Right to Secure Attendance of Witness Exception: Light offense where accused need
not personally appear.
(2) Right to Production of Other Evidence
Restraint of Liberty
Not only physical restraint but any restraint on
freedom of action is sufficient i.e. (1) curtailed
freedom of movement by the condition that he
must get approval of respondents for any
travel outside Metro Manila, (2) abridged
liberty of abode because prior approval of
respondent is required in case petitioner
wants to change place of residence, (3)
abridged freedom of speech due to prohibition
from taking any interviews inimical to national
security, and (4) petitioner is required to report
regularly to respondents or their reps.
[Moncupa v. Enrile (1986)]
This Court has held that a restrictive custody
and monitoring of movements or whereabouts
of police officers under investigation by their
superiors is not a form of illegal detention or
restraint of liberty [Ampatuan vs. Macaraig
(2010)].
Restrictive custody is, at best, nominal
restraint which is beyond the ambit
of habeas corpus. It is neither actual nor
effective restraint that would call for the grant
of the remedy prayed for. It is a permissible
precautionary measure to assure the PNP
authorities that the police officers concerned
are always accounted for. [Ampatuan vs.
Macaraig (supra)].
Note: The fact that the party to whom the writ
is addressed has illegally parted with the
custody of a person before the application for
the writ is no reason why the writ should not
issue. [Villavicencio v. Lukban (1919)]
Where to file
The petition may be filed on any day and at any time [Sec. 3]
(2) extorting a confession by force. The privilege which exists as to private papers,
cannot be maintained in relation to “records
required by law to be kept in order that there
Only applies to compulsory testimonial, and may be suitable information of transactions
does not apply to material objects. [Villaflor v. which are the appropriate subjects of
Summers (1920)] governmental regulation and the enforcement
of restrictions validly established. [Shapiro v.
This right maybe invoked (by the said directors US (1948)]
and officers of Philcomsat Holdings
Corporation) only when the incriminating In recent cases, the US Supreme Court has
question is being asked, since they have no struck down certain registration requirements
way of knowing in advance the nature or effect that presented real and appreciable risk of
of the questions to be asked of them." The self-incrimination. These involved statutes
consolation is that when this power is abused, directed at inherently suspect groups in areas
such issue may be presented before the courts. permeated by criminal statutes, a
[Sabio vs. Gordon (2006)] circumstance which laid the subjects open to
real risk of self-incrimination. [Bernas]
It refers therefore to the use of the mental
process and the communicative faculties, and The great majority of persons who file income
not to a merely physical activity. tax returns do not incriminate themselves by
disclosing their occupation. [US v. Sullivan
If the act is physical or mechanical, the (1927)]
accused can be compelled to allow or perform
the act, and the result can be used in evidence
against him. B. APPLICATION
C. IMMUNITY STATUTES
Involuntary Servitude
Slavery and involuntary servitude, together
Transactional Immunity with their corollary peonage, all denote “a
Art. XIII, Sec. 18 condition of enforced, compulsory service of
one to another.” [Hodges v. US (1906) in Rubi
The Commission on Human Rights shall v. Provincial Board of Mindoro (1919)]
have the following powers and functions:
xxx A private person who contracts obligations of
this sort toward the Army cannot, by law that
(8) Grant immunity from prosecution to any we know of, either civil or military be
person whose testimony or whose compelled to fulfill them by imprisonment and
possession of documents or other deportation from his place of residence, we
evidence is necessary or convenient to deem it wholly improper to sustain such
determine the truth in any investigation means of compulsion which are not justified
conducted by it or under its authority; either by law or by the contract. [In Re Brooks
(1901)]
Use and Fruit of Immunity Domestic services are always to be
remunerated, and no agreement may subsist
“Use immunity” prohibits use of a witness’ in law in which it is stipulated that any
compelled testimony and its fruits in any domestic service shall be absolutely
manner in connectionwith the criminal gratuitous, unless it be admitted that slavery
prosecution of the witness. may be established in this country through a
“Transactional immunity” grants immunity to covenant entered into between interested
witness from prosecution for an offense to parties. [de los Reyes v. Alojado (1910)]
which his compelled testimony relates. A former court stenographer may be
[Galman v. Pamaran (1985)] compelled under pain of contempt to
transcribe stenographic notes he had failed to
attend to while in service. xxx such compulsion
is not the condition of enforced compulsory
service referred to by the Constitution.
Exceptions:
XXIII. Double Jeopardy
(1) The graver offense developed due to
"supervening facts" arising from the same
Art. III, Sec. 21.No person shall be twice put act or omission constituting the former
in jeopardy of punishment for the same charge.
offense. If an act is punished by a law and (2) The facts constituting the graver charge
an ordinance, conviction or acquittal under became known or were discovered only
either shall constitute a bar to another after the filing of the former complaint or
prosecution for the same act. information.
(3) The plea of guilty to the lesser offense was
Termination of Jeopardy made without the consent of the fiscal and
the offended party.
(1) By acquittal
(2) By final conviction
When Defense of Double Jeopardy Is
(3) By dismissal without express consent of Available
accused
(1) Dismissal based on insufficiency of
(4) By “dismissal” on the merits evidence;
(2) Dismissal because of denial of right to
A. REQUISITES speedy trial;
(3) Accused is discharged to be a state
witness.
(1) Court of competent jurisdiction;
(2) A Complaint/Information sufficient in
form and substance to sustain a When the State Can Challenge the Acquittal
conviction; of the Accused or the Imposition of a Lower
Penalty by a Trial Court
(3) Arraignment and plea by the accused;
(1) Where the prosecution is deprived of a fair
(4) Conviction, acquittal, or dismissal of the opportunity to prosecute and prove its
case without the express consent, of the case, tantamount to a deprivation of due
accused. [Rule 117, Sec. 7; People v. Obsania process;
(1968)]
(2) Where there is a finding of mistrial;
(3) Where there has been a grave abuse of
When Subsequent Prosecution Is Barred discretion. [Villareal v. People (2012)]
(1) Same offense
(2) Attempt of the same offense B. MOTIONS FOR RECONSIDERATION
(3) Frustration of the same offense AND APPEALS
(4) Offense necessarily included in the 1st
offense (All the elements of the 2nd
The accused cannot be prosecuted a second
constitute some of the elements of the 1st
time for the same offense and the prosecution
offense)
cannot appeal a judgment of acquittal.
(5) Offense that necessarily includes the 1st [Kepner v. US (1904)]
offense (All the elements of the 1st
Provided, that the judge considered the
constitute some of the elements of the 2nd
evidence, even if the appreciation of the
offense)
evidence leading to the acquittal is erroneous,
an appeal or motion for reconsideration by the
prosecution will not be allowed. [People v.
Judge Velasco (2000)]
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UP LAW BOC CONSTITUTIONAL LAW 2 POLITICAL LAW
B. BILLS OF ATTAINDER
POLITICAL LAW
ADMINISTRATIVE
LAW
A. DEFINITION
Administrative Law is that branch of modern
law under which the executive department of Administrative Agencies are the organs of
the government, acting in a quasi-legislative government, other than a court and other than
or quasi-judicial capacity, interferes with the the legislature, which affect the rights of
conduct of the individual for the purpose of private parties either through adjudication or
promoting the well-being of the community through rule-making [NACHURA]
[Roscoe Pound, cited in Irene R. Cortes, Administrative agency - may be described as a
Philippine Administrative Law: Cases and body endowed with quasi-legislative and
Materials, (1984)] quasi-judicial powers for the purpose of
Administrative law is the law concerning the enabling it to carry out the laws entrusted for
powers and procedures of administrative enforcement or execution [CRUZ]
agencies, including specially the law
governing judicial review of administrative
actions [K. Davis, Administrative Law Treatise Admin Code, Book VII, Sec. 2.
1 (1958), cited in DE LEON (2013)]. Definitions. - As used in this Book:
(1) "Agency" includes any department, bureau,
office, commission, authority or officer of the
B. HISTORICAL CONSIDERATIONS
National Government authorized by law or
executive order to make rules, issue licenses,
B.1. Why did administrative agencies come grant rights or privileges, and adjudicate cases;
about? research institutions with respect to licensing
functions; government corporations with
(1) Growing complexities of modern life respect to functions regulating private right,
(2) Multiplication of number of subjects privileges, occupation or business; and officials
needing government regulation; and in the exercise of disciplinary power as provided
by law.
(3) Increased difficulty of administering laws
[Pangasinan Transportation v. Public Service An administrative agency is defined as "[a]
Commission (1940)] government body charged with administering
and implementing particular legislation.
Examples are workers' compensation
B.2. Why are administrative agencies commissions ... and the like. ... The term
needed? 'agency' includes any department,
Because the government lacks: independent establishment, commission,
administration, authority board or bureau ...
(1) Time (to respond to problems) [Republic v. CA (Aug. 5, 1991), citing Black’s
(2) Expertise, and Law Dictionary]
(3) Organizational aptitude for effective and
continuing regulation of new developments in B. WHEN IS AN AGENCY
society [Stone]. ADMINISTRATIVE?
D. KINDS
(1) Government grant or gratuity, special
privilege (e.g. Bureau of Lands, Phil.
Veterans Admin., GSIS, SSS, PAO);
(2) Carrying out the actual business of
government (e.g. BIR, Bureau of
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UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
Kind of
Adminis-trative Judicial
Proceedings
B.3. POWERS INCLUDED IN QUASI-
Nature of JUDICIAL FUNCTION
Inquisitorial Adversarial
Proceedings
Liberally Follow technical
Admin. Code, Bk. VII, Sec. 13. Subpoena. - In
Rules of any contested case, the agency shall have the
applied rules in the Rules
Procedure power to require the attendance of witnesses or
of Court
Decision limited Decision includes
the production of books, papers, documents
Nature and and other pertinent data, upon request of any
to matters of matters brought
Extent of party before or during the hearing upon
general concern as issue by the
Decision
parties showing of general relevance. Unless otherwise
The agency The parties are provided by law, the agency may, in case of
itself may be a only the private disobedience, invoke the aid of the Regional
Parties party to the litigants Trial Court within whose jurisdiction the
proceedings contested case being heard falls. The Court may
before it
punish contumacy or refusal as contempt.
1987 and 1935 Constitutions are the same in Ang Tibay v. CIR (1940) lays down the cardinal
limiting the issuance of warrants of arrest to a primary rights:
judge.]
(1) Right to a hearing (Includes the right of a
(1) Under Article III, Section 2, of the 1987 party to present his own case and submit
Constitution, only judges, and no other, evidence in support thereof)
who may issue warrants of arrest and
(2) The tribunal must consider the evidence
search;
presented
(2) The exception is in cases of deportation of
illegal and undesirable aliens, whom the (3) Decision must be supported by evidence.
President or the Commissioner of
(4) Evidence must be substantial.
Immigration may order arrested, following
a final order of deportation, for the Quantum of Proof: Substantial Evidence
purpose of deportation [Salazar v. The amount of relevant evidence which a
Achacoso, (1990)] reasonable mind might accept as
Board of Commissioners v. De La Rosa (1991) adequate to justify a conclusion [Sec. 5,
reiterates the rule that for a warrant of arrest Rule 133, Rules of Court]
issued by the Commissioner of Immigration to (5) Decision must be rendered on the
be valid, it must be for the sole purpose of evidence presented at the hearing or at
executing a final order of deportation. least contained in the record and
A warrant of arrest issued by the disclosed to the parties affected
Commissioner of Immigration for purposes of (6) Independent consideration of judge (Must
investigation only is null and void for being not simply accept the views of a
unconstitutional subordinate)
(7) Decision rendered in such a manner as to
B.4. ADMINISTRATIVE DUE PROCESS let the parties know the various issues
involved and the reasons for the decision
i. Due Process
rendered.
While [Admin. Agencies are] free from the
rigidity of certain procedural requirements,
they cannot entirely ignore or disregard the Due process does not require that actual
fundamental and essential requirements of taking of testimony be before the same officer
due process in trials and investigations of an who will decide the case. As long as a party is
administrative character [Ang Tibay v. CIR not deprived of his right to present his own
(1940)] case and submit evidence in support thereof,
and the decision is supported by the evidence
A decision rendered without due process is
in the record, there is no question that the
void ab initio and may be attacked at any time
requirements of due process and fair trial are
directly or collaterally by means of a separate
fully met [American Tobacco Co. v. Director of
action or proceeding where it is invoked. Patents(1975)]
[Garcia v. Molina (2010)]
times more creditably than oral argument, BUT the right of a party to confront and cross-
through pleadings [Mutuc v. CA (1990)] examine opposing witness is a fundamental
right which is part of due process. If without
The right to counsel is not imperative in
his fault, this right is violated, he is entitled to
administrative investigations because such
have the direct examination stricken off the
inquiries are conducted merely to determine
record. [Bachrach Motor Co., Inc. v. CIR (1978)]
whether there are facts that merit disciplinary
measures against erring public officers and While the right to cross-examine is a vital
employees, with the purpose of maintaining element of procedural due process, the right
the dignity of government service [Lumiqued v. does not necessarily require an actual cross
Exevea (1997)] examination but merely an opportunity to
exercise this right if desired by the party
Presence of a party at a trial is not always the
entitled to it. [Gannapao v. CSC (2011)]
essence of due process. All that the law
requires to satisfy adherence to this However, disciplinary cases involving students
constitutional precept is that the parties be need not necessarily include the right to cross
given notice of the trial, an opportunity to be examination [UP Board of Regents v. CA
heard. Where the defendant failed to appear (1999), citing Ateneo de Manila University v.
on the date set for the trial, of which he was Capulong (1993)]
previously notified, he is deemed to have
Evidence on record must be fully disclosed to
forfeited his right to be heard in his defense
the parties. [American Inter-Fashion v. Office
[Asprec v. Itchon (1966)]
of the President (1991)] but respondents in
All that the law requires is the element of administrative cases are not entitled to be
fairness; that the parties be given notice of informed of findings of investigative
trial and committees but only of the decision of the
administrative body. [Pefianco v. Moral
(1) An opportunity to be heard
(2000)]
(2) In administrative proceedings, an
It is a basic tenet of due process that the
opportunity to seek reconsideration
decision of a government agency must state
(3) An opportunity to explain one’s side the facts and the law on which the decision is
Any defect in the observance of due process is based, and not merely conclusions of law
cured by the filing of a motion for
[Albert v. Gangan (2001)]
reconsideration, and that denial of due Section 14, Article VIII of the 1987 Constitution
process cannot be successfully invoked by a (no decision shall be rendered by any court
party who was afforded the opportunity to be without expressing therein clearly and
heard [Vivo v. PAGCOR (2013)] distinctly the facts and the law on which it is
The principle that a person cannot be
based) need not apply to decisions rendered in
administrative proceedings. Said section
prejudiced by a ruling rendered in an action or
proceeding in which he was not made a party applies only to decisions rendered in judicial
proceedings;
conforms to the constitutional guarantee of
due process of law [Aguilar v. O’Pallick (2013)] There is no requirement in Ang Tibay v. CIR
that the decision must express clearly and
The law, in prescribing a process of appeal to
distinctly the facts and the law on which it is
a higher level, contemplates that the
based for as long as the administrative
reviewing officer is a person different from the
decision is grounded on evidence, and
one who issued the appealed decision.
expressed in a manner that sufficiently
Otherwise, the review becomes a farce; it is
rendered meaningless [Rivera v. CSC (1995)] informs the parties of the factual and legal
bases of the decision, the due process
Is a trial necessary?—NO. Holding of an requirement is satisfied [Solid Homes, Inc. v.
adversarial trial is discretionary. Parties Laserna (2008)]
cannot demand it as a matter of right. [Vinta
Maritime Co., Inc. v. NLRC (1978)].
Note: However, in the Admin. Code, it is
provided that:
PAGE 205 OF 406
UP LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
Due to the difference between the quantum of (1) The power to declare the existence of facts
evidence, procedure, and sanctions imposed which call into operation the statute’s
in criminal and administrative proceedings, provisions, and
the findings and conclusions in one should not (2) May grant to commissioners and other
necessarily be binding on the other. [Ocampo subordinate officers the power to
v. Office of the Ombudsman (2000)] ascertain and determine appropriate facts
as a basis for procedure in the
enforcement of particular laws.
The basis of administrative liability differs
from criminal liability. The purpose of Such functions are merely incidental to the
administrative proceedings is mainly to exercise of power granted by law to clear
protect the public service, based on the time- navigable streams of unauthorized
honored principle that a public office is a obstructions. They can be conferred upon
public trust. On the other hand, the purpose of executive officials provided the party affected
the criminal prosecution is the punishment of is given the opportunity to be heard. [Lovina v.
crime. [Ferrer v. Sandiganbayan (2008)] Moreno (1963)]
exercise of which ordinarily does not require a A license or permit is not a contract between
hearing; x x an inquiry, judicial or otherwise, the sovereignty and the licensee. Rather, it is a
for the discovery and collection of facts special privilege, a permission or authority to
concerning a certain matter or matters [Cariño do what is within its terms. It is always
v. CHR (1991)] revocable. [Gonzalo Sy Trading v. Central
Bank (1976)]
C.3. LICENSING FUNCTION
Note, however, that the Admin. Code
prescribes notice and hearing before it can be
Sec. 17, Bk VII, Admin. Code. Licensing revoked, subject to certain exceptions.
Procedure. – (1) When the grant, renewal,
denial or cancellation of a license is required to
be preceded by notice and hearing, the C.4. FIXING OF RATES, WAGES, PRICES
provisions concerning contested cases shall
Admin. Code, Book. VII, Sec. 2(3). “Rate” means
apply insofar as practicable. any charge to the public for a service open to all and upon
(2) Except in cases of willful violation of the same terms, including individual or joint rates, tolls,
classification or schedules thereof, as well as
pertinent laws, rules and regulations or when communication, mileage, kilometrage and other special
public security, health, or safety requires rates which shall be imposed by law or regulation to be
otherwise, no license may be withdrawn, observed and followed by any person.
suspended, revoked or annulled without notice i. Publication requirement for rate-fixing
and hearing
Admin. Code, Book. VII, Sec. 9. Public
Participation. – […] (2) In the fixing of rates, no
Sec. 18, Bk VII, Admin. Code. Non-expiration of rule or final order shall be valid unless the
License. – Where the licensee has made timely proposed rates shall have been published in a
and sufficient application for the renewal of a newspaper of general circulation at least 2
license with reference to any activity of a weeks before the first hearing thereon.
continuing nature, the existing license shall not
expire until the application shall have been
finally determined by the agency. Generally, the power to fix rates is a quasi-
legislative function, i.e. it is meant to apply to
all. However, it becomes quasi-judicial when
Admin. Code, Bk. VII, Sec. 2(10). “License” the rate is applicable only to a particular party,
includes the whole or any part of any agency predicated upon a finding of fact. [See Vigan
permit, certificate, passport, clearance, Electric Light Co. v. Public Service Commission
approval, registration, charter, membership, (1964), cited in PHILCOMSAT v. Alcuaz (1989)]
statutory exemption or other form of N.B. The old doctrine is if the rate-fixing power
permission, or regulation of the exercise of a is quasi-legislative, it need not be
right or privilege. accompanied by prior notice and hearing.
Under the Admin. Code (supra), the distinction
seems to have been disregarded, since the
Admin. Code, Bk. VII, Sec. 2(11).“Licensing” provision did not qualify the character of the
includes agency process involving the grant, rate-fixing, and now requires prior notice (via
renewal, denial, revocation, suspension, publication) before the hearing.
annulment, withdrawal, limitation,
amendment, modification or conditioning of a Can the power to fix rates be delegated to a
license. common carrier or other public service? NO.
The latter may propose new rates, but these
will not be effective without the approval of
When are notice and hearing required in the administrative agency. [KMU v. Garcia
licensing? Only if it is a contested case. (1994)]
Otherwise, it can be dispensed with (e.g.
driver’s licenses).
What are considered in the fixing of rates?
All the proceedings of the court in violation of B.1. EXCEPTIONS TO THE DOCTRINE OF
the doctrine and all orders and decisions EXHAUSTION OF REMEDIES:
rendered thereby are null and void [Province of
(1) Purely legal questions. [Castro v.
Aklan v. Jody King Construction and
Secretary (2001)]
Development Corp. (2013)]
(2) There is grave doubt as to the availability
Note: The court may raise the issue of primary
of the administrative remedy [Pascual v.
jurisdiction sua sponte and its invocation
Provincial Board (1959)]
cannot be waived by the failure of the parties
to argue it as the doctrine exists for the proper (3) Steps to be taken are merely matters of
distribution of power between judicial and form. [Pascual v. Provincial Board (1959)]
administrative bodies and not for the
(4) Administrative remedy not exclusive but
convenience of the parties [Euro-Med
merely cumulative or concurrent to a
Laboratories Phil., Inc. v. Province of Batangas judicial remedy. [Pascual v. Provincial
(2006)] Board (1959)]
(5) There are circumstances indicating
B. DOCTRINE OF EXHAUSTION OF urgency of judicial intervention [DAR v.
ADMINISTRATIVE REMEDIES Apex Investment (2003)]
(6) Rule does not provide plain, speedy,
adequate remedy [Information
General Rule: Where the law has delineated Technology Foundation v. COMELEC
the procedure by which administrative appeal (2004)]
or remedy could be effected, the same should
be followed before recourse to judicial action (7) Resort to exhaustion will only be
can be initiated. [Pascual v. Provincial Board oppressive and patently unreasonable.
(1959)] [Cipriano v. Marcelino (1972)]
(8) Where the administrative remedy is only
permissive or voluntary and not a
Requisites: prerequisite to the institution of judicial
(1) The administrative agency is performing a proceedings. [Corpus v.Cuaderno, Sr.
quasi-judicial function; (1962)]
(2) Judicial review is available; and (9) Application of the doctrine will only cause
great and irreparable damage which
(3) The court acts in its appellate jurisdiction. cannot be prevented except by taking the
appropriate court action. [De Lara, Jr. v.
Cloribel (1965)]
Rationale:
(10) When it involves the rule-making or quasi-
(1) Legal reason: The law prescribes a legislative functions of an administrative
procedure. agency [Smart v. NTC (2003)]
(2) Practical reason: To give the agency a (11) Administrative agency is in estoppel.
chance to correct its own errors and [Republic v.Sandiganbayan (1996)]
prevent unnecessary and premature
resort to the courts (12) Doctrine of qualified political agency
(respondent is a department secretary
(3) Reasons of comity: Expedience, courtesy, whose acts as an alter ego of the President
convenience. bears the implied and assumed approval
of the latter) [Demaisip v. CA 1959);
Pagara v. CA (1996)]
(13) Subject of controversy is private land in
land case proceedings. [Soto v. Jareno
(1986)]
(14) Violation of due process. [Pagara v. CA Failure to observe the doctrine of exhaustion
(1996)] of administrative remedies does not affect the
Court’s jurisdiction.
(15) Where there is unreasonable delay or
official inaction that will irretrievably If not invoked at the proper time, this ground
prejudice the complainant [Republic v. is deemed waived and the court can take
Sandiganbayan (1996)] cognizance of the case and try it [Republic v.
Sandiganbayan (1996)]
(16) Administrative action is patently illegal
amounting to lack or excess of jurisdiction. B.3. WHEN APPEALS TO THE OFFICE OF
[DAR v. Apex Investment (2003)] THE PRESIDENT ARE REQUIRED:
(17) Resort to administrative remedy will A decision or order issued by a department or
amount to a nullification of a claim [Paat agency need not be appealed to the Office of
v. CA (1997); Alzate v. Aldana, (1960)] the President when there is a special law that
(18) No administrative review provided for by provides for a different mode of appeal. If the
law [Estrada v. CA (2004)] law does not provide for a specific relief,
(19) Issue of non-exhaustion of administrative appeals may be taken to the Office of the
remedies rendered moot [see President [Moran v. Office of the President,
enumeration in Estrada v. CA (2004)] (2014)]
(20) When the claim involved is small Doctrine of Doctrine of
Exhaustion of Primary
(21) When strong public interest is involved Administrativ Administrative
(22) In quo warranto proceedings [see e Remedies Jurisdiction
enumeration in Lopez v. City of Manila Jurisdiction Concurrent
(1996)] of Court Original
Appellate
(23)Law expressly provides for a different Jurisdiction with
review procedure. [Samahang Admin Body
Magbubukid v. CA (1999)] Ground for The court yields
Note: The exceptions may be condensed into Non- to the
three: exercise of Exhaustion of jurisdiction of
Jurisdiction administrative the
(1) Grave abuse of discretion; remedy a administrative
(2) Pure question of law; or condition agency because
precedent. of its specialized
(3) No other plain, speedy, and adequate knowledge or
remedy. expertise.
However, the long list has been developed by Court Suspend
jurisprudence. It is prudent to cite it over the Dismiss
Action Judicial Action
shortened list.
C. DOCTRINE OF FINALITY OF
B.2. EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE ACTION
ADMINISTRATIVE REMEDIES:
Prohibition is not the proper remedy [when] fees and charges. Petitioners should have
the enabling law itself, which is B.P. Blg. 325, availed of this easy and accessible remedy
has specifically tasked the Cabinet to review instead of immediately resorting to the judicial
and approve any proposed revisions of rates of process. [Paredes v. CA (1996)]
POLITICAL LAW
LOCAL
GOVERNMENTS
I. Public Corporations
A. CONCEPT
Corporation – An artificial being created by
operation of law, having the right of
succession and the powers, attributes and
properties expressly authorized by law or
incident to its existence. [Sec. 2, Corp. Code;
Sec. 2, Act No. 1459]
Corporations created by the state Corporations organized wholly for Private corporation that renders
as its own device and agency for the profit or advantage of their public service or supply public
the accomplishment of parts of own members, or some “private wants.
its own public works. purpose, benefit, aim, or end.”
Organized for the gain or benefit
[Sec. 3, Act. No. 1459]
of its members, but required by
law to discharge functions for the
public benefit. [Phil. Society for
the Prevention of Cruelty to
Animals v. COA, G.R. No. 169752
(2007)]
Created by the state, either by Created by the will of the [May be created by special
general or special act. incorporators, with the charter or under the general law.
recognition of the state [i.e. (e.g. utility, railroad, telephone,
through the CORP. CODE] transport-ation companies)]
A.2. TEST TO IDENTIFY PUBLIC OR PRIVATE On the other hand, the Philippine Society for
CHARACTER the Prevention of Cruelty to Animals, while
created by Act No. 1285, is a private
“The true criterion […] is the totality of the
corporation as (1) it is not subject to state
relation of the corporation to the State. If the
control, and (2) its powers to arrest offenders
corporation is [1] created by the State as [2] the
of animal welfare laws and to serve processes
[State’s] own agency or instrumentality to [3]
have been withdrawn by C.A. No. 148. [Phil.
help it in carrying out its governmental
Society for the Prevention of Cruelty to
functions, then the corporation is considered
Animals v. COA (2007)]
public; otherwise, it is private.”
Hence, “provinces, chartered cities, and
barangays can best exemplify public
corporations.”
Purpose
Local governance over inhabitants of cities/towns; Agencies of the State for limited purposes to take
agency of the State for assistance in civil charge of some public or state work, other than
government of the country for regulation of local community work. [Nat’l Waterworks & Sewerage
and internal affairs. Authority v. NWSA Consolidated Unions, G.R. No.
