Gn2015 Poli Final

POLITICAL AND
PUBLIC
INTERNATIONAL
LAW
2015 GOLDEN NOTES

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
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Civil Law. Communications regarding the NOTES should be
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No.____________
Printed in the Philippines, June 2015.

ACADEMIC YEAR 2015-2016
CIVIL LAW STUDENT COUNCIL

JOHN ROBIN G. RAMOS PRESIDENT
DION LORENZ L. ROMANO VICE PRESIDENT INTERNAL
DEXTER JOHN C. SUYAT VICE PRESIDENT EXTERNAL
REBECCA MARIE G. RENTI CRUZ SECRETARY
JACKIELYN KRYSTYL NIHAMA C. BANA TREASURER
KRISTINE CARMINA R. MANAOG AUDITOR
TEAM: BAR-OPS
VANNESSA ANNE VIRAY CHAIRPERSON
HAZEL NAVAREZ VICE-CHAIRPERSON
ERIKA MARIZ PINEDA SECRETARY
CATHERINE SYMACO ASST. SECRETARY
MAXIMILLAN JEAN PEROLA HEAD, PUBLIC RELATIONS
PATRICIA LACUESTA ASST. HEAD, PUBLIC RELATIONS
RAFAEL LORENZ SANTOS HEAD, FINANCE COMMITTEE
HOWELL ICO ASST. HEAD, FINANCE COMMITTEE
HANNA CLARISS QUIAMBAO HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JULIA MAGARRO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JINNY APOSTOL ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JEFFREY CORONADO HEAD, LOGISTICS COMMITTEE
INEANDRO PEDRO TOLENTINO ASST. HEAD, LOGISTICS COMMITTEE
CARLO ANGELO TING ASST. HEAD, LOGISTICS COMMITTEE
ATTY. AL CONRAD B. ESPALDON

ADVISER
ACADEMICS COMMITTEE
MENANDRO MAGCULANG
KATRINA GRACE C. ONGOCO EXECUTIVE COMMITTEE
ANGELIE C. QUINTO
MA. SALVE AURE M. CARILLO SECRETARY GENERAL
RAFAEL LORENZ SANTOS

REUBEN BERNARD M. SORIANO LAYOUT AND DESIGN
JUAN PAOLO MAURINO R. OLLERO
POLITICAL LAW COMMITTEE

ERINN MARIEL PEREZ POLITICAL LAW COMMITTEE HEAD
CHRISTINE JACINTO ASST. HEAD FOR POLITICAL LAW
EMNIE VALERIE DURAN ASST. HEAD FOR CONSTITUTIONAL LAW
ASST. HEAD FOR ELECTIONS, PUBLIC OFFICERS AND
FRA ANGELICA ALEJANDRO
ADMINISTRATIVE LAW
MA. KARINA BASSIG ASST. HEAD FOR LOCAL GOVERNMENTS
DEXTER JOHN SUYAT ASST. HEAD FOR PUBLIC INTERNATIONAL LAW
NATASHA SARAH MURAD MEMBER
MARK IRVIN PAGADUAN MEMBER
KARMELA KATE SALVADOR MEMBER
MARION JOAQUIN MEMBER
CRISELLE ZAPATA MEMBER
ATTY. AL CONRAD B. ESPALDON

ADVISER
FACULTY OF CIVIL LAW
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.

DEAN REGENT
ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR
LENY G. GADANIA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION
JUSTICE AMY LAZARO-JAVIER
JUSTICE OSWALDO D. AGCAOILI
JUDGE CHARITO M. SAWALI
ATTY. CARLO L. CRUZ
ATTY. ENRIQUE V. DELA CRUZ
ATTY. RENE B. GOROSPE
ATTY. VICTORIA V. LOANZON
ATTY. RAFAELITO M. GARAYBLAS
ATTY. ANICIA C. MARQUEZ
ATTY. EDWIN R. SANDOVAL
ATTY. MAURICIO C. ULEP
For being our guideposts in understanding the intricate sphere of Political and Public
International Law.
- Academics Committee 2015
DISCLAIMER
THE RISK OF USE, MISUSE OR

NON-USE OF THIS BAR REVIEW
MATERIAL SHALL BE BORNE BY
THE USER/ NON-USER.
COVERAGE
POLITICAL AND INTERNATIONAL LAW
2015 BAR EXAMINATIONS
I. The Philippine Constitution .................................................................................................................................. 1

A. Constitution: definition, nature and concepts ...................................................................................................................1
B. Parts......................................................................................................................................................................................................1
C. Amendment and revision ............................................................................................................................................................2
D. Self-executing and non-self-executing provisions ........................................................................................................ 4
E. General Provisions .........................................................................................................................................................................4
II. General Considerations ........................................................................................................................................... 5

A. National Territory ..........................................................................................................................................................................5
1. Archipelagic Doctrine ..........................................................................................................................................................5
B. State Immunity ................................................................................................................................................................................6
C. General Principles and State Policies.................................................................................................................................. 11
D. Separation of Powers ................................................................................................................................................................. 17
E. Checks and Balances .................................................................................................................................................................. 19
F. Delegation of Powers ................................................................................................................................................................. 20
G. Forms of Government ................................................................................................................................................................ 22
III. Legislative Department ........................................................................................................................................ 25

A. Who may exercise legislative power................................................................................................................................... 25
1. Congress
2. Regional/Local legislative power
3. Peoples initiative on statutes
a. Initiative and referendum
4. The President under martial law rule or in a revolutionary government
B. Houses of Congress ..................................................................................................................................................................... 25
1. Senate
2. House of Representatives
a. District representatives and questions of apportionment
b. Party-list system
C. Legislative Privileges, inhibitions, and disqualifications ........................................................................................... 31
D. Quorum and voting majorities ............................................................................................................................................... 34
E. Discipline of members ............................................................................................................................................................... 36
F. Electoral tribunals and the Commission on Appointments ...................................................................................... 36
1. Nature
2. Powers
G. Powers of Congress .................................................................................................................................................................... 38
1. Legislative .............................................................................................................................................................................. 39
a. Legislative inquiries and the oversight function
b. Bicameral conference committee
c. Limitations on legislative power
i. Limitations on revenue, appropriations and tariff measures
ii. Presidential veto and Congressional override
2. Non-legislative ..................................................................................................................................................................... 47
a. Informing function
b. Power of impeachment
c. Other non-legislative powers
IV. Executive Department .......................................................................................................................................... 50

A. Privileges, inhibitions and disqualifications .................................................................................................................... 50
1. Presidential Immunity
2. Presidential Privilege
B. Powers .............................................................................................................................................................................................. 56
1. Executive and administrative powers in general
2. Power of appointment
a. In general
b. Commission on Appointments confirmation
c. Midnight appointments
d. Power of removal
3. Power of control and supervisions
a. Doctrine of qualified political agency
b. Executive departments and offices
c. Local government units
4. Military powers
5. Pardoning Power
a. Nature and Limitations
b. Forms of Executive Clemency
6. Diplomatic powers
7. Informing Power
8. Delegated Power
9. Veto powers
10. Residual powers
C. Rules of Succession ..................................................................................................................................................................... 68
V. Judicial Department .............................................................................................................................................. 70

A. Concepts .......................................................................................................................................................................................... 70
1. Judicial Power
2. Judicial Review
a. Operative fact doctrine
b. Moot questions
c. Political Question doctrine
B. Safeguards of judicial independence .................................................................................................................................. 74
C. Judicial restraint ........................................................................................................................................................................... 74
D. Appointments to the judiciary ............................................................................................................................................... 74
E. Supreme Court .............................................................................................................................................................................. 75
1. En banc and Division Cases
2. Procedural rule-making
3. Administrative supervision over lower courts
4. Original and appellate jurisdiction
F. Judicial Privileges ........................................................................................................................................................................ 77
VI. Constitutional Commissions ............................................................................................................................... 79

A. Constitutional safeguards to ensure independence of commissions ................................................................... 79
B. Powers and functions of each commissions .................................................................................................................... 79
C. Prohibited concepts and interests ....................................................................................................................................... 82
D. Jurisdiction of each constitutional commissions ........................................................................................................... 82
E. Review of final orders, resolutions, decisions ................................................................................................................ 83
1. Rendered in the exercise of quasi-judicial functions
2. Rendered in the exercise of administrative functions
VII. Bill of Rights.............................................................................................................................................................. 85

A. Fundamental powers of the state (police power, eminent domain, taxation) ................................................. 85
1. Concept, Application and Limits
2. Requisites for valid exercise
3. Similarities and differences
4. Delegation
B. Private Acts and the Bill of Rights ........................................................................................................................................ 94
C. Due process the right to life, liberty and property .................................................................................................... 94
1. Relativity of due process
2. Procedural and substantial due process
3. Constitutional and statutory due process
4. Hierarchy of rights
5. Judicial standards of review
6. Void-for-vagueness doctrine
D. Equal protection of the laws ................................................................................................................................................ 100
1. Concepts
2. Requisites for valid qualification
3. Standards of judicial review
a. Rational Basis Test
b. Strict Scrutiny Test
c. Intermediate Scrutiny Test
E. Searches and seizures ............................................................................................................................................................. 103
1. Concept
2. Warrant requirement
3. Requisites
4. Warrantless searches
5. Warrantless arrests
6. Administrative arrests
7. Drug, alcohol, and blood tests
F. Privacy of communications and correspondence ...................................................................................................... 112
1. Private and public communications
2. Intrusion, when allowed
3. Anti-Wire Tapping Act
4. Writ of habeas data
G. Freedom of Expression .......................................................................................................................................................... 117
1. Concept and scope
a. Prior restraint (censorship)
b. Subsequent punishment
2. Content-based and content-neutral regulations
a. Tests
b. Applications
3. Facial Challenges and the Overbreadth doctrine
4. Tests
5. State Regulation of different types of mass media
6. Commercial Speech
7. Private v. government speech
8. Hecklers veto
H. Freedom of Religion ................................................................................................................................................................ 128
1. Non-establishment clause
a. Concept and basis
b. Acts permitted and not permitted by the clause
c. Test
2. Free exercise clause
3. Tests
a. Clear and Patent Danger Test
b. Compelling State Interest Test
c. Conscientious Objector Test
I. Liberty of abode and freedom of movement ................................................................................................................ 133
1. Limitations
2. Right to Travel
a. Watch-list and hold departure orders
3. Right to ones country
J. Right to Information ................................................................................................................................................................ 136
1. Limitation
2. Publication of laws and regulations
3. Access to court records
4. Right to information relative to:
a. Government contract negotiations
b. Diplomatic negotiations
K. Right of association .................................................................................................................................................................. 139
L. Contract Clause .......................................................................................................................................................................... 139
1. Contemporary application of the contract clause
M. Legal Assistance and free access to courts .................................................................................................................... 140
N. Rights of suspects ..................................................................................................................................................................... 141
1. Availability
2. Requisites
3. Waiver
O. Rights of the accused ............................................................................................................................................................... 143
1. Criminal due process
2. Bail
3. Presumption of Innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed
7. Right to speedy, impartial and public trial
8. Right of confrontation
9. Compulsory Process
10. Trials in absentia
P. Writ of habes corpus ................................................................................................................................................................ 150
Q. Writs of amparo, habeas data, and kalikasan ............................................................................................................... 151
R. Self-incrimination clause
1. Scope and coverage
a. Foreign Laws
2. Application
3. Immunity Statutes
S. Involuntary servitude and political prisoners ............................................................................................................. 157
T. Excessive fines and cruel and inhuman punishments ............................................................................................. 158
U. Non-imprisonment for debts ............................................................................................................................................... 158
V. Right against Double Jeopardy ........................................................................................................................................... 158
1. Requisites
2. Motions for reconsideration and appeals
3. Dismissal with consent of accused
W. Ex post facto laws and bills of attainder ......................................................................................................................... 161
VIII. Citizenship ...............................................................................................................................................................163

A. Who are Filipino citizens
B. Modes of acquiring citizenship
C. Naturalization and denaturalization
D. Dual citizenship and dual allegiance
E. Loss and re-acquisition of Philippine citizenship
F. Natural-born citizens and public office
IX. Law on Public Officers ........................................................................................................................................171

A. General Principles .................................................................................................................................................................... 171
B. Modes of acquiring title to public office ......................................................................................................................... 172
C. Modes and kinds of appointment ...................................................................................................................................... 172
D. Eligibility and qualification requirements..................................................................................................................... 173
E. Disabilities and inhibitions of public officers. .............................................................................................................. 177
F. Powers and duties of public officers ................................................................................................................................ 179
G. Rights of public officers ......................................................................................................................................................... 180
H. Liabilities of public officers .................................................................................................................................................. 181
1. Preventive suspension of back salaries
2. Illegal dismissal, reinstatement and back salaries
I. Immunity of public officers .................................................................................................................................................. 183
J. De jure and de facto officers ................................................................................................................................................ 183
K. Termination of official relation .......................................................................................................................................... 186
L. Appointments to the Civil Service ..................................................................................................................................... 188
1. Scope
2. Security of Tenure
3. Personnel actions
M. Accountability of Public Officers ........................................................................................................................................ 193
1. Impeachment
2. Ombudsman (Secs. 5-14, Art. XI of the 1987 Constitution, in relation to R.A. No. 6770 or The
Ombudsman Act of 1989.
a. Functions
b. Judicial review in administrative proceedings
c. Judicial review in penal proceedings
3. Sandiganbayan
4. Ill-gotten wealth
N. Term Limits ................................................................................................................................................................................. 199
X. Administrative Law..............................................................................................................................................202
A. General Principles .................................................................................................................................................................... 202
B. Administrative agencies ........................................................................................................................................................ 202
1. Definition
2. Manner of creation
3. Kinds
C. Powers of administrative agencies ................................................................................................................................... 203
Quasi-legislative (rule-making) power
a. Kinds of administrative rules and regulations
b. Requisites for Validity
2. Quasi-judicial (adjudicatory) power
a. Administrative due process
b. Administrative appeal and review
c. Administrative res judicata
3. Fact-finding, investigative, licensing, and rate-fixing powers
D. Judicial recourse and review ............................................................................................................................................... 211
1. Doctrine of primary jurisdiction
2. Doctrine of exhaustion of administrative remedies
3. Doctrine of finality of administrative action
XI. Election Law............................................................................................................................................................217

A. Suffrage ......................................................................................................................................................................................... 217
B. Qualification and disqualification of voters .................................................................................................................. 218
C. Registration of voters ............................................................................................................................................................. 218
D. Inclusion and Exclusion proceedings .............................................................................................................................. 222
E. Political parties .......................................................................................................................................................................... 223
1. Jurisdiction of the COMELEC over political parties
2. Registration
F. Candidacy ..................................................................................................................................................................................... 224
1. Qualification of candidates
2. Filing of certificates of candidacy
a. Effect of filing
b. Substitution of candidates
c. Ministerial duty of COMELEC to receive certificate
d. Nuisance candidates
e. Petition to deny or cancel certificates of candidacy
f. Effect of disqualification
g. Withdrawal of candidates
G. Campaign ...................................................................................................................................................................................... 231
1. Premature campaigning
2. Prohibited contributions
3. Lawful and prohibited election propaganda
4. Limitations on expenses
5. Statement of contributions and expenses
H. Board of Election Inspectors and Board of Canvassers ........................................................................................... 238
1. Composition
2. Powers
I. Remedies and jurisdiction in election law..................................................................................................................... 242
1. Petition not to give due course to or cancel a certificate of candidacy
2. Petition for disqualification
3. Petition to declare failure of elections
4. Pre-proclamation controversies
5. Election protests
6. Quo Warranto
J. Prosecution of election offenses ........................................................................................................................................ 249
XII. Local Governments ..............................................................................................................................................250

A. Public Corporations ................................................................................................................................................................. 250
1. Concept
a. Distinguished from government-owned and controlled corporations
2. Classifications
a. Quasi-corporations
b. Municipal corporations
B. Municipal Corporations ......................................................................................................................................................... 251
1. Elements
2. Nature and functions
3. Requisites for creation, conversion, division, merger or dissolution
C. Principles of Local Autonomy ............................................................................................................................................. 259
D. Powers of local government units (LGUs) ..................................................................................................................... 261
1. Police power (general welfare clause)
2. Eminent domain
3. Taxing power
4. Closure and opening of roads
5. Legislative power
a. Requisites for valid ordinance
b. Local initiative and referendum
6. Corporate Powers
a. To sue and be sued
b. To acquire and sell property
c. To enter into contracts
i. Requisites
ii. Ultra vires contracts
7. Liability of LGUs
8. Settlement of boundary disputes
9. Succession of elective officials
10. Discipline of local officials
a.
Elective officials
i. Grounds
ii. Jurisdiction
iii. Preventive Suspension
iv. Removal
v. Administrative appeal
vi. Doctrine of condonation
b. Appointive officials
11. Recall
12. Term Limits
XIII. National Economy and Patrimony ..................................................................................................295

A. Regalian Doctrine
B. Nationalist and citizenship requirement provisions
C. Exploration, development and utilization of natural resources
D. Franchises, authority and certificates for public utilities
E. Acquisition, ownership and transfer of public and private lands
F. Practice of professions
G. Organization and regulation of corporations, private and public
H. Monopolies, restraint of trade, and unfair competition
XIV. Social Justice and Human Rights ...................................................................................................................306

A. Concept of Social Justice
B. Commission on Human Rights
XV. Education, Science, Technology, Arts, Culture and Sports ..................................................................311

A. Academic Freedom
XVI. Public International Law .................................................................................................................................312

A. Fundamental Concepts ........................................................................................................................................................... 312
1. Obligations erga omnes
2. Jus cogens
3. Concept of ex aequo et bono
B. International and national law ........................................................................................................................................... 313
C. Sources .......................................................................................................................................................................................... 315
D. Subjects ......................................................................................................................................................................................... 316
1. States
2. International Organizations
3. Individuals
E. Diplomatic and Consular Law ............................................................................................................................................. 323
F. Treaties ......................................................................................................................................................................................... 328
1. Vienna Convention on the Law of Treaties
G. Nationality and Statelessness ............................................................................................................................................. 331
H. State Responsibility ................................................................................................................................................................. 332
1. Doctrine of State Responsibility
I. Jurisdiction of States ............................................................................................................................................................... 334
1. Territoriality principles
2. Nationality principle and statelessness
3. Protective principle
4. Universality principle
5. Passive personality principle
6. Conflicts of jurisdiction
J. Treatment of Aliens ................................................................................................................................................................. 335
1. Extradition
a. Fundamental Principles
b. Procedure
c. Distinguished from deportation
K. International Human Rights Law ...................................................................................................................................... 338
1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social, and Cultural Rights
L. International Humanitarian Law and Neutrality ....................................................................................................... 341
1. Categories of armed conflicts
a. International armed conflicts
b. Internal or non-international armed conflicts
c. War of national liberation
M. Law of the Sea ............................................................................................................................................................................ 353
1. Baselines
2. Archipelagic States
a. Straight archipelagic baselines
b. Archipelagic waters
c. Archipelagic sea lanes passage
3. Internal Waters
4. Territorial Sea
5. Exclusive Economic Zone
6. Continental Shelf
a. Extended Continental Shelf
N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property .............................. 366
O. International Environmental Law ..................................................................................................................................... 367
1. Principle 21 of the Stockholm Declaration
P. International Economic Law ............................................................................................................................................... 370
THE PHILIPPINE CONSTITUTION
THE PHILIPPINE CONSTITUTION Flexible Can be changed by ordinary

legislation.
CONSTITUTION: NOTE: The Philippine Constitution is written,

DEFINITION, NATURE AND CONCEPTS enacted, and rigid.
Political Law Ways to interpret the Constitution
Branch of public law that deals with the 1. Verba legis Wherever possible, the words
organization and operations of the governmental used in the Constitution must be given their
organs of the State and defines its relations with ordinary meaning except where technical
the inhabitants of the territory (People v. Perfecto, terms are employed.
G.R. No. L-18463, October 4, 1922).
2. Ratio legis est anima Where there is
Scope of Political Law ambiguity, the words of the Constitution
should be interpreted in accordance with the
1. Political Law intent of the framers.
2. Constitutional Law
3. Administrative Law 3. Ut magis valeat quam pereat The Constitution
4. Law on Municipal Corporations is to be interpreted as a whole (Francisco v. HR,
5. Law on Public Officers G.R. No. 160261, November 10, 2003).
6. Election laws
7. Public International Law NOTE: In case of doubt, the provisions of the
Constitution should be construed as self-executing;
Constitution mandatory rather than directory; and prospective
rather than retroactive.
It is the basic and paramount law to which all other
laws must conform and to which all persons, The provisions of the Constitution are to be
including the highest officials, must defer. considered as self-executing because if they are not
treated as such, the legislature can ignore and
Effectivity date of the present Constitution practically nullify the direction of the fundamental
law.
The 1987 Constitution was ratified in a plebiscite
on February 2, 1987 (De Leon v. Esguerra, G.R. No. A provision is not self-executing when it merely
L-78059, August 31, 1987). indicates the principles without laying down rules
giving them the force of law.
Classifications of the Constitution
PARTS
1. Written Precepts are embodied in one
document or set of documents. Parts of a Written Constitution
Unwritten Consists of rule, which have not 1. Constitution of Sovereignty This refers to the
been integrated into a single, concrete form provisions pointing out the modes or
but are scattered in various sources. procedure in accordance with which formal
changes in the Constitution may be made (Art.
2. Enacted (Conventional) Formally struck off at XVII [Amendments or Revisions]).
a definite time and place following a conscious 2. Constitution of Liberty The series of
or deliberate effort taken by a constituent body prescriptions setting forth the fundamental
or ruler. civil and political rights of the citizens and
imposing limitations on the power of the
Evolved (Cumulative) Result of political government as a means of securing the
evolution, not inaugurated at any specific time enjoyment of those rights (Art. III [Bill of
but changing by accretion rather than by any Rights]).
systematic method. 3. Constitution of Government Provides for a
structure and system of government; refers to
3. Rigid Can be amended only by a formal and the provisions outlining the organization of the
usually difficult process. government, enumerating its powers, laying
down certain rules relative to its

1 FACULTY OF CIVIL LAW
Political and International Law
administration and defining the electorate (Art. NOTE: Congress may call a ConCon:
VI [Legislative Dept]; Art. VII [Exec. Dept]; Art. 1. By a vote of 2/3 of all its members; or
VIII [Judicial Dept]; Art. IX [Constitutional 2. By a majority vote of all its members,
Commissions]). submit to the electorate the question
of calling such a convention (1987
AMENDMENT AND REVISION Constitution, Art. XVII, Sec. 3).
Amendment v. Revision If Congress, acting as a ConAss, calls for a

ConCon but does not provide details for
BASIS AMENDMENT REVISION the calling of such ConCon, Congress by
Isolated or A revamp or exercising its ordinary legislative power
piecemeal change rewriting of may supply such details. But in so doing,
merely by adding, the whole the Congress (as a legislative body) should
deleting, or instrument not transgress the resolution of Congress
Definition acting as a ConAss.
reducing without altering the
altering the basic substantial
principles entirety of the The choice between ConAss or ConCon is
involved. Constitution. left to the discretion of Congress. In other
words, it is a political question, but the
Tests to determine whether a proposed change manner of calling a ConCon is subject to
is an amendment or a revision judicial review because the Constitution
has provided for voting requirements.
1. Quantitative test Asks whether the proposed
change is so extensive in its provisions as to c. By Peoples Initiative upon a petition of at
change directly the substantial entirety of the least 12% of the total number of registered
Constitution by the deletion or alteration of voters, of which every legislative district
numerous existing provisions. One examines must be represented by 3% of the
only the number of provisions affected and registered voters therein (1987
does not consider the degree of the change. Constitution, Art. XVII, Sec. 2).
2. Qualitative test Asks whether the change will
accomplish such far reaching changes in the NOTE: No amendment under this section
nature of our basic governmental plan as to shall be authorized within five years
amount to a revision (Lambino, et al., v. following the ratification of this
Comelec, G.R. No. 174153, October 25, 2006). Constitution nor oftener than once every
five years thereafter (1987 Constitution,
Ways to amend or revise the Constitution Art. XVII, Sec. 2).
a. By Congress upon a vote of of all its Ratification

members acting as Constituent Assembly
(ConAss) Amendments or revisions to the Constitution
should be ratified by the majority in a plebiscite
NOTE: The substance of the proposal is which should be held not earlier than 60 days nor
not subject to judicial review as its later than 90 days after the approval of such
determination is left to the wisdom of the amendment.
ConAss.
Requisites for a valid ratification
On the other hand, the manner the
proposals are made is subject to judicial 1. Held in a plebiscite conducted under Election
review. Law
2. Supervised by COMELEC
Since ConAss owes their existence to the 3. Where only registered voters take part
Constitution, the courts may determine
whether the assembly has acted in NOTE:
accordance with the Constitution. GR: Presidential proclamation is not required for
effectivity of amendments/revisions.
b. By Constitutional Convention (ConCon)
(1987 Constitution, Article XVII, Sec. 1) XPN: Proposed amendment/revision provides
otherwise.
UNIVERSITY OF SANTO TOMAS 2

2015GOLDEN NOTES
THE PHILIPPINE CONSTITUTION
Doctrine of Proper Submission excludes initiative on the amendments of the

Constitution.
A plebiscite may be held on the same day as a
regular election (Gonzales v. COMELEC, et al., G.R. Also, while the law provides subtitles for National
No. L-28196, November 9, 1967). Initiative and Referendum and for Local Initiative
and Referendum, no subtitle is provided for
The people must be sufficiently informed of the initiative on the Constitution. This means that the
amendments to be voted upon, for them to main thrust of the law is initiative and referendum
conscientiously deliberate thereon, to express their on national and local laws. If RA 6735 were
will in a genuine manner. Submission of piece-meal intended to fully provide for the implementation of
amendments is unconstitutional. the initiative on amendments to the Constitution, it
could have provided for a subtitle, considering that
All amendments must be submitted for ratification in the order of things, the primacy of interest, or
in one plebiscite only. The people have to be given hierarchy of values, the right of the people to
a proper frame of reference in arriving at their directly propose amendments to the Constitution is
decision (Tolentino v. COMELEC, et al., G.R. No. L- far more important than the initiative on national
34150, October 16, 1971). and local laws.
Initiative While RA 6735 specially detailed the process in

implementing initiative and referendum on
Power of the people to propose amendments to the national and local laws, it intentionally did not do
Constitution or to propose and enact legislation. so on the system of initiative on amendments to
the Constitution (Defensor-Santiago, et al., v.
Kinds of initiative under the Initiative and COMELEC, et al., G.R. No. 127325, March 19, 1997).
Referendum Act (RA 6735)
Referendum
1. Initiative on the Constitution Refers to a
petition proposing amendments to the Power of the electorate to approve or reject
Constitution. legislation through an election called for that
2. Initiative on statutes Refers to a petition to purpose.
enact a national legislation.
3. Initiative on local legislation Refers to a Kinds of referendum
petition proposing to enact a regional,
provincial, municipal, city, or barangay law, 1. Referendum on Statutes - Refers to a petition to
resolution or ordinance (RA 6735, Sec. 3 [a]). approve or reject a law, or part thereof, passed
by Congress.
NOTE: Sec. 3 [b] of RA 6735 provides for: 2. Referendum on Local Law Refers to a petition
a. Indirect Initiative Exercise of initiative by the to approve or reject a law, resolution or
people through a proposition sent to Congress ordinance enacted by regional assemblies and
or the local legislative body for action. local legislative bodies.
b. Direct Initiative The people themselves filed
the petition with the COMELEC and not with Initiative v. Referendum
Congress. (Ibid.)
BASIS INITIATIVE REFERENDUM
Inadequacy of the RA 6735 in covering the The power of Power of the
system of initiative on amendments to the the people to electorate to
Constitution propose approve or
amendments to reject
Under the said law, initiative on the Constitution is the Constitution legislation
confined only to proposals to amend. The people or to propose through an
are not accorded the power to "directly propose, Definition
and enact election called
enact, approve, or reject, in whole or in part, the legislations for that
Constitution" through the system of initiative. They through an purpose (RA
can only do so with respect to "laws, ordinances, or election called No. 6735
resolutions." Secondly, the Act does not provide for for the purpose. [1989], Sec.
the contents of a petition for initiative on the 3[c]).
Constitution. The use of the clause "proposed laws
sought to be enacted, approved or rejected,
amended or repealed" denotes that RA 6735

Local initiative v. Local referendum accord with the rhythm and harmony of nature
(Oposa v. Factoran, G.R. No. 101083, July 30,
LOCAL LOCAL 1993).
BASIS
INITIATIVE REFERENDUM
The legal process The legal b. Art. XIII on "Social Justice and Human Rights"
whereby the process c. Art. XIV on "Education Science and Technology,
registered voters whereby the Arts, Culture end Sports" (Manila Prince Hotel
of a local registered v. GSIS, G.R. 122156, February 3, 1997).
government unit voters of the
may directly local GENERAL PROVISIONS
propose, enact, government
Definition
or amend any units may Flag of the Philippines
ordinance (Local approve, amend
Government Code or reject any It shall be red, white, and blue, with a sun and three
[LGC], Sec. 120). ordinance stars, as consecrated and honored by the people
enacted by the and recognized by law (1987 Constitution, Art. XVI,
Sanggunian Sec. 1).
(LGC, Sec. 126).
Symbols of nationality
NOTE: The following cannot be subject of an
initiative or referendum: 1. Philippine Flag the flag may be changed by
a. No petition embracing more than one (1) constitutional amendment
subject shall be submitted to the electorate. 2. Name for the country
b. Statutes involving emergency measures, the 3. National anthem
enactment of which are specifically vested in 4. National seal
Congress by the Constitution, cannot be
subject to referendum until 90 days after their NOTE: Congress may, by law, adopt new symbols
effectivity (RA 6735, Sec. 10). in numbers 2, 3 and 4 subject to ratification by the
people in a referendum.
SELF-EXECUTING AND NON-SELF-EXECUTING
PROVISIONS Composition of the Armed Forces of the
Philippines
Self-executing provisions of the Constitution
It shall be composed of a citizen armed force which
1. Provisions in the Bill of Rights on shall undergo military training and serve, as may
a. arrests be provided by law (1987 Constitution, Art. XVI, Sec.
b. searches and seizures 4).
c. the rights of a person under custodial
investigation Bar on the AFP to participate in partisan
d. the rights of an accused political activities
e. the right against self-incrimination;
2. Fundamental rights of life, liberty and the It shall be insulated from partisan politics. No
protection of property; and member of the military shall engage directly or
3. Provisions forbidding the taking or damaging indirectly in any partisan political activity, except
of property for public use without just to vote (1987 Constitution, Art. XVI, Sec. 5[3]).
compensation.
NOTE: The prohibition also extends to
NOTE: government-owned or controlled corporations
GR: A constitutional provision is self-executing. (GOCC) or any of their subsidiaries (1987
Constitution, Art. XVI, Sec. 5[4]).
XPNs: Where it merely announces a policy and its
language empowers the legislature to prescribe the Period of the tour of duty of the Chief of Staff
means by which the policy shall be carried into
effect: GR: It shall not exceed three (3) years.
a. Art. II on "Declaration of Principles and State
Policies". XPN: It can be extended by the President during
times of war or any other national emergency,
XPN to the XPN: Sec. 16, Art. II Right of the provided that the existence of such be declared by
people to a balanced and healthful ecology in the Congress (1987 Constitution, Art. XVI, Sec. 5).

2015GOLDEN NOTES
GENERAL CONSIDERATIONS
GENERAL CONSIDERATIONS the bases under lease to the American armed

forces by virtue of the military bases agreement of
NATIONAL TERRITORY 1947. They are not and cannot be considered as
foreign territory.
Territory
Not even the embassy premises of a foreign power
are to be considered outside the territorial domain
Fixed portion of the surface of the Earth inhabited
of the host state. The ground occupied by an
by the people of the State. As an element of a State,
embassy is not in fact the territory of the foreign
it is an area over which a state has effective control.
State to which the premises belong through
possession or ownership. The lawfulness or
Composition of the Philippine Territory
unlawfulness of acts they committed is determined
by the territorial sovereign. If an attach commits
1. The Philippine archipelago That body of
an offense within the precincts of an embassy, his
water studded with islands which is delineated
immunity from prosecution is not because he has
in the Treaty of Paris, as amended by the
not violated the local law, but rather for the reason
Treaty of Washington and the Treaty with
that the individual is exempt from prosecution. If a
Great Britain.
person not so exempt, or whose immunity is
waived, similarly commits a crime therein, the
CONSISTS OF INCLUDING ITS
territorial sovereign, if it secures custody of the
a. Terrestrial 1. Territorial Sea offender, may subject him to prosecution, even
b. Fluvial 2. Seabed though its criminal code normally does not
c. Aerial Domains 3. Subsoil contemplate the punishment of one who commits
4. Insular shelves an offense outside of the national domain. It is not
5. Other Submarine believed, therefore, that an ambassador himself
areas possesses the right to exercise jurisdiction,
contrary to the will of the State of his sojourn, even
2. All other territories over which the Philippines within his embassy with respect to acts there
has sovereignty or jurisdiction Includes any committed. Nor is there apparent at the present
territory that presently belongs or might in the time any tendency on the part of States to
future belong to the Philippines through any of acquiesce in his exercise of it.
the accepted international modes of acquiring
territory. In the light of the above, the crucial error imputed
that it should have held that the Clark Air Base is
Components of the National Territory foreign soil or territory for purposes of income tax
legislation is clearly without support in law. There
1. Terrestrial Domain is nothing in the Military Bases Agreement that
2. Maritime Domain lends support to such an assertion. It has not
3. Aerial Domain become foreign soil or territory. This country's
jurisdictional rights therein, certainly not excluding
NOTE: RA 9522 which was approved by President the power to tax, have been preserved. As to
Arroyo on March 10, 2009 amended certain certain tax matters, an appropriate exemption was
provisions of RA 3046, as amended by RA 5446 provided for. As it ought to be and as it is,
and defined the archipelagic baselines of the Philippine soil or territory, her claim for exemption
Philippines. from the income tax due was distinguished only by
its futility (William C. Reagan v. Commissioner of
Q: An income tax was imposed on Emma Internal Revenue, G.R. No. L-26379, December 27,
Aguilar, an American. She, however, protested 1969).
on the imposition of the income tax arguing
that the income was earned in Clark Air Base, ARCHIPELAGIC DOCTRINE
which was considered "foreign soil" the same
as that of a foreign embassy in the Philippines,
Archipelagic State
thus, outside of Philippine jurisdiction. Is
Emma Aguilars argument acceptable?
A state constituted wholly by one or more
archipelagos and may include other islands.
A: NO. Clark Air Base and foreign embassies retain
their status as native soil. They are still subject to
Philippine authority. Its jurisdiction may be
diminished, but it does not disappear. So it is with

Archipelagic Doctrine 2. Except as provided for in par. 3, the territorial

sea, the contiguous zone, the exclusive
All waters, around between and connecting economic zone and the continental shelf of an
different islands belonging to the Philippine island are determined in accordance with the
Archipelago, irrespective of their width or provisions of this Convention applicable to
dimension, are necessary appurtenances of its land other land territory.
territory, forming an integral part of the national or 3. Rocks which cannot sustain human habitation
inland waters, subject to the exclusive sovereignty or economic life of their own shall have no
of the Philippines. exclusive economic zone or continental shelf.
The Archipelagic Doctrine emphasizes the unity of Spratlys Group of Islands (SGI) is not part of the
the land and waters by defining an archipelago as Philippine Archipelago because it is too far to be
group of islands surrounded by waters or a body of included within the archipelagic lines encircling
waters studded with islands. the internal waters of Philippine Archipelago. The
SGI, however, is part of the Philippine territory
NOTE: The second sentence of Article I is a because it was discovered by a Filipino seaman in
restatement or reaffirmation of our adherence to the name of Tomas Cloma who later renounced his
the Archipelago Doctrine. claim over it in favor of the Republic of the
Philippines. Subsequently, then Pres. Marcos
To emphasize unity, an imaginary single baseline is issued a Presidential Decree constituting SGI as
drawn around the islands by joining appropriate part of the Philippine territory and sending some of
points of the outermost islands of the archipelago our armed forces to protect said island and
with straight lines and all islands and waters maintain our sovereignty over it.
enclosed within the baseline form part of its
territory. SGI and Scarborough Shoal as part of the
National Territory
Purposes of the Archipelagic Doctrine
Art. I of the Constitution provides: The national
a. Territorial Integrity territory comprises the Philippine archipelago, xxx,
b. National Security and all other territories over which the Philippines
c. Economic reasons has sovereignty or jurisdiction, xxx. The SGI and
Scarborough Shoal fall under the second phrase,
NOTE: The main purpose of the archipelagic and all other territories over which the
doctrine is to protect the territorial interests of an Philippines has sovereignty or jurisdiction. It is
archipelago, its territorial integrity. Without it, part of our national territory because the
there would be pockets of high seas between Philippines exercise sovereignty (through election
some of our islands and islets, thus foreign vessels of public officials) over the Spratly Group of
would be able to pass through these pockets of Islands. Moreover, under the Philippine Baselines
seas and would have no jurisdiction over e. Law of 2009 (RA 9522), the Spratly Islands and the
Scarborough Shoal are classified as islands under
Effect of RA 9522 (An Act to Amend Certain the regime of the Republic of the Philippines
Provisions of RA 3046, As Amended by RA (Philippine Baselines Law of 2009).
5446, To Define the Archipelagic Baseline of the
Philippines and For Other Purposes) on specific STATE IMMUNITY
description and affirmation of sovereignty over
our national territory Doctrine of State Immunity
RA 9522 amends RA 3046, which defines the The State may not be sued without its consent
baselines of the territorial sea of the Philippines. (1987 Constitution, Art. XVI, Sec. 3).
The Kalayaan Island Group as constituted under
PD 1596 and Bajo de Masinloc, also known as Basis of the Doctrine of State Immunity
Scarborough Shoal is determined as Regime of
Islands under the Republic of the Philippines The state may not be sued without its consent.
consistent with Art. 121 of the United Nations Likewise, public officials may not be sued for acts
Convention on the Law of the Sea which states: done in the performance of their official functions
1. An island is a naturally formed area of land, or within the scope of their authority (Department
surrounded by water, which is above water at of Health., et al., v. Phil. Pharmawealth, Inc., G.R. No.
high tide. 182358, February 20, 2013).

2015GOLDEN NOTES
It reflects nothing less than the recognition of the Teotico, et al., G.R. No. L-23052, January
sovereign character of the State and an express 29, 1968);
affirmation of the unwritten rule effectively iv. Sec. 22(2), RA 7160, LGC of 1991
insulating it from the jurisdiction of courts. It is LGUs have power to sue and be sued;
based on the very essence of sovereignty v. Sec. 24 of LGC LGUs and their officials
(Department of Agriculture v. NLRC, G.R. No. are not exempt from liability for death
104269, November 11, 1993). or injury or damage to property.
NOTE: There can be no legal right against the NOTE: The express consent of the State to be
authority that makes the law on which the right sued must be embodied in a duly-enacted
depends (Republic v. Villasor, et al., G.R. No. L- statute and may not be given by a mere
30671, November 28, 1973). However, it may be counsel of the government (Republic v.
sued if it gives consent, whether express or Purisima, et al., G.R. No. L-36084, August 31,
implied. 1977).
This doctrine also applies to foreign governments Q: The members of the Kilusang
because of the sovereign equality of all the states. Magbubukid ng Pilipinas (KMP) and other
Accordingly, immunity is enjoyed by other States, members of sectoral organizations clashed
consonant with the public international law with the anti-riot squad which resulted to
principle of par in parem non habet imperium. The 13 deaths and several casualties. In the
head of State, who is deemed the personification of aftermath of the confrontation, President
the State, is inviolable, and thus, enjoys immunity Corazon C. Aquino issued AO 11 creating
from suit (JUSMAG Philippines v. NLRC, et al., G.R. the Citizens Mendiola Commission to
No. 108813, December 15, 1994). conduct the investigation about the
incident. The commission recommended
Remedy of a person who feels aggrieved by the compensating the victims. The petitioners
acts of a foreign government (Caylao group) together with the military
personnel involved in the Mendiola
Under both Public International Law and incident instituted an action against the
Transnational Law, a person who feels aggrieved Republic of the Philippines before the trial
by the acts of a foreign sovereign can ask his own court. Respondent Judge Sandoval
government to espouse his cause through dismissed the complaint on the ground of
diplomatic channels (Holy See v. Rosario, Jr., 238 state immunity from suit. Petitioners
SCRA 524, December 1, 1994). argued that the State has impliedly waived
its immunity from suit with the
WHEN THE STATE CONSENTS TO BE SUED recommendation of the Commission to
indemnify the heirs and victims of the
Forms of consent Mendiola incident by the government and
by the public addresses made by then
1. Express consent President Aquino in the aftermath of the
a. General law killings. Is the argument meritorious?
i. Act No. 3083 and CA 327 as amended
by Secs. 49-50, PD 1445 Money A: NO. The actions of President Aquino cannot
claims arising from contracts which be deemed as a waiver of State immunity.
could serve as a basis of civil action Whatever acts or utterances that then
between private parties to be first President Aquino may have done or said, the
filed with COA before a suit may be same are not tantamount to the State having
filed in court. The COA must act upon waived its immunity from suit. The President's
the claim within 60 days. Rejection of act of joining the marchers, days after the
the claim authorizes the claimant to incident, does not mean that there was an
elevate the matter to the Supreme admission by the State of any liability. In fact to
Court on certiorari. borrow the words of petitioners (Caylao
ii. Art. 2180, NCC Tort committed by group), "it was an act of solidarity by the
special agent; government with the people". Moreover,
iii. Art. 2189, NCC LGUs liable for petitioners rely on President Aquino's speech
injuries or death caused by defective promising that the government would address
condition of roads or public works the grievances of the rallyists. By this alone, it
under their control (City of Manila v. cannot be inferred that the State has admitted
any liability, much less can it be inferred that it

has consented to the suit (Republic, et al., v. since the action in that regard constituted a
Sandoval, et al., G.R. No. 84607, March 19, suit against the United Sates to which it had
1993). not given its consent. Did the Republic of
the Philippines by its intervention waive its
b. Special law right of immunity from suit?
i. By virtue of PD 1620, the grant of
immunity to IRRI is clear and A: NO. The Republic of the Philippines did not
unequivocal, and an express waiver by waive its immunity from suit. The Republic of
its Director General is the only way by the Philippines intervened in the case merely
which it may relinquish or abandon to unite the defendant Attorney General of the
this immunity (Callado, v. IRRI, G.R. No. United States in resisting plaintiffs claims, and
106483, May 22, 1995). for that reason asked no affirmative relief
against any party in the answer in intervention
2. Implied consent it filed, and in its answer to the amended
a. When the State commences litigation, it complaint, "reproduced and incorporated by
becomes vulnerable to counterclaim reference" all the affirmative defenses
(Froilan v. Pan Oriental Shipping, G.R. No. L- contained in the answer of the defendant
6060, September 30, 1954). Attorney General, one of which is that the
lower court had no jurisdiction over the claim
Q: The City of Manila wanted to acquire the for rentals because of lack of consent to be
lots of private respondents for its land for sued. This is not a case where the state takes
the landless project. The City offered a the initiative against a private party by filing a
price for the purchasing of the lots which complaint in intervention, thereby
was rejected by the private respondents for surrendering its privileged position and
being too low. The City then filed a coming down to the level of the defendant, but
complaint for expropriation against private one where the state, as one of the defendants,
respondents. Subsequently, both of the merely resisted a claim against it precisely on
parties agreed to enter a pre-trial the ground among others, of its privileged
conference, opting to submit their position, which exempts it from suit (Lim v.
memoranda. The private respondents Brownell, et al., G.R. No. L-8587, March 24,
submitted theirs, while the City failed to do 1960).
so. The RTC then dismissed the complaint.
Did the RTCs dismissal constitute a b. When State enters into a business
violation of the petitioners right to due contract.
process?
Capacities of the State in entering into contracts
A: NO. Evidently, the City cannot claim that it
had been denied the opportunity of a hearing. 1. In jure gestionis By right of economic or
The agreement implied that the City was business relations; commercial, or proprietary
waiving its right to present evidence that it acts. MAY BE SUED (US, et al., v. Guinto, et al.,
was acquiring the subject lots by expropriation G.R. No. 76607, February 26, 1990).
for a proper public purpose. Counsel for the 2. In jure imperii By right of sovereign power
City may have been confident that its and in the exercise of sovereign functions. No
allegations in the complaint can stand on their implied consent (US, et al., v. Ruiz, et al., G.R. No.
own, ignoring the owners challenge to its right L-35645, May 22, 1985).
to expropriate their lots for the stated purpose.
Parenthetically, the City moved for the NOTE: In exercising the power of eminent
reconsideration of the RTCs order of dismissal domain, the State exercises a power jure
but withdrew this remedy by filing a notice of imperii. Yet, it has been held that where
appeal from that order to the CA (City of property has been taken without the payment
Manila v. Alegar Corp., et al., G.R. No. 187604, of just compensation, the defense of immunity
June 25, 2012). from suit cannot be set up in an action for
payment by the owner. (Republic v.
Q: In a property dispute, the Attorney Sandiganbayan, et al., G.R. No. 90478, November
General of the United States and the 21, 1991).
defendant-intervenor Republic of the
Philippines each filed an answer alleging by Q: Do all contracts entered into by the
way of affirmative defense that the lower government operate as a waiver of its non-
court had no jurisdiction over the claim suability?

2015GOLDEN NOTES
State divested itself of its sovereign capacity when

A: NO. Distinction must still be made between one it organized the PNR which is no different from its
which is executed in the exercise of its sovereign predecessors, the Manila Railroad Company
function and another which is done in its (Malang, et al., v. PNRC, et al., G.R. No. L-49930,
proprietary capacity. A State may be said to have August 7, 1985).
descended to the level of an individual and can be
deemed to have actually given its consent to be Unincorporated government agency
sued only when it enters into business contracts. It performing governmental function v. one
does not apply where the contract relates to the performing proprietary functions
exercise of its sovereign functions (Department of
Agriculture v. NLRC G.R. No. 104269, November 11, UNINCORPORAT UNINCORPORATED
1993). ED GOVERNMENT
GOVERNMENT AGENCY
Restrictive Theory of State Immunity from suit BASIS AGENCY PERFORMING
PERFORMING PROPRIETARY
The State may be said to have descended to the GOVERNMENTA FUNCTIONS
level of an individual and can thus be deemed to L FUNCTIONS
have tacitly given its consent to be sued only when Immunity has Immunity has not
it enters into business contracts. However, the been upheld in been upheld in its
restrictive application of State immunity is proper its favor favor whose
only when the proceedings arise out of commercial because its function was not in
transactions of the foreign sovereign, its function is pursuit of a
commercial activities or economic affairs. It does governmental necessary function
not apply where the contract relates to the exercise or incidental to of government but
of its sovereign functions (US, et al., v. Ruiz, et al., Definition
such function. was essentially a
G.R. No. L-35645, May 22, 1985). business (Air
Transportation
A suit is considered as suit against the State Office v. Spouses
when David, G.R. No.
159402, February
1. The Republic is sued by name; 23, 2011).
2. The suit is against an unincorporated
government agency performing propriety Implications of the phrase waiver of immunity
functions; by the State does not mean a concession of its
3. The suit is on its face against a government liability
officer but the case is such that ultimate
liability will belong not to the officer but to the When the State gives its consent to be sued, all it
government (Republic v. Sandoval, G.R. No. does is to give the other party an opportunity to
84607, March 19, 1993). show that the State is liable. Accordingly, the
phrase that waiver of immunity by the State does
Q: Spouses Bana sued the Philippine National not mean a concession of liability means that by
Railways for damages for the death of their son consenting to be sued, the State does not
who fell from an overloaded train belonging to necessarily admit that it is liable.
the PNR. The trial court dismissed the suit on
the ground that the charter of the PNR, as In such a case, the State is merely giving the
amended by PD 741, has made the same a plaintiff a chance to prove that the State is liable
government instrumentality, and thus immune but the State retains the right to raise all lawful
from suit. Is the dismissal proper? defenses (Philippine Rock Industries, Inc. v. Board of
Liquidators, G.R. No. 84992, December 15, 1989).
A: NO. PNR is not immune from suit. It did not
remove itself from the operation of Arts. 1732 to Suability v. Liability of the State
1766 of the Civil Code on common carriers. Not all
government entities, whether corporate or non-
BASIS SUABILITY LIABILITY
corporate, are immune from suits. Immunity from
suit is determined by the character of the objects Depends on the Depends on
for which the entity is organized. When the consent of the the
government enters into a commercial business, it As to basis State to be sued applicable
abandons its sovereign capacity and is to be law and the
treated like any other corporation. In this case, the established

facts act of appropriating the needed amount to satisfy

the judgment. If the State will have to do so, then, it
The The State can is a suit against the State.
circumstance never be held
As a that a State is liable if it is The Doctrine of State Immunity from suit applies to
consequence suable does not not suable. complaints filed against public officials for acts
of another necessarily done in the performance of their duties within the
mean that it is scope of their authority. In which case, the suit filed
liable. against the public official is deemed as a suit
against the State.
Rule on the liabilities of the following:
GR: The rule is that the suit must be regarded as
1. Public officers By their acts without or in one against the state where the satisfaction of the
excess of jurisdiction: any injury caused by him judgment against the public official concerned will
is his own personal liability and cannot be require the state to perform a positive act, such as
imputed to the State. appropriation of the amount necessary to pay the
2. Government agencies Establish whether or damages awarded to the plaintiff.
not the State, as principal which may
ultimately be held liable, has given its consent. XPNs: The rule does not apply where:
3. Government Doctrine of State immunity is 1. The public official is charged in his official
available. capacity for acts that are unlawful and
injurious to the rights of others. Public officials
Determination of suability of government are not exempt, in their personal capacity,
agencies from liability arising from acts committed in
bad faith; or
GOVERNMENT 2. The public official is clearly being sued not in
SUABILITY his official capacity but in his personal
AGENCIES
capacity, although the acts complained of may
Incorporated agencies Test of suability is
have been committed while he occupied a
stated in their
public position (Lansang v. CA, et al., G.R. No.
charters. If its charter
102667, February 23, 2000).
says so, it is suable
Unincorporated Suable if the nature of Garnishment of government funds
government agencies their acts is
proprietary GR: Whether the money is deposited by way of
general or special deposit, they remain government
Instances when a public officer may be sued funds and are not subject to garnishment.
without the States consent
XPN: Where a law or ordinance has been enacted
1. To compel him to do an act required by law appropriating a specific amount to pay a valid
2. To restrain him from enforcing an act claimed government obligation, then the money can be
to be unconstitutional garnished.
3. To compel payment of damages from an
already appropriated assurance fund or to NOTE: Funds belonging to government
refund tax over-payments from a fund already corporations, which can sue and be sued and are
available for the purpose deposited with a bank, can be garnished (PNB v.
4. To secure a judgment that the officer Pabalan, et al., G.R. No. L-33112, June 15, 1978).
impleaded may satisfy the judgment by himself
without the State having to do a positive act to If the local legislative authority refuses to enact a
assist him law appropriating the money judgment rendered
5. Where the government itself has violated its by the court, the winning party may file a petition
own laws because the doctrine of State for mandamus to compel the legislative authority
immunity cannot be used to perpetrate an to enact a law (Municipality of Makati v. CA, et al.,
injustice G.R. Nos. 89898-99, October 1, 1990).
NOTE: The true test in determining whether a suit
against a public officer is a suit against the State is
that, if a public officer or agency is sued and made
liable, the State will have to perform an affirmative

2015GOLDEN NOTES
Q: Can the government be made to pay interest representatives chosen by the people (Dissenting
in money judgments against it? Opinion of Justice Puno, G.R. No. 148334, January 21,
2004).
A: GR: No.
Manifestations of Republicanism
XPNs:
1. Exercise of the power of eminent domain 1. Ours is a government of laws and not of men.
2. Erroneous collection of taxes 2. Rule of Majority (Plurality in elections)
3. Where government agrees to pay interest 3. Accountability of public officials
pursuant to law 4. Bill of Rights
5. Legislature cannot pass irrepealable laws
Q: Dexter Suyat filed an action directly in court 6. Separation of powers
against the government seeking payment for a
parcel of land which the national government NOTE: The Philippines is not only a representative
utilized for a road widening project. Can the or republican state but also shares some aspects of
government invoke the doctrine of non- direct democracy such as initiative and
suitability of the state? referendum.
A: NO. When the government expropriates Constitutional Authoritarianism

property for public use without paying just
compensation, it cannot invoke its immunity from As understood and practiced in the Marcos regime
suit. Otherwise, the right guaranteed in Sec. 9, Art. under the 1973 constitution, it is the assumption of
III of the 1987 Constitution that private property extraordinary powers by the President including
shall not be taken for public use without just legislative and judicial and even constituent
compensation will be rendered nugatory powers.
(Ministerio, et al., v. Court of First Instance, et al.,
G.R. No. L-31635, August 31, 1971). Compatibility of constitutional
authoritarianism with a republican state
GENERAL PRINCIPLES AND STATE POLICIES
Constitutional authoritarianism is compatible with
Provisions in Art. II are not self-executing a republican state if the Constitution upon which
the Executive bases his assumption of power is a
GR: By its very title, Art. II of the Constitution is a legitimate expression of the peoples will and if the
declaration of principles and state policies. Executive who assumes power received his office
However, principles in Art. II are not intended to be through a valid election by the people.
self-executing principles ready for enforcement
through the courts. They are used by the judiciary State policy on war
as aids or guides in the exercise of its power of
judicial review, and by the legislature in its The State renounces war as an instrument of
enactment of laws (Tondo Medical Employees national policy (1987 Constitution, Art. II, Sec. 2).
Association, et al. v. CA, et al., G.R. No. 167324, July
17, 2007). NOTE: The Philippines does not renounce
defensive war because it is duty bound to defend
XPN: But a provision that is complete in itself, and its citizens. Under the Constitution, the prime duty
provides sufficient rules for the exercise of rights, of the government is to serve and protect the
is self-executing. Thus, certain provisions in Art. II people.
are self-executing, one of which is that provided in
Sec. 16, Art. II, The State shall protect and advance Voting requirements to declare the existence of
the right of the people to a balanced and healthful a state of war
ecology in accord with the rhythm and harmony of
nature (Oposa v. Factoran, supra.). The duty of full 1. 2/3 vote of both Houses
public disclosure is a self-executing provision 2. In joint session
(Province of North Cotabato v. GRP, G.R. 183591, 3. Voting separately
October 14, 2008).
NOTE: Even though the legislature can declare an
Republican State existence of war and enact measures to support it,
the actual power to engage in war is lodged,
A state wherein all government authority emanates nonetheless, in the executive.
from the people and is exercised by

Independent Foreign Policy and a nuclear-free that the Taguig City Government has been
Philippines maintaining the said dumpsite without an
Environmental Compliance Certificate from
The State shall pursue an independent foreign the Environmental Management Bureau of
policy. In its relations with other states, the the DENR, and also found the water to have
paramount consideration shall be national been directly contaminated by the
sovereignty, territorial integrity, national interest, dumpsite operations. Then, LLDA, under RA
and the right to self-determination (1987 4850, issued a cease and desist order
Constitution, Art. 2, Sec. 7). against the City Government to completely
stop the dumping of any form or kind of
The Philippines, consistent with the national waste matter to the dumpsite. Does the
interest, adopts and pursues a policy of freedom LLDA have the power and authority to issue
from nuclear weapons in its territory. (1987 a cease and desist order under RA 4850
Constitution, Art. II, Sec. 8). enjoining the dumping of garbage in Taguig
City?
NOTE: This pertains to use of nuclear weapons and
not nuclear source of energy. A: YES. In the exercise, therefore, of its express
powers under its charter as a regulatory and
All existing treaties or international agreements quasi-judicial body with respect to pollution
which have not been ratified shall not be renewed cases in the Laguna Lake region, the authority
or extended without the concurrence of at least of the LLDA to issue a cease and desist order
two-thirds of all the Members of the Senate (1987 is implied and need not necessarily be express.
Constitution, Art. XVIII, Sec. 4). Moreover, the immediate response to the
demands of "the necessities of protecting vital
After the expiration in 1991 of the Agreement public interests" gives vitality to the statement
between the Republic of the Philippines and the on ecology embodied in Art. II, Sec. 16 of the
United States of America concerning military bases, Constitution which provides: The State shall
foreign military bases, troops, or facilities shall not protect and advance the right of the people to a
be allowed in the Philippines except under a treaty balanced and healthful ecology in accord with
duly concurred in by the Senate and, when the the rhythm and harmony of nature. As a
Congress so requires, ratified by a majority of the constitutionally guaranteed right of every
votes cast by the people in a national referendum person, it carries the correlative duty of non-
held for that purpose, and recognized as a treaty by impairment. Hence, the issuance of the cease
the other contracting State (1987 Constitution, Art. and desist order by the LLDA is a proper
XVIII, Sec. 25). exercise of its power and authority under its
charter and in consonance with the declared
Policies of the State on the following: policy of the state to protect and promote the
right to health of the people and instill health
1. Working women Sec. 14, Art. XIII of the consciousness among them (Laguna Lake
Constitution provides: "The State shall protect Development Authority v. Court of Appeals, et
working women by providing safe and al., G.R. No. 110120, March 16, 1994).
healthful working conditions, taking into
account their maternal functions, and such 3. The symbols of statehood - Art. XVI, Sec. 1 of the
facilities and opportunities that will enhance Constitution provides: "The Flag of the
their welfare and enable them to realize their Philippines shall be red, white, and blue, with a
full potential in the service of the nation." sun and three stars, as consecrated and
2. Ecology Sec. 16, Art. II of the Constitution honored by the people and recognized by law."
provides: The State shall protect and advance
the right of the people and their posterity to a Art. XVI, Sec. 2 of the Constitution states: The
balanced and healthful ecology in accord with Congress may by law, adopt a new name for
the rhythm and harmony of nature." the country, a national anthem, or a national
seal, which shall all be truly reflective and
Q: The residents of Taguig City brought a symbolic of the ideals, history, and traditions
complaint before Laguna Lake of the people. Such law shall take effect only
Development Authority (LLDA) about an upon its ratification by the people in a national
open garbage dumpsite in their city and referendum."
sought its closure due to its harmful effects 4. Cultural minorities Art. II, Sec. 22 of the
on health and the pollution it brings to the Constitution provides: The State recognizes
lake. Upon investigation, LLDA discovered and promotes the rights of indigenous cultural

2015GOLDEN NOTES
communities within the framework of national Art. XIV, Sec. 3[2] of the Constitution states:
unity and development." "They (educational institutions) shall inculcate
patriotism and nationalism, foster love of
Art. XII, Sec. 5 of the Constitution reads: The humanity, respect for human rights,
State, subject to the provisions of this appreciation of the role of national heroes in
Constitution and national development the historical development of the country,
policies and programs, shall protect the rights teach the rights and duties of citizenship,
of indigenous cultural communities to their strengthen ethical and spiritual values, develop
ancestral lands to ensure their economic, social moral character and personal discipline,
and cultural well-being. encourage critical and creative thinking,
broaden scientific and technological
The Congress may provide for the applicability knowledge, and promote vocational
of customary laws governing property rights efficiency."
or relations in determining the ownership and
extent of the ancestral domains." Art. XIV, Sec. 10 of the Constitution declares:
"Science and Technology are essential for
Art. XIII, Sec.65 of the Constitution provides: national development and progress. The State
The State shall apply the principles of shall give priority to research and
agrarian reform or stewardship, whenever development, invention, innovation, and their
applicable in accordance with law, in the utilization; and to science and technology
disposition or utilization of other natural education, training, services. It shall support
resources, including lands of the public domain indigenous, appropriate, and self-reliant
under lease or concession suitable to scientific and cultural capabilities, and their
agriculture, subject to prior rights, homestead application to the country's productive
rights of small settlers, and the rights of systems and national life."
indigenous communities to their ancestral
lands. Art. XIV, Sec. 11 of the Constitution provides:
"The Congress may provide for incentives,
The State may resettle landless farmers and including tax deductions, to encourage private
farm workers in its own agricultural estates participation in programs of basic and applied
which shall be distributed to them in the scientific research. Scholarships, grants-in-aid
manner provided by law." or other forms of Incentives shall be provided
to deserving science students, researchers,
Art. XIV, Sec. 17 of the Constitution states: "The scientists, investors, technologists, and
State shall recognize, respect and protect the specially gifted citizens."
rights of indigenous cultural communities to
preserve and develop their cultures, traditions, Art. XIV, Sec. 12 of the Constitution reads: The
and institutions. It shall consider these rights State shall regulate the transfer and promote
in the formulation of national plans and the adaptation of technology from all sources
policies for the national benefit. It shall encourage
5. Science and technology Art. 2, Sec. 17 of the widest participation of private groups, local
Constitution provides: "The State shall give governments, and community-based
priority to education, science and technology, organizations in the generation and utilization
arts, culture and sports to foster patriotism of science and technology."
and nationalism, accelerate social progress,
and promote total human liberation and Constitutional provision on transparency in
development." matters of public concern
Art. XII, Sec. 14 of the Constitution reads in part: The 1987 Constitution provides for a policy of
"The sustained development of a reservoir of transparency in matters of public interest:
national talents consisting of Filipino
scientists, entrepreneurs, professionals, 1. Art. II, Sec. 28 of the 1987 Constitution provides:
managers, high-level technical manpower and "Subject to reasonable conditions prescribed
skilled workers and craftsmen shall be by law, the State adopts and implements a
promoted by the State. The State shall policy of full disclosure of all its transactions
encourage appropriate technology and involving public interest,"
regulate its transfer for the national benefit. 2. Art. III, Sec. 7 states: "The right of the people to
information on matters of public concern shall
be recognized, access to official records, and to

documents, and papers pertaining to official international

acts, transactions, or decisions, as well as to law, which are
government research data used as basis for considered to be
policy development, shall be afforded the automatically
citizen, subject to such limitations as may be part of our own
provided by law." laws. (Taada v.
3. Art. VI, Sec. 20 reads: "The records and books Angara, G.R. No.
of account of the Congress shall be preserved 118295, May 2,
and be open to the public in accordance with 1997)
law, and such books shall be audited by the
Commission on Audit which shall publish NOTE: The fact that the international law has been
annually an itemized list of amounts paid to made part of the law of the land does not by any
and expenses incurred for each member." means imply the primacy of international law over
4. Art. XI, Sec. 17 provides: A public officer or national law in the municipal sphere (Philip Morris,
employee shall, upon assumption of office and Inc., et al. v. CA, et al., G.R. No. 91332, July 16, 1993).
as often thereafter as may be required by law,
submit a declaration under oath of his assets, Sovereignty
liabilities, and net worth. In the case of the
President, the Vice-President, the Members of Supreme and uncontrollable power inherent in a
the Cabinet, the Congress, the Supreme Court, State by which the State is governed.
the Constitutional Commissions and other
constitutional offices, and officers of the armed Characteristics of Sovereignty
forces with general or flag rank, the
declaration shall be disclosed to the public in 1. Permanent;
the manner provided by law. 2. Exclusive;
5. Art. XII, Sec. 21 declares in part: "Information 3. Comprehensive;
on foreign loans obtained or guaranteed by the 4. Absolute;
government shall be made available to the 5. Indivisible;
public." 6. Inalienable; and
7. Imprescriptible (Laurel v. Misa, G.R. No. L-409,
NOTE: These provisions on public disclosures are January 30, 1947).
intended to enhance the role of the citizenry in
governmental decision-making as well as in Sovereignty: Imperium v. Dominium
checking abuse in government (Valmonte, et al., v.
Belmonte, G.R. No. 74930, February 13, 1989). BASIS IMPERIUM DOMINIUM
The States Capacity of the
Doctrine of Incorporation v. Doctrine of authority to state to own or
Transformation govern as acquire
embraced in the property.
DOCTRINE OF DOCTRINE OF concept of
BASIS
INCORPORATION TRANSFORMATION sovereignty;
It means that the Generally Definition includes passing
rules of accepted rules of and laws governing a
International international law Extent territory,
Law form part of are not per se maintaining
the law of the binding upon the peace and order
land and no State but must over it, and
legislative action first be embodied defeating it
is required to in legislation against foreign
Definition make them enacted by the invasion.
applicable in a lawmaking body (Lee Hong Hok, et al., v. David, et al., G.R. No. L-
country. By this and so 30389, December 27, 1972)
doctrine, the transformed into
Philippines is municipal law. Q: Is sovereignty absolute?
bound by
generally A: While sovereignty has traditionally been
accepted deemed absolute and all-encompassing on the
principles of domestic level, it is however subject to restrictions

2015GOLDEN NOTES
and limitations voluntarily agreed to by the required for the exercise of civil or political
Philippines, expressly or impliedly as a member of rights.
the family of nations. 2. Art. VI, Sec. 5[2] provides: The party-list
representatives shall constitute twenty per
By the doctrine of incorporation, the country is centum of the total number of representatives
bound by generally accepted principles of including those under the party list. For three
international law, which are considered to be consecutive terms after the ratification of this
automatically part of our own laws (Taada, et al., Constitution, one-half of the allocated to party-
v. Angara, et al., G.R.No. 118295, May 2, 1997). list representatives shall be filled, as provided
by law, by selection or election from the labor,
Constitutional provisions which ensure civilian peasant, urban poor, indigenous cultural
supremacy communities, women, youth, and such other
sections as may be provided by law, except the
1. By the installation of the President, the highest religious sector.
civilian authority, as the commander-in-chief 3. Art. IX-CI, Sec. 2[5] provides: Register, after
of all the armed forces of the Philippines (1987 sufficient publication, political parties,
Constitution, Art. VII, Sec. 18). organizations, or coalitions which, in addition
2. Through the requirement that members of the to other requirements, must present their
AFP swear to uphold and defend the platform or program of government; and
Constitution, which is the fundamental law of a accredit citizens' arms of the Commission on
civil government (1987 Constitution, Art. XVI, Elections. Religious denominations and sects
Sec. 5, Par. 1). shall not be registered. Those which seek to
achieve their goals through violence or
NOTE: By civilian supremacy, it is meant that unlawful means, or refuse to uphold and
civilian authority is, at all times, supreme over the adhere to this Constitution, or which are
military. supported by any foreign government shall
likewise be refused registration. Financial
Mandatory rendition of military services to contributions from foreign governments and
defend the State their agencies to political parties,
organizations, coalitions, or candidates related
One cannot avoid compulsory military service by to elections, constitute interference in national
invoking ones religious convictions or by saying affairs, and, when accepted, shall be an
that he has a sick father and several brothers and additional ground for the cancellation of their
sisters to support. Accordingly, the duty of registration with the Commission, in addition
government to defend the State cannot be to other penalties that may be prescribed by
performed except through an army. To leave the law.
organization of an army to the will of the citizens
would be to make this duty to the Government NOTE: Exceptions to the principle are the
excusable should there be no sufficient men who following provisions of the Constitution:
volunteer to enlist therein. The right of the 1. Art. VI, Sec. 28[3] provides: Charitable
Government to require compulsory military institutions, churches and parsonages or
service is a consequence of its duty to defend the convents appurtenant thereto, mosques,
State and is reciprocal with its duty to defend the non-profit cemeteries, and all lands,
life, liberty, and property of the citizen (People v. buildings, and improvements, actually,
Zosa, G.R. No. L-45892-93, July 13, 1938). directly, and exclusively used for religious,
charitable, or educational purposes shall
SEPARATION OF CHURCH AND STATE be exempt from taxation.
2. Art. VI, Sec. 29[2] provides: No public
Provisions of the Constitution that support the money or property shall be appropriated,
principle of separation of Church and State applied, paid, or employed, directly or
indirectly, for the use, benefit, or support
1. Art. III, Sec. 5 of the 1987 Constitution states of any sect, church, denomination,
that: No law shall be made respecting an sectarian institution, or system of religion,
establishment of religion, or prohibiting the or of any priest, preacher, minister, or
free exercise thereof. The free exercise and other religious teacher, or dignitary as
enjoyment of religious profession and worship, such, except when such priest, preacher,
without discrimination or preference, shall minister, or dignitary is assigned to the
forever be allowed. No religious test shall be armed forces, or to any penal institution,

or government orphanage or adherence to the benevolent neutrality approach

leprosarium. that requires accommodations in interpreting the
3. Art. XIV, Sec. 3[3] provides: At the option religion clauses (Estrada v. Escritor, A.M. No. P-02-
expressed in writing by the parents or 1651, June 22, 2006).
guardians, religion shall be allowed to be
taught to their children or wards in public Kinds of accommodation that result from free
elementary and high schools within the exercise claim
regular class hours by instructors
designated or approved by the religious 1. Mandatory Those which are found to be
authorities of the religion to which the constitutionally compelled, i.e. required by the
children or wards belong, without Free Exercise Clause;
additional cost to the Government. 2. Permissive Those which are discretionary or
4. Art. XIV, Sec. 4[2] provides: Educational legislative, i.e. not required by the Free
institutions, other than those established Exercise Clause;
by religious groups and mission boards, 3. Prohibited Those which are prohibited by the
shall be owned solely by citizens of the religion clauses.
Philippines or corporations or associations
at least sixty per centum of the capital of NOTE: Based on the foregoing, and after holding
which is owned by such citizens. The that the Philippine Constitution upholds the
Congress may, however, require increased Benevolent Neutrality Doctrine which allows for
Filipino equity participation in all accommodation, the Court laid down the rule that
educational institutions. in dealing with cases involving purely conduct
based on religious belief, it shall adopt the Strict-
Theories on the separation of church and state Compelling State interest test because it is most in
line with the benevolent neutrality-
1. Separation Standard - May take the form of accommodation.
either (a) strict separation or (b) the tamer
version of strict neutrality, or what Justice Difference between Mandatory
Carpio refers to as the second theory accommodation, Permissive accommodation
of governmental neutrality. and Prohibited accommodation
a. Strict Separationist The establishment
clause was meant to protect the State from MANDATORY PERMISSIVE PROHIBITED
the church, and the States hostility ACCOMMODA- ACCOMODATI- ACCOMMODA-
towards religion allows no interaction TION ON TION
between the two. Basis and Action Taken
b. Strict Neutrality Approach It is not
Based on the Means that Results when the
hostility towards religion, but a strict
premise that the state may, Court finds no
holding that religion may not be used as a when religious but is not basis for a
basis for classification for purposes of
conscience required to, mandatory
governmental action, whether the action
conflicts with a accommodate accommodation,
confers rights or privileges or imposes
government religious or it determines
duties or obligations. Only secular criteria obligation or interests. that the
may be the basis of government action. It
prohibition, legislative
does not permit; much less require
the accommodation
accommodation of secular programs to government runs afoul of the
religious belief.
sometimes establishment or
2. Benevolent Neutrality Approach The wall of
may have to the free exercise
separation is meant to protect the church give way. This clause. In this
from the State. It believes that with respect to
accommodatio case, the Court
governmental actions, accommodation of
n occurs when finds that
religion may be allowed, not to promote the
all three establishment
governments favored form of religion, but to conditions of concerns prevail
allow individuals and groups to exercise their
the compelling over potential
religion without hindrance (Estrada v. Escritor,
State interest accommodation
A.M. No. P-02-1651, June 22, 2006). test are met. interests.
NOTE: In the Philippine context, the Court
categorically ruled that, the Filipino people, in
adopting the Constitution, manifested their

2015GOLDEN NOTES
NOTE: The purpose of accommodations is to review the decisions of the SC by entertaining a

remove a burden on, or facilitate the exercise of, a complaint against the Justices of the SC for
persons or institutions religions. knowingly rendering an unjust decision (In re:
Laureta, G.R. No. L-68635, May 14, 1987).
SEPARATION OF POWERS
Alternative Answer:
Doctrine of Separation of Powers Art. XI, Sec. 1 of the 1987 Constitution provides that
public officers must at all times be accountable to
The legislation belongs to the Congress, execution the people. Sec. 22 of the Ombudsman Act provides
to the executive, and settlement of legal that the Office of the Ombudsman has the power to
controversies to the judiciary. Each is therefore investigate any serious misconduct allegedly
prevented from invading the domain of the others. committed by officials removable by impeachment
for the purpose of filing a verified complaint for
Purposes of Separation of Powers impeachment if warranted. The Ombudsman can
entertain the complaint for this purpose.
1. Secure action
2. Forestall over-action Q: May the RTC or any court prohibit a
3. Prevent despotism committee of the Senate like the Blue Ribbon
4. Obtain efficiency Committee from requiring a person to appear
before it when it is conducting investigation in
NOTE: To prevent the concentration of authority in aid of legislation?
one person or group of persons that might lead to
irreparable error or abuse in its exercise to the A: The RTC or any court may not do so because
detriment of republican institutions. The purpose that would be violative of the principle of
was not to avoid friction, but, by means of the separation of powers. The principle essentially
inevitable friction incident to the distribution of means that legislation belongs to Congress,
governmental powers among the three execution to the Executive and settlement of legal
departments, to save the people from autocracy. controversies to the Judiciary. Each is prevented
from invading the domain of the others (Senate
Powers vested in the three branches of Blue Ribbon Committee v. Majaducon, G.R. No.
government 136760, July 29, 2003).
EXECUTIVE LEGISLATIVE JUDICIARY Q: The Panel of Prosecutors issued a joint

Implementation Interpretation of resolution based on the affidavits of Kenny
Making of laws Dalandag, charging several individuals with
of laws laws
and power of the multiple murder in relation to the
(Power of the (Power of judicial
purse Maguindanao massacre. Kenny Dalandag was
sword) review)
then admitted to the Witness Protection
NOTE: Legislative power is given to the legislature Program of the DOJ. Petitioner Andal
whose members hold office for a fixed term (Sec. 1, Ampatuan, Jr., one of the principal suspects,
Art. VI); Executive power is given to a separate wrote to respondent Secretary of Justice De
Executive who holds office for a fixed term (Sec. 1, Lima and Asst. Chief State Prosecutor Fadullon,
Art. VII); and Judicial power is held by an requesting that Dalandag be included in the
independent Judiciary (Sec. 1, Art. VIII). information for murder considering he already
confessed his participation in the massacre.
Q: A group of losing litigants in a case decided Respondent refused. Petitioner Ampatuan then
by the SC filed a complaint before the filed a petition for mandamus. May the
Ombudsman charging the Justices with respondents be compelled by the writ of
knowingly and deliberately rendering an mandamus to charge Dalandag as an accused
unjust decision in utter violation of the penal for multiple murder in relation to the
laws of the land. Can the Ombudsman validly Maguindanao massacre even if he is under the
take cognizance of the case? Witness Protection Program?
A: Pursuant to the principle of separation of A: Consistent with the principle of separation of

powers, the correctness of the decisions of the SC powers enshrined in the Constitution, the Court
as final arbiter of all justifiable disputes is deems it a sound judicial policy not to interfere in
conclusive upon all other departments of the the conduct of preliminary investigations, and to
government; the Ombudsman has no power to allow the Executive Department, through the
Department of Justice, exclusively to determine

what constitutes sufficient evidence to establish post-enactment measures, such as project

probable cause for the prosecution of supposed identification, execution and operation aspects
offenders. By way of exception, however, judicial of the identified projects. Is such provision
review may be allowed where it is clearly violative of the principle of separation of
established that the public prosecutor committed powers?
grave abuse of discretion, that is, when he has
exercised his discretion in an arbitrary, capricious, A: YES. There is a violation of the principle when
whimsical or despotic manner by reason of passion there is impermissible (a) interference with and/or
or personal hostility, patent and gross enough as to (b) assumption of another department's functions.
amount to an evasion of a positive duty or virtual
refusal to perform a duty enjoined by law. These post-enactment measures, which govern the
areas of project identification, fund release and
Kenny Dalandag who admitted his participation in fund realignment are not related to functions of
the commission of the Maguindanao massacre was congressional oversight and, hence, allow
no hindrance to his admission into the Witness legislators to intervene and/or assume duties that
Protection Program as a state witness, for all that properly belong to the sphere of budget execution.
was necessary was for him to appear not the most Legislators have been, in one form or another,
guilty. Accordingly, he could not anymore be authorized to participate in "the various
charged for his participation in the Maguindanao operational aspects of budgeting in violation of
massacre, as to which his admission operated as an the separation of powers principle.
acquittal, unless he later on refuses or fails to
testify in accordance with the sworn statement that From the moment the law becomes effective, any
became the basis for his discharge against those provision of law that empowers Congress or any of
now charged for the crimes (Ampatuan, Jr., v. De its members to play any role in the implementation
Lima, et al., G.R. No. 197291, April 3, 2013). or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional.
Principle of blending of powers Any post-enactment congressional measure should
be limited to scrutiny and investigation. Any action
Refers to an instance when powers are not or step beyond that will undermine the separation
confined exclusively within one department but of powers guaranteed by the Constitution (Belgica,
are assigned to or shared by several departments. et al., v. Ochoa, et al., G.R. No. 208566, November 19,
2013).
Examples of the blending of powers
Q: Can any other department or agency of the
a. Power of appointment which can be exercised government review a decision of the Supreme
by each department and be rightfully exercised Court? Why or why not?
by each department over its own
administrative personnel; A: NO. The Supreme Court is the highest arbiter of
b. General Appropriations Law President legal questions (Javier v. COMELEC, et al., G.R. Nos.
prepares the budget which serves as the basis L-68379-81, September 22, 1986). To allow review
of the bill adopted by Congress; of its decision by the other departments of
c. Amnesty granted by the President requires the government would upset the classic pattern of
concurrence of the majority of all the members separation of powers and destroy the balance
of the Congress; and between the judiciary and the other departments
d. Power of the COMELEC to deputize law- of government.
enforcement agencies and instrumentalities of
the government for the purpose of ensuring Q: Amog was elected Congressman. Before the
free, orderly, honest, peaceful and credible end of her first year in office, she inflicted
elections in accordance with the power physical injuries on a colleague, Camille
granted to it by the Constitution to enforce and Gonzales, in the course of a heated debate.
administer all laws and regulations relative the Charges were filed in court against her as well
conduct of elections (1987 Constitution, Art. IX- as in the House Ethics Committee. Later, the
C, Sec. 2[1]; Concurring and Dissenting Opinion HoR, dividing along party lines, voted to expel
of Justice Puno, Macalintal v. COMELEC, et al., her. Claiming that her expulsion was railroaded
G.R. No. 157013, July 10, 2003). and tainted by bribery, she filed a petition
seeking a declaration by the SC that the House
Q: A provision in the 2014 General gravely abused its discretion and violated the
Appropriations Act (GAA) granted the Constitution. She prayed that her expulsion be
legislators lump-sum allocations and gave them annulled and that she should be restored by the

2015GOLDEN NOTES
Speaker to her position as Congressman. Is Avi of separation of powers by means of judicial

Amogs petition before the Supreme Court legislation (Corpuz v. People, G.R. No. 180016, April
justiciable? 29, 2014).
A: NO. The petition is not justiciable because as CHECKS AND BALANCES

stated in Alejandrino v. Quezon, et al. (46 Phil. 83),
the Supreme Court held that it could not compel Principle of Checks and Balances
the Senate to reinstate a Senator who assaulted
another Senator and was suspended for disorderly Allows one department to resist encroachments
behavior, because it could not compel a separate upon its prerogatives or to rectify mistakes or
and co-equal department to take any particular excesses committed by the other departments.
action. In Osmea v. Pendatun, et al. (109 Phil. 863),
it was held that the Supreme Court could not Executive check on the other two branches
interfere with the suspension of a Congressman for
disorderly behavior, because the House of EXECUTIVE CHECK
Representatives is the judge of what constitutes Legislative Judiciary
disorderly behavior. The assault of a fellow Senator
Through its - Through its power of
constitutes disorderly behavior. However, under
veto power pardon, it may set aside the
Sec. 1, Art. VIII of the 1987 Constitution, the
judgment of the judiciary.
Supreme Court may inquire whether or not the
- Also by power of
decision to expel Avi Amog is tainted with grave
appointment power to
abuse of discretion amounting to lack or excess of
appoint members of the
jurisdiction.
Judiciary.
Q: Paul Martin was convicted of estafa. When
his case reached the Supreme Court, some Legislative check on the other two branches
Justices proposed to alter the penalties
provided for under RPC on the basis of the ratio LEGISLATIVE CHECK
of P1.00 to P100.00, believing that it is not fair Executive Judiciary
to apply the range of penalties, which was Override the veto of Revoke or amend the
based on the value of money in 1932, to crimes the President decisions by either:
committed at present. However, other justices - Enacting a new law
opposed the said proposal for it amounts to - Amending the old
judicial legislation. Is the opposition correct? law, giving it certain
definition and
A: The opposition is correct because the Court interpretation
cannot modify the said range of penalties because different from the
that would constitute judicial legislation. What the old.
legislature's perceived failure in amending the Reject certain Impeachment of SC
penalties provided for in the said crimes cannot be appointments made members
remedied through this Court's decisions, as that by the president
would be encroaching upon the power of another
Revoke the Define, prescribe,
branch of the government.
proclamation of apportion jurisdiction
martial law or of lower courts:
Verily, the primordial duty of the Court is merely to
suspension of the - Prescribe the
apply the law in such a way that it shall not usurp
privilege of the writ qualifications of
legislative powers by judicial legislation and that in
of habeas corpus lower court judges
the course of such application or construction, it
- Impeachment
should not make or supervise legislation, or under
- Determination of
the guise of interpretation, modify, revise, amend,
salaries of judges.
distort, remodel, or rewrite the law, or give the law
a construction which is repugnant to its terms. The Impeachment
Court should apply the law in a manner that would Determine the
give effect to their letter and spirit, especially when salaries of the
the law is clear as to its intent and purpose. president or vice
Succinctly put, the Court should shy away from president
encroaching upon the primary function of a co-
equal branch of the Government; otherwise, this
would lead to an inexcusable breach of the doctrine

Judicial check on the other two branches Q: Can the Commission on Audit (COA) question
the Judiciarys authority in using the formula
It may declare (through the SC as the final arbiter) provided in Constitutional Fiscal Autonomy
the acts of both the legislature and executive as Group (CFAG) Joint Resolution No. 35 instead of
unconstitutional or invalid so long as there is grave COA Memorandum No. 98-569-A in computing
abuse of discretion. the appraisal value of the purchased vehicles?
NOTE: The first and safest criterion to determine A: NO. Any kind of interference on how these
whether a given power has been validly exercised retirement privileges and benefits are exercised
by a particular department is whether the power and availed of, not only violates the fiscal
has been constitutionally conferred upon the autonomy and independence of the Judiciary, but
department claiming its exercise. also encroaches upon the constitutional duty and
privilege of the Chief Justice and the Supreme
However, even in the absence of an express Court En Banc to manage the Judiciarys own
conferment, the exercise of the power may be affairs. The use of the formula provided in CFAG
justified under the Doctrine of Necessary Joint Resolution No. 35 is a part of the Courts
Implication the grant of express power carried exercise of its discretionary authority to determine
with it all other powers that may be reasonably the manner the granted retirement privileges and
inferred from it. benefits can be availed of (Re: COA Opinion on
computation of the Appraised Value of the
Q: An appropriations law granting the Properties purchased by retired Chief/Associate
legislators lump-sum funds in which they have Justices of the Supreme Court, A.M. No. 11-7-10-SC,
full discretion on what project it would fund July 31, 2012).
and how much the project would cost, was
passed. Is such law unconstitutional? DELEGATION OF POWERS
A: Such law is unconstitutional because the Non-delegation of power

appropriations merely provide for a singular lump-
sum amount to be tapped as a source of funding for GR: A delegated power cannot be re-delegated.
multiple purposes. Since such appropriation type
necessitates the further determination of both the NOTE: Delegated power constitutes not only a
actual amount to be expended and the actual right but a duty to be performed by the delegate
purpose of the appropriation which must still be through the instrumentality of his own judgment
chosen from the multiple purposes stated in the and not through the intervening mind of another.
law, appropriation law does not indicate a "specific
appropriation of money" and hence, without a XPNs: Permissible delegations:
proper line-item which the President may veto. 1. Delegation to the people through initiative and
referendum (1987 Constitution, Art. VI, Sec. 1).
This setup connotes that the appropriation law 2. Emergency powers delegated by Congress to
leaves the actual amounts and purposes of the the President (Art. VI, (Sec. 23(2)).
appropriation for further determination and,
therefore, does not readily indicate a discernible NOTE: The conditions for the vesture of
item which may be subject to the Presidents emergency powers are the following:
power of item veto. a. There must be war or other national
emergency.
Also, the fact that individual legislators are given b. The delegation is for a limited period only.
post-enactment roles in the implementation of the c. Delegation is subject to restrictions as
budget makes it difficult for them to become Congress may prescribe.
disinterested "observers" when scrutinizing, d. Emergency powers must be exercised to
investigating or monitoring the implementation of carry a national policy declared by
the appropriation law. To a certain extent, the Congress.
conduct of oversight would be tainted as said 3. Congress may delegate tariff powers to the
legislators, who are vested with post-enactment President (Art. VI, Sec. 28 [2]).
authority, would, in effect, be checking on activities
in which they themselves participate (Belgica, et NOTE: The Tariff and Customs Code is the
al., v. Ochoa, et al., G.R. No. 208566, November 19, enabling law that grants such powers to the
2013). President.

2015GOLDEN NOTES
The power to impose tariffs in the first place is

not inherent in the President but arises only Q: A law, which delegated some appropriation
from congressional grant. Thus, it is the powers to the President, was passed. The law
prerogative of Congress to impose limitations contains provisions such as and for such other
and restrictions on such powers which do not purposes as may be hereafter directed by
normally belong to the executive in the first the President and to finance the
place (Southern Cross Cement Corporation v. priority infrastructure development projects
Philippine Cement Manufacturing Corp., et al., and to finance the restoration of damaged or
G.R. No. 158540, August 3, 2005). destroyed facilities due to calamities, as may be
directed and authorized by the Office of the
4. Delegation to administrative bodies Also President of the Philippines. Are the
known as the power of subordinate provisions valid?
legislation/ quasi-legislative powers.
A: NO. Said provisions constitute an undue
NOTE: This refers to the authority vested by delegation of legislative power insofar as it does
Congress to the administrative bodies to fill in not lay down a sufficient standard to adequately
the details which Congress cannot provide determine the limits of the Presidents authority
due to lack of opportunity or competence. This with respect to the purpose for which the law may
includes the making of supplementary rules be used (sufficient standard test). It gives the
and regulations. They have the force and effect President wide latitude to use the funds for any
of law. other purpose he may direct and, thus, allows him
to unilaterally appropriate public funds beyond the
Congress can only delegate rule-making power purview of the law.
to administrative agencies.
It gives him carte blanche authority to use the same
5. Delegation to Local Governments It is not fund for any infrastructure project he may so
regarded as a transfer of general legislative determine as a priority. The law does not supply
power, but rather as the grant of authority to a definition of priority infrastructure development
prescribe local regulations. projects and hence, leaves the President without
any guideline to construe the same. To note,
Tests to determine whether the delegation of the delimitation of a project as one of
legislative power is valid infrastructure is too broad of
a classification since it could pertain to any kind of
a. Completeness Test The law must be complete facility. Thus, the phrase to finance the priority
in all essential terms and conditions when it infrastructure development projects must be
leaves the legislature so that there will be stricken down as unconstitutional since it lies
nothing left for the delegate to do when it independently unfettered by any sufficient
reaches him except to enforce it. standard of the delegating law (Belgica, et al., v.
b. Sufficient Standard Test If the law does not Ochoa, et al., G.R. No. 208566, November 19, 2013).
spell out in detail the limits of the delegates
authority, it may be sustained if delegation is Q: Rosalie Jaype-Garcia filed a petition before
made subject to a sufficient standard. the RTC of Bacolod City for the issuance of a
Temporary Protection Order against her
NOTE: The Sufficient Standard Test maps out the husband, Jesus Garcia, pursuant to RA 9262.
boundaries of the delegates authority and She claimed to be a victim of physical abuse and
indicating the circumstances under which it is to be emotional, psychological, and economic
pursued and effected. Its purpose is to prevent violence. During the pendency of the civil case,
total transference of legislative power. Jesus Garcia filed a petition before the SC,
alleging that RA 9262 is unconstitutional
Invalid delegation of legislative power because of undue delegation of judicial power
to barangay officials by allowing them to issue
If there are gaps that will prevent its enforcement, a Barangay Protection Order. Is RA 9262
the delegate is given the opportunity to step into unconstitutional for undue delegation of
the shoes of the legislature and exercise discretion judicial power to barangay officials?
in order to repair the omissions.
A: There is no undue delegation of judicial power
NOTE: This is tantamount to an abdication of to barangay officials. The BPO issued by the
power in favor of the delegate, which is in violation Punong Barangay or, in his unavailability, by any
of the doctrine of separation of powers. available Barangay Kagawad, merely orders the

perpetrator to desist from (a) causing physical discretion of the external affairs of the
harm to the woman or her child; and (b) State.
threatening to cause the woman or her child 2. As to the existence or absence of title and/or
physical harm. Such function of the Punong control
Barangay is, thus, purely executive in nature, in a. De jure Has a rightful title but no power
pursuance of his duty under the Local Government or control, either because the same has
Code to "enforce all laws and ordinances," and to been withdrawn from it or because it has
"maintain public order in the barangay" (Garcia v. not yet actually entered into the exercise
Drilon, et al., G.R. No. 179267, June 25, 2013). thereof
Presidents authority to declare a state of The government under Cory Aquino and
national emergency v. Presidents authority to the Freedom Constitution wasade jure
exercise emergency powers government because it was established by
authority of the legitimate sovereign, the
DECLARE A EXERCISE people (In re Letter of Associate Justice
STATE OF EMERGENCY Puno, A.M. No. 90-11-2697-CA, June 29,
BASIS 1992).
NATIONAL POWERS
EMERGENCY
Granted by Requires a The government under Gloria Macapagal-
the delegation from Arroyo, established after the ouster of
Constitution, Congress (David, Estrada was a de jure government (Estrada
no legitimate et al. v. Gloria v. Desierto, G.R. Nos. 146710-15, March 2,
objection can Macapagal- 2001).
be raised. Arroyo, et al., b. De facto Actually exercises power or
G.R. No. 171396, control but without legal title (Lawyers
Source of May 3, 2006). League for a Better Philippines v. Aquino,
Authority G.R. No. 73748, May 22, 1986).
NOTE:
Conferment of Kinds of de facto government
emergency
powers on the i. De facto proper Government that
President is not gets possession and control of, or
mandatory on usurps, by force or by the voice of the
Congress. majority, the rightful legal
government and maintains itself
against the will of the latter;
FORMS OF GOVERNMENT
ii. Government of paramount force
Established and maintained by
Classifications of government military forces who invade and
occupy a territory of the enemy in the
1. As to the centralization of control course of war; and
a. Unitary government One in which the iii. Independent government
control of national and local affairs is Established by the inhabitants of the
exercised by the central or national country who rise in insurrection
government; single, centralized against the parent State (Co Kim
government, exercising powers over both Cham v. Valdez Tan Keh, et al., G.R. No.
the internal and external affairs of the L- 5, September 17, 1945).
State.
b. Federal government One in which the EDSA 1 v. EDSA 2
powers of the government are divided
between two sets of organs, one for BASIS EDSA 1 EDSA 2
national affairs and the other for local Involves the Exercise of
affairs, each organ being supreme within exercise of the people
its own sphere; consists of autonomous the people power of
local government units merged into a power of freedom of
single State, with the national government Nature
revolution speech and
exercising a limited degree of power over which freedom of
the domestic affairs but generally full overthrew assembly to
the whole petition the

2015GOLDEN NOTES
government. government Congress or a local legislative body (Art. VI,

for redress of Sec. 32).
grievances 3. Provides that the right of the people and
which only their organizations to participate at all
affected the levels of social, political, and economic
office of the decision-making shall not be abridged and
President. that the State shall, by law, facilitate the
Extra- Intra- establishment of adequate consultation
constitutional constitutional mechanisms (Art. XIII, Sec. 16).
and the and the 4. Provides that subject to the enactment of
legitimacy of resignation of an implementing law, the people may
the new the then directly propose amendments to the
government sitting Constitution through initiative (Art. XVII,
that resulted President that Sec. 2).
Constitutio from it cannot it caused and 3. As to the concentration of powers in a
nality be the subject the government branch
of judicial succession of a. Presidential government There is
review. the Vice separation of executive and legislative
President as powers
the president
are subject to NOTE: The principal identifying feature of
judicial a presidential form of government is the
review. separation of powers doctrine.
As to Presented Involves legal
issue(s) political question In presidential system, the President is
raised question both the head of State and the head of
The Cory The oath that government.
Aquino Arroyo took
government at the EDSA b. Parliamentary government There is
was installed Shrine is the fusion of both executive and legislative
through a oath under powers in Parliament, although the actual
direct the 1987 exercise of the executive powers is vested
exercise of Constitution. I in a Prime Minister who is chosen by, and
Source of the power of n her oath, accountable to the Parliament.
Authority the Filipino she
people in categorically Essential characteristics of a parliamentary
defiance of swore to form of government
the preserve and
provisions of defend the 1. The members of the government or cabinet or
the 1973 1987 the executive arm are, as a rule,
Constitution, Constitution. simultaneously members of the legislature;
as amended. 2. The government or cabinet consisting of the
Revolutionary Not political leaders of the majority party or of a
As to coalition who are also members of the
in character. revolutionary
character legislature, is in effect a committee of the
in character.
(Estrada v. Desierto, et al., G.R. Nos. 146710-15, legislature;
March 2, 2001) 3. The government or cabinet has a pyramidal
structure at the apex of which is the Prime
Constitutional provisions which guarantee Minister or his equivalent;
People Power 4. The government or cabinet remains in power
only for so long as it enjoys the support of the
1. Guarantees the right of the people to majority of the legislature;
peaceably assemble and petition the 5. Both the government and the legislature are
government for redress of grievances (Art. possessed of control devices which each can
III, Sec. 4). demand of the other immediate political
2. Requires Congress to pass a law allowing responsibility. In the hands of the legislature is
the people to directly propose and enact the vote of non-confidence (censure) whereby
laws through initiative and to approve or government may be ousted. In the hands of the
reject any act or law or part of it passed by

government is the power to dissolve the

legislature and call for new elections.
Functions of the Government
1. Constituent Mandatory for the government to

perform because they constitute the very
bonds of society.
2. Ministrant Intended to promote the welfare,
progress and prosperity of the people.
NOTE: Distinction of function is no longer relevant

because the Constitution obligates the State to
promote social justice and has repudiated the
laissez faire policy (ACCFA v. Federation of Labor
Unions, G.R. No. L-21484, November 29, 1969).

2015GOLDEN NOTES
LEGISLATIVE DEPARTMENT
LEGISLATIVE DEPARTMENT flexibility (Datu Michael Abas Kida, et al. v. Senate of

the Philippines, et al. G.R. No. 196271, October 18,
2011).
WHO MAY EXERCISE LEGISLATIVE POWER
NOTE: Every legislative body may modify or abolish
The following may exercise legislative power the acts passed by itself or its predecessors. This
legislature cannot bind a future legislature to a
1. Congress
particular mode of repeal. It cannot declare in
2. Regional/Local Government Units
advance the intent of subsequent legislatures or the
3. The People through initiative and referendum.
effect of subsequent legislation upon existing
statutes (Datu Michael Abas Kida, et al. v. Senate of
Limitations on the legislative power of Congress
the Philippines, et al. G.R. No. 196271, October 18,
2011).
1. Substantive: limitations on the content of laws.
2. Procedural: limitations on the manner of passing
Classes of legislative power
laws.
3. Congress cannot pass irrepealable laws.
1. Original: Possessed by the people in their
4. Congress, as a general rule, cannot delegate its
sovereign capacity i.e. initiative and referendum.
legislative power.
2. Delegated: Possessed by Congress and other
legislative bodies by virtue of the Constitution.
XPN: See Delegation of Legislative Powers.
3. Constituent: The power to amend or revise the
Constitution.
Q: Is the supermajority vote requirement under
4. Ordinary: The power to pass ordinary laws.
RA 9054, the second Organic Act of ARMM which
reset the regular elections for the ARMM regional
HOUSES OF CONGRESS
officials to the second Monday of September
2001 unconstitutional by giving it a character of
an irrepealable law? Composition of Congress
A: The supermajority (2/3) voting requirement The Philippine Congress is bicameral in nature. It is
required under Sec. 1, Art. XVII of RA 9054 has to be composed of:
struck down for giving RA 9054 the character of an 1. Senate
irrepealable law by requiring more than what the 2. House of Representatives
Constitution demands. a. District representatives
b. Party-list representatives
Sec. 16(2), Art. VI of the Constitution provides that a
majority of each House shall constitute a quorum to Composition, qualifications, and term of office of
do business. In other words, as long as majority of members of Congress
the members of the House of Representatives or the
Senate are present, these bodies have the quorum HOUSE OF
SENATE
needed to conduct business and hold session. Within REPRESENTATIVES
a quorum, a vote of majority is generally sufficient to Composition
enact laws or approve acts. 24 Senators (elected Not more than 250
at large by qualified members, unless
In contrast, Sec. 1, Art. XVII of RA 9054 requires a voters of the otherwise provided by
vote of no less than two-thirds (2/3) of the Members Philippines as may be law.
of the House of Representatives and of the Senate, provided by law)
voting separately, in order to effectively amend RA Qualifications
9054. Clearly, this 2/3 voting requirement is higher 1. Natural-born 1. Natural-born citizen
than what the Constitution requires for the passage citizen of the of the Philippines;
of bills, and served to restrain the plenary powers of Philippines; 2. Except youth party-
Congress to amend, revise or repeal the laws it had 2. At least 35 years list representatives,
passed. of age on the day at least 25 years of
of election; age on the day of
While a supermajority is not a total ban against 3. Able to read and election;
repeal, it is a limitation in excess of what the write; 3. Able to read and
Constitution requires on the passage of bills and is 4. A registered write;
constitutionally obnoxious because it significantly voter; 4. Except the party-list
constricts the future legislators room for action and 5. Resident of the representatives, a

Philippines for registered voter in plenary pardon o granted amnesty (Sec. 12, BP
not less than 2 the district in which 881).
years he shall be elected;
immediately 5. Resident thereof for Expulsion of members of Congress
preceding the day a period of not less
of election. than 1 year MEMBERS OF THE
immediately SENATORS HOUSE OF
NOTE: preceding the day of REPRESENTATIVES
Enumeration is the election. Expulsion by the Senate Expulsion by the House
exclusive with the concurrence of with the concurrence of
NOTE: Enumeration is 2/3 of all its members 2/3 of all its members
exclusive. (Art. VI, Sec. 16, par. 3). (Art. VI, Sec. 16, par. 3).
Term of office
6 years, shall 3 years, which shall Q: Can Congress or COMELEC impose an
commence, unless begin, unless otherwise additional qualification for candidates for
otherwise provided provided by law, at noon senator/representative?
by law, at noon on the on the 30th day of June
30th day of June next next following their A: The Congress cannot validly amend or otherwise
following their election. modify these qualification standards, as it cannot
election. disregard, evade, or weaken the force of a
Term limit: 3 consecutive constitutional mandate, or alter or enlarge the
Term limit: Not more terms. However, they Constitution (Social Justice Society v. DDB and PDEA,
than 2 consecutive may serve for more than G.R Nos. 157870, 158633, 161658, November 3, 2008).
terms. However, they 2 terms provided that
may serve for more the terms are not Rule on voluntary renunciation of office
than 2 terms consecutive.
provided that the Voluntary renunciation of office for any length of
terms are not time shall not be considered as an interruption in the
consecutive. continuity of his service for the full term for which
he was elected (Art. VI, Secs. 4 and 7).
Disqualifications of members of Congress
Composition of the HoR
SENATE HOUSE OF
REPRESENTATIVES DISTRICT PARTY-LIST
No Senator shall Shall not serve for more REPRESENTATIVE REPRESENTATIVE
serve for more than than three (3) consecutive As to who will vote
two (2) consecutive terms. Voluntary Elected according to Elected nationally with
terms. Voluntary renunciation of the office legislative district by party-list organizations
renunciation of the for any length of time shall the constituents of such garnering at least 2% of
office for any length not be considered as an district. all votes cast for the
of time shall not be interruption in the party-list system entitled
considered as an continuity of his service for to 1 seat, which is
interruption in the the full term for which he increased according to
continuity of his was elected (Sec. 7, Art. VI). proportional
service for the full representation, but is in
term for which he no way to exceed 3 seats
was elected (Sec. 4, per organization.
Art. VI). Residency requirement
One who has been declared by competent authority Must be a resident of No special residency
as insane or incompetent. his legislative district requirement.
for at least 1 year
One who has been sentenced by final judgment for: immediately before the
a. Subversion; election.
b. Insurrection; Name in the ballot
c. Rebellion; Elected personally, by Voted upon by party or
d. Any offense for which he has been sentenced to a name. organization. It is only
penalty of not more than 18 months; or when a party is entitled
e. A crime involving moral turpitude, unless given to representation that it

2015GOLDEN NOTES
designates who will sit as While Sec. 5(3) of Art. VI of the Constitution requires
representative. a city to have a minimum population of 250,000 to
Effect of change in party affiliation be entitled to one representative; it does not have to
Does not lose seat if If he/she changes party increase its population by another 250,000 to be
he/she changes party or affiliation, loses his entitled to an additional district (Senator Aquino III,
or affiliation. seat, in which case et al., v. COMELEC, et al., G.R. No. 189793, April 7,
he/she will be 2010).
substituted by another
qualified person in the NOTE: The question of the validity of an
party or organization apportionment law is a justiciable question (Macia,
based on the list et al., v. Comelec, et al., G.R. No. L-18684, September
submitted to the 14, 1961).
COMELEC.
As to vacancy Essence of apportionment
In case of vacancy, a In case of vacancy, a
special election may be substitution will be made The underlying principle behind the rule for
held provided that the within the party, based apportionment is the concept of equality of
vacancy takes place at on the list submitted to representation, which is a basic principle of
least 1 year before the the COMELEC. republicanism. One mans vote should carry as much
next election. weight as the vote of every other man.
Effect of defeat in the election
A district A party-list NOTE: Sec. 5 provides that the House shall be
representative is not representative cannot sit composed of not more than 250 members unless
prevented from if he ran and lost in the otherwise provided by law. Thus, Congress itself may
running again as a previous election. by law increase the composition of the HoR (Tobias,
district representative et al., v. Abalos, et al., G.R. No. L-114783, December 8,
if he/she lost in the 1994).
previous election.
Effect of change in party affiliation to the As such, when one of the municipalities of a
upcoming elections congressional district is converted to a city large
A change in affiliation A change in affiliation enough to entitle it to one legislative district, the
within months prior to within 6 months prior to incidental effect is the splitting of district into two.
election does not election prohibits the The incidental arising of a new district in this
prevent a district party-list representative manner need not be preceded by a census (Ibid.).
representative from from listing as
running under his new representative under his Conditions for apportionment
party. new party or
organization. 1. Elected from legislative districts which are
apportioned in accordance with the number of
inhabitants of each area and on the basis of a
District representatives
uniform and progressive ratio.
Those who are elected from legislative districts 2. Uniform Every representative of Congress shall
represent a territorial unit with more or less a
apportioned among the provinces, cities and the
population of 250,000. All the other
Metropolitan Manila area.
representatives shall have the same or nearly
the same political constituency so much so that
Apportionment of legislative districts
their votes will constitute the popular majority.
Legislative districts are apportioned among the 3. Progressive It must respond to the change in
times. The number of House representatives
provinces, cities, and the Metropolitan Manila area.
must not be so big as to be unwieldy. (Let us say,
They are apportioned in accordance with the
there is a growth in population. The ratio may
number of their respect inhabitants and on the basis
of a uniform and progressive ratio (1987 then be increased. From 250,000 constituents/1
representative it may be reapportioned to 300,
Constitution, Art. VI, Sec. 5).
000 constituents/1 representative)
Each city with a population of at least 250,000 shall 4. Each city with a population of at least 250,000 or
each province shall at least have one
have at least one representative. Each province shall
representative.
have at least one representative.
NOTE:

GR: There must be proportional representation NOTE: Party-list representatives shall constitute
according to the number of their 20% of the total number of representatives in the
constituents/inhabitants. HoR (1987 Constitution, Art. VI, Sec. 5, par. 2).
XPN: In one city-one representative/one Purpose of the party-list system

province-one representative rule.
The party-list system intends to make the
5. Legislative districts shall be reapportioned by marginalized and the underrepresented not merely
Congress within 3 years after the return of each passive recipients of the States benevolence, but
census (Senator Aquino III, et al., v. COMELEC, et active participants in the mainstream of
al., G.R. No. 189793, April 7, 2010). representative democracy (Ang Bagong Bayani-OFW
Labor Party v. COMELEC, G.R. No. 147589, June26,
Manner of reapportionment 2001).
Reapportionment may be made thru a special law. As The party-list system is intended to democratize
thus worded, the Constitution did not preclude political power by giving political parties that cannot
Congress from increasing its membership by passing win in legislative district elections a chance to win
a law, other than a general reapportionment of the seats in the HoR (Atong Paglaum, Inc. v. COMELEC,
law. Moreover, to hold that reapportionment can G.R. 203766, April 2, 2013).
only be made through a general apportionment law,
with a review of all the legislative districts allotted to Different parties under the party-list system
each local government unit nationwide, would create
an inequitable situation where a new city or No votes cast in favor of political party, organization
province created by Congress will be denied or coalition shall be valid except for those registered
legislative representation for an indeterminate under the party-list system.
period of time (Mariano, Jr. v. COMELEC, G.R. No.
118577, March 7, 1995). 1. Political party Organized group of citizens
advocating ideology or platform, principles and
Increase in membership of the HoR policies for the general conduct of government
and which, as the most immediate means of
The Constitution does not preclude Congress from securing their adoption, regularly nominates and
increasing its membership by passing a law, other supports certain of its leaders and members as
than a general re-apportionment law. Thus, a law candidate in public office (Ang Bagong Bayani-
converting a municipality into a highly-urbanized OFW Labor Party v. COMELEC and Bayan Muna v.
city automatically creates a new legislative district COMELEC, G.R. Nos. 147589 and 147613, June 26,
and, consequently, increases the membership of the 2001. June 26, 2001).
HoR (Mariano, Jr., et al. v. COMELEC, et al., G.R. No. 2. National party Its constituency is spread over
118577, March 7, 1995). the geographical territory of at least a majority
of regions.
Gerrymandering 3. Regional party Its constituency is spread over
the geographical territory of at least a majority
Formation of one legislative district out of separate of the cities and provinces comprising the
territories for the purpose of favoring a candidate or region.
a party. It is not allowed because the Constitution 4. Sectoral party Organized group of citizens
provides that each district shall comprise, as far as belonging to any of the following sectors: labor,
practicable, contiguous, compact and adjacent peasant, fisherfolk, urban poor, indigenous,
territory. cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers and
PARTY-LIST SYSTEM professionals, whose principal advocacy
pertains to the special interest and concerns of
Party-list system their sectors.
5. Sectoral Organization Refers to a group of
Mechanism of proportional representation in the citizens who share similar physical attributes or
election of representatives to the HoR from national, characteristics, employment, interest or
regional and sectoral parties or organizations or concerns.
coalitions thereof registered with the COMELEC. 6. Coalition Refers to an aggregation of duly
registered national, regional, sectoral parties or
organizations for political and/or election
purposes.

2015GOLDEN NOTES
intent and express wording of the 1987 Constitution

Q: Is the party-list system solely for the benefit of and RA 7941 (Atong Paglaum, Inc. v. COMELEC, G.R.
sectoral parties? No. 203766, April 2, 2013).
A: Sec. 5(1), Art. VI of the Constitution is crystal-clear NOTE: Major political parties cannot participate in
that there shall be a party-list system of registered the party-list elections since they neither lack well-
national, regional, and sectoral parties or defined political constituencies nor represent
organizations. The commas after the words marginalized and underrepresented sectors (Atong
national (,) and regional (,) separate national and Paglaum, Inc. v. COMELEC, G.R. No. 203766, April 2,
regional parties from sectoral parties. Had the 2013).
framers of the 1987 Constitution intended national
and regional parties to be at the same time sectoral, Q: Can sectoral wings of major political parties
they would have stated national and regional participate in the party-list election?
sectoral parties. They did not, precisely because it
was never their intention to make the party-list A: YES. The participation of major political parties
system exclusively sectoral. through their sectoral wings, a majority of whose
members are marginalized and underrepresented
What the framers intended, and what they expressly or lacking in well-defined political constituencies,
wrote in Sec. 5(1), could not be any clearer: the will facilitate the entry of the marginalized and
party-list system is composed of three different underrepresented and those who lack well-defined
groups, and the sectoral parties belong to only one of political constituencies as members of the HoR
the three groups. The text of Sec. 5(1) leaves no (Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766,
room for any doubt that national and regional April 2, 2013).
parties are separate from sectoral parties (Atong
Paglaum, Inc. v. COMELEC, G.R. No. 203766, April 2, Qualifications of party-list nominees
2013).
A party-list nominee must be a bona fide member of
Composition of the party-list system the party or organization which he or she seeks to
represent. In the case of sectoral parties, to be a bona
1. National parties or organizations fide party-list nominee one must either belong to the
2. Regional parties or organizations; and sector represented, or have a track record of
3. Sectoral parties or organizations. advocacy for such sector (Atong Paglaum, Inc. v.
COMELEC, G.R. No. 203766, April 2, 2013).
National and regional parties or organizations are
different from sectoral parties or organizations. Guidelines in determining who may participate
National and regional parties or organizations need in the party-list elections
not be organized along sectoral lines and need not
represent any particular sector (Atong Paglaum, Inc. 1. Three different groups may participate in the
v. COMELEC, G.R. No. 203766, April 2, 2013). party-list system:
a. National parties or organizations;
Q: Does the party-list law require national and b. Regional parties or organizations; and
regional parties or organizations to represent c. Sectoral parties or organizations.
the marginalized and underrepresented 2. National parties or organizations and regional
sectors? parties or organizations do not need to organize
along sectoral lines and do not need to represent
A: NO. To require all national and regional parties any "marginalized and underrepresented"
under the party-list system to represent the sector.
marginalized and underrepresented is to deprive 3. All political parties must register under the
and exclude, by judicial fiat, ideology-based and party-list system and do not field candidates in
cause-oriented parties from the party-list system. legislative district elections. A political party,
How will these ideology-based and cause-oriented whether major or not, that fields candidates in
parties, who cannot win in legislative district legislative district elections can participate in
elections, participate in the electoral process if they party-list elections only through its sectoral
are excluded from the party-list system? To exclude wing that must separately register under the
them from the party-list system is to prevent them party-list system. The sectoral wing is by itself
from joining the parliamentary struggle, leaving as an independent sectoral party; it is linked to a
their only option armed struggle. To exclude them political party through a coalition.
from the party-list system is, apart from being 4. Sectoral parties or organizations may either be
obviously senseless, patently contrary to the clear marginalized and underrepresented or lacking

in well-defined political constituencies. It is 5. Bona fide member of the party or organization

enough that their principal advocacy pertains to which he seeks to represent at least 90 days
the special interests and concerns of their sector. preceding election day;
6. At least 25 years of age. (For youth sector
NOTE: The sectors that are marginalized and nominees, at least 25 years and not more than
underrepresented include labor, peasant, 30 years of age)
fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and NOTE: There is absolutely nothing in RA 7941 that
overseas workers. prohibits COMELEC from disclosing or even
publishing through any medium other than the
The sectors that lack well-defined political Certified List the names of the party-list nominees.
constituencies include professionals, the As may be noted, no national security or like
elderly, women, and the youth. concerns is involved in the disclosure of the names
of the party-list groups in question (Bantay RA 7941,
5. A majority of the members of sectoral parties or et al., v. COMELEC, et al., G.R. No. 177271, G.R. No.
organizations that represent the marginalized 177314, May 4, 2007).
and underrepresented or those representing
parties or organizations that lack well-defined Effect of the change in affiliation of any party-list
political constituencies must belong to the representative
sector they respectively represent.
6. The nominees of sectoral parties or Any elected party-list representative who changes
organizations that represent the marginalized his party-list group or sectoral affiliation during his
and underrepresented or that represent those term of office shall forfeit his seat (Amores v. HRET,
who lack well-defined political constituencies, et al., G.R. No. 189600, June 29, 2010).
either must belong to their respective sectors, or
must have a track record of advocacy for their NOTE: If he changes his political party or sectoral
respective sectors. affiliation within 6 months before an election, he
7. The nominees of national and regional parties or shall not be eligible for nomination as party-list
organizations must be bona-fide members of representative under his new party or organization.
their respective parties or organizations. (Ibid.)
8. National, regional, and sectoral parties or
organizations shall not be disqualified if some of Vacancy in the seat reserved for party-list
their nominees are disqualified, provided that representatives
they have at least one nominee who remains
qualified (Atong Paglaum, Inc. v. COMELEC, G.R. It shall be automatically occupied by the next
No. 203766, April 2, 2013). representative from the list of nominees in the order
submitted by the same party to the COMELEC and
Q: Who shall be voted in a party-list election? such representative shall serve for the unexpired
term. If the list is exhausted, the party, organization,
A: The registered national, regional, or sectoral or coalition concerned shall submit additional
party-list groups or organizations and not their nominees.
candidates.
Formula mandated by the Constitution in
Q: Who are elected into office in a party-list determining the number of party-list
election? representatives
A: It is the party-list representatives who are elected The House of Representatives shall be composed of
into office, not their parties or organizations (Abayon not more than 250 members, unless otherwise fixed
v. HRET, G.R. No. 189466, February 11, 2010). by law (1987 Constitution, Art. VI, Sec. 5, par. 1).
Qualifications of a party-list nominee The number of seats available to party-list

representatives is based on the ratio of party-list
1. Natural- born citizen of the Philippines; representatives to the total number of
2. Registered voter; representatives. Accordingly, we compute the
3. Resident of the Philippines for at least 1 year number of seats available to party-list
immediately preceding the day of the election; representatives from the number of legislative
4. Able to read and write; districts.

2015GOLDEN NOTES
in the House of Representatives (BANAT v.

Number of seats COMELEC, G.R. No. 179271, April 21, 2009).
available to party-list
representatives NOTE: The 2% threshold is constitutional only
insofar as the determination of the guaranteed seat
is concerned.
The above formula allows the corresponding
increase in the number of seats available for party- Q: Is the Philippine Mines Safety Environment
list representatives whenever a legislative district is Association v. COMELEC ruling, also known as the
created by law. Minero Ruling, providing that a party-list
organization that does not participate in an
After prescribing the ratio of the number of party-list election necessarily gets, by default, less than 2%
representatives to the total number of of the party-list votes, a valid application of RA
representatives, the Constitution left the manner of 7941?
allocating the seats available to party-list
representatives to the wisdom of the legislature A: The Minero Ruling is an erroneous application of
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009). Sec. 6(8) of RA 7941 [Party-List System Act]. Hence,
it cannot sustain PGBIs delisting from the roster of
Guidelines in the allocation of seats for party-list registered national, regional or sectoral parties,
representatives under Sec. 11 of RA 7941 organizations or coalitions under the party-list
system.
1. The parties, organizations, and coalitions shall
be ranked from the highest to the lowest based Its basic defect lies in its characterization of the non-
on the number of votes they garnered during the participation of a party-list organization in an
elections. election as similar to a failure to garner the 2%
2. The parties, organizations, and coalitions threshold party-list vote. What Minero effectively
receiving at least 2% of the total votes cast for holds is that a party list organization which does not
the party-list system shall be entitled to one participate in an election necessarily gets, by default,
guaranteed seat each. less than 2% of the party-list votes. To be sure, this is
3. Those garnering sufficient number of votes, a confused interpretation of the law, given the laws
according to the ranking in paragraph 1, shall be clear and categorical language and the legislative
entitled to additional seats in proportion to their intent to treat the two scenarios differently. Minero
total number of votes until all the additional did unnecessary violence to the language of the law,
seats are allocated. the intent of the legislature, and to the rule of law in
4. Each party, organization, or coalition shall be general.
entitled to not more than 3 seats.
Clearly, the Court cannot allow PGBI to be prejudiced
NOTE: In computing the additional seats, the by the continuing validity of an erroneous ruling.
guaranteed seats shall no longer be included because Thus, the Court now abandons Minero and strikes it
they have already been allocated at one seat each to out from our ruling case law (Philippine Guardians
every two-percenter. Thus, the remaining available Brotherhood, Inc. [PGBI] v. COMELEC, G.R. No. 190529,
seats for allocation as additional seats are the April 29, 2010).
maximum seats reserved under the party-list system
less the guaranteed seats. Fractional seats are LEGISLATIVE PRIVILEGES, INHIBITIONS AND
disregarded in the absence of a provision in RA 7941 DISQUALIFICATIONS
allowing for a rounding off of fractional seats
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009). Immunity from arrest
Status of the 2% threshold as regards the Grants the legislators the privilege from arrest while
allocation of additional seats Congress is in session with respect to offenses
punishable by NOT more than 6 years of
It is not valid anymore. The Court strikes down the imprisonment (1987 Constitution, Art. VI, Sec. 11).
2% threshold only in relation to the distribution of
the additional seats as found in the second clause of Purpose of parliamentary immunities
Sec. 11 (b) of RA 7941. The 2% threshold presents
an unwarranted obstacle to the full implementation It is not for the benefit of the officials; rather, it is to
of Sec. 5(2), Art. VI of the Constitution and prevents protect and support the rights of the people by
the attainment of the broadest possible ensuring that their representatives are doing their
representation of party, sectoral or group interests jobs according to the dictates of their conscience. It

is indispensable no matter how powerful the

offended party is. Q: May a congressman who committed an offense
punishable for less than 6 years, but is not
Inapplicability of immunity to searches attending the session, be arrested?
The Constitution provides only a privilege from A: So long as he is an incumbent congressman and so
arrest in order to ensure the attendance of long as Congress is in session, whether or not he is
Congressmen. attending it, he shall be immune from arrest (People
v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000).
Legislative privilege
Q: Can a senator-lawyer be disbarred or
Provides that no member shall be questioned or held disciplined by the Supreme Court for statements
liable in any forum other than his respective made during a privilege speech?
Congressional body for any debate or speech in
Congress or in any committee thereof (Art. VI, Sec. A: Indeed, the senator-lawyers privilege speech is
11; Pobre v. Sen. Santiago, A.C. No, 7399, August 25, not actionable criminally or be subject to a
2009). disciplinary proceeding under the Rules of Court.
The Court, however, would be remiss in its duty if it
Limitations on legislative privilege let the Senators offensive and disrespectful language
that definitely tended to degrade the institution
1. Protection is only against the forum other than pass-by. It is imperative on the Courts part to re-
the Congress itself. Thus, for defamatory instill in Senator/Atty. Santiago her duty to respect
remarks, which are otherwise privileged, a courts of justice, especially this Tribunal, and remind
member may be sanctioned by either the Senate her anew that parliamentary non-accountability thus
or the HoR as the case may be. granted to members of Congress is not to protect
2. The speech or debate must be made in them against prosecutions for their own benefit, but
performance of their duties as members of to enable them, as the peoples representatives, to
Congress. perform the functions of their office without fear of
being made responsible before the courts or other
Requirements for the privilege of speech and forums outside the congressional hall. It is intended
debate to operate to protect members of congress against government
pressure and intimidation aimed at influencing the
1. The remarks must be made while the legislature decision-making prerogatives of Congress and its
or the legislative committee is functioning, that members (Pobre v. Sen. Defensor-Santiago, A.C. No.
is, in session; 7399, August 25, 2009).
2. They must be made in connection with the
discharge of official duties. Q: Is Congress considered in session during a
recess?
Coverage of speech or debate
A: If the recess was called for in between a regular or
It includes utterances made by Congressmen in the special session, the Congress is still considered in
performance of their official functions, such as session. But if the recess was the 30-day compulsory
speeches delivered, statements made, or votes cast recess, Congress is not in session, pursuant to Sec.
in the halls of Congress, while the same is in session, 15, Art. VI of the 1987 Constitution.
as well as bills introduced in Congress, whether the
same is in session or not, and other acts performed Q: Can the Sandiganbayan order the preventive
by Congressmen, either in Congress or outside the suspension of a Member of the HoR being
premises housing its offices, in the official discharge prosecuted criminally for the violation of the
of their duties as members of Congress and of Anti-Graft and Corrupt Practices Act?
Congressional Committees duly authorized to
perform its functions as such, at the time of the A: The accused cannot validly argue that only his
performance of the acts in question (Jimenez, et al., v. peers in the HoR can suspend him because the court-
Cabangbang, G.R. No. L-15905, August 3, 1966). ordered suspension is a preventive measure that is
different and distinct from the suspension ordered
NOTE: The purpose of the privilege is to ensure the by his peers for disorderly behavior which is a
effective discharge of functions of Congress. The penalty (Paredes, Jr. v. Sandiganbayan, G.R. No.
privilege may be abused but it is said that such is not 118354, August 8, 1995).
so damaging or detrimental as compared to the
denial or withdrawal of such privilege.

2015GOLDEN NOTES
Alternative Answer: longer applies and he may therefore be

The suspension under the Anti-Graft Law is appointed to the office.
mandatory, imposed not as a penalty but as a
precautionary measure to prevent the accused Rule on increase in salaries of members of
public officer from frustrating his prosecution. It is Congress
incidental to the criminal proceedings before the
court. Increase in the salaries shall take effect after the
expiration of the full term of all the members of the
The House-imposed sanction on the other hand, is a Senate and the House of Representatives approving
penalty for disorderly behavior to enforce discipline such increase (1987 Constitution, Art. VI, Sec. 10).
among its members.
Particular inhibitions attached to the respective
The order of suspension in the Anti-Graft Law is offices of Senators and Representatives
distinct from the power of the Congress under the
Constitution to discipline its own ranks (De Venecia 1. Senators and Representatives are prohibited
Jr., v. Sandiganbayan, G.R. No. 130240, February 5, from personally appearing as counsel before
2002). any court of justice or before the Electoral
Tribunals, or quasi-judicial or other
Prohibitions attached to a legislator during his administrative bodies (Art. VI, Sec. 14).
term 2. Upon assumption of office, all members of the
Senate and HoR must make a full disclosure of
1. Incompatible office No senator or member of their financial and business interests. They shall
the HoR may hold any other office or notify the House concerned of a potential
employment in the Government, or any conflict in interest that may arise from the filing
subdivision, agency, or instrumentality thereof, of a proposed legislation of which they are
including government owned and controlled authors (Art. VI, Sec. 12).
corporations or their subsidiaries during his
term without forfeiting his seat (Art.VI, Sec. 13). Disqualifications attached to Senators and
Representatives and their applications
NOTE: Forfeiture of the seat in Congress shall be
automatic upon the members assumption of DISQUALIFICATION WHEN APPLICABLE
such other office deemed incompatible with his Cannot hold any other During his term
seat in Congress. office or employment
in the Govt or any If he does so, he forfeits
However, no forfeiture shall take place if the subdivision, agency, or his seat (Art. VI, Sec. 13).
member of Congress holds the other instrumentality
government office in an ex-officio capacity. thereof, including
GOCCs or their
2. Forbidden office Neither shall a senator nor a subsidiaries (Art. VI,
member of the House of Representatives be Sec. 13).
appointed to any office which may have been Legislators cannot be If the office was created
created, or the emoluments thereof increased appointed to any office or the emoluments
during the term for which he was elected (Art. (Art. VI, Sec. 13). thereof increased during
VI, Sec. 13). the term for which he
was elected (Art. VI, Sec.
NOTE: With this, even if the member of the 13).
Congress is willing to forfeit his seat therein, he Legislators cannot During his term of office.
may not be appointed to any office in the personally appear as
government that has been created or the counsel before any
emoluments thereof have been increased during court of justice,
his term. Such a position is forbidden office. The electoral tribunal,
purpose is to prevent trafficking in public office. quasi-judicial and
administrative bodies
The appointment of the member of the Congress (Art. VI, Sec. 14).
to the forbidden office is not allowed only during
the term for which he was elected, when such
office was created or its emoluments were
increased. After such term, and even if the
legislator is re-elected, the disqualification no

Legislators cannot be During his term of office. Majority vote

financially interested
directly or indirectly in Pertains only to such number or quantity as may be
any contract with or in required to elect an aspirant as such. There is no
any franchise, or indication that by such election, the Houses are
special privilege already divided into the majority camp and the
granted by the minority camp. Majority refers to more than half of
Government, or any the total or aggregate. Although the Constitution
subdivision agency or provides that the Speaker and the Senate President
instrumentality shall be elected by a majority of all members, the
thereof, including the Constitution does not provide that those who will
GOCC or its subsidiary not vote for the winner (by majority vote) are ipso
(Art. VI, Sec. 14). facto the minority who can elect the minority leader.
Legislators cannot When it is for his
intervene in any pecuniary benefit or Majority vote refers to the political party with the
matter before any where he may be called most number of backings; refer to the party, faction
office of the Govt upon to act on account of or organization with the number of votes but not
(Art. VI, Sec. 14). his office. necessarily more than one half (plurality) (Santiago,
et al., v. Guingona, Jr., et al., G.R. No. 134577,
Disclosure of legislators of their assets, November 18, 1998).
liabilities, and net worth
Instances when the Constitution requires that
All members of the Senate and HoR shall, upon the yeas and nays of the Members be taken every
assumption of office and as often thereafter as may time a House has to vote
be required by law, submit a declaration under oath
of his assets, liabilities and net worth (Art. VI, Sec. 1. Upon the last and third readings of a bill (1987
12). Constitution, Art. VI, Sec. 26, par. 2);
2. At the request of 1/5 of the members present
QUORUM AND VOTING MAJORITIES (1987 Constitution, Art. VI, Sec. 16, par. 4); and
3. In repassing a bill over the veto of the President
Quorum (1987 Constitution, Art. VI, Sec. 27, par. 1).
Such number which enables a body to transact its Instances when Congress is voting separately and
business and gives such body the power to pass a voting jointly
law or ordinance or any valid act that is binding.
SEPARATE JOINT
NOTE: In computing quorum, members who are - Choosing the - When revoking or
outside the country and, thus, outside of each President in case of extending the
Houses jurisdiction are not included. The basis for a tie (Art. VII, Sec. 4) proclamation
determining the existence of a quorum in the Senate - Determining suspending the
shall be the total number of Senators who are within Presidents inability privilege of writ
the coercive jurisdiction of the Senate (Avelino v. to discharge the of habeas corpus
Cuenco, G.R. No. L-2821, March 4, 1949). powers and duties (Art. VII,
of his office (Art. VII, Sec. 18)
Effect if there is no quorum Sec. 11) - When revoking or
- Confirming extending the
In the absence of quorum, each House may adjourn nomination of Vice- declaration of
from day to day and may compel the attendance of President (Art. VII, martial law
absent members in such manner and under such Sec. 9) (Art. VII, Sec. 18)
penalties as each House may provide. - Declaring the
existence of a state
NOTE: The members of the Congress cannot compel of war in joint
absent members to attend sessions if the reason of session (Art. VI, Sec.
absence is a legitimate one. The confinement of a 23, Par. 1)
Congressman charged with a non-bailable offense is - Proposing
certainly authorized by law and has constitutional Constitutional
foundations (People v. Jalosjos, G.R. No. 132875-76, amendments
February 3, 2000). (Art. XVII, Sec. 1)

2015GOLDEN NOTES
Instances when Congress votes by majority Regular session of Congress
INSTANCES WHEN NUMBER OF VOTES Congress convenes once every year on the 4 th
CONGRESS VOTES REQUIRED Monday of July, unless otherwise provided for by
Elect the Senate Majority vote of all its law. It continues in session for as long as it sees fit,
President or House of respective members until 30 days before the opening of the next regular
Representatives (Art. VI , Sec. 16, Par. 1) session, excluding Saturdays, Sundays, and legal
Speaker holidays (Art. VI, Sec. 15).
Commission on Majority vote of all the
Appointments ruling members (Art. VI, Sec. Instances when there are special sessions
18)
Passing a law granting Majority of all the 1. Due to vacancies in the offices of the President
any tax exemption members of Congress and Vice President at 10 oclock a.m. on the third
(Art. VI , Sec. 28, Par. 4) day after the vacancies (Art. VII, Sec. 10)
2. To decide on the disability of the President
because a majority of all the members of the
Instances when Congress votes other than cabinet have disputed his assertion that he is
majority able to discharge the powers and duties of his
office (Art. VII, Sec. 11)
INSTANCES WHEN NUMBER OF VOTES 3. To revoke or extend the Presidential
CONGRESS VOTES REQUIRED Proclamation of Martial Law or suspension of
To suspend or expel a 2/3 of all its the privilege of the writ of habeas corpus (Art.
member in members (Art. VI, VII, Sec. 18)
accordance with its Sec. 16, Par. 3) 4. Called by the President at any time when
rules and proceedings Congress is not in session (Art. VI, Sec. 15)
To enter the Yeas and 1/5 of the members 5. To declare the existence of a state of war in a
Nays in the Journal present joint session, by vote of 2/3 of both Houses (Art.
(Art. VI, Sec. 16, Par. VI, Sec. 23, par. 1)
4) 6. When the Congress acts as the Board of
To declare the 2/3 of both houses in Canvassers for the Presidential and Vice-
existence of a state of joint session voting Presidential elections (Art. VII, Sec. 4)
war separately 7. During impeachment proceedings (Art. XI, Sec. 3,
(Art. VI, Sec. 23) par. 4 and 6)
Mandatory recess
Non-intervention of courts in the
implementation of the internal rules of Congress The 30-day period prescribed before the opening of
the next regular session, excluding Saturdays,
As part of their inherent power, Congress can Sundays, and legal holidays. This is the minimum
determine their own rules. Hence, the courts cannot period of recess and may be lengthened by the
intervene in the implementation of these rules Congress in its discretion. It may, however, be called
insofar as they affect the members of Congress in special session at any time by the President (Art.
(Osmea v. Pendatun et al., G.R. No L-17144, October VI, Sec. 15).
28, 1960).
Rule on Adjournment
Elected officers of Congress
Neither House during the sessions of the Congress
1. Senate President shall, without the consent of the other, adjourn for
2. Speaker of the House more than 3 days, nor to any other place than that in
3. Such officers as deemed by each house to be which the two Houses shall be sitting (Art. VI, Sec. 16,
necessary par. 5).
Vote required in election of officers Adjournment sine die
Majority vote of all respective members (Art. VI, Sec. An interval between the session of one Congress and
16, par. 1). that of another.