L-18939 (1964)]
Personality
Political subdivision of the Republic of the Separate and distinct from the government;
Philippines
Subject to provisions of the Corporation Code;
Mere fact that the Government is a majority
stockholder of the corporation does not make it a
public corporation;
Government gives up its sovereign character with
regard to transactions of the corporation. [Bacani
v. Nat’l Coconut Corp., G.R. No. L-9657 (1956)]
B. CLASSIFICATIONS
B.1. TRADITIONAL (PRE-LOCAL GOV’T CODE) CLASSIFICATIONS [SINCO]
Nature and Creation Function
Body corporate and politic organized Agency (1) primarily to regulate and
for the government of a definite administer the internal affairs of a
locality locality and (2) to assist in the civil
Municipal Corp. Proper
government of a country
[e.g. LGUs]
Created by the state as its own device For the accomplishment of some
and agency[i.e. not of or for a parts of its own public work other
particular locality] than the local government carried on
Non-Municipal Corp. in designated areas by municipal
[e.g. Rehabilitation Finance Corp.,
corporations
Phil. Nat’l Red Cross, Boy Scouts of
the Phils.]
(4) Election and Qualification of Elective municipal corporations would allow him
Officials to exercise over LGUs the power of control
denied to him by the Constitution. [Pelaez
v. Auditor General (1965)]
i. Law or Ordinance
• Power to create provinces cannot be
A local government unit may be created, delegated: Section 19, Article VI of RA
divided, merged, abolished, or its boundaries 9054 is unconstitutional insofar as it
substantially altered EITHER: grants to the ARMM Regional Assembly
(1) By law enacted by Congress in the case of the power to create provinces and cities.
provinces, cities, municipalities, and any Congress’ delegation of the power to
other political subdivision; OR create a province includes the creation of
(2) By ordinance passed by the Sangguniang a legislative district, which is
Panlalawigan or Sangguniang unconstitutional, since legislative districts
Panlungsod in the case of a barangay may be created or reapportioned only by
within its territorial jurisdiction [Sec. 6, an Act of Congress. [Sema v. COMELEC
LGC]. (2008)]
N.B. In the case of the creation of barangays
by the Sangguniang Panlalawigan, the ii. Plebiscite
recommendation of the Sangguniang Bayan
concerned shall be necessary. [Sec. 385, LGC] The plebiscite shall be conducted by the
COMELEC within 120 days from the date of
effectivity of the law or ordinance, unless said
Power of creation is legislative in nature law or ordinance fixes another date. [Sec. 10,
LGC]
• The authority to create municipal
corporations is essentially legislative in The Constitution recognizes that the power to
fix the date of elections is legislative in nature.
nature. [Pelaez v. Auditor General, G.R.
But the Court upheld the COMELEC’s broad
No. L-23825 (1965)]
power or authority to fix other dates for a
• The enactment of a LGC is not a sine qua plebiscite, as in special elections, to enable the
non for the creation of a municipality, and people to exercise their right of suffrage. The
before the enactment of such, the power COMELEC thus has residual power to conduct
remains plenary except that creation a plebiscite even beyond the deadline
should be approved in a plebiscite. prescribed by law. [Cagas v. COMELEC, G.R.
[Torralba v. Sibagat, G.R. No. L-59180 No. 209185 (2013)]
(1987)]
dissolution or any other similar action on the Plebiscite Requirement for Autonomous
following: Regions
(1) Legislative Districts: Legislative districts The creation of the autonomous region shall be
are not political subdivisions through effective when approved by a majority of the
which functions of the government are votes cast by the constituent units in a plebiscite
carried out. [Bagabuyo v. COMELEC, G.R. called for the purpose. However, only provinces,
No. 176970 (2008)] cities, and geographic areas voting favorably in
such plebiscite shall be included in the
(2) Administrative Regions: Administrative autonomous region. [Sec. 18, Art. X,
regions are not territorial and political Constitution]
subdivisions. The power to create and
merge administrative regions is
traditionally vested in the President. Majority requirement: What is required by the
Hence, the merger of provinces that did Constitution is a simple majority of votes
not vote for inclusion in the ARMM into approving the Organic Act in individual
existing administrative regions does not constituent units.
require a plebiscite. [See Abbas v.
COMELEC, G.R. No. 89651 (1989)] • A double majority [in (1) all constituent
units put together, (2) as well as in the
individual constituent units] is not
Plebiscite must be “in the political units required. [Abbas v. COMELEC (1989)]
directly affected”
• Meaning: When the law states that the
plebiscite shall be conducted “in the Sole province cannot validly constitute an
political units directly affected,” it means autonomous region: An autonomous region
that the residents of the political entity cannot be created if only one province
who would be economically dislocated by approved of its creation in the plebiscite called
the separation of a portion thereof have for the purpose [Ordillo v. COMELEC, G.R. No.
the right to vote in said plebiscite. [Padilla 93054 (1990), on the plebiscite concerning the
v. COMELEC, G.R. No. 103328 (1992)] Cordilleras].
• “Material change” as standard: If the Not all amendments require plebiscite: Only
creation, division, merger, abolition or amendments to, or revisions of, the Organic
substantial alteration of boundaries of an Act constitutionally essential to the creation of
LGU will cause a material change in the autonomous regions—those aspects
political and economic rights of a political specifically mentioned in the Constitution
unit, the residents of such political unit which Congress must provide for in the
should have the right to participate in the Organic Act—require ratification through a
required plebiscite. [Miranda v. Aguirre plebiscite.
(1999)]
• Hence, in the conversion of a component Rationale: If all amendments to the Organic
city to a highly urbanized city, the Act have to undergo the plebiscite
residents of the province must participate. requirement before becoming effective, this
The conversion of the city will, among would hamper the ARMM’s progress by
others, result in reduction in taxing impeding Congress from enacting laws that
jurisdiction and reduced economic timely address problems as they arise in the
viability of the province. [Umali v. region, as well as weighing down the ARMM
COMELEC, G.R. No. 203974 (2014)] government with the costs that unavoidably
follow the holding of a plebiscite. [Abas Kida
• But the inhabitants of a neighboring city
v. Senate of the Phil, G.R. No. 196271 (2011)]
(e.g. San Juan) are properly excluded from
a plebiscite concerning the conversion of a
city (e.g. Mandaluyong) to a highly
iii. Beginning of Corporate Existence
urbanized city. [See Tobias v. Abalos
(1994)] General Rule: The corporate existence of an
LGU commences upon the election and
(3) Sufficient to provide for such basic services which is a ‘national agency, not a political
and facilities to meet the requirements of government unit.’” [MMDA v. Bel-Air (2000)]
its populace. [Sec. 7, LGC]
• The scope of the MMDA's function is
limited to the delivery of [7 basic services
Land Area (Territory) requirements, enumerated in its charter.] It is not vested
exceptions: with police power, let alone legislative
power. All its functions are administrative
Need not Need not be in nature. [MMDA v. Bel-Air, G.R. No.
follow land contiguous 135962 (2000)]
area
Under the LGC: (a) Composed ii. Highly Urbanized Cities and Independent
No exception. of 2 or more
Component Cities
islands; or
Under the LGC (b) Separated Highly Urbanized Cities and Independent
IRR: Composed by cities which Component Cities shall be independent of the
of 1 or more do not Province. [Sec. 12, Art. X, Constitution]
Province islands [Art. contribute to
9(2), LGC IRR; the income of • Independent Component Cities are those
held valid in the province whose charters prohibit their voters from
Navarro v. [Sec. 461(b) voting for provincial elective officials. are
Ermita, G.R. LGC] independent of the province. [Sec. 451,
No. 180050 LGC]
(2011)] • Highly Urbanized Cities are those that
Composed of 1 Composed of 2 meet the higher population threshold for
City or more islands or more islands cities in the LGC [see Sec. 452(a), LGC].
[Sec. 450(b), [Sec. 450(b),
LGC] LGC]
Composed of 1 Composed of 2 iii. Autonomous Regions
Municipality or more islands or more islands • Consist of provinces, cities, and
[Sec. 442(a), [Sec. 442(b), municipalities and geographical areas
LGC] LGC] sharing common and distinctive historical
[No Composed of 2 and cultural heritage, economic and social
Barangay requirement] or more islands structures, and other relevant
[Sec. 386(b), characteristics within the framework of the
LGC] Constitution;
v. Sub-provinces
ii. Abolition
III. Principles of Local
Ground: An LGU may be abolished when its
income, population, or land area has been
irreversibly reduced to less than the minimum
Autonomy
standards prescribed for its creation as
certified by the national agencies concerned to A. LOCAL AUTONOMY
the Congress or the sanggunian. [Sec. 9, LGC]
The territorial and political subdivisions shall
Resulting merger: The law or ordinance enjoy local autonomy. [Sec. 2, Art. X,
abolishing an LGU shall specify the province, Constitution]
city, municipality, or barangay with which the
LGU sought to be abolished will be
incorporated or merged. [Sec. 9, LGC] A.1. DECLARATION OF POLICY
The fact that nobody resides in an LGU does (1) The territorial and political subdivisions of
not result in its automatic cessation. The the State shall enjoy genuine and
Congress or the sanggunian concerned must meaningful local autonomy to enable
pass a law or an ordinance for the abolition of them to attain their fullest development
such LGU, subject to the mandatory as self-reliant communities and make
requirement of a plebiscite. [Sultan Usman them more effective partners in the
Sarangani v. COMELEC, G.R. No. 135927 attainment of national goals.
(2000)]
(2) The State shall provide for a more
Dissolution does not occur due to: responsive and accountable local
(1) Non-user or surrender of charter; government structure instituted through a
system of decentralization whereby local
(2) Failure to elect municipal officers; government units shall be given more
(3) Change of sovereignty; or powers, authority, responsibilities, and
resources.
(4) Change of name or boundaries.[MARTIN]
(3) The State shall ensure the accountability
of local government units through the
iii. Downgrading institution of effective mechanisms of
recall, initiative and referendum.
Downgrading falls within the meaning of
creation, division, merger, abolition, or (4) All national agencies are required to
substantial alteration; hence ratification in a conduct periodic consultations with the
plebiscite is necessary. There is a material appropriate LGUs, NGOs, people’s
change in the political and economic rights of organizations and other concerned
the LGU's inhabitants as well as its budget, sectors before any project or program is
and thus reasonable to require the consent of implemented in their respective
the affected population. The effects of jurisdictions. [Sec. 2, LGC]
downgrading from independent component
city to component city are:
Congressional Pork Barrel goes against the
(1) The city mayor will be placed under the constitutional principles on local autonomy
administrative supervision of the since it allows district representatives, who are
Governor; national officers, to substitute their judgments
(2) Resolutions and ordinances passed by the in utilizing public funds for local development.
City Council will have to be reviewed by the [Belgica v. Ochoa, G.R. No. 208566 (2013)]
Provincial Board; and,
(3) Taxes will have to be shared with the B. DECENTRALIZATION V.
province. [Miranda v. Aguirre (1999)] DEVOLUTION
• N.B. Basco was decided prior to the LGC. Officers in control lay Supervising officials
Basco holds that the Constitution down the rules in the merely see to it that the
guarantees decentralization, but says performance or rules are followed, but
nothing which precludes devolution. The accomplishment of an they themselves do not
Court later recognized that “the act. If these rules are lay down such rules,
centerpiece of LGC is the system of not followed, they may, nor do they have the
decentralization[.] Indispensable thereto in their discretion, discretion to modify or
is devolution and the LGC expressly order the act undone or replace them. If the
provides that ‘[a]ny provision on a power redone by their rules are not observed,
of a local government unit shall be subordinates or even they may order the
liberally interpreted in its favor, and in decide to do it work done or redone,
case of doubt, any question thereon shall themselves. but only to conform to
be resolved in favor of devolution of such rules. They may
powers and of the lower local government not prescribe their own
unit.’” [Tano v. Socrates, G.R. No. 110249 manner of execution of
the act.
(1997), citing Sec. 5(a), LGC]
• Also, note that the Constitution provides • The Constitution confines the President's
for political autonomy (and not merely power over local governments to one of
administrative autonomy) for autonomous general supervision.
regions. [Cordillera Broad Coalition v.
COA, G.R. No. 79956 (1990)]
D. LOCAL FISCAL AUTONOMY
Under existing laws, LGUs enjoy not only (2) Recommendation of the Secretaries of (a)
administrative autonomy, but also local fiscal Finance, (b) Internal and Local Gov’t, and
autonomy. (c) Budget and Management; and
• This means that LGUs have the power to (3) Consultation with (a) heads of both houses
create their own sources of revenue in of Congress, and (b) presidents of the liga.
addition to their equitable share in the [Sec. 284, par. 2, LGC]
national taxes released by the national
government, as well as the power to
allocate their resources in accordance with Automatic Release: The share of each LGU
their own priorities. shall be released, without need of any further
action, directly to the respective treasurer on a
• It extends to the preparation of their quarterly basis within five (5) days after the
budgets, and local officials in turn have to end of each quarter, and which shall not be
work within the constraints thereof. They subject to any lien or holdback that may be
are not formulated at the national level imposed by the national government for
and imposed on local governments, whatever purpose. [Sec. 286(a), LGC]
whether they are relevant to local needs
and resources or not. [Pimentel v. Aguirre • Hence, sec. 4 of A.O. 372, withholding 10%
(2000)] of the LGUs' IRA "pending the assessment
and evaluation by the Development
Budget Coordinating Committee of the
D.1. SOURCES OF LGU FUNDS emerging fiscal situation" is invalid and
unconstitutional. The “temporary” nature
(1) Taxes, fees, and charges which accrue of the retention by the national
exclusively for their use and disposition government does not matter. Any
(2) Just share in national taxes which shall be retention is prohibited. [Pimentel v.
automatically and directly released to Aguirre (2000)]
them
• Since under Sec. 6, Art X of the
(3) Equitable share in the proceeds from Constitution, only the just share of local
utilization and development of national governments is qualified by the words “as
wealth and resources within their determined by law,” and not the release
territorial jurisdiction [Sec. 18, LGC] thereof, the plain implication is that
Congress is not authorized by the
Constitution to hinder or impede the
D.2. INTERNAL REVENUE ALLOTMENTS automatic release of the IRA. [ACORD v.
Local government units shall have a just share, Zamora, G.R. No. 144256 (2005)]
as determined by law, in the national taxes
which shall be automatically released to them.
[Sec. 6, Art. X, Constitution] E. CONSULTATIONS
General Rule: LGUs shall have a 40% share in No project or program shall be implemented
the national internal revenue taxes based on by government authorities unless the
the collection of the third fiscal year preceding consultations in Secs. 2(c) and 26 hereof are
the current fiscal year. [Sec. 284(c), LGC] complied with, and prior approval of the
sanggunian concerned is obtained [Sec. 27,
Exception: When the national government LGC]
incurs an unmanageable public sector deficit,
the President authorized to reduce the • All national agencies are required to
allotment to 30%. [Sec. 284, par. 2, LGC]. conduct periodic consultations with
appropriate LGUs, NGOs, people’s
Requisites for Exception:
organizations and other concerned
(1) Unmanageable public sector deficit; sectors of the community before any
project or program is implemented in
their respective jurisdictions. [Sec. 2(c),
LGC]
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UP LAW BOC LOCAL GOVERNMENTS POLITICAL LAW
government. The drift is towards social (2) The Substantive (involving inherent merit,
welfare legislation geared towards state like the conformity of the ordinance with
policies to provide adequate social services, the limitations under the Constitution and
the promotion of general welfare, and social the statutes, as well as with the
justice. [Binay v. Domingo, G.R. No. 92389 requirements of fairness and reason, and
(1991)] its consistency with public policy).
[Mosqueda v. Pilipino Banana Growers &
Exporters Association, Inc., G.R. No.
Two Branches of General Welfare Clause 189185 (2016)]
(1) General legislative power – Authorizes
municipal councils to enact ordinances
Illustrations –Police Power Applied
and make regulations not repugnant to
law and may be necessary to carry into (1) Prescribing zoning and classification of
effect and discharge the powers and merchandise sold in the public market;
duties conferred upon it by law
(2) Condemnation and demolition of
(2) Police power proper – Authorizes the buildings found to be in dangerous or
municipality to enact ordinances as may ruinous condition;
be proper and necessary for the health
(3) Regulation of operation of tricycles;
and safety, prosperity, morals, peace,
good order, comfort and convenience of (4) Zoning regulations [Patalinghug v. CA,
the municipality and its inhabitant, and for G.R. No. 104786 (1994)];
the protection of their property [Fernando
(5) Providing burial assistance to the poor
v. St. Scholastica’s College, G.R. No. [Binay v. Domingo, G.R. No. 92389 (1991)];
161107 (2013)]
(6) Enforcement of fishery laws within LGU
waters [Tano v. Socrates, G.R. No. 110249
Limitations (1997)]
(1) The General Welfare clause cannot be
used to justify an act not authorized by
Illustrations –Invalid Exercise of Police Power
law.
(1) Prohibition of operation of night clubs, as
(2) The exercise must pass the test of a valid it is a lawful trade or pursuit of occupation
ordinance [Rural Bank of Makati v.
[Dela Cruz v. Paras, G.R. No. L-42571-72
Municipality of Makati, G.R. No. 150763 (1983)];
(2004)].
(2) Rescinding of mayor's permits based on
• The principle that the general welfare arbitrary grounds [Greater Balanga Dev’t
clause authorizes the abatement of Corp. v. Mun. of Balanga, G.R. No. 83987
nuisances without judicial proceedings (1994)].
applies only to nuisances per se, or those
which affect the immediate safety of
persons and property. [Tayaban v. People, B. EMINENT DOMAIN
G.R. No. 150194 (2007)]
It is government's right to appropriate, in the
nature of a compulsory sale to the State,
Two-Pronged Test for an Ordinance to be private property for public use or purpose.
Considered a Valid Police Power Measure Inherently possessed by the national
legislature, the power of eminent domain may
(1) The Formal (whether the ordinance is
be validly delegated to local governments,
enacted within the corporate powers of
other public entities and public utilities.
the local government unit, and whether it
[Moday v. CA, G.R. No. 107916 (1993)]
is passed in accordance with the
procedure prescribed by law); and Requisites for the Exercise of Eminent Domain
by an LGU
(1) An ordinance [not a mere resolution] is the writ to issue. [City of Iloilo v. Legaspi, G.R.
enacted by the local legislative council No. 154614 (2004)]
authorizing the local Chief Executive to
exercise the power of eminent domain;
Returning the Property
(2) The power is exercised for public use,
purpose or welfare, or for the benefit of the When private land is expropriated for a
poor and the landless; particular public use and that purpose is
abandoned, there is no “implied contract” that
(3) There is payment of just compensation
the properties will be used only for the public
based on the fair market value of the
purpose for which they were acquired.
property at the time of taking; and
Property is to be returned only when it is
(4) A valid and definite offer was previously expropriated with the condition that when
made to the owner of the property, but the said purpose is ended or abandoned, the
offer was not accepted.[Heirs of Suguitan former owner reacquires the property so
v. City of Mandaluyong, G.R. No. 135087 expropriated, and not when the expropriation
(2000)] decree gives to the entity a fee simple which
makes the land the expropriator the absolute
owner of the property. [Air Transportation
Jurisdiction Office v. Gopuco, G.R. No. 158563 (2005)]
An expropriation suit falls under the
jurisdiction of the RTCs. The subject of an
Socialized Housing [R.A. No. 7279]
expropriation suit is the government’s exercise
of eminent domain, a matter that is incapable Under the Urban Development and Housing
of pecuniary estimation. [Barangay San Roque Act, expropriation by an LGU for purposes of
v. Heirs of Pastor, G.R. No. 138896 (2000)] urban land reform and housing shall occur
only as a last resort. It must be shown by the
LGU that other methods of acquisition
Just Compensation (community mortgage, land swapping, land
assembly or consolidation, land banking,
• The determination of “just compensation” donation to the Government, joint venture
in eminent domain cases is a judicial
agreements, and negotiated purchase) have
function. Hence, a statutory provision on a
been exhausted [Sec. 10].
fixed formula in the computation of just
compensation in cases of acquisition of If all the other methods have been exhausted
easements of right of way is not binding and expropriation to continue, the LGU shall
upon the Court. [National Power Corp. v. acquire lands for socialized housing in the
Ileto, G.R. No. 169957 (2012)] following order:
• Just compensation is determined as of the (1) Government lands
time of taking [Sec. 19, LGC] (2) Alienable lands of the public domain
(3) Unregistered or abandoned and idle lands
Requisites for the Immediate Entry by the LGU (4) Lands within Areas for Priority
(1) Filing of the complaint for expropriation Development
sufficient in form and substance; and (5) Unacquired BLISS sites
(2) Deposit of an amount equivalent to 15% of (6) Private lands [Sec. 9]
the fair market value of the property to be
expropriated based on the current tax Furthermore, lands of small-property owners
declaration [Sec. 19, LGC] are exempt from expropriation for purposes of
socialized housing. “Small-property owners”
Upon compliance with the requisites, the are defined by two elements:
issuance of a writ of possession becomes
ministerial. There is no need for a hearing for (1) They are owners of real property which
consists of residential lands with an area
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UP LAW BOC LOCAL GOVERNMENTS POLITICAL LAW
of not more than 300 sq. meters in highly Privileges Retained: Tax exemption privileges
urbanized cities, and 800 sq. meters in of the following were not withdrawn by the
other urban cities; and LGC:
(2) They do not own real property other than (1) Local water districts;
the same. [Sec. 3(q)]
(2) Cooperatives duly registered under R.A.
No. 6938; and
C. TAXING POWER (3) Non-stock and non-profit hospitals and
educational institutions [Sec. 193, LGC;
Each local government unit shall have the power
Sec. 234, LGC]
to create its own sources of revenues and to levy
taxes, fees, and charges subject to limitations as
Congress may provide, consistent with the basic
policy of local autonomy. Such taxes, fees, and C.3. REAL PROPERTY TAXATION
charges shall accrue exclusively to the local Annual ad valorem tax on real property may
governments. [Sec. 5, Art. X, Constitution]
be levied by a:
(1) Province; or
C.1. FUNDAMENTAL PRINCIPLES ON (2) City; or
TAXATION BY AN LGU
(3) Municipality within Metropolitan Manila
(1) Taxation shall be uniform; Area [Sec. 232, LGC]
(2) Taxes, fees, and charges:
(a) Shall be equitable and based as Exemptions from Real Property Tax
far as practicable on the
taxpayer's ability to pay; The following are exempted from payment of
the real property tax:
(b) Shall be levied and collected only
for a public purpose; (a) Real property owned by the Republic of
the Philippines or any of its political
(c) Shall not be unjust, excessive, subdivisions
oppressive, or confiscatory; and
EXCEPT when the beneficial use thereof
(d) Shall not be contrary to law, public has been granted, for consideration or
policy, national economic policy, or in otherwise, to a taxable person;
restraint of trade;
(b) Charitable institutions, churches,
(3) Collection shall in no case be left to any parsonages or convents appurtenant
private person; thereto, mosques, nonprofit or religious
(4) Revenue shall inure solely to the benefit of cemeteries and all lands, buildings, and
the levying LGU, unless otherwise improvements actually, directly, and
specified; and exclusively used for religious, charitable or
educational purposes;
(5) Each LGU shall, as far as practicable,
evolve a progressive system of taxation (c) All machineries and equipment that are
[Sec. 130, LGC] actually, directly and exclusively used by
local water districts and government-
owned or –controlled corporations
C.2. WITHDRAWAL OF LOCAL TAX engaged in the supply and distribution of
EXEMPTION PRIVILEGES water and/or generation and transmission
of electric power;
Unless otherwise provided in the LGC, tax
exemptions or incentives granted to, or (d) All real property owned by duly registered
enjoyed by all persons, whether natural or cooperatives as provided for under R.A.
juridical, including government-owned or - No. 6938; and
controlled corporations were withdrawn upon
the effectivity of the LGC. [Sec. 193, LGC]
PAGE 232 OF 406
UP LAW BOC LOCAL GOVERNMENTS POLITICAL LAW
purposes. [Chamber of Real Estate and (2) When necessary, an adequate substitute
Builders Association, Inc. v. Secretary of for the public facility that is subject to
Agrarian Reform, G.R. No. 183409 closure should be provided;
(2010)]
(3) Such ordinance must have provisions for
the maintenance of public safety therein;
and
E. CLOSURE AND OPENING OF ROADS
(4) If a freedom park is permanently closed,
Scope of LGU’s power to close [Sec. 21, LGC] there must be a provision for its transfer or
Road, alley, park or square is relocation to a new site. [Sec. 21(a),(b)]
National Local • Such property permanently withdrawn
from public use may be used or conveyed
Temporary closure (1) Temporary; or
for any purpose for which other real
only.
(2) Permanent property belonging to the LGU may be
closure. lawfully used or conveyed. [Sec. 21(b)]
Requisites for Temporary Closure Public Roads are Outside the Commerce of
Man
(1) Via ordinance;
A public road may not be the subject of lease
(2) May be done due to:
or contract, as public roads are properties for
a) Actual emergency; public use outside the commerce of
man.[Dacanay v. Asistio, G.R. No. 93654
b) Fiesta celebrations;
(1992)]
c) Public rallies;
• As long as a property owner has
d) Agricultural or industrial fairs; or reasonable access to the general system
e) Undertaking of public works and of streets, he has no right to compensation
highways, telecommunications, and for the closure of a public street. The
waterworks projects; Constitution does not undertake to
guarantee to a property owner the public
(3) Duration of closure must be specified by maintenance of the most convenient route
the by the local chief executive in a written to his door. [Cabrera v. CA, G.R. No. 78573
order; and (1991)]
(4) If for the purpose of athletic, cultural, or
civil activities, these must be officially
sponsored, recognized, or approved by the F. LEGISLATIVE POWER
local government. [Sec. 21, LGC] F.1. WHO MAY EXERCISE
• Note: A City, Municipality, or Barangay Local legislative power shall be exercised by
may also temporarily close and regulate the:
the use of any local street, road,
thoroughfare or any other public place (1) Sangguniang panlalawigan for the
where shopping malls, Sunday, flea or province;
night markets, or shopping areas may be (2) Sangguniang panlungsod for the city;
established for the general public. [Sec.
21(d)] (3) Sangguniang bayan for the municipality;
and
(4) Sangguniang barangay for the barangay
Requisites for Permanent Closure [Sec. 48, LGC]
(1) Via ordinance approved by at least 2/3 of
all members of the Sanggunian;
F.2. ORDINANCE V. RESOLUTION
[Garcia v. COMELEC, G.R. No. 111230 (1994)] such case.[Gamboa v. Aguirre, G.R. No.
Ordinance Resolution 134213 (1999)]
Mere declaration of
Considered as law the opinion of the F.4. INTERNAL RULES OF PROCEDURE
lawmaking body
On the first regular session following the
On matters applying to election of its members and within 90 days
persons or things in On a specific matter
general
thereafter, the sanggunian shall adopt or
update its existing rules of procedure. [Sec.
Intended to 50, LGC]
permanently direct and Temporary in nature
control • On the first regular session the
sanggunian concerned shall adopt or
A third reading is not
update its existing rules of procedure.
necessary unless
A third reading is decided otherwise by LGC, sec. 50 does not mandate that no
necessary a majority of all the other business may be transacted on the
sanggunian first regular session. [Malonzo v.
members Zamora, G.R. No. 137718 (1999)]
• The rules of procedure shall provide
for:
F.3. PRESIDING OFFICER
Legislative Body Presiding Officer (1) Organization of the Sanggunian and
the election of its officers
Sangguniang
Vice-Governor (2) Creation of Standing Committees
Panlalawigan
Sangguniang (3) Order and calendar of business for
Vice-Mayor each session
Panlungsod
Sangguniang Bayan Vice-Mayor (4) The legislative process [c.f. special
procedures under Secs. 186-188, 511
Sangguniang
Barangay
Punong Barangay for tax ordinances and ordinances
with penal sanctions]
• The presiding officer shall vote only to
(5) Parliamentary procedures
break a tie.
(6) Disciplinary rules for members for
• A temporary presiding officer shall be disorderly behavior and absences
elected from and by the members present without justifiable cause for 4
and constituting a quorum, in the event of consecutive sessions
the inability of the regular presiding officer
to preside at a session. The temporary • The penalties which the sanggunian may
presiding officer shall certify within 10 impose are: (1) censure, (2) reprimand, (3)
days from the passage of ordinances exclusion from the session, (4) suspension
enacted and resolutions adopted by the for not more than 60 days, and (5)
sanggunian in the session over which he expulsion.
temporarily presided. [Sec. 49, LGC]
o The penalty of suspension or
• Non-membership of Acting Governor: A expulsion requires the
Vice-Governor who is concurrently an concurrence of at least 2/3 of all
Acting Governor is actually a quasi- the sanggunian members.
Governor. He is deemed a non-member of o A member convicted by final
the sanggunian for the time being and so judgment to imprisonment of at
cannot preside over its sessions. The least 1 year for a crime involving
procedure for the election of a temporary moral turpitude shall be
presiding officer in case of inability of the automatically expelled from the
regular presiding officer shall apply in sanggunian. [Sec. 50, LGC]
Local legislative bodies do not have the power N.B. No veto for barangays: The veto
to subpoena witnesses and the power to power cannot be exercised by the punong
punish non-members for contempt in the barangay (since he is a member of the
exercise of their legislative powers. They may sangguniang barangay).
only invite resource persons who are willing to • Item veto: The local chief executive, except
supply information which may be relevant to the punong barangay, shall have the
the proposed ordinance. [Negros Oriental II power to veto any particular item or items
Electric Cooperative, Inc. v. Sangguniang of an:
Panlungsod of Dumaguete, G.R. No. L-72492
(1987)] (1) appropriations ordinance;
(2) ordinance or resolution adopting the
local development plan or public
F.9. APPROVAL AND VETO OF investment program; and
ORDINANCES
(3) ordinance directing the payment of
i. Approval: Local chief executive shall affix his money or creating liability
signature on each and every page of the
ordinance. [Sec. 54, LGC] • In case of an item veto, the veto shall not
affect the items not objected to. If the veto
• The signature of the local chief executive is not overridden, the items in the
in the approval of an ordinance or appropriations ordinance of the previous
resolution is not a mere ministerial act, as year corresponding to those vetoed shall
it requires the exercise of analysis and be deemed re-enacted.
judgment. This is part of the legislative
process.[De Los Reyes v. Sandiganbayan,
G.R. No. 121215 (1997)] F.10. PUBLICATION AND EFFECTIVITY OF
ii. Disapproval (Veto): The local chief executive ORDINANCES
shall veto the ordinance, stating his reasons in The following rules apply to (1) ordinances and
writing. [Sec. 55, LGC] (2) resolutions approving the local
• Grounds: Under the LGC, only two government plan and public investment
grounds: programs.
Highly Urbanized and Independent Component Within 10 days after 10 days after
Cities their approval, certified publication or
[Sec. 59(d), LGC] true copies shall be posting, unless
In addition to posting, 10 days after published in full for 3 otherwise stated in
main features of the completion of posting consecutive days (a) in the ordinance
ordinance shall be and publication a newspaper of local
published once (a) in a requirements, unless circulation, or, (b) if
local newspaper of otherwise stated in none, the same may be
posted in at least 2
general circulation; or if the ordinance
none, (b) in any conspicuous and
newspaper of general publicly accessible
circulation places
or modify one
already existing.
VI. Corporate Powers
No role [except Legislative. A (a) Every local government unit, as a
for unfavorable referendum corporation, shall have the following
action on the consists powers:
petition merely of the
submitted to it]. electorate (1) To have continuous succession in its
Initiative is a approving or corporate name;
process of law- rejecting
(2) To sue and be sued;
making by the what has
Role of
people been drawn (3) To have and use a corporate seal;
Legislature
themselves up or enacted
(4) To acquire and convey real or personal
without the by a
participation legislative property;
and against the body. [SBMA (5) To enter into contracts; and
wishes of their v. COMELEC,
elected G.R. No. (6) To exercise such other powers as are
representatives. 125416 granted to corporations, subject to the
(1996)] limitations provided in this Code and
other laws.
(b) Local government units may continue
using, modify, or change their existing
corporate seals: Provided, That newly
established local government units or
those without corporate seals may create
their own corporate seals which shall be
registered with the Department of the
Interior and Local Government: Provided,
further, that any change of corporate seal
shall also be registered as provided
hereon.
(c) Unless otherwise provided in this Code, no
contract may be entered into by the local
chief executive in behalf of the local
government unit without prior
authorization by the sanggunian
concerned. A legible copy of such contract
shall be posted at a conspicuous place in
the provincial capitol or the city, municipal
or barangay hall.
(d) Local government units shall enjoy full
autonomy in the exercise of their
proprietary functions and in the limitations
provided in this Code and other applicable
laws. [Sec. 22, LGC]
Illustrations
The responsibility treated of in this article shall
cease when the persons herein mentioned prove
that they observed all the diligence of a good A. IN CONTRACTS
father of a family to prevent damage. [Art. 2180,
Civil Code] General Rule: The LGU is liable only for
contracts that are intra vires.
Exception: The Doctrine of Implied Municipal
Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries
Liability provides that an LGU may become
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obligated upon an implied contract to pay For liability to arise under Art. 2189 of the Civil
reasonable value of the benefits accepted by it Code, ownership of the roads, streets, bridges,
as to which it has the general power to public buildings and other public works, is not
contract. [Province of Cebu v. IAC, G.R. No. a controlling factor, it being sufficient that a
72841 (1987), on the hiring of a private counsel province, city or municipality has control or
by the governor which was not repudiated by supervision thereof. [Municipality of San Juan
the provincial board] v. CA, G.R. No. 121920 (2005)]
Exception to the Exception: The LGU may not
be estopped in order to validate a contract
which the LGU is not authorized to make even C. PERSONAL LIABILITY OF THE PUBLIC
if it has accepted the benefits thereunder [San OFFICIAL
Diego v. Municipality of Naujan, G.R. No. L- The public official is personally liable for
9920 (1960), on the lease of municipal waters damages
without a public bidding]
(1) In contracts and torts, if he acts (i)
beyond the scope of his powers; or (ii)
B. IN TORTS with bad faith [see Rivera v. Maclang,
G.R. No. L-15948 (1963)]; and
Under jurisprudence, liability of the LGU
would depend on the nature of the act. (2) For his refusal or neglect, without
justifiable cause, to perform his official
• If in the performance of a governmental duty. [Art. 27, Civil Code]
function, the LGU is not liable. [Palafox v.
Province of Ilocos Norte, G.R. No. L-10659
(1958), on an accident during the • While a municipality cannot be bound by a
construction of a provincial road.] contract which is void for being ultra vires,
• If in the performance of a proprietary “case law states that the [officers] who
function, the LGU is liable. Hence, the LGU authorized the same can be held
is liable for: personally accountable for acts claimed to
have been performed in connection with
o The improper grant of a ferry service official duties where they have acted ultra
franchise [Mendoza v. de Leon (1916)]; vires.” [See Land Bank v. Cacayuran, G.R.
o Deaths caused by a collapsed stage in No. 191667 (2013)]
a town fiesta [Torio v. Fontanilla
(1978)]
VIII. Settlement of
B. FORMAL TRIAL
Boundary Disputes
Trial by Sanggunian: In the event the
A. AMICABLE SETTLEMENT Sanggunian fails to effect an amicable
settlement within 60 days from referral of the
Boundary disputes between and among local
dispute,
government units shall, as much as possible,
be settled amicably. [Sec. 118 (a)-(d), LGC] (a) It shall issue a certification to that effect;
and
Boundary Where Amicably (b) The dispute shall be formally tried by the
dispute settled by Sanggunian concerned, which shall
between decide the issue within 60 days from the
date of the certification referred to
2 or more Same city Sangguniang above. [Sec. 118(e), LGC]
barangays or Panlungsod
municipa- or
lity Sangguniang Trial by RTC: When the dispute between two
Bayan LGUs do not fall under those enumerated in
2 or more Same Sangguniang LGC, sec. 118, the RTC shall exercise original
municipalities province Panlalawigan jurisdiction over the settlement of a boundary
dispute between a municipality and an
Municipalities Different Jointly independent component city. [Municipality of
or component provinces referred to Kananga v. Madrona, G.R. No. 141375 (2003),
cities sanggunians applying Sec. 19(6), B.P. Blg. 129 or the RTC’s
of the general original jurisdiction]
provinces
concerned
Component N/A Jointly C. APPEAL
city or referred to Appeal of the Sanggunian Decision
Municipality respective
v. Highly sanggunians • When: Within the time and manner
urbanized city of the parties prescribed by the Rules of Court
Between 2 or • Where: Proper Regional Trial Court having
more highly jurisdiction over the area in dispute. [Sec.
urbanized 119, LGC]
cities
Subsequent
vacancies filled
according to their
rank.
A.2. PERMANENT VACANCIES IN THE SANGGUNIAN [FARIÑAS V. BARBA, G.R. NO. 116763 (1996);
SEC. 45, LGC]
If prior member not a
Appointing If prior member was
Position member of any political
Authority member of a political party
party
Recommendation of the
Sangguniang
Nomination and Sangguniang
Panlalawigan
Certification of the political Panlalawigan
President through
Sangguniang party of the member who
the Executive
Panlungsod (of highly caused the vacancy issued
Secretary Recommendation of the
urbanized and by the highest official of the
Sangguniang Panlungsod
independent political party
component cities)
Sangguniang Nomination and Recommendation of
Panlungsod (of Certification of the political Sangguniang
component cities) party of the member who Panglungsod
Governor
caused the vacancyissued by
Recommendation of
Sangguniang Bayan the highest official of the
Sangguniang Bayan
political party
N/A
(There is no right given to a
political party to nominate
the person to fill the vacancy
in the Sangguniang
Recommendation of
Sangguniang Barangay City or Municipal Barangay because the
Sangguniang Barangay
Mayor members of the
Sangguniang Barangay are
not allowed to have party
affiliations. [Fariñas v. Barba
(1996)])
• If the sanggunian member who caused the in the election. [Navarro v. CA, G.R.
vacancy is a member of a political party, No. 141307 (2001)]
the appointee must come from the same o There must be a nomination and
political party as that of the sanggunian certificate of membership from the
member who caused the vacancy. [Sec. highest official of the political party
45(b), LGC] concerned.
o Rationale: To maintain party o An appointment without such
representation as willed by the people nomination and certification is null
and void ab initio and is a ground for
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ii. Ombudsman Jurisdiction VII, Book II of the RPC (Bribery) and other
offenses or felonies in relation to public office
Primary Acts or omissions of a where one or more of the accused are officials
Jurisdiction public officer or occupying positions corresponding to salary
employee in cases grade 27 or higher
[R.A. No. 6770,
cognizable by
sec. 15] • Where none of the accused are occupying
the Sandiganbayan (i.e.
salary grade of 27 or positions corresponding to salary grade 27
higher) or higher, exclusive original jurisdiction
shall be vested in the proper RTC or first
Concurrent Cases cognizable by level court as the case may be. The
Jurisdiction regular courts and other Sandiganbayan in such case shall exercise
investigative agencies of exclusive appellate jurisdiction over final
[Sec. 61, LGC] judgments or orders of RTCs in the
the government
exercise of their original or appellate
• In administrative cases involving the jurisdiction. [Sec. 4, PD 1606 as amended]
concurrent jurisdiction of two or more
disciplining authorities, the body in which
the complaint is filed first, and which opts A.3. GROUNDS FOR DISCIPLINARY ACTION
to take cognizance of the case, acquires
i. Under the LGC
jurisdiction to the exclusion of other
tribunals exercising concurrent Suspension
jurisdiction. [Office of the Ombudsman vs Elective local official of
imposed by
Rodriguez, G.R. No. 172700 (2010)]
Province, highly urbanized
city, or independent President
Who is salary grade 27 and above? [Sec. 443- component city
486, LGC]
Component city, or
Municipalitie Munipical Mayor Governor
municipality
s
Barangay The Mayor
City Mayor; Vice-Mayor; and
Cities (for highly-urbanized cities)
Sanggunian Panglungsod When Imposed: Any time (1) the issues are
members joined, (2) when the evidence of the guilt is
strong and (3) given the gravity of the offense,
Governor; Vice-Governor; and there is great probability that the continuance
Provinces Sanggunian Panlalawigan in office of the respondent could influence the
members. witnesses or threaten the safety/integrity of
the records or evidence. [Sec. 63(b), LGC]
• The powers of the Ombudsman are not
merely recommendatory. Under RA 6770
and the 1987 Constitution, the Not in the nature of a penalty
Ombudsman has the constitutional power
to directly remove from government A preventive suspension is merely a
service an erring public official other than preliminary step in an administrative
members of Congress and the Judiciary. investigation, and can be decreed on an
[COA, Regional Office No. 13 v. Hinampas, official under investigation after the charges
G.R. No. 158672 (2007)] are brought and even before the charges are
heard. [Castillo-Co v. Barbers, G.R. No.
129952 (1998)]
iii. Sandigandbayan Jurisdiction
Exclusive original jurisdiction over violations of
RA 3019, RA 1379 and Chapter II, Sec. 2, Title
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• The term “office” in Sec. 13, RA 3019 • But if the official concerned is an
applies to any office which the officer appointive official, the OP may remove
might currently be holding and not him. [Pablico v. Villapando, G.R. No.
necessarily the particular office in relation 147870 (2002)]
to which he is charged. [Segovia v.
Sandiganbayan (1998)]
ii. Removal
An elective local official may be removed from
office by order of the proper court. [Sec. 60,
LGC]
• The penalty of removal from office as a
result of administrative investigation shall
be considered a bar to the candidacy of the
respondent for any elective position. [Sec.
66(c), LGC]
• A suspension for multiple offenses does
not amount to a removal if each
suspension corresponding to each offense
does not exceed 6 months. [Salalima v.
Guingona, G.R. No. 117589 (1996)]
Rule: A public official cannot be removed for (a) If less than 30 days, unappealable
administrative misconduct committed during
(b) If 30 days or more, appealable to the
a prior term, since his re-election to office
CSC
operates as a condonation of the officer's
previous misconduct to the extent of cutting (4) Fine not exceeding 6 months’ pay
off the right to remove him therefor.
(5) Reprimand; and
[Aguinaldo v. Santos, G.R. No. 94115 (1992)]
(6) Otherwise discipline subordinate official
• Not applicable where: and employees under his jurisdiction.
(1) There is already a final determination [Sec. 87, LGC]
of guilt. Subsequent re-election cannot
be deemed a condonation if there was
already a final determination of his D.2. PREVENTIVE SUSPENSION OF
guilt before the re-election. [Reyes v. APPOINTIVE OFFICIALS
COMELEC, G.R. No. 120905 (1996)] May be imposed by the local chief executive for
(2) Criminal cases. The doctrine finds no a period not exceeding 60 days if
application to criminal cases, as these (1) The charge against the official involves
are violations against the state itself. dishonesty, oppression or grave
[Aguinaldo v. Santos (1992)] misconduct or neglect in the performance
of duty; OR
Overturned. This doctrine has been overturned (2) If there is reason to believe that the
in Carpio-Morales v. CA, where the Court held respondent is guilty of charges which
that election is not a mode of condoning an would warrant his removal from service.
adminsitrative offense. The Court found that [Sec. 85, LGC]
the basis for condonation under case law
relied on was never accounted for. The
doctrine cannot be sanctioned under our E. RECALL
present Constitution, which upholds the E.1. REQUISITES
concept that a public office is a public trust
and the corollary requirement of Ground for Loss of confidence
accountability to the people at all times. recall:
[Carpio-Morales v. CA, G.R. No. 217126 (2015)] Right given to: Registered voters of an
LGU to which the local
elective official subject
D. DISCIPLINE OF APPOINTIVE to recall belongs
OFFICIALS
The power to discipline is specifically granted
by the Administrative Code to heads of
departments, agencies, and instrumentalities,
provinces, and cities. The appointing authority
is generally the disciplinary authority.
(a) Provide the official subject of election period which is normally at least
recall with a copy of the petition; 45 days immediately preceding the day of
the election. [Claudio v. COMELEC, G.R.
(b) Cause the publication of the
No. 140560 (2000)]
petition for 3 weeks in a national
newspaper and a local newspaper
of general circulation; and
(c) Cause its posting for 10 to 20 days
at conspicuous places
(4) Verification and authentication of
signatures. COMELEC verifies and
authenticates the signatures;
(5) Filing of candidacies. COMELEC
announces the acceptance of candidates
for the recall election, the official subject
of the recall being automatically included
in the list.
(6) Setting of election. COMELEC shall set the
election within 30 days upon completion
of the above procedure in barangays,
cities, and municipalities; or within 45
days in provinces.
E.3. LIMITATIONS
(1) Any local elective official may be the
subject of recall election only once during
his term of office for loss of confidence.
(2) No recall election shall take place within 1
year from the assumption of office of the
official concerned, nor within 1 year
immediately preceding the date of a
regular election. [Sec. 74(b), LGC]
• The phrase “regular local election” refers
to an election where the office held by the
local elective official sought to be recalled
will be contested and be filled by the
electorate. [Paras v. COMELEC, G.R. No.
123169 (1996)]
• The word “recall” as used in Sec. 74(b)
refers to the election day itself by means of
which voters decide whether they should
retain their local official or elect his
replacement. Hence, recall proceedings
may be initiated within 1 year from the
official’s assumption of office as long as
the recall election is outside such period.
• The phrase “immediately preceding a
regular local election” in Sec. 74(b) refers
to the day of regular election not the
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“at least an effective break from holding For, he had become in the interim [i.e.
office.” [Aldovino, Jr. v. COMELEC, G.R. No. from the end of the 3rd term up to the recall
184836 (2009)] election] a private citizen. [Adormeo v.
COMELEC, G.R. No. 147927 (2002);
Socrates v. COMELEC, G.R. No. 154512
2 Conditions for the Application of the (2002)]
Disqualification
(1) Elected for three consecutive times for the
(3) Conversion: The abolition of an elective
same position; and
local office due to the conversion of a
(2) Fully served three consecutive terms municipality to a city does not, by itself,
[Borja v. COMELEC (1998)] work to interrupt the incumbent official’s
continuity of service [Latasa v. COMELEC,
G.R. No. 154829 (2003)]
Prevailing doctrines on issues affecting
consecutiveness of terms and/or involuntary
interruption (4) Preventive Suspension: Preventive
suspension is not a term-interrupting
[Abundo, Sr. v. COMELEC, G.R. No. 201716
event as the elective officer’s continued
(2013)]
stay and entitlement to the office remain
unaffected during the period of
(1) Assumption of Office by Operation of Law: suspension, although he is barred from
When a permanent vacancy occurs in an exercising the functions of his office
elective position pursuant to the rules of [Aldovino, Jr. v. COMELEC (2009)]
succession under the LGC, supra:
(5) Losing in an Election Protest:
(a) For the office assumed: The (a) When a candidate is proclaimed a
successor’s service for the unexpired winner for an elective office and
portion of the term of the replaced assumes office, his term is interrupted
official is not treated as one full term when he loses in an election protest
and is not counted in the application and is ousted from office, thus
of any term limit. [Borja v. COMELEC disenabling him from serving what
(1998)] would otherwise be the unexpired
portion of his term of office had the
protest been dismissed [Lonzanida v.
(b) For the office held before succession: COMELEC, G.R. No. 135150 (1999) and
The successor’s assumption by Dizon v. COMELEC, G.R. No. 182088
operation of law to the higher office (2009)]
(e.g. vice-mayor) is considered an
involuntary severance or interruption
of the office he previously held (e.g. (b) However, when an official loses in an
councilor). [i.e. it is not counted in the election protest and said decision
application of any term limit.] becomes final after said official had
[Montebon v. COMELEC, G.R. No. served the full term for said office,
180444 (2008)] then his loss in the election contest
does not constitute an interruption
since he managed to serve the term
(2) Recall Elections: An elective official, who from start to finish. His full service
has served for three consecutive terms and should be counted in the application
who did not seek the elective position for of the term limits [Ong v. Alegre, G.R.
what could be his fourth term, but later No. 163295 (2006) and Rivera III v.
won in a recall election, had an COMELEC, G.R. No. 167591 (2007)]
interruption in the continuity of his service.
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POLITICAL LAW
LAW ON
PUBLIC OFFICERS
“Public officer” has also been defined by iii. Under the Admin. Code of 1987
statutes. Note that the statutory definitions
(14) “Officer” as distinguished from “clerk”
below are not all-encompassing, and apply
or “employee”, refers to a person whose
primarily with respect to the respective
duties, not being of a clerical or manual
statutes themselves (e.g. the definition of
nature, involves the exercise of discretion in
“public officers” in the Revised Penal Code is
the performance of the functions of the
most relevant with regard to the provisions of
government. When used with reference to a
the Revised Penal Code).
person having authority to do a particular
i. Under R.A. No. 3019 act or perform a particular function in the
exercise of governmental power, “officer”
(b) "Public officer" includes elective and
includes any government employee, agent
appointive officials and employees,
or body having authority to do the act or
permanent or temporary, whether in the
exercise that function.
classified or unclassified or exempt service
(15) “Employee” when used with reference
receiving compensation, even nominal,
to a person in the public service, includes
from the government as defined in the
any person in the service of the government
preceding subparagraph. [Sec. 2(b), R.A.
or any of its agencies, divisions, subdivisions
No. 3019 (Anti-Graft and Corrupt Practices
or instrumentalities.[Sec. 2, Introductory
Act]
Provisions, Admin. Code]
• "Government" includes “the national D.2. WHO ARE NOT PUBLIC OFFICERS
government, the local governments,
the government-owned and Generally,persons holding offices or
government-controlled corporations, employment which are not public offices, i.e.
and all other instrumentalities or those missing one of the essential elements,
agencies of the Republic of the supra.
Philippines and their branches.” [Sec. Examples: The following are not public
2(a), R.A. No. 3019] officers:
ii. Under the Revised Penal Code (1) A concession forest guard, even when
appointed by a government agency, if
Who are public officers. - For the purpose of such appointment was in compliance
applying the provisions of this and the with a requirement imposed by an
preceding titles of this book, any person administrative regulation on the lumber
who, by direct provision of the law, popular company who was also mandated to pay
election or appointment by competent the guard’s salaries. [Martha Lumber Mill
authority, shall take part in the v. Lagradante, G.R. No. 7599 (1956)]
performance of public functions in the Rationale: There was no public office in
Government of the Philippine Islands, of this case. The Court further noted that
shall perform in said Government or in any the appointment by the government was
of its branches public duties as an only done to ensure the faithful
employee, agent or subordinate official, of performance of the guard’s duties. [Id.]
any rank or class, shall be deemed to be a (2) A company cashier of a private
public officer. [Art. 203, Revised Penal Code] corporation owned by the government.
• The definition includes temporary [See Tanchoco v. GSIS (1962)]
employees for as long as they perform Rationale: Even if the Manila Railroad
public functions. Hence, a laborer Company was owned by the Government,
temporarily in charge of issuing its funds were private funds because the
summons and subpoenas for traffic Court found that it was not imbued with
violations in a judge's sala may be governmental powers. [Id.]
convicted for bribery under the Revised
Penal Code. [Maniegov. People, G.R. No.
L-2971, Apr. 20, 1951]
example, the recommendation by the commissions, or boards.” [Sec. 16, Art. VII,
Governor is a condition sine qua non for the Constitution]
validity of the appointment. [See San Juan v. • Congress cannot vest such power in
CSC, G.R. No. 92299 (1991)] officials not mentioned in the above
Courts will act with restraint: Generally, as provision, such as heads of bureaus. [DE
regards the power of appointment, courts will LEON]
act with restraint. Hence, mandamus will not • The power of local chief executives to
lie to require the appointment of a particular appoint local government employees
applicant or nominee. under the Local Government Code is
separately sanctioned in the power of
Exceptions: Congress to “provide for the
(1) When there is grave abuse of discretion, qualifications, election, appointment
prohibition or mandamus will lie. [See and removal, term, salaries, powers and
Aytona v. Castillo, G.R. No. 19313 (1962), functions and duties of local officials,
on the midnight appointments of and all other matters relating to the
President Garcia.] organization and operation of the local
(2) Where the palpable excess of authority units.” [Sec. 3, Art. X, Constitution]
or abuse of discretion in refusing to
issue promotional appointment would Must be unhindered by Congress: The
lead to manifest injustice, mandamus President’s power to appoint under the
will lie to compel the appointing Constitution should necessarily have a
authority to issue said appointments. reasonable measure of freedom, latitude, or
[Pineda v. Claudio, G.R. No. 29661 discretion in choosing appointees. [Cuyegkeng
(1967)] v. Cruz, G.R. No. 16263 (1960)]
A.2. APPOINTMENT IS GENERALLY AN “Congress cannot either appoint the
EXECUTIVE FUNCTION. Commissioner of the Service, or impose upon
the President the duty to appoint any
General Rule: “Appointment to office is particular person to said office. The
intrinsically an executive act involving the appointing power is the exclusive prerogative
exercise of discretion.” [Concepcion v. Paredes, of the President, upon which no limitations
G.R. 17539 (1921)] may be imposed by Congress, except those
Exceptions: resulting [1] from the need of securing the
(1) Congress may appoint its own officials concurrence of the Commission on
and staff. [See Spinger v. Government Appointments and [2] from the exercise of the
(1928)] limited legislative power to prescribe the
(2) When the Constitution vests the powers in qualifications to a given appointive office.”
another branch of the State (i.e. Judiciary, [Manalang v. Quitoriano, G.R. No. 6898 (1954)]
Sec. 5(6), Art. VIII) or an independent office Legislative appointments: Legislative
(e.g. Constitutional Commissions, Sec. 4, appointments are repugnant to the
Art. IX-A; Ombudsman, Sec. 6, Art. XI; Constitution. [Pineda v. Claudio, G.R. No.
Commission on Human Rights, Sec. 18(10), 29661 (1967)]
Art. XIII). • Effectively legislative appointments
N.B. Mechem believes that when also prohibited: “When Congress
appointment is exercised by Congress, the clothes the President with the power to
courts, and similar non-executive bodies, the appoint an officer, it (Congress) cannot
exercise is still an executive function. at the same time limit the choice of the
President to only one candidate. […]
The power to appoint may be granted by law when the qualifications prescribed by
to officials exercising executive functions. This Congress can only be met by one
is expressly sanctioned by the provision which individual, such enactment effectively
holds that “Congress may, by law, vest the eliminates the discretion of the
appointment of other officers lower in rank […] appointing power to choose and
in the heads of departments, agencies, constitutes an irregular restriction on
the power of appointment.” [Flores v.
PAGE 270 OF 406
UP LAW BOC PUBLIC OFFICERS POLITICAL LAW
Drilon (1993)] In this case, the law President] as the chairman and chief
assailed provided that “for the first year executive officer of the Subic Authority.”
of its operations from the effectivity of • N.B. This is not to be confused with
this Act, the mayor of the City of the power of Congress to appoint its
Olongapo shall be appointed [by the own staff and officials, supra.
Designation Appointment
Definition Imposition of additional duties upon existing Appointing authority selects an individual
office. who will occupy a certain public office.
Extent of Limited Comprehensive
Powers
Security of No. The designation may be revoked at will. Yes
Tenure [Binamira v. Garucho, G.R. No. 92008
(1990)]
Abandonment No. While assuming the designated Yes.A public officer who later accepts even a
of “Prior” functions or if the designation is revoked, the temporary appointment terminates his
Office public officer may perform the functions of relationship with his former office.
the “prior” office. [Romualdez III v. CSC (1991)]
B. CLASSIFICATION OF APPOINTMENTS
B.1. PERMANENT AND TEMPORARY
Permanent Temporary
Includes (if (1) Regular appointments (i.e. while Acting appointments.
appointment Congress is in session); and
is by the (2) Ad interim appointments.