DISCIPLINE OF MEMBERS Electoral contest
Disciplinary power of Congress Where a defeated candidate challenges the

qualification and claims for himself the seat of the
Each house may punish its members for disorderly proclaimed winner. In the absence of an election
behavior and, with concurrence of 2/3 of all its contest, ET is without jurisdiction.
members, suspend, for not more than 60 days, or
expel a member (Art. VI, Sec. 16, par. 3). NOTE: Once a winning candidate has been
proclaimed, taken his oath, and assumed office as a
Determination of disorderly behavior member of the HoR, COMELECs jurisdiction over
election contests relating to his election, returns, and
It is the prerogative of the House concerned and qualification ends, and the HRETs own jurisdiction
cannot be judicially reviewed (Osmea v. Pendatun, begins. The phrase election, returns, and
et al., G.R. No. L-17144, October 28, 1960). qualifications should be interpreted in its totality as
referring to all matters affecting the validity of the
NOTE: Members of Congress may also be suspended contestees title (Vinzons-Chato v. COMELEC, et al.,
by the Sandiganbayan or by the Office of the G.R. No. 172131, April 2, 2007).
Ombudsman. The suspension in the Constitution is
different from the suspension prescribed in RA 3019 Q: Gemma ran for Congresswoman of Muntinlupa
(Anti-Graft and Corrupt Practices Act). The latter is in the May 2013 elections. However, before the
not a penalty but a preliminary preventive measure elections, the COMELEC cancelled her CoC after
and is not imposed upon the petitioner for hearing a complaint filed against her. Later, she
misbehavior as a member of Congress (Santiago v. was declared winner as Congresswoman of
Sandiganbayan, et al., G.R. No. 128055, April 18, Muntinlupa. The decision said she took her oath
2001). already and had not assumed her office as
Congresswoman. Subsequently, COMELEC issued
ELECTORAL TRIBUNAL AND THE a certificate of finality on its earlier resolution
COMMISSION ON APPOINTMENTS cancelling Gemmas COC. Gemma comes before
the Court arguing that COMELEC has lost
Composition of the Electoral Tribunal (ET) jurisdiction over the case and it is the HRET that
has jurisdiction as she is already declared a
1. 3 Supreme Court Justices designated by the Chief winner. Is Gemmas contention tenable?
Justice;
2. 6 members of the Chamber concerned (Senate or A: Gemma cannot be considered a Member of the
HoR) chosen on the basis of proportional House of Representatives because, primarily, she has
representation from the political parties and not yet assumed office. The jurisdiction of the HRET
parties registered under the party-list system begins only after the candidate is considered a
(Art. VI, Sec. 17). Member of the House of Representatives, as stated in
Art. VI, Sec. 17 of the 1987 Constitution. To be
NOTE: The senior Justice in the Electoral Tribunal considered a Member of the House of
shall be its chairman. Representatives, there must be a concurrence of the
following requisites: (1) a valid proclamation, (2) a
Jurisdiction of the ETs proper oath, and (3) assumption of office.
Each electoral tribunal shall be the sole judge of all The term of office of a Member of the House of
contests relating to the election, returns, and Representatives begins only at noon on the thirtieth
qualifications of their respective members (Art. VI, day of June next following their election. Thus, until
Sec. 17). This includes determining the validity or such time, the COMELEC retains jurisdiction.
invalidity of a proclamation declaring a particular Consequently, before there is a valid or official taking
candidate as the winner. Each ET is also vested with of the oath it must be made (1) before the Speaker of
rule-making power (Lazatin v. HRET, et al., G.R. No. L- the House of Representatives, and (2) in open
84297, December 8, 1988). session. Here, although she made the oath before
Speaker Belmonte, there is no indication that it was
It is independent of the Houses of Congress and its made during plenary or in open session and, thus, it
decisions may be reviewed by the Supreme Court remains unclear whether the required oath of office
only upon showing of grave abuse of discretion. was indeed complied with (Reyes v. COMELEC, et al.,
G.R. No. 207264, June 25, 2013).

2015GOLDEN NOTES
Power of each House over its members in the ET as the sole judge
absence of election contest
Art. VI, Sec. 17 provides that the SET/HRET is the
The power of each House to expel its members or sole judge of all contests. Hence, from its decision,
even to defer their oath-taking until their there is no appeal. Appeal is not a constitutional
qualifications are determined may be exercised even right but merely a statutory right.
without an election contest.
Remedy from an adverse decision of the ET
Q: Imelda ran for HoR. A disqualification case
was filed against her on account of her residence. A special civil action for certiorari under Rule 65 of
The case was not resolved before the election. the Rules of Court may be filed. This is based on
Imelda won the election. However, she was not grave abuse of discretion amounting to lack or
proclaimed. Imelda now questions the excess of jurisdiction. This shall be filed before the
COMELECs jurisdiction over the case. Does the Supreme Court.
COMELEC have jurisdiction over the case?
COMMISSION ON APPOINTMENTS
A: The COMELEC retains jurisdiction. Since Imelda
has not yet been proclaimed, she is not yet a member Composition of the Commission on Appointments
of the HoR. HRETs jurisdiction as the sole judge of (CA)
all contests relating to elections, etc. of members of
Congress begins only after a candidate has become a 1. Senate President as ex-officio chairman
member of the HoR (Romualdez-Marcos v. COMELEC, 2. 12 Senators
et al., G.R. No. 119976, September 18, 1995). 3. 12 members of the HoR (Art. VI, Sec. 18)
Q: Does the HRET have the authority to pass NOTE: A political party must have at least two
upon the eligibilities of the nominees of the senators in the Senate to be able to have a
party-list groups that won in the lower house of representative in the Commission on
Congress? Appointments.Thus, where there are two or more
political parties represented in the Senate, a political
A: YES. By analogy with the cases of district party/coalition with a single senator in the Senate
representatives, once the party or organization of cannot constitutionally claim a seat in the
the party-list nominee has been proclaimed and the Commission on Appointments. It is not mandatory to
nominee has taken his oath and assumed office as elect 12 senators to the Commission; what the
member of the HoR, the COMELECs jurisdiction over Constitution requires is that there must be at least a
election contests relating to his qualifications ends majority of the entire membership (Guingona, Jr. v.
and the HRETs own jurisdiction begins (Abayon v. Gonzales, G.R. No. 106971, October 20, 1992).
HRET, et al., G.R. No. 189466, February 11, 2010).
Membership in the ET
Valid grounds or just causes for termination of
membership to the tribunal The members of the Commission shall be elected by
each House on the basis of proportional
1. Expiration of Congressional term of office representation from the political party and party list.
2. Death or permanent disability Accordingly, the sense of the Constitution is that the
3. Resignation from the political party he membership in the Commission on Appointments
represents in the tribunal must always reflect political alignments in Congress
4. Formal affiliation with another political party and must therefore adjust to changes. It is
5. Removal from office for other valid reasons understood that such changes in party affiliation
(Bondoc v. Pineda, et al., G.R. No. 97710, must be permanent and not merely temporary
September 26, 1991) alliances. Endorsement is not sufficient to get a seat
in CA (Daza v. Singson, et al., G.R. No. 86344,
Q: Can the ET meet even when Congress is not in December 21, 1989).
session?
NOTE: The provision of Sec. 18, Art. VI of the
A: Unlike the Commission on Appointments, the ET Constitution, on proportional representation is
shall meet in accordance with their rules, regardless mandatory in character and does not leave any
of whether Congress is in session or not. discretion to the majority party in the Senate to
disobey or disregard the rule on proportional
representation; otherwise, the party with a majority
representation in the Senate or the HoR can by sheer

force of numbers impose its will on the hapless NOTE: The ET and the CA shall be constituted within
minority. By requiring a proportional representation 30 days after the Senate and the HoR shall have been
in the CA, Sec. 18 in effect works as a check on the organized with the election of the Senate President
majority party in the Senate and helps maintain the and the Speaker of the House.
balance of power. No party can claim more than
what it is entitled to under such rule (Guingona, Jr., et POWERS OF CONGRESS
al., v. Gonzales, et al., G.R. No. 106971, March 1, 1993).
LEGISLATIVE
Presidential appointments subject to
confirmation by the Commission Legislative power
1. Heads of the Executive departments. (except if it The power or competence of the legislative to
is the Vice-President who is appointed to the propose, enact, ordain, amend/alter, modify,
post) abrogate or repeal laws. It is vested in the Congress
2. Ambassadors, other public ministers, or consuls which shall consist of a Senate and a House of
3. Officers of the AFP from the rank of colonel or Representatives, except to the extent reserved to the
naval captain people by the provision on initiative and
4. Other officers whose appointments are vested in referendum.
him by the Constitution (i.e. COMELEC members,
etc.) (Bautista v. Salonga, et al., G.R. No. 86439, Legislative powers of Congress
April 13, 1989)
1. General plenary power (Art. VI, Sec. 1)
NOTE: The enumeration is exclusive. 2. Specific power of appropriation
3. Taxation and expropriation
Rules on voting 4. Legislative investigation
5. Question hour
1. The CA shall rule by a majority vote of all the
members. Doctrine of Shifting Majority
2. The chairman shall only vote in case of tie.
3. The CA shall act on all appointments within 30 For each House of Congress to pass a bill, only the
session days from their submission to Congress votes of the majority of those present in the session,
(Art. VI, Sec. 18) there being a quorum, is required.
Limitations in the confirmation of appointment Rules regarding the passage of bills
1. Congress cannot by law prescribe that the 1. No bill passed by either House shall become a
appointment of a person to an office created by law unless it has passed three readings on
such law be subject to confirmation by the separate days.
Commission. 2. Printed copies of the bill in its final form should
2. Appointments extended by the President to the be distributed to the Members 3 days before its
above-mentioned positions while Congress is passage (except when the President certifies to
not in session shall only be effective until the necessity of its immediate enactment to meet
disapproval by the Commission or until the next a public calamity or emergency)
adjournment of Congress (Sarmiento III, et al., v. 3. Upon the last reading of a bill, no amendment
Mison, et al., G.R. No. L-79974, December 17, thereto shall be allowed.
1987). 4. The vote on the bill shall be taken immediately
after the last reading of a bill.
Guidelines in the meetings of the Commission on 5. The yeas and the nays shall be entered in the
Appointments Journal.
1. Meetings are held either at the call of the XPN: The certification of the President dispenses
Chairman or a majority of all its members. with the reading on separate days and the
2. Since the Commission is also an independent printing of the bill in the final form before its
constitutional body, its rules of procedure are final approval (Tolentino v. Secretary of Finance,
also outside the scope of congressional powers et al., G.R. No. 115455, October 30, 1995).
as well as that of the judiciary (Bondoc v. Pineda,
et al., G.R. No. 97710, September 26, 1991).

2015GOLDEN NOTES
Instances when a bill becomes a law confined only to the legislative purpose. This is
also to avoid abuses.
1. Approved and signed by the President 3. The investigation must be in aid of legislation.
2. Presidential veto overridden by 2/3 vote of all 4. Congress may not summon the President as
members of both Houses witness or investigate the latter in view of the
3. Failure of the President to veto the bill and to doctrine of separation of powers except in
return it with his objections to the House where impeachment cases.
it originated, within 30 days after the date of
receipt NOTE: It is the Presidents prerogative, whether
4. A bill calling a special election for President and to divulge or not the information, which he
Vice-President under Sec. 10. Art. VII becomes a deems confidential or prudent in the public
law upon its approval on the third reading and interest.
final reading.
5. Congress may no longer punish the witness in
LEGISLATIVE INQUIRIES AND OVERSIGHT contempt after its final adjournment. The basis
FUNCTIONS of the power to impose such penalty is the right
to self-preservation. And such right is
Basis enforceable only during the existence of the
legislature (Lopez v. Delos Reyes, G.R. No. L-
The Senate or the House of Representatives or any of 34361, November 5, 1930).
its respective committees may conduct inquiries in 6. Congress may no longer inquire into the same
aid of legislation in accordance with its duly justiciable controversy already before the court
published rules of procedure. The rights of persons (Bengzon, et al., v. Senate Blue Ribbon Committee,
appearing in, or affected by, such inquiries shall be G.R. No. 89914, November 20, 1991).
respected (1987 Constitution, Art. VI, Sec. 21).
Q: Sen. Jogie Repollo accused the Vice Chairman
Matters that can be the subject of inquiries in aid of the Standard Chartered Bank (SCB) of
of legislation violating the Securities Regulation Code for
selling unregistered foreign securities. This has
Indefinite. The field of legislation is very wide as led the Senate to conduct investigation in aid of
compared to that of the American Congress. And legislation. SCB refused to attend the
because of such, the field of inquiry is also very investigation proceedings on the ground that
broad. It may cover administrative inquiries, social, criminal and civil cases involving the same issues
economic, political problem (inquiries), discipline of were pending in courts. Decide.
members, etc. Suffice it to say that it is co-extensive
with legislative power (Arnault v. Nazareno, G.R. No. A: The mere filing of a criminal or an administrative
L-3820, July 18, 1950). complaint before a court or a quasi-judicial body
should not automatically bar the conduct of
NOTE: In aid of legislation does not mean that legislative investigation. Otherwise, it would be
there is pending legislation regarding the subject of extremely easy to subvert any intended inquiry by
the inquiry. In fact, investigation may be needed for Congress through the convenient ploy of instituting a
purposes of proposing future legislation. criminal or an administrative complaint. Surely, the
exercise of sovereign legislative authority, of which
If the stated purpose of the investigation is to the power of legislative inquiry is an essential
determine the existence of violations of the law, the component, cannot be made subordinate to a
investigation is no longer in aid of legislation but criminal or an administrative investigation
in aid of prosecution. This violates the principle of (Standard Chartered Bank v. Senate, G.R. No. 167173,
separation of powers and is beyond the scope of December 27, 2007).
Congressional powers.
Distinction between Standard Chartered Bank v.
Limitations on legislative investigation Senate and Bengzon v. Senate Blue Ribbon
Committee
1. Under Art. VI, Sec. 21, the persons appearing in
or affected by such legislative inquiries shall be It is true that in Bengzon, the Court declared that the
respected. issue to be investigated was one over which
2. The Rules of procedures to be followed in such jurisdiction had already been acquired by the
inquiries shall be published for the guidance of Sandiganbayan, and to allow the Senate Blue Ribbon
those who will be summoned. This must be Committee to investigate the matter would create
strictly followed so that the inquiries are the possibility of conflicting judgments; and that the

inquiry into the same justiciable controversy would Legislative contempt vis--vis pardoning power
be an encroachment on the exclusive domain of of the President
judicial jurisdiction that had set in much earlier.
Legislative contempt is a limitation on the
There are a number of cases already pending in Presidents power to pardon by virtue of the
various courts and administrative bodies involving doctrine of separation of powers.
Standard Chartered Bank, relative to the alleged sale
of unregistered foreign securities. There is a Question Hour
resemblance between this case and Bengzon.
However, the similarity ends there. Where the heads of departments may, upon their
own initiative, with the consent of the President, or
Central to the Courts ruling in Bengzon that the upon the request of either House, as the rules of each
Senate Blue Ribbon Committee was without any House shall provide, appear before and be heard by
constitutional mooring to conduct the legislative such House on any matter pertaining to their
investigation was the Courts determination that departments. Written questions shall be submitted
the intended inquiry was not in aid of legislation. to the President of the Senate or the Speaker of the
The Court found that the speech of Senator Enrile, HoR at least 3 days before their scheduled
which sought such investigation, contained no appearance. Interpellations shall not be limited to
suggestion of any contemplated legislation; it merely written questions, but it may cover matters related
called upon the Senate to look into possible thereto. When the security of the State or the public
violations of Sec. 5, RA No. 3019. Thus, the Court interest so requires and the President so states in
held that the requested probe failed to comply with a writing, the appearance shall be conducted in
fundamental requirement of Sec. 21, Art. VI of the executive session (1987 Constitution, Art. VI, Sec. 22).
1987 Constitution.
Question hour v. Legislative investigation
Unfortunately for SCB, this distinguishing factual
milieu in Bengzon does not obtain in the instant case. LEGISLATIVE
QUESTION HOUR
The unmistakable objective of the investigation, as INVESTIGATION
(SEC. 22, ART. VI,
set forth in the said resolution, exposes the error in (SEC. 21, ART. VI,
1987 CONSTITUTION)
SCBs allegation that the inquiry, as initiated in a 1987 CONSTITUTION)
privilege speech by the very same Senator Enrile, As to persons who may appear
was simply to denounce the illegal practice
committed by a foreign bank in selling unregistered Only a department
Any person
foreign securities. This fallacy is made more glaring head
when we consider that, at the conclusion of his As to who conducts the investigation
privilege speech, Senator Enrile urged the Senate to
immediately conduct an inquiry, in aid of Entire body Committees/Entire Body
legislation, so as to prevent the occurrence of a As to subject matter
similar fraudulent activity in the future
Matters related to the Any matter for the
(Standard Chartered Bank v. Senate, G.R. No. 167173,
department only purpose of legislation
December 27, 2007).
Contempt powers of Congress Oversight power of Congress
Even if the Constitution only provides that Congress Embraces all activities undertaken by Congress to
may punish its members for disorderly behavior or enhance its understanding of and influence over the
expel the same, it is not an exclusion of power to implementation of legislation it has enacted. It
hold other persons in contempt. concerns post-enactment measures undertaken by
Congress (Concurring and Dissenting Opinion of
NOTE: Congress has the inherent power to punish Justice Puno, Macalintal v. COMELEC, G.R. No. 157013,
recalcitrant witnesses for contempt, and may have July 10, 2003).
them incarcerated until such time that they agree to
testify. The continuance of such incarceration only Scope of the power of oversight
subsists for the lifetime, or term, of such body. Thus,
each House lasts for only 3 years. But if one is 1. Monitor bureaucratic compliance with program
incarcerated by the Senate, it is indefinite because objectives;
the Senate, with its staggered terms as an institution, 2. Determine whether agencies are properly
is a continuing body. administered;
3. Eliminate executive waste and dishonesty;

2015GOLDEN NOTES
4. Prevent executive usurpation of legislative Legislative veto

authority; and
5. Assess executive conformity with the A statutory provision requiring the President or an
congressional perception of public interest administrative agency to present the proposed IRR
(Concurring and Dissenting Opinion of Justice of a law to Congress which, by itself or through a
Puno, Macalintal v. COMELEC, G.R. No. 157013, committee formed by it, retains a right or power
July 10, 2003). to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the
Bases of oversight power of Congress form of a congressional oversight committee is in the
form of an inward-turning delegation designed to
1. Intrinsic in the grant of legislative power itself; attach a congressional leash to an agency to which
2. Integral to the system of checks and balances; Congress has by law initially delegated broad
and powers. It radically changes the design or structure
3. Inherent in a democratic system of government. of the Constitutions diagram of power as it entrusts
to Congress a direct role in enforcing, applying or
Categories of Congressional Oversight Functions implementing its own laws. Thus, legislative veto is
not allowed in the Philippines (ABAKADA Guro Party-
1. Scrutiny Implies a lesser intensity and list v. Purisima, G.R. No. 166715, August 14, 2008).
continuity of attention to administrative
operations. Its primary purpose is to determine Q: Can Congress exercise discretion to approve
economy and efficiency of the operation of or disapprove an IRR based on a determination
government activities. of whether or not it conformed to the law?
In the exercise of legislative scrutiny, Congress A: NO. It violates the doctrine of separation of
may request information and report from the powers. In exercising discretion to approve or
other branches of government. It can give disapprove the IRR based on a determination of
recommendations or pass resolutions for whether or not it conformed to the law, Congress
consideration of the agency involved. It is based arrogated judicial power unto itself, a power
primarily on the power of appropriation of exclusively vested in the Supreme Court by the
Congress. Constitution.
But legislative scrutiny does not end in budget From the moment the law becomes effective, any
hearings. Congress can ask the heads of provision of law that empowers Congress or any of
departments to appear before and be heard by its members to play any role in the implementation
either the House of Congress on any matter or enforcement of the law violates the principle of
pertaining to their department. separation of powers and is thus unconstitutional.
Under this principle, a provision that requires
Likewise, Congress exercises legislative scrutiny Congress or its members to approve the
thru its power of confirmation to find out implementing rules of a law after it has already
whether the nominee possesses the necessary taken effect shall be unconstitutional, as is a
qualifications, integrity and probity required of provision that allows Congress or its members to
all public servants. overturn any directive or ruling made by the
2. Congressional Investigation Involves a more members of the executive branch charged with the
intense digging of facts. It is recognized under implementation of the law (ABAKADA Guro Party-list
Sec. 21, Art. VI. Even in the absence of v. Purisima, G.R. No. 166715, August 14, 2008).
constitutional mandate, it has been held to be an
essential and appropriate auxiliary to the Q: May the Senate be allowed to continue the
legislative functions. conduct of a legislative inquiry without a duly
3. Legislative Supervision Connotes a continuing published rules of procedure?
and informed awareness on the part of
congressional committee regarding executive A: The Senate may not do so because the phrase
operations in a given administrative area. It duly published rules of procedure requires the
allows Congress to scrutinize the exercise of Senate of every Congress to publish its rules of
delegated law-making authority, and permits procedure governing inquiries in aid of legislation
Congress to retain part of that delegated because every Senate is distinct from the one before
authority. it or after it (Garcillano v. House of Representatives
Committee on Public Information, G.R. No. 170338,
December 23, 2008).

Invalidity of Publication in the internet term of 12 Senators expires every 3 years, leaving
less than a majority of Senators to continue into the
The invocation of the Senators of the Provisions of next Congress since the Rules of Procedure must be
The Electronic Commerce Act of 2000, to support republished by the Senate after every expiry of the
their claim of valid publication through the internet term of the 12 Senators (Garcillano v. House of
is all the more incorrect. Representatives Committee on Public Information, et
al., G.R. No. 170338, December 23, 2008).
The law merely recognizes the admissibility in
evidence of electronic data messages and/or NOTE: There is no debate that the Senate as an
electronic documents. It does not make the internet institution is "continuing", as it is not dissolved as an
a medium for publishing laws, rules and regulations entity with each national election or change in the
(Garcillano v. House of Representatives Committee on composition of its members. However, in the conduct
Public Information, G.R. No. 170338, December 23, of its day-to-day business the Senate of each
2008). Congress acts separately and independently of the
Senate of the Congress before it.
Publication of the internal rules of Congress
Undeniably, all pending matters and proceedings, i.e.
The Constitution does not require publication of the unpassed bills and even legislative investigations, of
internal rules of the House or Senate. Since rules of the Senate of a particular Congress are considered
the House or Senate affect only their members, such terminated upon the expiration of that Congress and
rules need not be published, unless such rules it is merely optional on the Senate of the succeeding
expressly provide for their publication before the Congress to take up such unfinished matters, not in
rules can take effect (Pimentel, Jr., et al., v. Senate the same status, but as if presented for the first time.
Committee of the Whole, G.R. No. 187714, March 8, The logic and practicality of such a rule is readily
2011). apparent considering that the Senate of the
succeeding Congress (which will typically have a
Q: During a hearing of the Senate Committee of different composition as that of the previous
the Whole, some proposed amendments to the Congress) should not be bound by the acts and
Rules of the Ethics Committee that would deliberations of the Senate of which they had no part
constitute the Rules of the Senate Committee of (Neri v. Senate Committee on Accountability of Public
the Whole were adopted. Senator Sonia raised as Officers and Investigations, GR. No. 180643,
an issue the need to publish the proposed September 4, 2008).
amended Rules of the Senate Committee of the
Whole, as directed by the amended Rules itself. THE BICAMERAL CONFERENCE COMMITTEE
However, the Senate Committee of the Whole
proceeded without publication of the amended Purpose of the Bicameral Conference Committee
Rules. Is the publication of the Rules of the
Senate Committee of the Whole required for A Conference Committee is constituted and is
their effectivity? composed of Members from each House of Congress
to settle, reconcile or thresh out differences or
A: In this particular case, the Rules of the Senate disagreements on any provision of the bill.
Committee of the Whole itself provide that the Rules
must be published before the Rules can take effect. Q: If the version approved by the Senate is
Thus, even if publication is not required under the different from that approved by the HoR, how are
Constitution, publication of the Rules of the Senate the differences reconciled?
Committee of the Whole is required because the
Rules expressly mandate their publication. xxx. To A. In a bicameral system, bills are independently
comply with due process requirements, the Senate processed by both Houses of Congress. It is not
must follow its own internal rules if the rights of its unusual that the final version approved by one
own members are affected (Pimentel, Jr., et al v. House differs from what has been approved by the
Senate Committee of the Whole, G.R. No. 187714, other.
March 8, 2011).
The conference committee, consisting of members
Q: Is the Senate a continuing legislative body? nominated from both Houses, is an extra-
constitutional creation of Congress whose function is
A: The present Senate under the 1987 Constitution is to propose to Congress ways of reconciling
no longer a continuing legislative body. The present conflicting provisions found in the Senate version
Senate has 24 members, twelve of whom are elected and in the House version of a bill (Concurring and
every 3 years for a term of 6 years each. Thus, the

2015GOLDEN NOTES
Dissenting Opinion, Justice Callejo, Sr., G.R. No. LIMITATIONS ON LEGISLATIVE POWER
168056, September 1, 2005).
Limitations on legislative powers
Extent of the power of the Committee
Substantive
The conferees are not limited to reconciling the 1. Express:
differences in the bill but may introduce new a. Bill of Rights (1987 Constitution, Art. III)
provisions germane to the subject matter or may b. On Appropriations (1987 Constitution, Art.
report out an entirely new bill on the subject VI, Secs. 25 and 29[1&2])
(Tolentino v. Secretary of Finance, G.R. No, 115455, c. On Taxation (Art. VI, Secs. 28 and 29, par. 3)
August 25, 1994). d. On Constitutional appellate jurisdiction of
SC (1987 Constitution, Art. VI, Sec. 30)
Scope of the powers of the Committee e. No law granting a title of royalty or nobility
shall be enacted (1987 Constitution, Art. VI,
1. Adopt the bill entirely Sec. 31).
2. Amend or Revise f. No specific funds shall be appropriated or
3. Reconcile the House and Senate Bills paid for use or benefit of any religion, sect,
4. Propose entirely new provisions not found in etc., except for priests, etc., assigned to AFP,
either the Senate or House bills penal institutions, etc (1987 Constitution,
Art. VI, Sec. 29[2]).
Q: The Senate and House version of RA 9337 2. Implied:
(RVAT Law) was passed to the Bicameral a. Prohibition against irrepealable laws
Conference Committee to settle the differences b. Non-delegation of powers
between the two versions. The Bicameral
Conference Committee, upon the passage of its NOTE: Exemptions to Non-Delegation
version, made several changes with the inclusion Doctrine
of the stand-by authority of the President, i. Delegation to the President (1987
omission of the no pass-on provision included in Constitution, Art. VI, Sec. 23[2] and
both Senate and House versions, inclusion of Sec. 28(2))
provisions on other kinds of taxes and VAT only ii. Delegation to the people (1987
found in the Senate bill. Were the changes made Constitution, Art VI, Sec. 32)
by the Committee valid?
Procedural
A: The changes introduced by the Bicameral 1. Only one subject, to be stated in the title of the
Conference Committee were meant only to reconcile bill (1987 Constitution, Art. VI, Sec. 26[1]).
and harmonize the disagreeing provisions for it did 2. Three (3) readings on separate days; printed
not inject any idea or intent that is wholly foreign to copies of the bill in its final form to be
the subject embraced by the original provisions. distributed to its members 3 days before its
passage, except if the President certifies to its
Under the provisions of both the Rules of the House immediate enactment to meet a public calamity
of Representatives and Senate Rules, the Bicameral or emergency; upon its last reading, no
Conference Committee is mandated to settle the amendment shall be allowed and the vote
differences between the disagreeing provisions in thereon shall be taken immediately and the yeas
the House bill and the Senate bill. and nays entered into the Journal (1987
Constitution, Art. VI, Sec. 26[2]).
To reconcile or harmonize disagreeing provisions, 3. Appropriation bills, revenue bills, tariff bills, bills
the Bicameral Conference Committee may then (a) authorizing the increase of public debt, bills of
adopt the specific provisions of either the House bill local application and private bills shall originate
or Senate bill, (b) decide that neither provisions in exclusively in the House of Representatives
the House bill or the provisions in the Senate bill (1987 Constitution, Art. VI, Sec. 24).
would be carried into the final form of the bill,
and/or (c) try to arrive at a compromise between the NOTE: During the First Reading, only the title of the
disagreeing provisions (Escudero, et al., v. Purisima, bill is read, then it is passed to the proper committee
et al., G.R. No. 168463, September 1, 2005; ABAKADA for study. On the Second Reading, the entire text is
Guro Party List et al., v. Ermita, et al., GR 168056, read, and debates and amendments are held. On the
September 1, 2005). Third Reading, only the title is read, and votes are
taken immediately thereafter.

One bill-one subject rule GR: Each reading shall be held on separate days and
printed copies thereof in its final form shall be
Every bill passed by the Congress shall embrace only distributed to its Members, 3 days before its passage.
one subject. The subject shall be expressed in the
title of the bill. This rule is mandatory. XPN: If a bill is certified as urgent by the President as
to the necessity of its immediate enactment to
NOTE: The purposes of such rule are: meet a public calamity or emergency, the 3 readings
1. To prevent hodgepodge or log-rolling can be held on the same day (1987 Constitution, Art.
legislation; VI, Sec. 26[2].
2. To prevent surprise or fraud upon the
legislature; and Reasons for the three readings on separate
3. To fairly apprise the people of the subjects of days rule
legislation (Central Capiz v. Ramirez, G.R. No.
16197, March 12, 1920). This rule is designed to prevent hasty and
improvident legislation, and afford the legislators
Determination of the sufficiency of the title time to study and deliberate the measures.
It suffices if the title should serve the purpose of the The two-fold purpose that underlies the requirement
constitutional demand that it informs the legislators, for three readings on separate days of every bill
the persons interested in the subject of the bill, and must always be observed to enable our legislators
the public, of the nature, scope and consequences of and other parties interested in pending bills to
the proposed law and its operation. And this, to lead intelligently respond to them. Specifically, the
them to inquire into the body of the bill, study and purpose with respect to Members of Congress is:
discuss the same, take appropriate action thereon, 1. To inform the legislators of the matters they
and, thus, prevent surprise or fraud upon the shall vote on; and
legislators. 2. To give them notice that a measure is in
progress through enactment process (Datu
The test of the sufficiency of a title is whether or not Michael Abas Kida, et al., v. Senate, et al., G.R. No.
it is misleading; and, which technical accuracy is not 196271, October 18, 2011).
essential, and the subject need not be stated in
express terms where it is clearly inferable from the Appropriation bill
details set forth, a title which is so uncertain that the
average person reading it would not be informed of Primarily made for the appropriation of a sum of
the purpose of the enactment or put on inquiry as to money from the public treasury.
its contents, or which is misleading, either in
referring to or indicating one subject where another Revenue bill
or different one is really embraced in the act, or in
omitting any expression or indication of the real Specifically designed to raise money or revenue
subject or scope of the act, is bad. through imposition or levy.
In determining sufficiency of particular title, its Bill of local application

substance rather than its form should be considered,
and the purpose of the constitutional requirement, of A bill limited to specific localities, such as the
giving notice to all persons interested, should be creation of a town. Hence, it is one involving purely
kept in mind by the court. local or municipal matters, e.g. the charter of a city.
The Constitution does not require Congress to Private bills

employ in the title of an enactment, language of such
precision as to mirror, fully index or catalogue all the Those which affect private persons, such as a bill
contents and the minute details therein (Lidasan v. granting citizenship to a specific foreigner, or a bill
COMELEC, G.R. No. L-28089, October 25, 1967). granting honorary citizenship to a distinguished
foreigner.
Q: How many readings must a bill undergo before
it may become a law? Tariff bills
A: Each bill must pass 3 readings each in both Those which specify the rates or duties to be
Houses. In other words, there must be a total of 6 imposed on imported articles.
readings.

2015GOLDEN NOTES
LIMITATIONS ON APPROPRIATION, REVENUE, Constitutional limitations on special

AND TARIFF MEASURES appropriations measures
Constitutional limitations on the legislatives 1. Must specify public purpose for which the sum
power to enact laws on appropriation, revenue was intended;
and tariff (ART) measures 2. Must be supported by funds actually available as
certified by the National Treasurer or to be
1. All appropriation, revenue or tariff(ART) bills, raised by corresponding revenue proposal
bills authorizing increase of the public debt, bills therein (1987 Constitution, Art. VI, Sec. 25[4]).
of local application, and private bills, shall
originate exclusively in the House of Constitutional rules on General Appropriations
Representatives, but the Senate may propose or Laws
concur with amendments (1987 Constitution,
Art. VI, Sec. 24). 1. Congress may not increase appropriations
recommended by the President for the
NOTE: The initiative for filing of ART bills must operations of the government;
come from the HoR, but it does not prohibit the 2. Form, content and manner of preparation of
filing in the Senate of a substitute bill in budget shall be provided by law;
anticipation of its receipt of the bill from the 3. No provision or enactment shall be embraced in
House, so long as the action by the Senate is the bill unless it releases specifically to some
withheld pending the receipt of the House bill particular appropriations therein;
(Tolentino v. Sec. of Finance, G.R. No. 115455, 4. Procedure for approving appropriations for
August 25, 1994). Congress shall be the same as that of other
departments in order to prevent sub-rosa
2. The President shall have the power to veto any appropriations by Congress;
particular item or items in an appropriation, 5. Prohibition against transfer of appropriations.
revenue, or tariff bill, but the veto shall not affect Nonetheless, the following may, by law, be
the item or items to which he does not object authorized to augment any item in the general
(1987 Constitution, Art. VI, Sec. 27[2]). appropriations law for their respective offices
from savings in other items of their respective
Power of appropriation appropriations (Doctrine of Augmentation):
a. President
The spending power, also called the power of the b. Senate President
purse, belongs to Congress, subject only to the veto c. Speaker of the HoR
power of the President. It carries with it the power to d. Chief Justice
specify the project or activity to be funded under the e. Heads of Constitutional Commissions;
appropriation law. 6. Prohibitions against appropriations for sectarian
benefit; and
Appropriation law 7. Automatic re-appropriation If, by the end of
any fiscal year, the Congress shall have failed to
A statute enacted for the specific purpose of pass the general appropriations bill for the
authorizing the release of public funds from the ensuing fiscal year, the general appropriations
treasury. law for the preceding fiscal year shall be deemed
reenacted and shall remain in force and effect
Classifications of appropriations until the general appropriations bill is passed by
the Congress (1987 Constitution, Art. VI, Sec.
1. General appropriation law Passed annually, 25[7]).
and intended for the financial operations of the
entire government during one fiscal period; Ratio: For the purpose of preventing the
2. Special appropriation law Designed for a disruption in government operations and
specific purpose. unauthorized disbursement of funds
Implied limitations on appropriation power Budget
1. Must specify a public purpose; Financial program of the national government for
2. Sum authorized for release must be determinate, the designated calendar year, providing for the
or at least determinable (Guingona v. Carague, estimates of receipts of revenues and expenditures.
G.R. No. 94571, April 22, 1991).

Budget proposal A: The resolution is unconstitutional.

1. It violates Art. VI, Sec. 29(2) of the Constitution,
The President shall propose the budget and submit it which prohibits the appropriation of public
to Congress. It shall indicate the expenditures, money or property, directly or indirectly, for the
sources of financing, as well as, receipts from use, benefit or support of any system of religion;
previous revenues and proposed revenue measures. 2. It contravenes Art. VI, Sec. 25(6), which limits
It will serve as a guide for Congress: the appropriation of discretionary funds only for
1. In fixing the appropriations; public purposes.
2. In determining the activities which should be
funded (1987 Constitution, Art. VII, Sec. 22). The use of discretionary funds for a purely religious
purpose is unconstitutional, and the fact that the
NOTE: The proposed budget is not final. It is subject disbursement is made by resolution of a local
to the approval of Congress but the President may legislative body and not by Congress does not make
exercise his or her veto power. Accordingly, the it any less offensive to the Constitution. Above all,
power of the purse belongs to Congress, subject only the resolution constitutes a clear violation of the
to the veto power of the President. The President Non-establishment Clause of the Constitution.
may propose the budget but still the final say on the
matter of appropriation is lodged in the Congress Q: If there is a deficit in the final budget, can the
(Philippine Constitution Association, et al. v. Enriquez, funds be automatically taken from the National
et al., G.R. No. 113105, August 19, 1994). Treasury?
Modification of Congress of the budget proposal A: NO. Congress will still have to enact a law before
money can be paid out of the National Treasury
Congress may only reduce but not increase the (1987 Constitution, Art. VI, Sec. 29[1]).
budget.
PRESIDENTIAL VETO AND CONGRESSIONAL
NOTE: Congress may not increase its outlay for itself, OVERRIDE
the judiciary and the Constitutional Commissions
because it is presumed that their needs have already Rule on presentment
been identified while drafting the budget.
Every bill passed by Congress must be presented to
Q: May each legislator exercise the appropriation the President for approval or veto. In the absence of
power of Congress? presentment to the President, no bill passed by
Congress can become a law.
A: NO. Legislative power shall be exclusively
exercised by the body to which the Constitution has Rule on presidential veto
conferred the same. The power to appropriate must
be exercised only through legislation, pursuant to GR: If the President disapproves a bill enacted by
Sec. 29(1), Art. VI of the Constitution which states: Congress, he should veto the entire bill. He is not
No money shall be paid out of the Treasury except allowed to veto separate items of a bill.
in pursuance of an appropriation made by law
(Belgica, et al. v. Ochoa, et al., G.R. No. 208566, XPN: Item-veto is allowed in case of Appropriation,
November 19, 2013). Revenue, and Tariff bills (1987 Constitution, Art. VI,
Sec. 27[2]).
Q: The budget of a predominantly Muslim
province provides the Governor with a certain XPNs to the XPN:
amount as his discretionary funds. Recently, 1. Doctrine of inappropriate provisions A
however, the Sangguniang Panlalawigan passed provision that is constitutionally
a resolution appropriating P100,000 as a special inappropriate for an appropriation bill may
discretionary fund of the Governor, to be spent be singled out for veto even if it is not an
by him in leading a pilgrimage of his province appropriation or revenue item (Gonzales, et
mates to Mecca, Saudi Arabia, Islam's holiest city. al. v. Macaraig, Jr., et al., G.R. No. 87636,
November 19, 1990).
Philconsa, on constitutional grounds, has filed 2. Executive impoundment Refusal of the
suit to nullify the resolution of the Sangguniang President to spend funds already allocated
Panlalawigan giving the special discretionary by Congress for specific purpose. It is the
fund to the Governor for the stated purpose. How failure to spend or obligate budget authority
would you decide the case? Give your reasons. of any type (Philconsa, et al., v. Enriquez, et
al., G.R. No. 113105, August 19, 1994).

2015GOLDEN NOTES
9. Power of Impeachment (1987 Constitution, Art.

Instances of pocket veto XI, Sec. 2)
10. Power relative to natural resources
1. When the President fails to act on a bill; and (1987 Constitution, Art. XII, Sec. 2)
2. When the reason he does not return the bill to 11. Power of internal organization (1987
the Congress is that Congress is not in session. Constitution, Art. VI, Sec. 16)
a. Election of officers
NOTE: Pocket veto is not applicable in the b. Promulgate internal rules
Philippines because inaction by the President for 30 c. Disciplinary powers
days never produces a veto even if Congress is in 12. Informing Function
recess. The President must still act to veto the bill
and communicate his veto to Congress without need Congressional grant of emergency powers to the
of returning the vetoed bill with his veto message. President
Rider Under Art. VI, Sec. 23[2] of the Constitution, Congress

may grant the President emergency powers subject
A provision in a bill which does not relate to a to the following conditions:
particular appropriation stated in the bill. Since it is 1. There is a war or other national emergency;
an invalid provision under the 1987 Constitution, Art. 2. The grant of emergency powers must be for a
VI, Sec. 25[2], the President may veto it as an item. limited period;
3. The grant of emergency powers is subject to
Congressional override such restrictions as Congress may prescribe; and
4. The emergency powers must be exercised to
If, after reconsideration, 2/3 of all members of such carry out a national policy declared by Congress.
House agree to pass the bill, it shall be sent to the
other House by which it shall likewise be INFORMING FUNCTIONS
reconsidered and if approved by 2/3 of all members
of that House, it shall become a law without the need Informing function of Congress
of presidential approval.
The informing function of the legislature includes its
NON-LEGISLATIVE POWERS function to conduct legislative inquiries and
investigation and its oversight power.
Non-legislative powers of Congress
The power of Congress does not end with the
1. Power to declare the existence of state of war finished task of legislation. Associated with its
(1987 Constitution, Art. VI, Sec. 23, Par. 1) principal power to legislate is the auxiliary power to
2. Power to act as Board of Canvassers in election ensure that the laws it enacts are faithfully executed.
of President (1987 Constitution, Art. VII, Sec. 10) As well stressed by one scholar, the legislature fixes
3. Power to call a special election for President and the main lines of substantive policy and is entitled to
Vice-President (1987 Constitution, Art. VII, Sec. see that administrative policy is in harmony with it;
10) it establishes the volume and purpose of public
4. Power to judge Presidents physical fitness to expenditures and ensures their legality and
discharge the functions of the Presidency (1987 propriety; it must be satisfied that internal
Constitution, Art. VII, Sec. 11) administrative controls are operating to secure
5. Power to revoke or extend suspension of the economy and efficiency; and it informs itself of the
privilege of the writ of habeas corpus or conditions of administration of remedial measure.
declaration of martial law (1987 Constitution,
Art. VII, Sec. 18) The power of oversight has been held to be intrinsic
6. Power to concur in Presidential amnesties. in the grant of legislative power itself and integral to
Concurrence of majority of all the members of the checks and balances inherent in a democratic
Congress (1987 Constitution, Art. VII, Sec. 19) system of government. Woodrow Wilson went one
7. Power to concur in treaties or international step farther and opined that the legislatures
agreements; concurrence of at least 2/3 of all informing function should be preferred to its
the members of the Senate (1987 Constitution, legislative function. He emphasized that [E]ven
Art. VII, Sec. 21) more important than legislation is the instruction
8. Power to confirm certain appointments/ and guidance in political affairs which the people
nominations made by the President (1987 might receive from a body which kept all national
Constitution, Art. VII, Secs. 9 and 16) concerns suffused in a broad daylight of discussion
(Concurring and Dissenting Opinion of Justice Puno,

Macalintal v. COMELEC, et al., G.R. No. 157013, July 10, e. Placing on calendar the Committee
2003). resolution within 10 days from submission;
f. Discussion on the floor of the report;
POWER OF IMPEACHMENT
NOTE: If the verified complaint is filed by at
Impeachment least 1/3 of all the members of the HoR, the
same shall constitute the Articles of
The method by which persons holding government Impeachment, and trial by the Senate shall
positions of high authority, prestige, and dignity and forthwith proceed (1987 Constitution, Art. XI,
with definite tenure may be removed from office for Sec. 3[4]).
causes closely related to their conduct as public
officials. g. A vote of at least 1/3 of all the members of
the HoR shall be necessary either to affirm a
NOTE: It is a national inquest into the conduct of favorable resolution with the Articles of
public men. Impeachment of the committee or override
its contrary resolution (1987 Constitution,
It is primarily intended for the protection of the Art. XI. Sec. 3[3]).
State, not for the punishment of the offender. The 2. Trial and Decision in impeachment proceedings
penalties attached to the impeachment are merely a. The Senators take an oath or affirmation
incidental to the primary intention of protecting the b. When the President of the Philippines is on
people as a body politic. trial, the Chief Justice of the SC shall preside
but shall not vote.
Impeachable officers c. A decision of conviction must be concurred
in by at least 2/3 of all the members of
1. President Senate.
2. Vice-President
3. Members of the Supreme Court NOTE: The Senate has the sole power to try and
4. Members of the Constitutional Commissions decide all cases of impeachment (1987 Constitution,
5. Ombudsman (1987 Constitution, Art. XI, Sec. 2) Art. XI, Sec. 3[6]).
NOTE: The enumeration is exclusive. Initiated impeachment
Grounds for impeachment The proceeding is initiated or begins, when a verified

complaint is filed and referred to the Committee on
1. Culpable violation of the Constitution Justice for action. This is the initiating step which
2. Treason triggers the series of step that follow. The term to
3. Bribery initiate refers to the filing of the impeachment
4. Graft and Corruption complaint coupled with Congress taking initial
5. Other high crimes action of said complaint (Francisco, et al., v. House of
6. Betrayal of public trust (1987 Constitution, Art. Rep., et al., G.R. No. 160261, November 10, 2003).
XI, Sec. 2)
Determination of sufficiency of form and
NOTE: The enumeration is exclusive. substance of an impeachment complaint
Steps in the impeachment process Determination of sufficiency of form and substance

of an impeachment complaint is an exponent of the
1. Initiating impeachment case express constitutional grant of rulemaking powers of
a. Verified complaint filed by any member of the HoR.
the HoR or any citizen upon resolution of
endorsement by any member thereof. In the discharge of that power and in the exercise of
b. Included in the order of business within 10 its discretion, the House has formulated
session days. determinable standards as to form and substance of
c. Referred to the proper committee within 3 an impeachment complaint. Furthermore, the
session days from its inclusion. impeachment rules are clear in echoing the
d. The committee, after hearing, and by constitutional requirements in providing that there
majority vote of all its members, shall must be a verified complaint or resolution and that
submit its report to the HoR together with the substance requirement is met if there is a recital
the corresponding resolution. of facts constituting the offense charged and
determinative of the jurisdiction of the committee

2015GOLDEN NOTES
(Gutierrez v. The House of Representatives Committee The power to impeach is essentially a non-legislative
on Justice, et al., G.R. No. 193459, February 15, 2011). prerogative and can be exercised by Congress only
within the limits of the authority conferred upon it
Purpose of the one-year bar rule by the Constitution (Ibid).
The purpose of the one-year bar is two-fold: Initiation takes place by the act of filing of the
1. To prevent undue or too frequent harassment. impeachment complaint and referral to the House
2. To allow the legislature to do its principal task of Committee on Justice. Once an impeachment
legislation (Francisco, et al., v. House of Rep., et complaint has been initiated in the foregoing
al., G.R. No. 160261, November 10, 2003). manner, another may not be filed against the same
official within a one year period (Gutierrez v. House
The consideration behind the intended limitation of Representatives Committee on Justice, et al., G.R. No.
refers to the element of time, and not the number of 193459, February 15, 2011).
complaints. The impeachable officer should defend
himself in only one impeachment proceeding, so that Judicial review in impeachment proceedings
he will not be precluded from performing his official
functions and duties. Similarly, Congress should run Given their concededly political character, the
only one impeachment proceeding so as not to leave precise role of the judiciary in impeachment cases is
it with little time to attend to its main work of law- a matter of utmost importance to ensure the
making. The doctrine laid down in Francisco that effective functioning of the separate branches while
initiation means filing and referral remains preserving the structure of checks and balance in our
congruent to the rationale of the constitutional government (Chief Justice v. Senate of the Philippines,
provision (Gutierrez v. The House of Representatives G.R. No. 200242, July 17, 2012).
Committee on Justice, et al., G.R. No. 193459, February
15, 2011). It is, by its nature, a sui generis politico-legal process
that signals the need for a judicious and careful
NOTE: Congress may look into separate complaints handling as shown by the process required to initiate
against an impeachable officer and consider the the proceeding; the one-year limitation or bar for its
inclusion of matters raised therein, in the adoption of initiation; the limited grounds for impeachment; the
the Articles of Impeachment (ibid). defined instrumentality given the power to try
impeachment cases; and the number of votes
Effects of conviction in impeachment required for a finding of guilt (Gonzales III v. Office of
the President, et al., G.R. 196231, January 28, 2014).
1. Removal from office
2. Disqualification to hold any other office under
the Republic of the Philippines
3. Party convicted shall be liable and subject to
prosecution, trial and punishment according to
law (1987 Constitution, Art. XI, Sec. 3 [7]).
Limitations imposed by the Constitution upon

the initiation of impeachment proceedings
1. The HoR shall have the exclusive power to

initiate all cases of impeachment.
2. Not more than one impeachment proceeding
shall be initiated against the same official within
a period of one year.
NOTE: An impeachment case is the legal controversy

that must be decided by the Senate while an
impeachment proceeding is one that is initiated in the
House of Representatives. For purposes of applying
the one year ban rule, the proceeding is initiated or
begins when a verified complaint is filed and
referred to the Committee on Justice for action
(Francisco v. House of Representatives, et. al., G.R. No.
160261, November 10, 2003).

EXECUTIVE DEPARTMENT Constitution, Art. VII, for Commission on

Sec. 6) Appointments
Head of the executive department 3. Immunity from suit confirmation (1987
for official acts. Constitution, Art. VII,
The President is both the head of State and head of Sec. 3).
government; hence, executive power is exclusively
vested on him. PRESIDENTIAL IMMUNITY
Qualifications of the President Presidential or executive immunity
1. Natural-born citizen of the Philippines; The President is immune from suit during his
2. A registered voter; incumbency.
3. Able to read and write;
4. At least forty years of age on the day of the Rules on executive immunity
election, and;
5. A resident of the Philippines for at least A. Rules on immunity during tenure (not term):
ten years immediately preceding such 1. The President is immune from suit during
election (1987 Constitution, Art. VII, Sec. 2). his tenure (In re: Bermudez, G.R. No. 76180,
October 24, 1986).
Term of the President 2. An impeachment complaint may be filed
against him during his tenure (1987
1. The President shall be elected by direct Constitution, Art. XI).
vote of the people for a term of six years 3. The President may not be prevented from
which shall begin at noon on the thirtieth instituting suit (Soliven, et al., v. Makasiar,
day of June next following the day of the et al., G.R. No. 82585, November 14, 1988).
election and shall end at noon of the same 4. There is nothing in our laws that would
date, six years thereafter. prevent the President from waiving the
2. The President shall not be eligible for any privilege. The President may shed the
re-election. protection afforded by the privilege
(Soliven, et al., v. Makasiar, et al., G.R. No.
NOTE: The Vice-President may serve for 82585, November 14, 1988).
more than two successive terms. 5. Heads of departments cannot invoke the
Presidents immunity (Gloria v. Court of
3. No person who has succeeded as President Appeals, G.R. No. 119903, August 15, 2000).
and has served as such for more than four B. Rule on immunity after tenure:
years shall be qualified for election to the Once out of office, even before the end of the 6-
same office at any time (1987 Constitution, year term, immunity for non-official acts is
Art. VII, Sec. 4). lost. Immunity cannot be claimed to shield a
non-sitting President from prosecution for
NOTE: Vice-President shall have the same alleged criminal acts done while sitting in
qualifications and term of office and be elected office (Estrada v. Desierto, et al., G.R. Nos.
with, and in the same manner, as the President. He 146710-15, March 2, 2001).
may be removed from office in the same manner as
the President (1987 Constitution, Art. VII, Sec. 3). Q: Is a non-sitting President immune from suit
for acts committed during his tenure?
PRIVILEGES, INHIBITIONS AND
DISQUALIFICATIONS A: A non-sitting President does not enjoy immunity
from suit, even though the acts were done during
IMMUNITY AND PRIVILEGES her tenure. The intent of the framers of the
Constitution is clear that the immunity of the
Privileges of the President and Vice-President president from suit is concurrent only with his
tenure and not his term. Former President Arroyo
PRESIDENT VICE-PRESIDENT cannot use the presidential immunity from suit to
shield herself from judicial scrutiny that would
1. Official residence; 1. Salary shall not be
assess whether, within the context
2. Salary is determined decreased during his
of amparo proceedings, she was responsible or
by law and not to be tenure;
accountable for the abduction of Rodriguez (In Re:
decreased during his 2. If appointed to a
Petition for the Writ of Amparo and Habeas Data in
tenure; (1987 Cabinet post, no need
favor of Noriel H. Rodriguez; Noriel H. Rodriguez v.

2015GOLDEN NOTES
EXECUTIVE DEPARTMENT
Gloria Macapagal-Arroyo, et al., G.R. Nos. 191805 & and the perpetrator of the crime as his
193160, November 15, 2011). subordinate;
2. The superior knew or had reason to know that
Purpose of presidential immunity the crime was about to be or had been
committed;
1. Separation of powers The separation of 3. The superior failed to take the necessary and
powers principle is viewed as demanding the reasonable measures to prevent the criminal
executives independence from the judiciary, acts or punish the perpetrators thereof
so that the President should not be subject to (Rodriguez v. GMA, et al., G.R. Nos. 191805 &
the judiciarys whim (Almonte, et al., v. Vasquez, 193160, November 15, 2011).
G.R. No. 95367, May 23, 1995).
2. Public convenience The grant is to assure the Application of the doctrine of command
exercise of presidential duties and functions responsibility in amparo proceedings
free from any hindrance or distraction,
considering that the presidency is a job that, It should, at most, be only to determine the author
aside from requiring all of the office-holders who, at the first instance, is accountable for, and
time, demands undivided attention (Soliven, et has the duty to address, the disappearance and
al. ,v. Makasiar, et al., G.R. No. 82585, November harassments complained of, so as to enable the
14, 1988). Court to devise remedial measures that may be
appropriate under the premises to protect rights
Q: Upon complaint of the incumbent President, covered by the writ of amparo (Rubrico, et al. v.
Paul Levesque was charged with libel before GMA, et al., G.R. No. 183871, February 18, 2010).
the RTC. Paul contends that if the proceedings
ensue by virtue of the Presidents filing of his Q: May the President be held liable for
complaint-affidavit, he may subsequently have extrajudicial killings and enforced
to be a witness for the prosecution, bringing disappearances as the Commander-in-Chief of
her under the trial courts jurisdiction. May the Philippine military?
Paul invoke the Presidents immunity?
A: YES. The President may be held accountable
A: The immunity of the President from suit is under the principle of command responsibility. The
personal to the President. It may be invoked only President, being the commander-in-chief of all
by the President and not by any other person. The armed forces, necessarily possesses control over
privilege of immunity from suit pertains to the the military that qualifies him as a superior within
President by the virtue of the office and may be the purview of the command responsibility
invoked only by the holder of that office; and not doctrine.
by any other person in his behalf (Soliven, et al., v.
Makasiar, et al., G.R. No. 82585, November 14, 1988). On the issue of knowledge, it must be pointed out
that although international tribunals apply a strict
Principle of command responsibility standard of knowledge, i.e. actual knowledge, the
same may nonetheless be established through
According to Fr. Bernas, command responsibility, circumstantial evidence. In the Philippines, a more
in its simplest terms, means the responsibility of liberal view is adopted and superiors may be
commanders for crimes committed by subordinate charged with constructive knowledge.
members of the armed forces or other persons
subject to their control in international wars or Knowledge of the commission of irregularities,
domestic conflict. crimes or offenses is presumed when:
1. The acts are widespread within the
It is an omission mode of individual criminal government officials area of jurisdiction;
liability, whereby the superior is made 2. The acts have been repeatedly or regularly
responsible for crimes committed by his committed within his area of responsibility; or
subordinates for failing to prevent or punish the 3. Members of his immediate staff or office
perpetrators (as opposed to crimes he ordered) personnel are involved.
(Rubrico, et al. v. GMA, et al., G.R. No. 183871,
February 18, 2010). As to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief
Elements of command responsibility of the armed forces, the President has the power to
effectively command, control and discipline the
1. The existence of a superior-subordinate military (Rodriguez v. GMA, et al., G.R. Nos. 191805
relationship between the accused as superior &193160, November 15, 2011).