President)
Eligibility Permanent appointees must be (1) eligible Generally, required.
Requirements and (2) qualified. However, “in the absence of appropriate
eligibles, [a person otherwise ineligible] may
“A permanent appointment can issue only to be appointed to it merely in a temporary
a person who possesses all the requirements capacity.” [CSC v. Darangina (2007)]
for the position to which he is being
appointed, including the appropriate
eligibility.” [CSC v. Darangina, G.R. No.
167472 (2007)]
Subject to Yes, if confirmation by the CA is required for No, even when confirmation by the CA is
confirmation the office. required for the office. (e.g. Acting
by the Secretaries of Executive Departments)
Commission
on
Appointments
Constitutional “No officer or employee of the civil service “Temporary employees of the Government
protection shall be removed or suspended except for shall be given such protection as may be
cause provided by law.” [Sec. 2(3), Art. IX-B] provided by law.” [Sec. 2(6), Art. IX-B]
Security of Yes. No. [Sevilla v. CA, G.R. No. 88498 (1992)]
Tenure
PAGE 271 OF 406
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Permanent Temporary
(1) Specifically enumerated under Sec. 16, Art. (3) Officers whom the President may be
VII of the Constitution, i.e.: authorized by law to appoint;
(a) Heads of the executive departments; (4) Officers lower in rank whose
(b) Ambassadors; appointments the Congress may by law
(c) Other public ministers and consuls; vest in the President alone.
(d) Officers of the armed forces from the
N.B. InCLU v. Executive Secretary, the Court
rank of colonel or naval captain;
noted that the inclusion of the word “alone”
(e) Other officers whose appointments
wasinadvertent
are vested in him by the Constitution
(2) All other officers of the Government whose
appointments are not otherwise provided
for by law;
i. Appointments Requiring and Not Requiring Consent of the Commission on Appointments
(“Confirmation”)
Generally, officers whose appointments are • The President does not have the
vested in him by the Constitution require prerogative to voluntarily submit an
confirmation by the Commission on appointment for confirmation by the CA.
Appointments (CA) (e.g. chairmen and [Bautista v. Salonga, G.R. No. 86439
members of the Constitutional Commissions, (1989)]
regular members of the Judicial and Bar ii. Regular and Ad Interim [Matibag v.
Council). Benipayo, G.R. No. 149036 (2002)]
• As a general exception, appointments
The President shall have the power to make
subject to nomination by the Judicial and
appointments during the recess of the
Bar Council (i.e. members of the judiciary,
Congress, whether voluntary or
and the Ombudsman and his deputies)
compulsory, but such appointments shall
“require no confirmation.” [Sec. 9, Art. VIII;
be effective only until disapproved by the
Sec. 9, Art. XI, Constitution]
Commission on Appointments or until the
• The list of appointments requiring next adjournment of the Congress. [Par. 2,
confirmation is exclusive. Congress cannot, Sec. 16, Art. VII, Constitution]
by law, require confirmation by the CA for
a public office created by statute. This • The classification of whether an
would be unconstitutional as it expands appointment is regular or ad interim is
the powers of the CA. [Calderon v. Carale, relevant for the purposes of the
G.R. No. 91636 (1992)] requirement of CA confirmation
Regular Ad Interim
Definition and Appointments made while Congress is in Appointments made “during the recess of
Constitutional session. [Art. VII, Sec. 16(2)] the Congress, whether voluntary or
Basis compulsory.” [Id.]
Nature of the Permanent Permanent
appointment
Steps in the (1) President nominates. (1) President nominates.
Appointment (2) CA confirms. (2) Commission is issued.
Process (3) Commission [i.e. document serving as (3) Appointee accepts, qualifies for office
the written evidence of the appointment] is [i.e. takes the oath], and assumes his duties.
issued. (4) CA confirms.
(4) Appointee accepts, qualifies for office
[i.e. takes the oath], and assumes his duties.
When the Upon confirmation by the CA. Immediately after appointment, subject to
appointee (a) disapproval by the CA or (b) “bypass” by
may take oath the CA, infra.
and assume
office
• Ad interim appointments to the has not been finally acted upon on the
Constitutional Commissions are merits by the Commission on
permanent and irrevocable appointments. Appointments at the close of the
Such do not violate the Constitutional session of Congress. There is no final
prohibition against acting appointments decision by the Commission on
to these commissions. [See Matibag v. Appointments to give or withhold its
Benipayo (2002)] consent to the appointment as
• Termination of ad interim appointments: required by the Constitution. Absent
Three cases: such decision, the President is free to
(1) Disapproval by the CA; renew the ad interim appointment of a
(2) By-Pass by the CA: When the CA does by-passed appointee.” [Matibag v.
not act on the ad interim appointment Benipayo (2002)]
prior to the next adjournment of • Commission: A document serving as the
Congress; [Matibag v. Benipayo written evidence of the appointment. It is
(2002)] or the warrant for the exercise of the powers
(3) Revocation of the appointment by the and duties of the office to which the officer
President, unless prohibited by the is commissioned. [DE LEON]
Constitution [as in the case of the iii. Special Rules and Doctrines on
chairman and members of the Presidential Appointments
Constitutional Commission].
• Disapproval v. Bypass: An ad interim a. Prohibition on Midnight Appointments
appointee disapproved by the COA cannot Sec. 15, Art. VII, Const. Two months
be reappointed. But a by-passed immediately before the next presidential
appointee, or one whose appointment was elections and up to the end of his term, a
not acted upon the merits by the CA, may President or Acting President shall not
be appointed again by the President, make appointments, except temporary
because failure by the CA to confirm an ad appointments to executive positions when
interim appointment is not disapproval. continued vacancies therein will prejudice
[See Matibag v. Benipayo (2002)] public service or endanger public safety.
o Renewal of by-passed appointment:
“A by-passed appointment is one that Midnight appointments ban period:
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General rule: Two months immediately before constitutional basis. [Kida v. Senate, G.R. No.
the next presidential elections up to end of the 197271 (2011)]
term of the President
C. RULES ON ACCEPTANCE AND
Exception: All elements must concur: REVOCATION
(1) Temporary appointments;
(2) To executive positions; and C.1. FOUR ELEMENTS OF A VALID,
(3) When continued vacancies will (a) EFFECTIVE, AND COMPLETED
prejudice public service or (b) endanger APPOINTMENT
public safety (1) Authority to appoint and evidence of the
Policy: The outgoing President is prevented exercise of the authority;
from continuing to rule the country indirectly (2) Transmittal of the appointment paper
after the end of his term. [Velicaria-Garafil v. and evidence of the transmittal;
Office of the President, G.R. No. 203372 (2015)] (3) A vacant position at the time of
appointment; and
Inapplicability to the Judiciary: The midnight (4) Receipt of the appointment paper and
appointments ban in the constitution does not acceptance of the appointment by the
apply to the Judiciary. The applicable appointee who possesses all the
provisions on the periods to fill up vacancies in qualifications and none of the
the judiciary in Art. VIII will prevail over the disqualifications.
midnight appointments prohibition in Art. VII.
[See De Castro v. JBC, G.R. No. 191002 (2010)] “The [above] elements should always concur
• De Castro expressly overturned the long- in the making of a valid (which should be
standing rule in In re Valenzuela (1998) understood as both complete and effective)
which applied the midnight appointment […] The concurrence of all these
appointments ban to judicial positions. elements should always apply[.] These steps
in the appointment process should always
Limited application to Presidential concur and operate as a single process. There
appointments: The constitutional prohibition is no valid appointment if the process lacks
on midnight appointments only applies to the even one step.” [Velicaria-Garafil v. Office of the
President. [De Rama v. CA, G.R. No. 131136 President, G.R. No. 203372 (2015)]
(2001)] • Appointment not final without
• Note, however, that the Civil Service transmittal: “It is not enough that the
Commission may issue rules and President signs the appointment paper.
regulations prohibiting local chief There should be evidence that the
executives from making appointments President intended the appointment
during the last days of their tenure. paper to be issued. It could happen that
Appointments of local chief executives an appointment paper may be dated
must conform to these civil service rules and signed by the President months
and regulations in order to be valid. before the appointment ban, but never
[Provincial Gov’t of Aurora v. Marco, G.R. left his locked drawer for the entirety of
No. 202331 (2015)] his term. Release of the appointment
b. The grant to the President of the power to paper through the [Malacañang
appoint OICs in ARMM does not violate the Records Office (MRO)] is an unequivocal
Constitution: The appointing power is act that signifies the President’s intent
embodied in Sec. 16, Art VII of the Constitution, of its issuance.” [Velicaria-Garafil v.
which pertinently states that the President Office of the President (2015)]
shall appoint all other officers of the • Hence, even if the appointment letter
government whom the President may be was dated prior to the midnight
authorized by law to appoint. Since the appointments ban, supra, cut-off date,
President’s authority to appoint OICs for as long as the transmittal to the MRO
emanates from RA No. 10153, it falls under this was after the cut-off date, the
group of officials that the President can appointment is unconstitutional for
appoint. Thus, the assailed law rests on clear violating the midnight appointments
ban. [Id.]
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D.4. MEMBERS OF THE SUPREME COURT (3) 15 years or more as a judge or engaged
AND LOWER COLLEGIATE COURTS [Sec. 7(1), in law practice
Art. VIII] (4) Of proven Competence, Integrity,
(1) Natural born citizen Probity and Independence
(2) At least 40 years old
D.5. MEMBERS OF THE CONSTITUTIONAL COMMISSIONS
CSC COMELEC COA
Citizenship Natural-born citizen
Age 35 years old at the time of appointment
Disqualification Not a candidate for any elective position in the election immediately preceding
s appointment
Competence With proven capacity for College degree holder (a) CPA with at least 10
public administration years of auditing
experience; OR
(b) Member of the Bar
engaged in practice of law
for at least 10 years
Composition None Chairman and majority At no time shall all
rules should be members of the Members of the Com-
bar who have been mission belong to the
engaged in the practice of same profession.
law for at least 10 years.
Legal Basis [Sec. 1(1), Art. IX-B] [Sec. 1(1), Art. IX-C] [Sec. 1(1), Art. IX-D]
It shall be established for all positions in the E.6. EFFECT OF PARDON UPON THE
1st and 2nd levels [Sec. 1, Rule IV, Omnibus DISQUALIFICATION TO HOLD PUBLIC
Rules] OFFICE
E.3. POLITICAL QUALIFICATIONS FOR Traditional Rule:
OFFICE
General Rule: Pardon will not restore the right
Political qualifications refer to membership in to hold public office. (Art. 36, Revised Penal
political parties, including those registered in Code)
the party-list system.
Exception: When the pardon’s terms expressly
General Rule: Political qualifications are not restores such (Art. 36, RPC);
required for public office.
Rule under Risos-Vidal v. Estrada (2015):
Exceptions: Risos-Vidal v. Estrada has raised questions
(1) Membership in the electoral tribunals of about the organization of the above
either the House of Representatives or traditional rule, particularly as to whether the
Senate, which requires proportional terms of the pardon must expressly restore
representation; [Art. VI, Sec. 17, Const.] political rights. [Risos-Vidal v. COMELEC, G.R.
(2) Party-list representation; No. 206666, January 21, 2015]
(3) Commission on Appointments, which
The Court broadly held there that the
requires proportional representation;
“pardoning power of the President cannot be
[Art. VI, Sec. 18, Const.]
limited by legislative action,” and added that
(4) Vacancies in local Sanggunians, except
“Articles 36 and 41 of the Revised Penal Code
the Sangguniang Barangay, which
cannot, in any way, serve to abridge or
requires that the appointee come from
diminish the exclusive power and prerogative
the same political party as that of the
of the President to pardon persons convicted
sanggunian member who caused the
of violating penal statutes.”
vacancy [Sec. 45(b), Local Government
Code] Under Risos-Vidal, if the wording of the
pardon is “complete, unambiguous, and
E.4. NO PROPERTY QUALIFICATIONS
unqualified,” it includes the restoration of civil
Since sovereignty resides in the people, it is and political rights because it is “unfettered by
necessarily implied that the right to vote and Articles 36 and 41 of the Revised Penal Code.”
to be voted should not be dependent upon a [Id.]
candidate’s wealth. Poor people should also
be allowed to be elected to public office
because social justice presupposes equal
opportunity for both rich and poor. [Maguera v.
Borra (1965); Aurea v. COMELEC (1965)]
The requirement that a candidate post a bond
worth a year’s salary is unconstitutional for
effectively imposing a property qualification.
No person shall, by reason of poverty, should
be denied the chance to be elected to public
office. [Maguera v. Borra (1965)]
E.5.ALIENS ARE NOT ELIGIBLE FOR PUBLIC
OFFICE
The purpose of the citizenship requirement is
to ensure that no alien, i.e., no person owing
allegiance to another nation, shall govern our
people and country or a unit of territory
thereof. [Frivaldo v. COMELEC (1996)]
accept employment as officer, employee, (4) a member of the Armed Forces of the
consultant, counsel, broker, agent, trustee or Philippines
nominee in any private enterprise regulated,
C.4. DISQUALIFICATIONS IN THE LOCAL
supervised or licensed by their office unless
GOVERNMENT CODE [Sec. 40, LGC]
expressly allowed by law.
The following persons are disqualified from
Private Practice of the Profession: Section 7 of running for any elective local position:
RA 6713 also generally provides for the (1) Sentenced by final judgment for an
prohibited acts and transactions of public offense involving moral turpitude or for
officials and employees. Subsection (b)(2) an offense punishable by 1 year or more
prohibits them from engaging in the private of imprisonment, within 2 years after
practice of their profession during their serving sentence;
incumbency. (2) Removed from office as a result of an
• Exception: As an exception, a public administrative case;
official or employee can engage in the (3) Convicted by final judgment for violating
practice of his or her profession under the oath of allegiance to the Republic;
the following conditions: (1) the private (4) Dual citizenship;
practice is authorized by the (5) Fugitive from justice in criminal or non-
Constitution or by the law; and (2) the political cases here or abroad;
practice will not conflict, or tend to (6) Permanent residents in a foreign country
conflict, with his or her official or those who have acquired the right to
functions. reside abroad and continue to avail of the
same right after the effectivity of the
C.3. PROHIBITION ON NEPOTIC Local Government Code; or
APPOINTMENTS; EXCEPTIONS (7) Insane or feeble-minded.
General Rule on Nepotism: The Civil Service Dual citizenship is different from dual allegiance.
Law prohibits all appointments in the national • Dual citizenship arises when, as a result
and local governments or any branch or of the concurrent application of the
instrumentality thereof made in favor of the different laws of two or more states, a
relative of: person is simultaneously considered a
(a) appointing authority; national by the said states.
(b) recommending authority; • Dual allegiance, on the other hand, refers
(c) chief of the bureau or office; or to the situation in which a person
(d) person exercising immediate simultaneously owes, by some positive
supervision over the appointee act, loyalty to two or more states.
• While dual citizenship is involuntary, dual
In the last two cases, it is immaterial who the allegiance is the result of an individual’s
appointing or recommending authority is. To volition. The Constitutional Commission
constitute a violation of the law, it suffices that was not with dual citizens per se but with
an appointment is extended or issued in favor naturalized citizens who maintain their
of a relative of the chief of the bureau or office, allegiance to their countries of origin
or the person exercising immediate even after their naturalization.
supervision over the appointee [CSC v. • Hence, the phrase “dual citizenship” in
Dacoycoy (1999)] R.A. No. 7160 [Local Government Code],
sec. 40(d) must be understood as
Relative: One who is related within the third referring to “dual allegiance.” [Mercado v.
degree of either consanguinity or of affinity. Manzano (1999)]
[Sec. 59, Civil Service Law]
Exceptions: The prohibition on nepotic
appointments in the Civil Service Law does not
apply if the appointee is:
(1) a person employed in a confidential
capacity;
(2) a teacher;
(3) a physician; or
MANDATORY
VI. Powers and Duties
Powers conferred on public officers are
of Public Officers generally construed as mandatory although
the language may be permissive, where they
i. Classification of powers and duties are for the benefit of the public or individuals.
ii. Authority of public officers
iii. Source of powers and authority
iv. Duties of public officers PERMISSIVE
A. CLASSIFICATION OF POWERS AND Statutory provisions define the time and mode
DUTIES [DE LEON] in which public officers will discharge their
duties, and those which are obviously
A.1. AS TO NATURE designed merely to secure order, uniformity,
Ministerial system and dispatch in public business are
generally deemed directory.
Official duty is ministerial when it is absolute,
certain and imperative involving merely If the act does not affect third persons and is
execution of a specific duty arising from fixed not clearly beneficial to the public, permissive
and designated facts. Where the officer or words will not be construed as mandatory.
official body has no judicial power or discretion
as to the interpretation of the law, and the
course to be pursued is fixed by law, their acts A.3. As to the Relationship of the Officer to
are ministerial only. his subordinates
General Rule: Performance of duties of this POWER OF CONTROL
nature may be properly delegated to another. It implies the power of an officer to manage,
Exceptions: direct or govern, including the power to alter
(1) Delegation is expressly prohibited by or modify or set aside what a subordinate had
law; or done in the performance of his duties and to
(2) The law expressly that the act be substitute his judgment for that of the latter.
performed by the officer in person. POWER OF SUPERVISION
Discretionary Supervisory power is the power of mere
oversight over an inferior body which does not
Acts which necessarily require the exercise of include any restraining authority over such
reason in the adaptation of means to an end, body.
and discretion in determining how or whether
the act shall be done or the course pursued. A supervising officer merely sees to it that the
When the law commits to any officer the duty rules are followed, but he himself does not lay
of looking into facts and acting upon them, not down such rules, nor does he have the
in a way which it specifically directs, but after discretion to modify or replace them.
a discretion in its nature, the function is
discretionary (e.g. quasi-judicial acts).
B. AUTHORITY OF PUBLIC OFFICERS
General Rule: A public officer cannot delegate
his discretionary duties to another. Authority of public officers consists of those
which are:
Rationale: In cases where the execution of the
(1) expressly conferred by law;
office requires exercise of judgment or
(2) incidental to the exercise of the powers
discretion by the officer, the presumption is
granted; and
that he was chosen to because he was deemed
(3) necessarily implied
fit and competent to exercise such judgment.
Doctrine of necessary implication – all powers
Exception: The power to substitute another in
necessary for the effective exercise of the
his place has been expressly granted by law.
express powers are deemed impliedly granted
A.2. AS TO THE OBLIGATION OF THE (Nachura, 2015)
OFFICER TO PERFORM HIS POWERS AND
DUTIES
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Authority can be exercised only during the (a) Act promptly on letters and requests
term when the public officer is, by law,
All public officials shall, within fifteen
invested with the rights and duties of the office.
(15) working days from receipt,
B.1. Source of Powers and Authority[DE LEON] respond to letters, telegrams or other
means of communication sent by the
Under our political system, the source of
public. The reply must contain the
governmental authority is found in the People.
answer taken on the request.
Directly or indirectly through their chosen
representatives, they create such offices and (b) Submit annual performance reports
agencies as they deem to be desirable for the
All heads or other responsible officers
administration of the public functions and
of agencies of the government or of
declare in what manner and by what persons
GOCCs shall, within forty-five (45)
they shall be exercised.Their will finds its
working days from the end of the year,
expression in the Constitution and the laws.
render a full and complete report of
The right to be a public officer, then, or to performance and accomplishments,
exercise the powers and authority of a public as prescribed by existing rules and
office, must find its source in some provision of regulations of the agency, office or
the public law. corporation concerned.
In the absence of a valid grant, public officials (c) Process documents and papers
are devoid of power. A public official exercises expeditiously
power, not rights. The Government itself is
All official papers and documents
merely an agency through which the will of the
must be processed and completed
State is expressed and enforced. Its officers
within a reasonable time from the
therefore are likewise agents entrusted with
preparation thereof and must contain,
the responsibility of discharging its functions.
as far as practicable, not more than
As such there is no presumption that they are
three (3) signatories therein.
empowered to act. There must be a delegation
of such authority, either express or implied. (d) Act immediately on the public’s
[Villegas v. Subido,1969] personal transactions
But once the power is expressly granted, it will All public officials and employees
be broadly construed in line with the doctrine must attend to anyone who wants to
of necessary implication. avail himself of the services of their
offices, and must, at all times, act
C. DUTIES OF PUBLIC OFFICERS promptly and expeditiously.
(1) General (Constitutional) duties [NACHURA, (e) Make documents accessible to the
2015] public
(a) To be accountable to the people; to
serve them with utmost All public documents must be made
responsibility, integrity, loyalty and accessibleto, and readily available for
efficiency; to act with patriotism an inspection by, the public within
justice; and to lead modest lives [Sec. reasonable working hours.
1, Art. IX]
(b) 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 [Sec. 17, Art. XI]
(c) To owe the State and the Constitution
allegiance at all times [Sec. 18, Art. XI]
(2) Obligations under the Code of Conduct
and Ethical Standards for Public Officials
and Employees [DE LEON, 2014, citing
Sec. 5, RA 6713]
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B. THREE-FOLD RESPONSIBILITY OF
PUBLIC OFFICERS
A public officer is under a three-fold
responsibility for violation of duty or for
wrongful act or omission:
(1) Civil Liability: if the individual is
damaged by such violation, the
official shall, in some cases, be held
liable civilly to reimburse the injured
party
(2) Criminal Liability: if the law has
attached a penal sanction, the officer
may be punished criminally. The
(a) After the issues are joined; compensation for the period during which he
(b) Evidence of guilt is strong; and was so suspended, even if it be subsequently
(c) Given the gravity of the offense, there determined that the cause for which he was
is great probability that the suspended was unjustified (so long as the
continuance in office of the preventive suspension was within the periods
respondent could: provided by law).
(i) influence the witnesses; or
Where removal or suspension unlawful–
(ii) pose a threat to the safety and
Where an officer was unlawfully removed and
integrity of the records and other
was prevented for a time by no fault of his own
evidence.
from performing the duties of his office, he
(4) Duration
may recover backwages, and the amount that
(a) Single administrative case – not to
he had earned in other employment during his
exceed 60 days
unlawful removal should not be deducted
(b) Several administrative cases – not
from his unpaid salary.
more than 90 days within a single
year on the same ground or grounds D.3.OTHER RULES
existing and known at the time of the
The award for backwages is limited to a
first suspension
maximum period of 5 years and not to full
(5) Preventive suspension of an elective local
back salaries from illegal dismissal up to
official is not an interruption of the 3-
reinstatement.
term limit rule [Aldovino v. COMELEC
(2009)] A petition for quo warranto and mandamus
affecting title to public office must be filed
N.B.The authority to preventively suspend is
within 1 year from the date the petitioner is
exercised concurrently by the ombudsman,
ousted from his position. The claim for back
pursuant to ra 6770, which authorizes
salaries and damages is also subject to the 1-
preventive suspension of 6 months. [Hagad v.
year prescriptive period. (De Leon, 2014)
Gozo-Dadole, 1995]
D. ILLEGAL DISMISSAL,
REINSTATEMENT AND BACK SALARIES
D.1. DEFINITIONS
Reinstatement means the restoration to a
state or condition from which one had been
removed or separated. One who is reinstated
assumes the position he had occupied prior to
the dismissal. Back salary or wages is a form
of relief that restores the income that was lost
by reason of unlawful dismissal
D.2. DUTY OF PLAINTIFF TO PROVE HIS
RIGHT TO OFFICE
For a plaintiff to succeed in seeking
reinstatement to an office, he must prove his
right to the office. In a quo warranto
proceeding, the person suing must show that
he has a clear right to the office allegedly held
unlawfully by another. Absent that right, the
lack of qualification or eligibility of the
supposed usurper is immaterial.
Where removal or suspension lawful– An
officer who has been lawfully separated or
suspended from his office is not entitled to
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How Ousted Cannot be ousted even in a direct proceeding In a direct proceeding (quo warranto);
Cannot be ousted collaterally
Validity of official Valid, subject to exceptions (e.g., acting Valid as to the public until his title to the
acts beyond his scope of authority, etc.) office is adjudged insufficient.
Rule on Rightfully entitled to compensation; Conditionally entitled to receive
Compensation The principle "No work, no pay" is compensation: only when no de jure officer is
inapplicable to him. declared;
He is paid only for actual services rendered.
ii. Officer De Facto v. Intruder
De Facto Intruder
Nature He becomes officer with color of title under He possesses office and performs official
the circumstances discussed above acts without actual or apparent authority.
Basis of Authority Color of right or title to office None. Neither lawful title nor color of right
to office.
Validity of Valid as to the public until his title to the Absolutely void; his acts can be
“official” acts office is adjudged insufficient impeached at any time in any proceeding
Rule on Entitled to receive compensation only when Not entitled to compensation at all.
Compensation no de jure officer is declared and only for
actual services rendered.
An intruder/usurper may grow into a de facto get involved in the official acts of persons
officer if his assumption of office is acquiesced discharging the duties of a public office.
in, as when he continues to act for so long a
D.1. DE FACTO OFFICER’S OFFICIAL ACTS
time as to afford a strong presumption that he
ARE NOT SUBJECT TO COLLATERAL
has been duly appointed or elected. [DE LEON]
ATTACK
C. OFFICE CREATED UNDER AN A de facto officer’s and his acts’ validity cannot
UNCONSTITUTIONAL STATUTE be collaterally questioned in proceedings
The prevalent view is that a person appointed where he is not a party, or which were not
or elected in accordance with a law later instituted to determine the very question.
declared to be unconstitutional may be Remedy: Quo warranto proceedings filed by:
considered de facto at least before the (1) The person claiming entitlement to the
declaration of unconstitutionality. office;
D. LEGAL EFFECT OF ACTS OF DE (2) The Republic of the Philippines
FACTO OFFICERS [MONROY V. CA (represented by the Solicitor-General or
(1967)] a public prosecutor).
(2) If the public officer accepts a forbidden What may Constitute as Abandonment
office, the holding of the second office is
(1) Abandonment may result from
absolutely void.
acquiescence by the officer in his
Rationale: It is contrary to the policy of the law wrongful removal [Canonizado v.
that the same individual should undertake to Aguirre (2001)].
perform inconsistent and incompatible duties. (2) An officer or employee shall be
automatically separated from the
When Incompatible
service if he fails to return to the service
Incompatibility is to be found in the character after the expiration of one-year leave of
of the offices and their relation to each other, absence without pay. Also, officers and
in the subordination of one to the other and in employeees who are absent for at least
the nature of the functions and duties which 30 days without approved leave (AWOL)
attach to them shall be dropped from the service after
due notice [Civil Service Rules].
It exists where:
(1) There is conflict in such duties and
functions, so that the performance of G. PRESCRIPTION OF RIGHT TO OFFICE
the duties of one interferes with the
performance of the duties of the other as Under the Rules of Court, quo warranto is the
to render it improper from consideration proper remedy against a public officer for his
of public policy for one person to retain ouster from office. The petition should be filed
both. within one (1) year after the cause of such
(2) One is subordinate to the other and is ouster or the right of the plaintiff to hold such
subject in some degree to its supervisory office or position arose; otherwise, the action
power for obviously in such a situation, will be barred. The filing of an administrative
the design that one acts as a check on action does not suspend the period for filing
the other would be frustrated. the appropriate judicial proceeding.
(3) The Constitution or the law itself Rationale for the one year period: Title to
declares the incompatibility even public office should not be subjected to
though there is no inconsistency in the uncertainties but should be determined as
nature and functions of the offices. speedily as possible.