PRESIDENTIAL PRIVILEGE NOTE: The Executive Secretary must state that

the authority is By order of the President,
Presidential or Executive privilege which means he personally consulted with the
President.
The power of the President and high-level
executive branch officers to withhold certain types Requirement if an official is summoned by
of information from Congress, the courts, and Congress on a matter which in his own
ultimately the public. judgment might be covered by executive
privilege
Invocation of the privilege
When an official is being summoned by Congress
Executive privilege must be invoked in relation to on a matter which, in his own judgment, might be
specific categories of information and not to covered by executive privilege, he must be afforded
categories of persons. reasonable time to inform the President or the
Executive Secretary of the possible need for
NOTE: While executive privilege is a constitutional invoking the privilege.
concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and This is necessary in order to provide the President
the context in which it is made. Noticeably absent or the Executive Secretary with fair opportunity to
is any recognition that executive officials are consider whether the matter indeed calls for a
exempt from the duty to disclose information by claim of executive privilege. If, after the lapse of
the mere fact of being executive officials (Senate, et that reasonable time, neither the President nor the
al., v. Ermita, G.R. No. 169777, April 20, 2006). Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the
Q: Does the invocation of this privilege through official to appear before Congress and may then
executive orders, prohibiting executive officials opt to avail of the necessary legal means to compel
from participating in legislative inquiries, his appearance (Senate, et al., v. Ermita, G.R. No.
violate the constitutional right to information 169777, April 20, 2006).
on matters of public concern of the people?
Requirements in invoking the privilege
A: YES. To the extent that investigations in aid of
legislation are generally conducted in public, 1. There must be a formal claim of the privilege;
however, any executive issuance tending to unduly and
limit disclosures of information in such 2. The claim has specific designation and
investigations necessarily deprives the people of description of the documents within its scope
information which, being presumed to be in aid of and with the precise and certain reasons for
legislation, is presumed to be a matter of public preserving their confidentiality.
concern. The citizens are thereby denied access to
information which they can use in formulating Without this specificity, it is impossible for a
their own opinions on the matter before Congress court to analyze the claim short of disclosure
opinions which they can then communicate to of the very thing sought to be protected.
their representatives and other government
officials through the various legal means allowed NOTE: Congress, however, must not require the
by their freedom of expression (Senate, et al., v. Executive to state the reasons for the claim with
Ermita, G.R. No. 169777, April 20, 2006). such particularity as to compel disclosure of the
information, which the privilege is meant to
Persons who can invoke executive privilege protect (Senate, et al., v. Ermita, G.R. No. 169777,
April 20, 2006).
1. President
Limitation of executive privilege
NOTE: The privilege, being an extraordinary
power, must be wielded only by the highest Claim of executive privilege is subject to balancing
official in the executive department. Thus, the against other interest. Simply put, confidentiality in
President may not authorize her subordinates executive privilege is not absolutely protected by
to exercise such power. the Constitution. Neither the doctrine of separation
of powers nor the need for confidentiality of high-
2. Executive Secretary, upon proper authorization level communications can sustain an absolute,
from the President unqualified Presidential privilege of immunity

2015GOLDEN NOTES
from judicial process under all circumstances (Neri 5. Deliberative process privilege (In Re: Sealed
v. Senate, et al., G.R. No. 180643, March 25, 2008). Case No. 96-3124, June 17, 1997).
Q: Sec. 1 of EO 464 required all department Test to determine the validity of a claim of
heads in the Executive branch to secure the privilege
consent of the President before appearing in an
inquiry conducted by either House of Congress, The question that must be asked is not only
pursuant to Art. VI, Sec. 22 of the Constitution. whether the requested information falls within one
Is the Sec. 1 of EO 464 valid? of the traditional privileges, but also whether that
privilege should be honored in a given procedural
A: YES. The requirement then to secure setting.
presidential consent under Sec. 1, limited as it is
only to appearances in the question hour, is valid Presidential communications privilege v.
on its face. For under Sec. 22, Art. VI of the Deliberative process privilege
Constitution, the appearance of department heads
in the question hour is discretionary on their part. BASIS PRESIDENTIAL DELIBERATIVE
COMMUNICATIONS PROCESS
Sec. 1, in view of its specific reference to Sec. 22, PRIVILEGE PRIVILEGE
Art. VI of the Constitution and the absence of any Pertains to Includes
reference to inquiries in aid of legislation, must be communications, advisory
construed as limited in its application to documents or other opinions,
appearances of department heads in the question materials that recommendatio
hour contemplated in the provision of said Sec. 22 reflect presidential ns and
of Art. VI. The reading is dictated by the basic rule Scope of decision-making deliberations
of construction that issuances must be interpreted, the and deliberations comprising part
as much as possible, in a way that will render it privilege that the President of a process by
constitutional (Senate, et al., v. Ermita, G.R. No. believes should which
169777, April 20, 2006). remain confidential governmental
decisions and
NOTE: Sec. 1 of EO 464 cannot, however, be policies are
applied to appearances of department heads in formulated
inquiries in aid of legislation. Congress is not Applies to decision- Applies to
bound in such instances to respect the refusal of making of the decision-
the department head to appear in such inquiry, To whom
President making of
unless a valid claim of privilege is subsequently applicable
executive
made, either by the President herself or by the officials
Executive Secretary (Senate, et al., v. Ermita, G.R. Rooted in the Rooted in
No. 169777, April 20, 2006). constitutional common law
principle of privileges
Kinds of executive privilege Foundation separation of
powers and the
1. State secret privilege Invoked by Presidents Presidents unique
on the ground that the information is of such constitutional role
nature that its disclosure would subvert crucial
military or diplomatic objectives. Elements of presidential communications
2. Informers privilege Privilege of the privilege
government not to disclose the identity of
persons who furnish information in violations 1. The protected communication must relate to a
of law to officers charged with the enforcement quintessential and non-delegable presidential
of the law. power.
3. Generic privilege For internal deliberations. 2. The communication must be authored or
Said to attach to intra-governmental solicited and received by a close advisor of
documents reflecting advisory opinions, the President or the President himself. The
recommendations and deliberations judicial test is that an advisor must be in
comprising part of a process by which operational proximity with the President.
governmental decisions and policies are 3. The presidential communications privilege
formulated. remains a qualified privilege that may be
4. Presidential communications privilege; overcome by a showing of adequate need, such
that the information sought likely contains

important evidence and by the unavailability Q: Matters involving diplomatic negotiations

of the information elsewhere by an are covered by executive privilege. However,
appropriate investigating authority. such privilege is only presumptive. How can
this presumption be overcome?
Presumed privilege status of presidential
communications A: Recognizing a type of information as privileged
does not mean that it will be considered privileged
The presumption is based on the Presidents in all instances. Only after a consideration of the
generalized interest in confidentiality. The context in which the claim is made may it be
privilege is necessary to guarantee the candor of determined if there is a public interest that calls for
presidential advisors and to provide the President the disclosure of the desired information, strong
and those who assist him with freedom to explore enough to overcome its traditionally privileged
alternatives in the process of shaping policies and status (AKBAYAN Citizens Action Party, et al., v.
making decisions and to do so in a way many could Aquino, et al., G.R No. 170516, July 16, 2008).
be unwilling to express except privately. The
presumption can be overcome only by mere PROHIBITIONS, INHIBITIONS AND
showing of public need by the branch seeking DISQUALIFICATIONS
access to conversations. The courts are enjoined to
resolve the competing interests of the political Prohibitions attached to the President, Vice-
branches of the government in a manner that President, Cabinet Members, and their deputies
preserves the essential functions of each Branch. or assistants, unless otherwise provided in the
Constitution
Q: The HoRs House Committee conducted an
inquiry on the Japan-Philippines Economic 1. Shall not receive any other emolument from
Partnership Agreement (JPEPA), then being the government or any other source (1987
negotiated by the Philippine Government. The Constitution, Art. VII, Sec. 6)
House Committee requested DTI Usec. Jamie 2. Shall not hold any other office or employment
Arlos to furnish it with a copy of the latest draft during their tenure unless:
of the JPEPA. Arlos replied that he shall provide a. Otherwise provided in the Constitution
a copy thereof once the negotiations are (e.g. VP can be appointed as a Cabinet
completed. Member without the need of confirmation
by Commission on Appointments; Sec. of
A petition was filed with the SC which seeks to Justice sits in the Judicial and Bar Council)
obtain a copy of the Philippine and Japanese b. The positions are ex-officio and they do not
offers submitted during the negotiation process receive any salary or other emoluments
and all pertinent attachments and annexes therefore (e.g. Sec. of Finance as head of
thereto. Arlos invoked executive privilege the Monetary Board)
based on the ground that the information
sought pertains to diplomatic negotiations then NOTE: This prohibition must not, however, be
in progress. On the other hand, Akbayan for construed as applying to posts occupied by the
their part invoked their right to information on Executive officials without additional
matters of public concern. compensation in an ex-officio capacity, as
provided by law and as required by the
Are matters involving diplomatic negotiations primary functions of the said officials office
covered by executive privilege? (National Amnesty Commission v. COA, et al.,
G.R. No. 156982, September 2, 2004).
A: YES. It is clear that while the final text of the
JPEPA may not be kept perpetually confidential, 3. Shall not practice, directly or indirectly, any
the offers exchanged by the parties during the other profession during their tenure
negotiations continue to be privileged even after 4. Shall not participate in any business
the JPEPA is published. Disclosing these offers 5. Shall not be financially interested in any
could impair the ability of the Philippines to deal contract with, or in any franchise, or special
not only with Japan but with other foreign privilege granted by the Government, including
governments in future negotiations (AKBAYAN GOCCs
Citizens Action Party, et al., v. Aquino, et al., G.R No. 6. Shall avoid conflict of interest in conduct of
170516, July 16, 2008). office
7. Shall avoid nepotism (1987 Constitution, Art.
NOTE: Such privilege is only presumptive. VII, Sec. 13)

2015GOLDEN NOTES
NOTE: The spouse and relatives by

consanguinity or affinity within the 4th civil A: It violates the Constitution because while all
degree of the President shall not, during his other appointive officials in the civil service are
tenure, be appointed as: allowed to hold other office or employment in the
a. Members of the Constitutional government during their tenure when such is
Commissions; allowed by law or by the primary functions of their
b. Office of the Ombudsman; positions, members of the Cabinet, their deputies
c. Secretaries; and assistants may do so only when expressly
d. Undersecretaries; authorized by the Constitution itself. In other
e. Chairmen or heads of bureaus or words, Sec. 7, Art. IX-B is meant to lay down the
offices, including GOCCs and their general rule applicable to all elective and
subsidiaries. appointive public officials and employees, while
Sec. 13, Art. VII is meant to be the exception
If the spouse, etc., was already in any of the applicable only to the President, the Vice-
above offices at the time before his/her spouse President, Members of the Cabinet, their deputies
became President, he/she may continue in and assistants.
office. What is prohibited is appointment and
reappointment, not continuation in office. Since the evident purpose of the framers of the
1987 Constitution is to impose a stricter
Spouses, etc., can be appointed to the judiciary prohibition on the President, Vice-President,
and as ambassadors and consuls. members of the Cabinet, their deputies and
assistants with respect to holding multiple offices
Q: Christian, the Chief Presidential Legal or employment in the government during their
Counsel (CPLC), was also appointed as tenure, the exception to this prohibition must be
Chairman of the PCGG. May the two offices be read with equal severity. On its face, the language
held by the same person? of Sec. 13, Art. VII is prohibitory so that it must be
understood as intended to be a positive and
A: The two offices are incompatible. Without unequivocal negation of the privilege of holding
question, the PCGG is an agency under the multiple government offices or employment.
Executive Department. Thus, the actions of the Verily, wherever the language used in the
PCGG Chairman are subject to the review of the constitution is prohibitory, it is to be understood as
CPLC (Public Interest Group, et al., v. Elma, et al., intended to be a positive and unequivocal
G.R. No. 138965, June 30, 2006). negation.
Q: Pres. Espaldon appointed Anthony as the The phrase "unless otherwise provided in this
Acting Secretary of Justice. After a couple of Constitution" must be given a literal interpretation
days, Pres. Espaldon designated Anthony as the to refer only to those particular instances cited in
Acting Solicitor General in a concurrent the Constitution itself, to wit:
capacity. Ben contested the appointment of a. The Vice-President being appointed as a
Anthony on the ground that the appointment member of the Cabinet under Sec. 3, par. (2),
violated Sec. 13, Art. VII of the Constitution Art. VII; or acting as President in those
which expressly prohibits the President, Vice- instances provided under Sec. 7, pars. (2) and
President, the Members of the Cabinet, and (3), Art. VII; and
their deputies or assistants from holding any b. The Secretary of Justice being ex-
other office or employment during their tenure officio member of the Judicial and Bar Council
unless otherwise provided in the Constitution. by virtue of Sect. 8 (1), Art. VIII (Funa v. Agra,
On the other hand, Anthony claims that et al., G.R. No. 191644, February 19, 2013).
according to Sec. 7, par. (2), Art. IX-B of the
Constitution, his appointment to such positions Being designated as the Acting Secretary of Justice
is outside the coverage of the prohibition under concurrently with his position of Acting Solicitor
Sec. 13 of Art. VII as it falls into one of the General, therefore, Anthony was undoubtedly
exceptions as being allowed by law or by the covered by Sec. 13, Art. VII, whose text and spirit
primary functions of his position. Does the were too clear to be differently read. Hence,
designation of Anthony as the Acting Secretary Anthony could not validly hold any other office or
of Justice, concurrently with his position as employment during his tenure as the Acting
Acting Solicitor General, violate the Solicitor General, because the Constitution has not
constitutional prohibition against dual or otherwise so provided.
multiple offices for the Members of the Cabinet
and their deputies and assistants?

POWERS OF THE PRESIDENT 8. Informing power (1987 Constitution, Art. VII,

Sec. 23)
EXECUTIVE AND ADMINISTRATIVE POWERS IN 9. Veto power (1987 Constitution, Art. VI, Sec. 27)
GENERAL 10. Power of general supervision over local
governments (1987 Constitution, Art. X, Sec. 4)
Executive Power 11. Power to call special session (1987
Constitution, Art. VI, Sec. 15)
Power vested in the President of the Philippines.
The President shall have control of all executive Q: Is the power of the President limited only to
departments, bureaus and offices. He shall ensure such specific powers enumerated in the
that laws are faithfully executed (1987 Constitution, Constitution?
Art. VII, Sec. 17).
A: The powers of the President cannot be said to be
Faithful Execution Clause limited only to the specific power enumerated in
the Constitution. Executive power is more than the
The power to take care that the laws be faithfully sum of specific powers so enumerated. The
executed makes the President a dominant figure in framers did not intend that by enumerating the
the administration of the government. The law he powers of the President he shall exercise those
is supposed to enforce includes the Constitution, powers and no other. Whatever power inherent in
statutes, judicial decisions, administrative rules the government that is neither legislative nor
and regulations and municipal ordinances, as well judicial has to be executive. These unstated
as treaties entered into by the government. residual powers are implied from the grant of
executive power and which are necessary for the
Scope of executive power President to comply with his duties under the
Constitution (Marcos, et al., v. Manglapus, et al., G.R.
1. Executive power is vested in the President of No. 88211, October 27, 1989).
the Philippines (1987 Constitution, Art. VII, Sec.
1). Administrative power
2. It is not limited to those set forth in the
Constitution (Residual powers) (Marcos, et al., Power concerned with the work of applying
v. Manglapus, et al., G.R. No. 88211, October 27, policies and enforcing orders as determined by
1989). proper governmental organs. It enables the
3. Privilege of immunity from suit is personal to President to fix a uniform standard of
the President and may be invoked by him administrative efficiency and check the official
alone. It may also be waived by the President, conduct of his agents. To this end, he can issue
as when he himself files suit (Soliven, et al., v. administrative orders, rules and regulations (Ople
Makasiar, et al., G.R. No. 82585, November 14, v. Torres, et al., G.R. No. 127685, July 23, 1998).
1988).
Power of administrative reorganization
Specific powers of the President
The President has the continuing authority to
1. Appointing power (1987 Constitution, Art. VII, reorganize the national government, which
Sec. 16) includes the power to group, consolidate bureaus
2. Power of control over all executive and agencies, to abolish offices, to transfer
departments, bureaus and offices (1987 functions, to create and classify functions, services
Constitution, Art. VII, Sec. 17) and activities and to standardize salaries and
3. Commander-in-Chief powers (calling-out materials; it is effected in good faith if it is for the
power, power to place the Philippines under purpose of economy or to make bureaucracy more
martial law, and power to suspend the efficient (MEWAP, et al., v. Executive Secretary, et
privilege of the writ of habeas corpus) (1987 al., G.R. No. 160093, July 31, 2007).
Constitution, Art. VII, Sec. 18)
4. Pardoning power (1987 Constitution, Art. VII, POWER OF APPOINTMENT
Sec. 19)
5. Borrowing power (1987 Constitution, Art. VII, Appointment
Sec. 20)
6. Diplomatic/Treaty-making power (1987 The selection, by the authority vested with the
Constitution, Art. VII, Sec. 21) power, of an individual who is to exercise the
7. Budgetary power (1987 Constitution, Art. VII, functions of a given office. It may be made verbally
Sec. 22) but it is usually done in writing through what is

2015GOLDEN NOTES
called the commission. 4. Those other officers lower in rank whose

appointment is vested by law in the President
NOTE: The appointing power of the President is alone (1987 Constitution, Art. VII, Sec. 16).
executive in nature. While Congress and the
Constitution in certain cases may prescribe the Presidential appointments that need prior
qualifications for particular offices, the recommendation or nomination by the Judicial
determination of who among those who are and Bar Council
qualified will be appointed is the Presidents
prerogative (Pimentel, et al., v. Ermita, et al., G.R. No. 1. Members of the Supreme Court and all lower
164978, October 13, 2005). courts (1987 Constitution, Art. VIII, Sec. 9)
2. Ombudsman and his 5 deputies
Kinds of Presidential appointments
COMMISSION ON APPOINTMENTS
1. Appointments made by an Acting President CONFIRMATION
2. Midnight Appointment (1987 Constitution, Art.
VII, Sec. 15) Appointments where confirmation of the
3. Regular Presidential Appointments, with or Commission on Appointments is required
without the confirmation by the CA
4. Ad-interim Appointments 1. Heads of executive departments
Non-justiciability of appointments GR: Appointment of cabinet secretaries

requires confirmation.
Appointment is a political question. So long as the
appointee satisfies the minimum requirements XPN: Vice-president may be appointed as a
prescribed by law for the position, the member of the Cabinet and such
appointment may not be subject to judicial review. appointment requires no confirmation (1987
Constitution, Art. VII, Sec. 3[2]).
Rule on the effectivity of appointments made by
an acting President 2. Ambassadors, other public ministers and
consuls Those connected with the diplomatic
These shall remain effective unless revoked by the and consular services of the country.
elected President within 90 days from his 3. Officers of AFP from the rank of colonel or
assumption or re-assumption of office (1987 naval captain
Constitution, Art. VII, Sec. 14).
NOTE: PNP of equivalent ranks and the
Designation Philippine Coast Guard are not included.
The imposition of additional duties on a person 4. Other officers of the government whose
already in the public service. It is considered only appointments are vested in the President in
as an acting or temporary appointment, which does the Constitution (1987 Constitution, Art. VII,
not confer security of tenure on the person named Sec. 16), such as:
(Binamira v. Garrucho, G.R. No. 92008, July 30, a. Chairmen and members of the CSC,
1990). COMELEC and COA (Art. IX-B, C, D, Sec.
1[2])
NOTE: The President has the power to temporarily b. Regular members of the JBC (1987
designate an officer already in the government Constitution, Art. VIII, Sec. 8[2])
service or any other competent person to perform
the functions of an office in the executive branch. In NOTE: The enumeration is exclusive.
no case shall the temporary designation exceed one
year. Appointing procedure for those that need
Commissions confirmation
Appointments made solely by the President
1. Nomination by the President
1. Those vested by the Constitution on the 2. Confirmation by the CA
President alone; 3. Issuance of commission
2. Those whose appointments are not otherwise 4. Acceptance by the appointee
provided by law;
3. Those whom he may be authorized by law to NOTE: At any time, before all four steps have been
appoint; and complied with, the President can withdraw the

nomination and appointment (Lacson v. Romero, et NOTE: In

al., G.R. No. L-3081, October 14, 1949). changing an
acting appointee,
Procedure for those that do not need the the appointing
Commissions confirmation power has full
discretion, and is
1. Appointment not limited to
2. Acceptance removals "for
cause" (Austria v.
Ad interim Appointment Amante, G.R. No.
L-959. January 9,
Power of the President to make appointments 1948).
during the recess of Congress, but such (See further discussion under Law on Public Officers)
appointments shall be effective only until
disapproval by the Commission on Appointments Q: Is the act of the President in appointing
or until the next adjournment of the Congress acting secretaries even without the consent of
(Matibag v. Benipayo, et al., G.R. No. 149036, April 2, the Commission while Congress is in session,
2002). constitutional?
Ad interim appointment v. Appointment in an A: YES. Congress, through a law, cannot impose on

acting capacity the President the obligation to appoint
automatically the undersecretary as her temporary
APPOINTMENT alter ego. An alter ego, whether temporary or
AD INTERIM
BASIS IN AN ACTING permanent, holds a position of great trust and
APPOINTMENT
CAPACITY confidence. The office of a department secretary
Made during the Made at any time may become vacant while Congress is in session.
recess of there is vacancy, Since a department secretary is the alter ego of the
When made Congress i.e., whether President, the acting appointee to the office must
Congress is in necessarily have the Presidents confidence
session or not (Pimentel, et al., v. Ermita, et al., G.R. No. 164978,
As to Requires Does not require October 13, 2005).
confirmation confirmation of confirmation of
of the the Commission the Commission NOTE: Acting appointments cannot exceed one
Commission year (EO 292, Book III, Title I, Chapter 5, Sec. 17 [3]).
Permanent in Temporary in
Nature Limitations on the appointing power of the
nature nature
Appointee enjoys Appointee does President
As to security security of not enjoy
of tenure tenure security of 1. The spouse and relatives by consanguinity or
tenure affinity within the 4th civil degree of the
President shall not, during his "tenure" be
Permanent Appointments v. Temporary appointed as:
Appointments a. Members of the Constitutional
Commissions;
PERMANENT TEMPORARY b. Member of the Office of Ombudsman;
BASIS APPOINTMENT APPOINTMENT c. Secretaries;
S S d. Undersecretaries;
Extended to Given to persons e. Chairmen or heads of bureaus or offices,
As to persons without such including government-owned or
persons possessing the eligibility; controlled corporations and their
appointed requisite subsidiaries (1987 Constitution, Art. VII,
eligibility Sec. 13[2]).
Not revocable at Are revocable at 2. Appointments made by the acting-President
will will without the shall remain effective unless revoked within 90
As to acts days from assumption of office by elected
necessity of just
of the President (1987 Constitution, Art. VII, Sec. 14).
cause or a valid
appointee 3. GR: Two months immediately before the next
investigation
Presidential elections (2nd Monday of May),
and up to the end of his "term" (June 30), a

2015GOLDEN NOTES
President (or Acting President) shall not make refer to the Members of the Supreme Court (De
appointments. Castro v. JBC, G.R. No. 191002, March 17, 2010).
XPN: Temporary appointments, to executive NOTE: Ban on midnight appointments is applicable

positions, when continued vacancies therein in the entire judiciary except on the Supreme Court
will prejudice public service (1987 (Ibid.).
Constitution, Art. VII, Sec. 15), e.g. Postmaster;
or endanger public safety, e.g. Chief of Staff POWER OF REMOVAL
MIDNIGHT APPOINTMENTS Power of removal
Prohibited appointments under Sec. 15, Art. VII GR: From the express power of appointment, the
of the Constitution President derives the implied power of removal.
1. Those made for buying votes Refers to those XPN: Those appointed by him where the
appointments made within two months Constitution prescribes certain methods for
preceding the Presidential election and are separation from public service (e.g. impeachment).
similar to those which are declared election
offenses in the Omnibus Election Code; and Source of the Presidents Power of Removal
2. Those made for partisan considerations
Consists of the so-called midnight The President derives his implied power of
appointments (In Re: Hon. Mateo A. Valenzuela removal from other powers expressly vested in
and Hon. Placido B. Vallarta, A.M. No. 98-5-01- him.
SC, November 9, 1998). 1. It is implied from his power to appoint.
2. Being executive in nature, it is implied from
Q: Does an outgoing President have the power the constitutional provision vesting the
to appoint the next Chief Justice within the executive power in the President.
period starting two months before the 3. It may be implied from his function to take
presidential elections until the end of the care that laws be properly executed; for
presidential term? Discuss thoroughly. without it, his orders for law enforcement
might not be effectively carried out.
A: Art. VII is devoted to the Executive Department, 4. The power may be implied from the
and, among others, it lists the powers vested by the Presidents control over the administrative
Constitution in the President. The presidential departments, bureaus, and offices of the
power of appointment is dealt with in Secs. 14, 15, government. Without the power to remove, it
and 16 of Article VII. In particular, Sec. 9 of Article would not be always possible for the President
VIII states that the appointment of Supreme Court to exercise his power of control.
Justices can only be made by the President upon
the submission of a list of at least three nominees Limitation on the Presidents power of removal
by the JBC; Sec. 4(1) of Article VIII mandates the of the President
President to fill the vacancy within 90 days from
the occurrence of the vacancy. Not all officials appointed by the President are also
removable by him since the Constitution prescribes
Had the framers intended to extend the prohibition certain methods for the separation from the public
contained in Sec. 15, Art. VII to the appointment of service of such officers.
Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the NOTE: Members of the career service of the Civil
meticulous ordering of the provisions. They would Service who are appointed by the President may be
have easily and surely written the prohibition directly disciplined by him (Villaluz v. Zaldivar, et
made explicit in Sec. 15, Art. VII as being equally al., G.R. No. L-22754, December 31, 1965) provided
applicable to the appointment of Members of the that the same is for cause and in accordance with
Supreme Court in Art. VIII itself, most likely in Sec. the procedure prescribed by law.
4 (1), Art. VIII. That such specification was not
done only reveals that the prohibition against the Members of the Cabinet and such officers whose
President or Acting President making continuity in office depend upon the President may
appointments within two months before the next be replaced at any time. Legally speaking, their
presidential elections and up to the end of the separation is effected not by the process of removal
Presidents or Acting Presidents term does not but by the expiration of their term (Aparri v. CA, et
al., G.R. No. L-30057, January 31, 1984).

NOTE: The Presidents power over GOCCs comes

Q: Deputy Ombudsman Gonzales was dismissed not from the Constitution, but from statute. Hence,
from service by the Office of the President (OP) it may be taken away by statute.
by virtue of Sec. 8(2) of RA 6770 vesting
disciplinary authority in the President over the The President has full control of all the members of
Deputy Ombudsman. OP found him guilty of his Cabinet. He may appoint them as he sees fit,
gross neglect of duty and misconduct in office. shuffle them at pleasure, and replace them in his
Gonzales filed a petition to set aside the discretion without any legal inhibition whatever.
dismissal on the ground that it is only the However, such control is exercisable by the
Ombudsman who can exercise administrative President only over the acts of his subordinates
disciplinary jurisdiction over the Deputy and not necessarily over the subordinate himself
Ombudsman. Does the OP have administrative (Ang-Angco v. Castillo, G.R. No.L-17169, November
disciplinary jurisdiction over Deputy 30, 1963).
Ombudsman Gonzales?
DOCTRINE OF QUALIFIED POLITICAL
A: Sec. 8(2) of RA 6770 vesting disciplinary AGENCY
authority on the President over the Deputy
Ombudsman violates the independence of the Doctrine of Qualified Political Agency or Alter
Office of the Ombudsman and is, thus, Ego Principle
unconstitutional.
The acts of the secretaries of the Executive
Subjecting the Deputy Ombudsman to discipline departments performed and promulgated in the
and removal by the President, whose own alter regular course of business are presumptively the
egos and officials in the Executive Department are acts of the Chief Executive (Villena v. Secretary of
subject to the Ombudsman's disciplinary authority, the Interior, G.R. No. L-46570, April 21, 1939).
cannot but seriously place at risk the independence
of the Office of the Ombudsman itself. The law Essence of the Alter Ego doctrine
directly collided not only with the independence
that the Constitution guarantees to the Office of the Since the President is a busy man, he is not
Ombudsman, but inevitably with the principle of expected to exercise the totality of his power of
checks and balances that the creation of an control all the time. He is not expected to exercise
Ombudsman office seeks to revitalize. What is true all his powers in person. He is expected to delegate
for the Ombudsman must be equally and some of them to men of his confidence, particularly
necessarily true for her Deputies who act as agents to members of his Cabinet.
of the Ombudsman in the performance of their
duties (Emilio Gonzales III v. Ochoa, et al., G. R. No. NOTE: Applying this doctrine, the power of the
196231; Barreras-Sulit v. Ochoa, et al., G.R. No. President to reorganize the National Government
196232; February 26, 2014). may be validly delegated to his Cabinet Members
exercising control over a particular executive
POWER OF CONTROL AND SUPERVISION department (DENR v. DENR Region XII Employees,
G.R. No. 149724, August 19, 2003).
Power of control
Exceptions to the Alter Ego doctrine
The power of an officer to alter or modify or nullify
or to set aside what a subordinate has done in the 1. If the acts are disapproved or reprobated by
performance of his duties and to substitute ones the President;
own judgment for that of a subordinate. 2. If the President is required to act in person by
law or by the Constitution, e.g. executive
Executive control is not absolute. The definition clemency.
of the structure of the executive branch of
government, and the corresponding degrees of NOTE: The SC held that the Secretary of Finance
administrative control and supervision is not the can act as an agent of the Legislative Dept. to
exclusive preserve of the executive. It may be determine and declare the event upon which its
effectively limited by the Constitution, by law, or by expressed will is to take effect. Thus, being the
judicial decisions (Phillips Seafood (Philippines) agent of Congress and not of the President, the
Corporation v. BOI, G.R. No. 175787, February 4, latter cannot alter, or modify or nullify, or set aside
2009). the findings of the Secretary of Finance and to
substitute the judgment of the former for that of

2015GOLDEN NOTES
the latter (ABAKADA Guro v. Executive Secretary, et LGU acts within the parameters of the law and the
al., G.R. No. 168056, September 1, 2005). Constitution. Any directive, therefore, by the
President or any of his alter egos seeking to alter
Q: Should the decision of a cabinet secretary be the wisdom of a law-conforming judgment on local
appealed to the Office of the President first affairs of a LGU is a patent nullity, because it
before resorting to judicial action? violates the principle of local autonomy, as well as
the doctrine of separation of powers of the
A: NO. Thus, as a rule, an aggrieved party need not executive and the legislative departments in
appeal to the OP and may file a petition for governing municipal corporations (Dadole et al., v.
certiorari directly with the court assailing the act of COA, G.R. No. 125350, December 3, 2002).
the said secretary.
Control v. Supervision
Under the doctrine of qualified political agency,
department secretaries are alter egos or assistants BASIS CONTROL SUPERVISION
of the President and their acts are presumed to be An officer in The supervisor or
those of the latter unless disapproved or control lays superintendent
reprobated by him. (Manubay, et al., v. Garilao, G.R. down the rules merely sees to it
No. 140717, April 16, 2009). in the doing of that the rules are
Nature
an act. followed, but he
EXECUTIVE DEPARTMENTS AND OFFICES himself does not
lay down such
Q: Can Department Heads exercise power of rules.
control in behalf of the President? If the rules are The supervisor
not followed, does not have the
A: YES. It may also be exercised in his behalf by the officer in discretion to
Department Heads. The Presidents power of control may, in modify or replace
control means his power to reverse the judgment his discretion, them. If the rules
of an inferior officer. order the act are not observed,
As to
undone or re- he may order the
NOTE: The Sec. of Justice may reverse the discretion
done by his work done or re-
judgment of a prosecutor and direct him to of the
subordinate or done but only to
withdraw information already filed. One, who officer
he may even conform to the
disagrees, however, may appeal to the Office of the decide to do it prescribed rules
President in order to exhaust administrative himself. (Drilon v. Lim, et
remedies prior filing to the court. al., G.R. No.
112497, August 4,
Q: Can the Executive Secretary reverse the 1994).
decision of another department secretary?
NOTE: The power of supervision does not include
A: The Executive Secretary when acting by the power of control; but the power of control
authority of the President may reverse the necessarily includes the power of supervision.
decision of another department secretary (Lacson-
Magallanes Co., Inc. v. Pao, et al., G.R. No. L-27811, MILITARY POWERS
November 17, 1967). In re COMMANDER-IN-CHIEF POWERS
LOCAL GOVERNMENT UNITS Scope of the Presidents Commander-in-Chief

Powers
Power of general supervision
1. Command of the Armed Forces The
The power of a superior officer to ensure that the Commander-in-Chief clause vests on the
laws are faithfully executed by subordinates. President, as Commander-in-Chief, absolute
authority over the persons and actions of the
The power of the President over LGUs is only of members of the armed forces (Gudani v. Senga,
general supervision. Thus, he can only interfere in et al., G.R. No. 170165, August 15, 2006).
the affairs and activities of a LGU if he finds that the
latter acted contrary to law. NOTE: By making the President the
Commander-in-Chief of all the armed forces,
The President or any of his alter egos cannot the principle announced in Sec. 3, Art. II is
interfere in local affairs as long as the concerned bolstered. Thus, the Constitution lessens the

danger of a military take-over of the NOTE: The invasion and rebellion must be actual
government in violation of its republican and not merely imminent.
nature.
Non-impairment of the right to bail
The President as Commander-in-Chief can
prevent the Army General from appearing in a The right to bail shall not be impaired even when
legislative investigation and, if disobeyed, can the privilege of the writ of habeas corpus is
subject him to court martial (Gudani v. Senga, suspended (1987 Constitution, Art. III, Sec. 13).
G.R. No. 170165, August 15, 2006).
Limitations on the suspension of the privilege
2. Calling-out powers Call the armed forces to of writ of habeas corpus
prevent or suppress lawless violence, invasion,
or rebellion. The only criterion for the exercise 1. Applies only to persons judicially charged for
of this power is that whenever it becomes rebellion or offenses inherent in or directly
necessary. connected with invasion; and
2. Anyone arrested or detained during
NOTE: The declaration of a state of emergency suspension must be charged within 3 days.
is merely a description of a situation which Otherwise, he should be released.
authorizes her to call out the Armed Forces to
help the police maintain law and order. It gives Role of the Supreme Court in reviewing the
no new power to her, nor to the police. factual bases of the promulgation of a
Certainly, it does not authorize warrantless suspension of the privilege of the writ of habeas
arrests or control of media (David, et al., v. corpus
Macapagal-Arroyo, et al., G.R. No. 171409, May
3, 2006). Although the Constitution reserves to the Supreme
Court the power to review the sufficiency of the
The Constitution does not require the factual basis of the proclamation or suspension in a
President to declare a state of rebellion to proper suit, it is implicit that the Court must allow
exercise her calling out power. Sec. 18, Art. VII Congress to exercise its own review powers, which
grants the President, as Commander-in-Chief a is automatic rather than initiated. Only when
sequence of graduated powers (Sanlakas, et Congress defaults in its express duty to defend the
al., v. Executive Secretary, et al., G.R. No. 159085, Constitution through such review should the
February 3, 2004). Supreme Court step in as its final rampart. The
constitutional validity of the Presidents
3. Suspension of the privilege of the writ of habeas proclamation of martial law or suspension of the
corpus writ of habeas corpus is first a political question in
the hands of Congress before it becomes a
NOTE: A writ of habeas corpus is an order justiciable one in the hands of the Court (Fortun v.
from the court commanding a detaining officer Macapagal-Arroyo, et al., G.R. No. 190293, March 20,
to inform the court if he has the person in 2012).
custody, and what is his basis in detaining that
person. Nature of martial law
The privilege of the writ is that portion of the Martial law is a joint power of the President and
writ requiring the detaining officer to show the Congress. Although Art. VII, Sec. 18 of the 1987
cause why he should not be tested. What is Constitution vests in the President the power to
permitted to be suspended by the President is proclaim martial law or suspend the privilege of
not the writ itself but its privilege. the writ of habeas corpus, he shares such power
with the Congress. Thus:
4. He may proclaim martial law over the entire 1. The Presidents proclamation or suspension is
Philippines or any part thereof. temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation
Requisites for the suspension of the privilege of or suspension, report his action in person or in
the writ of habeas corpus writing to Congress;
3. Both houses of Congress, if not in session must
1. There must be an invasion or rebellion; and jointly convene within 24 hours of the
2. Public safety requires the suspension proclamation or suspension for the purpose of
reviewing its validity; and

2015GOLDEN NOTES
4. The Congress, voting jointly, may revoke or NOTE: When martial law is declared, no new
affirm the Presidents proclamation or powers are given to the President; no extension of
suspension, allow their limited effectivity to arbitrary authority is recognized; no civil rights of
lapse, or extend the same if Congress deems individuals are suspended. The relation of the
warranted. citizens to their State is unchanged. The Supreme
Court cannot rule upon the correctness of the
It is evident that under the 1987 Constitution Presidents actions but only upon its arbitrariness.
the President and the Congress act in tandem
in exercising the power to proclaim martial Ways to lift the proclamation of martial law
law or suspend the privilege of the writ of
habeas corpus. They exercise the power, not 1. Lifting by the President himself
only sequentially, but in a sense jointly since, 2. Revocation by Congress
after the President has initiated the 3. Nullification by the SC
proclamation or the suspension, only the 4. By operation of law after 60 days (1987
Congress can maintain the same based on its Constitution, Art. VII, Sec. 18)
own evaluation of the situation on the ground,
a power that the President does not have Q: Is the actual use of the armed forces by the
(Fortun v. Macapagal-Arroyo, et al., G.R. No. President subject to judicial review?
190293, March 20, 2012).
A: While the suspension of the privilege of the writ
Guidelines in the declaration of martial law of habeas corpus and the proclamation of martial
law is subject to judicial review, the actual use by
1. There must be an invasion or rebellion, and the President of the armed forces is not. Thus,
2. Public safety requires the proclamation of troop deployments in times of war are subject to
martial law all over the Philippines or any part the Presidents judgment and discretion (IBP v.
thereof. Zamora, et al., G.R. No. 141284, August 15, 2000).
3. Duration: Not more than 60 days following
which it shall be automatically lifted unless Q: Can the President deploy AFP and PNP
extended by Congress. personnel pursuant to a declaration of a state
4. Duty of the President to report to Congress: of emergency in 3 places in Mindanao without
within 48 hours personally or in writing. an act of Congress?
5. Authority of Congress to revoke or extend the
effectivity of proclamation: by majority vote of A: YES. She did not need a congressional authority
all of its members voting jointly. to exercise the same. The calling out of the armed
forces to prevent or suppress lawless violence in
NOTE: Once revoked by Congress, the President such places is a power that the Constitution
cannot set aside the revocation. directly vests in the President. The President did
not proclaim a national emergency, only a state of
Limitations on the declaration of martial law emergency in the three places mentioned. And she
did not act pursuant to any law enacted by
1. It does not suspend the operation of the Congress that authorized her to exercise
Constitution; extraordinary powers (Datu Zaldy Uy Ampatuan, et
2. It does not supplant the functioning of the civil al. v. Hon. Ronaldo Puno, et al., G.R. No. 190259, June
courts or legislative assemblies; 7, 2011).
3. It does not authorize conferment of
jurisdiction over civilians where civil courts Q: May the President, in the exercise of peace
are able to function; negotiations, agree to pursue reforms that
would require new legislation and
NOTE: Civilians cannot be tried by military constitutional amendments, or should the
courts if the civil courts are open and reforms be restricted only to those solutions
functioning (Open Court Doctrine) (Olaguer, et which the present laws allow?
al., v. Military Commission No. 34, G.R. No. L-
54558, May 22, 1987). A: If the President is to be expected to find means
for bringing this conflict to an end and to achieve
4. It does not automatically suspend the privilege lasting peace in Mindanao, then he must be given
of the writ of habeas corpus (1987 Constitution, the leeway to explore, in the course of peace
Art. VII, Sec. 18 [2]). negotiations, solutions that may require changes to
the Constitution for their implementation. So long
as the President limits himself to recommending

these changes and submits to the proper procedure Purpose of pardon

for constitutional amendment and revision, his
mere recommendation need not be construed as To relieve the harshness of the law or correcting
unconstitutional act. Given the limited nature of mistakes in the administration of justice. The
the Presidents authority to propose constitutional power of executive clemency is a non-delegable
amendments, he cannot guarantee to any third power and must be exercised by the President
party that the required amendments will personally.
eventually be put in place, nor even be submitted
to a plebiscite. The most she could do is submit NOTE: Clemency is not a function of the judiciary;
these proposals as recommendations either to it is an executive function. The grant is
Congress or the people, in whom constituent discretionary, and may not be controlled by the
powers are vested (Province of North Cotabato v. legislature or reversed by the court, save only
Govt of the Republic of the Philippines Peace panel when it contravenes its limitations. It includes
on Ancestral Domain, G.R. No. 183591, October 14, cases involving both criminal and administrative
2008). cases.
Role of the Supreme Court in inquiring into the Kinds of executive clemency
factual bases of the Presidents declaration of a
state of national emergency 1. Pardons (conditional or plenary)
2. Reprieves
While it is true that the Court may inquire into the 3. Commutations
factual bases for the Presidents exercise of the 4. Remission of fines and forfeitures
above power, it would generally defer to her 5. Amnesty
judgment on the matter. It is clearly to the
President that the Constitution entrusts the NOTE:
determination of the need for calling out the armed Executive
Requirement
forces to prevent and suppress lawless violence. Clemency
Unless it is shown that such determination was Pardons
attended by grave abuse of discretion, the Court Reprieves
will accord respect to the Presidents judgment Commutations Requires conviction by
(Datu Zaldy Uy Ampatuan, et al. v. Hon. Ronaldo Remission of final judgment
Puno, et al., G.R. No. 190259. June 7, 2011). Fines
and Forfeitures
PARDONING POWER Amnesty Requires concurrence of
Congress
Pardon
Limitations on the Presidents pardoning
An act of grace, which exempts individual on whom power
it is bestowed from punishment which the law
inflicts for a crime he has committed. As a 1. Cannot be granted in cases of impeachment
consequence, pardon granted after conviction frees (1987 Constitution, Art. VII, Sec. 19).
the individual from all the penalties and legal 2. Cannot be granted for violations of election
disabilities and restores him to all his civil rights. laws without favorable recommendations of
But unless expressly grounded on the persons the COMELEC.
innocence (which is rare), it cannot bring back lost Ratio: The COMELEC is an independent body.
reputation for honesty, integrity and fair dealing 3. Can be granted only after convictions by final
(Monsanto v. Factoran, G.R. No. 78239, February 9, judgment (except amnesty).
1989). 4. Cannot be granted in cases of civil or legislative
contempt.
NOTE: Because pardon is an act of grace, no legal 5. Cannot absolve convict of civil liability.
power can compel the President to give it. 6. Cannot restore public offices forfeited.
Congress has no authority to limit the effects of the
Presidents pardon, or to exclude from its scope Kinds of pardon
any class of offenders. Courts may not inquire into
the wisdom or reasonableness of any pardon As to presence of condition:
granted by the President. a. Absolute pardon One extended without any
conditions; totally extinguishes criminal
liability (See: Revised Penal Code, Art. 89[4]).

2015GOLDEN NOTES
b. Conditional pardon One under which the reinstated to her former public office. Is Marias
convict is required to comply with certain contention tenable?
requirements.
A: Pardon does not ipso facto restore a convicted
As to effect: felon neither to his former public office nor to his
a. Plenary pardon Extinguishes all the penalties rights and privileges, which were necessarily
imposed upon the offender, including relinquished or forfeited by reason of the
accessory disabilities conviction although such pardon undoubtedly
b. Partial pardon Does not extinguish all the restores his eligibility to that office (Monsanto v.
penalties; partially extinguishes criminal Factoran, G.R. No. 78239, February 9, 1989).
liability (See: Revised Penal Code, Art. 94[1]).
Q: Former President Estrada was convicted of
NOTE: A judicial pronouncement that a convict the crime of plunder by the Sandiganbayan. He
who was granted a pardon subject to the condition was granted an executive clemency by Former
that he should not again violate any penal law is President Macapagal-Arroyo. In 2013, he ran
not necessary before he can be declared to have for the position of Mayor of Manila, and won the
violated the condition of her pardon (Torres v. election.
Gonzales, G.R. No. L-76872, July 23, 1987).
Atty Risos-Vidal, and, former Mayor of Manila,
Effects of the grant of pardon Alfredo Lim question the eligibility of Estrada
to hold an elective post. They contend that the
The grant of pardon from the President: pardon granted by Pres. Arroyo to the latter
was a conditional pardon as it did not expressly
1. Frees the individual from all the penalties and provide for the remission of the penalty of
legal disabilities imposed upon him by the perpetual absolute disqualification especially
sentence, and the restoration of the right to vote and be voted
for public office, as required by Articles 36 and
NOTE: RPC, Article 36. Pardon; its effect: A 41 of the Revised Penal Code.
pardon shall in no case exempt the culprit from
the payment of the civil indemnity They further contend that the third preambular
clause in the pardon, which states that Estrada
2. Restores to him all his civil and political rights. had publicly committed to no longer seek any
elective position or office, disqualifies him from
NOTE: RPC, Article 36. Pardon; its effect: A the post of Mayor. Is the contention of the
pardon shall not work the restoration of the petitioners tenable?
right to hold public office, or the right of
suffrage, unless such rights be expressly A: NO. Estrada was granted an absolute pardon
restored by the terms of the pardon. that fully restored all his civil and political rights,
which naturally includes the right to seek public
Options of the convict when granted pardon elective office. The wording of the pardon extended
to him is complete, unambiguous and unqualified.
1. Conditional Pardon The offender has the right He is therefore eligible for the post of Mayor of
to reject it since he may feel that the condition Manila.
imposed is more onerous than the penalty
sought to be remitted. The pardoning power of the President cannot be
2. Absolute Pardon The pardonee has no option limited by legislative action. It is a presidential
at all and must accept it whether he likes it or prerogative, which may not be interfered with by
not. Congress or the Court, except when it exceeds the
limits provided by the Constitution. Articles 36 and
NOTE: In this sense, an absolute pardon is similar 41 of the RPC should thus be construed in a way
to commutation, which is also not subject to that will give full effect to the executive clemency
acceptance by the offender. instead of indulging in an overly strict
interpretation that may serve to impair or diminish
Q: Maria Reyes, the assistant city treasurer of the import of the pardon which emanated from the
Caloocan, was convicted of estafa through Office of the President, and duly signed by the Chief
falsification of public documents. She was, Executive herself.
however, granted an absolute pardon,
prompting her to claim that she is entitled to be The third preambular clause is not an integral part
of the decree of the pardon and therefore, does not

by itself operate to make the pardon conditional or officers, such as department heads or bureau
to make its effectivity contingent upon the chiefs, to remit administrative fines and forfeitures.
fulfillment of the commitment nor to limit the
scope of the pardon (Risos-Vidal v. Estrada, G.R. No. Probation
206666, January 21, 2015).
A disposition under which a defendant after
Reprieve conviction and sentence is released subject to
conditions imposed by the court and to the
The postponement of sentence to a date certain, or supervision of a probation officer.
stay of execution.
Probation v. Pardon
NOTE: It may be ordered to enable the government
to secure additional evidence to ascertain the guilt BASIS PROBATION PARDON
of the convict or, in the case of the execution of the Judicial in nature Executive in
death sentence upon a pregnant woman, to prevent Nature
nature
the killing of her unborn child. May be granted Requires
When after actual conviction by
Commutation applicable service of final judgment
sentence
The reduction or mitigation of the penalty, from
death penalty to life imprisonment, remittances Parole
and fines. Commutation is a pardon in form but not
in substance, because it does not affect his guilt; it The suspension of the sentence of a convict granted
merely reduces the penalty for reasons of public by a Parole Board after serving the minimum term
interest rather than for the sole benefit of the of the indeterminate sentence penalty, without
offender. granting a pardon, prescribing the terms upon
which the sentence shall be suspended.
NOTE: Commutation does not have to be in any
particular form. Thus, the fact that a convict was Parole v. Pardon
released after 6 years and placed under house
arrest, which is not a penalty, already leads to the BASIS PAROLE PARDON
conclusion that the penalty has been shortened. Release of a Release of
convict from convict from
Q: Can the SC review the correctness of the imprisonment conviction
action of the President in granting executive Effect
and is not a
clemency by commuting the penalty of restoration of his
dismissal to a dismissed clerk of court? liberty
In custody of the Sentence is
A: YES. By doing so, the SC is not deciding a law but no longer condoned,
political question. What it is deciding is whether or under subject to
not the President has the power to commute the confinement reinstatement in
penalty of the said clerk of court. As stated in Daza Nature case of violation
v. Singson (G.R. No. 87721-30, December 21, 1989), it of the condition
is within the scope of judicial power to pass upon that may have
the validity of the actions of the other departments been attached to
of the Government. the pardon
Remission of fines and forfeitures Amnesty
Merely prevents the collection of fines or the The grant of general pardon to a class of political
confiscation of forfeited property. It cannot have offenders either after conviction or even before the
the effect of returning property which has been charges is filed. It is the form of executive clemency
vested in third parties or money already in the which under the Constitution may be granted by
public treasury. the President only with the concurrence of the
legislature.
NOTE: The power of the President to remit fines
and forfeitures may not be limited by any act of NOTE: Thus, the requisites of amnesty are:
Congress. But a statue may validly authorize other a. Concurrence of a majority of all the members

2015GOLDEN NOTES
of Congress (1987 Constitution, Art. VII, Sec. DIPLOMATIC POWERS

19); and
b. A previous admission of guilt (Vera et al., v. Sources of the Presidents diplomatic powers
People, G.R. No. L-18184, January 31, 1963).
1. The Constitution
Effects of the grant of amnesty 2. The status of sovereignty and independence
The total extinguishment of the criminal liability NOTE: The Presidents powers over foreign affairs
and of the penalty and all its effects. Amnesty makes the President the chief architect of foreign
reaches back to the past and erases whatever relations. By reason of the President's unique
shade of guilt there was. In the eyes of the law, a position as Head of State, he is the logical choice as
person granted amnesty is considered a new-born the nation's spokesman in foreign relations. The
child. Senate, on the other hand, is granted the right to
share in the treaty-making power of the President
Amnesty v. Pardon by concurring with him with the right to amend.
BASIS AMNESTY PARDON Scope of the foreign relations powers of the

Addressed to Addressed to President
Nature of the
Political Ordinary
offense 1. Negotiate treaties and other international
offenses offenses
Granted to a Granted to agreements. However, such treaty or
As to whom international agreement requires the
Class of Individuals
granted concurrence of the Senate (1987 Constitution,
Persons
Requires Does not Art. VII, Sec. 21) which may opt to do the
As to concurrence of require following:
concurrence majority of all concurrence of a. Approve with 2/3 majority;
of Congress members of Congress b. Disapprove outright; or
Congress c. Approve conditionally, with suggested
Public act Private act amendments which if re-negotiated and
which the which must be the Senates suggestions are incorporated,
Nature of the the treaty will go into effect without need
court may take pleaded and
act of further Senate approval.
judicial notice proved
of
Looks Looks forward NOTE: Executive agreements, however,
backward and and relieves do not require legislative concurrence
As to puts to the pardonee (Bayan Muna v. Romulo, G.R. No. 159618,
perspective oblivion the of the February 1, 2011).
offense itself consequence of
the offense An executive agreement is a treaty within
May be Only granted the meaning of that word in international
granted before after law and constitutes enforceable domestic
When granted law (Nicolas v. Romulo, et al., G.R. No. 175888,
or after conviction by
conviction final judgment February 11, 2009).
As to Need not be Must be
acceptance accepted accepted To be considered an executive agreement,
the following three requisites provided
NOTE: The right to the benefits of amnesty, once under the Vienna Convention must
established by the evidence presented either by the nevertheless concur:
complainant or prosecution, or by the defense, (a) The agreement must be between states;
cannot be waived, because it is of public interest (b) It must be written; and
that a person who is regarded by the Amnesty (c) It must be governed by international law
Proclamation which has the force of a law, not only (China National Machinery and Equipment
as innocent, for he stands in the eyes of the law as Corporation v. Sta. Maria, et al., G.R. No.
if he had never committed any punishable offense 185572, February 7, 2012).
(Barrioquinto v. Fernandez et al., G.R. No. L-1278,
January 21, 1949). Q: Does concurrence of the Senate affect the
validity of the treaty or the fulfillment of
the obligation of the Philippines under the
treaty?

6. Decide that a diplomatic officer who has

A: The role of the Senate, however, is limited become persona non grata be recalled.
only to giving or withholding its consent, or 7. Recognize governments and withdraw
concurrence, to the ratification. It should be recognition.
emphasized that under our Constitution, the
power to ratify is vested in the President, INFORMING POWER
subject to the concurrence of the Senate.
Scope of the Presidents informing power
Hence, it is within the authority of the
President to refuse to submit a treaty to the 1. The President shall address the Congress at the
Senate or, having secured its consent for its opening of its regular session (1987
ratification, refuse to ratify it. Although the Constitution, Art. VII, Sec. 23).
refusal of a state to ratify a treaty which has
been signed in its behalf is a serious step that NOTE: The President usually discharges the
should not be taken lightly, such decision is informing power through what is known as the
within the competence of the President alone state-of-nation address.
(Pimentel, et al., v. Executive Secretary, G.R. No.
158088, July 6, 2005). 2. He may appear before Congress at any other
time (1987 Constitution, Art. VII, Sec. 23).
2. Appoint ambassadors, other public ministers,
and consuls. NOTE: It is not a compelling duty on the
3. Receive ambassadors and other public President to give information because it is a
ministers accredited to the Philippines. discretionary power; he may or may not give
4. Contract and guarantee foreign loans on behalf information to the legislature.
of RP (1987 Constitution, Art. VII, Sec. 20).
5. Deport aliens RESIDUAL POWER
a. This power is vested in the President by
virtue of his office, subject only to Whatever power inherent in the government that
restrictions as may be provided by is neither legislative nor judicial has to be
legislation as regards to the grounds for executive. These unstated residual powers are
deportation (Revised Administrative Code, implied from the grant of executive power and
Sec. 69). which are necessary for the President to comply
b. In the absence of any legislative restriction with his duties under the Constitution (Marcos, et
to authority, the President may still al., v. Manglapus, et al., G.R. No. 88211, October 27,
exercise this power. 1989).
c. The power to deport aliens is limited by
the requirements of due process, which RULES ON SUCCESSION
entitles the alien to a full and fair hearing.
Rules to be applied if there is vacancy before
NOTE: Summary deportation shall be the beginning of the term of the President (1987
observed in cases where the charge Constitution, Art. VII, Sec 7)
against the alien is overstaying or
expiration of his passport (Board of CAUSE OF VACANCY CONSEQUENCE
Commissioners v. Jong Keun Park, G.R. No. In case of death or The Vice-President elect
159835, January 21, 2010). permanent disability of shall become President.
the President-elect.
d. An alien has the right to apply for bail In case of failure to The Vice-President shall
provided certain standard for the grant is elect the President (i.e. act as the President until
necessarily met (Government of Hong Kong Presidential elections the President shall have
Special Administrative Region v. Olalia, G.R. have not been held or been chosen and
No. 153675, April 19, 2007). non-completion of the qualified.
canvass of the
NOTE: The adjudication of facts upon which Presidential elections)
the deportation is predicated devolved on the
In case no President The Senate President, or
President whose decision is final and and Vice-President in case of his inability,
executory (Tan Tong v. Deportation Board, G.R.
shall have been chosen the Speaker of the HoR
No. L-7680, April 30, 1955).
and qualified, or where shall act as President
both shall have died or until a President or a

2015GOLDEN NOTES
become permanently Vice-President shall have 4. The bill calling such special election Shall be
disabled. been chosen and deemed certified under Sec. 26, par. 2, Art. VI
qualified. of the Constitution and shall become law upon
its approval on third reading by Congress.
Congress shall by law 5. Appropriations for said special election Shall
provide for the manner be charged against any current appropriations
in which one who is to and shall be exempt from the requirements of,
act as President shall be Sec. 25, par. 4, Art. VI of the Constitution.
selected until a President 6. The convening of Congress and the special
or a Vice-President shall election cannot be suspended or postponed
have qualified, in case of 7. No special election shall be called If the
death, permanent vacancy occurs within eighteen (18) months
disability or inability of before the date of the next presidential
the officials. elections.
Limitation on the power of the Acting President Instances when there is presidential inability to
discharge powers and duties of his office
Appointments extended by an Acting President
shall remain effective, unless revoked by the INSTANCE CONSEQUENCE
elected President, within ninety days from his When the President The powers and
assumption or reassumption of office (1987 transmits to the Senate duties of his office
Constitution, Art. VII, Sec. 14). President and to the shall be discharged
Speaker of the HoR his by the Vice-President
Rules to be applied if the vacancy occurs during written declaration that as Acting President.
the incumbency of the President he is unable to discharge
the powers and duties of
CAUSE OF CONSEQUENCE his office.
VACANCY
In case of : The Vice President When a majority of all the The Vice-President
b. Death; shall become the members of the Cabinet shall immediately
c. Permanent Disability; President to serve the transmit to the Senate assume the powers
d. Removal from office; unexpired term. President and to the and duties of the
or Speaker of the HoR their office as Acting
e. Resignation of the written declaration that President.
President the President is unable to
In case of : The Senate President, discharge the powers and NOTE: The President
a. Death; or in case of his duties of his office . can reassume power
b. Permanent Disability; inability, the Speaker of and duties of his
c. Removal from office; the HoRs, shall act as office once he
or President until the transmits to the
d. Resignation of both President or Vice Senate President and
the President and the President shall have to the Speaker of the
Vice-President ben elected and HoR his written
qualified. declaration that no
inability exists.
Rules and procedure to be followed if a vacancy (1987 Constitution, Art. VII, Sec. 11)
occurs in the offices of the President and Vice-
President (1987 Constitution, Art. VII, Sec. 10)
1. At 10:00 A.M. of the third day after said vacancy

occurs Congress shall convene in accordance
with its rules without need of call.
2. Within 7 days Congress shall enact a law
calling for a special election to elect a President
and a Vice President.
3. Said special election shall be held Not earlier
than forty-five (45) days nor later than sixty
(60) days from the time of such call.

JUDICIAL DEPARTMENT which seeks to resolve hypothetical or feigned

constitutional problems.
JUDICIAL POWER
NOTE: But even with the presence of an actual
Judicial power case or controversy, the Court may refuse
judicial review unless a party who possesses
The duty of the courts of justice to settle actual locus standi or the standing to challenge it
controversies involving rights, which are legally brings the constitutional question or the
demandable and enforceable and to determine assailed illegal movement or act before it.
whether or not there has been a grave abuse of
discretion amounting to lack or excess of 2. Proper party One who has sustained or is in
jurisdiction on the part of any branch or immediate danger of sustaining an injury as a
instrumentality of the Government (1987 result of the act complained of. To have
Constitution, Art. VIII, Sec. 1[2]). standing, one must show that 1) he has
suffered some actual or threatened injury as a
Body vested with judicial power result of the allegedly illegal conduct of the
government; 2) the injury is fairly traceable to
It is vested in one Supreme Court (SC) and such the challenged action; 3) the injury is likely to
lower courts as may be established by law (1987 be redressed by a favorable action (Francisco,
Constitution, Art. VIII, Sec. 1). Jr. & Hizon v. Toll Regulatory Board, et. al., G.R.
Nos. 166910, October 19, 2010).
Judicial inquiry
Locus Standi v. Real party-in-interest
The power of the court to inquire into the exercise
of discretionary powers to determine whether or LOCUS STANDI REAL PARTY-IN-
not there has been a grave abuse of discretion INTEREST
amounting to lack or excess of jurisdiction. Character of the plaintiff
One who has The party who stands
JUDICIAL REVIEW sustained or is in to be benefited or
imminent danger of injured by the
Judicial review sustaining an injury judgment in the suit, or
as a result of the act the part entitled to the
The power of the SC to declare a law, treaty, complained of avails of the suit.
ordinance and other governmental act (direct injury test) Unless otherwise
unconstitutional. (Ex parte Levitt, 302 authorized by law or
U.S. 633, 1937). these Rules, every
NOTE: When the judiciary mediates to allocate action must be
constitutional boundaries, it does not assert any prosecuted or
superiority over other departments; it does not in defended in the name
reality nullify or invalidate an act of the legislature, of the real party in
but only asserts the solemn and sacred obligation interest (Rules of Court,
assigned to it by the Constitution to determine Rule 3, Sec. 2).
conflicting claims of authority under the Legal nature
Constitution and to establish for the parties in an Has constitutional A concept of civil
actual controversy the rights which that underpinnings procedure
instrument secures and guarantees to them. This is As to the issue involved
in truth all that is involved in what is termed as Whether such Whether he is "the
judicial supremacy, which properly is the power parties have party who would be
of judicial review under the Constitution (Angara v. "alleged such a benefited or injured by
The Electoral Commission, et al., G.R. No. L-45081, personal stake in the the judgment, or the
July 15, 1936). outcome of the 'party entitled to the
controversy as to avails of the suit
Requisites of judicial review assure that concrete (Francisco, et al., v.
adverseness which House of
1. Actual case An existing case or controversy sharpens the Representatives, et al.,
which is both ripe for resolution and presentation of G.R. No. 160261,
susceptible of judicial determination, and that issues upon which November 10, 2003).
which is not conjectural or anticipatory, or that the court so largely

2015GOLDEN NOTES
JUDICIAL DEPARTMENT
depends for The Ombudsman has no jurisdiction to

illumination of entertain questions regarding constitutionality
difficult of laws. Thus, when the issue of
constitutional constitutionality of a law was raised before the
questions." Court of Appeals, which is the competent court,
the constitutional question was raised at the
Legal personality earliest opportune time (Estarija v. Ranada, et
al., G.R. No. 159314, June 26, 2006).
GR: If there is no actual or potential injury,
complainant has no legal personality to raise 4. Necessity of deciding constitutional questions
constitutional questions. As a joint act of the legislative and executive
authorities, a law is supposed to have been
XPN: If the question is of transcendental carefully studied and determined to be
importance. constitutional before it was finally enacted. As
long as there are other bases which courts can
NOTE: The Principle of Transcendental use for decision, constitutionality of the law
Importance is determined by: will not be touched.
1. The character of the funds or other assets
involved in the case; Courts should refrain from resolving any
2. The presence of a clear case of disregard of constitutional issue "unless the constitutional
a constitutional or statutory prohibition by question is the lis mota of the case."
the public respondent agency or
instrumentality of the government; Lis mota literally means "the cause of the suit
3. The lack of any other party with a more or action." Given the presumed validity of an
direct and specific interest in raising the executive act, the petitioner who claims
questions being raised (Francisco, et al., v. otherwise has the burden of showing first
House of Representatives, et al., G.R. No. that the case cannot be resolved unless the
160261, November 10, 2003). constitutional question he raised is
determined by the Court (General v. Urro, G.R.
3. Earliest opportunity Constitutional question No. 191560, March 29, 2011).
must be raised at the earliest possible
opportunity. Scope of Judicial Review
GR: It must be raised in the pleadings. The courts have the power to pass upon the
validity and the constitutionality of laws enacted
XPN: by the legislature, and other bodies of the
1. Criminal case It may be brought at any government, under the doctrine of checks and
stage of the proceedings according to the balances.
discretion of the judge (trial or appeal)
because no one shall be brought within the The lower courts are likewise vested with the
terms of the law who are not clearly within power of judicial review, subject however to the
them and the act shall not be punished appellate jurisdiction of the higher courts.
when the law does not clearly punish
them. Requisites before a law can be declared
2. Civil case It may be brought anytime if partially unconstitutional
the resolution of the constitutional issue is
inevitable in resolving the main issue. 1. The legislature must be willing to retain valid
3. When the jurisdiction of the lower court is portion (separability clause);
in question except when there is estoppel. 2. The valid portion can stand independently as
law.
NOTE: The earliest opportunity to raise a
constitutional issue is to raise it in the Principle of Stare Decisis
pleadings before a competent court that can
resolve the same, such that, if not raised in the Deemed of imperative authority, controlling the
pleadings, it cannot be considered in trial and, decisions of like cases in the same court and in
if not considered in trial, it cannot be lower courts within the same jurisdiction, unless
considered on appeal. and until the decision in question is reversed or
overruled by a court of competent authority (De
Castro v. JBC, G.R. No. 191002, April 20, 2010).

9. When the facts set forth in the petition as well

Q: Is the SC obliged to follow precedents? as in the petitioners main and reply briefs are
not disputed by the respondents; and
A: The Court, as the highest court of the land, may 10. When the findings of fact of the Court of
be guided but is not controlled by precedent. Thus, Appeals are premised on the supposed
the Court, especially with a new membership, is absence of evidence and contradicted by the
not obliged to follow blindly a particular decision evidence on record (David v. Misamis
that it determines, after re-examination, to call for Occidental II Electric Cooperative Inc., G.R. No.
a rectification (De Castro v. JBC, G.R. No. 191002, 194785, 11 July 2012).
April 20, 2010).
OPERATIVE FACT DOCTRINE
Functions of judicial review
Doctrine of Operative Fact
1. Checking Invalidating a law or executive act
that is found to be contrary to the Constitution. Under this doctrine, the law is recognized as
2. Legitimizing Upholding the validity of the law unconstitutional but the effects of the
that results from a mere dismissal of a case unconstitutional law, prior to its declaration of
challenging the validity of the law. nullity, may be left undisturbed as a matter of
3. Symbolic To educate the bench and bar as to equity and fair play. It is a rule of equity (League of
the controlling principles and concepts on Cities of the Philippines, et al., v. COMELEC, et al.,
matters of grave public importance for the G.R. No. 176951, November 18, 2008).
guidance of, and restraint upon the future
(Dumlao, et al., v. COMELEC, G.R. No. L-52245, NOTE: The invocation of this doctrine is an
January 22, 1980). admission that the law is unconstitutional.
Power of judicial review in impeachment Applicability on executive acts

proceedings includes the power of review over
justiciable issues in impeachment proceedings The Operative Fact Doctrine also applies to
(Francisco, et al., v. House of Representatives, et al., executive acts subsequently declared as invalid. A
G.R. No. 160261, November 10, 2003). decision made by the president or the
administrative agencies has to be complied with
Judicial review of the SC on findings of facts of because it has the force and effect of law (Hacienda
administrative tribunals and trial courts Luisita Inc., et al., v. Presidential Agrarian Reform
Council, et. al., G.R. No. 171101, November 22, 2011).
GR: The SC will not disturb the findings of facts of
administrative tribunals and the trial courts. Doctrine of Relative Constitutionality
XPN: The SC may review findings of facts of the Where the constitutionality of certain rules may
lower courts under the following exceptions: depend upon the times and get affected by the
1. When the conclusion is a finding grounded changing of the seasons. A classification that might
entirely on speculation, surmises and have been perfectly all right at the time of its
conjectures; inception may be considered dubious at a later
2. When the inference made is manifestly time.
mistaken, absurd or impossible;
3. Where there is a grave abuse of discretion; MOOT QUESTIONS
4. When the judgment is based on a
misapprehension of facts; Moot questions
5. When the findings of fact are conflicting;
6. When the Court of Appeals, in making its Questions on which a judgment cannot have any
findings, went beyond the issues of the case practical legal effect or, in the nature of things,
and the same is contrary to the admissions of cannot be enforced (Baldo, Jr. v. COMELEC, et al.,
both appellant and appellee; G.R. No. 176135, June 16, 2009).
7. When the findings are contrary to those of the
trial court; Moot and academic
8. When the findings of fact are without citation
of specific evidence on which the conclusions It is moot and academic when it ceases to present a
are based; justiciable controversy by virtue of supervening
events so that a declaration thereon would be of no
practical use or value.