(1) Constitutional guarantee of security of (1) Abolition must be done in good faith
tenure. No officer or employee of the (2) Clear intent to do away with the office
civil service shall be removed or (3) Not for personal or political reasons
suspended except for cause provided by (4) Cannot be implemented in a manner
law [Sec. 2(3), Art IX-B, Constitution]. contrary to law
(2) Removal or resignation from office is not Limitations
a bar to a finding of administrative
liability [Office of the President v. (1) Except when restrained by the
Cataquiz (2011)]. Constitution, the Congress has the right
(3) Removal not for a just cause, or non- to abolish an office, even during the
compliance with the prescribed term for which an existing incumbent
procedure constitutes a reversible error may have been elected. Valid abolition
and entitles the officer or employee to of office does not constitute removal of
reinstatement with back salaries and the incumbent.
without loss of seniority rights. (2) No law shall be passed reorganizing the
Judiciary when it undermines the
Elements of Removal for Cause security of tenure of its members [Sec. 2,
(1) The cause is a legal cause, i.e. Art. VIII, Constitution].
determined by law and not the (3) The fundamental principle afforded to
appointing power civil service employees against removal
(2) As a general rule, the cause must be “except for cause as provided by law”
connected to the functions and duties of does not protect them against abolition
the office of the positions held by them in the
(3) The cause must be of a substantial absence of any other provision expressly
nature as to directly affect the interest of or impliedly prohibiting abolition
the public thereof. [Castillo v. Pajo (1958)]
(4) The removal must be after due process Reorganization – reduction of personnel,
Extent of President’s Removal Power consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions.
(1) With respect to non-career officers It could result in the loss of one’s position
exercising purely executive functions through removal or abolition of an office.
whose tenure is not fixed by law (i.e. However, for a reorganization for the purpose
members of the Cabinet), the President of economy or to make the bureaucracy more
may remove them with or without cause efficient to be valid, it must pass the test of
and Congress may not restrict such good faith; otherwise, it is void ab initio [United
power. Claimant Association of NEA v. NEA (2012)]
(2) With respect to officers exercising quasi-
legislative or quasi-judicial functions Reorganization is valid provided they are
(e.g. members of the SEC), they may be pursued in good faith
removed only on grounds provided by Attrition – reduction of personnel as a result
law to protect their independence. of resignation, retirement, dismissal in
(3) With respect to constitutional officers accordance with existing laws, death or
removable only by means of transfer to another office [Sec. 2(a), RA 7430
impeachment, and judges of lower Attrition Law]
courts, they are not subject to the
removal of the President.
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L. NON-USER
The office of any official elected who fails or
refuses to take his oath of office within six
months from his proclamation shall be
considered vacant, unless said failure is for a
cause or causes beyond his control [Sec. 11, BP
881]
M. RECALL
It is a method of removal prior to the
expiration of the term of a public officer on
account of loss of confidence exercised
directly by the registered voters of a local
government unit.
N. FILING OF A CERTIFICATE OF
CANDIDACY BY AN APPOINTIVE
OFFICIAL
In Quinto v. COMELEC (2010), the Supreme
Court upheld the constitutionality of Sec. 13 (3)
of RA 9369 and Sec. 66 of BP 881 which states
that an appointive official is ipso facto
resigned from his office upon the filing of a
certificate of candidacy. An elective official
who files a certificate of candidacy is not
deemed resigned from his position.
Rationale: Substantial distinctions exist
between elective officials and appointive
officials. The former occupy their office by
virtue of the mandate of the electorate. On
the other hand, appointive officials hold their
office by virtue of their designation thereto by
an appointing authority. Also, under the
Administrative Code of 1987, appointive
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UP LAW BOC PUBLIC OFFICERS POLITICAL LAW
limited to a period specified by law or which is (e) Recommendation of the JBC for
coterminous with the appointing authority or appointments to the SC and lower
the duration of a particular project. (i.e. courts
elective officials, Department Heads and (f) Grant of exclusive power to appoint
Members of Cabinet) officials and employees of the
Constitutional Commissions to the
C.2. RECALL OF APPOINTMENTS
same
Grounds [Admin. Code IRR, Rule VI, § 20; De (g) One-year appointments ban for
Rama v. CA(2001)] losing candidates
(1) Non-compliance with the (h) Non-appointment or designation of
procedures/criteria provided by the elective officials
agency’s Merit Promotion Plan (i) Prohibition on holding multiple
(2) Failure to pass through the agency’s offices for appointive officials
Selection/Promotion Board (j) Grant of exclusive power to appoint
(3) Violation of existing collective officials and employees of the
agreement between management and Ombudsman to the same
employees relative to promotion (k) Recommendation of the JBC for
(4) Violation of other existing civil service appointments of the Ombudsman
laws, rules and regulations and his deputies
(2) Limitations found in statutes
N.B. The above grounds are available despite
(3) Restrictions as developed under
initial approval by the CSC of the appointment.
jurisprudence; e.g.
(a) Appointing authority cannot
Distinguished from recall under the Local
preempt appointing power of
Government Code
successor [Aytona v. Castillo]
The CSC has the power to recall an
(b) Appointing authority cannot
appointment which has been initially
appoint himself to a vacancy
approved when it is shown that the same was
(c) No appointment to a post which is
issued in disregard of pertinent CSC laws,
not vacant
rules and regulations. In contrast, recall under
Sec 69-75 of the Local Government Code is a
mode of removal of a public official by the
people before the end of his term of office. D. PERSONNEL ACTIONS
[Garcia v. COMELEC, (1993)] D.1. PROMOTION
C.3. APPOINTMENTS NOT REQUIRING CSC Promotion– movement from one position to
APPROVAL another with increase in duties and
(1) Presidential appointments responsibilities as authorized by law and is
(2) Members of the AFP usually accompanied by an increase in pay.
(3) Police forces (1) Next-in-rank Rule
(4) Firemen The person next in rank shall be given
(5) Jail guards preference in promotion when the
C.4. LIMITATIONS ON POWER TO APPOINT position immediately above his is vacated.
Remedy: Petition for review under Rule 43 of C.2. EXCLUSIVE ORIGINAL JURISDICTION
the Rules of Court with the Court of Appeals. (1) Over the following crimes, when
N.B. The second paragraph of Sec. 14, RA committed by public officials and
6770, which states that “[n]o court shall hear employees classified as Salary Grade 27
any appeal or application for remedy against or higher:
the decision or findings of the Ombudsman, (a) Violations of R.A. No. 3019 and No.
except the Supreme Court, on pure question of 1379;
law,” is unconstitutional. Effectively, Congress (b) Crimes committed by public officers
increased the appellate jurisdiction of the and employees embraced in
Supreme Court without its advice and Chapter II, Sec. 2, Title VII, Book II of
concurrence. By confining the remedy to a the Revised Penal Code;
Rule 45 appeal, the provision takes away the (c) Other offenses or felonies, whether
remedy of certiorari, grounded on errors of simple or complexed with other
jurisdiction, in denigration of the judicial crimes, committed in relation to
power constitutionally vested in courts their office.
[Carpio-Morales v. Court of Appeals, G.R. No. (2) Civil and criminal cases filed pursuant to
217126-27 (2015)]. and in connection with Executive Orders
No. 1,2, 14, and 14-a issued in 1986
Decisions or resolutions of the Ombudsman in
administrative cases absolving the Provided, That the Regional Trial Court
respondent of the charge or imposing upon shallhave exclusive original jurisdiction
him the penalty of public censure or where theinformation:
reprimand, suspension of not more than one (a) does not allege any damage to
month, or a fine equivalent to one month thegovernment or any bribery; or
salary, is final and unappealable. (Agpalo, (b) alleges damage tothe government
2005) or bribery arising from the same
orclosely related transactions or
B.3. JUDICIAL REVIEW IN PENAL acts in an amount notexceeding
PROCEEDINGS One Million Pesos
General Rule:Courts cannot review the (Phpl,000,000.00).[R.A. No.
exercise of discretion of the Ombudsman in 10660 (2015)]
prosecuting or dismissing a criminal In the absence of any allegation that the
complaint filed before it [Loquias v. offense charged was necessarily
Ombudsman, G.R. No. 139396 (2000)]. connected with the discharge of the
Exception: When the Ombudsman’s findings duties or functions of a public officer, the
are tainted with grave abuse of discretion.See ordinary court, not the Sandiganbayan,
Carpio-Morales v. Court of Appeals (2015), has jurisdiction to hear and decide the
supra. case.
What is controlling is not whether the
phrase "committed in relation to public
office" appears in the Information. What
determines the jurisdiction of the (f) City and provincial prosecutors and
Sandiganbayan is the specific factual their assistants, and officials and
allegation in the Information that would prosecutors in the Office of the
indicate close intimacy between the Ombudsman and special
discharge of the accused's official duties prosecutor;
and the commission of the offense (2) Presidents, directors or trustees, or
charged in order to qualify the crime as managers of government-owned or
having been committed in relation to controlled corporations, state
public office. The relation between the universities or educational institutions
crime and the office must be direct and or foundations;
not accidental, that is, the relation has (3) Members of Congress and officials
to be such that, in the legal sense, the thereof classified as Grade "27" and up
offense cannot exist without the office. under the Compensation and Position
Classification Act of 1989;
C.3. OFFICIALS AND PRIVATE INDIVIDUALS
(4) Members of the judiciary without
SUBJECT TO ITS JURISDICTION
prejudice to the provisions of the
Under Section 4(a, b) of PD No. 1606, as Constitution;
amended, the Sandiganbayan shall exercise (5) Chairpersons and members of
exclusive original jurisdiction over the cases Constitutional Commissions, without
mentioned in (1) above where one or more of prejudice to the provisions of the
the accused are officials occupying the Constitution; and
following positions in the government, (6) All other national and local officials
whether in a permanent, acting or interim classified as Grade "27" and higher
capacity at the time of the commission of the under the Compensation and Position
offense: Classificafion Act of 1989.
(1) Officials of the executive branch
In case private individuals are charged as co-
occupying the positions of regional
principals, accomplices or accessories with the
director and higher, otherwise classified
public officers or employees, including those
as Grade '27' and higher, of the
employed in government-owned or -
Compensation and Position
controlled corporations, they shall be tried
Classification Act of 1989 (R.A. No. 6758),
jointly with said public officers and employees
specifically including:
in the proper courts which shall exercise
(a) Provincial governors, vice-governors,
exclusive jurisdiction over them.
members of the
sangguniangpanlalawigan, and C.4. EXCLUSIVE APPELLATE JURISDICTION
provincial treasurers, assessors,
The Sandiganbayan shall exercise exclusive
engineers, and other provincial
appellate jurisdiction over final judgments,
department heads;
resolutions or orders of regional trial courts
(b) City mayors, vice-mayors, members
whether in the exercise of their own original
of the sangguniangpanlungsod, city
jurisdiction or of their appellate jurisdiction.
treasurers, assessors, engineers,
and other city department heads; C.5. APPELLATE JURISDICTION OF THE
(c) Officials of the diplomatic service SUPREME COURT
occupying the position of consul and
The appellate jurisdiction of the Supreme
higher;
Court is limited to questions of law over
(d) Philippine army and air force decisions and final orders of the
colonels, naval captains, and all
Sandiganbayan [Republic v. Sandiganbayan
officers of higher rank;
(2002)].
(e) Officers of the Philippine National
Police while occupying the position D. ILL-GOTTEN WEALTH
of provincial director and those
Ill-gotten wealth– any asset, property,
holding the rank of senior
business enterprise or material possession of
superintendent or higher;
any person acquired by himself directly or
indirectly through dummies, nominees,
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POLITICAL LAW
ELECTION LAW
C. KINDS OF ELECTIONS
I. Suffrage
(1) Regular: One provided by law for the
election of officers either nation-wide
A. DEFINITIONS or in certain subdivisions thereof, after
Suffrage: The right to vote in the election of the expiration of the full term of the
officers chosen by the people and in former officers.
determination of questions submitted to the • The SK election is not a regular
people. election because the latter is
Election: The means by which the people participated in by youth with ages
choose their officials for a definite and fixed ranging from 15-21 (now 18-24 as per
RA 10742), some of whom are not
period and to whom they entrust for the time qualified voters to elect local or
being the exercise of the powers of national elective officials [Paras v.
government. COMELEC (1996)]
(2) Special: One held to fill a vacancy in
B. SOURCES OF ELECTION LAWS office before the expiration of the full
Non-Exhaustive Listing; includes term for which the incumbent was
elected.
• Constitution
(3) Plebiscite: The electoral process by
• B.P. Blg. 881 (Omnibus Election Code) which an initiative on the Constitution
• R.A. No. 6735 (1989) (Initiative and is approved or rejected by the people.
Referendum Act) [Sec. 3(e), R.A. No. 6735]
• R.A. No. 7160 (1991) (Local (4) Referendum: The power of the
Government Code) electorate to approve or reject a
legislation through an election called
• R.A. No. 7166 (1991) (Electoral for the purpose. [Sec. 3(c), R.A. No.
Reforms Act of 1991) 6735]
• R.A. No. 7941 (1995) (Party-List Act) (a) Referendum on Statutes or
referring to laws passed by
• R.A. No. 8189 (1996) (Registration of
Congress;
Voters Act)
(b) Referendum on Local Law,
• R.A. No. 9006 (2001) (Fair Elections referring to laws, resolutions,
Act) or ordinances passed by
• R.A. No. 9189 (2003) (Overseas regional assemblies and local
Absentee Voting Act) legislative bodies. [Id.]
• R.A. No. 9225 (2003) (Repatriation (5) Initiative: The power of the people to
Act) propose amendments to the
Constitution or to propose and enact
• R.A. 8436, as amended by R.A. 9369 legislation through an election called
(Automated Election System) for the purpose. [Sec. 3(a), R.A. No.
6735]
(a) Initiative on the Constitution:
Petition proposing
amendments to the
Constitution.
(b) Initiative on Statutes: Petition
proposing to enact a national
legislation.
(c) Work in the military or naval The following shall be disqualified from
reservations within the registering:
Philippines; (a) Sentenced by final judgment to suffer
(d) Service in the AFP, PNP; or imprisonment for not less than 1 year
(unless granted a plenary pardon or
(e) Confinement or detention in an amnesty) shall automatically
government institutions [Sec. 9, reacquire right to vote upon the
R.A. No. 8189] expiration of 5 years after the service
It is not necessary that a person should of sentence;
have a house in order to establish his (b) Adjudged by final judgment for having
residence or domicile in a municipality. It committed any crime involving
is enough that he should live there, disloyalty to the duly constituted
provided that his stay is accompanied by government (e.g. rebellion, sedition,
his intention to reside therein permanently. violation of the firearms law) or any
crime against national security (unless
[Marcos v. COMELEC (1995)] restored to full civil and political rights
In election cases, the Court treats domicile in accordance with law) shall
and residence as synonymous terms. Both automatically reacquire the right to
import not only an intention to reside in a vote upon the expiration of 5 years
fixed place but also personal presence in after the service of sentence; or
that place, coupled with conduct (c) Insane or incompetent persons as
indicative of such intention. [Pundaodaya declared by competent authority. [Sec.
v. COMELEC (2009)] 11, R.A. 8189, Voter’s Registration Act
There is nothing wrong in an individual of 1996]
changing residences so he could run for an
elective post, for as long as he is able to C. SPECIAL RULES FOR OVERSEAS
prove that he has effected a change of ABSENTEE VOTERS
residence for the period required by law. C.1. QUALIFICATIONS
[Aquino v. COMELEC (1995)]
(4) Not otherwise disqualified by law: (1) Filipino citizen;
infra (2) Abroad on the day of the election;
N.B. No literacy, property or other (3) At least 18 years of age on the day of
substantive requirement shall be imposed the election; and
on the exercise of suffrage. [Art. V, Sec. 1, (4) Not otherwise disqualified by law.
Const.] [Sec. 3(f)-4, R.A. 9189]
Hence, Congress may impose limitations C.2. DISQUALIFICATIONS
on the statutory right of suffrage. This
provision is merely “geared towards the The following are disqualified from voting
elimination of irrelevant standards that under the Overseas Absentee Voting law:
are purely based on socio-economic (a) Lost their Filipino citizenship in
accordance with Philippine laws;
considerations that have no bearing on
the right of a citizen to intelligently cast (b) Expressly renounced their Philippine
his vote and to further the public good.” citizenship and who have pledged
allegiance to a foreign country;
[Kabataan Partylist v. COMELEC, G.R. No.
221318 (2015)] (c) Committed and convicted in a final
judgment by a court or tribunal of an
offense punishable by imprisonment
B. DISQUALIFICATIONS, IN GENERAL of not less than 1 year, including
those who have committed and been
of voter's registration for the ultimate purpose (c) Any member of an accredited citizen’s arm
of conducting honest, orderly and peaceful [Sec. 14, R.A. 8189]
election[.]“ [Akbayan-Youth v. COMELEC N.B. Definition of disabled voter under the
(2001)] AES: A person with impaired capacity to use
the Automated Election System (“AES”). [Sec.
B. SYSTEM OF CONTINUING 2(11), RA 9369]
REGISTRATION OF VOTERS
B.1. PERIOD OF REGISTRATION B.3. ELECTION REGISTRATION BOARDS
Generally, daily: The personal filing of There shall be in each city and municipality as
application of registration of voters shall be many Election Registration Boards (“ERB”) as
conducted daily in the office of the Election there are election officers therein [Sec. 15, RA
Officer during regular office hours. 8189]
Exception [i.e. when registration is prohibited]:
No registration shall be conducted within Composition: The ERB shall be composed of
(1) 120 days before a regular election three members:
(2) 90 days before a special election [Sec. (1) Chairman: Election Officer. If
8, R.A. 8189] disqualified, COMELEC shall
designate an acting Election Officer.
COMELEC Resolution 8585, which set the
deadline for voter registration to Oct. 31, 2009 (2) Members:
(election was May 10, 2010, or more than 120 (a) Public school official most
days), was declared null and void because Sec. senior in rank; and
8 of RA 8189 has determined that the period (b) Local civil registrar, or in his
of 120 days before a regular election and 90 absence, the city or municipal
days before a special election is enough time treasurer. If neither are
for the COMELEC to make all the necessary available, any other
preparations with respect to the coming appointive civil service official
from the same locality as
elections. COMELEC is granted the power to designated by the COMELEC.
fix other periods and dates for pre-election
activities only if the same cannot be Disqualifications: Relation to each other or to
any incumbent city or municipal elective
reasonably held within the period provided by
official within the 4th civil degree of
law. There is no ground to hold that the consanguinity or affinity. [Sec. 15, R.A. 8189]
mandate of continuing voter registration
cannot be reasonably held within the period
B.4. CHANGE OF RESIDENCE OR ADDRESS
provided by Sec. 8 of R.A. 8189. [Palatino v.
COMELEC (2009)] Change of residence to another city or
municipality: The registered voter may apply
with the Election Officer of his new residence
B.2. MANNER OF REGISTRATION FOR
ILLITERATE OR DISABLED VOTERS for the transfer of his registration records. [Sec.
12, R.A. 8189]
For illiterate persons: May register with the
assistance of the Election Officer or any
member of an accredited citizen’s arms. Change of address in the same municipality
or city: Voter shall immediately notify the
For physically disabled persons: Application
Election Officer in writing. [Sec. 13, R.A. 8189]
for registration may be prepared by:
(a) Any relative within the 4th civil degree of
consanguinity or affinity; B.5. CHALLENGES TO RIGHT TO REGISTER
(b) By the Election Officer; or [SEC. 18, R.A. NO. 8189]
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(1) Not prepared in accordance with R.A. The Commission shall maintain a National
8189 or the Voters’ Registration Act of Registry of Overseas Voters (NROV)
1996 containing the names of registered overseas
voters and the posts where they are registered.
(2) Prepared through fraud, bribery,
forgery, impersonation, intimidation, The Commission shall maintain a registry of
force, or any similar irregularity; or voters (ROV) per municipality, city or district
containing the names of registered overseas
(3) Contains data that are statistically
voters domiciled therein. The Commission
improbable
shall provide each and every municipality, city
No order, ruling or decision annulling a book or district with a copy of their respective ROVS
of voters shall be executed within 90 days for their reference. [Sec. 9, R.A. 9189, as
before an election. [Sec. 39, R.A. 8189] amended by R.A. 10590; this is now
renumbered as Sec. 13]
F. SPECIAL RULES FOR OVERSEAS
ABSENTEE VOTERS
Definitions:
Overseas Voting: Process by which qualified
citizens of the Philippines abroad exercise
their right to vote. [Sec. 3a, R.A. 9189, The
Overseas Absentee Voting Act, as amended by
R.A. 10590, The Overseas Voting Act of 2013]
Overseas Voter: Citizen of the Philippines who
is qualified to register and vote under this Act,
not otherwise disqualified by law, who is
abroad on the day of elections. [Sec. 3 (f), R.A.
9189, as amended by Sec. 2, R.A. 10590]
Covered Elections: Elections for president,
vice-president, senators and party-list
representatives, as well as in all national
referenda and plebiscites [Sec. 4, R.A. 9189,
as amended by R.A. 10590]
Personal registration, required: Registration
as an overseas absentee voter shall be done in
person at any post abroad or at designated
registration centers outside the post or in the
Philippines approved by the Commission.
[Sec.5, R.A. 9189, as amended by R.A. 10590]
National Registry of Overseas Voters: The
consolidated list prepared, approved and
maintained by the COMELEC, of overseas
voters whose applications for registration as
absentee voters, including those registered
voters under R.A. 8189 who have applied to be
certified as absentee voters, have been
approved by the Election Registered Board,
indicating the post where the overseas voter is
registered. [Sec. 3 (e), R.A. 9189, as amended
by R.A. 10590]
Exclusion
Petition for Inclusion Petition for Exclusion
Proceedings When to file
Any time except 105 Any time except 100
A. JURISDICTION IN INCLUSION AND days before a regular days before a regular
EXCLUSION CASE election or 75 days election or 65 days
Original and Exclusive Jurisdiction: The before a special before a special
Municipal and Metropolitan Trial Courts shall election election
have original and exclusive jurisdiction over all Who may file
cases of inclusion and exclusion of voters in
(1) One whose Any
their respective cities or municipalities. [Sec.
application for (1) registered voter;
33, R.A. 8189]
registration has been (2) representative of a
The nature of the MTC’s jurisdiction is limited.
disapproved by the political party; or
The jurisdiction of the MTC “over exclusion
BEI or (3) the Election
cases is limited only to determining the right
(2) One whose name Officer
of the voter to remain in the list of voters or to
has been stricken out
declare that the challenged voter is not
from the list
qualified to vote in the precinct in which he is
registered, specifying the ground of the voters Period to decide
disqualification.” Hence, the trial court has no Within 15 days after Within 10 days from
power to order the change or transfer of its filing its filing
registration from one place of residence to
another for it is the function of the ERB as C. SPECIAL RULES ON OVERSEAS
provided under Section 12 of R.A. No. 8189. ABSENTEE VOTERS
[Domino v. COMELEC (1999)]
Appellate Jurisdiction: Decisions of the MTC
or MeTC may be appealed by the aggrieved Petition for Inclusion Petition for Exclusion
party to the RTC within 5 days from receipt of [Sec 9.3, RA 9189, as [Sec. 9.1, RA 9189, as
notice thereof. No motion for reconsideration inserted by R.A. inserted by R.A.
shall be entertained. [Sec. 33, R.A. 8189] 10590] 10590]
Generally, no res judicata: A decision in an When to file
exclusion or inclusion proceeding, even if final
and unappealable, does not acquire the
nature of res judicata. [Domino v. COMELEC Within ten (10) days Not later than one
(1999)] from receipt of notice hundred eighty (180)
Exception: The decision is res judicata as to denying the MR, with days before the start
the right to remain in the list of voters or for the proper MTC in the of the overseas voting
being excluded therefrom for the particular City of Manila or period with the proper
election in relation to which the proceedings where the overseas MTC in the City of
had been held. [Id.] voter resides in the Manila or where the
Philippines, at the overseas voter resides
petitioner’s option. in the Philippines, at
the petitioner option.
(Note: If the
application has been
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disapproved, the
applicant or his
V. Political Parties
authorized
representative may A. LEGAL BASIS AND PURPOSE
file a Motion for
A free and open party system shall be
Reconsideration (MR)
allowed to evolve according to the free
before the Resident choice of the people. [Sec. 6, Art. IX-C,
Election Registration Const.]
Board (RERB) within
No votes cast in favor of a political party,
a period of five (5) organization, coalition shall be valid, except
days from receipt of for those registered under the party-list
the notice of system. [Sec. 7, Art. IX-C, Const.]
disapproval.)
Who may file Purpose: To enable Filipino citizens belonging
Applicant Any interested person to marginalized and underrepresented sectors,
organizations and parties, and who lack well-
Period to decide defined political constituencies but who could
Within 15 days after Within 15 days after contribute to the formulation and enactment
its filing, but not later its filing, but not later of appropriate legislation that will benefit the
than 120 days before than 120 days before nation as a whole, to become members of the
the start of the the start of the House of Representatives. [Sec. 2, R.A. 7941]
overseas voting overseas voting
period. period. B. DEFINITIONS
E. GROUNDS FOR
File with the COMELEC not later than 90 REFUSAL/CANCELLATION OF
days before the election a petition verified REGISTRATION
by its president or secretary stating its
The COMELEC may, motu proprio or upon
desire to participate in the party-list system
verified complaint of any interested party,
as a national, regional or sectoral party or refuse or cancel, after due notice and hearing,
organization or a coalition of such parties or the registration of any national, regional or
organizations attaching thereto its sectoral party, organization or coalition on any
constitution, by-laws, platform or program of the following grounds:
of government, list of officers, coalition (1) Religious sect or denomination,
agreement and other relevant information organization or association, organized
as the COMELEC may require for religious purposes;
(2) Advocates violence or unlawful means to
seek its goal;
COMELEC shall publish the petition in at
(3) Foreign party or organization;
least 2 national newspapers of general
circulation (4) Receives support from any foreign
government, foreign political party,
foundation, organization, whether
COMELEC shall, after due notice and directly or through any of its officers or
hearing, resolve the petition within 15 days members or indirectly through third
parties for partisan election purposes;
from the date it was submitted for decision
but in no case not later than 60 days before (5) Violates or fails to comply with laws,
election rules or regulations relating to elections;
(6) Declares untruthful statements in its
D.3. GROUPS WHICH CANNOT BE petition;
REGISTERED AS POLITICAL PARTIES (7) Ceased to exist for at least 1 year;
(1) Religious denominations and sects; (8) Fails to participate in the last 2 preceding
(2) Those which seek to achieve their elections; or
goals through violence or unlawful (9) Fails to obtain at least 2% of the votes
means; cast under the party-list system in the 2
(3) Those which refuse to uphold and preceding elections for the constituency
adhere to the Constitution; or in which it has registered. [Sec. 6, R.A.
7941]
(4) Those supported by foreign
governments. [Art. IX-C, Sec. 2 (5), “[T]he disqualification for failure to garner 2%
Constitution] party-list votes in two preceding elections
should now be understood, in light of the
Banat ruling, to mean failure to qualify for a
party-list seat in two preceding elections for
the constituency in which it has registered[,]”
and not failure to garner 2% per se. [Phil.
Guardians Brotherhood v. COMELEC, G.R. No.
190529, Apr. 29, 2010]
must belong to the sector they represent. elections.” [Amores v. HRET, G.R. No.
The nominees of sectoral parties or 189600 (2010)]
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 of 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.
Effect of unimplemented term-sharing
agreement: The fact that the nominees of a
party to the party-list elections entered in a
term-sharing agreement is not a sufficient
ground for the cancellation of the party’s
registration and accreditation if such
agreement was not implemented. [Senior
Citizens’ Party-List v. COMELEC (2013)]
operation of law, is not a ground for a petition (1) Sentenced by final judgment for an
under Section 68 because robbery is not one offense (a) involving moral turpitude or (b)
of the offenses enumerated in Section 68. punishable by at least 1 year
imprisonment.