2015GOLDEN NOTES
JUDICIAL DEPARTMENT
Political Question Doctrine

Court actions over moot and academic cases
The doctrine that the power of judicial review
GR: The courts should decline jurisdiction over cannot be exercised when the issue is a political
such cases or dismiss it on ground of mootness. question. It constitutes another limitation on such
power of the judiciary.
XPNs:
1. There is a grave violation of the Constitution. Justiciable questions v. Political questions
2. There is an exceptional character of the
situation and the paramount public interest is BASIS JUSTICIABLE POLITICAL
involved. QUESTIONS QUESTIONS
3. When the constitutional issue raised requires Imply a given Questions
formulation of controlling principles to guide right legally which involve
the bench, the bar, and the public. demandable the policy or
4. The case is capable of repetition yet evading and the wisdom of
review (David, et al., v. Macapagal-Arroyo, et enforceable, the law or act,
al., G.R. No. 171396, May 3, 2006). an act or or the morality
omission or efficacy of
Q: Atty. Al Conrad filed a petition to set aside violative of the same.
the award of the ZTE-DOTC Broadband Deal. such right, Generally it
The OSG opposed the petition on the ground and a remedy cannot be
that the Legal Service of the DOTC has informed granted and inquired by the
it of the Philippine Governments decision not sanctioned courts. Further,
to continue with the ZTE-NBN Project. That by law for these are
said, there is no more justiciable controversy said breach questions
for the court to resolve. Hence, the OSG claimed of right. which under
that the petition should be dismissed. Atty. Al the
Conrad countered by saying that despite the Constitution:
mootness, the Court must nevertheless take Definition
a. Are decided
cognizance of the case and rule on the merits by the
due to the Courts symbolic function of people in
educating the bench and the bar by formulating their
guiding and controlling principles, precepts, sovereign
doctrines, and rules. Decide. capacity; and
b. Where full
A: The OSG is correct. The petition should be discretionar
dismissed for being moot. Judicial power y authority
presupposes actual controversies, the very has been
antithesis of mootness. In the absence of actual delegated by
justiciable controversies or disputes, the Court the
generally opts to refrain from deciding moot Constitution
issues. Where there is no more live subject of either to the
controversy, the Court ceases to have a reason to executive or
render any ruling or make any pronouncement legislative
(Suplico v. NEDA, et al., G.R. No. 178830, July 14, department.
2008).
Effect of the expanded definition of judicial
POLITICAL QUESTIONS power on the political question doctrine
Political questions The 1987 Constitution expands the concept of

judicial review. Under the expanded definition, the
Those questions which, under the Constitution, are Court cannot agree that the issue involved is a
to be decided by the people in their sovereign political question beyond the jurisdiction of the
capacity, or in regard to which full discretionary court to review. When the grant of power is
authority has been delegated to the legislative or qualified, conditional or subject to limitations, the
executive branch of the government (Taada v. issue of whether the prescribed qualifications or
Cuenco, et al., G.R. No. L-10520, February 28, 1957). conditions have been met or the limitations
respected is justiciablethe problem being one of
legality or validity, not its wisdom. Moreover, the

jurisdiction to delimit constitutional boundaries Constitutional guarantee of fiscal autonomy

has been given to the SC. When political questions
are involved, the Constitution limits the In Bengzon, et al., v. Drilon, et al. (G.R. No. 103524,
delimitation as to whether or not there has been a April 15, 1992), the SC explained that fiscal
grave abuse of discretion amounting to lack or autonomy contemplates a guarantee of full
excess of jurisdiction on the part of the official flexibility to allocate and utilize resources with the
whose action is being questioned. wisdom and dispatch that the needs require.
SAFEGUARDS OF JUDICIAL INDEPENDENCE It recognizes the power and authority to deny,

assess and collect fees, fix rates of compensation
Constitutional safeguards that guarantee the not exceeding the highest rates authorized by law
independence of the judiciary for compensation and pay plans of the government
and allocate and disburse such sums as may be
1. The SC is a constitutional body and may not be provided by law or prescribed by it in the course of
abolished by law. the discharge of its functions.
2. Members are only removable by impeachment
(1987 Constitution, Art. XI, Sec. 2). JUDICIAL RESTRAINT
3. The SC may not be deprived of its minimum
and appellate jurisdiction (1987 Constitution, Principle of Judicial Restraint
Art VIII, Sec. 2); appellate jurisdiction may not
be increased without its advice or concurrence Theory of judicial interpretation that encourages
(1987 Constitution, Art. VI, Sec. 30). judges to limit the exercise of their own power.
NOTE: The Congress shall have the power to In terms of legislative acts, the principle of judicial
define, prescribe, and apportion the restraint means that every intendment of the law
jurisdiction of the various courts (all courts must be adjudged by the courts in favor of its
below the SC) but may not deprive the constitutionality, invalidity being a measure of last
Supreme Court of its jurisdiction over cases resort. In construing therefore the provisions of a
enumerated in Section 5 (express powers of statute, courts must first ascertain whether an
the SC) hereof (1987 Constitution, Art. VII, Sec. interpretation is fairly possible to sidestep the
2). question of constitutionality (Estrada v.
Sandiganbayan, G.R. No. 148560, November 19,
4. The SC has administrative supervision over all 2001).
inferior courts and personnel (1987
Constitution, Art. VIII, Sec. 6). NOTE: The doctrine of separation of powers
5. The SC has exclusive power to discipline imposes upon the courts proper restraint born of
judges/justices of inferior courts (1987 the nature of their functions and of their respect
Constitution, Art. VIII, Sec. 11). for the other departments in striking down acts of
6. The members of the judiciary enjoy security of the legislature as unconstitutional (Francisco, Jr., et
tenure (1987 Constitution, Art. VIII, Sec. 2 [2]). al., v. The House of Representatives, et al., G.R. No.
7. The members of the judiciary may not be 160261, Bellosillo J., Separate Opinion, November 10,
designated to any agency performing quasi- 2003).
judicial or administrative functions (1987
Constitution, Art. VIII, Sec 12). APPOINTMENTS TO THE JUDICIARY
8. The salaries of judges may not be reduced; the
judiciary enjoys fiscal autonomy (1987 Judicial appointment
Constitution, Art. VIII, Sec. 3).
9. The SC alone may initiate the promulgation of The members of the judiciary are appointed by the
the Rules of Court (1987 Constitution, Art. VIII, President of the Philippines from among a list of at
Sec. 5 [5]). least three nominees prepared by the Judicial and
10. The SC alone may order temporary detail of Bar Council (JBC) for every vacancy.
judges (1987 Constitution, Art. VIII, Sec. 5 [3]).
11. The SC can appoint all officials and employees NOTE: The appointment shall need no
of the Judiciary (1987 Constitution, Art. VIII, confirmation from the Commission on
Sec. 5 [6]). Appointments (1987 Constitution, Art. VIII, Sec. 9).

2015GOLDEN NOTES
JUDICIAL DEPARTMENT
Rules on vacancies in the SC bicameral body refers to its primary function in

government to legislate. In the passage of laws,
1. Vacancies in the SC should be filled within 90 the Constitution is explicit in the distinction of the
days from the occurrence of the vacancy. role of each house in the process. The same holds
2. Vacancies in lower courts should be filled true in Congress non-legislative powers. An inter-
within 90 days from submission to the play between the two houses is necessary in the
President of the JBC list. realization of these powers causing a vivid
3. The filling of the vacancy in the Supreme Court dichotomy that the Court cannot simply discount.
within the 90-day period is an exception to the This, however, cannot be said in the case of JBC
prohibition on midnight appointments of the representation because no liaison between the two
president. This means that even if the period houses exists in the workings of the JBC. Hence, the
falls on the period where the president is term Congress must be taken to mean the entire
prohibited from making appointments legislative department. The Constitution mandates
(midnight appointments); the president is that the JBC be composed of seven (7) members
allowed to make appointments to fill vacancies only (Chavez v. Judicial and Bar Council, G.R. No.
in the Supreme Court (De Castro v. JBC, G.R. No. 202242, July 17, 2012).
191002, April 20, 2010).
Functions of the JBC
Composition of the JBC
The principal function of the JBC is to recommend
1. Chief Justice, as ex-officio chairman appointees to the judiciary. It may, however,
2. Secretary of Justice, as an ex-officio member exercise such functions as the SC may assign to it
3. Representative of Congress, as an ex-officio (1987 Constitution, Art. VIII, Sec. 8).
member
4. Representative of the Integrated Bar NOTE: The duty of the JBC to submit a list of
5. A professor of law nominees before the start of the Presidents
6. A retired member of the SC mandatory 90-day period to appoint is ministerial,
7. Private sector representative but its selection of the candidates whose names
will be in the list to be submitted to the President
Staggered Terms of the members of the JBC lies within the discretion of the JBC (De Castro v.
JBC, G.R. No. 191002, March 17, 2010).
A. Regular Members
1. Chief Justice 4 years Tenure of the members of the SC and judges
2. Secretary of Justice 4 years
3. Representative of Congress 4 years Members of the SC and judges of lower courts can
B. Other Members hold office during good behavior until:
4. Representative of the Integrated Bar 4 1. The age of 70 years old; or
years 2. They become incapacitated to discharge their
5. A professor of law 3 years duties.
6. A retired member of the SC 2 years
7. Private sector representative 1 year General qualification for appointments to the
(1987 Constitution, Art. VIII, Sec. 8[2]) judiciary
Rationale: continuity and preservation of the Of proven competence, integrity, probity and
institutional memory independence (Art. VIII, Sec. 7[3]).
Representative of Congress in the JBC Qualifications for appointments to the SC
Only one. The word Congress used in Sec. 8(1), 1. Natural born citizen of the Philippines;
Art. VIII of the Constitution is used in its generic 2. At least 40 years of age;
sense. No particular allusion whatsoever is made 3. A judge of a lower court or engaged in the
on whether the Senate or the HoR is being referred practice of law in the Philippines for 15 years or
to, but that, in either case, only a singular more (1987 Constitution, Art. VIII, Sec. 7[1]).
representative may be allowed to sit in the JBC. The
seven-member composition of the JBC serves a General qualifications for appointments to
practical purpose, that is, to provide a solution lower collegiate courts
should there be a stalemate in voting.
1. Natural born citizen of the Philippines;
It is evident that the definition of Congress as a 2. Member of the Philippine Bar.

PROCEDURAL RULE-MAKING POWER

General qualifications for appointments to
lower courts Scope of the rule-making power of the SC
1. Citizen of the Philippines; 1. The protection and enforcement of

2. Member of the Philippine Bar. constitutional rights
2. Pleadings, practice and procedure in all courts
NOTE: For both lower collegiate courts and lower 3. Admission to the practice of law
courts, Congress may prescribe other qualifications 4. The Integrated Bar
(1987 Constitution, Art. VIII, Sec. 7 [1] and [2]). 5. Legal assistance to the underprivileged
SUPREME COURT Limitations on its rule making power
Composition of the SC 1. It should provide a simplified and inexpensive

procedure for the speedy disposition of cases.
A. Chief Justice 2. It should be uniform for all courts of the same
B. 14 Associate Justices grade.
3. It should not diminish, increase, or modify
Divisions of the SC substantive rights.
It may sit en banc or in its discretion, in divisions of Requirements for the decisions of the SC
three, five, or seven Members (1987 Constitution,
Art. VIII, Sec. 4(1)). 1. The conclusions of the Supreme Court in any
case submitted to it for decision en banc or in
EN BANC DECISIONS division shall be reached in consultation before
the case is assigned to a Member for the
Cases that should be heard by the SC en banc writing of the opinion of the Court.
2. A certification to this effect signed by the Chief
1. All cases involving the constitutionality of a Justice shall be issued.
treaty, international or executive agreement, 3. A copy thereof shall be attached to the record
or law; of the case and served upon the parties.
2. All cases which under the Rules of Court may 4. Any Member who took no part, or dissented, or
be required to be heard en banc; abstained from a decision or resolution, must
3. All cases involving the constitutionality, state the reason therefor (1987 Constitution,
application or operation of presidential Art. VIII, Sec. 13).
decrees, proclamations, orders, instructions,
ordinances, and other regulations; NOTE: No decision shall be rendered by any court
4. Cases heard by a division when the required without expressing therein clearly and distinctly
majority in the division is not obtained; the facts and the law on which it is based (1987
5. Cases where the SC modifies or reverses a Constitution, Art. VIII, Sec. 13).
doctrine or principle of law previously laid
either en banc or in division; SC AS PRESIDENTIAL ELECTORAL TRIBUNAL
6. Administrative cases involving the discipline
or dismissal of judges of lower courts; The Supreme Court, sitting en banc, shall be the
7. Election contests for president or vice- sole judge of all contests relating to the election,
president. returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the
NOTE: Other cases or matters may be heard in purpose (1987 Constitution, Art. VII, Sec. 4, par. 7).
division, and decided or resolved with the
concurrence of a majority of the members who The PET is an institution independent, but not
actually took part in the deliberations on the issues separate, from the judicial department, i.e., the
and voted thereon, but in no case without the Supreme Court. The Supreme Courts method of
concurrence of at least three such members. deciding presidential and vice-presidential election
contests, through the PET, is derivative of the
No law shall be passed increasing the appellate exercise of the prerogative conferred by the
jurisdiction of the SC as provided in the constitution (Macalintal v. PET, G.R. No. 191618
Constitution without its advice and concurrence November 23, 2010).
(1987 Constitution, Art. VI, Sec. 30).

2015GOLDEN NOTES
JUDICIAL DEPARTMENT
ADMINISTRATIVE SUPERVISION OVER LOWER has already been heard by a lower court and it
COURTS only looks at the matters of law.
e.g.:
SCs disciplinary power over judges of lower a. Over final judgments and orders of lower
court courts in all cases in which the
constitutionality or validity of any treaty,
1. Only the SC en banc has jurisdiction to international or executive agreement, law,
discipline or dismiss judges of lower courts. presidential decree, proclamation, order,
2. Disciplinary action/dismissal Majority vote of instruction, ordinance, or regulation is in
the SC Justices who took part in the question;
deliberations and voted therein (1987 b. All cases involving the legality of any tax
Constitution, Art. VIII, Sec. 11). impost, assessment or toil, or any penalty
imposed in relation thereto;
NOTE: The Constitution provides that the SC is c. All cases in which the jurisdiction of any
given exclusive administrative supervision over all lower court is in issue;
courts and judicial personnel. d. All criminal cases in which the penalty
imposed is reclusion perpetua or higher;
Administrative cases, which the SC may hear en and
banc, under Bar Matter No. 209, include: e. All cases in which only a question of law is
involved (1987 Constitution, Art. VIII, Sec.
1. Administrative judges; 5[2]).
2. Disbarment of lawyers;
3. Suspension of more than 1 year; or JUDICIAL PRIVILEGE
4. Fine exceeding Php 10, 000 (People v. Gacott,
G.R. No. 116049, July 13, 1995). Judicial Privilege (Deliberative Process
Privilege)
Q: Does the CSC have jurisdiction over an
employee of the judiciary for acts committed Deliberative process privilege (DPP) is the
while said employee was still in the executive privilege against disclosure of information or
branch? communications that formed the process of judicial
decisions.
A: NO. Administrative jurisdiction over a court
employee belongs to the SC, regardless of whether This applies to confidential matters, which refer to
the offense was committed before or after information not yet publicized by the Court like (1)
employment in the Judiciary (Ampong v. CSC, G.R. raffle of cases, (2) actions taken in each case in the
No. 167916, August 26, 2008). Courts agenda, and (3) deliberations of the
Members in court sessions on case matters
ORIGINAL AND APPELLATE JURISDICTION OF pending before it.
SC
This privilege, however, is not exclusive to the
Original jurisdiction v. Appellate jurisdiction Judiciary and it extends to the other branches of
government due to our adherence to the principle
1. Original Jurisdiction - A court has original of separation of power (In Re: Production of Court
jurisdiction when it is the proper court to first Records and Documents and the Attendance of Court
hear the case. This is where the court makes Officials and Employees as Witnesses under the
determinations of law and fact. Subpoenas of February 10, 2012 and the Various
e.g.: Letters of the Impeachment Prosecution Panel dated
a. Over cases affecting ambassadors, other January 19 and 25, 2012, February 14, 2012).
public ministers and consuls;
b. Over petitions for certiorari, prohibition, Purpose of Judicial Privilege
mandamus, quo warranto, and habeas
corpus (1987 Constitution, Art. VIII, Sec. The DPP is intended to prevent the chilling of
5[1]);and deliberative communications. It insulates the
c. Review of the martial law or suspension of Judiciary from an improper intrusion into the
the privilege of writ of habeas corpus functions of the judicial branch and shields judges,
(1987 Constitution, Art. VII, Sec. 18). justices, and court officials and employees from
2. Appellate Jurisdiction - A court has appellate public scrutiny or the pressure of public opinion
jurisdiction when it is reviewing a case that that would impair their ability to render impartial
decisions (Ibid.).

Requisites for a document to be protected by

DPP
It must be shown that the document is both:

1. Predecisional If they were made in the
attempt to reach a final decision; and
2. Deliberative If it reflects the give-and-take of
the consultative process such as the disclosure
of the information would discourage open
discussion within the agency.
Court records which are predecisional and

deliberative in nature are thus protected and
cannot be the subject of subpoena if judicial
privilege is to be preserved (Ibid.).
Q: During the impeachment proceedings

against the SC Chief Justice, the House
Impeachment Panel, through letters, asked for
the examination of records and the issuance of
certified true copies of the rollos and the
Agenda and Minutes of Deliberations of specific
SC-decided cases. Also, the same panel
requested for the attendance of court officials
including judges, justices, and employees as
witnesses under subpoenas. May judges,
justices, and Court officials and employees
testify in an impeachment proceeding against a
Member of the Court on confidential matters
learned in their official capacity?
A: Members of the Court may not be compelled to

testify in the impeachment proceedings against the
Chief Justice or other Members of the Court about
information acquired in the performance of their
official adjudicatory functions and duties;
otherwise, their disclosure of confidential matters
learned in their official capacity violates judicial
privilege as it pertains to the exercise of the
constitutional mandate of adjudication (Ibid.).
XPN: If the intent only is for them to identify or

certify the genuineness of documents within their
control that are not confidential and privileged,
their presence in the Impeachment Court may be
permitted.
Q: May an individual SC Justice waive judicial

privilege?
A: This privilege, incidentally, belongs to the

Judiciary and is for the Supreme Court (as the
representative and entity speaking for the
Judiciary), and not for the individual justice, judge,
or court official or employees to waive. Thus, every
proposed waiver must be referred to the Supreme
Court for its consideration and approval.

2015GOLDEN NOTES
CONSTITUTIONAL COMMISSIONS
CONSTITUTIONAL COMMISSIONS 10. Chairmen and members are subject to certain

disqualifications and inhibitions calculated to
Constitutional Commissions strengthen their integrity (1987 Constitution,
Art. IX-A, Sec. 2).
1. Civil Service Commission (CSC) 11. Commissions may appoint their own officials
2. Commission on Elections (COMELEC) and employees in accordance with Civil Service
3. Commission on Audit (CoA) Law (1987 Constitution, Art. IX-A, Sec. 4).
NOTE: The CSC, COMELEC, and CoA are equally NOTE: The Supreme Court held that the no report,
pre-eminent in their respective spheres. Neither no release policy may not be validly enforced
one may claim dominance over the others. In case against offices vested with fiscal autonomy,
of conflicting rulings, it is the judiciary, which without violating Art. IX-A, Sec. 5 of the
interprets the meaning of the law and ascertains Constitution. The automatic release of approved
which view shall prevail (CSC v. Pobre, G.R. No. annual appropriations to a Constitutional
160508, September 15, 2004). Commission vested with fiscal autonomy should
thus be construed to mean that no condition to
Purpose fund releases may be imposed (CSC v. DBM, G.R. No.
158791, July 22, 2005).
The creation of the Constitutional Commissions is
established in the Constitution because of the Salary
extraordinary importance of their functions and
the need to insulate them from the undesired Salaries may be increased by a statute but may not
political interference or pressure. Their be decreased during incumbents term of office.
independence cannot be assured if they were to be
created merely by statute. NOTE: The decrease is prohibited to prevent the
legislature from exerting pressure upon the
CONSTITUTIONAL SAFEGUARDS TO ENSURE Commissions by operating on their necessities.
INDEPENDENCE OF COMMISSIONS Salaries may be increased, as a realistic recognition
of the need that may arise to adjust the
Guarantees of independence provided for by compensation to any increase in the cost of living.
the Constitution to the 3 Commissions
Requisites for the effective operation of the
1. They are constitutionally-created; may not be rotational scheme of terms of constitutional
abolished by statute of its judicial functions bodies
(1987 Constitution, Art. IX-A, Sec. 1).
2. Each is conferred certain powers and functions 1. The original members of the Commission shall
which cannot be reduced by statute (1987 begin their terms on a common date;
Constitution, Art. IX-B, C and D). 2. Any vacancy occurring before the expiration of
3. Each is expressly described as independent the term shall be filled only for the balance of
(1987 Constitution, Art. IX-A, Sec. 1). such term (Republic v. Imperial, G.R. No. L-8684,
4. Chairmen and members are given fairly long March 31, 1995).
terms of office for 7 years (1987 Constitution,
Art. IX-B, C and D, Sec. 1[2]). NOTE: The members of the Constitutional
5. Chairmen and members cannot be removed Commissions have staggered terms.
except by impeachment (1987 Constitution, Art. 1. To minimize the opportunity of the President
XI, Sec. 2). to appoint during his own term more than one
6. Chairmen and members may not be member or group of members in the
reappointed or appointed in an acting capacity Constitutional Commissions; and
(1987 Constitution, Art. IX-B, C and D, Sec. 1[2]). 2. To ensure continuity of the body and its
7. Salaries of chairmen and members are policies.
relatively high and may not be decreased
during continuance in office (1987 POWERS AND FUNCTIONS OF EACH
Constitution, Art. IX-A, Sec. 3; Art. XVIII, Sec. 17). COMMISSION
8. Commissions enjoy fiscal autonomy (1987
Constitution, Art. IX-A, Sec. 5). Decision-making process in these Commissions
9. Each commission may promulgate its own
procedural rules (1987 Constitution, Art. IX-A, 1. Each Commission shall decide matter or cases
Sec. 7). by a majority vote of all the members within 60
days from submission.

a. COMELEC may sit en banc or in 2 divisions. to any office in the Government of any GOCC or
b. Election cases, including pre-proclamation in any of its subsidiaries (1987 Constitution,
controversies are decided in division, with Art. IX-B, Sec. 6).
motions for reconsideration filed with the 2. No elective official shall be eligible for
COMELEC en banc. appointment or designation in any capacity to
c. The SC has held that a majority decision any public office or position during his tenure
decided by a division of the COMELEC is a (1987 Constitution, Art. IX-B, Sec. 7[1]).
valid decision. 3. Unless otherwise allowed by law or by the
2. As collegial bodies, each Commission must act primary functions of his position, no
as one, and no one member can decide a case appointive official shall hold any other office or
for the entire commission. employment in the Government or any
subdivision, agency or instrumentality thereof
CIVIL SERVICE COMMISSION including GOCCs or their subsidiaries (1987
Constitution, Art. IX-B, Sec. 7[2]).
As the central personnel agency of the government, 4. No officer or employee in the civil service shall
it: engage, directly or indirectly, in any
1. Establishes a career service; electioneering or partisan political activity
2. Adopts measures to promote morale, (1987 Constitution, Art. IX-B, Sec. 2[4]).
efficiency, integrity, responsiveness,
progressiveness and courtesy in the Civil COMMISSIONON ELECTIONS
Service;
3. Strengthens the merits and rewards system; Composition of the COMELEC
4. Integrates all human resources and
development programs for all levels and ranks; A. Chairman
5. Institutionalizes a management climate B. 6 Commissioners
conducive to public accountability (1987
Constitution, Art. IX-B, Sec. 3). The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Composition of the CSC Commission on Appointments for a term of seven
years without reappointment.
A. Chairman
B. 2 Commissioners NOTE: Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no
The Chairman and the Commissioners shall be case shall any Member be appointed or designated
appointed by the President with the consent of the in a temporary or acting capacity (1987
Commission on Appointments for a term of seven Constitution, Art. IX-C, Sec. 1[2]).
years without reappointment.
Qualifications
NOTE: Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no 1. Natural-born citizen,
case shall any Member be appointed or designated 2. At least 35 years old at the time of
in a temporary or acting capacity (1987 appointment,
Constitution, Art. IX-B, Sec. 1(2)). 3. College degree holder, and
4. Not a candidate in any election immediately
Qualifications preceding the appointment.
1. Natural-born citizen, NOTE: Majority of the members, including the

2. At least 35 years old at the time of Chairman, shall be members of the Philippine Bar
appointment, who have been engaged in the practice of law for at
3. With proven capacity for public least ten years (1987 Constitution, Art. IX-C, Sec
administration; and 1[1]).
4. Not a candidate in any election immediately
preceding the appointment (1987 Constitution, Constitutional powers and functions of the
Art. IX-B, Sec 1[1]). COMELEC
Disqualifications 1. Enforce and administer all laws and regulations

relative to the conduct of an election,
1. No candidate who has lost in any election shall, plebiscite, initiative, referendum, and recall.
within 1 year after such election, be appointed 2. Exercise:

2015GOLDEN NOTES
a. Exclusive original jurisdiction over all b. COMELEC can deputize prosecutors for
contests relating to the election, returns this purpose. The actions of the
and qualifications of all elective: prosecutors are the actions of the
ii. Regional COMELEC.
iii. Provincial
iv. City officials NOTE: Preliminary investigations
b. Exclusive appellate jurisdiction over all conducted by the COMELEC are valid.
contests involving:
i. Elective municipal officials decided by 7. Recommend to the Congress effective measures
trial courts of general jurisdiction. to minimize election spending, including
ii. Elective barangay officials decided by limitation of places where propaganda
courts of limited jurisdiction. materials shall be posted, and to prevent and
c. Contempt powers penalize all forms of election frauds, offenses,
i. COMELEC can exercise this power malpractices, and nuisance candidacies.
only in relation to its adjudicatory or 8. Recommend to the President the removal of
quasi-judicial functions. It cannot any officer or employee it has deputized, or the
exercise this in connection with its imposition of any other disciplinary action, for
purely executive or ministerial violation or disregard of, or disobedience to its
functions. directive, order, or decision.
ii. If it is a pre-proclamation controversy, 9. Submit to the President and the Congress a
the COMELEC exercises quasi-judicial/ comprehensive report on the conduct of each
administrative powers. election, plebiscite, initiative, referendum, or
iii. Its jurisdiction over contests (after recall.
proclamation), is in exercise of its
judicial functions. Q: All election cases, including pre-
proclamation controversies, must be decided
NOTE: The COMELEC may issue writs of by the COMELEC in division. Should a party be
certiorari, prohibition, and mandamus in dissatisfied with the decision, what remedy is
exercise of its appellate functions. available?
3. Decide, except those involving the right to vote, A: The dissatisfied party may file a motion for
all questions affecting elections, including reconsideration before the COMELEC en banc. If
determination of the number and location of the en bancs decision is still not favorable, the
polling places, appointment of election officials same, in accordance with Sec. 7, Art. IX-A, may be
and inspectors, and registration of voters. brought to the Supreme Court on certiorari within
thirty days from receipt of copy thereof (Reyes v.
NOTE: Questions involving the right to vote RTC of Oriental Mindoro, et al., G.R. No. 108886, May
fall within the jurisdiction of ordinary courts. 5, 1995).
4. Deputize, with the concurrence of the NOTE: The fact that decisions, final orders or
President, law enforcement agencies and rulings of the COMELEC in contests involving
instrumentalities of the government, including elective municipal and barangay offices are final,
the AFP, for the exclusive purpose of ensuring executory and not appealable, (Art. IX-C, Sec. 2[2])
free, orderly, honest, peaceful and credible does not preclude recourse to the Supreme Court
elections. by way of a special civil action of certiorari (Galido
v. COMELEC, G.R. No. 95346, January 18, 1991).
5. Registration of political parties, organizations,
or coalitions and accreditation of citizens arms Q: Can the COMELEC exercise its power of
of the COMELEC. contempt in connection with its functions as the
6. File, upon a verified complaint, or on its own National Board of Canvassers during the
initiative, petitions in court for inclusion or elections?
exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of A: YES. The effectiveness of the quasi-judicial
election laws, including acts or omissions power vested by law on a government institution
constituting election frauds, offenses and hinges on its authority to compel attendance of the
malpractices. parties and/or their witnesses at the hearings or
a. COMELEC has exclusive jurisdiction to proceedings. In the same vein, to withhold from the
investigate and prosecute cases for COMELEC the power to punish individuals who
violations of election laws. refuse to appear during a fact-finding investigation,

despite a previous notice and order to attend Q: The PNB was then one of the leading
would render nugatory the COMELECs government-owned banks and it was under the
investigative power, which is an essential incident audit jurisdiction of the COA. A few years ago, it
to its constitutional mandate to secure the conduct was privatized. What is the effect, if any, of the
of honest and credible elections (Bedol v. COMELEC, privatization of PNB on the audit jurisdiction of
G.R. No. 179830, December 3, 2009). the COA?
COMMISSION ON AUDIT A: Since the PNB is no longer owned by the

Government, the COA no longer has jurisdiction to
Composition of the COA audit it as an institution. Under Sec. 2(2), Art. IX-D
of the Constitution, it is a GOCC and their
A. Chairman subsidiaries which are subject to audit by the COA.
B. 2 Commissioners However, in accordance with Sec. 2(1), Art. IX-D,
the COA can audit the PNB with respect to its
The Chairman and the Commissioners shall be accounts because the Government still has equity
appointed by the President with the consent of the in it (PAL v. COA, G.R. No. 91890, June 9, 1995).
Commission on Appointments for a term of seven
years without reappointment. PROHIBITED OFFICES & INTERESTS
NOTE: Appointment to any vacancy shall be only No member of a Constitutional Commission shall,
for the unexpired term of the predecessor. In no during his tenure:
case shall any Member be appointed or designated 1. Hold any other office or employment
in a temporary or acting capacity (1987 2. Engage in the practice of any profession
Constitution, Art. IX-D, Sec. 1[2]). 3. Engage in the active management and control
of any business which in any way may be
Qualifications affected by the function of his office
4. Be financially interested, directly or indirectly,
1. Natural-born citizen, in any contract with, or in any franchise or
2. At least 35 years old at the time of privilege granted by the Government, any of its
appointment, subdivisions, agencies or instrumentalities,
3. Certified Public Accountant with not less than including GOCCs or their subsidiaries
ten years of auditing experience, or member of
the Philippine Bar who has been engaged in Purpose
the practice of law, and
4. Not a candidate in any election immediately 1. To compel the chairmen and members of the
preceding the appointment. Constitutional Commissions to devote their full
attention to the discharge of their duties; and
NOTE: At no time shall all Members of the 2. To remove from them any temptation to take
Commission belong to the same profession (1987 advantage of their official positions for selfish
Constitution, Art. IX-D, Sec 1[1]). purposes.
Powers and duties of COA JURISDICTION OF EACH CONSTITUTIONAL

COMMISSION
1. Examine, audit and settle all accounts
pertaining to revenue and receipts of, and CIVIL SERVICE COMMISSION
expenditures or uses of funds and property
owned or held in trust or pertaining to Scope of the Civil Service
government.
2. Keep general accounts of government and The civil service embraces all branches,
preserve vouchers and supporting papers. subdivisions, instrumentalities, and agencies of the
3. Authority to define the scope of its audit and Government, including government-owned or
examination, establish techniques and controlled corporations with original charters
methods required therefore. (1987 Constitution, Art. IX-B, Sec. 2[1]).
4. Promulgate accounting and auditing rules and
regulations, including those for prevention and
disallowance (1987 Constitution, Art. IX-D, Sec.
2).

2015GOLDEN NOTES
COMMISSION ON ELECTION Jurisdiction of the COMELEC before the

proclamation v. its jurisdiction after
Cases that fall under the jurisdiction of proclamation
COMELEC by division
OVER PRE- OVER CONTESTS
Election cases should be heard and decided by a PROCLAMATION (AFTER
division. If a division dismisses a case for failure of CONTROVERSY PROCLAMATION)
counsel to appear, the MR may be heard by the Due process implications
division. COMELECs jurisdiction COMELECs
is administrative or jurisdiction is judicial
NOTE: According to Balajonda v. COMELEC (G.R. quasi-judicial and is and is governed by the
No. 166032, February 28, 2005), the COMELEC can governed by the less requirements of
order immediate execution of its own judgments. stringent requirements judicial process.
of administrative due
Cases that fall under the jurisdiction of process (although the SC
COMELEC en banc has insisted that
questions on
Motion for Reconsideration of decisions may be qualifications should be
decided by COMELEC en banc. It may also directly decided only after a full-
assume jurisdiction over a petition to correct blown hearing).
manifest errors in the tallying of results by Board
of Canvassers. NOTE: Hence, even in the case of regional or
provincial or city offices, it does make a difference
NOTE: Any decision, order or ruling of the whether the COMELEC will treat it as a pre-
COMELEC in the exercise of its quasi-judicial proclamation controversy or as a contest.
functions may be brought to the SC on certiorari
under Rules 64 and 65 of the Revised Rules of COMMISSION ON AUDIT
Court within 30 days from receipt of a copy
thereof. Q: Can the COA be divested of its power to
examine and audit government agencies?
These decisions or rulings refer to the decision or
final order of the COMELEC en banc and not of any A: No law shall be passed exempting any entity of
division thereof. the Government or its subsidiary in any guise
whatsoever, or any investment of public funds,
Acts that fall under the COMELECs power to from the jurisdiction of the Commission on Audit.
supervise or regulate
The mere fact that private auditors may audit
1. The enjoyment or utilization of all franchises government agencies does not divest the COA of its
or permits for the operation of transportation power to examine and audit the same government
and other public utilities, media of agencies (DBP, et al., v. COA, G.R. No. 88435, January
communication or information. 16, 2002).
2. Grants, special privileges or concessions
granted by the government or any subdivision, REVIEW OF FINAL ORDERS, RESOLUTIONS &
agency or instrumentality thereof, including DECISIONS
any GOCC or its subsidiary (1987 Constitution,
Art. IX-C, Sec. 4). RENDERED IN THE EXERCISE OF QUASI-
JUDICIAL FUNCTION
Instances when COMELEC can exercise its
constitutional powers and functions SCs jurisdiction over decisions of the
Commissions
1. During election period 90 days before the
day of the election and 30 days thereafter. In 1. COA: Judgments or final orders of the
special cases, COMELEC can fix a period. Commission on Audit may be brought by an
2. Applies not only to elections but also to aggrieved party to the Supreme Court on
plebiscites and referenda. certiorari under Rule 65. Only when COA acts
without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or
excess of jurisdiction, may the SC entertain a
petition for certiorari under Rule 65.

2. CSC: In the case of decisions of the CSC, Certiorari jurisdiction of the SC over these
Administrative Circular 1-95538 which took Commissions
effect on June 1, 1995, provides that final
resolutions of the CSC shall be appealable by Proceedings are limited to issues involving grave
certiorari to the CA within 15 days from abuse of discretion resulting in lack or excess of
receipt of a copy thereof. From the decision of jurisdiction and do not ordinarily empower the
the CA, the party adversely affected thereby Court to review the factual findings of the
shall file a petition for review on certiorari Commissions (Aratuc, et al., v. COMELEC, et al., G.R.
under Rule 45 of the Rules of Court. No. L-49705-09, February 8, 1979).
3. COMELEC: Only decisions of COMELEC en banc
may be brought to the Court by certiorari since
Art. IX-C provides that motions for
reconsideration of decisions shall be decided
by the Commission en banc (Reyes v. Mindoro,
et al., G.R. No. 108886, May 5, 1995).
Procedural requisite before certiorari to the

Supreme Court may be availed of
Sec. 1 of Rule 65 provides that certiorari may be

resorted to when there is no other plain or speedy
and adequate remedy. But reconsideration is a
speedy and adequate remedy. Hence, a case may be
brought to the Supreme Court only after
reconsideration.
Rule on appeals
1. Decisions, orders or rulings of the

COMELEC/COA may be brought on certiorari
to the SC under Rule 65.
2. Decisions, orders or rulings of the CSC should
be appealed to the CA under Rule 43.
RENDERED IN THE EXERCISE OF

ADMINISTRATIVE FUNCTION
Power of the CSC to hear and decide

administrative cases
Under the Administrative Code of 1987, the CSC has

the power to hear and decide administrative cases
instituted before it directly or on appeal, including
contested appointments.
Body which has the jurisdiction on personnel

actions, covered by the civil service
CSC. It is the intent of the Civil Service Law, in

requiring the establishment of a grievance
procedure, that decisions of lower officials (in
cases involving personnel actions) be appealed to
the agency head, then to the CSC. The RTC does not
have jurisdiction over personnel actions (Olanda v.
Bugayong, et al., G.R. No. 140917, October 10, 2003).

2015GOLDEN NOTES
BILL OF RIGHTS
BILL OF RIGHTS Compens Intangible

ation altruistic
FUNDAMENTAL POWERS OF THE STATE feeling Fair
that one market
Protection
Fundamental powers of the State has value of
and public
contribut the
improvemen
1. Police Power ed to the property
ts
2. Power of Eminent Domain public expropriat
3. Power of Taxation good/gen ed
eral
Similarities among the fundamental powers of welfare
the State
Q: Who exercises the fundamental powers of
1. They are inherent in the State and may be the state?
exercised by it without need of express
constitutional grant. A: GR: The inherent powers are to be exercised by
2. They are not only necessary but also the legislature
indispensable. The State cannot continue or be
effective unless it is able to exercise them. XPN: These powers may be delegated to:
3. They are methods by which the State a. President
interferes with private rights. b. Administrative Agencies
4. They all presuppose an equivalent c. Local Government Units
compensation for the private rights interfered d. Quasi-Public Corporation (actually private
with. corporations but perform a public function
5. They are exercised primarily by the legislature. or render public service. ex. Meralco).
Common limitations on these powers NOTE: ONLY Eminent Domain may be delegated to
quasi-public corporations
1. May not be exercised arbitrarily to the
prejudice of the Bill of Rights Q: Do local government units have inherent
2. Subject at all times to the limitations and powers?
requirements of the Constitution and may in
proper cases be annulled by the courts, i.e. A: None. Because they are mere creatures of
when there is grave abuse of discretion. Congress. Whatever powers they have are implied
from their delegated powers. Police Power and
Police Power v. Taxation v. Eminent Domain Eminent Domain may be delegated to LGU and the
delegation may be found in their respective charter
BASIS POLICE EMINENT (Batangas CATV, Inc. vs. CA, G.R. No. 138810,
TAXATION September 29, 2004).
POWER DOMAIN
Extent of Regulates Affects only property
power liberty rights NOTE: With respect to Taxation, it is the
and Constitution itself which delegated this power to
property LGUs. The delegation is found in Sec. 5, Art. 10.
Power Exercised only by the Maybe
exercised government exercised General Welfare Clause the delegation of the
by whom by private Police Power to the LGU (Sec. 16, RA 7160 or the
entities Local Government Code of 1991).
Nature of Property Property is wholesome
the is noxious POLICE POWER
property or
taken intended Police Power
for a
noxious Police power is the power of the state to promote
purpose public welfare by restraining and regulating the
Purpose Property Property is taken for use of liberty and property. It is the most
as to taken is public use pervasive, the least limitable, and the most
property destroyed demanding of the three fundamental powers of the
taken State. The justification is found in the Latin maxims
salus populi est suprema lex (the welfare of the

people is the supreme law) and sic utere tuo ut Q: Can the courts interfere with the exercise of
alienum non laedas (so use your property as not to police power?
injure the property of others). As an inherent
attribute of sovereignty which virtually extends to A: NO. If the legislature decides to act, the choice of
all public needs, police power grants a wide measures or remedies lies within its exclusive
panoply of instruments through which the State, as discretion, as long as the requisites for a valid
parens patriae, gives effect to a host of its exercise of police power have been complied with.
regulatory powers. We have held that the power to
regulate means the power to protect, foster, Requisites for a valid exercise of police power
promote, preserve, and control, with due regard for
the interests, first and foremost, of the public, then 1. Lawful subject The interests of the public
of the utility of its patrons (Gerochi v. Department generally, as distinguished from those of a
of Energy, G. R. 159796, July 17, 2007). particular class, require the exercise of the
police power
Police power rests upon public necessity and upon 2. Lawful means The means employed are
the right of the State and of the public to self- reasonably necessary for the accomplishment
protection. For this reason, its scope expands and of the purpose and not unduly oppressive
contracts with the changing needs (Churchill v. upon individuals (NTC v. Philippine Veterans
Rafferty, 32 Phil. 580, 602-603, 1915). Bank, 192 SCRA 257).
Generally, police power extends to all the great Q: Hotel and motel operators in Manila sought
public needs. Its particular aspects, however, are to declare Ordinance 4670 as unconstitutional
the following: for being unreasonable, thus violative of the
1. Public health due process clause. The Ordinance requires the
2. Public morals clients of hotels, motels and lodging house to
3. Public safety fill out a prescribed form in a lobby, open to
4. Public welfare public view and in the presence of the owner,
manager or duly authorized representative of
Q: Can the MMDA exercise police power? such hotel, motel or lodging house. The same
law provides that the premises and facilities of
A: NO. The MMDAs powers are limited to the such hotels, motels and lodging houses would
formulation, coordination, regulation, be open for inspection either by the City Mayor,
implementation, preparation, management, or the Chief of Police, or their duly authorized
monitoring, setting of policies, installing a system, representatives. It increased their annual
and administration. Nothing in RA No. 7924 license fees as well. Is the ordinance
granted the MMDA police power, let alone constitutional?
legislative power (MMDA v. Trackworks GR. No.
179554, December 16, 2009). A: YES. The mantle of protection associated with
the due process guaranty does not cover the hotel
Requisites for the valid exercise of police and motel operators. This particular manifestation
power by the delegate of a police power measure being specifically aimed
to safeguard public morals is immune from such
1. Express grant by law imputation of nullity resting purely on conjecture
2. Must not be contrary to law and unsupported by anything of substance. To hold
3. GR: Within territorial limits of LGUs otherwise would be to unduly restrict and narrow
the scope of police power which has been properly
XPN: When exercised to protect water supply characterized as the most essential, insistent and
(Wilson v. City of Mountain Lake Terraces, 417 the least limitable of powers, extending as it does
P.2d 632, 1966). "to all the great public needs." There is no question
that the challenged ordinance was precisely
NOTE: The exercise of police power lies within the enacted to minimize certain practices hurtful to
discretion of the legislative department. The only public morals. The challenged ordinance then
remedy against legislative inaction is a resort to proposes to check the clandestine harboring of
the court of public opinion, a refusal of the transients and guests of these establishments by
electorate to turn to the legislative members who, requiring these transients and guests to fill up a
in their view, have been remiss in the discharge of registration form, prepared for the purpose, in a
their duties. lobby open to public view at all times, and by
introducing several other amendatory provisions
calculated to shatter the privacy that characterizes

2015GOLDEN NOTES
BILL OF RIGHTS
the registration of transients and guests. Moreover,

the increase in the licensed fees was intended to Power of expropriation as exercised by
discourage "establishments of the kind from Congress v. Power of expropriation as exercised
operating for purpose other than legal" and at the by delegates
same time, to increase "the income of the city
government." (Ermita-Malate Hotel and Motel Power of Power of
Operators Association, Inc. v. City Mayor of Manila, expropriation expropriation
G.R. No. L-24693, July 31, 1967). as exercised as exercised
by Congress by delegates
Q: Are rates to be charged by utilities like The power is It can only be
MERALCO subject to State regulation? pervasive and broad as the
all- enabling law
A: YES. The regulation of rates to be charged by
encompassing and the
public utilities is founded upon the police powers
conferring
of the State and statutes prescribing rules for the
It can reach authorities
control and regulation of public utilities are a valid
every form of want it to be.
exercise thereof. When private property is used for
property
a public purpose and is affected with public
which may be
interest, it ceases to be juris privati only and
needed by the
becomes subject to regulation. The regulation is to
State for public
promote the common good. Submission to
use. In fact, it
regulation may be withdrawn by the owner by
can reach even
discontinuing use; but as long as use of the Scope
private
property is continued, the same is subject to public
property
regulation.
already
In regulating rates charged by public utilities, dedicated to
the State protects the public against arbitrary and public use, or
excessive rates while maintaining the efficiency even property
and quality of services rendered. However, the already
power to regulate rates does not give the State the devoted to
right to prescribe rates which are so low as to religious
deprive the public utility of a reasonable return on worship
investment (Republic of the Philippines vs. Manila (Barlin v.
Electric Company, G.R. No. 141314. November 15, Ramirez, 7 Phil.
2002). 41).
Political Judicial
EMINENT DOMAIN question question (The
courts can
Power of eminent domain determine
whether there
Power of the state to forcibly acquire the needed Question of
is genuine
property in order to devote it to the intended necessity
necessity for
public use, upon payment of just compensation. its exercise, as
well as the
Conditions for the exercise of the Power of value of the
Eminent Domain property).
1. Taking of private property Requisites for a valid taking

2. For public use
3. Just compensation 1. The expropriator must enter a private
4. Observance of due process property
2. Entry must be for more than a momentary
NOTE: There must be a valid offer to buy the period
property and refusal of said offer. 3. Entry must be under warrant or color of legal
authority
4. Property must be devoted to public use or
otherwise informally appropriated or
injuriously affected

5. Utilization of property must be in such a way eminent domain or pursue expropriation

as to oust the owner and deprive him of proceedings over a particular private property.
beneficial enjoyment of the property (Republic 2. The power of eminent domain is exercised for
v. vda. De Castellvi, G.R. No. L-20620, Aug. 15, public use, purpose or welfare, or for the
1974). benefit of the poor and the landless.
3. There is payment of just compensation.
Nature of property taken 4. A valid and definite offer has been previously
made to the owner of the property sought to
GR: All private property capable of ownership, be expropriated, but said offer was not
including services, can be taken. accepted (Municipality of Paranaque vs. V.M.
Realty Corp., 292 SCRA 678, July 20, 1998).
XPN:
a. Money EXPANSIVE CONCEPT OF PUBLIC USE
b. Choses in action - personal right not
reduced in possession but recoverable by a Expansive concept of Public Use
suit at law such as right to receive, demand
or recover debt, demand or damages on a Public use does not necessarily mean use by the
cause of action ex contractu or for a tort or public at large. Whatever may be beneficially
omission of duty employed for the general welfare satisfies the
requirement. Moreover, that only few people
NOTE: A chose in action is a property right benefit from the expropriation does not diminish
in something intangible, or which is not in its public-use character because the notion of
ones possession but enforceable through public use now includes the broader notion of
legal or court action. Ex. cash, a right of indirect public benefit or advantage (Manosca v. CA,
action in tort or breach of contract, an G.R. 166440, Jan. 29, 1996).
entitlement to cash refund, checks, money,
salaries, insurance claims. Concept of Vicarious Benefit
Eminent Domain v. Destruction from necessity Abandons the traditional concept (number of
actual beneficiaries determines public purpose).
BASIS EMINENT DESTRUCTION Public use now includes the broader notion of
DOMAIN FROM indirect public advantage, i.e. conversion of a slum
NECESSITY area into a model housing community, urban land
Only authorized May be validly reform and housing. There is a vicarious advantage
Who can public entities undertaken by to the society (Filstream International Incorporated
exercise or public private vs. CA, 284 SCRA 716, January 23, 1998).
officials individuals
Public right Right of self- Q: The National Historical Institute declared
defense, self- the parcel of land owned by petitioners as a
preservation, national historical landmark, because it was
Kind of right
whether applied the site of the birth of Felix Manalo, the founder
to persons or to of Iglesia ni Cristo. The Republic filed an action
property to expropriate the land. Petitioners argued that
Conversion of No need for the expropriation was not for a public purpose.
property taken conversion; no Is this correct?
for public use; just
payment of just compensation A: Public use should not be restricted to the
Requirement traditional uses. The taking is for a public use
compensation but payment in
the form of because of the contribution of Felix Manalo to the
damages when culture and history of the Philippines (Manosca v.
applicable CA, G.R. No. 106440, Jan. 29, 1996).
Beneficiary State/public Private
JUST COMPENSATION
Requisites before an LGU can exercise Eminent
Domain Just compensation
1. An ordinance is enacted by the local legislative It is the full and fair equivalent of the property
council authorizing the local chief executive, in taken from the private owner (owners loss) by the
behalf of the LGU, to exercise the power of expropriator. It is usually the fair market value

2015GOLDEN NOTES
BILL OF RIGHTS
(FMV) of the property and must include disregarded altogether as the basic value of the
consequential damages (damages to the other property should be paid in every case (Rule 67,
interest of the owner attributed to the Section 6, Rules of Court).
expropriation) minus consequential benefits
(increase in the value of other interests attributed Form of payment
to new use of the former property).
GR: Compensation has to be paid in money.
Fair Market Value
XPN: In cases involving CARP, compensation may
The price that may be agreed upon by parties who be in bonds or stocks, for it has been held as a non-
are willing but are not compelled to enter into a traditional exercise of the power of eminent
contract of sale (City of Manila vs. Estrada, G.R. No. domain. It is not an ordinary expropriation where
7749, September 9, 1913). only a specific property of relatively limited area is
sought to be taken by the State from its owner for a
Formula for Just Compensation specific and perhaps local purpose. It is rather a
revolutionary kind of expropriation (Association of
Just Compensation = actual/basic value of the Small Landowners in the Philippines, Inc. v.
property Secretary of Agrarian Reform, G.R. No. 78742, 14
+ consequential damages July 1989).
- consequential benefits
(which should not exceed NOTE: The owner is entitled to the payment of
the consequential damages) interest from the time of taking until just
compensation is actually paid to him. Taxes paid by
Period to determine just compensation him from the time of the taking until the transfer of
title (which can only be done after actual payment
GR: Reckoning point is determined at the date of of just compensation), during which he did not
the filing of the complaint for eminent domain. enjoy any beneficial use of the property, are
reimbursable by the expropriator.
XPN:
Where the filing of the complaint occurs after the An interest of 12% per annum on the just
actual taking of the property and the owner would compensation due the landowner should be used
be given undue incremental advantages arising in computing interest (LBP v. Wycoco G.R. No.
from the use to which the government devotes the 140160, January 13, 2004).
property expropriated, just compensation is
determined as of the date of the taking (National DETERMINATION
Power Corporation vs. CA, G.R. No. 113194, March
11, 1996). The Regional Trial Court determines the amount of
just compensation. A trial is indispensable to give
Consequential Damages the parties the opportunity to present evidence on
the issue of just compensation (Manila Electric Co.
Consist of injuries directly caused on the residue of v. Pineda, 206 SCRA 196).
the private property taken by reason of
expropriation (Cruz, Constitutional Law, 2007 ed., p. The value of the property must be determined
78-79). either at the time of taking or filing of the
complaint, whichever comes first (EPZA v. Dulay,
Consequential Benefits G.R. No. 59603, April 29, 1987).
If the remainder is as a result of the expropriation In cases where a property is not wholly
placed in a better location, such as fronting a street expropriated, the consequential damages of the
where it used to be an interior lot, the owner will remaining property shall be added in the fair
enjoy consequential benefits which should be market value, minus the consequential benefits,
deducted from the consequential damages (Cruz, but in no case will the consequential benefits
Constitutional Law, 2007 ed., p. 79). exceed the consequential damages (Sec. 6, Rule 67,
Rules of Court).
Q: What if the consequential benefits exceed
the consequential damages? EFFECT OF DELAY
A: If the consequential benefits exceed the GR: Non-payment by the government does not
consequential damages, these items should be entitle private owners to recover possession of the

property because expropriation is an in rem the decision in the pertinent expropriation

proceeding, not an ordinary sale, but only entitle proceedings did not provide for the condition
them to demand payment of the fair market value that should the intended use of the land for the
of the property. expansion of the Lahug Airport be aborted or
abandoned, the property would revert to
XPNs: respondents, being its former owners. Do the
1. When there is deliberate refusal to pay just former owners have the right to redeem the
compensation property?
2. Governments failure to pay compensation
within 5 years from the finality of the A: YES. It is well settled that the taking of private
judgment in the expropriation proceedings. property by the Governments power of eminent
This is in connection with the principle that the domain is subject to two mandatory requirements:
government cannot keep the property and (1) that it is for a particular public purpose; and (2)
dishonor the judgment (Republic v. Lim, G.R. that just compensation be paid to the property
No. 161656, June 29, 2005). owner. These requirements partake of the nature
of implied conditions that should be complied with
ABANDONMENT OF INTENDED USE AND RIGHT to enable the condemnor to keep the property
OF REPURCHASE expropriated.
Q: Several parcels of lands located in Lahug, More particularly, with respect to the element of
Cebu City were the subject of expropriation public use, the expropriator should commit to use
proceedings filed by the Government for the the property pursuant to the purpose stated in the
expansion and improvement of the Lahug petition for expropriation filed, failing which, it
Airport. The RTC rendered judgment in favor of should file another petition for the new purpose. If
the Government and ordered the latter to pay not, it is then incumbent upon the expropriator to
the landowners the fair market value of the return the said property to its private owner, if the
land. The landowners received the payment. latter desires to reacquire the same. Otherwise, the
judgment of expropriation suffers an intrinsic flaw,
The other dissatisfied landowners as it would lack one indispensable element for the
appealed. Pending appeal, the Air proper exercise of the power of eminent domain,
Transportation Office (ATO), proposed a namely, the particular public purpose for which the
compromise settlement whereby the owners of property will be devoted. Accordingly, the private
the lots affected by the expropriation property owner would be denied due process of
proceedings would either not appeal or law, and the judgment would violate the property
withdraw their respective appeals in owners right to justice, fairness, and equity.
consideration of a commitment that the
expropriated lots would be resold at the price In light of these premises, the Court now expressly
they were expropriated in the event that the holds that the taking of private property,
ATO would abandon the Lahug Airport, consequent to the Governments exercise of its
pursuant to an established policy involving power of eminent domain, is always subject to the
similar cases. Because of this promise, the condition that the property be devoted to the
landowners did not pursue their specific public purpose for which it was
appeal. Thereafter, the lot was transferred and taken. Corollary, if this particular purpose or
registered in the name of the Government. The intent is not initiated or not at all pursued, and is
projected improvement and expansion plan of peremptorily abandoned, then the former owners,
the old Lahug Airport, however, was not if they so desire, may seek the reversion of the
pursued. From the date of the institution of the property, subject to the return of the amount of
expropriation proceedings up to the present, just compensation received. In such a case, the
the public purpose of the said expropriation exercise of the power of eminent domain has
(expansion of the airport) was never actually become improper for lack of the required factual
initiated, realized, or implemented. justification (Mactan-Cebu International Airport
Authority and Air Transportation Office v. Lozada,
Thus, the landowners initiated a complaint for et. al, G.R. No. 176625, Feb. 25, 2010).
the recovery of possession and reconveyance of
ownership of the lands based on the
compromised agreement they entered into
with the ATO. On the other hand, the
Government anchor their claim to the
controverted property on the supposition that

2015GOLDEN NOTES
BILL OF RIGHTS
MISCELLANEOUS APPLICATION them. Since a franchise is a mere privilege, the

exercise of the privilege may reasonably be
Q: The Philippine Press Institute, Inc. ("PPI") burdened with the performance by the grantee of
assails the validity of Resolution No. 2772 some form of public service (Telecommunications
issued Comelec wherein Comelec shall procure and Broadcast Attorneys of the Philippines vs.
free print space in at least one newspaper of COMELEC, G.R. No. 132922, April 21, 1998).
general circulation, any magazine or periodical
in every province or city for use as "Comelec Q: What are the differences between the cases
Space" from March 6, 1995 in the case of of PPI vs. COMELEC and TELEBAP vs. COMELEC?
candidates. Is the resolution valid?
A:
A: NO. The taking of private property for public use PPI v. COMELEC TELEBAP v. COMELEC
is authorized by the Constitution, but not without Invalid; there is taking There is no taking of
payment of just compensation (Article III, Section of property without just public property because
9). And apparently the necessity of paying compensation radio networks do not
compensation for "Comelec space" is precisely own the airwaves
what is sought to be avoided by the Commission. Print media incurred Broadcast media does
There is nothing at all to prevent newspaper and expenses for the use of not incur expenses for
magazine publishers from voluntarily giving free papers using the airwaves
print space to Comelec for the purposes Print media is limited in Broadcast media is very
contemplated in Resolution No. 2772. Section 2 of scope pervasive
Resolution No. 2772 does not, however, provide a
constitutional basis for compelling publishers, Q: An ordinance of Quezon City requires
against their will to provide free print space for memorial park operators to set aside at least
Comelec purposes. Section 2 does not constitute a 6% of their cemetery for charity burial of
valid exercise of the power of eminent domain deceased persons who are paupers and
(Philippine Press Institute vs. COMELEC, G.R. No. residents of Quezon City. The same ordinance
119694, May 22, 1995). also imposes fine or imprisonment and
revocation of permit to operate in case of
Q: Sec. 92 of the Omnibus Election Code violation. Is this a valid exercise of police
provides that the Comelec shall procure radio power?
and television time to be known as Comelec
Time which shall be allocated equally and A: No. It constitutes taking of property without
impartially among the candidates within the just compensation. The power to regulate does not
area of coverage of all radio and television include the power to prohibit. The power to
stations. Thus, the franchise of all radio regulate does not include the power to confiscate.
broadcasting and television stations are hereby The ordinance in question not only confiscates but
amended so as to provide radio or television also prohibits the operation of a memorial park
time, free of charge, during the period of the cemetery, because under Sec. 13 of said ordinance,
campaign. Is Sec. 92 of BP 881 valid? 'Violation of the provision thereof is punishable
with a fine and/or imprisonment and that upon
A: YES. All broadcasting, whether by radio or by conviction thereof the permit to operate and
television stations, is licensed by the government. maintain a private cemetery shall be revoked or
Airwave frequencies have to be allocated as there cancelled. The confiscatory clause and the penal
are more individuals who want to broadcast than provision in effect deter one from operating a
there are frequencies to assign. A franchise is thus memorial park cemetery. Moreover, instead of
a privilege subject, among other things, to building or maintaining a public cemetery for this
amendment by Congress in accordance with the purpose, the city passes the burden to private
constitutional provision that any such franchise or cemeteries. (City Government of Quezon City
right granted shall be subject to amendment, v. Ericta, G.R. No. L-34915, Jun. 24, 1983).
alteration or repeal by the Congress when the
common good so requires. Q: NPC negotiated with Maria for an easement
of right of way over her property. NPC contends
that they shall only pay easement fee, not just
Radio and television broadcasting companies,
compensation. Is a right of way easement
which are given franchises, do not own the
subject to expropriation?
airwaves and frequencies through which they
transmit broadcast signals and images. They are
merely given the temporary privilege of using

A: YES. There can be expropriation in the right of solely for the purpose of raising revenues, the
way easement. Expropriation is not limited to the modern view is that it cannot be allowed to
acquisition of real property with a corresponding confiscate or destroy. If this is sought to be done,
transfer of title or possession the right of way the tax may be successfully attacked as an
easement resulting in a restriction of limitation on inordinate and unconstitutional exercise of the
property right over the land traversed by discretion that is usually vested exclusively in the
transmission lines also falls within the ambit of the legislature in ascertaining the amount of tax. (See:
term expropriation (NPC v. Maria Mendoza San Roxas vs. Court of Tax Appeals, L-25043, April 26,
Pedro, G.R. No. 170945 Sept. 26, 2006). 1968).
Q: Causby sued the United States for Payment of taxes is an obligation based on law, and
trespassing on his land, complaining not on contract. It is a duty imposed upon the
specifically about how low-flying military individual by the mere fact of his membership in
planes caused his chickens to jump up against the body politic and his enjoyment of the benefits
the side of the chicken house and the walls and available from such membership.
burst themselves open and die. Are they
entitled to compensation by reason of taking NOTE: Except only in the case of poll (community)
clause? taxes, non-payment of a tax may be the subject of
criminal prosecution and punishment. The accused
A: YES. There is taking by reason of the frequency cannot invoke the prohibition against
and altitude of the flights. Flights of aircraft over imprisonment for debt as taxes are not considered
private land which are so low and frequent as to be debts.
a direct and immediate interference with the
enjoyment and use of the land are as much an Scope of legislative discretion I the exercise of
appropriation of the use of the land as a more taxation
conventional entry upon it. If the flights over
Causby's property rendered it uninhabitable, there 1. Whether to tax in the first place
would be a taking compensable under the Fifth 2. Whom or what to tax
Amendment. It is the owner's loss, not the taker's 3. For what public purpose
gain, which is the measure of the value of the 4. Amount or rate of the tax
property taken. Moreover, Causby could not use his
land for any purpose (US v. Causby, 328 U.S. 256, General Limitations on the power of taxation
1946).
A. Inherent limitations
TAXATION
1. Public purpose
Taxes are 2. Non-delegability of power
3. Territoriality or situs of taxation
1. Enforced proportional contributions from 4. Exemption of government from taxation
persons and property 5. International comity
2. Levied by the State by virtue of its sovereignty
3. For the support of the government B. Constitutional limitations
4. For public needs
1. Due process of law (Art. III, Sec.1)
Taxation 2. Equal protection clause (Art. III, Sec.1)
3. Uniformity, equitability and progressive
Process by which the government, through its system of taxation (Art. VI, Sec 28)
legislative branch, imposes and collects revenues 4. Non-impairment of contracts (Art. III, Sec.
to defray the necessary expenses of the 10)
government, and to be able to carry out, in 5. Non-imprisonment for non-payment of
particular, any and all projects that are supposed to poll tax (Art. III, Sec. 20)
be for the common good. Simply put, taxation is the 6. Revenue and tariff bills must originate in
method by which these contributions are exacted. the House of Representatives (Art IV, Sec.
24)
The power to tax includes the power to destroy 7. Non-infringement of religious freedom
only if it is used as a valid implement of the police (Art. III, Sec.4)
power in discouraging and in effect, ultimately 8. Delegation of legislative authority to the
prohibiting certain things or enterprises inimical to President to fix tariff rates, import and
public welfare. But where the power to tax is used export quotas, tonnage and wharfage dues

2015GOLDEN NOTES
BILL OF RIGHTS
9. Tax exemption of properties actually, 2. Exemption is granted for valuable

directly and exclusively used for religious, consideration (non-impairment of contracts)
charitable and educational purposes irrevocable
(NIRC, Sec 30)
10. Majority vote of all the members of Construction of tax laws
Congress required in case of legislative
grant of tax exemptions In case of doubt, tax statutes are to be construed
11. Non-impairment of SCs jurisdiction in tax strictly against the Government and liberally in
cases favor of the taxpayer, for taxes, being burdens, are
12. Tax exemption of revenues and assets of, not to be presumed beyond what the applicable
including grants, endowments, donations statute expressly and clearly declares (Commission
or contributions to educational of Internal Revenue vs. La Tondena, Inc. and CTA, 5
institutions (Sec. 28 [3], Art. VI of the 1987 SCRA 665).
Constitution).
Construction of laws granting tax exemptions
Q: Should there be notice and hearing for the
enactment of tax laws? It must be strictly construed against the taxpayer,
because the law frowns on exemption from
A: It depends. From the procedural viewpoint, due taxation; hence, an exempting provision should be
process does not require previous notice and construed strictissimi juris (Acting Commissioner of
hearing before a law prescribing fixed or specific Customs vs. Manila Electric Company, G.R. No. L-
taxes on certain articles may be enacted. But where 23623, June 30, 1977).
the tax to be collected is to be based on the value of
taxable property, the taxpayer is entitled to be Tax v. License fee
notified of the assessment proceedings and to be
heard therein on the correct valuation to be given TAX LICENSE FEE
the property. Levied in exercise of Imposed in the exercise
the taxing power of the police power of
Uniformity in taxation the state
The purpose of the tax License fees are imposed
Refers to geographical uniformity, meaning it is to generate for regulatory purposes
operates with the same force and effect in every revenues which means that it
place where the subject of it is found. must only be of
sufficient amount to
Progressive system of taxation include expenses in
issuing a license; cost of
Means that the tax rate increases as the tax base necessary inspection or
increases. police surveillance, etc.
Its primary purpose is Regulation is the
Double taxation occurs when: to generate revenue, primary purpose. The
and regulation is fact that incidental
1. Taxes are laid on the same subject merely incidental revenue is also obtained
2. By the same authority does not make the
3. During the same taxing period imposition a tax
4. For the same purpose
NOTE: Ordinarily, license fees are in the nature of
NOTE: There is no provision in the Constitution the exercise of police power because they are in the
specifically prohibiting double taxation, but it will form of regulation by the State and considered as a
not be allowed if it violates the equal protection manner of paying off administration costs.
clause. However, if the license fee is higher than the cost of
regulating, then it becomes a form of taxation
Tax exemptions may either be (Ermita-Malate Hotel and Motel Operators Assoc.,
Inc. v. City Mayor of Manila, G.R. No. L-24693, Oct.
1. Constitutional; or 23, 1967).
2. Statutory
Q: Can taxes be subject to off-setting or
Revocability of tax exemptions compensation?
1. Exemption is granted gratuitously revocable

A: NO. Taxes cannot be subject to compensation for 3. It shall be enforced according to the regular
the simple reason that the government and the methods of procedure prescribed; and
taxpayer are not creditors and debtors of each 4. It shall be applicable alike to all citizens of the
other. There is a material distinction between a tax State or to all of a class (People v. Cayat, G.R. No.
and debt. Debts are due to the Government in its L-45987, May 5, 1939).
corporate capacity, while taxes are due to the
Government in its sovereign capacity. It must be Kinds of due process
noted that a distinguishing feature of tax is that it is
compulsory rather than a matter of bargain. Hence, 1. Procedural Due Process
a tax does not depend upon the consent of the 2. Substantive Due Process
taxpayer (Philex Mining Corp. vs. CIR, 294 SCRA 687,
Aug. 28, 1998). RELATIVITY OF DUE PROCESS
PRIVATE ACTS AND THE BILL OF RIGHTS Relativity of due process
Bill of Rights Arises when the definition of due process has been
left to the best judgment of our judiciary
Set of prescriptions setting forth the fundamental considering the peculiarity and the circumstances
civil and political rights of the individual, and of each case. In a litany of cases that have been
imposing limitations on the powers of government decided in this jurisdiction, the common
as a means of securing the enjoyment of those requirement to be able to conform to due process
rights. is fair play, respect for justice and respect for the
better rights of others. In accordance with the
In the absence of governmental interference, the standards of due process, any court at any
liberties guaranteed by the Constitution cannot be particular time, will be well guided, instead of
invoked against the State. The Bill of Rights being merely confined strictly to a precise
guarantee governs the relationship between the definition which may or may not apply in every
individual and the State. Its concern is not the case.
relation between private individuals. What it does
is to declare some forbidden zones in the private Due process in judicial proceedings
sphere inaccessible to any power holder (People v.
Marti, G.R. No. 81561, Jan. 18, 1991). Whether in civil or criminal judicial proceedings,
due process requires that there be:
Bill of Rights cannot be invoked against private
individuals. In the absence of governmental 1. An impartial and disinterested court clothed
interference, the liberties guaranteed by the by law with authority to hear and determine
Constitution cannot be invoked. Put differently, the the matter before it.
Bill of Rights is not meant to be invoked against
acts of private individuals (Yrasegui v. PAL, G.R. No. NOTE: The test of impartiality is whether the
168081, Oct. 17, 2008). judges intervention tends to prevent the
proper presentation of the case or the
NOTE: However, where the husband invoked his ascertainment of the truth.
right to privacy of communication and
correspondence against a private individual, his 2. Jurisdiction lawfully acquired over the
wife, who had forcibly taken from his cabinet and defendant or the property which is the subject
presented as evidence against him documents and matter of the proceeding
private correspondence, the Supreme Court held 3. Notice and opportunity to be heard be given to
these papers inadmissible in evidence, upholding the defendant
the husbands right to privacy (Zulueta v. CA, G.R. 4. Judgment to be rendered after lawful hearing,
No. 107383, Feb. 20 1996). clearly explained as to the factual and legal
bases (Art. VII, Sec. 14, 1987 Constitution).
DUE PROCESS
Requisites of due process in administrative
Due process means that: proceedings
1. There shall be a law prescribed in harmony 1. The right to hearing which includes the right to
with the general powers of the legislature; present ones case and submit evidence to
2. It shall be reasonable in its operation; support thereof.