Insofar as crimes are concerned, Section 68
refers only to election offenses under the The disqualification lasts for two years
Omnibus Election Code and not to crimes after service of sentence.
under the Revised Penal Code. [Jalosjos, Jr. v. The provision “within 2 years after serving
COMELEC, G.R. No. 193237, Oct. 9, 2012] sentence” applies both to (1) those who
have been sentenced by final judgment for
ii. Under Section 12 of the Omnibus Election an offense involving moral turpitude and
Code [B.P. Blg. 881] (2) those who have been sentenced by
(1) Insane or incompetent final judgment for an offense punishable
(2) Sentenced by final judgment for: by one year or more of imprisonment
Those who have not served their sentence
(a) Subversion, insurrection, by reason of the grant of probation should
rebellion;
not be disqualified from running for a local
(b) Any offense for which he has elective office because the 2-year period of
been sentenced to a penalty of ineligibility does not even begin to run
more than 18 months
[Moreno v. COMELEC (2006)]
imprisonment; or
(2) Removed from office as a result of an
(c) A crime involving moral administrative case.
turpitude. [Sec. 12]
This disqualification does not retroactively
N.B. As to disqualifications under Sec. 12: apply to those who were removed from
• These will not apply if the person has office as a result of an administrative case
been given plenary pardon or amnesty. before the effectivity of the LGC. [Grego v.
• These are deemed removed upon COMELEC (1997)]
declaration by competent authority (3) Convicted by final judgment for violating
that the insanity/incompetence has the oath of allegiance to the Republic of
been removed, or after the expiration the Philippines.
of a period of five years from service of
sentence. (4) Dual citizenship.
Dual citizenship as a disqualification must
In Magno v. COMELEC (2002), it was held that
there appears to be an irreconcilable conflict refer to citizens with dual allegiance. For
between the five-year disqualification period candidates with mere dual citizenship, the
under Sec. 12, OEC and the two-year filing of certificate of candidacy is
considered as an election of Filipino
disqualification period under Sec. 40 of the
Local Government Code (infra). Court held citizenship and renunciation of foreign
that Sec. 40 of the LGC is deemed to have citizenship. [Mercado v. Manzano (1999)]
repealed Sec. 12 of the OEC, the former being
the later legislative enactment. Furthermore, For a natural born Filipino, who
Sec. 40 of the LGC partakes of a special law reacquired or retained his Philippine
applicable to candidates for local elective citizenship under RA 9225, to run for
positions as opposed to Sec. 12 of the OEC public office, he must: (1) meet the
which applies to candidates for any public qualifications for holding such public
office. Thus, the former must prevail over the office as required by the Constitution and
existing laws; and (2) make a personal and
latter.
iii. Under Section 40 of the Local Government sworn renunciation of any and all foreign
Code citizenships before any public officer
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SC upheld the validity of the COMELEC On the other hand, a person whose CoC is
Resolution in Sec. 67, B.P. 881, which deemed cancelled or denied due course under Sec. 78
elective officials automatically resigned from for false material representation is considered
office upon filing of their certificate of to have a CoC that is void ab initio. Thus, he
candidacy was repealed by Sec. 14 R.A 9006, cannot be validly substituted. [Talaga v.
Fair Election Act. This means that such COMELEC (2012)]
elective official is no longer deemed resigned
when he files his CoC for any position. On the
allegation that the rule was violative of equal
protection, the Court found substantial
distinctions among appointive and elective
officials. [Quinto v. COMELEC (2010)]
determination of the true will of the When to Any time not later than 25
electorate [Sec. 69, B.P. 881] file days from the time of the filing
COMELEC Resolution No. 9599, amending of the certificate of candidacy
Sec. 5 of Rule 24 of the COMELEC Rules of Exclusive Any material representation
Procedure, as amended by COMELEC grounds contained therein as required
Resolution No. 9523: under Section 74 hereof is
(1) If the person declared as a nuisance false.
candidate and whose certificate of
candidacy has been cancelled or denied Elements of the ground:
due course does not have the same name (1) Materiality: The false representation must
and/ or surname as a bona fide candidate pertain to a material fact (and not to a
for the same office, the votes cast for such mere innocuous mistake [Jalover v.
nuisance candidate shall be deemed stray Osmeña (2014)] that affects the right of
pursuant to Section 9 of Rule 23. the candidate to run for the election for
(2) If the person declared as a nuisance which he filed his COC. Such material fact
candidate and whose certificate of refers to a candidate’s eligibility or
candidacy has been cancelled or denied qualification for elective office like
due course has the same name and/or citizenship, residence or status as a
surname as a bona fide candidate for the registered voter.
same office, the votes cast shall not be (2) Intent to Deceive: Aside from the
considered stray but shall be counted and requirement of materiality, the false
tallied for the bona fide candidate. representation must consist of a
However, if there are two or more bona deliberate attempt to mislead, misinform,
fide candidates with the same name or hide a fact that would otherwise render
and/or surname as the nuisance a candidate ineligible. In other words, it
candidate, the votes cast for the nuisance must be made with the intention to
candidate shall be considered as stray deceive the electorate as to the would-be
votes. candidate’s qualifications for public office.
The denial or cancellation of COCs of nuisance [Salic Maruhom v. COMELEC (2009)]
candidates may be "motu proprio or upon a Jurisdiction over a petition to cancel a
verified petition of an interested certificate of candidacy lies with the
party," "subject to an opportunity to be COMELEC in division and not with the
heard." The opportunity to be heard is a COMELEC en banc [Garvida v. Sales
chance "to explain one's side or an opportunity (1997)]
to seek a reconsideration of the action or The ineligibility of the candidate may be
ruling complained of." In election cases, due based not only on the Omnibus Election
process requirements are satisfied "when the Code, but also other provisions of law, e.g.
parties are afforded fair and reasonable perpetual special disqualification under
opportunity to explain their side of the the Revised Penal Code. [See Jalsosjos v.
controversy at hand.” [Timbol v. COMELEC COMELEC (2012)]
(2015)]
The COMELEC cannot itself, in the same
E. PETITION TO DENY OR CANCEL cancellation case, decide the qualification or
CERTIFICATES OF CANDIDACY lack thereof of the candidate.
[Sec. 78, Omnibus Election Code] The facts of qualification must beforehand be
established in a prior proceeding before an
authority properly vested with jurisdiction. The
Who may Any person prior determination of qualification may be by
initiate
statute, by executive order or by a judgment of (2) If the disqualification is not yet final on
a competent court or tribunal. election day: If a candidate is not declared
by final judgment before any election to
be disqualified and he is voted for and
If a candidate cannot be disqualified without a
receives the winning number of votes in
prior finding that he or she is suffering from a such election, the Court or COMELEC
disqualification "provided by law or the shall continue with the trial and hearing
Constitution," neither can the certificate of of the action, inquiry, or protest and upon
candidacy be cancelled or denied due course motion of the complainant or any
on grounds of false representations regarding intervenor, may during the pendency
his or her qualifications, without a prior thereof, order the suspension of the
proclamation of such candidate
authoritative finding that he or she is not
whenever the evidence of his guilt is
qualified, such prior authority being the strong. [Sec. 6, R.A. 6646]
necessary measure by which the falsity of the
representation can be found. The only
If the disqualification is adjudged and becomes
exception that can be conceded are self-
final after election day Maquiling v. COMELEC
evident facts of unquestioned or
(2013) abandoned the rule in Labo, Jr. v.
unquestionable veracity and judicial
confessions. Such are, anyway, bases
COMELEC (1992) that when the voters are well
aware within the realm of notoriety of a
equivalent to prior decisions against which the
candidate's disqualification and still cast their
falsity of representation can be determined.
votes in favor said candidate, then the eligible
[Poe-Llamanzares v. COMELEC, G.R. No.
candidate obtaining the next higher number
221697 (March 8, 2016)]
of votes may be deemed elected. The Court
held that the rule is a mere obiter that further
F. EFFECTS OF DISQUALIFICATION
complicated the rules affecting qualified
N.B. Disqualification (under sec. 68, among candidates who placed second to ineligible
others) does not void a certificate of candidacy ones.
(COC), i.e. the candidate is merely prohibited
from continuing as a candidate. In contrast, The electorate's awareness of the candidate's
Cancellation (under sec. 78) results in the COC disqualification is not a prerequisite for the
being void ab initio, i.e. the person was never disqualification to attach to the candidate.
a valid candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible.
i. Rules if the Candidate is Disqualified Knowledge by the electorate of a candidate's
(1) If the disqualification becomes final before disqualification is not necessary before a
election day: Any candidate who has been qualified candidate who placed second to a
declared by final judgment to be
disqualifiedshall not be voted for and the disqualifled one can be proclaimed as the
votes cast for him shall not be counted. winner. The second-placer in the vote count is
actually the first-placer among the qualified
Hence, generally, if Candidate X has
candidates.
already been disqualified before election
day but still garnered the highest number
That the disqualified candidate has already
of votes, those votes are considered as
been proclaimed and has assumed office is of
stray votes. The candidate with the next
no moment. The subsequent disqualification
highest number of votes will be
based on a substantive ground that existed
proclaimed. [See Codilla v. De Venecia,
prior to the filing of the certificate of candidacy
G.R. No. 150605 (2002)]
voids not only the COC but also the
proclamation.
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G. WITHDRAWAL OF CANDIDATES
A person who has filed a certificate of
candidacy may, prior to the election, withdraw
the same by submitting to the office
concerned a written declaration under oath.
[Sec. 73, B.P. Blg. 881]
A.3. EQUAL ACCESS TO MEDIA TIME AND (2) Take a leave of absence from his/her
SPACE work as such during the campaign
period
Print advertisements shall not exceed 1/4
page, in broad sheet and 1/2 page in tabloids
thrice a week per newspaper, magazine or No movie, cinematograph or documentary
other publications. shall be publicly exhibited in a theater,
television station or any public forum during
Bona fide candidates and registered political the campaign period which:
parties running for nationally elective office (1) Portrays the life or biography of a
are entitled to not more than 120 mins of TV candidate
advertisement and 180 mins of radio (2) Is portrayed by an actor or media
advertisement whether by purchase or by personality who is himself a candidate.
donation. [Sec. 6, R.A. 9006]
Bona fide candidates and registered political N.B. The airtime rules are applied on a per
parties running for locally elective office are station basis. COMELEC Resolution No. 9615,
entitled to not more than 60 mins of TV which adopts the "aggregate-based" airtime
advertisement and 90 mins of radio limits (i.e. applying the limits to all TV and
advertisement whether by purchase or by radio stations taken as a whole) unreasonably
donation. restricts the guaranteed freedom of speech
and of the press. [GMA Network, Inc. v.
Broadcast stations or entities are required to Commission on Elections, G.R. No. 205357
submit copies of their broadcast logs and (2014)]
certificates of performance to the COMELEC
for the review and verification of the frequency, A.4. ELECTION SURVEYS
date, time and duration of advertisement Definition: The measurement of opinions and
broadcast for any candidate or political party. perceptions of the voters as regards a
candidate's popularity, qualifications,
All mass media entities are required to furnish platforms or a matter of public discussion in
the COMELEC with a copy of all contracts for relation to the election, including voters'
advertising, promoting or opposing any preference for candidates or publicly
political party or the candidacy of any person discussed issues during the campaign period.
for public office within 5 days after its signing. N.B. Sec. 5.4 of RA 9006 providing that
No franchise or permit to operate a radio or TV surveys affecting national candidates shall not
station shall be granted or issued, suspended be published 15 days before an election and
or cancelled during the election period. surveys affecting local candidates shall not be
published 7 days before an election is
Any mass media columnist, commentator, unconstitutional because (1) it imposes a prior
announcer, reporter, on-air correspondent or restraint on the freedom of expression, (2) it is
personality who is a candidate for any elective a direct and total suppression of a category of
public office or is a campaign volunteer for or expression even though such suppression is
employed or retained in any capacity by any only for a limited period, and (3) the
candidate or political party shall: governmental interest sought to be promoted
(1) Be deemed resigned, if so required by can be achieved by means other than the
their employer or
suppression of the freedom of expression.
[Social Weather Stations, Inc. v. COMELEC
(2001)]
PAGE 335 OF 406
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Provincial superintendent of schools City superintendent of schools Most senior district school supervisor
or in his absence, a principal of the
school district or elementary school
In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the
members, COMELEC may appoint the following as substitutes, in the order named:
Province City Municipality
Chairman
Ranking lawyer of the COMELEC Ranking lawyer of the COMELEC Ranking lawyer of the COMELEC
Vice-Chairman
-Provincial auditor -City auditor or equivalent; -Municipal Administrator;
-Registrar of Deeds -Registrar of Deeds; -Municipal Assessor;
-Clerk of Court nominated by the -Clerk of Court nominated by the -Clerk of Court nominated by the
Executive Judge of the RTC; Executive Judge of the RTC; Executive Judge of the MTC;
-Any other available appointive -Any other available appointive city -Any other available appointive
provincial official official municipal official
Member
Same as for Vice-Chairman Same as for Vice-Chairman Same as for Vice-Chairman
IX. Remedies and for the office for which the certificate of
candidacy has been filed and thus prevent a
Jurisdiction in faithful determination of the true will of the
electorate. [B.P. Blg. 881]
Election Law
B. PETITION FOR DISQUALIFICATION
A. PETITION NOT TO GIVE DUE COURSE Section 68. Disqualifications. - Any
TO OR CANCEL A CERTIFICATE OF candidate who, in an action or protest in
CANDIDACY which he is a party is declared by final
Section 78. Petition to deny due course to or decision of a competent court guilty of, or
cancel a certificate of candidacy. - A verified found by the Commission of having (a) given
petition seeking to deny due course or to money or other material consideration to
cancel a certificate of candidacy may be influence, induce or corrupt the voters or
filed by the person exclusively on the ground public officials performing electoral
that any material representation contained functions; (b) committed acts of terrorism to
therein as required under Section 74 hereof enhance his candidacy; (c) spent in his
is false. The petition may be filed at any time election campaign an amount in excess of
not later than twenty-five days from the that allowed by this Code; (d) solicited,
time of the filing of the certificate of received or made any contribution
candidacy and shall be decided, after due prohibited under Sections 89, 95, 96, 97
notice and hearing, not later than fifteen and 104; or (e) violated any of Sections 80,
days before the election. 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, subparagraph 6, shall be
Section 69. Nuisance candidates. - The disqualified from continuing as a candidate,
Commission may motu proprio or upon a or if he has been elected, from holding the
verified petition of an interested party, office. Any person who is a permanent
refuse to give due course to or cancel a resident of or an immigrant to a foreign
certificate of candidacy if it is shown that country shall not be qualified to run for any
said certificate has been filed to put the elective office under this Code, unless said
election process in mockery or disrepute or person has waived his status as permanent
to cause confusion among the voters by the resident or immigrant of a foreign country in
similarity of the names of the registered accordance with the residence requirement
candidates or by other circumstances or provided for in the election laws. [B.P. Blg.
acts which clearly demonstrate that the 881]
candidate has no bona fide intention to run
(3) Unless a shorter period is deemed For the positions of President, Vice-President,
necessary by the circumstances, within 2 Senator, and Member of the House of
days from receipt of the notice of hearing, Representatives [Sec. 15, R.A. 7166]
any interested party may file an opposition
Under Sec. 15 of R.A. 7166, what is allowed is
with the Law Department of the COMELEC.
the correction of "manifest errors in the
(4) The COMELEC proceeds to hear the certificate of canvass or election returns",
petition. The COMELEC may delegate the either motu proprio by the appropriate
hearing of the case and the reception of
evidence to any of its officials who are canvassing authority or upon written
members of the Philippine Bar. complaint of an interested person. To be
manifest, the errors must appear on the face
(5) The COMELEC then decides whether to
of the certificates of canvass or election
grant or deny the petition. This lies within
the exclusive prerogative of the COMELEC. returns sought to be corrected and/or
objections thereto must have been made
before the board of canvassers and specifically
D. PRE-PROCLAMATION noted in the minutes of their respective
CONTROVERSY proceedings. [Chavez v. COMELEC (1992)]
Pre-Proclamation Controversy – Questions
regarding proceedings of the board of D.3. NATURE OF PROCEEDINGS
canvassers which may be raised by any Heard summarily by the COMELEC after due
candidate or by any registered political party notice and hearing. This is because canvass
or coalition of political parties, or by any and proclamation should be delayed as little
accredited and participating party list group, as possible.
before the board or directly with the
Commission [Rule 3, Sec. 1, COMELEC D.4. ISSUES THAT MAY BE RAISED
Resolution No. 8804]
This enumeration is restrictive and exclusive:
(1) Illegal composition or proceedings of the
COMELEC Resolution No. 8804 applies to board of election canvassers;
election disputes under the Automated
(2) Canvassed election returns are either:
Election System (AES) using the Precinct
Count Optical Scan (PCOS) and shall cover (a) Incomplete
pre-proclamation controversies and election (b) Contain material defects;
protests [Rule 1, Sec. 2, COMELEC Resolution
(c) Appear to be tampered with or
No. 8804] falsified; or
(d) Contain discrepancies in the same
D.1. JURISDICTION
returns or in other authentic
COMELEC has exclusive jurisdiction over pre- copies;
proclamation cases. [Rule 3, Sec. 2, COMELEC (3) The election returns were:
Resolution No. 8804]. It may order, motu
proprio or upon written petition, the partial or (a) Prepared under duress, threats,
coercion, intimidation or
total suspension of the proclamation of any
candidate-elect or annul partially or totally (b) Obviously manufactured or not
any proclamation, if one has been made. [Sec. authentic
242, B.P. 881] (4) Substituted or fraudulent returns in
controverted polling places were
canvassed, the results of which materially
D.2. WHEN NOT ALLOWED affected the standing of the aggrieved
candidate(s). [Sec. 243, B.P. 881]
(5) Correction of manifest errors [Sec. 4(e), (5) Challenges directed against the Board of
Rule 27, COMELEC Rules of Procedure] Election Inspectors [Ututalum v.
COMELEC (supra)]
N.B. In Rule 3, Sec. 1 of COMELEC Resolution
No. 8804 (promulgated March 22, 2010) there (6) Fraud, terrorism and other illegal
are only 2 issues covered in a pre- electoral practices. These are properly
within the office of election contests over
proclamation controversy: (1) illegal
which electoral tribunals have sole,
composition of the BOC, and (2) illegal exclusive jurisdiction. [Loong v. COMELEC,
proceedings of the BOC. (1996)]
If filed before the BOC Within 5 days, the COMELEC shall render its
Upon receipt of the verified petition, the BOC decision on appeal
shall immediately announce the fact of the
filing of said petition and the ground/s raised v. If filed directly with the Commission
Upon receipt of the petition by the COMELEC,
BOC shall immediately deliberate on the the Clerk of the Commission shall docket the
petition and make a prompt resolution within same and send summons to the BOC
24 hrs; reduced into writing concerned with an order directing it to submit,
through the fastest verifiable means available,
If the decision is in favor of the petition, it shall its answer within 48 hrs.
immediately inform the Commission of its COMELEC en banc shall resolve the petition
resolution; the Commission shall make within 5 days from the filing of the answer or
appropriate action upon the expiration of the period to file the
same
In no case shall the receipt by the BOC of the
electronically transmitted precinct, municipal, D.7 EFFECT OF FILING OF PRE-
city or provincial results, be suspended by the PROCLAMATION CONTROVERSY
filing of the said petition The period to file an election contest shall be
suspended during the pendency of the pre-
iv. Appeal of an adverse resolution proclamation contest in the COMELEC or the
The petitioner may appeal an adverse Supreme Court.
resolution by the BOC to the COMELEC, by
notifying the BOC of his or her intent to appeal, The recourse by certiorari to the Supreme
through a verbal and a written and verified Court, which is a right secured to the defeated
notice of appeal party under Section 7, Title A, Article IX of the
1987 Constitution, is part of the annulment
Notice on the BOC shall not suspend the proceeding. The case is not over until the
formal proclamation of the official results of Supreme Court has given its verdict, hence,
the election until the final resolution of the the computation of the ten-day-period for
appeal filing an election contest does not begin until
that verdict has been handed down by the
Supreme Court. [Gallardo v. Rimando (1990)]
48 hrs. from such notice to the BOC, the
petitioner shall submit before the Board a The right of the prevailing party in the pre-
Memorandum on appeal stating the reasons proclamation contest to the execution of
why the resolution being questioned is COMELEC’s decision does not bar the losing
erroneous and should be reversed
D.9. EFFECT OF FILING PETITION TO 3. What was filed was not really a
ANNUL OR SUSPEND PROCLAMATION petition for quo warranto or an
election protest but a petition to annul
The filing of the petition suspends the running a proclamation;
of the period to file an election protest or quo
4. The filing of a quo warranto petition or
warranto. [Sec. 248, B.P. 881] an election protest was expressly
No law provides for a reglementary period made without prejudice to the pre-
within which to file a petition for the proclamation controversy or was
annulment of an election if there is as yet no made ad cautelam; and
proclamation. [Loong v. COMELEC (supra)] 5. The proclamation was null and void.
[Samad v. COMELEC, (1993)]
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(2) RTC: over petitions for quo warranto Court or tribunal The court determines
involving municipal officials [Sec. 253. BP cannot declare the who of the parties has
881]
protestant (or the legal title to the office
(3) MTC: over petitions for quo warranto candidate who
involving barangay officials [Sec. 253. BP obtained the
881]
second highest
number of votes) as
F.4. GROUNDS having been elected
(1) Ineligibility
(2) Disloyalty to the Republic F.5. EXECUTION PENDING APPEAL
The trial court may grant a motion for
Distinction Between an Election Protest and execution pending appeal because the mere
Quo Warranto (Lokin v. COMELEC, supra) filing of an appeal does not divest the trial
court of its jurisdiction over a case and to
Election Protest Quo Warranto
resolve pending incidents. The grant must be
Strictly a contest Refers to questions based on “valid and special reasons,” i.e.:
between the defeated of disloyalty or (1) The public interest is involved or the will of
and winning ineligibility of the the electorate
candidates based on winning candidate. (2) The shortness of the remaining portion of
grounds of election It is a proceeding to the term
frauds or irregularities unseat the (3) The length of time that the election
as to who actually ineligible person contest has been pending
obtained the majority from office, but not
The rule is strictly construed against the
of the legal votes and to install the
movant and only when the reason is of such
therefore is entitled to protestant in place
urgency will such execution pending appeal
hold the office
be allowed, as it is an exception to the general
Can only be filed by a Can be filed by any rule
candidate who has voter. It is not
duly filed a certificate considered a
of candidacy and has contest where the
been voted for parties strive for
supremacy
A protestee may be While the
ousted and the respondent may be
protestant seated in unseated, the
the office vacated petitioner will not
be seated
(6) Organization or maintenance of reaction (1) Imprisonment of not less than 1 year but
forces, strike forces, or similar forces not more than 6 years (without probation);
during the election period [Sec. 261u, B.P.
(2) Deportation after service of sentence
881]
POLITICAL LAW
PUBLIC
INTERNATIONAL
LAW
Treaty obligation is based on consent. No • Evidence: The following acts may evidence
state may be bound by a treaty obligation state practice: (1) Diplomatic
unless it has so consented. [VCLT, art. 34] correspondence; (2) Policy statements; (3)
Under the principle of pactasuntservanda, a Press releases; (4) Opinions of official
state party to a treaty is bound to comply with legal advisers; (5) Official manuals on
the obligations it assumed under such treaty legal decisions (executive decisions and
in good faith. [VCLT, art. 26] practices, and government comments on
drafts by the ILC); (6) International and
national judicial decisions; (7) Recitals in
treaties and international instruments; (8)
C. CUSTOMARY INTERNATIONAL LAW
Practice of international organs [HARRIS].
• UN General Assembly resolutionsare
i. ELEMENTS generally just recommendations.
Before a norm may become customary However,such resolutions may be an
international law binding on all States, there evidence of state practice that is relevant
must be: in the development of custom. [See
Nicaragua Case (ICJ, 1986)]
(a) State practice (that is general and
consistent); and
(b) Opiniojurissivenecessitates , a belief that b) Opiniojurissive necessitates: This refers to
this practice is rendered obligatory by the the belief on the part of states that a
existence of a rule of law requiring it. particular practice is required by law, and
[North Sea Continental Shelf Cases (ICJ, not because of courtesy or political
1969)] expediency [North Sea Continental Shelf
Cases (ICJ, 1969)].
Unlike treaties, customary norms are legally
binding upon all States regardless of whether • It is the existence of opiniojuris that
they consent, subject to the persistent objector distinguishes binding custom from mere
rule [infra]. usage, from comity, and from courtesy or
protocol.
No particular length of time is required for the
formation of customary norms so long as the
existence of the two elements of custom are ii. SCOPE
manifest[North Sea Continental Shelf Cases(ICJ,
1969)] Custom may be:
The number of parties, the explicit acceptance (1) General, which isbinding upon all or most
of rules of law, and, in some cases, the states; or
declaratory nature of the provisions produces (2) Particular, which is binding only between
a strong law-creating effect at least as great two or among a few states.
as the general practice considered sufficient to
support a customary rule [BROWNLIE]. • The ICJ has recognized the possibility of
regional custom [Asylum Case (ICJ, 1950)]
and of bilateral custom [Right of Passage
a) State practice: over Indian Territory Case (ICJ, 1960)].
• The practice must be consistent and
general. However, consistency requires
substantial uniformity and not necessarily
complete uniformity in practice [Asylum
Case (ICJ, 1950)]. Generality likewise does
not require universality.
a) Principle of Persistent Objector
• The absence of protest could be
considered evidence of the binding nature • When a State has continuously objected to
of customary practice [AKEHURST]. a new customary norm at the time when it
PAGE 361 OF 406
UP LAW BOC PUBLIC INTERNATIONAL LAW POLITICAL LAW
is yet in the process of formation, by such (2) Pactasuntservanda [La Chemise Lacoste v.
persistent objection the norm will not be Fernandez (1984)];
applicable as against that state
(3) Human rights as defined under the
[MAGALLONA].
Universal Declaration of Human Rights
• For instance, the ten-mile rule (in the [Reyes v. Bagatsing (1983)];
delimitation of territorial waters across (4) The principle of restrictive sovereign
bays) would appear to be inapplicable immunity [Sanders v. Veridiano (1988)];
against Norway, inasmuch as she has
always opposed any attempt to apply it to (5) The principle in diplomatic law that the
the Norwegian coast [Anglo-Norwegian receiving state has the special duty to
Fisheries Case] protect the premises of the diplomatic
mission of the sending state [Reyes v.
• Some commentators argue, however, that Bagatsing (1983)];
there is no state practice to support this
(6) The right of a citizen to return to his own
principle (EVANS).
country [Marcos v. Manglapus (1989)];
(7) The principle that “a foreign army allowed
b) Duality of norms to march through friendly country or to be
stationed in it, by permission of its
• It is possible for a norm of government or sovereign, is exempt from
international law to exist both as a criminal jurisdiction of the place” [Raquiza
customary norm and a conventional v. Bradford (1945)];
norm [e.g., prohibition against the use
of force]. Such norms are said to be of (8) The principle that judicial acts, not of a
dual character. political complexion of a de facto
government established by the military
• Norms of dual character come into occupant in an enemy territory, are valid
being when (1) a treaty provision under international law [Montebon v.
simply restates a customary norm; (2) Director of Prisons (1947)];
a treaty provision constitutes evidence
of custom; or (3) a treaty provision (9) The principle that private property seized
crystallizes into a customary norm. and used by the enemy in times of war
under circumstances not constituting
• For a treaty provision to crystallize into valid requisition does not become enemy
custom, the provision must be norm- property and its private ownership is
creating or law-making, creating legal retained, the enemy having acquired only
obligations which are not dissolved by its temporary use [Noceda v. Escobar
their fulfillment. [North Sea (1950)];
Continental Shelf Cases (ICJ, 1969)]
(10) The principle that a State has the right to
• The customary norm retains a protect itself and its revenues, a right not
separate identity even if its content is limited to its own territory but extending
identical with that of a treaty norm. to the high seas [Asaali v. Commissioner
Thus, a State that cannot hold another (1968)].