2015GOLDEN NOTES
BILL OF RIGHTS
2. Tribunal or body or any of its judges must act 1. Written notification sent to the student/s
on its own independent consideration of the informing the nature and cause of any
law and facts of the controversy. accusation against him/her;
3. Tribunal must consider the evidence 2. Opportunity to answer the charges, with the
presented. assistance of a counsel, if so desired;
4. Evidence must be substantial, which means 3. Presentation of ones evidence and
relevant evidence as a reasonable man might examination of adverse evidence;
accept as adequate to support a conclusion. 4. Evidence must be duly considered by the
5. The decision must have something to support investigating committee or official designated
itself. by the school authorities to hear and decide
6. Decision must be based on evidence presented the case (Guzman v. National University, G.R.
during hearing or at least contained in the No. L-68288, July 11, 1986).
record and disclosed by the parties. 5. The penalty imposed must be proportionate to
7. Decision must be rendered in a manner that the offense.
the parties can know the various issues
involved and the reason for the decision Due process in deportation proceedings
rendered (Ang Tibay vs CIR, Gr. No. L-46496,
February 27, 1940). Although deportation proceedings are not criminal
in nature, the consequences can be as serious as
Administrative v. Judicial due process those of a criminal prosecution. The provisions of
the Rules of Court for criminal cases are applicable
BASIS ADMINISTRATIVE JUDICIAL (Lao Gi alias Chia, Jr. v. CA, GR. No. 81789, Dec. 29,
Opportunity to A day in court 1989.).
Essence
explain ones side
Usually through Submission of Instances when hearings are not necessary
seeking a pleadings and
reconsideration of oral arguments 1. When administrative agencies are exercising
Means the ruling or the their quasi-legislative functions
action taken, or 2. Abatement of nuisance per se
appeal to a 3. Granting by courts of provisional remedies
superior authority 4. Cases of preventive suspension
Required when the Both are 5. Removal of temporary employees in the
administrative essential: government service
body is exercising 1. Notice 6. Issuance of warrants of distraint and/or levy
Notice by the BIR Commissioner
quasi-judicial 2. Hearing
and 7. Cancellation of the passport of a person
function (PhilCom-
Hearing charged with a crime
Sat v. Alcuaz, G.R.
No. 84818, Dec. 18, 8. Suspension of a banks operations by the
1989). Monetary Board upon a prima facie finding of
NOTE: See further discussion of Administrative Due liquidity problems in such bank
Process under Administrative Law chapter
Q: Ordinance 6537 of the City of Manila makes
Due Process in academic and disciplinary it unlawful for non- Filipino citizens to be
proceedings employed or to be engaged in any kind of trade,
business or occupation within the City of
Parties are bound by the rules governing academic Manila, without securing an employment
requirements and standards of behavior permit from the Mayor of Manila. Lee Min Ho
prescribed by the educational institutions. Resort sought to enjoin its enforcement. Is the said
to courts is available to parties (Vivares and Suzara ordinance unconstitutional?
vs. St. Theresas College, G.R. No. 202666, September
29, 2014). A: YES. The ordinance is unconstitutional. While it
is true that the Philippines as a State is not obliged
Requisites of student discipline proceedings to admit aliens within its territory, once an alien is
admitted, he cannot be deprived of life without due
Student discipline proceedings may be summary process of law. This guarantee includes the means
and cross-examination is not an essential part of livelihood. The ordinance amounts to a denial of
thereof. However, to be valid, the following the basic right of the people of the Philippines to
requirements must be met: engage in the means of livelihood (Mayor Villegas v.

Hiu Ching Tsai Pao Hao, G.R. No. L-29646, Nov. 10, accordance with procedural formalities but
1978). whether the said law is a proper exercise of
legislative power.
PROCEDURAL AND SUBSTANTIVE DUE
PROCESS Q: The City of Manila enacted Ordinance 7783,
which prohibited the establishment or
Procedural v. Substantive due process operation of business providing certain forms
of amusement, entertainment, services and
SUBSTANTIVE PROCEDURAL facilities where women are used as tools in
DUE PROCESS DUE PROCESS entertainment and which tend to disturb the
This serves as a Serves as a community, among the inhabitants and
restriction on the restriction on adversely affect the social and moral welfare of
governments actions of community. Owners and operators concerned
Purpose law and rule- judicial and were given three months to wind up their
making powers. quasi-judicial operations or to transfer to any place outside
agencies of the the Ermita-Malate area, or convert said
government. business to other kinds of business which are
1. The interests of 1. Impartial allowed. Does the ordinance violate the due
the public in court or process clause?
general, as tribunal
distinguished clothed with A: YES. These lawful establishments may only be
from those of a judicial regulated. They cannot be prohibited from carrying
particular power to hear on their business. This is a sweeping exercise of
class, require and police power, which amounts to interference into
the determine the personal and private rights which the court will not
intervention of matters countenance. There is a clear invasion of personal
the state. before it. or property rights, personal in the case of those
2. The means 2. Jurisdiction individuals desiring of owning, operating and
employed are properly patronizing those motels and property in terms of
reasonably acquired over investments made and the salaries to be paid to
necessary for the person of those who are employed therein. If the City of
the the defendant Manila desired to put an end to prostitution,
Requisites fornication, and other social ills, it can instead
accomplishmen and over
t of the property impose reasonable regulations such as daily
purpose and which is the inspections of the establishments for any violation
not unduly subject of the conditions of their licenses or permits, it may
oppressive matter of the exercise its authority to suspend or revoke their
upon proceeding. licenses for these violations; and it may even
individuals. 3. Opportunity impose increased license fees (City of Manila v.
to be heard. Laguio, Jr. GR. No. 118127, April 12, 2005).
4. Judgment
rendered PROCEDURAL DUE PROCESS
upon lawful
hearing and Procedural due process
based on
evidence Relates to the mode of procedure which
adduced. government agencies must follow in the
enforcement and application of laws.
SUBSTANTIVE DUE PROCESS
The fundamental elements of procedural due
Substantive due process process
It requires the intrinsic validity of the law in 1. Notice (to be meaningful, must be as to time
interfering with the rights of the person to his life, and place)
liberty, or property. If a law is invoked to take away 2. Opportunity to be heard
ones life, liberty or property, the more specific 3. Court/tribunal must have jurisdiction
concern of substantive due process is not to find
out whether said law is being enforced in

2015GOLDEN NOTES
BILL OF RIGHTS
EXTRADITION Q: Does an extraditee have a right of access to

the evidence against him?
Extradition is generally understood as the delivery
of an accused or a convicted individual to the State A: It depends. During the executive phase of an
in whose territory he is alleged to have committed extradition proceeding, an extraditee does not have
a crime by the State on whose territory the alleged the right of access to evidence in the hands of the
criminal or criminal happens to be at the time. government. But during the judicial phase he has
(Secretary v. Judge Lantion, GR. No. 139465, Oct. 17,
NOTE: The legal duty to extradite a fugitive from 2000).
justice is based only on treaty stipulations.
Q: A complaint was filed against respondent
Q: Is a respondent in an extradition proceeding Camille Gonzales, then Chief Librarian, Catalog
entitled to notice and hearing before the Division, of the National Library for dishonesty,
issuance of a warrant of arrest? grave misconduct and conduct prejudicial to
the best interest of the service. The DECS
A: NO. investigating committee was created to inquire
1. On the Basis of the Extradition Law into the charges against Gonzales. Is she
entitled to be informed of the findings and
It is significant to note that Section 6 of PD 1069, recommendations of the investigating
our Extradition Law, uses the word immediate to committee?
qualify the arrest of the accused. This qualification
would be rendered nugatory by setting for hearing A: NO. It must be stressed that the disputed
the issuance of the arrest warrant. Hearing entails investigation report is an internal communication
sending notices to the opposing parties, receiving between the DECS Secretary and the Investigation
facts and arguments from them, and giving them Committee, and it is not generally intended for the
time to prepare and present such facts and perusal of respondent or any other person for that
arguments. Arrest subsequent to a hearing can no matter, except the DECS Secretary. She is entitled
longer be considered immediate. The law could only to the administrative decision based on
not have intended the word as a mere superfluity substantial evidence made of record, and a
but, on the whole, as a means of imparting a sense reasonable opportunity to meet the charges and
of urgency and swiftness in the determination of the evidence presented against her during the
whether a warrant of arrest should be issued. hearings of the investigation committee (Pefianco
v. Moral, GR. No. 132248, January 19, 2000).
By using the phrase if it appears, the law further
conveys that accuracy is not as important as speed Q: Cadet 1CL Cudia was a member of Siklab
at such early stage. The trial court is not expected Diwa Class of 2014 of the PMA. Prof. Berong
to make an exhaustive determination to ferret out issued a Delinquency Report (DR) against Cadet
the true and actual situation, immediately upon the 1CL Cudia because he was late for two minutes
filing of the petition. From the knowledge and the in his class. Cudia reasoned out that: I came
material then available to it, the court is expected directly from OR432 Class. We were dismissed
merely to get a good first impression -- a prima a bit late by our instructor Sir.
facie finding -- sufficient to make a speedy initial
determination as regards the arrest and detention The Company Tactical Officer (CTO) of Cadet
of the accused. 1CL Cudia penalized him with demerits. Cudia
addressed his Request for Reconsideration to
2. On the Basis of the Constitution his Senior Tactical Officer (STO), but the STO
sustained the penalty. The CTO reported him to
Even Section 2 of Article III of our Constitution, the PMA Honors Committee (HC) for violation
which is invoked by Jimenez, does not require a of the Honor Code. When the members of the
notice or a hearing before the issuance of a warrant HC casted their votes through secret balloting,
of arrest. To determine probable cause for the the result was 8-1 in favor of a guilty verdict.
issuance of arrest warrants, the Constitution itself After further deliberation, the Presiding Officer
requires only the examination -- under oath or announced the 9-0 guilty verdict. Cudia
affirmation -- of complainants and the witnesses contested the dismissal as being violative of his
they may produce. There is no requirement to right to due process.
notify and hear the accused before the issuance of
warrants of arrest (U.S. vs. Purganan, G.R. No.
Was the dismissal of Cudia a denial of his right
148571, September 24, 2002).
to due process?

A: NO. Due process in disciplinary cases involving Board/Investigation Body composed of the CRAB
students does not entail proceedings and hearings members and the PMA senior officers was
similar to those prescribed for actions and constituted to conduct a deliberate investigation of
proceedings in courts of justice; that the the case. Finally, he had the opportunity to appeal
proceedings may be summary; that cross- to the President. Sadly for him, all had issued
examination is not an essential part of the unfavorable rulings (Cudia, et.al. vs. The
investigation or hearing; and that the required Superintendent of the Philippine Military Academy,
proof in a student disciplinary action, which is an et. al., G.R. No. 211362, February 24, 2015).
administrative case, is neither proof beyond
reasonable doubt nor preponderance of evidence CONSTITUTIONAL AND STATUTORY DUE
but only substantial evidence or such relevant PROCESS
evidence as a reasonable mind might accept as
adequate to support a conclusion. Constitutional due process v. Statutory due
process
What is crucial is that official action must meet
minimum standards of fairness to the individual, CONSTITUTIONAL STATUTORY DUE
which generally encompass the right of adequate DUE PROCESS PROCESS
notice and a meaningful opportunity to be heard. Protects the individual While found in the
The PMA Honor Code explicitly recognizes that an from the government Labor Code and
administrative proceeding conducted to investigate and assures him of his Implementing Rules, it
a cadets honor violation need not be clothed with rights in criminal, civil protects employees
the attributes of a judicial proceeding. or administrative from being unjustly
proceedings terminated without just
It is not required that procedural due process be cause after notice and
afforded at every stage of developing disciplinary hearing (Agabon v.
action. What is required is that an adequate NLRC, G.R. No. 158693,
hearing be held before the final act of dismissing a November 17, 2004).
cadet from the military academy.
I. For Termination of Employment Based On Just
In this case, the investigation of Cadet 1CL Cudias Causes (Art. 282, Labor Code)
Honor Code violation followed the prescribed
procedure and existing practices in the PMA. He The following standards of due process shall be
was notified of the Honor Report from the CTO. He substantially observed.
was then given the opportunity to explain the
report against him. He was informed about his 1. Written Notice served on the Employee
options and the entire process that the case would Specifying the grounds of termination and
undergo. The preliminary investigation giving to said employee the opportunity
immediately followed after he replied and explain his side within a reasonable period.
submitted a written explanation. Upon its 2. Hearing or conference The employee is given
completion, the investigating team submitted a the opportunity to explain and clarify his
written report together with its recommendation defenses to the charge, present evidence in
to the HC Chairman. The HC thereafter reviewed support of his defenses and rebut evident
the findings and recommendations. When the presented against them. The employee is given
honor case was submitted for formal investigation, the chance to defend himself personally, with
a new team was assigned to conduct the hearing. assistance of a representative or counsel of
During the formal investigation/hearing, he was their choice. The hearing could also be used by
informed of the charge against him and given the the parties to come to an amicable settlement.
right to enter his plea. He had the chance to explain 3. Written Notice of Termination Served on the
his side, confront the witnesses against him, and Employee Indicating that upon due
present evidence in his behalf. After a thorough consideration of the circumstances, grounds
discussion of the HC voting members, he was found have been established to justify his
to have violated the Honor Code. Thereafter, the termination. In case of termination, the
guilty verdict underwent the review process at the foregoing notices shall be served on the
Academy level. A separate investigation was also employees last address (King of Kings
conducted. Then, upon the directive of the AFP- Transport v. Mamac, G.R. No. 166208, June 29,
GHQ to reinvestigate the case, a review was 2007).
conducted by the Cadet Review and Appeals Board
(CRAB). Further, a Fact-Finding

2015GOLDEN NOTES
BILL OF RIGHTS
II. If the dismissal is based on authorized causes convincing and irrefutable (Adiong vs. COMELEC,
under Arts. 283 and 284 G.R. No. 103956, March 31, 1992).
The employer must give the employee and the The freedom of expression is a "preferred" right
Department of Labor and Employment written and, therefore, stands on a higher level than
notices 30 days prior to the effectivity of his substantive economic or other liberties. The
separation. primacy, the high estate accorded freedom of
expression is a fundamental postulate of our
Effect when due process is not observed constitutional system (Gonzales v. Commission on
Elections, G.R. No. L-27833, April 18, 1969).
The cardinal precept is that where there is a
violation of basic constitutional rights, courts are The constitutional right to the free exercise of one's
ousted from their jurisdiction. The violation of a religion has primacy and preference over union
party's right to due process raises a serious security measures which are merely contractual
jurisdictional issue which cannot be glossed over (Victoriano vs. Elizalde Rope Workers Union, G.R.
or disregarded at will. Where the denial of the No. L-25246, September 12, 1974).
fundamental right to due process is apparent, a
decision rendered in disregard of that right is void
for lack of jurisdiction. This rule is equally true in JUDICIAL STANDARDS OF REVIEW
quasi-judicial and administrative proceedings, for
the constitutional guarantee that no man shall be 1. Deferential review Laws are upheld if they
deprived of life, liberty, or property without due rationally further a legitimate governmental
process is unqualified by the type of proceedings interest, without courts seriously inquiring
(whether judicial or administrative) where he into the substantiality of such interest and
stands to lose the same (Garcia vs. Molina and examining the alternative means by which the
Velasco, G.R. Nos. 157383 and 174137, August 10, objectives could be achieved
2010). 2. Intermediate review The substantiality of the
governmental interest is seriously looked into
Effect of Waiver/Estoppel and the availability of less restrictive
alternatives is considered.
Due process is satisfied when the parties are 3. Strict scrutiny The focus is on the presence of
afforded a fair and reasonable opportunity to compelling, rather than substantial
explain their respective sides of the governmental interest and on the absence of
controversy. Thus, when the party seeking due less restrictive means for achieving that
process was in fact given several opportunities to interest (Separate opinion of Justice Mendoza in
be heard and air his side, but it is by his own fault Estrada v. Sandiganbayan, G.R. No. 148965, Feb.
or choice he squanders these chances, then his cry 26, 2002).
for due process must fail.
NOTE: Given the fact that not all rights and
HIERARCHY OF RIGHTS freedoms or liberties under the Bill of Rights and
other values of society are of similar weight and
There is a hierarchy of constitutional rights. While importance, governmental regulations that affect
the Bill of Rights also protects property rights, the them would have to be evaluated based on
primacy of human rights over property rights is different yardsticks, or standards of review.
recognized. Property and property rights can be
lost thru prescription; but human rights are VOID-FOR-VAGUENESS DOCTRINE
imprescriptible. In the hierarchy of civil liberties,
the rights of free expression and of assembly Void-for-vagueness doctrine
occupy a preferred position as they are essential to
the preservation and vitality of our civil and A law is vague when it lacks comprehensive
political institutions (Philippine Blooming Mills standards that men of common intelligence must
Employees Organization v. Philippine Blooming Mills necessarily guess at its common meaning and differ
Co., Inc., G.R. No. L-31195, June 5, 1973). as to its application. In such instance, the statute is
repugnant to the Constitution because:
1. It violates due process for failure to accord
The right to property may be subject to a greater
persons, especially the parties targeted by it,
degree of regulation but when this right is joined
fair notice of what conduct to avoid
by a "liberty" interest, the burden of justification on
the part of the Government must be exceptionally

2. It leaves law enforcers an unbridled discretion A: NO. It must be borne in mind that the Arroyo
in carrying out its provisions (People v. de la administration is but just a member of a class, that
Piedra, G.R. No. 128777, Jan. 24, 2001). is, a class of past administrations. It is not a class of
its own. Not to include past administrations
The "void-for-vagueness" doctrine does not apply similarly situated constitutes arbitrariness which
as against legislations that are merely couched in the equal protection clause cannot sanction. Such
imprecise language but which specify a standard discriminating differentiation clearly reverberates
though defectively phrased; or to those that are to label the commission as a vehicle for
apparently ambiguous yet fairly applicable to vindictiveness and selective retribution (Biraogo v.
certain types of activities. The first may be "saved" The Philippine Truth Commission of 2010, G.R. No.
by proper construction, while no challenge may be 192935, Dec. 7, 2010).
mounted as against the second whenever directed
against such activities. Q: Are aliens entitled to the protection of equal
protection clause?
The Supreme Court held that the doctrine can only
be invoked against that species of legislation that is A: GR: It applies to all persons, both citizens and
utterly vague on its face, i.e., that which cannot be aliens. The Constitution places the civil rights of
clarified either by a saving clause or by aliens on equal footing with those of the citizens.
construction (Estrada v. Sandiganbayan, G.R. No.
148560, Nov. 19, 2001). XPN: Statutes may validly limit exclusively to
citizens the enjoyment of rights or privileges
The test in determining whether a criminal statute connected with public domain, the public works, or
is void for uncertainty is whether the language the natural resources of the State.
conveys a sufficiently definite warning as to the
proscribed conduct when measured by common NOTE: The rights and interests of the State in these
understanding and practice. It must be stressed, things are not simply political but also proprietary
however, that the "vagueness" doctrine merely in nature and so citizens may lawfully be given
requires a reasonable degree of certainty for the preference over aliens in their use or enjoyment.
statute to be upheld - not absolute precision or
mathematical exactitude (Ibid.). Rationale for allowing, in exceptional cases,
valid classification based on citizenship
NOTE: The void-for-vagueness doctrine cannot be
used to impugn the validity of a criminal statute Aliens do not naturally possess the sympathetic
using facial challenge but it may be used to consideration and regard for customers with
invalidate a criminal statute as applied to a whom they come in daily contact, nor the patriotic
particular defendant. desire to help bolster the nations economy, except
in so far as it enhances their profit, nor the loyalty
EQUAL PROTECTION OF THE LAWS and allegiance which the national owes to the land.
These limitations on the qualifications of aliens
CONCEPT have been shown on many occasions and instances,
especially in times of crisis and emergency (Ichong
Equal protection of the laws v. Hernandez, G.R. No. L-7995, May 31, 1957).
All persons or things similarly situated should be REQUISITES FOR VALID CLASSIFICATION
treated alike, both as to rights conferred and
responsibilities imposed. It guarantees equality, The classification must
not identity of rights. It does not forbid
discrimination as to persons and things that are 1. Rest on substantial distinctions
different. What it forbids are distinctions based on 2. Be germane to the purpose of the law
impermissible criteria unrelated to a proper 3. Not be limited to existing conditions only;
legislative purpose, or class or discriminatory 4. Apply equally to all members of the same class
legislation, which discriminates against some and (People v. Cayat, GR. No. L-45987, May 5, 1939).
favors others when both are similarly situated.
Basis for classification
Q: EO 1 was issued by President Aquino to
investigate reported cases of graft and 1. Age
corruption of the Arroyo administration. Is 2. Gender
such action valid? 3. Religion
4. Economic Class

2015GOLDEN NOTES
BILL OF RIGHTS
5. Ethnicity Q: Sec. 5.23 of the RH-IRR provides that skilled

6. Race health professional such as provincial, city or
7. Sexual Orientation municipal health officers, chiefs of hospital,
8. Residence head nurses, supervising midwives cannot be
9. Disability considered as conscientious objectors. Is this
10. Date of filing/ Effectivity of the law provision constitutional?
Q: Rosalie Garcia filed a case against her A: NO. This is discriminatory and violative of the
husband, Jesus Garcia, for violation of RA 9262. equal protection clause. The conscientious
The RTC then issued a Temporary Protection objection clause should be equally protective of the
Order. Jesus argues that RA 9262 violates the religious belief of public health officers. There is no
guarantee of equal protection because the perceptible distinction why they should not be
remedies against personal violence that it considered exempt from the mandates of the law.
provides may be invoked only by the wives or The protection accorded to other conscientious
women partners but not by the husbands or objectors should equally apply to all medical
male partners even if the latter could possibly practitioners without distinction whether they
be victims of violence by their women partners. belong to the public or private sector. After all, the
Does RA 9262 violate the equal the protection freedom to believe is intrinsic in every individual
clause of the Constitution? and the protective robe that guarantees its free
exercise is not taken off even if one acquires
A: NO. RA 9262 rests on substantial distinction. employment in the government (Imbong et. al., v.
There is an unequal power relationship between Ochoa G.R. No. 204819 April 8, 2014).
women and men and the fact that women are more
likely than men to be victims of violence and the Q: The New Central Bank Act created two
widespread gender bias and prejudice against categories of employees: (1) Bangko Sentral ng
women all make for real differences justifying the Pilipinas officers who are exempt from the
classification under the law. The classification is Salary Standardization Law (SSL) and (2) rank-
germane to the purpose of the law. The distinction and-file employees with salary grade 19 and
between men and women is germane to the below who are not exempt from the SSL.
purpose of RA 9262, which is to address violence Subsequent to the enactment of the Act, the
committed against women and children. As spelled charters of the Land Bank of the Philippines
out in its Declaration of Policy, the State recognizes and all other Government Financial Institutions
the need to protect the family and its members (GFIs) were amended exempting all their
particularly women and children, from violence personnel, including the rank-and-file
and threats to their personal safety and security. employees, from the coverage of the SSL. BSP
Moreover, the application of RA 9262 is not limited Employees Association filed a petition to
to the existing conditions when it was prohibit the BSP from implementing the
promulgated, but to future conditions as well, for provision of the Act for they were illegally
as long as the safety and security of women and discriminated against when they were placed
their children are threatened by violence and within the coverage of the SSL. Was there a
abuse. Furthermore, RA 9262 applies equally to all violation of the equal protection clause of the
women and children who suffer violence and abuse Constitution?
(Garcia v. Drilon G.R. No. 179267 June 25, 2013).
A: YES. In the field of equal protection, the
NOTE: In his separate concurring opinion, Justice guarantee that no person shall be denied the equal
Abad said that 9262 is discriminatory but it does protection of the laws includes the prohibition
not deny equal protection because of the concept of against enacting laws that allow invidious
expanded equal protection clause enshrined by discrimination, directly or indirectly. If a law has
Sec. 1 Art. XIII and Sec 14 Art II of the Constitution the effect of denying the equal protection of the
and because of this, the equal protection clause can law, or permits such denial, it is unconstitutional. It
be interpreted not only as a guarantee of formal is against this standard that the disparate
equality (if it passes the reasonableness test) but treatment of the BSP rank-and-file from the other
also of substantive equality. The expanded equal Government Financial Institutions (GFI) cannot
protection clause should be understood as meant stand judicial scrutiny. For, as regards the
to reduce social, economic, and political exemption from the coverage of the SSL, there
inequalities, and remove cultural inequities by exists no substantial distinction so as to
equitably diffusing wealth and political power for differentiate the BSP rank-and-file from the other
the common good. rank-and-file of other GFIs. The challenged
provision of the New Central Bank Act was facially

neutral insofar as it did not differentiate between fundamental rights of

the rank-and-file employees of the BSP and the suspect classes; or is not
rank-and-file employees of other GFIs, and yet its based on gender or
effects, when taken in light of the exemption of the illegitimacy
latter employees from the SSL, were discriminatory Legislative purpose Legislative purpose
(Central Bank Employees Association, Inc., v. Bangko must be legitimate must be compelling
Sentral ng Pilipinas, G.R. No. 148208, Dec. 15, 2004). Classification must be Classification must be
rationally related to the necessary and narrowly
Q: A law was passed, which aggravates estafa if legislative purpose tailored to achieve the
the accused originated from China or whose legislative purpose
any parents were Chinese. Al Paglinawan, (Central Bank Employees Association Inc. v. BSP, GR.
whose mother was Chinese, files a petition No. 148208, December 15, 2004).
before the court arguing that the law violates
the Equal Protection Clause because it does not 3. Strict Scrutiny Test Refers to the standard for
amount to a valid classification. May Congress determining the quality and the amount of
enact a law whose classification is based on governmental interest brought to justify the
origin, race or parentage? regulation of fundamental freedoms. Strict
scrutiny is used today to test the validity of
A: NO. The legislature may not validly classify the laws dealing with the regulation of speech,
citizens of the State on the basis of their origin, gender, or race as well as other fundamental
race, or parentage. But the difference in status rights as expansion from its earlier
between citizens and aliens constitutes a basis for applications to equal protection (White Light
reasonable classification in the exercise of police Corporation vs. City of Manila, G.R. No. 122846,
power (Demore v. Kim, 538 U.S. 510, 2003). January 20, 2009).
STANDARDS OF JUDICIAL REVIEW It is applied when the challenged statute

either:
a. Classifies on the basis of an inherently
Tests in determining compliance with the equal suspect characteristic;
protection clause b. Infringes fundamental constitutional
rights; that all legal restrictions which
1. Rational Basis Test The traditional test, which curtail the civil rights of a single racial
requires "only that government must not group are immediately suspect. That is not
impose differences in treatment except upon to say that all such restrictions are
some reasonable differentiation fairly related unconstitutional. It is to say that courts
to the object of regulation." Simply put, it must subject them to the most rigid
merely demands that the classification in the scrutiny. The presumption of
statute reasonably relates to the legislative constitutionality is reversed; that is, such
purpose (Concurring Opinion of Justice legislation is assumed to be
Leonardo-De Castro in Garcia v. Drilon, G.R. No. unconstitutional until the government
179267, June 25, 2013). demonstrates otherwise (Central Bank
Employees Association Inc. v. BSP, GR. No.
2. Intermediate Scrutiny Test It requires that the 148208. December 15, 2004).
classification (means) must serve an important
governmental objective (ends) and is 4. Intensified Means Test or the Balancing of
substantially related to the achievement of Interest/Equality test Test which does not
such objective. A classification based on sex is look solely into the governments purpose in
the best-established example of an classifying persons or things (as done in
intermediate level of review (Ibid.). Rational Basis Test) nor into the existence of
an overriding or compelling government
Rational Basis Test v. Strict Scrutiny interest so great to justify limitations of
fundamental rights (Strict Scrutiny Test) but
RATIONAL BASIS TEST STRICT SCRUTINY closely scrutinizes the relationship between
Applies to legislative Applies to legislative the classification and the purpose, based on
classifications in classifications affecting spectrum of standards, by gauging the extent
general, such as those fundamental rights or to which constitutionally guaranteed rights
pertaining to economic suspect classes. depend upon the affected individuals interest.
or social legislation,
which do not affect

2015GOLDEN NOTES
BILL OF RIGHTS
SEARCHES AND SEIZURES extent upon accused and, in

the finding or so doing, he
CONCEPT opinion of the need not
judge who conduct a new
Right against unreasonable searches and conducted the hearing.
seizures required
examination of
Right of the people to be secure in their persons, the applicant
houses, papers, and effects against unreasonable and the
searches and seizures of whatever nature and for witnesses.
any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except WARRANT REQUIREMENT
upon probable cause to be determined personally
by the judge after examination under oath or Requisites of a valid search warrant and
affirmation of the complainant and the witnesses warrant of arrest
he may produce, and particularly describing the
place to be searched and persons or things to be 1. It must be issued upon probable cause;
seized (1987 Constitution, Art. 3, Sec. 2). 2. the probable cause must be determined by the
judge himself and not by the applicant or any
Essence of privacy other person;
3. in the determination of probable cause, the
The right to be left alone. In context, the right to judge must examine, under oath or affirmation,
privacy means the right to be free from the complainant and such witnesses as the
unwarranted exploitation of ones person or from latter may produce; and
intrusion into ones private activities in such a way 4. The warrant issued must particularly describe
as to cause humiliation to a persons ordinary the place to be searched and persons and
sensibilities. things to be seized (HPS Software and
Communication Corporation and Yap vs. PLDT,
Search warrant v. Warrant of arrest G.R. Nos. 170217 and 170694, December 10,
2012).
BASIS SEARCH WARRANT OF
WARRANT ARREST NOTE: General warrant is not allowed. It must be
The judge It is not issued pursuant to specific offense (Stonehill vs.
must necessary that Diokno, L-19550, June 19, 1967).
personally the judge
examine in the should General warrants
form of personally
searching examine the Warrants of broad and general characterization or
questions and complainant sweeping descriptions which will authorize police
answers, in and his officers to undertake a fishing expedition to seize
writing and witnesses; the and confiscate any and all kinds of evidence or
As to articles relating to an offense.
under oath, judge would
authority,
the simply
which Purpose of particularity of description in
complainant personally
examines search warrants
and the review the
witnesses he initial
may produce determination 1. Readily identify the properties to be seized and
on facts of the thus prevent the peace officers from seizing
personally prosecutor to the wrong items
known to see if it is 2. Leave peace officers with no discretion
them. supported by regarding the articles to be seized and thus
substantial prevent unreasonable searches and seizures
evidence. (Bache and Co. v. Ruiz, 37 SCRA 823).
The He merely
determination determines the Particularity of description for a search
Basis of of probable probability, not warrant is complied with when:
determination cause depends the certainty of
to a large guilt of the 1. The description therein is as specific as the
circumstances will ordinarily allow; or

2. The description expresses a conclusion of fact, requires facts and circumstances that would lead a
not of law, by which the warrant officer may be reasonably prudent man to believe that an offense
guided in making the search and seizure; or has been committed and that the objects sought in
3. The things described are limited to those connection with that offense are in the place to be
which bear direct relation to the offense for searched (HPS Software and Communications Corp.
which the warrant is being issued and Yap vs. PLDT, G.R. Nos. 170217 and 170694,
December 10, 2012).
NOTE: If the articles desired to be seized have any
direct relation to an offense committed, the Such facts and circumstances antecedent to the
applicant must necessarily have some evidence issuance of a warrant that in themselves are
other than those articles to prove said offense. The sufficient to induce a cautious man to rely on them
articles subject of search and seizure should come and act in pursuance thereof.
in handy merely to strengthen such evidence.
Personal knowledge
Properties subject to seizure
1. The person to be arrested must execute an
1. Property subject of the offense overt act indicating that he had just committed,
2. Stolen or embezzled property and other is actually committing, or is attempting to
proceeds or fruits of the offense commit a crime; and
3. Property used or intended to be used as means 2. Such overt act is done in the presence or
for the commission of an offense within the view of the arresting officer.
Q: Can seized items in violation Art. 201 of the Q: Does reliable information satisfy the
RPC (Immoral doctrines, obscene publications personal knowledge requirement?
and indecent shows) be destroyed even if the
accused was acquitted? A: NO. The long-standing rule in this jurisdiction,
applied with a great degree of consistency, is that
A: YES. To stress, P.D. No. 969 (An Act amending reliable information alone is not sufficient to
Art. 201) mandates the forfeiture and destruction justify a warrantless arrest under Section 5 (a),
of pornographic materials involved in the violation Rule 113. The rule requires, in addition, that the
of Article 201 of the Revised Penal Code, even if the accused perform some overt act that would
accused was acquitted (Nogales vs. People of the indicate that he has committed, is actually
Philippines, G.R. No. 191080, November 21, 2011). committing, or is attempting to commit an offense.
In the leading case of People v. Burgos, this Court
Court with the primary jurisdiction in issuing held that the officer arresting a person who has
search warrants just committed, is committing, or is about to
commit an offense must have personal
The RTC where the criminal case is pending or if no knowledge of that fact. The offense must also be
information has yet been filed, in RTC in the area/s committed in his presence or within his
contemplated. An RTC not having territorial view. In Burgos, the authorities obtained
jurisdiction over the place to be searched, however, information that the accused had forcibly recruited
may issue a search warrant where the filing of such one Cesar Masamlok as member of the New
is necessitated and justified by compelling Peoples Army, threatening the latter with a
considerations of urgency, subject, time, and place. firearm. Upon finding the accused, the arresting
team searched his house and discovered a gun as
Nature of search warrant proceedings well as purportedly subversive documents (People
vs. Tudtud, G.R. No. 144037, September 26, 2003).
Neither a criminal action nor a commencement of a
prosecution. It is solely for the possession of Searching questions
personal property (United Laboratories, Inc. v. Isip,
G.R. No. 163858, June 28, 2005). Examination by the investigating judge of the
complainant and the latters witnesses in writing
Probable cause and under oath or affirmation, to determine
whether there is a reasonable ground to believe
Probable cause, as a condition for the issuance of a that an offense has been committed and whether
search warrant, is such reasons supported by facts the accused is probably guilty thereof so that a
and circumstances as will warrant a cautious man warrant of arrest may be issued and he may be
to believe that his action and the means taken in held liable for trial.
prosecuting it are legally just and proper. It

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BILL OF RIGHTS
Q: Can the place to be searched, as set out in the A: NO. Even assuming that the photos in issue are
warrant be amplified or modified by the visible only to the sanctioned students Facebook
officers personal knowledge of the premises or friends, respondent STC can hardly be taken to task
evidence they adduce in support of their for the perceived privacy invasion since it was the
application for the warrant? minors Facebook friends who showed the pictures
to Tigol. Respondents were mere recipients of
A: NO. Such a change is proscribed by the what were posted. They did not resort to any
Constitution which requires a search warrant to unlawful means of gathering the information as it
particularly describe the place to be searched; was voluntarily given to them by persons who had
otherwise it would open the door to abuse of the legitimate access to the said posts. Clearly, the
search process, and grant to officers executing the fault, if any, lies with the friends of the minors.
search that discretion which the Constitution has Curiously enough, however, neither the minors nor
precisely removed from them. their parents imputed any violation of privacy
against the students who showed the images to
The particularization of the description of the place Escudero (Vivares vs. St. Theresas College, G.R. No.
to be searched may properly be done only by the 202666, September 29, 2014).
Judge, and only in the warrant itself; it cannot be
left to the discretion of the police officers WARRANTLESS SEARCHES
conducting the search.
Instances of a valid warrantless search
It is neither fair nor licit to allow police officers to
search a place different from that stated in the 1. Visual search is made of moving vehicles at
warrant on the claim that the place actually checkpoints
searched although not that specified in the 2. Search is an incident to a valid arrest
warrant is exactly what they had in view when
they applied for the warrant and had demarcated NOTE: An officer making an arrest may take
in their supporting evidence. What is material in from the person:
determining the validity of a search is the place a. Any money or property found upon his
stated in the warrant itself, not what applicants person which was used in the commission
had in their thoughts, or had represented in the of the offense
proofs they submitted to the court issuing the b. Was the fruit thereof
warrant (People v. Court of Appeals, 291 SCRA 400, c. Which might furnish the prisoner with the
June 26, 1998). means of committing violence or escaping
d. Which might be used as evidence in the
Q: Nenita Julia V. Daluz (Julia) and Julienne Vida trial of the case
Suzara (Julienne) were graduating high school
students at St. Theresas College (STC), Cebu 3. Search of passengers made in airports
City. While changing into their swimsuits for a 4. When things seized are within plain view of a
beach party they were about to attend, Julia searching party (Plain View Doctrine)
and Julienne, along with several others, took 5. Stop and frisk (precedes an arrest)
digital pictures of themselves clad only in their 6. When there is a valid express waiver made
undergarments. These pictures were then voluntarily and intelligently
uploaded by Angela Lindsay Tan (Angela) on
her Facebook profile. NOTE: Waiver is limited only to the arrest and
does not extend to search made as an incident
Back at the school, Mylene Rheza T. Escudero thereto, or to any subsequent seizure of
(Escudero), a computer teacher at STCs high evidence found in the search (People v. Peralta,
school department, learned from her students G.R. 145176, March 30, 2004).
that some seniors at STC posted pictures online,
depicting themselves from the waist up, 7. Customs search
dressed only in brassieres. Escudero reported 8. Exigent and emergency circumstances (People
the matter and, through one of her students v. De Gracia, 233 SCRA 716).
Facebook page, showed the photos to Kristine
Rose Tigol (Tigol), STCs Discipline-in-Charge, Plain View Doctrine
for appropriate action. Were unlawful means
used by STC in gathering information about the Under the plain view doctrine, objects falling in the
photo? "plain view" of an officer, who has a right to be in
the position to have that view, are subject to

seizure and may be presented as evidence. It contents, whether by its distinctive configuration,
applies when the following requisites concur: its transparency, or if its contents are obvious to an
1. The law enforcement officer in search of the observer, then the contents are in plain view and
evidence has a prior justification for an may be seized (People vs. Doria, G.R. No. 125299,
intrusion or is in a position from which he can January 22, 1999).
view a particular area; Stop-and-frisk search
2. The discovery of the evidence in plain view is
inadvertent; and Limited protective search of outer clothing for
3. Tt is immediately apparent to the officer that weapons. Probable cause is not required but a
genuine reason must exist in light of a police
the item he observes may be evidence of a
officers experience and surrounding conditions to
crime, contraband, or otherwise subject to warrant the belief that the person detained has
seizure. weapons concealed (Malacat v. CA, G.R. No. 123595,
Dec. 12, 1997).
The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from Checkpoints
which he can particularly view the area. In the
course of such lawful intrusion, he came Searches conducted in checkpoints are lawful,
inadvertently across a piece of evidence provided the checkpoint complies with the
incriminating the accused. The object must be open following requisites:
to eye and hand, and its discovery inadvertent 1. The establishment of checkpoint must be
(Fajardo vs. People, G.R. No. 190889). pronounced;
2. It must be stationary, not roaming; and
Note: Plain view Doctrine cannot be applied where 3. The search must be limited to visual search
there was no evidence in plain view of law and must not be an intrusive search.
enforcers serving the search warrant (United
Laboratories, Inc. vs. Isip, G.R. No. 163858, June 28, NOTE: Not all searches and seizures are
2005). prohibited. Between the inherent right of the State
to protect its existence and promote public welfare
Q: Jun, a drug pusher was entrapped in a buy and an individuals right against warrantless
bust operation. He led the police officers to the search which is however reasonably conducted, the
house of Gaddao, his supposed associate and former should prevail.
her house was searched. A cardboard box with
bricks of marijuana inside was found in her A checkpoint is akin to a stop-and-frisk situation
residence. However, Gaddaos warrantless whose object is either to determine the identity of
arrest was declared illegal by the court. It suspicious individuals or to maintain the status quo
follows that the search of her person and home momentarily while the police officers seek to
and the subsequent seizure of the marked bills obtain more information (Valmonte v. De Villa,
and marijuana cannot be deemed legal as an GR.83988, Sept. 29, 1989).
incident to her arrest. Was the marijuana in the
cardboard box in plain view during the search, Q: When can motorists and their vehicles
making the warrantless seizure valid and passing though checkpoints be stopped and
acceptable in evidence? extensively searched?
A: NO. The law enforcement officer must lawfully
make an initial intrusion or properly be in a A: While, as a rule, motorists and their vehicles
position from which he can particularly view the passing though checkpoints may only be subjected
area. In the course of such lawful intrusion, he to a routine inspection, vehicles may be stopped
came inadvertently across a piece of evidence and extensively searched when there is probable
incriminating the accused. The object must be open cause which justifies a reasonable belief among
to eye and hand and its discovery inadvertent. those at the checkpoints that either the motorist is
a law offender or the contents of the vehicle are or
It is clear that an object is in plain view if the object have been instruments of some offense (People v.
itself is plainly exposed to sight. The difficulty Vinecario, G.R. No. 141137, Jan. 20, 2004).
arises when the object is inside a closed
container. Where the object seized was inside a Q: Police officer Jim Santos suspected Alfred
closed package, the object itself is not in plain view Vitug of growing marijuana in his apartment.
and therefore cannot be seized without a Indoor marijuana growth typically requires
warrant. However, if the package proclaims its high-intensity lamps. Santos used an Agema

2015GOLDEN NOTES
BILL OF RIGHTS
Thermovision 210 thermal imager to scan the sourced from the computer used by Pollo were
apartment. The scan showed that the roof over pleadings and letters connected with pending
the garage and a side wall of Vitugs house were cases in CSC and other tribunals. He was found
relatively hot compared to the rest of the house guilty of dishonesty, grave misconduct and
and substantially warmer than neighboring conduct prejudicial to the best interest of the
house. Santos concluded that Vitug was using service and violation of RA 6713 and penalized
halide lights to grow marijuana. Vitug was then him with dismissal. Were the searching and
indicted of one count of manufacturing copying of Pollos computer files a violation of
marijuana. the right against unreasonable searches and
1. Was the search reasonable? seizures?
2. Is the use of thermal imaging
constitutional? A: NO. First, Pollo failed to prove that he had an
actual (subjective) expectation of privacy either in
A: his office or government-issued computer which
1. No. The Government uses a device that is not contained his personal files. The CSC had
in general public use, to explore details of a implemented a policy that put its employees on
private home that would previously have been notice that they have no expectation of privacy
unknowable without physical intrusion, the in anything they create, store, send or receive on
surveillance is a Fourth Amendment search, the office computers, and that the CSC may monitor
and is presumptively unreasonable without a the use of the computer resources using both
warrant. automated and human means. This implies that
2. No. Such an approach would be wrong in on-the-spot inspections may be done to ensure that
principle because, in the sanctity of the the computer resources were used only for such
home, all details are intimate details (Kyllo v. legitimate business purposes. Second, the search of
United States 533 U.S. 27). petitioners computer files was conducted in
connection with investigation of work-related
Q: Jamie was a lady frisker whose duty is to misconduct prompted by an anonymous letter-
frisk departing passengers, employees, and complaint addressed to Chairperson David
crew and check for weapons, bombs, prohibited regarding anomalies in the CSC-ROIV where the
drugs, contraband goods, and explosives. When head of the Mamamayan Muna Hindi Mamaya
she frisked Rozanne, a boarding passenger, she Na division is supposedly lawyering for
felt something hard on Rozannes abdominal individuals with pending cases in the CSC. A search
area which was later found to be 3 packs of by a government employer of an employees office
shabu. Can Rozanne Dela Cruz invoke a is justified at inception when there are reasonable
violation of the search and seizure clause? grounds for suspecting that it will turn up evidence
that the employee is guilty of work-related
A: NO. Persons may lose the protection of the misconduct (Pollo v. David G.R. No. 181881 October
search and seizure clause by exposure of their 18, 2011).
persons or property to the public in a manner
reflecting a lack of subjective expectation of Q: A search was conducted on Mar. 3, 1986
privacy, which expectation society is prepared to during which, the Philippines has no
recognize as reasonable. Such recognition is Constitution. The Constabulary raiding team
implicit in airport security procedures. With searched the house of Elizabeth Dimaano by
increased concern over airplane hijacking and virtue of a search warrant and thereafter seized
terrorism has come increased security at the some items not included in the warrant.
nations airport (People v. Leila Johnson, G.R. Dimaano questioned the search for being
No.138881, Dec. 18, 2000). violative of the Constitution. Can she invoke her
right against unreasonable searches and
Q: Civil Service Commission (CSC) Chairperson seizures during the interregnum?
Karina Constantino-David received an
anonymous letter alleging that the chief of CSCs A: YES. The Bill of Rights under the 1973
Legal Division, Ricky Pollo, is acting as a lawyer Constitution was not operative during the
of an accused government employee who has a interregnum. Be that as it may, under Art. 17(1) of
pending case in the CSC. Consequently, a team the International Covenant on Civil and Political
with IT background was formed to back up all Rights, the revolutionary government had the duty
the files in the computers found in the Legal to insure that no one shall be subjected to arbitrary
Division. Pollo was not present during the or unlawful interference with his privacy, family,
backing-up and was only informed through text home or correspondence. Art. 17 (2) provides that
message. It was then found that most of the files no one shall be arbitrarily deprived of his property.

Although the signatories to the Declaration did not container with dried marijuana leaves found on the
intend it as a legally binding document, being only table in her store (People v. Salazar, G.R. No. 98060,
a declaration, the Court has interpreted the Jan. 27, 1997).
Declaration as part of the generally accepted
principles of international law and binding on the Q: Is Sec. 19 of the Cybercrime Law, which
state. The revolutionary government did not provides that, when a computer data is prima
repudiate the Covenant or the Declaration during facie found to be in violation of the provisions
the interregnum. It was also obligated under of this Act, the DOJ shall issue an order to
international law to observe the rights of restrict or block access to such computer data
individuals under the Declaration (Republic of the constitutional?
Philippines v. Sandiganbayan G.R. No. 104768 July
21, 2003). A: NO. The Department of Justice order cannot be a
substitute for judicial search warrant. The
Q: While sleeping in his room, Rex was arrested Government, in effect, seizes and places the
by virtue of a warrant of arrest and he was computer data under its control and disposition
dragged out of the room. Thereafter, some without a warrant. Not only does Sec. 19 preclude
police officers ransacked the locked cabinet any judicial intervention, but it also disregards
inside the room where they found a firearm jurisprudential guidelines established to determine
and ammunition. Are the warrantless search the validity of restrictions on speech for the
and seizure of the firearm and ammunition content of the computer data can also constitute
justified as an incident to a lawful arrest? speech. Sec. 19 merely requires that the data to be
blocked be found prima facie in violation of any
A: NO. The scope of the warrantless search is not provision of the cybercrime law. It does not take
without limitations. A valid arrest allows the into consideration any of the three tests: the
seizure of evidence or dangerous weapons either dangerous tendency doctrine, the balancing of
on the person of the one arrested or within the interest test and the clear and present danger rule.
area of his immediate control. The purpose of the Therefore, Sec. 19 is unconstitutional (Disini v.
exception is to protect the arresting officer from Secretary of Justice G.R. No. 203335 February 11,
being harmed by the person arrested, who might 2014).
be armed with a concealed weapon, and to prevent
the latter from destroying evidence within reach. Q: Sgt. Victorino Noceja and Sgt. Alex de Castro,
In this case, search was made in the locked cabinet while on a routine patrol in Pagsanjan, Laguna,
which cannot be said to have been within spotted a passenger jeep unusually covered
Valeroso's immediate control. Thus, the search with "kakawati" leaves. Suspecting that the jeep
exceeded the bounds of what may be considered as was loaded with smuggled goods, the two police
an incident to a lawful arrest (Valeroso v. Court of officers flagged down the vehicle driven by
Appeals, G.R. No. 164815, Sept. 3, 2009). Rudy. The police officers then checked the
cargo and they discovered bundles of 3.08 mm
Q: A buy-bust operation was conducted in aluminum/galvanized conductor wires
Jogies store. Police Officer CA Mindaro posed as exclusively owned by National Power
a buyer and bought marijuana from Jogie. After Corporation (NPC). Police officers took Rudy
the exchange of marked money and marijuana, into custody and seized the conductor wires.
Mindaro arrested Jogie without a warrant. The Was Rudys right against unreasonable
other police officer searched the store and searches and seizures violated when the police
seized a plastic container containing six officers searched his vehicle and seized the
marijuana stocks. Thereafter, Jogie was wires found therein without a search warrant?
charged with selling marijuana. Is the
warrantless seizure of marijuana legal? A: YES. When a vehicle is stopped and subjected to
an extensive search, such a warrantless search
A: YES. The search being an incident to a lawful would be constitutionally permissible only if the
arrest, it needed no warrant for its validity. The officers conducting the search have reasonable or
accused having been caught in flagrante delicto, the probable cause to believe, before the search, that
arresting officers were duty bound to apprehend either the motorist is a law-offender or they will
her immediately. The warrantless search and find the instrumentality or evidence pertaining to a
seizure, as an incident to a lawful arrest, may crime in the vehicle to be searched. However, the
extend to include the premises under the fact that the vehicle looked suspicious simply
immediate control of the accused. The accused may because it is not common for such to be covered
not successfully invoke the right against a with kakawati leaves does not constitute "probable
warrantless search, even as regards the plastic cause" as would justify the conduct of a search

2015GOLDEN NOTES
BILL OF RIGHTS
without a warrant. Furthermore, the police his arrest or the legality of the warrant issued
authorities did not claim to have received any therefore, or from assailing the regularity or
confidential report or tipped information that Rudy questioning the absence of a preliminary
was carrying stolen cable wires in his vehicle investigation of the charge against him, provided
which could otherwise have sustained their that he raises them before entering his plea (Sec.
suspicion. It cannot likewise be said that the cable 26, Rule 114, Rules of Court).
wires found in Rudy's vehicle were in plain view,
making its warrantless seizure valid. The cable Arrest with warrant v. Warrantless arrest as to
wires were not exposed to sight because they were the element of time
placed in sacks and covered with leaves. The
articles were neither transparent nor immediately Arrest with Warrant Warrantless Arrest
apparent to the police authorities (Caballes v. Court There is an appreciable There must be a large
of Appeals, G. R. No. 136292, January 15, 2002). lapse of time between measure of immediacy
the arrest and the between the time the
WARRANTLESS ARRESTS commission of the offense is committed
crime. and the time of the
Instances of a valid warrantless arrest arrest.
1. In flagrante delicto The person to be arrested Q: SPO2 Luigi Morales and PO2 Yael Padilla
has either committed, is actually committing, received information that Neil Banzon was
or is about to commit an offense in the about to deliver drugs at the Thunder Bird
presence of the arresting officer. Resort in Angeles City. When Neil Banzon
2. Hot Pursuit When an offense has in fact just arrived at the resort, he was carrying a sealed
been committed and the arresting officer has Zest-O juice box. The police men hurriedly
probable cause to believe, based on personal accosted him and introduced themselves as
knowledge of the facts and circumstances police officers. When SPO2 Morales peeked into
indicating, that the person to be arrested has the contents of the Zest-O box, he saw that it
committed it contained a crystalline substance. He instantly
3. Escaped Prisoner or Detainee When the confiscated the said box. Neil was then found
person to be arrested is a prisoner who has guilty of illegal possession of shabu. Was the
escaped from a penal establishment or place search lawful?
where he is serving final judgment or
temporarily confined while his case is A: NO. Neither the in flagrante delicto nor the stop
pending, or has escaped while being and frisk principle is applicable to justify the
transferred from one confinement to another warrantless arrest and consequent search and
(Sec. 5, Rule 113, Rules of Court). seizure made by the police operatives on accused-
4. Waiver When the right is waived by the appellant. In in flagrante delicto arrests, the
person arrested, provided he knew of such accused is apprehended at the very moment he is
right and knowingly decided not to invoke it. committing or attempting to commit or has just
committed an offense in the presence of the
NOTE: The waiver is limited to invalid arrest arresting officer. Emphasis should be laid on the
and does not extend to illegal search. fact that the law requires that the search be
incidental to a lawful arrest. Therefore, it is beyond
5. Continuing offenses A peace officer can cavil that a lawful arrest must precede the search
validly conduct a warrantless arrest in crimes of a person and his belongings. Accordingly, for
of rebellion, subversion, conspiracy or this exception to apply two elements must
proposal to commit such crimes, and crimes or concur: (1) the person to be arrested must execute
offenses committed in furtherance thereof, or an overt act indicating that he has just committed,
in connection therewith constitute direct is actually committing, or is attempting to commit a
assaults against the State, which are in the crime; and (2) such overt act is done in the
nature of continuing crimes. Since rebellion is presence or within the view of the arresting officer.
a continuing offense, a rebel may be arrested Neil did not act in a suspicious manner. For all
at any time, with or without a warrant, as he is intents and purposes, there was no overt
deemed to be in the act of committing the manifestation that he has just committed, is
offense at any time of the day or night (Umil v. actually committing, or is attempting to commit a
Ramos, 187 SCRA 311). crime (People v. Sy Chua, G.R. Nos. 136066-
67. February 4, 2003).
NOTE: An application for or admission to bail shall
not bar the accused from challenging the validity of

Q: Pat. Ben Reyes was instructed by P/Lt. Vic permissible precautionary measure of arresting
Laurel to monitor the activities of Edwin officers to protect themselves, for the person who
Alcaraz because of information that the latter is about to be arrested may be armed and might
was selling marijuana. Pat. Reyes positioned attack them unless he is first disarmed (People v.
himself under a house which was adjacent to a Gerente, G.R. No. 95847-48. March 10, 1993).
chapel. Thereafter, Pat. Reyes saw Edwin enter
the chapel, taking something from the ADMINISTRATIVE ARREST
compartment of a cart found inside the chapel
which turned out later to be marijuana, and There is an administrative arrest when there is an
then return to the street where he handed the arrest as an incident to a deportation proceedings.
same to Jack Acebes. Police officers then
pursued Jack. Upon seeing the police, he threw The following aliens shall be arrested upon the
something to the ground which turned out to be warrant of the Commissioner of Immigration or of
a tea bag of marijuana. When confronted, Jack any other officer designated by him for the purpose
admitted that he bought the same from Edwin. and deported upon the warrant of the
Thus, Edwin was convicted for violating Commissioner of Immigration after a
Dangerous Drugs Act. Was the warrantless determination by the Board of Commissioners of
arrest lawful? Was the evidence resulting from the existence of the ground for deportation as
such arrest admissible? charges against the alien:
A: YES. When a police officer sees the offense, 1. Any alien who enters the Philippines after the
although at a distance, or hears the disturbances effective date of this Act by means of false and
created thereby, and proceeds at once to the scene misleading statements or without inspection
thereof, he may effect an arrest without a warrant. and admission by the immigration authorities
There is nothing unlawful about the arrest at a designated port of entry or at any place
considering its compliance with the requirements other than at a designated port of entry; [As
of a warrantless arrest. Ergo, the fruits obtained amended by Republic Act No. 503, Sec. 13]
from such lawful arrest are admissible in evidence 2. Any alien who enters the Philippines after the
(People v. Sucro, G.R. No. 93239 March 18, 1991). effective date of CA 613 (Philippine
Immigration Act of 1940), who was not lawfully
Q: At about 7:00 a.m. of April 3, 2003 Gibo admissible at the time of entry;
Cayetano, together with Juan Villar and Bong 3. Any alien who, after the effective date of this
Escudero, started drinking liquor and smoking Act, is convicted in the Philippines and
marijuana in the house of Gibo. They started sentenced for a term of one year or more for a
talking about their intention to kill Simeon crime involving moral turpitude committed
Marcos. The three carried out their plan at within five years after his entry to the
about 2:00 p.m. of the same day by mauling Philippines, or who, at any time after such
Simeon. At about 4:00 p.m. of the same day, entry, is so convicted and sentenced more than
Patrolman Jaime Santos received a report once;
about a mauling incident. Right away, 4. Any alien who is convicted and sentenced for a
Patrolman Santos proceeded to Paseo de Blas violation of the law governing prohibited
where the mauling incident took drugs; [As amended by Republic Act No. 503,
place. Patrolman Santos frisked Gibo and found Sec. 13]
a coin purse in his pocket which contained 5. Any alien who practices prostitution or is an
dried leaves wrapped in cigarette foil. The inmate of a house of prostitution or is
dried leaves were found to be marijuana. He connected with the management of a house of
was held guilty for violating the Dangerous prostitution, or is a procurer;
Drugs Act. Was the search lawful? 6. Any alien who becomes a public charge within
five years after entry from causes not
A: YES. The search conducted on Gibo's person affirmatively shown to have arisen subsequent
was lawful because it was made as an incident to a to entry;
valid arrest. This is in accordance with Sec. 12, Rule 7. Any alien who remains in the Philippines in
126 of the Revised Rules of Court which provides: violation of any limitation or condition under
"Sec. 12. Search incident to lawful arrest. A which he was admitted as a non-immigrant;
person lawfully arrested may be searched for 8. Any alien who believes in, advises, advocates
dangerous weapons or anything which may be or teaches the overthrow by force and violence
used as proof of the commission of an offense, of the Government of the Philippines, or of
without a search warrant." The frisk and search of constituted law and authority or who
appellant's person upon his arrest was a disbelieves in or is opposed to organized

2015GOLDEN NOTES
BILL OF RIGHTS
government, or who advises, advocates or NOTE: Sec. 2, Art. III of the Constitution does not
teaches the assault or assassination of public require judicial intervention in the execution of a
officials because of their office, or who advises, final order of deportation issued in accordance
advocates, or teaches the unlawful destruction with law. The constitutional limitation
of property, or who is a member of or affiliated contemplates an order of arrest in the exercise of
with any organization entertaining, advocating judicial power as a step preliminary or incidental
or teaching such doctrines, or who in any to prosecution or proceedings for a given offense
manner whatsoever lends assistance, financial or administrative action, not as a measure
or otherwise, to the dissemination of such indispensable to carry out a valid decision by a
doctrines; competent official, such as a legal order of
9. Any alien who commits any of the acts deportation, issued by the Commissioner of
described in Sec. 45 of CA 613, independent of Immigration, in pursuance of a valid legislation
criminal action which may be brought against (Morano v. Vivo, G.R. No. L-22196, June 30, 1967).
him: Provided, that in the case of alien who, for
any reason, is convicted and sentenced to DRUG, ALCOHOL, AND BLOOD TESTS
suffer both imprisonment and deportation,
said alien shall first serve the entire period of Q: Congress enacted the Comprehensive
his imprisonment before he is actually Dangerous Drugs Act of 2002 requiring the
deported: Provided, however, that the mandatory drug testing of candidates for public
imprisonment may be waived by the office, students of secondary and tertiary
Commissioner of Immigration with the consent schools, officers and employees of public and
of the Department Head, and upon payment by private offices, and persons charged before the
the alien concerned of such amount as the prosecutors office with certain offenses. Social
Commissioner may fix and approved by the Justice Society questions this provision for
Department Head; [Paragraph added pursuant being unconstitutional for it constitutes undue
to Republic Act No. 144, Sec. 3] delegation of legislative power when it give
10. Any alien who, at any time within five years unbridled discretion to schools and employers
after entry, shall have been convicted of to determine the manner of drug testing as well
violating the provisions of Commonwealth Act as it can be used to harass a student or an
No. 653 (Philippine Alien Registration Act of employee deemed undesirable. Is the provision
1941)[now Alien Registration Act of 1950, constitutional?
Republic Act No. 562, as amended] or who, at
any time after entry, shall have been convicted A: YES. A law requiring mandatory drug testing for
more than once of violating the provisions of students of secondary and tertiary schools is not
the same Act; [Added pursuant to Republic Act unconstitutional. It is within the prerogative of
No. 503, Sec. 13] educational institutions to require, as a condition
11. Any alien who engages in profiteering, for admission, compliance with reasonable school
hoarding, or black-marketing, independent of rules and regulations and policies. To be sure, the
any criminal action which may be brought right to enroll is not absolute; it is subject to fair,
against him; [Added pursuant to Republic Act reasonable, and equitable requirements. In sum:
No. 503, Sec. 13]
12. Any alien who is convicted of any offense 1. Schools and their administrators stand in loco
penalized under Commonwealth Act No. 473 parentis with respect to their students;
(Revised Naturalization Laws of the 2. Minor students have contextually fewer rights
Philippines) or any law relating to acquisition than an adult, and are subject to the custody
of Philippine citizenship; [Added pursuant to and supervision of their parents, guardians,
Republic Act No. 503, Sec. 13] and schools;
13. Any alien who defrauds his creditor by 3. Schools acting in loco parentis, have a duty to
absconding or alienating properties to prevent safeguard the health and well-being of their
them from being attached or executed. [Added students and may adopt such measures as may
pursuant to Republic Act No. 503, Sec. 13] reasonably be necessary to discharge such
(Philippine Immigration Act of 1940). duty; and
4. Schools have the right to impose conditions on
Power of the Commissioner of Immigration applicants for admission that are fair, just and
non-discriminatory (SJS v. DDB, G.R. No.
The Commissioner of Immigration is also given, by 157870, Nov. 3, 2008).
legislative delegation, the power to issue warrants
of arrests. A law requiring mandatory drug testing for officers
and employees of public and private offices is not

unconstitutional. As the warrantless clause of Sec. RIGHT TO PRIVACY IN COMMUNICATION AND

2, Art. III of the Constitution is couched and as has CORRESPONDENCE
been held, reasonableness is the touchstone of
the validity of a government search or intrusion. PRIVATE AND PUBLIC COMMUNICATIONS
And whether a search at issue hews to the
reasonableness standard is judged by the balancing GR: Right to privacy of communication and
of the government-mandated intrusion on the correspondence is inviolable (Sec. 3, Art. III, 1987
individuals privacy interest against the promotion Philippine Constitution).
of some compelling state interest. In the criminal
context, reasonableness requires showing probable XPNs:
cause to be personally determined by a judge. 1. By lawful order of the court;
Given that the drug-testing policy for employees 2. Public safety or public order as prescribed by
and students for that matterunder RA 9165 is in law
the nature of administrative search needing what
was referred to in Veronia case as swift and NOTE: Any evidence in violation of this right or the
informal procedures, the probable cause standard right against unreasonable searches and seizures
is not required or even practicable (SJS v. DDB and shall be inadmissible for any purpose in any
PDEA, G.R. No. 157870, Nov. 3, 2008). proceedings.
Q: R.A. 9165 requires mandatory drug testing INTRUSION, WHEN ALLOWED

for persons charged before the prosecutors
office with criminal offenses punishable with 6 Q: Ayer Productions wanted to produce a mini-
years and 1 day imprisonment. Petitioner SJS series about the EDSA Revolution. Juan Ponce
questions the constitutionality of the law on the Enrile did not approve of the project and said
ground that it violates the rights to privacy and that no reference to him or his family should be
against self-incrimination of an accused. made. The filmmakers acceded to his demand,
Decide. the script was changed and they proceeded to
film the movie. Enrile filed a complaint with
A: The Court finds the situation entirely different in TRO alleging that the production without his
the case of persons charged before the public consent constitutes a violation of his right to
prosecutors office with criminal offenses privacy. Ayer countered that the injunction is a
punishable with imprisonment. The operative curtailment of the right of free expression. Is
concepts in the mandatory drug testing are the right to privacy absolute?
randomness and suspicionless. In the case of
persons charged with a crime before the
A: NO. The right of privacy or "the right to be let
prosecutors office, a mandatory drug testing can
alone," like the right of free expression, is not an
never be random or suspicionless. The ideas of
absolute right. A limited intrusion into a person's
randomness and being suspicionless are
privacy has long been regarded as permissible
antithetical to their being made defendants in a
where that person is a public figure and the
criminal complaint. They are not randomly picked;
information sought to be elicited from him or to be
neither are they beyond suspicion. When persons
published about him constitute of a public
suspected of committing a crime are charged, they
character. Succinctly put, the right of privacy
are singled out and are impleaded against their
cannot be invoked to resist publication and
will. The persons thus charged, by the bare fact of
dissemination of matters of public interest. The
being hauled before the prosecutors office and
interest sought to be protected by the right of
peaceably submitting themselves to drug testing, if
privacy is the right to be free
that be the case, do not necessarily consent to the
from unwarranted publicity, from
procedure, let alone waive their right to privacy. To
the wrongful publicizing of the private affairs and
impose mandatory drug testing on the accused is a
activities of an individual which are outside the
blatant attempt to harness a medical test as a tool
realm of legitimate public concern (Ayer
for criminal prosecution, contrary to the stated
Productions Pty. Ltd. vs. Capulong, G.R. No. 82380,
objectives of R.A. 9165. Drug testing in this case
April 29, 1988).
would violate a persons right to privacy
guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably
forced to incriminate themselves (SJS v. DDB, G.R.
No. 157870, Nov. 3, 2008).