State responsible for a breach of a
treaty obligation can still hold the
erring state responsible for the breach
of the identical customary norm D. GENERAL PRINCIPLES OF LAW
[Nicaragua Case (ICJ, 1986)].
These refer to those general principles in
c) Philippine practice: Customary norms municipal law (particularly those of private
identified by the Supreme Court law) that may be appropriated to apply to the
(1) Rules and principles of land warfare and relations of states [OPPENHEIM].
of humanitarian law under the Hague The following principles are considered
Convention and the Geneva Convention general principles of international law:
[Kuroda v. Jalandoni (1949)];
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Governments de facto and de jure • A state must be free from outside control in
conducting foreign and internal affairs, i.e.
• Government de jure: Government from law, sovereign and independent.
that is, one with a color of legitimacy.
• It is sufficient for a State to possess external
• Government de facto: One that governs appearance of capacity to enter into
without a mandate of law. So long as it is in international relations. [BROWNLIE] That a
place, it may command obedience from the State may be acting under the direction of
inhabitants of the occupied area.The de another State does not affect this
facto ruler may suspend laws and enact requirement. [See Treaty of Friendship (Ind.
new ones. and Bhu.), where Bhutan agreed to be
guided in its external relations by Indian
advice.] [AUST]
Kinds of De Facto Governments
1. De facto Proper / Government by
Concepts on Creation of States
Revolution: That which usurps, either by
force or the will of the majority, the legal
government and maintains control
i. EFFECTIVENESS
against it;
The issue of possession of the status of a state
2. Government by paramount force /
(statehood) under international law,
Government by Occupation: Results from
traditionally defined as “effectiveness,” is
the occupation of a state or a part thereof
closely linked to the concept of sovereignty,
by invading forces in time of war; and
although the latter is not itself a criterion for
3. Government by Secession:Government statehood. Instead, it is the “totality of
established as an independent international rights and duties recognized by
government by inhabitants of a country international law” as embodied in an
who rise in insurrection against the parent independent territorial unit that is the state. In
state. [See Co Kim Cham v. Valdez Tan Keh other words, an entity endowed with
(1945)] statehood has sovereignty, but sovereignty
itself is not a precondition but only an attribute,
or “an incident or consequence of statehood.”
Jus Postlimium: Acts (executive, legislative,
ii. DECLARATION OF INDEPENDENCE
and judicial) done under the control of a de
facto government, when they are not of a General Rule:International law contains to
political complexion remain goodeven upon prohibition on declarations of independence.
the restoration of the legitimate government.
Exception: If the declaration is connected with
[See Co Kim Cham v. Valdez Tan Keh (1945)]
(1) the unlawful use of force or (2) other
• Conversely, the establishment of a de egregious violations of jus cogensnorms.
facto government does not by itself
Through internal self-determination, the state • Not a legal duty:As a public act of state,
recognizes a people’s pursuit of its political, recognition is an optional and political act
economic, social and cultural development and there is no legal duty in this regard.
within the framework of an existing state. Two views:
A right to external self-determination (which (1) Declaratory School: Recognition is a mere
in this case potentially takes the form of the declaration or acknowledgement of an
assertion of a right to unilateral secession) existing state of law and fact, legal
arises in only the most extreme of cases and, personality having been previously
even then, under carefully defined conferred by operation of law. This is the
circumstances. [Akbayan v. Aquino (2008, on prevailing view.
the MOA-AD) citing In re Secession of Quebec
(Can., 1998) (2) Constitutive School: The political act of
recognition is a precondition to the
existence of legal rights of a state. In its
Secession: Secession is the effort of a group or logical extreme, this is to say that the very
section of a state to withdraw itself from the personality of a state depends on the
political and constitutional authority of that political decision of other states. This is the
state, with a view to achieving statehood for a minority view. [BROWNLIE]
new territorial unit on the international
plane.[In re Secession of Quebec (Can., 1998)]
ii. LEGAL FUNCTIONS
The typical act of recognition has two legal
Grounds for Secession functions:
Colonization; (1) Evidence of statehood: The determination
Alien subjugation, domination, or exploitation of statehood as a question of law which
outside the colonial context; may have evidential effect before a
tribunal; and
Remedial Secession: When a people is
blocked from the meaningful exercise of its (2) Establishment of relations: A condition of
right to self-determination internally, it is the establishment of formal, optional, and
entitled, as a last resort, to exercise it by bilateral relations, including diplomatic
secession. [In re Secession of Quebec (Can., relations and the conclusion of treaties.
1998)] [BROWNLIE]
(4) Retroactive validity: All acts of the international organization. Thus, legal
recognized state or government are personality in this context is a relative concept.
validated retroactively, preventing the [MAGALLONA]
recognizing state from passing upon their
Exception: United Nations: The United Nations
legality in its own court.
has objective international personality. Its
personality is binding on the whole
international community, including States
Doctrines on Recognition of De Facto
who are not UN members. [Reparations for
Governments
Injuries Advisory Opinion(ICJ, 1949)]
(1) Wilson/Tobar Doctrine: Also known
as “Doctrine of Legitimacy” or
“Policy of Democratic Legitimacy.” D.1. PRECONDITIONS FOR
Holds that governments which INTERNATIONAL PERSONALITY
came into power by extra-
(1) It must constitute a permanent association
constitutional means [e.g.
of states, with lawful objects, equipped
revolution, civil war, coup d’etat or
with organs;
other forms of internal violence]
should not be recognised, at least (2) There must be a distinction, in terms of
until the change had been accepted legal powers and purposes, between the
by the people.[After US President organization and its member states; and
Wilson, 1913 and Ecuadorian FM
(3) It must have legal powers that it may
Tobar (1907)]
exercise on the international plane and not
(2) Stimson Doctrine:Doctrine of not solely within the national systems of one or
recognizing any situation, treaty or more states. [BROWNLIE]
agreement brought about by non-
legal means. Precludes recognition
of any government established as a D.2. CAPACITY TO BRING CLAIM FOR
result of external aggression. [After REPARATION OF THE UNITED NATIONS
US Sec. of State Henry Stimson
• As the “supreme type of international
(1932)]
organization,” the UN must be deemed to
(3) Estrada Doctrine:Automatic have such powerswhich, though not
recognition of governments in all expressly granted in its Charter, are
circumstances. Posits thatdealing or conferred upon it by necessary implication
not dealing with the government as being essential to the performance of its
established through a political duties.
upheaval is not a judgment on the
legitimacy of the said government. • Thus, though the UN Charter did not
[After Mexican Minister Genaro expressly clothe the UN with the capacity to
Estrada (1930)] [SHAW] bring an international claim for reparations,
the UN nevertheless possessed functional
personality. [Reparations for Injuries
Advisory Opinion (ICJ, 1949)]
D. INTERNATIONAL ORGANIZATIONS
Generally, special personality: The status and
powers of an international organization is D.3. INDIVIDUALS
determined by agreement and not by general
or customary international law. They are • Special personality: Individuals may
considered subjects of international law “if assume the status of subjects of
their legal personality is established by their international law only on the basis of
constituent instrument.” agreement by states and in specific context,
not in accordance with general or
Further, its constituent rights and duties, or customary international law.
capacities and immunities, are limited to
those set forth in the treaty creating the
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Examples
(1) UNCLOS, art. 187(c)-(e) provides for
jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS over disputes
between parties to contracts relating to the V. Diplomatic and
exploitation of marine resources. Parties to
such contracts may be natural or juridical Consular Law
persons.
(2) The Claims Settlement Declaration of 1981
between US and Iran provides for direct A. DIPLOMATIC INTERCOURSE
access to the Iran-US Claims Tribunal to Diplomatic intercourse, also referred to as the
individuals for the settlement of their right of legation, is the right of a state to send
claims involving more than $250,000 and receive diplomatic missions, which
either against Iran or the US. enables states to carry on friendly intercourse.
(3) The Mixed Claims Tribunals established in Diplomatic relationsand diplomatic
the Treaties of Peace concluded at the end missionsare separately established by mutual
of World War I provided for locus standiof consent. [See Vienna Conv. on Diplomatic Rel.
individuals in actions against states (“VCRD”), art. 2]
relating to contracts, debts, and property
adversely affected by the war. A State may have diplomatic relations without
a diplomatic mission, e.g. through non-
(4) The London Agreement of the International resident ambassadors. [MAGALLONA]
Military Tribunal at Nuremberg, relating to
crimes against peace, war crimes and
crimes against humanity, imposed duties A.1 AGENTS OF DIPLOMATIC
and liabilities upon individuals as well as INTERCOURSE
upon states.
(5) Convention on the Prevention and
Punishment of the Crime of Genocide, art. VI a) Head of state
defined “parties charged with genocide” as The head of State represents the sovereignty
including individuals. [MAGALLONA] of the State, and enjoys the right to special
(6) The International Criminal Court has protection for his physical safety and the
jurisdiction over individuals who commit preservation of his honor and reputation.
genocide, crimes against humanity and war Upon the principle of extraterritoriality, his
crimes, subject to conditions under the ICC quarters, archives, property and means of
Statute. [ICC Stat., art. 25(1) in relation to art. transportation are inviolate.
5]
He is immune from criminal and civil
jurisdiction, except when he himself is the
plaintiff, and is not subject to tax or exchange
or currency restrictions.
b) Foreign office
The body entrusted with the conduct of actual
day-to-day foreign affairs.
It is headed by a secretary or a minister who, in
proper cases, may make binding declarations
on behalf of his government [Eastern
Greenland Case (PCIJ, 1933)]
c) Diplomatic corps
This refers to the collectivity of all diplomatic (7) May protect the interest of a third State by
envoys accredited to a state composed of: agreement with the receiving State, if
there is no diplomatic relations between
(1) Head of mission, classified into:
the third state and the receiving state.
a) Ambassadors or nuncios,accredited [VCDR, art. 46] [MAGALLONA]
to heads of state, and other heads of
mission of equivalent rank;
A.3. IMMUNITIES AND PRIVILEGES
b) Envoys, Ministers and Internuncios,
accredited to heads of state;
c) Charges d’affaires, accredited to Theoretical bases: Diplomatic immunities and
Ministers of Foreign Affairs; privileges have been justified under the
following theories:
(2) Diplomatic staff, engaged in diplomatic
activities and are accorded diplomatic (1) Extraterritoriality theory: The premises of
rank; the diplomatic mission represent a sort of
extension of the territory of the sending
(3) Administrative and technical staff, those
State.
employed in the administrative and
technical service of the mission; (2) Representational theory: The diplomatic
mission personifies the sending State.
(4) Service staff, engaged in the domestic
service of the mission. [NACHURA] (3) Functional necessity theory: The privileges
and immunities are necessary to enable the
diplomatic mission to perform its functions.
In the Philippines, the President appoints, [MAGALLONA] This theory was adopted by
sends and instructs the diplomatic and the ILC when it drafted the draft articles of
consular representatives. [CONST. art. VII, sec. the VCRD. [Id.]
16]
a) Personal inviolability
A.2. FUNCTIONS AND DUTIES OF AGENTS Aspects
(1) Represent the sending State in the (1) The duty of the receiving State to
receiving State; refrain from exercising its sovereign
(2) Protect in the receiving State the interests rights, in particular law enforcement
rights against the diplomat;
of the sending State and its nationals,
within the limits allowed by international General rule: The diplomatic representative
law; shall not be liable to any form of arrest or
detention.
(3) Negotiate with the government of the
receiving State; Exception: The diplomatic envoy may be
arrested temporarily in case of urgent
(4) Ascertain, by all lawful means, the
danger, such as when he commits an act of
conditions and developments in the
receiving State and reporting the same to violence which makes it necessary to put
him under restraint for the purpose of
the sending State;
preventing similar acts. [Diplomatic and
(5) Promote friendly relations between the Consular Staff in Tehran Case (ICJ, 1980)].
sending State and receiving State, and
(2) The duty to treat him with due
developing their economic, cultural and
respect and protect his person,
scientific relations. [VCRD, art. 3(1)]
freedom or dignity from physical
(6) If diplomatic relation is severed, entrust interference by other persons.
the protection of its nationals to the [VCRD, art. 22]
diplomatic mission of a third state
acceptable to the receiving state. [VCDR, • The receiving State shall treat him with
art. 45] due respect and take all steps to prevent
any attack on his person, freedom or peace officers cannot break into such premises
dignity [VCDR. art. 29]. to apprehend the same.
The fugitive should, however, be surrendered
upon demand by local authorities, except
Scope: The inviolability of a diplomatic agent
when the right of asylum exists.
covers:
(1) His private residence;
(2) Papers and correspondence; c) Right to official communication
(3) Property, generally. The envoy is entitled to fully and freely
communicate with his government.
b) Inviolability of premises of the mission (1) The receiving state shall permit and
and archives protect free communication on the part of
the mission for all official purposes;
This consists of two elements:
(2) The mission may employ all appropriate
(1) The duty of the receiving state to refrain
means to send and receive messages by
from entering the premises, except with
any of the usual modes of communication
the consent of the head of the mission;
or by diplomatic courier, which shall enjoy
and
inviolability;
(2) The special duty of the receiving state to
(3) The official correspondence of the mission
protect the premises against any intrusion
is inviolable; and
or damage and to prevent any disturbance
of the peace of the mission or impairment (4) The diplomatic bag shall not be opened or
of its dignity. detained [VCDR, art. 27].
Exceptions: Exceptions:
(1) A real action relating to private As to the sending state, exemption does not
immovable property situated in the include dues or taxes which represent
territory of the receiving state, unless he payment for specific services rendered. [VCDR,
holds it in behalf of the sending state for art. 23(1)]
the purposes of the mission;
(1) As to diplomatic agents, the following are The relations which come into existence
not included: between two States by reason of the fact that
consular functions are exercised by authorities
(a) Indirect taxes incorporated in the price of
of one State in the territory of the other.
goods purchased or services availed;
(Magallona)
(b) Dues and taxes on private immovable
property situated in the receiving state;
B.1. ESTABLISHMENT AND SEVERANCE
(c) Estate, succession or inheritance taxes
levied by the receiving state; Consular relations are established by mutual
consent. [Vienna Convention on Consular
(d) Dues and taxes on private income sourced Relations (“VCCR”), art. 2]
within the receiving state;
The consent given to the establishment of
(e) Capital taxes on investments in diplomatic relations between two States
commercial ventures in the receiving implies consent to the establishment of
state; consular relations, unless otherwise stated.
(f) Charges levied for specific services [Id.]
rendered; But the severance of diplomatic relations shall
(g) Registration, court or record fees, not ipso facto involve the severance of
mortgage dues and stamp duty, with consular relations. [Id.]
respect to immovable property. [VCDR, The above are rules of customary international
art. 34] law. [MAGALLONA, citing ILC]
(2) Administrative and technical staff: (2) Issuance of visa (permit to visit his country);
Members of the administrative and and
technical staff of the diplomatic mission, (3) Such other functions as are designed to
as well as members of their families protect nationals of the appointing state.
forming part of their respective [VCCR, art. 9]
households, who are not nationals of or
permanent residents in the receiving
state; B.3. RANKS
(3) Service staff: Members of the service staff (1) Consul general heads several consular
of the diplomatic mission, who are not districts, or one exceptionally large
nationals of or permanent residents in the consular district;
receiving state, with respect to
emoluments they receive by reason of (2) Consul is in charge of a small district or
their employment; town or port;
(4) Private servants: Private servants of (3) Vice Consulassists the consul;
members of the mission if they are not (4) Consular agent isone entrusted with the
nationals or permanent residents of the performance of certain functions by the
receiving state, with respect to consul.
emoluments they receive by reason of
their employment.[VCDR, art. 37]
B.4. CONSULAR FUNCTIONS
Consular functions include the following:
B. CONSULAR RELATIONS
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(1) Protecting the interests of the sending N.B. However, the VCCR violation does not
state in the territory of the receiving state; automatically result in the partial or total
annulment of conviction or sentence. [Avena
(2) Protecting and assisting the nationals of
Case (ICJ, 2004)]
the sending state;
(3) Furthering the development of commercial,
economic, cultural and scientific relations
between the sending state and the
B.6. NECESSARY DOCUMENTS
receiving state and promoting friendly
relations between them; The following documents are necessary for the
assumption of consular functions:
(4) Ascertaining by all lawful means the
conditions and developments in the (1) Letters patent (letter de provision): The
commercial, economic, and cultural and letter of appointment or commission
scientific life of the receiving state, which is transmitted by the sending state
reporting thereon to the government of the to the Secretary of Foreign Affairs of the
sending state, and giving information to country where the consul is to serve;
persons interested; [VCCR, art. 11] and
(5) Issuing passports and travel documents to (2) Exequatur: The authorization given to the
nationals of the sending state and visas and consul by the sovereign of the receiving
travel documents to persons wishing to State, allowing him to exercise his
travel to the sending state; function within the territory. [VCCR, art.
12(1)]
(6) Acting as notary, civil registrar and similar
administrative capacities; and o The receiving State may refuse to
give an exequatur and is not required
(7) Exercising rights of supervision and
to give its reasons for refusal. [VCCR,
inspection pertaining to the sending state
art. 12(2)]
as flag state and state of registry of aircraft.
exclusively used for consular work, except The inviolability of archives is unconditional.
with the consent of the head of the They shall be inviolable at all times and
consular post, his designee, or the head of wherever they may be. [VCCR, art. 33]
the diplomatic mission; but consent of the
consular head may be assumed in case of
fire or other disaster requiring prompt
protective action;
• Note that this “assumed consent” is d) Freedom of communication
not available as to the inviolability of
the premises of the mission. (1) The receiving state shall permit and
protect freedom of information on the part
(2) The receiving state has the special duty to of the consular post for all official
take all appropriate steps to protect the purposes;
consular premises against intrusion or
damage and to prevent any disturbance of (2) In communicating with the government,
peace of the consular post or impairment the diplomatic missions and other
of its dignity; consular posts of the sending state, the
consular post may employ all appropriate
(3) Consular premises, their furnishings, the means, including diplomatic or consular
property of the consular post and its bags and messages in code or cipher;
means of transport shall be immune from
any form of requisition for purposes of (3) The official correspondence of the
national defense or public utility; consular post shall be inviolable;
(4) In case of consular premises, their (4) The consular bag shall neither be opened
furnishings, the property of the consular nor detained. [VCCR, art. 35]
post and its means of transport are
expropriated for national defense or
public utility, all possible steps shall be The receiving state may, however, request that
taken to avoid impeding the performance the consular bag be opened if the authorities
of consular functions, and prompt, have serious reasons to believe that the bag
adequate and effective compensation contains something other than
shall be paid to the sending state. [VCCR, correspondence, documents or articles
art. 31] intended exclusively for official use.
(1) If the request is accepted, the bag may be
opened in the presence of the authorized
Consular premises refer to “the buildings or representative of the sending state;
parts of buildings and the land ancillary
thereto, irrespective of ownership, used (2) If the request is refused, the bag shall be
exclusively for the purposes of consular post.” returned to its place of origin. [VCCR, art.
Also, consular premises have: 35]
(1) Exemption from local jurisdiction for e) Immunity from local jurisdiction
offenses committed in the discharge of General rule:Consular officers and employees
official functions, but not for other offense, are entitled to immunity from the jurisdiction
except for minor infractions; of administrative and judicial authorities in the
(2) Exemption from testifying on official receiving state.
communications or on matters pertaining
to consular functions;
Exceptions: This immunity shall not apply to a
(3) Exemption from taxes, customs duties, civil action either:
military or jury service;
(1) Arising out of a contract by a consular
(4) Personal inviolability of consular officials. officer or employee, which he did not
conclude expressly or impliedly as an
agent of the sending state; or
c) Inviolability of archives
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A treaty is:
(1) An international agreement;
(2) Concluded between states;
(3) In written form;
(4) Governed by international law;
(5) Whether embodied in a single instrument
or in two or more related instruments; and
(6) Whatever its particular designation [VCLT,
art. 2(1)]
Consent freely given by the parties. If consent and (2) the signing thereof. [VCLT, art.
was given erroneously, or was induced by 9]
fraud, the treaty shall be voidable;
Object and subject matter, which must be Authentication. A definitive text of the
3 treaty is established as the correct and
lawful;
authentic one. [VCLT, art. 10]
Ratification in accordance with the
constitutional process of the parties Expression of consent. The state parties
concerned. express their consent to be bound by
4 the terms of the treaty. The modes of
such expression are provided in the
In addition to the constitutional requirement, VCLT.
ratification is necessary under international
law when: Registration. The treaty is then
registered with the Secretariat of the
(1) The treaty provides for consent to be United Nations. Otherwise, the treaty
expressed by means of ratification; 5
may not be invoked before any UN
(2) It is otherwise established that the organ [UN Charter, art. 102(2)]
negotiating states agreed that ratification including the ICJ.
should be required;
(3) The representative of the state has signed
the treaty subject to ratification [VCLT, art. In the Philippines, the negotiation of treaties
14(1)], that is, when the intent was to make and their ratification are executive functions,
it subject to ratification. subject to concurrence of the Senate.
Under the Philippine law, the power to ratify is Consent to be bound by the terms of a treaty
vested in the President, subject to the may be expressed through:
concurrence of the Senate. The role of the (1) Signature, when the negotiator is
Senate is limited only to giving or withholding authorized to sign the treaty. This
its consent, or concurrence, to the ratification. signature is sufficient to bind the state
Although the refusal of a state to ratify a treaty under the treaty if:
which has been signed in its behalf is a serious
step that should not be taken lightly, such a. The treaty provides that signature
decision is within the competence of the shall have that effect;
President alone, which cannot be encroached b. It is otherwise established that the
by Supreme Court via a writ of mandamus negotiating states agreed that
(Pimentel v. Executive Secretary (2005)). signature should have that effect; or
c. The state can be shown to have had
the intention to be bound by the
B. TREATY-MAKING PROCESS
signature (e.g., based on the powers of
its representative) (article 12(1), VCLT);
Negotiation. The state representative (2) Ratification, the formal consent to the
1 discuss the terms and provisions of the treaty given by the head of state,
treaty. sometimes in conjunction with the
legislature;
Adoption. When the form and content (3) Exchange of instruments constituting the
have been settled by the negotiating treaty;
2 states, the treaty is adopted. This is
only preparatory to (1) the (4) Acceptance;
authentication of the text of the treaty (5) Approval;
(6) Accession, the method by which a state, (5) If consent was obtained through
under certain conditions, becomes a party fraudulent conduct of another negotiating
to a treaty of which it is not a signatory and state;
in the negotiation of which it did not take
(6) If the representative consented in violation
part;
of specific restrictions on authority,
(7) By any other means agreed by the parties. providedthe restriction was notified to the
other negotiating states prior to the
representative expressing such consent;
Amendment or modification of treaty
(7) If consent was given in violation of
General rule: Consent of all the parties is provisions of internal law regarding
required. competence to conclude treaties that is
manifest and of fundamental importance.
Exception:If the treaty itself so allows, two
[VCLT]
states may modify a provision only insofar as
their relationship inter se.
B.2. GROUNDS FOR TERMINATION
Reservations (1) Expiration of the term, or withdrawal of a
party in accordance with the treaty;
General rule: A reservation is a unilateral
statement made by a state upon entering a (2) Extinction of a party to the treaty, when the
treaty and operates to exclude or modify the treaty rights and obligations would not
legal effect of certain provision/s of the treaty devolve upon the successor-state;
in their application to the reserving state.
(3) Mutual agreement of parties;
[VCLT, art. 19]
(4) Denunciation or desistance by a party;
Exceptions: A reservation shall not operate to
modify or exclude the provisions of a treaty: (5) Supervening impossibility of performance;
(1) Where the treaty expressly prohibits (6) Conclusion of a subsequent inconsistent
reservations in general; treaty;
(2) Where the treaty expressly prohibits that (7) Loss of subject matter;
specific reservation being made; or
(8) Material breach or violation of treaty
(3) Where the reservation is incompatible with
(9) Fundamental change in
the object and purpose of the treaty.
circumstance(similar to the customary
[Reservation to the Genocide Conventions
norm of rebus sic stantibus)such that the
Advisory Opinion(ICJ, 1951)]
foundation upon which the consent of a
state to be bound initially rested has
disappeared. [VCLT, art. 62]. The
B.1. INVALID TREATIES
requisites are:
(1) If the treaty violates a jus cogensnorm of
(a) The change is so substantial that
international law;
the foundation of the treaty has
(2) If the conclusion of a treaty is procured by altogether disappeared;
threat or use of force;
(b) The change was unforeseen or
(3) Error of fact, provided that such fact unforeseeable at the time of the
formed an essential basis of a state’s perfection of the treaty;
consent to be bound;
(c) The change was not caused by the
(4) If the representative of a state was party invoking the doctrine
corrupted to consent by another
(d) The doctrine was invoked within a
negotiating state;
reasonable time;
(e) The duration of the treaty is
indefinite;
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B. ACQUISITION OF NATIONALITY
B.1. BIRTH
(1) Jus soli, where a person acquires the
nationality of the state where he is born;
(2) Jus sanguinis, where a person acquires the
nationality of his parents.
B.2. NATURALIZATION
Naturalization is a process by which a person
acquires, voluntarily or by operation of law,
the nationality of another state.
There are two (2) types of naturalization:
(1) Direct:
(a) By individual proceedings, usually
judicial, under general
naturalization laws;
(b) By special act of legislature;
(c) By collective change of nationality
as a result of cession or
subrogation (naturalization en
masse);
(d) By adoption (in some cases);
D. LOSS OF NATIONALITY
C.1. ILLUSTRATIONS
(1) Voluntary
• A child born in the United States of
(a) Renunciation (express or implied);
Filipino parents would be an American
national under jus soli and a Filipino (b) Request for release.
national under jus sanguinis; (2) Involuntary
• A woman marrying a foreigner may (a) Forfeiture as a result of some
retain her own nationality under the disqualification or prohibited act;
laws of her state while also acquiring
the nationality of her husband under (b) Substitution of one nationality for
the laws of his state. another.
F. CITIZENSHIP OF FOUNDLINGS
Foundlings are citizens under international
law. Article 24 of the International
Covenant on Civil and Political Rights
provides for the right of every child “to
acquire a nationality.” The Philippines is
obligated under various conventions such
as the ICCPR to grant nationality from birth
and ensure that no child is stateless. This
grant of nationality must be at the time of
birth, and it cannot be accomplished by the
application of our present naturalization
laws, Commonwealth Act No. 473, as
amended, and RA 9139, both of which
require the applicant to be at least 18 years
old. [Poe-Llamanzares v. COMELEC, G.R.
No. 221697 (2016)] (N.B. Outside of the bar
coverage)
In a case decided by the Supreme Court, the
Chief Justice pointed out that in 166 out of
189 countries surveyed (or 87.83%),
foundlings are recognized as citizens.
These circumstances, including the
practice of jus sanguinis countries, show
that it is a generally accepted principle of
international law to presume foundlings as
having been born of nationals of the
country in which the foundling is found.
[Poe-Llamanzares v. COMELEC, G.R. No.