2015GOLDEN NOTES
BILL OF RIGHTS
Q: Is a regulation mandating the opening of understanding of those who drew up the

mail or correspondence of detainees violative cybercrime law is that the element of engaging in
of the constitutional right to privacy? a business is necessary to constitute the crime of
illegal cybersex. The Act actually seeks to punish
A: NO. There is no longer a distinction between an cyber prostitution, white slave trade, and
inmate and a detainee with regard to the pornography for favor and consideration. This
reasonable expectation of privacy inside his cell. includes interactive prostitution and pornography,
The curtailment of certain rights is necessary to e.g., by webcam (Disini v. Secretary of Justice G.R.
accommodate institutional needs and objectives of No. 203335 February 11, 2014).
prison facilities, primarily internal security. As long
as the letters are not confidential communication Q: Nenita Julia V. Daluz (Julia) and Julienne Vida
between the detainee and his lawyer the detention Suzara (Julienne) were graduating high school
officials may read them. But if the letters are students at St. Theresas College (STC), Cebu
marked confidential communication between City. While changing into their swimsuits for a
detainee and the lawyer, the officer must not read beach party they were about to attend, Julia
them but only inspect them in the presence of and Julienne, along with several others, took
detainees. A law is not needed before an executive digital pictures of themselves clad only in their
officer may intrude into the rights of privacy of a undergarments. These pictures were then
detainee or a prisoner. By the very fact of their uploaded by Angela Lindsay Tan (Angela) on
detention, they have diminished expectations of her Facebook profile.
privacy rights (Alejano v. Cabuay, G.R. No. 160792, Aug.
25, 2005). Back at the school, Mylene Rheza T. Escudero
(Escudero), a computer teacher at STCs high
Q: Does an officer charged with a crime in school department, learned from her students
connection with his office have a reasonable that some seniors at STC posted pictures online,
expectation of privacy in his office and depicting themselves from the waist up,
computer files? dressed only in brassieres. Escudero reported
the matter and, through one of her students
A: NO. The Supreme Court cited the US case of Facebook page, showed the photos to Kristine
OConnor v. Ortega, which ruled that government Rose Tigol (Tigol), STCs Discipline-in-Charge,
agencies, in their capacity as employers, rather for appropriate action.
than law enforcers, could validly conduct search
and seizure in the governmental workplace Julia, Julienne, Angela, and the other students in
without meeting the probable cause or warrant the pictures in question, reported, as required,
requirement for search and seizure. Moreover, he to the STCs high school principal who informed
failed to prove that he had an actual (subjective) their parents that, as part of their penalty, they
expectation of privacy either in his office or are barred from joining the commencement
government-issued computer which contained his exercises. Is there a violation of the right to
personal files (Pollo v. David G.R. No. 181881 informational privacy?
October 18, 2011).
A: NO. To address concerns about privacy, but
Q: Under the Cybercrime Law, cybersex is the without defeating its purpose, Facebook was
willful engagement, maintenance, control, or armed with different privacy tools designed to
operation, directly or indirectly, of any regulate the accessibility of a users profile as well
lascivious exhibition of sexual organs or sexual as information uploaded by the user. It is through
activity, with the aid of a computer system, for the availability of said privacy tools that many OSN
favor or consideration. Petitioners expressed (Online Social Network) users are said to have a
their fear that private communications of subjective expectation that only those to whom
sexual character between consenting adults, they grant access to their profile will view the
which are not regarded as crimes under the information they post or upload thereto.
penal code, would now be regarded as crimes
when done for favor in cyberspace. Is the This, however, does not mean that any Facebook
argument of the petitioners valid? user automatically has a protected expectation of
privacy in all of his or her Facebook activities.
A: NO. The deliberations of the Bicameral
Committee of Congress on Sec.4(c)(i) of the law Before one can have an expectation of privacy in
show a lack of intent to penalize a private showing his or her OSN activity, it is first necessary that said
between and among two private persons although user, in this case the children of
that may be a form of obscenity to some. The petitioners, manifest the intention to keep certain

posts private, through the employment of their building. The case was dismissed for
measures to prevent access thereto or to limit its failure of Aldo to substantiate its allegations.
visibility. And this intention can materialize in Aldo Inc. then installed two cameras on their
cyberspace through the utilization of the OSNs building facing the property of the Sps. Hing.
privacy tools. In other words, utilization of these The spouses contend that the installation of the
privacy tools is the manifestation, in cyber world, cameras was an invasion of their privacy. Is
of the users invocation of his or her right to there a limitation on the installation of
informational privacy. surveillance cameras?
Therefore, a Facebook user who opts to make use A: YES. In this day and age, video surveillance
of a privacy tool to grant or deny access to his or cameras are installed practically everywhere for
her post or profile detail should not be denied the the protection and safety of everyone. The
informational privacy right which necessarily installation of these cameras, however, should not
accompanies said choice. Otherwise, using these cover places where there is reasonable expectation
privacy tools would be a feckless exercise, such of privacy, unless the consent of the individual,
that if, for instance, a user uploads a photo or any whose right to privacy would be affected, was
personal information to his or her Facebook page obtained. Nor should these cameras be used to pry
and sets its privacy level at Only Me or a custom into the privacy of anothers residence or business
list so that only the user or a chosen few can view office as it would be no different from
it, said photo would still be deemed public by the eavesdropping, which is a crime under Republic
courts as if the user never chose to limit the Act No. 4200 or the Anti-Wiretapping Law (Sps.
photos visibility and accessibility. Such position, if Hing vs. Choachuy, G.R. No. 179736, June 26, 2013).
adopted, will not only strip these privacy tools of
their function but it would also disregard the very ANTI-WIRE TAPPING ACT (RA 4200)
intention of the user to keep said photo or
information within the confines of his or her Prohibited Acts under RA 4200
private space (Vivares vs. St. Theresas College, G.R. 1. To tap any wire or cable, or by using any other
No. 202666, September 29, 2014). device or arrangement, to secretly overhear,
intercept, or record such communication or
Reasonable expectation of privacy test spoken word by using a device commonly
known as a dictaphone or dictagraph or
This test determines whether a person has a detectaphone or walkie-talkie or tape
reasonable expectation of privacy and whether the recorder, or however otherwise described by
expectation has been violated. any person, not being authorized by all the
parties to any private communication or
In Ople v. Torres, we enunciated that the spoken word
reasonableness of a persons expectation of privacy 2. To knowingly possess any tape record, wire
depends on a two-part test: record, disc record, or any other such record,
1. Whether, by his conduct, the individual has or copies thereof, of any communication or
exhibited an expectation of privacy; and spoken word secured either before or after the
2. This expectation is one that society recognizes effective date of this Act in the manner
as reasonable. prohibited by this law; or
3. To replay the same for any other person or
Customs, community norms, and practices may, persons; or
therefore, limit or extend an individuals 4. To communicate the contents thereof, either
reasonable expectation of privacy. Hence, the verbally or in writing, or
reasonableness of a persons expectation of privacy 5. To furnish transcriptions thereof, whether
must be determined on a case-to-case basis since it complete or partial, to any other person.
depends on the factual circumstances surrounding
the case (Ople vs. Torres, G.R. No. 127685, July 23, NOTE: The law does not distinguish between a
1998). party to the private communication or a third
person. Hence, both a party and a third person
could be held liable under R.A. 4200 if they commit
Q: Sps. Hing were owner of a parcel of land and
any of the prohibited acts under R.A. 4200
Aldo Inc. constructed an auto-repair shop
(Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995).
building on the adjacent lot. Aldo filed a case for
injunction and damages claiming that the Sps.
Under Sec. 3 of RA 4200, a peace officer, who is
Hing were constructing a fence without valid
authorized by a written order of the Court, may
permit and that the construction would destroy
execute any of the acts declared to be unlawful in

2015GOLDEN NOTES
BILL OF RIGHTS
Sec. 1 and Sec. 2 of the said law in cases involving As the Solicitor General pointed out in his
the crimes of: COMMENT before the respondent court: "Nowhere
1. Treason (in the said law) is it required that before one can
2. Espionage be regarded as a violator, the nature of the
3. Provoking war and disloyalty in case of war conversation, as well as its communication to a
4. Piracy and mutiny in the high seas third person should be professed."
5. Rebellion (conspiracy and proposal and
inciting to commit included) The phrase "private communication" in Section 1
6. Sedition (conspiracy, inciting included) of R.A. 4200 is broad enough to include verbal or
7. Kidnapping non-verbal, written or expressive communications
8. Violations of CA 616 (punishing espionage and of "meanings or thoughts" which are likely to
other offenses against national security) include the emotionally-charged exchange between
petitioner and private respondent, in the privacy of
The use of telephone extension is not a violation of the latter's office (Ramirez vs. CA, G.R. No. 93833
RA 4200 (Anti-WireTapping Law). The use of a September 28, 1995).
telephone extension to overhear a private
conversation is neither among those devices, nor Q: DOJ Secretary Raul Gonzales warned that
considered as a similar device, prohibited under reporters who had copies of the compact disc
the law (Gaanan v. IAC, G.R. No.L-69809 Oct. 16, (CD) and those broadcasting or publishing its
1986). contents could be held liable under the Anti-
Wiretapping Act. Secretary Gonzales also
NOTE: Anti-Wiretapping Act only protects letters, ordered the NBI to go after media organizations
messages, telephone calls, telegrams and the like. found to have caused the spread, the playing
and the printing of the contents of a tape of an
Q: Ester S. Garcia, in a confrontation with alleged wiretapped conversation involving the
Socorro Ramirez, allegedly vexed, insulted, and President about fixing votes in 2004 national
humiliated Ramirez in a "hostile and furious elections. Can the DOJ Secretary use the Anti-
mood" and in a manner offensive to Ramirezs Wiretapping act as a regulatory measure to
dignity and personality. Ramirez then filed a prohibit the media from publishing the
civil case for damages against Garcia. In contents of the CD?
support of her claim, Ramirez produced a
verbatim transcript of the event. The transcript A: NO. The Court ruled that not every violation of a
on which the civil case was based was culled law will justify straitjacketing the exercise of
from a tape recording of the confrontation. freedom of speech and of the press. There are laws
of great significance but their violation, by itself
As a result of Ramirezs recording of the event, and without more, cannot support suppression of
Garcia filed a criminal case for violation of RA free speech and free press. In fine, violation of law
4200, alleging that the act of secretly taping the is just a factor, a vital one to be sure, which should
confrontation was illegal. Ramirez contends be
that the facts charged do not constitute an weighed in adjudging whether to restrain freedom
offense. Was there a violation of RA 4200? of speech and of the press. The totality of the
injurious effects of the violation to private and
A: YES. The unambiguity of the express words of public interest must be calibrated in light of the
the provision, taken together with the above- preferred status accorded by the Constitution and
quoted deliberations from the Congressional by related international covenants protecting
Record, therefore plainly supports the view held by freedom of speech and of the press. By all means,
the respondent court that the provision seeks to violations of law should be vigorously
penalize even those privy to the private prosecuted by the State for they breed their own
communications. Where the law makes no evil consequence. But to repeat, the need to
distinctions, one does not distinguish. prevent their violation cannot per se trump the
exercise of free speech and free press, a preferred
The nature of the conversations is immaterial to a right whose breach can lead to greater evils
violation of the statute. The substance of the same (Francisco Chavez v. Raul M. Gonzales, G.R. No.
need not be specifically alleged in the information. 168338, Feb. 15, 2008).
The mere allegation that an individual made a
secret recording of a private communication by
means of a tape recorder would suffice to
constitute an offense under Section 1 of R.A. 4200.

Q: Are letters of a husbands paramour kept to address violations of or threats to the rights to
inside the husbands drawer, presented by the life, liberty or security as a remedy independently
wife in the proceeding for legal separation, from those provided under prevailing rules
admissible in evidence? (Manila Electric Company v. Lim, GR. No. 184769,
Oct. 5, 2010).
A: No, because marriage does not divest one of
his/her right to privacy of communication (Zulueta Who May File a petition for the writ of habeas
v. CA, G.R. No. 107383, Feb. 20, 1996). data
Exclusionary rule Any person whose right to privacy in life, liberty or

security is violated or threatened by an unlawful
Any evidence obtained in violation of the act or omission of a public official or employee, or
Constitution shall be inadmissible for any purpose of a private individual or entity engaged in the
in any proceeding. However, in the absence of gathering, collecting or storing of data or
governmental interference, the protection against information regarding the person, family, home
unreasonable search and seizure cannot be and correspondence of the aggrieved party (Sec. 1,
extended to acts committed by private individuals The Rule on the Writ of Habeas Data, A. M. No. 08-1-
(People v. Marti, G.R. No. 78109. Jan. 18, 1991). 16-SC, Jan. 22, 2008).
WRIT OF HABEAS DATA However, in cases of extralegal killings and

enforced disappearances, the petition may be
Writ of habeas data filed by:
a. Any member of the immediate family of the
A remedy available to any person whose right to aggrieved party, namely: the spouse, children
privacy in life, liberty or security is violated or and parents; or
threatened by an unlawful act or omission of a b. Any ascendant, descendant or collateral
public official or employee, or of a private relative of the aggrieved party within the
individual or entity engaged in the gathering, fourth civil degree of consanguinity or affinity,
collecting or storing of data or information in default of those mentioned in the preceding
regarding the person, family, home and paragraph (Sec. 2, The Rule on the Writ of
correspondence of the aggrieved party (Sec. 1, The Habeas Data, A. M. No. 08-1-16-SC, Jan. 22,
Rule on the Writ of Habeas Data, A. M. No. 08-1-16- 2008).
SC, Jan. 22, 2008).
Right to Informational Privacy
Reliefs available in the petition for issuance of
writ of habeas data It is usually defined as the right of individuals
to control information about themselves.
1. Updating, rectification, suppression or
destruction of the database or information or With the availability of numerous avenues for
files kept by the respondent; information gathering and data sharing nowadays,
2. In case of threats of the unlawful act, the relief not to mention each systems inherent
may include a prayer for an order enjoining vulnerability to attacks and intrusions, there is
the act complained of. more reason that every individuals right to control
3. A general prayer for other reliefs that are just said flow of information should be protected and
and equitable under the circumstances is also that each individual should have at least a
allowed. reasonable expectation of privacy in cyberspace.
Several commentators regarding privacy and social
When Writ of Habeas Data is not applicable networking sites, however, all agree that given the
millions of online social network users, in this
A writ of habeas data may not be issued to protect Social Networking environment, privacy is no
purely property and commercial concerns nor longer grounded in reasonable expectations, but
when the grounds invoked in support of the rather in some theoretical protocol better known
petitions therefore are vague or doubtful. as wishful thinking.
NOTE: It bears reiteration that like the writ of It is due to this notion that the Court saw the
amparo, habeas data was conceived as a response, pressing need to provide for judicial remedies that
given the lack of effective and available remedies, would allow a summary hearing of the unlawful
to address the extraordinary rise in the number of use of data or information and to remedy possible
killings and enforced disappearances. Its intent is violations of the right to privacy. The South African

2015GOLDEN NOTES
BILL OF RIGHTS
High Court, in its Decision in the landmark case, H 2. Enhance principles of democracy
v. W, recognized that the law has to take into 3. Expression of self-fulfillment of citizens
account the changing realities not only
technologically but also socially or else it will lose Scope of protected freedom of expression
credibility in the eyes of the people. It is imperative under the Constitution
that the courts respond appropriately to changing
times, acting cautiously and with wisdom. 1. Freedom of speech
Consistent with this, the Court, by developing what 2. Freedom of the press
may be viewed as the Philippine model of the writ 3. Right of assembly and to petition the
of habeas data, in effect, recognized that, generally government for redress of grievances
speaking, having an expectation of informational 4. Right to form associations or societies not
privacy is not necessarily incompatible with contrary to law
engaging in cyberspace activities, including those 5. Freedom of religion
that occur in OSNs (Vivares vs. St. Theresas College, 6. Right to access to information on matters of
G.R. No. 202666, September 29, 2014). public concern.
Q: Is the writ of habeas data confined only to Protected speech includes every form of
cases of extralegal killings and enforced expression, whether oral, written, tape or disc
disappearances? recorded. It includes motion pictures as well as
what is known as symbolic speech such as the
A: NO. Habeas data, to stress, was designed to wearing of an armband as a symbol of protest.
safeguard individual freedom from abuse in the Peaceful picketing has also been included within
information age. As such, it is erroneous to limit the meaning of speech.
its applicability to extralegal killings and enforced
disappearances only. Limitations on freedom of expression
The writ of habeas data, however, can be availed of It should be exercised within the bounds of laws
as an independent remedy to enforce ones right to enacted for the promotion of social interests and
privacy, more specifically the right to informational the protection of other equally important
privacy. The remedies against the violation of such individual rights such as:
right can include the updating, rectification, 1. Laws against obscenity, libel and slander
suppression or destruction of the database or (contrary to public policy)
information or files in possession or in control of 2. Right to privacy of an individual
respondents (Vivares vs. St. Theresas College, G.R. 3. Right of state/government to be protected
No. 202666, September 29, 2014). from seditious attacks
4. Legislative immunities
FREEDOM OF EXPRESSION 5. Fraudulent matters
6. Advocacy of imminent lawless conducts
Freedom of expression 7. Fighting words
8. Guarantee implies only the right to reach a
No law shall be passed abridging the freedom of willing audience but not the right to compel
speech, of expression, or of the press, or of the others to listen, see or read
right of the people peaceably to assemble and
petition the government for redress of grievances Unprotected Speech/Expression v. Protected
(Sec. 4, Art. III, 1987 Philippine Constitution). Speech/Expression
Rationale behind the provision on freedom of UNPROTECTED UNPROTECTED

expression SPEECH SPEECH
General guidelines; All those excluded from
Consistent with its intended role in society, it Obscenity; unprotected expression
means that the people are kept from any undue Incitement to national and may include:
interference from the government in their thoughts security;
and words. The guarantee basically flows from the False or misleading Utterances critical of
philosophy that the authorities do not necessarily advertisement; public conduct;
know what is best for the people. Libelous speech; Ordinary commercial
Hate speech; speech;
Bases for Protection Contumacious speech Satirical
speech/comedy
1. Promotion of truth

gestures and expressions during the ordeal of his

Four aspects of freedom of speech and press trial might well transgress his personal
sensibilities, his dignity, and his ability to
1. Freedom from censorship or prior restraint concentrate on the proceedings before him. A
see discussion on prior restraint. defendant on trial for a specific crime is entitled to
2. Freedom from subsequent punishment to his day in court, not in a stadium, or a city or
publication see discussion on subsequent nationwide arena. The heightened public clamor
punishment. resulting from radio and television coverage will
3. Freedom of access to information regarding inevitably result in prejudice (Re: Request for
matters of public interest Official papers, Radio-TV Coverage of the Trial in the
reports and documents, unless held Sandiganbayan of the Plunder Cases Against the
confidential and secret by competent authority Former President Joseph E. Estrada, A.M. No. 01-4-
in the public interest, are public records. As 03-SC, June 29, 2001).
such, they are open and subject to regulation,
to the scrutiny of the inquiring reporter or Q: In 2011, the Supreme Court promulgated a
editor. Information obtained confidentially Resolution partially granting pro hac vice the
may be printed without specification of the request for live broadcast by television and
source; and that source is closed to official radio of the trial court proceedings of the
inquiry, unless the revelation is deemed by the Maguindanao massacre cases, subject to
courts, or by a House or committee of the specific guidelines set forth in said Resolution.
Congress, to be vital to the security of the State. Accused Andal Ampatuan, Jr. filed a Motion for
4. Freedom of circulation Refers to the Reconsideration alleging that the Resolution
unhampered distribution of newspapers and deprives him of his rights to due process,
other media among customers and among the equal protection, presumption of innocence,
general public. It may be interfered with in and to be shielded from degrading
several ways. The most important of these is psychological punishment. Ampatuan
censorship. Other ways include requiring a contends that the Court should accord more
permit or license for the distribution of media vigilance because the immense publicity and
and penalizing dissemination of copies made adverse public opinion which live media
without it, and requiring the payment of a fee coverage can produce would affect everyone,
or tax, imposed either on the publisher or on including the judge, witnesses, and the families
the distributor, with the intent to limit or of all concerned parties. The OSG, however,
restrict circulation. These modes of interfering contends that the coverage by live media
with the freedom to circulate have been neither constitutes a barbarous act nor inflicts
constantly stricken down as unreasonable upon the accused inhuman physical harm or
limitations on press freedom (Chavez v. torture that is shocking to the conscience and is
Gonzales G.R. No. 168338, Feb. 15, 2008). freedom of the press. Should live broadcast of
the trial be disallowed?
NOTE: There need not be total suppression; even
restriction of circulation constitutes censorship. A: The Court is now disallowing live media
broadcast of the trial of Maguindanao massacre
Q: The Kapisanan ng mga Brodkaster ng cases but is still allowing the filming of the
Pilipinas (KBP) sent a letter requesting the proceedings for (1) the real-time transmission to
Supreme Court to allow live media coverage of specified viewing areas, and (2) documentation.
the anticipated trial of the plunder and other
criminal cases filed against former President While the Court recognizes the freedom of press
Joseph E. Estrada before the Sandiganbayan in and the right to public information, the
order to assure the public of full transparency constitutional rights of the accused provide more
in the proceedings. Should they be allowed to than ample justification to take a second look at the
cover the trial grounding their petition on the view that a camera that broadcasts the proceedings
constitutional right of the public to information live on television has no place in a criminal trial
and freedom of the press? because of its prejudicial effects on the rights of
accused individuals. As we have previously held,
A: NO. Live TV coverage may be prohibited since the live coverage of judicial proceedings involve an
the right of the accused must prevail over the right inherent denial of due process. In this case that has
of the public to information and freedom of the achieved notoriety and sensational status, a greater
press. Its presence is a form of mental - if not degree of care is required to safeguard the
physical-harassment, resembling a police line-up constitutional rights of the accused. To be in the
or the third degree. The inevitable close-up of his best position to weigh the conflicting testimonies

2015GOLDEN NOTES
BILL OF RIGHTS
of the witnesses, the judge must not be affected by NOTE: Freedom from prior restraint is largely
any outside force or influence. Like any human freedom from government censorship of
being, however, a judge is not immune from the publications, whatever the form of censorship, and
pervasive effects of media. regardless of whether it is wielded by the
executive, legislative or judicial branch of the
In a constitutional sense, public trial is not government. Thus, it precludes governmental acts
synonymous with publicized trial. The right to a that required approval of a proposal to publish;
public trial belongs to the accused. The licensing or permits as prerequisites to publication
requirement of a public trial is satisfied by the including the payment of license taxes for the
opportunity of the public and press to attend the privilege to publish; and even injunctions against
trial and to report what they have observed. The publication. Even the closure of the business and
accuseds right to a public trial should not be printing offices of certain newspapers, resulting in
confused with the freedom of the press and the the discontinuation of their printing and
publics right to know as a justification for allowing publication, are deemed as previous restraint or
the live broadcast of the trial (Notice of Resolution, censorship. Any law or official that requires some
In Re: Petition for Radio and TV Coverage of cases form of permission to be had before publication
against Zaldy Ampatuan, et. al., A.M. No. 10-11-5-SC, can be made, commits an infringement of the
October 23, 2012). constitutional right, and remedy can be had at the
courts (Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
Q: Members of the faculty of the University of 2008).
the Philippines College of Law published a
statement on the allegations of plagiarism and Exceptions to the prohibition of prior restraint
misrepresentation relative to a certain Courts
decision. Essentially, the faculty calls for the 1. Pornography
resignation of Justice Mario Pascual in the face 2. False or Misleading Advertisement
of allegations of plagiarism in his work. Does 3. Advocacy of Imminent Lawless Actions
this act of the faculty members squarely fall 4. Danger to National Security (Soriano v. MTRCB,
under the freedom of speech and expression? G.R. No. 165636, April 29, 2009).
A: NO. The publication of a statement by the faculty Near v. Minnesota, 283 US 697 (1931) adds the
of the University of the Philippines College following to the enumeration:
regarding the allegations of plagiarism and 1. When a nation is at war, many things that
misrepresentation in the Supreme Court was might be said in time of peace are such a
totally unnecessary, uncalled for and a rash act of hindrance to its effort that their utterance will
misplaced vigilance. While most agree that the not be endured so long as men fight and that
right to criticize the judiciary is critical to no court could regard them as protected by
maintaining a free and democratic society, there is any constitutional right.
also a general consensus that healthy criticism only 2. The primary requirements of decency may be
goes so far. Many types of criticism leveled at the enforced against obscene publications.
judiciary cross the line to become harmful and 3. The security of community life may be
irresponsible attacks. These potentially protected against incitements to acts of
devastating attacks and unjust criticism can violence and the overthrow by force of orderly
threaten the independence of the judiciary (Re: government.
Letter of the UP Law Faculty entitled Restoring
Integrity: A Statement by the Faculty of the University of Q: Are the provisions of the Revised Penal Code
the Philippines College of Law on the Allegations of on Libel and the provision of the Cyber Crime
Plagiarism and Misrepresentation in the Supreme Law on cyber libel constitutional?
Court., A.M. No. 10-10-4-SC, Oct. 19, 2010).
A: YES. Libel is not a constitutionally protected
PRIOR RESTRAINT (CENSORSHIP) speech and that the government has an obligation
to protect private individuals from defamation.
Prior restraint Indeed, cyber libel is actually not a new crime since
Art. 353, in relation to Art. 355 of the penal code,
Means official government restrictions on the press already punishes it. In effect, Sec. 4(c)(4) merely
or other forms of expression in advance of actual affirms that online defamation constitutes similar
publication or dissemination (Bernas, The 1987 means for committing libel. Furthermore, the
Philippine Constitution A Comprehensive Reviewer, United Nations Human Rights Committee did not
2006). actually enjoin the Philippines to decriminalize
libel. It simply suggested that defamation laws be

crafted with care to ensure that they do not stifle who willfully abets or aids in the commission of
freedom of expression. Free speech is not absolute. any of the offenses enumerated in the said law.
It is subject to certain restrictions, as may be Is this provision of the law constitutional?
necessary and as may be provided by law (Disini v.
Secretary of Justice G.R. No. 203335 February 11, A: NO. The terms aiding or abetting constitute
2014). broad sweep that generates chilling effect on those
who express themselves through cyberspace posts,
NOTE: In her dissenting and concurring comments, and other messages. Its vagueness
opinion, Chief Justice Maria Lourdes Sereno posits raises apprehension on the part of internet users
that the ponencia correctly holds that libel is not a because of its obvious chilling effect on the
constitutionally protected conduct. It is also correct freedom of expression, especially since the crime of
in holding that, generally, penal statutes cannot be aiding or abetting ensnares all the actors in the
invalidated on the ground that they produce a cyberspace front in a fuzzy way. Hence, Sec. 5 of
chilling effect, since by their very nature, they are the cybercrime law that punishes aiding or
intended to have an in terrorem effect (benign abetting libel on the cyberspace is a nullity. But
chilling effect) to prevent a repetition of the offense Nestor, the author, is still liable for the defamatory
and to deter criminality. The chilling effect is words he posted (Disini v. Secretary of Justice G.R.
therefore equated with and justified by the No. 203335 February 11, 2014).
intended in terrorem effect of penal provisions.
FREEDOM FROM SUBSEQUENT PUNISHMENT
Thus, when Congress enacts a penal law affecting
free speech and accordingly imposes a penalty that Freedom from subsequent punishment
is so discouraging that it effectively creates an
invidious chilling effect, thus impeding the A limitation on the power of the State from
exercise of speech and expression altogether, then imposing a punishment after publication or
there is a ground to invalidate the law. In this dissemination. Without this assurance, the
instance, it will be seen that the penalty provided individual would hesitate to speak for fear that he
has gone beyond the in terrorem effect needed to might be held to account for his speech, or that he
deter crimes and has thus reached the point of might be provoking the vengeance of the officials
encroachment upon a preferred constitutional he may have criticized (Antonio Nachura, Outline
right. Reviewer in Political Law, p. 152).
Two kinds of chilling effect This second basic prohibition of the free speech
and press clause prohibits systems of subsequent
BENIGN CHILLING INVIDIOUS CHILLING punishment which have the effect of unduly
EFFECT EFFECT curtailing expression.
May be caused by penal May be caused by penal
statutes which are laws affecting free NOTE: Freedom from subsequent punishment is
intended to have an in speech and accordingly not absolute; it may be properly regulated in the
terrorem effect to imposes a penalty that interest of the public. The State may validly impose
prevent a repetition of is so discouraging thus penal and/or administrative sanctions such as in
the offense and to deter impeding the exercise the following:
criminality. The chilling of speech and 1. Libel A public and malicious imputation of a
effect is equated with expression altogether. crime, vice or defect, real or imaginary or any
and justified by the act omission, status tending to cause dishonor,
intended in terrorem discredit or contempt of a natural or judicial
effect of penal person, or blacken the memory of one who is
provisions. dead (Art 353, Revised Penal Code).
Permissible Not Permissible 2. Obscenity In Pita v. Court of Appeals, the
Supreme Court declared that the
Q: Nestor posted on Facebook that Juan Dela determination of what is obscene is a judicial
Cruz, a married person, has an illicit affair with function (Pita vs. Court of Appeals, G.R. No.
Maria. Dexter liked this post and commented: 80806, October 5, 1989).
Yes! This is true! What an immoral thing to 3. Criticism of Official Conduct In New York
do?! This post was likewise liked by 23 people. Times v. Sullivan, 376 US 254 (1964), the
Juan Dela Cruz filed a case for online libel constitutional guarantee requires a federal
against Nestor, Dexter and 23 other people who rule that prohibits a public official from
liked the post using as his basis Sec. 5 of the recovering damages for a defamatory
Cybercrime law which penalizes any person falsehood relating to his official conduct unless

2015GOLDEN NOTES
BILL OF RIGHTS
he proves that the statement was made with knowledge that it is false or with reckless disregard
actual malice. of whether it was false or not, the defendants are
4. Rights of students to free speech in school not liable for damages (Borjal v. CA, G.R. No.
premises not absolute The school cannot 126466, Jan. 14, 1999).
suspend or expel a student solely on the basis
of the articles he has written except when such Q: Is the Borjal doctrine applicable in a case
article materially disrupts class work or where the allegations against a public official
involves substantial disorder or invasion of were false and that the journalist did not exert
rights of others.(Miriam College Foundation v. effort to verify the information before
CA, GR 127930, Dec. 15, 2000). publishing his articles?
Doctrine of Fair Comment A: NO. Borjal may have expanded the protection of
qualified privileged communication beyond the
GR: Every discreditable public imputation is false instances given in Art. 354 of the RPC, but this
because every man is presumed innocent, thus, expansion does not cover such a case. The
every false imputation is deemed malicious, hence, expansion speaks of "fair commentaries on matters
actionable. of public interest." While Borjal places fair
commentaries within the scope of qualified
XPN: When the discreditable imputation is privileged communication, the mere fact that the
directed against a public person in his public subject of the article is a public figure or a matter of
capacity, such is not necessarily actionable. public interest does not automatically exclude the
author from liability. His articles cannot even be
NOTE: For it to be actionable, it must be shown considered as qualified privileged communication
that either there is a false allegation of fact or under the second paragraph of Art. 354 of the RPC,
comment based on a false supposition. which exempts from the presumption of malice a
fair and true report. Good faith is lacking (Tulfo v.
XPN to the XPN: If the comment is an People, G.R. No. 161032, Sept. 16, 2008).
expression of opinion, based on established
facts; it is immaterial whether the opinion Q: Erika Ong penned several articles in Malaya
happens to be mistaken, as long as it might newspaper regarding alleged bribery incidents
reasonably be inferred from facts (Borjal v. CA, in the Supreme Court and characterizing the
G.R. No. 126466, Jan. 14, 1999). justices as thieves and a basket of rotten
apples. The Court En Banc required Erika to
Q: A national daily newspaper carried an explain why no sanction should be imposed on
exclusive report stating that Senator Ryan her for indirect contempt of court. Did the
Christopher received a house and lot located at order of the Court violate freedom of the press?
YY Street, Makati, in consideration for his vote
to cut cigarette taxes by 50%. The Senator sued A: NO. While freedom of speech, of expression and
the newspaper, its reporter, editor and of the press are at the core of civil liberties and
publisher for libel, claiming the report was have to be protected at all costs for the sake of
completely false and malicious. According to democracy, these freedoms are not absolute. For, if
the Senator, there is no YY Street in Makati, and left unbridled, they have the tendency to be abused
the tax cut was only 20%. He claimed one and can translate to licenses, which could lead to
million pesos in damages. The defendants disorder and anarchy. Erika crossed the line, as
denied "actual malice," claiming privileged hers are baseless scurrilous attacks which
communication and absolute freedom of the demonstrate nothing but an abuse of press
press to report on public officials and matters freedom. They leave no redeeming value in
of public concern. If there was any error, the furtherance of freedom of the press. They do
newspaper said it would publish the correction nothing but damage the integrity of the High Court,
promptly. Are the defendants liable for undermine the faith and confidence of the people
damages? in the judiciary, and threaten the doctrine of
judicial independence (In Re: Allegations Contained
A: NO. Since Senator Ryan Christopher is a public in the Columns of Mr. Amado P. Macasaet, A.M. No.
person and the questioned imputation is directed 07-09-13-SC, Aug. 8, 2008).
against him in his public capacity, in this case
actual malice means the statement was made with
knowledge that it was false or with reckless
disregard of whether it was false or not. Since there
is no proof that the report was published with

TESTS same course of conduct, whether there is a

sufficiently important governmental interest
Tests for valid governmental interference to that warrants regulating the non-speech
freedom of expression element, incidentally limiting the speech
element.
1. Clear and Present Danger test
NOTE: A government regulation is valid if:
Question: Whether the words are used in such a. It is within the constitutional power of
circumstances and are of such a nature as to the government;
create a clear and present danger that they will b. In furtherance of an important or
bring about the substantive evils that Congress substantial governmental interest;
has a right to prevent. It is a question of c. Governmental interest is unrelated to
proximity and degree (Schenck v. US, 249 US the suppression of free expression; and
47, 1919). d. The incidental restriction on the
freedom is essential to the furtherance
Emphasis: The danger created must not only be of that interest (US v. OBrien, 391 US
clear and present but also traceable to the 367, 1968; SWS v. COMELEC, G.R.
ideas expressed (Gonzales v. COMELEC, G.R. No. 147571, May 5, 2001).
L-27833, April 18, 1969).
6. Direct Incitement test
2. Dangerous Tendency test
Question: What words did a person utter and
Question: Whether the speech restrained has a what is the likely result of such utterance?
rational tendency to create the danger
apprehended, be it far or remote, thus Emphasis: The very words uttered, and their
government restriction would then be allowed. ability to directly incite or produce imminent
It is not necessary though that evil is actually lawless action.
created for mere tendency towards the evil is
enough. NOTE: It criticizes the clear and present
danger test for being too dependent on the
Emphasis: Nature of the circumstances under specific circumstances of each case.
which the speech is uttered, though the speech
per se may not be dangerous. 7. Roth Test on Obscenity
3. Grave-but-Improbable Danger test Question: Whether to the average person,

applying contemporary community standards,
Question: Whether the gravity of the evil, the dominant theme of the material taken as a
discounted by its improbability, justifies such whole appeals to prurient interest (Gonzales v.
an invasion of free speech as is necessary to Kalaw-Katigbak, G.R. No. L-69500 July 22,
avoid the danger (Dennis v. US, 341 US 494, 1985).
1951).
8. Miller Test on Indecent Speech
4. Balancing of interest test
Question: Whether the work depicts or
Question: Which of the two conflicting interests
describes, in a patently offensive way, sexual
(not involving national security crimes)
conduct specifically defined by the applicable
demands the greater protection under the
state law; and the work, taken as whole, lacks
particular circumstances presented:
serious literary, artistic, political, or scientific
a. When particular conduct is regulated in
value (Soriano v. Laguardia, G.R. No. 164785,
the interest of public order
March 15, 2010).
b. And the regulation results in an indirect,
conditional and partial abridgement of
speech (Gonzales v. COMELEC, G.R. No. L-
27833, Apr. 18, 1969).
5. OBrien test
Question: in situations when speech and

non-speech elements are combined in the

2015GOLDEN NOTES
BILL OF RIGHTS
CONTENT-BASED & of the threatened harm otherwise the prior

CONTENT-NEUTRAL REGULATION restraint will be invalid. Prior restraint on speech
based on its content cannot be justified by
CONTENT-NEUTRAL CONTENT-BASED hypothetical fears, but only by showing a
REGULATION RESTRAINT substantive and imminent evil that has taken the
Merely concerned The restriction is based life of a reality already on ground. As formulated,
with the incidents of on the subject matter of the question in every case is whether the words
the speech, or one that the utterance or speech. used are used in such circumstances and are of
merely controls the The cast of the restriction such a nature as to create a clear and present
time, place or manner, determines the test by danger that they will bring about the
and under well- which the challenged act substantive evils that Congress has a right to
defined standards. is assailed with. prevent. It is a question of proximity and degree.
The regulation which restricts the speech content
No presumption of There is presumption of must also serve an important or substantial
unconstitutionality unconstitutionality government interest, which is unrelated to the
suppression of free expression (Chavez v. Gonzales,
NOTE: The burden of G.R. No. 168338, Feb. 15, 2008).
proof to overcome the
presumption of Q: The NTC issued a warning that that the
unconstitutionality is continuous airing or broadcast by radio and
with the government. television stations of the alleged wiretapped
Test to be used: Test to be used: Clear and conversation involving the President allegedly
Intermediate Present Danger fixing votes in the 2004 national elections is a
Approach continuing violation of the Anti-Wiretapping
Law and shall be just cause for the suspension,
Intermediate Approach Test revocation and/or cancellation of the licenses
or authorizations issued to the said companies.
Used when the speech restraints take the form of a Were the rights to freedom of expression and of
content-neutral regulation, only a substantial the press, and the right of the people to
governmental interest is required for its validity. information on matters of public concern
Because regulations of this type are not designed to violated by such warning of the NTC?
suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but A: YES. Said rights were violated applying the
an intermediate approachsomewhere between clear and present danger test. The challenged acts
the mere rationality that is required of any other need to be subjected to the clear and present
law and the compelling interest standard applied danger rule, as they are content-based restrictions.
to content-based restrictions. The test is called The acts of NTC and the DOJ Sec. focused solely on
intermediate because the Court will not merely but one objecta specific content fixed as these
rubberstamp the validity of a law but also require were on the alleged taped conversations between
that the restrictions be narrowly-tailored to the President and a COMELEC official. Undoubtedly
promote an important or significant governmental these did not merely provide regulations as to the
interest that is unrelated to the suppression of time, place or manner of the dissemination of
expression (Chavez v. Gonzales, G.R. No. 168338, speech or expression.
Feb. 15, 2008).
A governmental action that restricts freedom of
NOTE: A law is narrowly-tailored if it is for the speech or of the press based on content is given
advancement of states interest, if it does not the strictest scrutiny, with the government having
restrict a significant amount of speech that does the burden of overcoming the presumed
not implicate the government interest and if it is unconstitutionality by the clear and present danger
the least restrictive alternative available to serve rule. It appears that the great evil which
such interest (Eugene Volokh, Freedom of Speech, government wants to prevent is the airing of a tape
Permissible Tailoring and Transcending Strict recording in alleged violation of the anti-
Scrutiny, 144 U. Pennsylvania L. Rev. 2417, 1997). wiretapping law.
Clear and Present Danger Test The evidence falls short of satisfying the clear and
present danger test. Firstly, the various statements
The government must also show the type of harm of the Press Secretary obfuscate the identity of the
the speech sought to be restrained would bring voices in the tape recording. Secondly, the integrity
about especially the gravity and the imminence of the taped conversation is also suspect. The Press

Secretary showed to the public two versions, one Q: Is facial challenge to a penal statute allowed?
supposed to be a complete version and the other,
an altered version. Thirdly, the evidence on the A: NO. Facial challenges are not allowed in penal
whos and the hows of the wiretapping act is statutes. Criminal statutes have general in
ambivalent, especially considering the tapes terrorem effect resulting from their very existence,
different versions. The identity of the wire-tappers, and, if facial challenge is allowed for this reason
the manner of its commission and other related alone, the State may well be prevented from
and relevant proofs are some of the invisibles of enacting laws against socially harmful conduct. In
this case. Fourthly, given all these unsettled facets the area of criminal law, the law cannot take
of the tape, it is even arguable whether its airing chances as in the area of free speech (KMU v.
would violate the Anti-Wiretapping Law. There is Ermita, G.R. No. 17855, Oct. 5, 2010).
no showing that the feared violation of the anti-
wiretapping law clearly endangers the national NOTE: A litigant cannot thus successfully mount a
security of the State (Chavez v. Gonzales, G.R. No. facial challenge against a criminal statute on either
168338, Feb. 15, 2008). vagueness or overbreadth grounds.
FACIAL CHALLENGES AND The rule established in our jurisdiction is, only
OVERBREADTH DOCTRINE statutes on free speech, religious freedom, and
other fundamental rights may be facially
Facial Challenge challenged (Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, G.R. No.
A challenge to a statute in court, in which the 178552, Oct. 5, 2010).
plaintiff alleges that the legislation is always, and
under all circumstances, unconstitutional, and Overbreadth Doctrine
therefore void.
Permits a party to challenge the validity of a statute
NOTE: Facial challenge to a statute is allowed only even though as applied to him it is not
when it operates in the area of freedom of unconstitutional but it might be if applied to others
expression. Invalidation of the statute on its face, not before the Court whose activities are
rather than as applied, is permitted in the interest constitutionally protected (Separate opinion of
of preventing a chilling effect on freedom of Justice Mendoza in Cruz v. Secretary of Environment
expression (Separate opinion of Justice Mendoza in and Natural Resources, GR. 135385, Dec. 6, 2000). It
Cruz v. Secretary of Environment and Natural is a type of facial challenge that prohibits the
Resources, GR. 135385, Dec. 6, 2000). government from achieving its purpose by means
that sweep unnecessarily broadly, reaching
Facial Challenge v. As-applied Challenge constitutionally protected as well as unprotected
activity.
FACIAL CHALLENGE AS-APPLIED
CHALLENGE NOTE: The application of the overbreadth doctrine
An examination of Considers is limited to a facial kind of challenge.
the entire law, only extant facts
pinpointing its flaws affecting real litigants The most distinctive feature of the overbreadth
and defects, not only on technique is that it marks an exception to some of
the basis of its actual the usual rules of constitutional litigation.
operation to the parties, Ordinarily, a particular litigant claims that a statute
but also on the is unconstitutional as applied to him or her; if the
assumption or litigant prevails, the courts carve away the
prediction that its very unconstitutional aspects of the law by invalidating
existence may cause its improper applications on a case to case basis.
others not before the Moreover, challengers to a law are not permitted to
court to refrain from raise the rights of the third parties and can only
constitutionally assert their own interests. In overbreadth analysis,
protected speech or those rules give way; challenges are permitted to
activities. raise the rights of third parties; and the court
(Southern Hemisphere Engagement Network, Inc. v. invalidates the entire statute on its face, not
Anti-Terrorism Council, G.R. No. 178552, Oct. 5, merely as applied for so that the overbroad law
2010). becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that
motivates court to depart from the normal

2015GOLDEN NOTES
BILL OF RIGHTS
adjudicatory rules is the concern with the observe the trial process (Secretary of Justice vs.
chilling, deterrent effect of the overbroad statute Estrada, A.M. No. 01-4-03-SC, September 13, 2001).
on third parties not courageous enough to bring
suit.The Court assumes that an overbroad laws Q: Can an offensive and obscene language
very existence may cause others not before the uttered in a prime-time television broadcast
court to refrain from constitutionally protected which was easily accessible to the children be
speech or expression. An overbreadth ruling is reasonably curtailed and validly restrained?
designed to remove that deterrent effect on the
speech of those third parties (Southern Hemisphere A: YES. In Soriano v. MTRCB, G.R. No. 165636, Apr.
Engagement Network, Inc. v. Anti-Terrorism Council, 29, 2009, the Court, applying the balancing of
G.R. No. 178552, Oct. 5, 2010). interest doctrine, ruled that the governments
interest to protect and promote the interests and
STATE REGULATION OF DIFFERENT welfare of the children adequately buttresses the
TYPES OF MASS MEDIA reasonable curtailment and valid restraint on
petitioners prayer to continue as program host
Live Media Coverage of Court Proceedings of Ang Dating Daan during the suspension period.
Sorianos offensive and obscene language uttered
The propriety of granting or denying permission to on prime-time television broadcast, without doubt,
the media to broadcast, record, or photograph was easily accessible to the children. His
court proceedings involves weighing the statements could have exposed children to a
constitutional guarantees of freedom of the language that is unacceptable in everyday use. As
press, the right of the public to information and the such, the welfare of children and the States
right to public trial, on the one hand, and on the mandate to protect and care for them, as parens
other hand, the due process rights of the patriae, constitute a substantial and compelling
defendant and the inherent and constitutional government interest in regulating Sorianos
power of the courts to control their proceedings in utterances in TV broadcast.
order to permit the fair and impartial
administration of justice. Collaterally, it also raises NOTE: In his dissenting opinion, Justice Carpio
issues in the nature of media, particularly cited Action for Children's Television v. FCC
television and its role in society, and of the impact which establishes the safe harbor period to be from
of new technologies on law. 10:00 in the evening to 6:00 in the morning, when
the number of children in the audience is at a
Considering the prejudice it poses to the minimum. In effect, between the hours of 10:00
defendant's right to due process as well as to the p.m. and 6:00 a.m., the broadcasting of material
fair and orderly administration of justice and considered indecent is permitted. Between the
considering further that the freedom of the press hours of 6:00 a.m. and 10:00 p.m., the broadcast of
and the right of the people to information may be any indecent material may be sanctioned.
served and satisfied by less distracting, degrading
and prejudicial means, live radio and television Q: COMELEC promulgated Resolution 2772
coverage of court proceedings shall not be allowed. stating that the Commission shall have free
Video footages of court hearings for news purposes print space in at least one newspaper as
shall be restricted and limited to shots of the COMELEC Space. This ad space will be used by
courtroom, the judicial officers, the parties and candidates for their campaign or platforms of
their counsel taken prior to the commencement of government, and for the Commissions
official proceedings. No video shots or photographs dissemination of vital information. Moreover,
shall be permitted during the trial proper. COMELEC released a letter-directive ordering
the different newspapers to comply with the
An accused has a right to a public trial but it is a said resolution. The petitioner contended that
right that belongs to him, more than anyone else, COMELEC violated the prohibition imposed by
where his life or liberty can be held critically in the Constitution against the taking of
balance. A public trial aims to ensure that he is properties without just compensation. On the
fairly dealt with and would not be unjustly other hand, COMELEC asserts their directive is
condemned and that his rights are not not mandatory and compelling and that they
compromised in secret conclaves of long ago. A only asked for a donation. Moreover, they aver
public trial is not synonymous with publicized trial; that even if the order is mandatory, it would
it only implies that the court doors must be open to still be valid through the use of police power. Is
those who wish to come, sit in the available seats, COMELECs action constitutional?
conduct themselves with proper decorum and

A: NO. The resolution is a blunt and heavy 1. Must not be false or misleading (Friedman v.
instrument that purports, without a showing of Rogers, 440 US 1, 1979).
existence of a national emergency or other 2. Should not propose an illegal transaction
imperious public necessity, indiscriminately and (Pittsburgh Press Co. v Human Relations
without regard to the individual business condition Commissions, 413 US 376, 1973).
of particular newspapers or magazines located in
differing parts of the country, to take private NOTE: However, even truthful and lawful
property of newspaper or magazine publishers. No commercial speech maybe regulated if:
attempt was made to demonstrate that a real and 1. government has a substantial interest to
palpable or urgent necessity for the taking of print protect;
space confronted the Comelec and that the 2. the regulation directly advances that interest;
resolution was itself the only reasonable and and
calibrated response to such necessity available to 3. it is not more than extensive than is necessary
the Comelec (Philippine Press Institute, Inc. v. to protect that interest (Central Hudson Gas &
COMELEC, G.R. No. L-119694, May 22, 1995). Electric Corp v. Public Service Commission of NY,
447 US 557 (1980)).
Q: Petitioners challenge the validity of Sec. 92,
BP 881 which provides: COMELEC Time The Q: EO 51 (Milk Code) was issued by President
Commission shall procure radio and television Chris Bautista on October 28, 1986 by virtue of
time to be known as the COMELEC Time which the legislative powers granted to the President
shall be allocated equally and impartially under the Freedom Constitution. On May 15,
among the candidates within the area of 2006, the DOH issued Revised Implementing
coverage of all radio and television stations. For Rules and Regulations (RIRR) which was to
this purpose, the franchise of all radio take effect on July 7, 2006. The Association of
broadcasting and television stations is hereby Healthcare Workers claimed that the Milk Code
amended so as to provide radio or television only regulates and does not impose
time, free of charge, during the period of unreasonable requirements for advertising and
campaign. Is Sec. 92 valid? promotion while RIRR imposes an absolute ban
on such activities for breastmilk substitutes
A: YES. In the granting of the privilege to operate intended for infants from 0-24 months old or
broadcast stations and thereafter supervising radio beyond, and forbids the use of health and
and television stations, the state spends nutritional claims. Were the labeling
considerable public funds in licensing and requirements and advertising regulations
supervising such stations. It would be strange if it under the RIRR valid?
cannot even require the licensees to render public
service by giving free air time. A: YES. Sec. 13 on total effect and Sec. 26 of Rule
VII of the RIRR contain some labeling
In truth, radio and television broadcasting requirements, specifically: a) that there be a
companies, which are given franchises, do not own statement that there is no substitute to breastmilk;
the airwaves and frequencies through which they and b) that there be a statement that powdered
transmit broadcast signals and images. They are infant formula may contain pathogenic
merely given the temporary privilege of using microorganisms and must be prepared and used
them. Since a franchise is a mere privilege, the appropriately. Sec. 16 of the RIRR prohibits all
exercise of the privilege may reasonably be health and nutrition claims for products within the
burdened with the performance by the grantee of scope of the Milk Code, such as claims of increased
some form of public service.(Telecommunications emotional and intellectual abilities of the infant
and Broadcast Attorneys of the Philippines, INC. v. and young child. These provisions of the Milk Code
COMELEC, G.R. No. 132922, April 21, 1998). expressly forbid information that would imply or
create a belief that there is any milk product
COMMERCIAL SPEECH equivalent to breastmilk or which is humanized or
maternalized, as such information would be
Commercial speech inconsistent with the superiority of breastfeeding.
Thus, the RIRR is a reasonable means of enforcing
Communication which no more than proposes a the Milk Code and deterring circumvention of the
commercial transaction. Advertisements of goods protection and promotion of breastfeeding as
or of services is an example of this. embodied in the Milk Code. (Pharmaceutical and
Health Care Association of the Philippines v. Duque,
To enjoy protection, commercial speech: G.R. No. 173034, October 9, 2007).

2015GOLDEN NOTES
BILL OF RIGHTS
PRIVATE V. GOVERNMENT SPEECH 2. It does not vest on the licensing authority

unfettered discretion in choosing the groups
GOVERNMENT SPEECH PRIVATE SPEECH which could use the public place and
The government may The right of a person to discriminate others.
advance its own speech freely speak ones mind
without requiring is a highly valued NOTE: Permits are not required for designated
viewpoint neutrality freedom in a republican freedom parks.
when the government and democratic society
itself is the speaker (Ashcroft v. Free Speech Rules on assembly in public places
(doctrine was implied Coalition, 535 U.S. 234
in Wooley v. Maynard in (2002)). 1. The applicant should inform the licensing
1971). authority of the date, the public place where
and the time when the assembly will take
place.
HECKLERS VETO 2. The application should be filed ahead of time
to enable the public official concerned to
Hecklers Veto apprise whether there are valid objections to
the grant of the permit or to its grant, but in
Occurs when an acting party's right to freedom of another public place. The grant or refusal
speech is curtailed or restricted by the government should be based on the application of the Clear
in order to prevent a reacting party's behavior. The and Present Danger Test.
term Hecklers Veto was coined by University of 3. If the public authority is of the view that there
Chicago professor of law Harry Kalven. is an imminent and grave danger of a
substantive evil, the applicants must be heard
The heckler's veto involves situations in which on the matter.
the government attempts to ban protected speech 4. The decision of the public authority, whether
because it might provoke a violent response. In favorable or adverse, must be transmitted to
such situations, the mere possibility of a violent the applicants at the earliest opportunity so
reaction to protected speech is simply not a that they may, if they so desire, have recourse
constitutional basis on which to restrict the right to to the proper judicial authority (Reyes v.
speak. (Roe vs. Crawford, 514 F.3d 789 (2008), Bagatsing, G.R. No. L-65366, Nov. 9, 1983).
January 22, 2008).
Assembly in private properties
It may be in the guise of a permit requirement in
the holding of rallies, parades, or demonstrations Only the consent of the owner of the property or
conditioned on the payment of a fee computed on person entitled to possession thereof is required.
the basis of the cost needed to keep order in view
of the expected opposition by persons holding Tests applicable to the exercise of the right to
contrary views (Gorospe, 2006, citing Forsyth assembly
County v. Nationalist Movement, 315 U.S. 568, 1942).
1. Purpose Test Looks into the purpose of the
FREEDOM OF ASSEMBLY AND PETITION assembly regardless of its backers (De Jonge v.
Oregon, 299 US 353, 365, 1937).
Right of the people to assemble and petition the 2. Auspices Test Looks into the
government for redress of grievances backers/supporters.
The right to assembly is not subject to prior NOTE: The ruling in Evangelista v. Earnshaw (G.R.
restraint. It may not be conditioned upon the prior No. 36453, Sept. 28, 1932) has not yet been
issuance of a permit or authorization from abrogated where the Mayor revoked permits he
government authorities. The right, however, must already granted because the group, the Communist
be exercised in such a way as will not prejudice the Party of the Philippines, was found by the fiscal to
public welfare. be an illegal association. When the intention and
Permit system effect of the act is seditious, the constitutional
guaranties of freedom of speech and press and of
Before one can use a public place, one must first assembly and petition must yield to punitive
obtain prior permit from the proper authorities. measures designed to maintain the prestige of
Such is valid if: constituted authority, the supremacy of the
1. It is concerned only with the time, place, and Constitution and the laws, and the existence of the
manner of assembly; and State.

indispensable condition to such modification (IBP

Q: Exec. Sec. Pat Alampay issued a policy via v. Atienza GR No. 175241 February 24, 2010).
press release. The policy pertains to the strict
implementation of BP 880 also known as the FREEDOM OF RELIGION
Public Assembly Act of 1985. It provides for the
strict enforcement of no permit, no rally Religion
policy, and arrest of all persons violating the
laws of the land, and dispersal of unlawful mass A profession of faith to an active power that binds
actions. Is BP Blg. 880 unconstitutional on the and elevates man to his creator (Aglipay v. Ruiz, GR.
ground that it violates the constitutionality No. L-45459, Mar. 13, 1937).
guaranteed right to peaceful assembly?
Guarantees contained in Sec. 5 Art. III of the
A: NO. BP 880 is constitutional. It does not curtail 1987 Constitution
or unduly restrict the freedom. It merely regulates
the use of public places as to the time, place and 1. Non-establishment clause;
manner of assemblies. Far from being insidious, 2. Free exercise clause, or the freedom of
maximum tolerance is for the benefit of the religious profession and worship.
rallyists, not the government. The delegation to the
mayors of the power to issue rally permits is NON-ESTABLISHMENT CLAUSE
valid because it is subject to the constitutionally
sound clear and present danger standard (Bayan Non-establishment clause
Karapatan v. Eduardo Ermita, et al., G.R. No.
169838, April 25, 2006). Art. III, Sec. 5 No law shall be made respecting an
establishment of religion, or prohibiting the free
Q: Is the policy of Calibrated Preemptive exercise thereof.
Response, the responsible and judicious use of
means allowed by existing laws and ordinances NOTE: The non- establishment clause means that
to protect public interest and public order, the state should adopt a position of neutrality
insofar as it would purport to differ from or be when it comes to religious matters (Political Law
in lieu of maximum tolerance, void on its face? Reviewer, Suarez, p. 252 citing CJ Fernando, 2011).
A: YES. Calibrated Preemptive Response Policy is Purpose of the non-establishment clause

illegal. In view of the maximum tolerance policy
mandated by BP Blg. 880, CPR serves no valid There is no unanimous interpretation of this clause
purpose if it means the same thing as maximum as a political principle, but there seems to be a
tolerance, and is illegal if it means something else. substantial agreement that this protects
Accordingly, what is to be followed is and should voluntarism and insulation of the political process
be that mandated by law itself, namely, maximum from interfaith dissension.
tolerance, which specifically means the highest
degree of restraint that the military, police and Voluntarism as a value is both personal and social.
other peace keeping authorities shall observe As a personal value, it is nothing more than the
during a public assembly or in dispersal of the inviolability of the human conscience which is also
same (Bayan Karapatan v. Eduardo Ermita, et al., protected by the free exercise clause. As a social
G.R. No. 169838, April 25, 2006). value, protected by the non-establishment clause, it
means that the growth of a religious sect as a social
Q. Mayor Reuben Soriano modified the force must come from the voluntary support of its
application for permit to rally of IBP outright members because of the belief that both spiritual
without informing the applicants. Is it valid? and secular society will benefit if religions are
allowed to compete on their own intrinsic merit
A: NO. In modifying the permit outright, Mayor without benefit of official patronage. Such
Soriano gravely abused his discretion when he did voluntarism cannot be achieved unless the political
not immediately inform the IBP who should have process is insulated from religion and unless religion
been heard first on the matter of perceived is insulated from politics. Non establishment assures
imminent and grave danger of a substantive evil such insulation and thereby prevents interfaith
that may warrant the changing of the venue. Mayor dissention. (Bernas, S.J., 2011).
Soriano failed to indicate how he had arrived at
modifying the terms of the permit against the
standard of clear and present danger which is an

2015GOLDEN NOTES
BILL OF RIGHTS
ACTS PERMITTED AND government-owned orphanage or

NOT PERMITTED BY THE CLAUSE leprosarium)
The non-establishment clause states that the Exceptions to the non-establishment clause as
State cannot held by jurisprudence
1. Set up a church 1. Government sponsorship of town fiestas, some