221697 (2016)] (N.B. Outside of the bar
coverage)
a) Restitution
A State responsible for an internationally
wrongful act is under an obligation to make
restitution, that is, to re-establish the situation
which existed before the wrongful act was
committed, provided and to the extent that
restitution:
(1) Is not materially impossible;
(2) Does not involve a burden out of all
proportion to the benefit of the party
deriving from restitution instead of
compensation. [ASR, art. 35]
of conflict that may endanger friendly The propriety of governmental acts should be
relations among States.” [Argentina v. Ghana put to the test of international standards. The
(ITLOS, 2012)] treatment of an alien, in order to constitute an
international delinquency, should amount to
X. Treatment of Aliens an outrage, to bad faith, to willful neglect of
duty, or to an insufficiency of governmental
action so far short of international standards
A. STANDARD OF TREATMENT that every reasonable and impartial man
would readily recognize its insufficiency[Neer
No obligation to admit aliens:Flowing from its Case (PCIJ, 1926)].
right to existence and as an attribute of
sovereignty, no state is under obligation to For the enforcement of this state responsibility,
admit aliens. The state can determine in what the following must be complied with:
cases and in under what conditions it may (1) Exhaustion of local administrative
admit such. remedies;
Once it admits aliens, under the international (2) Representation of the alien by his own
standard of justice, which calls for compliance state in the international claim for
with the ordinary norms of official conduct damages.
observed in civilized jurisdictions, aliens
should be protected by certain minimum
standards of humane protection, however C. CALVO CLAUSE
harsh the municipal laws of a state may be.
A stipulation which states that the foreign
States have concomitant obligations with party must rely exclusively on local remedies
their rights as sovereigns over their territories and not seek any diplomatic protection.
“Territorial sovereignty […] involves the
exclusive right to display the activities of a Rationale: (1) Non-intervention; and (2) aliens
State. This right has a corollary, a duty: the are entitled only to such rights as are accorded
obligation to protect within the territory the nationals and thus had to seek redress for
rights of other States, in particular their right grievances exclusively in the domestic arena.
to integrity and inviolability in peace and in [SHAW]
war, together with the rights which each State e.g. A stipulation may be made by virtue of
may claim for its nationals in foreign territory.” which an alien waives or restricts his right to
[Island of Las Palmas Arb. (PCA, 1928)] appeal to his own state in connection with any
However, an alien cannot claim a preferred claim arising from a contract with a foreign
position vis-a-vis the national of the state. [see state and limits himself to the remedies
Calvo Doctrine, infra] available under the laws of that state.
criminal law of the requesting state or The request is received by the state of
government. [Pres. Dec. 1086] 2
refuge.
A. DEFINITION
Human rights are those fundamental and
inalienable rights which are essential for life
as a human being. They pertain to rights of an
individual as a human being which are
recognized by the international community as
a whole through their protection and
promotion under contemporary international
law.
B. CLASSIFICATION
(1) First generation rights consist of civil
and political rights;
(2) Second generation rights consist of
economic, social and cultural rights;
(3) Third generation rights consists of the
rights to development, to peace, and
to environment. [Vasak]
Obligatory force
Derogation/restriction
C. UNIVERSAL DECLARATION OF
HUMAN RIGHTS D. INTERNATIONAL COVENANT ON
The UDHR is the first comprehensive
CIVIL AND POLITICAL RIGHTS
catalogue of human rights proclaimed by an The ICCPR is an international covenant and is
international organization. binding on the respective state parties.
It is not a treaty. It has no obligatory character It embodies the first generation of human
because it was adopted by the UN General rights, although it lists more rights than the
Assembly as Resolution 217A (III). As a UDHR:
resolution, it is merely recommendatory.
(1) The right to own property;
Despite this, the UDHR is considered a
(2) The right to seek in other countries asylum
normative instrument that creates binding
from prosecution;
obligations for all states because of the
consensus evidenced by the practice of states (3) The right of members of ethnic, religious
that the UDHR is now binding as part of or linguistic groups not to be denied to
international law [CARILLO]. enjoy their own culture, to profess and
practice their own religion, or to use their
The UDHR embodies both first and second
own language;
generation rights. The civil and political rights
enumerated include: (4) The right to compensation in case of
unlawful arrest;
(1) The right to life, liberty, privacy and
security of person; (5) The right to legal assistance in criminal
prosecution;
(2) Prohibition against slavery;
(6) The right against self-incrimination;
(3) The right not to be subjected to arbitrary
arrest, detention or exile; (7) Protection against double jeopardy;
(4) The right to fair trial and presumption of (8) Right to review by higher tribunal in case
innocence; of criminal conviction;
(5) The right to a nationality; (9) Right of every child to nationality;
(6) The right to freedom of thought, (10) Right to protection of a child as required
conscience and religion; by his status as a minor;
(7) The right to freedom of opinion and (11) Right of persons below 18 years old not to
expression; be sentenced to death for crimes;
(8) Right to peaceful assembly and (12) Right against the carrying out of death
association; sentence on the part of a pregnant woman.
(9) The right to take part in the government of
his country.
The following are obligations of state parties
under the ICCPR:
The economic, social and cultural rights (1) State parties undertake to respect and to
enumerated include: ensure to all individuals within their
territory the rights enumerated therein,
(1) The right to social security;
without distinction of any kind, such as
race, color, sex, language, religion,
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political or other opinion, national or The common provisions of the two covenants
social origin, birth or other status. deal with collective rights, namely:
(2) State parties are required to take the (1) The right of self-determination of
necessary steps to adopt legislative or peoples;
other measures that are necessary to give
(2) The right of peoples to freely dispose
effect to the rights recognized in the
of their natural wealth and resources;
ICCPR.
(3) The right of peoples not to be deprived
(3) State parties must ensure that any person
of their own means of subsistence.
whose rights or freedoms are violated
have an effective remedy, notwithstanding
that the violation has been committed by
These rights were not covered by the UDHR.
persons action in an official capacity.
(4) State parties must ensure that any person
claiming such remedy shall have his right
thereto determined by competent judicial,
administrative or legislative authority, and
that they shall enforce the remedy when
granted.
E. INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
The ICESCR, like the ICCPR, is an international
covenant and is binding on the respective
State Parties.
It embodies the second generation of human
rights, although it lists more rights than the
UDHR:
(1) Right to health;
(2) Right to strike;
(3) Right to be free from hunger;
(4) Rights to enjoy the benefits of
scientific progress;
(5) Freedom for scientific research and
creativity.
(3) Which, under responsible command, Wars by peoples against racist, colonial and
exercise such control over a part of its alien domination “for the implementation of
territory; their right to self-determination and
independence is legitimate and in full accord
(4) As to enable to carry out sustained and
with principles of international law,” and that
concerted military operations and to
any attempt to suppress such struggle is
implement the Protocol.
unlawful (Resolution 3103 (XXVIII)).
IHL also establishes a distinction between
When peoples subjected to alien domination
non-international armed conflicts in the
resort to forcible action in order to exercise
meaning of Common Article 3, Geneva
their right to self-determination, they “are
Conventionsof 1949 and non-international
entitled to seek and to receive support in
armed conflicts falling within the definition
accordance with the purposes and principles
provided in Article 1, Additional Protocol II.
of the Charter.” [UN GA Reso. 2625 (XXV)]
The definition under the Article 1 is narrower
than that under Common Article 3:
(1) It introduces a requirement of territorial E. CORE INTERNATIONAL
control, by providing that non- OBLIGATIONS OF STATES IN IHL
governmental parties must exercise such
territorial control “as to enable them to Common Article 1 of all four Geneva
carry out sustained and concerted military Conventions is a key provision when it comes
operations and to implement this Protocol.” to a state’s responsibilities under IHL. It
(2) Additional Protocol II expressly applies provides that states are responsible to
only to armed conflicts between State “respect and ensure respect” for the
armed forces and dissident armed forces conventions in all circumstances.
or other organized armed groups.
However, Additional Protocol II “develops and In general, IHL defines the following
supplements” Common Article 3 “without obligations:
modifying its existing conditions of application”
(Article 1, 1st par.). This means that the (1) Parties to an armed conflict, together with
restrictive definition is relevant for the their armed forces, do not have unlimited
application of Protocol II only, but does not choice of methods or means of warfare.
extendto the law of non-international armed They are prohibited from employing
conflict in general. weapons or means of warfare that cause
unnecessary damage or excessive
In any case, while Common Article 3 is suffering.
recognized as a customary norm of
international law and binding to all states, (2) Parties to an armed conflict shall, at all
Additional Protocol II is a treaty binding only to times, distinguish between civilian
state parties. Its rules may, however, develop population and the combatants(principle
onto customary norms (ICRC). of distinction). Civilians shall be spared
from military attacks which shall be
directed only against military objectives.
D.3. WAR OF NATIONAL LIBERATION (3) Persons hors de combat are those who
An armed conflict may be of such nature in have been injured in the course of hostile
which peoples are fighting against colonial battle action and are no longer able to
domination and alien occupation and against directly take part in hostilities. They shall
racist regimes in the exercise of their right to be protected and treated humanely
self-determination. without any adverse distinction. Their
right to life and physical and moral
This conflict is considered an international integrity shall be respected.
armed conflict under Article 1, 3rd and 4th pars.,
Protocol 1. (4) It is prohibited to kill or injure an enemy
who is hors de combat or who surrenders.
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(5) The wounded and the sick shall be these cases, he abstains from any hostile
protected and cared for by the party to the act and does not attempt to escape.
conflict which has them in its power.
Persons hors de combat shall be protected and
Protection shall also apply to medical
treated humanely without any adverse
personnel, establishments, transports
distinction. Their right to life and physical and
and material.
moral integrity shall be respected.
(6) Combatants and civilian who are captured
by authority of the party to a dispute are
entitled to respect for their right to life, F.3. PROTECTED PERSONS
dignity, conviction, and other personal
They are those who enjoy or are entitled to
rights. They shall be protected against
protection under the geneva conventions.
acts of violence or reprisals. [Legality of the
Categories of protected persons include:
Threat or Use of Nuclear Weapons Advisory
Opinion (1996)] (1) The wounded, the sick, and shipwrecked;
(2) Prisoners of war;
The ICCPR, particularly its protection on the (3) Civilians.
right to life, does not determine the legality of
the use of nuclear weapons in an armed
conflict. What applies is the lexspecialis, which F.4. CIVILIANS
is the IHL. It determines whether the taking of For purposes of protection, civilians are further
life in times of war has been arbitrary. classified as:
(1) Civilians who are victims of conflict in
F. PRINCIPLES OF IHL countries involved;
(2) Civilians in territories of the enemy;
F.1. COMBATANTS (3) Civilians in occupied territories;
Members of the armed forces of a party to a (4) Civilians internees.
conflict (Article 3(2), Protocol 1). They have the
right to participate directly and indirectly in
hostilities (Art 43(2) Protocol 1). Only F.5. PRISONERS OF WAR
combatants are allowed to engage in
hostilities. Definition
A combatant is allowed to use force, even to Under Article 4, Geneva Convention (III),
kill, and will not be held personally prisoners of war are persons belonging to one
responsible for his acts, as he would be where of the following categories:
he to the same as a normal citizen (Gasser). (1) Members of the armed forces of a party to
the conflict, including militias or volunteer
corps;
F.2. HORS DE COMBAT
(2) Militias or volunteer corps operating in or
Under Article 41(2), Protocol I, a person is hors outside their own territory, even if such
de combat if: territory is occupied provided:
(1) He is in the power of an adverse party to (3) They are being commanded by a person
the conflict; responsible for his subordinates;
(2) He clearly expresses an intention to (4) Have a fixed distinctive sign recognizable
surrender; or at a distance;
(3) He has been rendered unconscious or is (5) Carries arms openly;
otherwise incapacitated by wounds or
sickness, and is therefore incapable of (6) Conducts their operations in accordance
defending himself, provided that in any of with the laws and customs of war;
(7) Members of regular armed forces who of humanity and from the dictates of public
profess allegiance to a government or conscience.
authority not recognized by the detaining
power;
(8) Civilians who accompany the armed
forces, provided that they have received G. LAW ON NEUTRALITY
authorization from the armed forces which
It is the law governing a country’s abstention
they accompany;
from participating in a conflict or aiding a
(9) Members of crews of merchant marine participant of such conflict, and the duty of
and the crews of civil aircraft of the parties participants to refrain from violating the
to the conflict; territory, seizing the possession, or hampering
(10) Inhabitants of a non-occupied territory the peaceful commerce of the neutral
who on the approach of the enemy countries (The Three Friends, 166 U.S. 1).
spontaneously take up arms to resist the Neutrality is the legal status of a State in times
invading forces, without having had time of war, by which it adopts impartiality in
to form themselves into regular armed relation to the belligerents with their
units, provided they carry arms openly and recognition.
respect the laws and customs of war;
(11) Persons belonging to the armed forces of
Neutral power
the occupied territory
The Hague Convention Respecting the Rights
and Duties of Neutral Powers(1907) governs the
Rights and privileges status of neutrality by the following rules:
(1) They must be treated humanely, shall not (1) The territory of the neutral power is
be subjected to physical or mental torture, inviolable.
shall be allowed to communicate with
(2) Belligerents are forbidden to move
their families, and may receive food,
troops or munitions of war and
clothing, educational and religious
articles. supplies across the territory of a
neutral power.
(2) They may not be forced to reveal military
(3) A neutral power is forbidden to allow
data except their name, rank, serial
belligerents to use its territory for
number, army and regimental number
moving troops, establishing
and date of birth. They may not be
communication facilities, or forming
compelled to work for military services.
corps of combatants.
(3) All their personal belonging except their
(4) Troops of belligerent armies received
arms and military papers remain their
property. by a neutral power in its territory shall
be interned by away from the theatre
(4) They must be interned in a healthful and of war.
hygienic place.
(5) The neutral power may supply them
(5) After the conclusion of peace, their speedy with food, clothing or relief required by
repatriation must be accomplished as humanity.
soon as is practicable.
(6) If the neutral power receives escaped
prisoners of war, it shall leave them at
Martens clause/principle of humanity liberty. It may assign them a place of
residence if it allows them to remain in
In cases not covered by other international its territory.
agreements, civilians and combatants
remain under the protection and authority (7) The neutral power may authorize the
of the principles of international law derived passage into its territory of the sick
from established custom, from the principles and wounded if the means of
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C. ARCHIPELAGIC STATES
It is a state made up of wholly one or more
archipelagos. It may include other islands
[Article 46, UNCLOS].
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An archipelago is a group of islands, including They are subject to the sovereignty of the
parts of islands, interconnecting waters and archipelagic state, but subject to the right of
other natural features which are so closely innocent passage for the ships of all states.
related that such islands, waters and natural
features form an intrinsic geographical,
economic and political entity, or which
historically have been regarded as such.
C.3. ARCHIPELAGIC SEA LANES PASSAGE
There are two kinds of archipelagos:
It is the right of foreign ships and aircraft
(1) Coastal, situated close to a mainland and to have continuous, expeditious and
may be considered part thereof (i.e., unobstructed passage in sea lanes and air
Norway); routes through or over the archipelagic
waters and the adjacent territorial sea of
(2) Mid-Ocean, situated in the ocean at such
the archipelagic state, “in transit between
distance from the coasts of firm land, (i.e.,
one part of the high seas or an exclusive
Indonesia).
economic zone.” All ships and aircraft are
The archipelagic state provisions apply only to entitled to the right of archipelagic sea lanes
mid-ocean archipelagos composed of islands, passage [Magallona; Article 53(1) in relation to
and not to a partly continental state. Article 53(3) UNCLOS].
The archipelagic state designates the sea
lanes as proposals to the “competent
C.1. STRAIGHT ARCHIPELAGIC BASELINES
international organization.” It is the
Straight baselines join the outermost points of International Marine Organization (IMO)
the outermost islands and drying reefs of an which adopts them through Article 53(9),
archipelago, provided that within such UNCLOS, which states that “the Organization
baselines are included the main islands and may adopt only sea lanes and traffic
an area in which the ratio of the water to the separation schemes as may be agreed with the
area of the land, including atolls, is between 1 archipelagic state, after which such state may
to 1 and 9 to 1. Such are called straight designate, prescribe or substitute them.”
archipelagic baselines.
The breadth of the territorial sea, the
C.4. OTHER RIGHTS RELATING TO
contiguous zone, and the exclusive economic
ARCHIPELAGIC WATERS
zone is measured from the straight
archipelagic baselines. (1) Rights under existing agreement on the
part of third states should be respectedby
the archipelagic state.
Island and Rocks; Distinguished
(2) Within its archipelagic waters, the
An island is a naturally formed area of land, archipelagic state shall recognize
surrounded by water, which is above water at traditional fishing rightsand other
high tide. legitimate activities of immediately
adjacent neighboring states.
Rocks which cannot sustain human habitation
or economic life of their own shall have no (3) The archipelagic state shall respect
exclusive economic zone or continental shelf. existing submarine cables laid by other
[Article 121, UNCLOS] states and “passing through its waters
without making a landfall.”
connecting the islands of the archipelago, Transit passage refers to the right to exercise
regardless of breadth or dimension.” freedom of navigation and over flight solely for
the purpose of continuous and expeditious
Also, under Article 47, UNCLOS, it is not
transit through the straights used for
mandatory upon concerned states to declare
international navigation. The right cannot be
themselves as archipelagic states; the
unilaterally suspended by the coastal state.
Philippines did, under its new baselines law,
RA 9522 upheld as constitutional [Magallona
v. Executive Secretary (2011)].
Innocent passage Transit passage
D. INTERNAL WATERS
Pertains to navigation Includes the right of
of ships only over flight
These are waters of lakes, rivers, and bays
Requires submarines Submarines are
landward of the baseline of the territorial sea.
Waters on the landward side of the baseline and other underwater allowed to navigate in
of the territorial sea also form part of the vehicles to navigate “normal mode” – i.e.
internal waters of the coastal state. However, on the surface and submerged
in case of archipelagic states, waters landward show their flag.
of the baseline other than those rivers, bays
and lakes, are archipelagic waters[Article 8(1), Can be suspended, Cannot be suspended
UNCLOS. but under the
condition that it does
Internal waters are treated as part of a state’s not discriminate
land territory, and are subject to the full among foreign ships,
exercise of sovereignty. Thus, the coastal state and such suspension
may designate which waters to open and
is essential for the
which to close to foreign shipping.
protection of its
security, and
suspension is effective
E. TERRITORIAL SEA
only after having been
These waters stretch up to 12 miles from the duly published
baseline on the seaward direction. They are (Article 25, UNCLOS)
subject to the jurisdiction of the coastal state,
which jurisdiction almost approximates that In the designation of Designation of sea
which is exercised over land territory, except sea lanes and traffic lanes and traffic
that the coastal state must respect the rights separation schemes, separation schemes is
to: the coastal state shall subject to adoption by
(1) Innocent passage; and only take into account competent
the recommendations international
(2) In the case of certain straits, to transit of the competent organization upon the
passage.
international proposal and
Innocent passage refers tonavigation through organization. agreement of states
the territorial sea without entering internal bordering the straits.
waters, going to internal waters, or coming
from internal waters and making for the high
seas. It must:
(1) Involve only acts that are required by
F. CONTIGUOUS ZONE
navigation or by distress, and
F.1. DEFINITION
(2) Not prejudice the peace, security, or
good order of the coastal state. The contiguous zone is that which is
contiguous to its territorial sea. It may not
extend beyond 24 nautical miles from the
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baselines from which the breadth of the overexploitation), and the duty to promote
territorial sea is measured. optimum utilization of living resources by
determining allowable catch.
If after determining the maximum allowable
catch, the coastal state does not have the
capacity to harvest the entire catch, it shall
give other states access to the surplus by
F.2. JURISDICTION OVER CONTIGUOUS
means of arrangements allowable under the
ZONE
UNCLOS. The UNLCOS, however, does not
In a contiguous zone, the coastal State may specify the method for determining “allowable
exercise the control necessary to: catch.”
1) Prevent infringement of its customs, fiscal,
immigration or sanitary laws and
Geographically disadvantaged states(i.e.,
regulations within its territory or territorial
those who have no EEZ of their own or those
sea;
coastal states whose geographical situations
2) Punish infringement of the above laws and make them dependent on the exploitation of
regulations committed within its territory the living resources of the EEZ of other states)
or territorial sea. and land-locked states have the right to
participate, on equitable basis, in the
exploitation of the surplus of the living
G. EXCLUSIVE ECONOMIC ZONE resources in the EEZ of coastal states of the
same sub region or region.
G.1. DEFINITION
A coastal state whose economy is
The exclusive economic zone (EEZ) is the
overwhelmingly dependent on the
stretch of area up to 200 miles from the
exploitation of its EEZ, however, is not
baselines. Within this zone, a State may
required to share its resources.
regulate non-living and living resources, other
economic resources, artificial installations,
scientific research, and pollution control.
Within its EEZ, a coastal state may also:
(1) Establish and use of artificial islands,
G.2. JURISDICTION OVER EEZ installations and structures;
The UNCLOS gives the coastal State (2) Conduct scientific research;
sovereign rights over all economic resources
of the sea, seabed and subsoil in an area (3) Preserve and protect its marine
extending not more than 200 nautical miles environment.
beyond the baseline from which the
territorial sea is measured (Arts. 55 and 57,
UNCLOS). However, under Article 58, UNCLOS, all states
enjoy the freedom of navigation, over flight,
Under the UNCLOS, states have the sovereign and laying of submarine cables and pipelines
right to exploit the resources of this zone, but in the EEZ of coastal states.
shall share that part of the catch that is
beyond its capacity to harvest.
The resources covered include living and non- The coastal state has the right to enforce all
living resourcesin the waters of the seabed laws and regulations enacted to conserve and
and its subsoil. manage the living resources in its EEZ. It may
board and inspect a ship, arrest a ship and its
crew and institute judicial proceedings against
Coastal states have the primary responsibility them. In detention of foreign vessels, the
to utilize, manage and conserve the living coastal state has the duty to promptly notify
resources within their EEZ (i.e., ensuring that the flag state of the action taken.
living resources are not endangered by
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Conflicts regarding the attribution of rights It only has sovereign rights with respect to the
and jurisdiction in the EEZ must be resolved on exploration and exploitation of its natural
the basis of equity and in the light of all resources, including the mineral and other
relevant circumstances, taking into account non-living resources of the seabed and subsoil
the respective importance of the interests together with living organisms belonging to
involved to the parties as well as to the the sedentary species.
international community as a whole (Article 59, The coastal state has the exclusive right to
UNCLOS). authorize and regulate oil-drilling on its
continental shelf.
These rights are exclusive in the sense that
H. CONTINENTAL SHELF when the coastal state does not explore its
continental shelf or exploit its resources, no
H.1. EXTENDED CONTINENTAL SHELF
one may undertake these activities without the
It is the seabed and subsoil of the submarine coastal state’s consent.
areas extending beyond the territorial sea of
the coastal state throughout the natural
prolongation of its lands territory up to: Exclusive
Continental shelf
(1) The outer edge of the continental margin; economic zone
or
Duty to manage and conserve living resources
(2) A distance of 200 nautical miles from the
baselines of the territorial sea where the No duty Coastal state is
outer edge of the continental margin does
obliged to manage
not extend up to that distance.
and conserve living
Continental margin the submerged resources in the EEZ
prolongation of the land mass of the
continental state, consisting of the continental Rights of the coastal state to natural resources
shelf proper, the continental slope, and the
continental rise Relate to mineral and Have to do with
other non-living natural resources of
resources of the both waters super
H.2. LIMITS OF THE CONTINENTAL SHELF
seabed and the adjacent to the
The juridical or legal continental shelf covers subsoil seabed and those of
the area until 200 nautical miles from the seabed and
baselines. subsoil
The extended continental shelf covers the area
from the 200-mile mark to 350 nautical miles Rights of the coastal state to living resources
from the baselines depending on
geomorphologic or geological data and Apply only to Do not pertain to
information. sedentary species of sedentary species
When the continental shelf extends beyond such living resources
200 nautical miles, the coastal state shall
establish its outer limits.
At any rate, the continental shelf shall not
extend beyond 350 nautical miles from the
baseline of the territorial sea, or 100 nautical I. THE AREA
miles from the 2500-meter isobath (i.e., the I.1. DEFINITION
point where the waters are 2500 meters
deep). "Area" means the seabed and ocean floor and
subsoil thereof, beyond the limits of national
jurisdiction.
H.3. RIGHTS OF THE COASTAL STATE
The continental shelf does not form part of the
territory of the coastal state.
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I.2. LEGAL STATUS OF THE AREA AND ITS Applicants for license in deep seabed mining
RESOURCES are limited to those controlled by states
parties to the UNCLOS or by their nationals.
No State shall claim or exercise sovereignty or
sovereign rights over any part of the Area or its
resources, nor shall any State or natural or
juridical person appropriate any part thereof. J. INTERNATIONAL TRIBUNAL FOR THE
[Article 137, UNCLOS] LAW OF THE SEA (ITLOS)
The Area and its resources are the common
heritage of mankind. [Article 136, UNCLOS] J.1. DEFINITION
Activities in the Area shall be carried out for
the benefit of mankind as a whole. [Article 140, The ITLOS is an independent judicial body
UNCLOS] established by the Third United Nations
Convention on the Law of the Sea to adjudicate
The Area shall be open to use exclusively for disputes arising out of the interpretation and
peaceful purposes by all States. [Article 141, application of the convention. It was
UNCLOS] established after Ambassador Arvido Pardo
Malta addressed the General Assembly of the
United Nations and called for “an effective
I.3. INTERNATIONAL SEABED AUTHORITY international regime over the seabed and
It is the organization established by UNCLOS ocean floor beyond a clearly defined national
which acts on behalf of mankind in governing jurisdiction.”
the regime of resources in the Area. It
organizes, carries out and controls the
activities of the Area on behalf of mankind as J.2. JURISDICTION OF THE ITLOS
a whole. Its jurisdiction covers all disputes submitted to
it in accordance with the UNCLOS. It also
includes matters submitted to it under any
The following form the Authority: other agreement.
(1) The Assembly – all state parties to the It is composed of 21 independent members
UNCLOS elected from among persons enjoying the
(2) The Council – the executive organ highest reputation for fairness and integrity
whose 36 members are elected by the and of recognized competence in the field of
Assembly the law of the sea.
(3) The Enterprise – the organ directly
engaged in the exploration and J.3. PEACEFUL SETTLEMENT OF DISPUTES
exploitation of the resources of the
Area, including the transporting, Under Article 2, 3rd par., UN Charter, states
processing and marketing of minerals have the duty to settle disputes by peaceful
means. This obligation extends to state
parties of the UNCLOS, underscoring the right
I.4. ACTIVITIES IN THE AREA of the parties to resort to peaceful means of
their own choice on which they can agree any
The Enterprise carries out mining activities on time.
behalf of the Authority:
(1) Directly; or
J.4. COMPULSORY SETTLEMENT OF
(2) By joint ventures with: a. State parties; DISPUTES
b. State enterprises; or c. Natural or
juridical persons sponsored by state Where no successful settlement can be
parties. achieved, or if the parties are unable to agree
on the means of settlement of a dispute
concerning the application of UNCLOS, such
dispute may be governed by the principle of
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B. PARIS CONVENTION
XV. International
The Paris Convention for the Protection of
Industrial Property was signed in 1883 and it is Environmental Law
one of the first treaties dealing with
intellectual property and its protection.
Among its substantive provisions are: A. DEFINITION
(1) It requires that each member state grant It is the branch of public international law
the same quality and quantity of comprising those substantive, procedural, and
protection to eligible foreigners as it institutional rules which have as their primary
grants to its own nationals in respect to objective the protection of the environment,
the intellectual property enumerated in the term environment being understood as
the convention. encompassing “both the features and the
products of the natural world and those of
(2) It provides that an applicant eligible for human civilization” (Sands, Principles of
convention benefits who files a first International Environmental Law).
regular patent or trademark application in
any of the countries of the union, can then
file subsequent applications in other B. BASIC PRINCIPLES
countries of the union for a defined period
of time which subsequent applications will B.1. PRINCIPLE OF COMMON BUT
have an effective filing date as of the first DIFFERENTIATED RESPONSIBILITY
filed application. 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 7,
Rio Declaration).