2. Pass laws which aid one or all religions or purely religious traditions have now been
prefer one over another considered as having acquired secular
3. Influence a person to go to or stay away from character (Garces v. Estenzo, G.R. No. L-53487,
church against his will May 25, 1981); and
4. Force him to profess a belief or disbelief in any 2. Postage stamps depicting Philippines as the
religion venue of a significant religious event benefit
to the religious sect involved was merely
Constitutional provisions which express the incidental as the promotion of Philippines as a
non-establishment clause tourist destination was the primary objective
(Aglipay v. Ruiz, G.R. No. L-45459 March 13,
1. Art. VI, Sec. 29 No public money/property 1937).
given to religious sect or minister/religious
personnel (except for those assigned to army, Lemon test
penal institution, government orphanage and
leprosarium) A test to determine whether an act of the
2. Art. II, Sec. 6 Separation of church and state is government violates the non-establishment clause.
inviolable
3. Art. IX(C), Sec. 2 (5) No religious sects can be To pass the Lemon test, a government act or policy
registered as political parties must:
1. Have a secular purpose;
FREE-EXERCISE CLAUSE 2. Not promote or favor any set of religious
beliefs or religion generally; and
Constitutionally created exceptions to the non- 3. Not get the government too closely involved
establishment clause (entangled) with religion (Lemon vs.
Kurtzman, 403 U.S. 602, June 28, 1971).
1. Art. 6, Sec.29 (prohibition on appropriation of
public money or property for the use, benefit Aspects of freedom of religious profession and
or support of any religion) worship
2. Art. 6, Sec. 28 (3) (exemption from taxation of
properties actually, directly and exclusively 1. Right to believe, which is absolute; and
used for religious purposes
3. Art. 14, Sect. 3 (3) (optional religious The individual is free to believe (or disbelieve)
instruction in public elementary and high as he pleases concerning the hereafter. He may
schools) indulge his own theories about life and death;
worship any god he chooses, or none at all;
NOTE: Religious instruction in public schools: embrace or reject any religion; acknowledge
a. At the option of parents/guardians the divinity of God or of any being that appeals
expressed in writing; to his reverence; recognize or deny the
b. Within the regular class hours by immortality of his soul -- in fact, cherish any
instructors designated or approved by religious conviction as he and he alone sees fit.
religious authorities of the religion to
which the children belong; However absurd his beliefs may be to others,
c. Without additional costs to the even if they be hostile and heretical to the
government majority, he has full freedom to believe as he
pleases. He may not be required to prove his
4. Art. 14, Sec. 4 (2) (citizenship requirement of beliefs. He may not be punished for his
ownership of educational institutions, except inability to do so. Religion, after all, is a matter
those established by religious groups and of faith. "Men may believe what they cannot
mission boards) prove." Everyone has a right to his beliefs and
5. Art. 6, Sec. 29 (2) (appropriation allowed he may not be called to account because he
where ecclesiastic is employed in armed cannot prove what he believes (Iglesia ni Cristo
forces, in a penal institution, or in a

vs. Court of Appeals, G.R. No. 119673 July 26, issued an order and letter ordering the
1996). immediate removal of the tarpaulin, otherwise
it will be constrained to file an election offense
2. Right to act on ones belief, which is subject to against the petitioners. Petitioners contend
regulation. that the order to remove the tarps constitutes
an infringement on freedom of speech and
Where the individual externalizes his beliefs in violates the separation of church and state.
acts or omissions that affect the public, his a. Did the order violate the separation of
freedom to do so becomes subject to the church and state?
authority of the State. As great as this liberty b. Did the order violate petitioners rights
may be, religious freedom, like all the other to freedom of expression?
rights guaranteed in the Constitution, can be
enjoyed only with a proper regard for the
A:
rights of others.
The inherent police power can be exercised to a. NO. The tarpaulin and its message are not
prevent religious practices inimical to society. religious speech. Art. III, Sec. 5 of the Constitution
And this is true even if such practices are has two aspects: first, the non-establishment
pursued out of sincere religious conviction and clause; second, the free exercise and enjoyment of
not merely for the purpose of evading the religious profession and worship. The second
reasonable requirements or prohibitions of the aspect is the issue in this case. Clearly, not all acts
law. done by those who are priests, bishops, ustadz,
imams, or any other religious make such act
The constitutional provision on religious immune from any secular regulation. The religious
freedom terminated disabilities, it did not also have a secular existence. They exist within a
create new privileges. It gave religious liberty, society that is regulated by law.
not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom The Bishop of Bacolod caused the posting of the
from conformity to law because of religious tarpaulin. But not all acts of a bishop amounts to
dogma. religious expression. This notwithstanding
petitioners claim that "the views and position of
Accordingly, while one has lull freedom to the petitioners, the Bishop and the Diocese of
believe in Satan, he may not offer the object of Bacolod, on the RH Bill is inextricably connected to
his piety a human sacrifice, as this would be its Catholic dogma, faith, and moral teachings. The
murder. Those who literally interpret the tarpaulin, on its face, "does not convey any
Biblical command to "go forth and multiply" religious doctrine of the Catholic church." That the
are nevertheless not allowed to contract plural position of the Catholic church appears to coincide
marriages in violation of the laws against with the message of the tarpaulin regarding the RH
bigamy. A person cannot refuse to pay taxes on Law does not, by itself, bring the expression within
the ground that it would be against his the ambit of religious speech. On the contrary, the
religious tenets to recognize any authority tarpaulin clearly refers to candidates classified
except that of God alone. An atheist cannot under "Team Patay" and "Team Buhay" according
express in his disbelief in act of derision that to their respective votes on the RH Law.
wound the feelings of the faithful. The police
power can validly asserted against the Indian b. YES. The COMELEC is incorrect in
practice of the suttee, born of deep religious assuming that the tarps are election propaganda.
conviction, that calls on the widow to immolate While the tarpaulin may influence the success or
herself at the funeral pile of her husband failure of the named candidates and political
(Iglesia ni Cristo vs. Court of Appeals, G.R. No. parties, this does not necessarily mean it is election
119673 July 26, 1996). propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any
Q: The petitioners Diocese of Bacolod et al. candidate, political party, or party-list group.
posted 2 tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. COMELEC had no legal basis to regulate
One tarp contained the message Ibasura RH expressions made by private citizens. COMELEC
Law while the other tarp contained the words cites the Constitution, laws, and jurisprudence to
Team Buhay and Team Patay, classifying the support their position that they had the power to
electoral candidates according to their vote on regulate the tarpaulin. However, all of these
the adoption of the RH Law. The COMELEC

2015GOLDEN NOTES
BILL OF RIGHTS
provisions pertain to candidates and political COMPELLING STATE INTEREST TEST

parties. Petitioners are not candidates. Neither do
they belong to any political party. COMELEC does Compelling State Interest test
not have the authority to regulate the enjoyment of
the preferred right to freedom of expression Used to determine if the interests of the State are
exercised by a non-candidate in this case. compelling enough to justify infringement of
religious freedom. It involves a three-step process:
Every citizens expression with political 1. Has the statute or government action created a
consequences enjoys a high degree of protection. burden on the free exercise of religion? Courts
We have also ruled that the preferred freedom of often look into the sincerity of the religious
expression calls all the more for the utmost respect belief, but without inquiring into the truth of
when what may be curtailed is the dissemination of the belief since the free exercise clause
information to make more meaningful the equally prohibits inquiring about its truth.
vital right of suffrage. Speech with political 2. Is there a sufficiently compelling state interest
consequences is at the core of the freedom of to justify this infringement of religious liberty?
expression and must be protected by this court In this step, the government has to establish
(The Diocese of Bacolod v. COMELEC, G.R. No. that its purposes are legitimate for the State
205728, January 21, 2015). and that they are compelling.
3. Has the State in achieving its legitimate
TESTS purposes used the least intrusive means possible
so that the free exercise is not infringed any
more than necessary to achieve the legitimate
BENEVOLENT NEUTRALITY APPROACH
goal of the State? The analysis requires the
State to show that the means in which it is
Benevolent neutrality is an approach that looks
achieving its legitimate State objective is the
further than the secular purposes of government
least intrusive means, or it has chosen a way to
action and examines the effect of these actions on
achieve its legitimate State end that imposes as
religious exercise. Benevolent neutrality
little as possible intrusion on religious beliefs.
recognizes the religious nature of the Filipino
people and the elevating influence of religion in
NOTE: The Compelling State Interest test is used in
society; at the same time, it acknowledges that
cases involving purely conduct based on religious
government must pursue its secular goals. In
belief.
pursuing these goals, however, government might
adopt laws or actions of general applicability which
CONSCIENTIOUS OBJECTOR TEST
inadvertently burden religious exercise.
Benevolent neutrality gives room for
accommodation of these religious exercises as Conscientious objector
required by the Free Exercise Clause. It allows
An "individual who has claimed the right to refuse
these breaches in the wall of separation to uphold
religious liberty, which after all is the integral to perform military service on the grounds of
freedom of thought, conscience, and/or religion
purpose of the religion clauses (Estrada vs. Escritor,
(International Covenant on Civil and Political
A.M. No. P-02-1651, August 4, 2003).
Rights, Art. 18).
CLEAR AND PRESENT DANGER TEST
Requisites for one to be considered a
conscientious objector
The question in every case is whether the words
used are used in such circumstances and are of
1. The person is opposed to war in any form
such a nature as to create a clear and present
2. He must show that this opposition is based
danger that they will bring about the substantive
upon religious training and belief
evils that Congress has a right to prevent (Schenck
3. And he must show that this objection is
v. United States, 249 U.S. 47, 1919).
sincere (Clay v. United States, 403 U.S.698
(1971).
NOTE: The test can be applied with regard to the
Freedom of Religion when what is involved is
Q: Angel, a court interpreter, is living with a
religious speech as this is often used in cases of
man not her husband. Ben filed an
freedom of expression.
administrative case against Angel as he
believes that she is committing an immoral act
that tarnishes the image of the court, thus she
should not be allowed to remain employed

therein as it might appear that the court A: YES. It was grave violation of the non-
condones her act. Angel admitted that she has establishment clause for the COMELEC to utilize
been living with a man without the benefit of the Bible and the Koran to justify the exclusion
marriage for twenty years and that they have a of Ang Ladlad. Our Constitution provides in Art. III,
son. But as a member of the religious sect Sec. 5 that no law shall be made respecting an
known as the Jehovahs Witnesses, the Watch establishment of religion, or prohibiting the free
Tower and Bible Tract Society, their conjugal exercise thereof. At bottom, what our non-
arrangement is in conformity with their establishment clause calls for is government
religious beliefs. In fact, after ten years of living neutrality in religious matters. Clearly,
together, she executed on July 28, 1991 a governmental reliance on religious justification is
Declaration of Pledging Faithfulness. Should inconsistent with this policy of neutrality (Ang
Angels right to religious freedom carve out an Ladlad LGBT Party v. COMELEC, G.R. No. 190582,
exception from the prevailing jurisprudence on Apr. 8, 2010).
illicit relations for which government
employees are held administratively liable? The government must act for secular purposes and
in ways that have primarily secular effects. That is,
A: YES. Angels conjugal arrangement cannot be the government proscribes this conduct because it
penalized as she has made out a case for exemption is "detrimental (or dangerous) to those conditions
from the law based on her fundamental right to upon which depend the existence and progress of
freedom of religion. The Court recognizes that the human society" and not because the conduct is
States interests must be upheld in order that proscribed by the beliefs of one religion or the
freedom including religious freedom may be other (Estrada v. Escritor, A.M. No. P-02-1651, June
enjoyed. In the area of religious exercise as a 22, 2006).
preferred freedom, however, man stands
accountable to an authority higher than the State, Q: The petitioners, led by Mylene, members of
and so the State interest sought to be upheld must the Philippine Independent Church, clamored
be so compelling that its violation will erode the for the transfer of Fr. B to another parish but
very fabric of the State that will also protect the Bishop Kevin denied their request. The
freedom. In the absence of showing that such State problem was compounded when Bishop Kevin
interest exists, man must be allowed to subscribe told Mylene not to push through with his plan
to the Infinite. Furthermore, our Constitution to organize an open mass to be celebrated by
adheres to the Benevolent Neutrality approach Fr. Garry during the town fiesta of Socorro.
that gives room for accommodation of religious Bishop Kevin failed to stop Mylene from
exercises as required by the Free Exercise proceeding with her plan. Mylene and her
Clause. The benevolent neutrality doctrine allows sympathizers proceeded with their plan.
accommodation of morality based on religion, Subsequently, Bishop Kevin declared
provided it does not offend compelling state petitioners expelled/excommunicated from the
interests (Estrada v. Escritor, A.M. No. P-02-1651, Philippine Independent Church. Petitioners
June 22, 2006). filed a complaint for damages with preliminary
Injunction against Bishop Kevin. Is it within the
Q: Ang Ladlad is an organization composed of jurisdiction of the courts to hear the case
men and women who identify themselves as involving the expulsion/excommunication of
lesbians, gays, bisexuals, or transgendered members of a religious institution?
individuals (LGBTs). Ang Ladlad applied for
registration with the COMELEC to participate in A: NO. The church and the state are separate and
the party-list elections. The COMELEC distinct from each other. Said matter involving the
dismissed the petition on moral grounds, expulsion/excommunication of members of the
stating that definition of sexual orientation of Philippine Independent Church should be left to
the LGBT sector makes it crystal clear that the discretion of the officials of said religious
petitioner tolerates immorality which offends institution in line with the doctrine that the court
religious beliefs based on the Bible and the should not interfere on doctrinal and disciplinary
Koran. Ang Ladlad argued that the denial of differences (Dominador Taruc, et al. v. Bishop
registration, insofar as it justified the exclusion Perfirio Dela Cruz, GR. No. 044801, Mar. 10, 2005).
by using religious dogma, violated the
constitutional guarantees against the Q: Shery, Julia, Paula, Joanne, Lisette and Angela
establishment of religion. Is this argument were minor school children and member of the
correct? sect, Jehovahs Witnesses. They were expelled
from their classes by various public school
authorities for refusing to salute the flag, sing

2015GOLDEN NOTES
BILL OF RIGHTS
the national anthem and recite the Panatang substantial part from his devotion to Allah as the
Makabayan required by RA 1265. According to Supreme Being. Thus, his claim unquestionably
them, the basic assumption in their universal was within the `religious training and belief'
refusal to salute the flags of the countries in clause of the exemption provision." (Clay v. United
which they are found is that such a salute States, 403 U.S.698 (1971).
constitutes an act of religious devotion
forbidden by God's law and that their freedom Q: Sec. 23, par. 3 of RH Law mandates medical
of religion is grossly violated. On the other practitioners who are conscientious objectors
hand, the public authorities claimed that the to refer those patients who are seeking
freedom of religious belief guaranteed by the information regarding reproductive health
Constitution does not mean exception from programs and services to another medical
non-discriminatory laws like the saluting of flag practitioner. Is this provision constitutional?
and the singing of the national anthem. To
allow otherwise would A: NO. The Court is of the view that the obligation
disrupt school discipline and demoralize the to refer imposed by the RH Law violates the
teachings of civic consciousness and duties of religious belief and conviction of a conscientious
citizenship. Is the expulsion justified? objector. Once the medical practitioner, against his
will, refers a patient seeking information on
A: No. Religious freedom is a fundamental right of modem reproductive health products, services,
highest priority. The two- fold aspect of right to procedures and methods, his conscience is
religious worship is: 1.) Freedom to believe which immediately burdened as he has been compelled to
is an absolute act within the realm of thought. 2.) perform an act against his beliefs. As Commissioner
Freedom to act on ones belief regulated and Joaquin A. Bernas (Commissioner Bernas) has
translated to external acts. The only limitation to written, "at the basis of the free exercise clause is
religious freedom is the existence of grave the respect for the inviolability of the human.
and present danger to public safety, morals, health Accordingly, a conscientious objector should be
and interests where State has right to prevent. The exempt from compliance with the mandates of the
expulsion of the petitioners from the school is not RH Law. If he would be compelled to act contrary
justified. to his religious belief and conviction, it would be a
violation of "the principle of non-coercion"
In the case at bar, the students expelled are only enshrined in the constitutional right to free
standing quietly during ceremonies. By observing exercise of religion. The same holds true with
the ceremonies quietly, it doesnt present any respect to non-maternity specialty hospitals and
danger so evil and imminent to justify their hospitals owned and operated by a religious group
expulsion. The expulsion of the students by reason and health care service providers (Imbong v. Ochoa
of their religious beliefs is also a violation of a G.R. No. 204819 April 8, 2014).
citizens right to free education. The non-
observance of the flag ceremony does not totally LIBERTY OF ABODE AND FREEDOM OF
constitute ignorance of patriotism and civic MOVEMENT
consciousness. Love for country and admiration for
national heroes, civic consciousness and form of Rights guaranteed under Sec. 6 of the Bill of
government are part of the school curricula. Rights
Therefore, expulsion due to religious beliefs is
unjustified (Ebralinag v. Division Superintedent of 1. Freedom to choose and change ones place of
Cebu, G.R.No. 95770, March 1, 1993). abode; and
2. Freedom to travel within the country and
Q: Boxer Muhammad Jerald Tristan Ali, a outside.
Muslim, refused to report for induction into
the United States military forces during the Liberty of abode
Vietnam War. He applied to be exempted
based on the teachings of Islam. His local draft Right of a person to have his home or to maintain
board had rejected his application for or change his home, dwelling, residence or
conscientious objector classification. Is the habitation in whatever place he has chosen, within
denial correct? the limits prescribed by law.
A: NO. The United States Supreme Court held that

there is no dispute that Alis professed beliefs
were founded on basic tenets of the Muslim
religion, as he understood them, and derived in

LIMITATIONS
A: YES. The right to travel does not mean the right
The liberty of abode may be impaired only: to choose any vehicle in traversing a toll way. The
a. Upon lawful order of the court and; right to travel refers to the right to move from one
b. Within the limits prescribed by law. place to another. Travelers can traverse the toll
way any time they choose using private or public
Examples: four-wheeled vehicles. Petitioners are not denied
1. Persons in the danger zone areas (e.g. Mt. the right to move from Point A to Point B along the
Pinatubo, Taal Volcano) may be relocated to toll way. Anyone are free to access the toll way,
safer areas and evacuation centers in case of much as the rest of the public can. The mode by
danger and emergency to save lives and which one wishes to travel pertains to the manner
property. of using the toll way, a subject that can be validly
2. Insane persons who roam around in Roxas limited by regulation (Mirasol v. DPWH, G.R. No.
Boulevard may be committed by the 158793, June 8, 2006).
government to the National Mental Hospital
for appropriate treatment and medical Q: PASEI is engaged in the recruitment of
attention. Filipino workers, male and female, for overseas
employment. It challenged the validity of
Q: The military commander in charge of the Department Order 1 of the Department of
operation against rebel groups directed the Labor and Employment (DOLE) because it
inhabitants of the island which would be the suspends the deployment of female domestic
target of attack by government forces to and household workers in Iraq, Jordan and
evacuate the area and offered the residents Qatar due to growing incidence of physical and
temporary military hamlet. Can the military personal abuses to female overseas workers.
commander forced the residents to transfer PASEI contends that it impairs the
their places of abode without a court order? constitutional right to travel. Is the contention
correct?
A: NO. The military commander cannot do so
without a court order. Under Sec. 6, Art. III of the A: NO. The deployment ban does not impair the
Constitution, a lawful order of the court is required right to travel. The right to travel is subject, among
before the liberty of abode and of changing the other things, to the requirements of "public safety,"
same can be impaired. "as may be provided by law." Department Order
No. 1 is a valid implementation of the Labor Code,
RIGHT TO TRAVEL in particular, its basic policy to "afford protection
to labor," pursuant to the Department of Labor's
Right to travel rule-making authority vested in it by the Labor
Code. The petitioner assumes that it is
Right of a person to go where he pleases without unreasonable simply because of its impact on the
interference from anyone. right to travel, but as we have stated, the right itself
is not absolute. The disputed Order is a valid
The limitations on the right to travel qualification thereto (Philippine Association of
Service Exporters, Inc. v. Drilon, G.R. No. 81958, June
a. Interest of national security; 30, 1988).
b. Public safety;
c. Public health. Q: Can a member of the military travel freely to
other places apart from his command post or
NOTE: With respect to the right to travel, it is his properly assigned place?
settled that only a court may issue a hold departure
order against an individual addressed to the A: NO. Mobility of travel is another necessary
Bureau of Immigration and Deportation. However, restriction on members of the military. A soldier
administrative authorities, such as passport- cannot leave his/her post without the consent of
officers, may likewise curtail such right in the the commanding officer. The reasons are self-
interest of national security, public safety, or public evident. The commanding officer has to be aware
health, as may be provided by law. at all times of the location of the troops under
command, so as to be able to appropriately
Q: May DPWH validly ban certain vehicles like respond to any exigencies. For the same reason,
motorcycles on expressways such as North commanding officers have to be able to restrict the
Luzon Expressway, in consideration of movement or travel of their soldiers, if in their
constitutional provisions of right to travel? judgment, their presence at place of call of duty is

2015GOLDEN NOTES
BILL OF RIGHTS
necessary. At times, this may lead to Hold Departure Order (HDO)

unsentimental, painful consequences, such as a
soldier being denied permission to witness the An order issued to prevent an individual from
birth of his first-born, or to attend the funeral of a travelling. It may be issued by the Secretary of
parent. Yet again, military life calls for considerable Justice motu proprio or upon request, under any of
personal sacrifices during the period of the following circumstances:
conscription, wherein the higher duty is not to self
but to country (Gudani v. Senga, G.R. No. 170165, 1. Against the accused, irrespective of nationality,
August 15, 2006). in criminal cases falling within the jurisdiction
of courts below the Regional Trial Courts
WATCH-LIST AND HOLD DEPARTURE ORDERS (RTCs):
Watch-list order (WLO) i. If the case against the accused is

pending trial, the application under
Order issued to prevent an individual from oath of an interested party must be
travelling. It may be issued by the Secretary of supported by (a) a certified true copy
Justice motu proprio or upon request, under any of of the complaint or information; and
the following circumstances: (b) a Certification from the Clerk of
1. Against the accused, irrespective of nationality, Court concerned that criminal case is
in criminal cases pending trial before the RTCs still pending.
or before courts below the RTCs.
2. Against the respondent, irrespective of ii. If the accused has jumped bail or has
nationality, in criminal cases pending become a fugitive from justice, the
preliminary investigation, petition for review, application under oath of an
or motion for reconsideration before the DOJ interested party must be supported by
or any of its provincial or city prosecution (a) a certified true copy of the
offices. complaint or information; (b) a
certified true copy of the
The Secretary of Justice may likewise issue a WLO warrant/order of arrest; and (c) a
against any person, either on his own, or upon the Certification from the Clerk of Court
request of any government agency, including concerned that the warrant/order of
commissions, task forces or similar entities created arrest was returned unserved by the
by the Office of the President, pursuant to the peace officer to whom the same was
"Anti-Trafficking in Persons Act of 2003" (R.A. No. delivered for service.
9208) and/or in connection with any investigation
being conducted by it, or in the interest of national 2. Against the alien whose presence is required
security, public safety or public health (Sec. 2, DOJ either as a defendant, respondent, or witness
Circ. 41, s.2010). in a civil or labor case pending litigation, or
any case before a quasi-judicial or an
NOTE: A WLO is good for sixty (60) days (Sec. 4, administrative agency of the government.
DOJ Circ. 41, and s.2010).
The application under oath of an interested
The Watch List Order may be lifted or cancelled party must be supported by
under any of the following grounds: (a) a certified true copy of the subpoena or
summons issued against the alien; and
1. When the validity period of the WLO has (b) a certified true copy complaint in civil,
already expired; labor or administrative case where the
2. When the accused subject of the WLO has been presence of the alien is required.
allowed by the court to leave the country
during the pendency of the case, or has been The Secretary may likewise issue an HDO against
acquitted of the charge; any person, either on his own, or upon the request
3. When the preliminary investigation is by the Head of a Department of the Government,
terminated, or when the petition for review, or the head or a constitutional body or commission,
motion for reconsideration has been denied the Chief Justice of the Supreme Court for the
and/or dismissed. Judiciary, the Senate President or the House
Speaker for the Legislature, when the adverse
party is the Government or any of its agencies or
instrumentalities, or in the interest of national

security, public safety or public health. (Sec. 1, DOJ RIGHT TO INFORMATION ON MATTERS OF
Circ. 41, s.2010). PUBLIC CONCERN
NOTE: A HDO is valid for five (5) years from Rationale

issuance.
The purpose is to promote transparency in policy-
The Hold Departure Order can be lifted or making and in the operations of the government, as
cancelled as follows: well as provide the people sufficient information to
exercise effectively other constitutional rights.
1. When the validity period of the HDO has Armed with the right information, citizens can
already expired; participate in public discussions leading to the
2. When the accused subject of the HDO has been formulation of government policies and their
allowed to leave the country during the effective implementation. An informed citizenry is
pendency of the case, or has been acquitted of essential to the existence and proper functioning of
the charge, or the case in which the any democracy (IDEALs v. PSALM, G.R. No. 192088,
warrant/order of arrest was issued has been Oct. 9, 2012).
dismissed or the warrant/order of arrest has
been recalled; It pertains to access to official records, documents
3. When the civil or labor case or case before an and papers pertaining to official acts, transactions
administrative agency of the government or decisions, as well as to government research
wherein the presence of the alien subject of the data used as basis for policy development (Section
HDO/WLO has been dismissed by the court or 7, Article 3, 1987 Constitution).
by appropriate government agency, or the
alien has been discharged as a witness therein, NOTE: The right only affords access to records,
or the alien has been allowed to leave the documents and papers, which means the
country. opportunity to inspect and copy them at his
expense. The exercise is also subject to reasonable
Note: A watch-list order doesnt totally bar a regulations to protect the integrity of public
person from travelling. A person listed in the WLO records and to minimize disruption of government
must obtain a clearance to be able to travel. In operations.
contrast, a hold-departure order totally prevents a
person from traveling. LIMITATIONS
RETURN TO ONES COUNTRY GR: The access must be for a lawful purpose and is
subject to reasonable conditions by the custodian
Q: Ferdinand Marcos, in his deathbed, has of the records.
signified his desire to return to the Philippines
to die. But President Corazon Aquino barred XPNs:
the return of Marcos and his family. The The right does not extend to the following:
Marcoses invoke their right to return. Is the 1. Information affecting national security,
right to return a constitutionally protected military and diplomatic secrets. It also includes
right? inter-government exchanges prior to
consultation of treaties and executive
A: NO. The right to return to ones country is not agreement as may reasonably protect the
among the rights specifically guaranteed in the Bill national interest
of Rights, which treats only of the liberty of abode 2. Matters relating to investigation,
and the right to travel. Nevertheless, the right to apprehension, and detention of criminals
return may be considered as a generally accepted which the court may not inquire into prior to
principle of International law, and under the arrest, prosecution and detention
Constitution, is part of the law of the land. 3. Trade and industrial secrets and other banking
However, it is distinct and separate from the right transactions as protected by the Intellectual
to travel and enjoys a different protection under Property Code and the Secrecy of Bank
the Intl Covenant of Civil and Political Rights Deposits Act
(Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 4. Other confidential information falling under
& Oct. 27, 1989). the scope of the Ethical Safety Act concerning
classified information (Chavez vs. PCGG, G.R.
No. 130716, December 9, 1998).

2015GOLDEN NOTES
BILL OF RIGHTS
PUBLICATION OF LAWS AND REGULATIONS RIGHT TO INFORMATION RELATIVE TO:
Rationale for Publication of Laws GOVERNMENT CONTRACT NEGOTIATIONS
There is a need for publication of laws to reinforce Q: The Public Estates Authority, a government
the right to information. In Taada v. Tuvera, the agency tasked to reclaim, develop and sell
Court said that Laws must come out in the open in reclaimed lands, entered into a Joint Venture
the clear light of the sun instead of skulking in the Agreement with AMARI to develop the Freedom
shadows with their dark, deep secrets. Mysterious Islands in the reclaimed Paranaque-Cavite area.
pronouncements and rumored rules cannot be The Senate conducted an investigation which
recognized as binding unless their existence and found that the reclaimed lands PEA seeks to
contents are confirmed by a valid publication transfer under the JVA are lands of public
intended to make full disclosure and give proper domain and that the JVA itself is illegal. Frank
notice to the people. Chavez contends that the government stands to
lose billions of pesos in the sale by PEA of the
Publication of regulations reclaimed lands to AMARI. He prays that PEA
must publicly disclose the terms of any
Publication is necessary to apprise the public of the renegotiation of the JVA, invoking the right of
contents of penal regulations and make the said the people to information on matters of public
penalties binding on the persons affected thereby concern. PEA asserts that in cases of on-going
(Pesigan v. Angeles G.R. No. L-6427, April 30, 1984). negotiations, the right to information is limited
to definite propositions of the government.
ACCESS TO COURT RECORDS PEA maintains that the right does not include
access to intra-agency/inter-agency
Q: During the pendency of the intestate communications during the stage when
proceedings, Ojay, a creditor of the deceased, common assertions are still in the exploratory
filed a motion with a prayer that an order be age. Is PEA correct?
issued requiring the Branch Clerk of Court to
furnish him with copies of all processes and A: NO. Information on on-going evaluation or
orders and to require the administrator to review of bids or proposals being undertaken by
serve him copies of all pleadings in the the bidding or review committee is not
proceedings. The judge denied the motion immediately accessible under the right to
because the law does not give a blanket information. While the evaluation or review is still
authority to any person to have access to on-going, there are no "official acts, transactions, or
official records and documents and papers decisions" on the bids or proposals. However, once
pertaining to official acts. The judge said that the committee makes its official recommendation,
his interest is more of personal than of public there arises a "definite proposition" on the part of
concern. Is the judge correct? the government. From this moment, the public's
right to information attaches, and any citizen can
A: NO. The right to information on matters of access all the non-proprietary information leading
public concern is a constitutional right. However, to such definite proposition.
such is not absolute. Under the Constitution, access
is subject to limitations as may be provided by law. The commissioners of the 1986 Constitutional
Therefore, a law may exempt certain types of Commission understood that the right to
information from public scrutiny such as national information "contemplates inclusion of negotiations
security. The privilege against disclosure is leading to the consummation of the transaction."
recognized with respect to state secrets bearing on Certainly, a consummated contract is not a
the military, diplomatic and similar matters. Since requirement for the exercise of the right to
intestate proceedings do not contain any military information. Otherwise, the people can never
or diplomatic secrets which will be disclosed by its exercise the right if no contract is consummated,
production, it is an error on the part of the judge to and if one is consummated, it may be too late for
deny Ojays motion (Hidalgo v. Reyes, AM No. RTJ- the public to expose its defects.
05-1910, Apr. 15, 2005).
The right covers three categories of information
which are "matters of public concern," namely: (1)
official records; (2) documents and papers
pertaining to official acts, transactions and
decisions; and (3) government research data used
in formulating policies. The information that

petitioner may access on the renegotiation of the that are relevant to a government contract (IDEALs
JVA includes evaluation reports, recommendations, v. PSALM, G.R. No. 192088, Oct. 9, 2012).
legal and expert opinions, minutes of meetings,
terms of reference and other documents attached Q: The National Housing Authority entered into
to such reports or minutes, all relating to the JVA. a Joint Venture Agreement with R-II B Inc., to
However, the right only affords access to records, develop a housing facility in the Smokey
documents and papers, which means the Mountain dumpsite and reclamation area.
opportunity to inspect and copy them. The exercise Frank Chavez filed a case before the Supreme
of the right is also subject to reasonable regulations Court contending that the parties must be
to protect the integrity of the public records and to compelled to disclose all information related to
minimize disruption to government operations. the project. Is NHA compelled to disclose such
information?
The constitutional right to information includes
official information on on-going negotiations before A: Art. II compels the State and its agencies to
a final contract. The right to information, however, disclose all of its transaction involving public
does not extend to matters recognized as interest. Thus, the government agencies, without
privileged information under the separation of need of demand from anyone, must bring into
powers. The right does not also apply to public view all the steps and negotiations leading
information on military and diplomatic secrets, to the consummation of the transaction and the
information affecting national security, and contents of the perfected contract. The right to
information on investigations of crimes by law information, however, is not absolute and is still
enforcement agencies before the prosecution of the subject to certain limitations such as privileged
accused, which courts have long recognized as communication.
confidential. The right may also be subject to other It is unfortunate, however, that after almost twenty
limitations that Congress may impose by law (20) years from birth of the 1987 Constitution,
(Chavez v. PEA, G.R. No. 133250, July 9, 2002). there is still no enabling law that provides the
mechanics for the compulsory duty of government
Q: PSALM commenced the privatization of agencies to disclose information on government
Angat Hydro-Electric Power Plant. Korea Water transactions. Hopefully, the desired enabling law
Resources Corporation won in the public will finally see the light of day if and when
bidding. IDEALS then requested for detailed Congress decides to approve the proposed
information regarding the winning bidder, such "Freedom of Access to Information Act."
as company profile, contact person or
responsible officer, office address and In the meantime, it would suffice that government
Philippine registration but PSALM refused to agencies post on their bulletin boards the
give such information. May IDEALS compel documents incorporating the information on the
PSALM to furnish them those pieces of steps and negotiations that produced the
information invoking their right to agreements and the agreements themselves, and if
information? finances permit, to upload said information on
their respective websites for easy access by
A: YES. The Court distinguished the duty to interested parties. Without any law or regulation
disclose information from the duty to permit access governing the right to disclose information, the
to information on matters of public concern under NHA or any of the respondents cannot be faulted if
Sec. 7, Art. III of the Constitution. Unlike the they were not able to disclose information relative
disclosure of information which is mandatory to the Smokey Mountain Development to the public
under the Constitution, the other aspect of the in general (Chavez v. National Housing Authority,
peoples right to know requires a demand or G.R. No. 164527, August 15, 2007).
request for one to gain access to documents and
paper of the particular agency. Moreover, the duty DIPLOMATIC NEGOTIATIONS
to disclose covers only transactions involving
public interest, while the duty to allow access has a Q: Petitioners request that they be given a copy
broader scope of information which embraces not of the full text of the JPEPA as well as the offers
only transactions involving public interest, but any and negotiations between the Philippines and
matter contained in official communications and Japan. Can these documents be disclosed as
public documents of the government agency. Such matters of public concern?
relief must be granted to the party requesting
access to official records, documents and papers A: It depends. There is a distinction between the
relating to official acts, transactions, and decisions text of the treaty and the offers and negotiations.
They may compel the government to disclose the

2015GOLDEN NOTES
BILL OF RIGHTS
text of the treaty but not the offers between RP and remedy for its enforcement, impairs the contract
Japan, because these are negotiations of executive (Blacks Law Dictionary).
departments. Diplomatic Communication
negotiation is a privileged information (Akbayan v. The law impairs the obligation of contracts if
Aquino, G.R. No. 170516, July 16, 2008).
1. It changes the terms and conditions of a legal
RIGHT OF ASSOCIATION contract either as to the time or mode of
performance
Freedom of association 2. It imposes new conditions or dispenses with
those expressed if it authorizes for its
The right to form associations shall not be satisfaction something different from that
impaired without due process of law. It is therefore provided in its terms
an aspect of the general right of liberty. More
specifically, it is an aspect of freedom of contract; NOTE: Mere technical change which does not
and in so far as associations may have for their change the substance of the contract, and which
object the advancement of beliefs and ideas, still leaves an efficacious remedy for enforcement
freedom of association is an aspect of freedom of does NOT impair the obligation of contracts. A
expression and of belief. valid exercise of police power is superior to
obligation of contracts.
NOTE: Freedom of association includes the
freedom not to associate, or, if one is already a Applicability of the provision
member, to disaffiliate from the association.
This constitutional provision is applicable only if
The right to strike is not included in the right to the obligation of contract is impaired by legislative
form unions or freedom of assembly by act (statute, ordinance, etc.). The act need not be by
government employees. Their employment is a legislative office; but it should be legislative in
governed by law. It is the Congress and nature. Furthermore, the impairment must be
administrative agencies which dictate the terms substantial (Philippine Rural Electric Cooperatives
and conditions of their employment. The same is Assoc. v. DILG Secretary, G.R. 143076, June 10, 2003).
fixed by law and circulars and thus not subject to
any collective bargaining agreement. Inapplicability of the provision
NOTE: Pursuant to Sec. 4, Rule III of the Rules and 1. Franchises, privileges, licenses, etc.
Regulations to Govern the Exercise of the Right of
Government Employees to Self-Organization, the NOTE: These are subject to amendment,
terms and conditions of employment in the alteration or repeal by Congress when the
Government, including any of its instrumentalities, common good so requires.
political subdivision and government owned and
controlled corporations with original charters, are 2. There is neither public interest involved nor a
governed by law and employees therein shall not law that supports the claim.
strike for the purpose of securing changes thereof
(SSS Employees Association v. CA, GR. No. 85279, July NOTE: It can only be invoked if it is against the
28, 1989). The only available remedy for them is to government or when the government intervenes in
lobby for better terms of employment with contract between the parties (Pacific Wide Realty
Congress. The right to unionize is an economic and and Development Corp. v Puerto Azul Land, Inc., G.R.
labor right while the right to association in general No. 180893, Nov 25, 2009).
is a civil-political right.
Mutuality of contracts
CONTRACT CLAUSE
GR: Valid contracts should be respected by the
CONTEMPORARY APPLICATION OF THE legislature and not tampered with by subsequent
CONTRACT CLAUSE laws that will change the intention of the parties or
modify their rights and obligations.
Impairment of contracts
NOTE: The will of the parties to a contract must
Any statute which introduces a change into the prevail. A later law which enlarges, abridges, or in
express terms of the contract, or its legal any manner changes the intent of the parties to the
construction, or its validity, or its discharge, or the contract necessarily impairs the contract itself and
cannot be given retroactive effect without violating

the constitutional prohibition against impairment LEGAL ASSISTANCE AND FREE ACCESS TO
of contracts (Sangalang v. IAC, G.R. No. 71169, Dec. COURTS
22, 1988).
Basis
XPN: Enactment of laws pursuant to the exercise of
police power because public welfare prevails over Free access to courts and quasi-judicial bodies and
private rights. It is deemed embedded in every adequate legal assistance shall not be denied to any
contract a reservation of the States exercise of person by reason of poverty (Sec. 11, Art. 3, 1987
police power, eminent domain and taxation, so Constitution).
long as it deals with a matter affecting the public
welfare (PNB v Remigio, G.R. No 78508, Mar. 21, Right to free access to courts
1994).
This right is the basis for Sec. 17, Rule 5 of the New
Q: While still being a GOCC, PAL entered into a Rules of Court allowing litigation in forma pauperis.
Commercial Agreement and Joint Services Those protected include low paid employees,
Agreement with Kuwait Airways in 1981 domestic servants and laborers (Cabangis v.
establishing a joint commercial arrangement Almeda Lopez, G.R. No. 47685, Sept. 20, 1940).
whereby PAL and Kuwait Airways were to
jointly operate the Manila-Kuwait (and vice Q: The Municipal Trial Court denied Dexters
versa) route, utilizing the planes and services of petition to litigate in forma pauperis on the
Kuwait Airways. In that Agreement, PAL may ground that Dexter has regular employment
collect royalties from Kuwait Airways. and sources of income thus cannot be classified
Subsequently, the government lost control over as poor or pauper. Is the courts order justified?
PAL and became a private corporation. After 14
years, delegations from the Philippine A: NO. They need not be persons so poor that they
government and Kuwait government met. The must be supported at public expense. It suffices
talks culminated in a Confidential that the plaintiff is indigent. And the difference
Memorandum of Understanding (CMU). The between paupers and indigent persons is that the
CMU terminates the agreement concerning the latter are persons who have no property or sources
royalties effective April 12, 1995. However, PAL of income sufficient for their support aside from
insists that the agreement could only be their own labor though self-supporting when able
effectively terminated on 31 October 1995, or to work and in employment (Acar v. Rosal, G.R. No.
the last day of the then current traffic period L-21707, March 18, 1967).
and therefore the provisions of the agreement
shall continue to be enforced until such date. Q: The Good Shepherd Foundation, Inc. seeks
Can the execution of the CMU between Kuwait to be exempted from paying legal fees for its
and Philippine Governments automatically indigent and underprivileged clients couching
terminate the Commercial Agreement? their claim on the free access clause embodied
in Sec. 11, Art. III of the Constitution. Is the
A: NO. An act of the Phil. Govt negating the contention tenable?
commercial agreement between the two airlines
would infringe the vested rights of a private A: NO. The Court cannot grant exemption of
individual. Since PAL was already under private payment of legal fees to foundations/institutions
ownership at the time the CMU was entered into, working for indigent and underprivileged people.
the Court cannot presume that any and all According to Sec. 19, Rule 141, Rules of Court, only
commitments made by the Phil. Govt are a natural party litigant may be regarded as an
unilaterally binding on the carrier even if this indigent litigant that can be exempted from
comes at the expense of diplomatic payment of legal fees. Exemption cannot be
embarrassment. Even granting that the police extended to the foundations even if they are
power of the State may be exercised to impair the working for the indigent and underprivileged
vested rights of privately-owned airlines, the people (Re: Query of Mr. Roger C. Prioreschi Re
deprivation of property still requires due process exemption from legal and filing fees of the Good
of law (Kuwait Airline Corporation v. PAL, G.R. No. Shepherd Foundation, Inc., A. M. No. 09-6-9-SC,
156087, May 8, 2009). August 19, 2009).
Q: A pauper is known to have several parcels of

land but that for several years prior to the filing
of the complaint in the inferior court said
parcels of land had been divided and

2015GOLDEN NOTES
BILL OF RIGHTS
partitioned amongst his children who had since

been in possession thereof and paying the taxes Availability of Miranda rights
thereon. Is he considered indigent? May he
apply for free legal assistance? 1. During custodial investigation; or
2. As soon as the investigation ceases to be a
A. Yes. Republic Act 6034 (An Act Providing general inquiry unto an unsolved crime and
Transportation and Other Allowances for Indigent direction is aimed upon a particular suspect, as
Litigants), has defined the term "indigent" to refer when the suspect who has been taken into
to a person "who has no visible means of income or police custody and to whom the police would
whose income is insufficient for the subsistence of then direct interrogatory questions which tend
his family." to elicit incriminating statements.
Even on the assumption that petitioner owns NOTE: Sec. 2 of R.A. 7438 (An Act Defining Certain
property, he may still be an indigent considering Rights of Person Arrested, Detained or Under
his sworn statement that he had no income. Under Custodial Investigation and the Duties of the
the standard set forth in Acar vs. Rosal as well as Arresting, Detaining and Investigating Officers)
the recent legislations heretofore adverted to, it is provides that custodial investigation shall include
the income of a litigant that is the determinative the practice of issuing an invitation to a person
factor. For, really, property may have no income. It who is under investigation in connection with an
may even be a financial burden (Enaje v. Ramos, offense he is suspected to have committed
G.R. No. L-22109, January 30, 1970).
Rights during custodial investigation apply only
RIGHTS OF SUSPECTS against testimonial compulsion and not when the
body of the accused is proposed to be examined
Miranda rights (e.g. urine sample; photographs; measurements;
garments; shoes) which is a purely mechanical act.
These are the rights to which a person under
custodial investigation is entitled. These rights are: In the case of Galman v. Pamaran, G.R. Nos. 71208-
1. Right to remain silent 09, August 30, 1985, it was held that the
2. Right to competent and independent counsel, constitutional safeguard is applied
preferably of his own choice notwithstanding that the person is not yet arrested
3. Right to be reminded that if he cannot afford or under detention at the time. However, Fr.
the services of counsel, he would be provided Bernas has qualified this statement by saying that
with one jurisprudence under the 1987 Constitution has
4. Right to be informed of his rights consistently held, following the stricter view, that
5. Right against torture, force, violence, threat, the rights begin to be available only when the
intimidation or any other means which vitiate person is already in custody (People v. Ting Lan Uy,
the free will G.R. No. 157399, Nov.17, 2005).
6. Right against secret detention places, solitary,
incommunicado, or similar forms of detention Furthermore, in the case of People v. Reyes, G.R. No.
7. Right to have confessions or admissions 178300, Mar. 17, 2009, the court held that: The
obtained in violation of these rights considered mantle of protection afforded by the above-quoted
inadmissible in evidence (Miranda v Arizona, provision covers the period from the time a person
384 U.S. 436, 1966). is taken into custody for the investigation of his
possible participation in the commission of a crime
NOTE: Even if the person consents to answer from the time he was singled out as a suspect in the
questions without the assistance of counsel, the commission of the offense although not yet in
moment he asks for a lawyer at any point in the custody.
investigation, the interrogation must cease until an
attorney is present. Infraction of the rights of an accused during
custodial investigation or the so-called Miranda
The Miranda Rights are available to avoid Rights render inadmissible only the extrajudicial
involuntary extrajudicial confession. confession or admission made during such
investigation. "The admissibility of other evidence,
The purpose of providing counsel to a person provided they are relevant to the issue and is not
under custodial investigation is to curb the police- otherwise excluded by law or rules, is not affected
state practice of extracting a confession that leads even if obtained or taken in the course of custodial
appellant to make self-incriminating statements investigation." (Ho Wai Pang v. People, G.R. No.
(People v. Rapeza, G.R. 169431, April 3, 2007). 176229, October 19, 2011).

involuntary, as there may be connivance between

Unavailability of Miranda Rights the police and media men (People v. Endino, G.R. No.
133026, Feb. 20, 2001).
1. During a police line-up, unless admissions or
confessions are being elicited from the suspect NOTE: What the Constitution bars is the
(Gamboa v. Cruz, G.R. No. L-56291, June 27, compulsory disclosure of the incriminating facts or
1988). confessions. The rights under Sec. 12 are
2. During administrative investigations guarantees to preclude the slightest use of coercion
(Sebastian, Jr v Garchitorena, G.R. No 114028). by the State, and not to prevent the suspect from
3. Confessions made by an accused at the time he freely and voluntarily telling the truth (People v.
voluntarily surrendered to the police or Andan, G.R. No. 116437, Mar. 3, 1997).
outside the context of a formal investigation;
(People v Baloloy, G.R. No 140740, April 12, Fruit of the poisonous tree doctrine
2002) and
4. Statements made to a private person (People v Once the primary source (the tree) is shown to
Tawat, G.R. No 62871, May 25, 1985). have been unlawfully obtained, any secondary or
5. Forensic investigation is not tantamount to derivative evidence (the fruit) derived from it is
custodial investigation, therefore Miranda also inadmissible.
rights is not applicable (People v. Tranca, 235
SCRA 455, 1994). NOTE: The rule is based on the principle that
evidence illegally obtained by the State should not
Rights that may be waived be used to gain other evidence, because the
originally illegally obtained evidence taints all
1. Right to remain silent evidence subsequently obtained.
2. Right to counsel
Q: Ian Loy is in police custody. Bothered and
NOTE: However, the right of the accused to be remorseful, he spontaneously admitted guilt
informed of these rights is not subject to waiver; and that he is the one who killed Dr. Neil. Is his
and confession admissible?
Requisites for valid waiver A: YES. Ian Loys statement is a spontaneous

statement. It was not elicited through questioning
1. Made voluntarily, knowingly and intelligently by the authorities (People v. Cabiles, G.R. No.
2. Waiver should be made in writing 112035, Jan. 16, 1998).
3. Made with the presence of counsel (People vs
Galit, GR. No. L-51770, Mar. 20, 1985). Q: Mayor Pineda arrived and proceeded to the
investigation room. Upon seeing the mayor,
Admissibility as evidence of confessions given appellant Flores approached him and
to news reporters and/or media and whispered a request to talk privately. The
videotaped confessions mayor led appellant to the office of the Chief of
Police and there, Flores broke down and said
Confessions given in response to a question by "Mayor, patawarin mo ako! I will tell you the
news reporters, not policemen, are admissible. truth. I am the one who killed Villaroman." The
Where the suspect gave spontaneous answers to a mayor opened the door of the room to let the
televised interview by several press reporters, his public and media representatives witness the
answers are deemed to be voluntary and are confession. The mayor first asked for a lawyer
admissible. to assist appellant but since no lawyer was
available she ordered the proceedings
Videotaped confessions are admissible, where it is photographed and videotaped. In the presence
shown that the accused unburdened his guilt of the mayor, the police, representatives of the
willingly, openly and publicly in the presence of the media and appellant's own wife and son,
newsmen. Such confessions do not form part of appellant confessed his guilt. His confession
confessions in custodial investigations as it was not was captured on videotape and covered by the
given to policemen but to media in attempt to media nationwide. Did such uncounseled
solicit sympathy and forgiveness from the public. confession violate the suspects constitutional
rights?
However, due to inherent danger of these
videotaped confessions, they must be accepted A: NO. A confession given to the mayor may be
with extreme caution. They should be presumed admitted in evidence if such confession by the

2015GOLDEN NOTES
BILL OF RIGHTS
suspect was given to the mayor as a confidant and NOTE: This is also applicable not only to criminal
not as a law enforcement officer. In such a case, the cases, but also to civil cases. Administrative cases
uncounseled confession did not violate the follow different requisites.
suspects constitutional rights. What the
constitution bars is the compulsory disclosure of The right to appeal is neither a natural right nor
incriminating facts or confessions. The rights under part of due process. It is a mere statutory right, but
Sec. 12 are guarantees to preclude the slightest use once given, denial constitutes violation of due
of coercion by the State and not to prevent the process.
suspect from freely and voluntarily telling the truth
(People v. Andan, G.R. No. 116437, March 3, 1997). RIGHT TO BAIL
Q: Accused Antonio Lauga was charged and Bail

convicted of the crime of rape of his thirteen-
year old daughter, AAA. During the The security given for the release of a person in
proceedings, Juan Paulo Nepomuceno, a custody of law, furnished by him or a bondsman,
bantaybayan in the barangay, testified that the conditioned upon his appearance before any court
accused confessed that he had in fact raped as required (Sec. 1, Rule 114, Rules of Court).
AAA. The trial court found him guilty of the
crime of rape. Lauga contends that the Rationale behind the right to bail
extrajudicial confession he made to
Nepomuceno is inadmissible in evidence as it An accused is presumed innocent until his guilt is
was made without assistance of counsel. Is his proven beyond reasonable doubt by final
contention tenable? judgment. The right to bail gives the accused not
only an opportunity to obtain provisional liberty
A: YES. A barangay bantaybayan is considered a but also the chance to prepare for trial while
public officer and any extrajudicial confession continuing his usual work or employment. The bail
made to him without the assistance of counsel is posted by the accused for his provisional liberty is,
inadmissible in evidence as provided for under Sec. in effect, an assurance that the accused will attend
12, Art. III of the Constitution (People v. Lauga, GR. the court proceedings, particularly when his
No. 186228, March 15, 2010). presence is required. In short, the purpose of the
bail is to relieve the accused from imprisonment
RIGHTS OF THE ACCUSED until his conviction and at the time his appearance
at the trial is secured (Almeda v. Villaluz, 66 SCRA
1. Due process 38 (1975) (Suarez, Political Law Reviewer, p. 302,
2. Be presumed innocent 2011).
3. Be heard by himself and counsel
4. Be informed of the nature and cause of the NOTE: The right to bail may be invoked once
accusation against him detention commences even if no formal charges
5. A speedy, impartial and public trial have yet to be filed (Teehankee v. Rovira, G.R.No. L-
6. Meet the witnesses face to face 101, Dec. 20, 1945).
7. Have compulsory process to secure the
attendance of witnesses and production of In order to determine this, he must file a petition
evidence on his behalf for bail, so that the court can decide whether or not
8. Against double jeopardy to grant him bail. If the court, after hearing the
9. Bail Petition, finds that the evidence of guilt is not
strong against him, then he will be allowed to post
CRIMINAL DUE PROCESS bail.
Requisites of criminal due process NOTE: The application or admission of the accused
to bail shall not bar him from challenging both the
1. Accused is heard by a court of competent validity of his arrest or the legality of the warrant
jurisdiction issued therefore, provided that he raises them
2. Accused is proceeded against under the before he enters his plea. It shall not likewise bar
orderly processes of law the accused from assailing the regularity or
3. Accused is given notice and opportunity to be questioning the absence of a preliminary
heard investigation of the charge against him provided
4. Judgment must be rendered after lawful the same is raised before he enters his plea (Rule
hearing 114, Sec. 26, Rules of Court).

The following are entitled to bail However where the grant of bail is discretionary,
the prosecution may show proof to deny the bail.
1. Persons charged with offenses punishable by
death, reclusion perpetua or life imprisonment, Grounds for denial of bail
when evidence of guilt is not strong
2. Persons convicted by the trial court pending If the penalty imposed by the trial court is
their appeal imprisonment exceeding six (6) years, the accused
3. Persons who are members of the AFP facing a shall be denied bail, or his bail shall be cancelled
court martial upon a showing by the prosecution, with notice to
the accused, of the following or other similar
NOTE: The right to bail is available to an alien circumstances:
during the pendency of deportation proceedings a. That he is a recidivist, quasi-recidivist, or
provided that potential extraditee must prove by habitual delinquent, or has committed the
clear and convincing proof that he is not a flight crime aggravated by the circumstance of
risk and will abide with all orders and processes of reiteration;
the extradition court (Government of Hong Kong b. That he has previously escaped from legal
Special Administrative Region v. Olalia Jr., G.R confinement, evaded sentence, or violated
153675, Apr. 19, 2007). the conditions of his bail without valid
justification;
Constitutional provisions connected to right to c. That he committed the offense while
bail under probation, parole, or conditional
pardon;
a. The suspension of the privilege of the writ of d. That the circumstances of his case indicate
habeas corpus does not impair the right to bail. the probability of flight if released on bail;
b. Excessive bail is not required. or
e. That there is undue risk that he may
Instances when bail is a matter of right or of commit another crime during the
discretion pendency of the appeal.
1. Bail as a matter of right The appellate court may, motu proprio or on

a. Before or after conviction by the motion of any party, review the resolution of the
metropolitan and municipal trial courts, RTC after notice to the adverse party in either case
and (Sec. 5, Rule 114, Rules of Court).
b. Before conviction by the RTC of an offense
not punishable by death, reclusion NOTE: The right to bail is available from the very
perpetua or life imprisonment (Sec. 4, Rule moment of arrest (which may be before or after the
114). filing of formal charges in court) up to the time of
c. Before final conviction by all children in conviction by final judgment (which means after
conflict with the law for an offense not appeal). No charge need be filed formally before
punishable by reclusion perpetua or life one can file for bail, so long as one is under arrest.
imprisonment. (Heras Teehankee v. Rovira, G.R. No. L-101, Dec. 20
1945).
2. Bail as a matter of discretion
a. Upon conviction by the RTC of an offense Scenarios where the penalty of the person
not punishable by death, reclusion applying for bail is imprisonment exceeding six
perpetua or life imprisonment years
b. Regardless of the stage of the criminal
prosecution, a person charged with a 1. Absence of the circumstances enumerated in 3 rd
capital offense, or an offense punishable by par., sec. 5 of Rule 114. In this scenario, bail is a
reclusion perpetua or life imprisonment, matter of discretion. This means that, if none of
when evidence of guilt is not strong; and the circumstances mentioned in the third
c. A child in conflict with the law charged paragraph of Sec. 5, Rule 114 is present, the
with an offense punishable by death, appellate court has the discretion to grant or
reclusion perpetua or life imprisonment deny bail. An application for bail pending
when evidence of guilt is strong (Sec. 28, appeal may be denied even if the bail-negating
A.M. No. 02-1-18-SC). circumstances in the third paragraph are
absent.
NOTE: The prosecution cannot adduce evidence
for the denial of bail where it is a matter of right.

2015GOLDEN NOTES
BILL OF RIGHTS
NOTE: The discretionary nature of the grant of 3. Penalty for offense charged
bail pending appeal does not mean that bail 4. Character and reputation of accused
should automatically be granted absent any of 5. Age and health of accused
the circumstances mentioned in the third 6. Weight of evidence against the accused
paragraph of Sec. 5, Rule 114 of the Rules of 7. Probability of the accused appearing in trial
Court (Jose Antonio Leviste v. Court of Appeals, 8. Forfeiture of other bonds
et al., G.R.No. 189122, March 17, 2010). 9. Fact that accused was a fugitive from justice
when arrested
2. Existence of at least one of the said 10. Pendency of cases in which the accused is
circumstances. The appellate court exercises a under bond (A.M. No. 12-11-2-SC, March 18,
more stringent discretion, that is, to carefully 2014).
ascertain whether any of the enumerated
circumstances in fact exists. If it so determines, Q: Manolet was arrested for child abuse. She
it has no other option except to deny or revoke filed a petition for application of bail. The court
bail pending appeal (Jose Antonio Leviste v. granted her application with a condition that
Court of Appeals, et al., G.R. No. 189122, March the approval of the bail bonds shall be made
17, 2010). only after her arraignment. Is the courts order
valid?
Q: In bail application, if the prosecutor
interposes no objection to the accused charged A: NO. The grant of bail should not be conditioned
with capital offense, may the judge grant the upon prior arraignment of the accused. In cases
application without court hearing? where bail is authorized, bail should be granted
before arraignment, otherwise the accused will be
A: NO. Judges are required to conduct hearings if precluded from filing a motion to quash which is to
the accused is being charged with a capital offense. be done before arraignment. If the information is
Absence of objection from the prosecution is never quashed and the case is dismissed, there would be
a basis for the grant of bail in such cases, for the no need for the arraignment of the accused. To
judge has no right to presume that the prosecutor condition the grant of bail on his arraignment
knows what he is doing on account of familiarity would be to place him in a position where he has to
with the case (Joselito v. Narciso v Flor Marle Sta. choose between (1) filing a motion to quash and
Romana-Cruz, G.R. No. 134504, March 17, 2000). thus delay his release until his motion can be
resolved because prior to its resolution, he cannot
NOTE: A hearing on the motion for bail must be be arraigned, and (2) foregoing the filing of a
conducted by the judge to determine whether or motion to quash so that he can be arraigned at once
not the evidence of guilt is strong (Baylon v. Judge and thereafter be released on bail. These scenarios
Sison, A.M. No. 92-7-360-0, Apr. 6, 1995). undermine the accuseds constitutional right not to
be put on trial except upon valid complaint or
Whether bail is a matter of right or of discretion, information sufficient to charge him with a crime
reasonable notice of hearing is required to be given and his right to bail (Lavides v. Court of Appeals, G.R.
the prosecutor, or at least he must be asked for his No. 129670, February 1, 2000).
recommendation, because in fixing the amount of
bail, the judge is required to take into account a NOTE: It should not be taken to mean that the
number of factors (Cortes v. Judge Catral, A.M. No. hearing on a petition for bail should at all times
RTJ-97-1387, Sept. 10, 1997). precede arraignment, because the rule is that a
person deprived of his liberty by virtue of his arrest
Q: Why are capital offenses when evidence of or voluntary surrender may apply for bail as soon
guilt is strong not bailable? as he is deprived of his liberty, even before a
complaint or information is filed against him
A: Due to the gravity of the offenses committed, the (Serapio v. Sandiganbayan, G.R. No. 148468, January
confinement of a person accused of said offenses 28, 2003).
insures his attendance in the court proceedings
than if he is given provisional liberty on account of PRESUMPTION OF INNOCENCE
a bail posted by him.
Basis
Factors to be considered in setting the amount
of bail In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved
1. Financial ability of the accused to give bail (Sec. 14(2), Art 3, 1987 Constitution).
2. Nature and circumstances of offense

Every circumstance favoring the innocence of the that the existence of a presumption indicating the
accused must be taken into account. The proof guilt of the accused does not in itself destroy the
against him must survive the test of reason; the constitutional presumption of innocence unless the
strongest suspicion must not be permitted to sway inculpating presumption, together with all the
judgment (People v. Austria, G.R. No. 55109, Apr. 8, evidence, or the lack of any evidence or
1991). explanation, proves the accuseds guilt beyond a
reasonable doubt. Until the accuseds guilt is
It can be invoked only by an individual accused of a shown in this manner, the presumption of
criminal offense; a corporate entity has no innocence continues (Re: Conviction of Judge
personality to invoke the same. Adoracion G. Angeles, A.M. No. 06-9-545-RTC, Jan.
31, 2008).
Rules regarding presumption of innocence
RIGHT TO BE HEARD
1. The prosecution has the burden to prove the
guilt of the accused beyond reasonable doubt Basis
(People v. Colcol., Jr., 219 SCRA 107, February
19, 1993). Among the fundamental rights of the accused is the
2. The prosecution must rely on the strength of right to be heard by himself and counsel. Verily,
its evidence and not in the weakness of the this right is even guaranteed by the Constitution
defense (People v. Solis, 182 SCRA 182, itself. This right has been recognized and
February 14, 1990). established in order to make sure that justice is
3. The right to be presumed innocent must be done to the accused. The rights of an accused
offset by guilt beyond reasonable doubt during trial are given paramount importance in our
(People v. Ortiz, 198 SCRA 836, December 3, laws and rules on criminal procedure (Moslares v.
1990). Third division, CA., G.R. No. 129744, June 26, 1998).
4. Any doubt as to the guilt of the accused must
be resolved in his favor and against the State Q: In a murder case, Christian was convicted in
(People v. Mortos, 226 SCRA 29, September 1, the trial court but was not given the right to
1993). testify and to present additional evidence on
his behalf. Is the conviction correct?
Equipoise rule
A: NO. An accused has the constitutional right to
When the evidence of both sides is equally be heard by himself and counsel and the right to
balanced, the constitutional presumption of testify as a witness in his own behalf . The denial
innocence should tilt the scales in favor of the of such rights is a denial of due process. The
accused (Corpuz v. People, G.R. No. 74259, Feb. 14, constitutional right of the accused to be heard in
1991). his defense is inviolate. No court of justice under
our system of government has the power to
Q: The RTC QC rendered a decision convicting deprive him of that right.(People v. Lumague, G.R.
Judge Bueno of violation of R.A. 7610. The No. L-53586).
criminal cases are now on appeal before the
Court of Appeals. Meanwhile, Senior State ASSISTANCE OF COUNSEL
Prosecutor Guinto (SSP Guinto) suggested the
immediate suspension of Bueno. SSP Guinto Right to assistance of counsel
posited that since Judge Bueno stands
convicted of two counts of child abuse, her The right of a person under investigation is to have
moral qualification as a judge is in question. a competent and independent counsel preferably
Judge Bueno manifested that she still enjoys the of his own choice. The purpose is to preclude the
presumption of innocence since the criminal slightest coercion as would lead the accused to
cases are on appeal. Does she still enjoy the admit something else (People vs Evanoria, 209
presumption of innocence if the judgment SCRA 577, June 8, 1992).
convicting her is on appeal?
The accused must be amply accorded legal
A: YES. Judge Bueno still enjoys the constitutional assistance extended by a counsel who commits
presumption of innocence. Since her conviction of himself to the cause of the defense and acts
the crime of child abuse is currently on appeal accordingly; an efficient and truly decisive legal
before the CA, the same has not yet attained assistance, and not simply a perfunctory
finality. As such, she still enjoys the constitutional representation (People v. Bermas, G.R. No. 120420,
presumption of innocence. It must be remembered Apr. 21, 1999).

2015GOLDEN NOTES
BILL OF RIGHTS
NOTE: While investigations conducted by an A: YES. A PAO lawyer can be considered an

administrative body may at times be akin to a independent counsel within the contemplation of
criminal proceeding, the fact remains that, under the Constitution considering that he is not a special
existing laws, a party in an administrative inquiry counsel, public or private prosecutor, counsel of
may or may not be assisted by counsel, irrespective the police, or a municipal attorney whose interest
of the nature of the charges and of petitioners is admittedly adverse of the accused-appellant.
capacity to represent herself, and no duty rests on Thus, the assistance of a PAO lawyer satisfies the
such body to furnish the person being investigated constitutional requirement of a competent and
with counsel. The right to counsel is not always independent counsel for the accused (People v.
imperative in administrative investigations Bacor, GR. No. 122895, April 30, 1999).
because such inquiries are conducted merely to
determine whether there are facts that merit the Q: Several individuals were tried and convicted
imposition of disciplinary measures against erring of Piracy in Philippine Waters as defined in PD
public officers and employees, with the purpose of 532. However, it was discovered that the
maintaining the dignity of government service lawyer, Ms. Cantos, who represented them was
(Carbonel vs. CSC, G.R. No. 187689, September 7, not a member of the bar although evidence
2010). shows that she was knowledgeable in the rules
of legal procedure. The accused now allege that
Q: A police officer told Alex, Ralph, Nats, their conviction should be set aside since they
Andrew and Ojay to be in a police line-up with were deprived of due process. Are they correct?
other five suspects. Nats told the police that he
wants to be excused in the police line-up until A: NO. Sec. 1 of Rule 115 of the Revised Rules of
his lawyer, Atty. Barbaza, arrives. Is Nats Criminal Procedure states that "upon motion, the
entitled to the right to counsel at that stage? accused may be allowed to defend himself in
person when it sufficiently appears to the court
A: NO. The investigation has not yet commenced. that he can properly protect his rights without the
assistance of counsel." By analogy, but without
Q: At what stage shall Nats have the right to prejudice to the sanctions imposed by law for the
counsel? illegal practice of law, it is amply shown that the
rights of accused were sufficiently and properly
A: Nats shall have the right to counsel from the protected by the appearance of Ms. Cantos. An
moment the investigating officer starts to ask examination of the record will show that she knew
questions to illicit information or confession or the technical rules of procedure. Hence, there was a
admission. This right, however, can be waived but valid waiver of the right to sufficient
said waiver shall be made in writing and in the representation during the trial, considering that it
presence of counsel (Gamboa vs Judge Cruz, GR. No. was unequivocally, knowingly, and intelligently
L-56291, Jun. 27, 1988). made and with the full assistance of a bona fide
lawyer, Atty. Dani Lacap. Accordingly, denial of due
Q: Arthur had no counsel while giving his process cannot be successfully invoked where a
statement because Atty. Sol Santos, whom he valid waiver of rights has been made (People v.
called by telephone encountered heavy traffic Tulin, G.R. 111709, Aug. 30, 2001).
along Sucat Road. The interrogation was about
to end when Atty. Santos arrived. Atty. Santos NOTE: In Flores v. Ruiz, G.R. No. L-35707, May 31,
immediately requested the police investigator 1979, the Supreme Court held that the right to
to allow him to talk to Arthur. She discussed counsel during the trial cannot be waived, because
with Arthur regarding the statements he even the most intelligent or educated man may
already made. Thereafter, Arthur signed the have no skill in the science of law, particularly in
statement. Is the constitutional requirement the rules of procedure, and without counsel, he
about the presence of counsel complied with? may be convicted not because he is guilty but
because he does not know how to establish his
A: NO. The right to counsel was a right to effective innocence.
counsel from the first moment of questioning and
all throughout (People v. De Jesus, G.R. No. 91535, Q: Mao was criminally charged in court. He
Sept. 2, 1992). hired Justin as counsel who handles high-
profile clients. Due to his many clients, Justin
Q: Can a PAO lawyer be considered an cannot attend the hearing of the case of Mao. He
independent counsel within the contemplation requested many times to have the hearings
of Sec 12, Art III, 1987 Constitution? postponed. The case dragged on slowly. Judge

Oliver Punay, in his desire to finish the case as Determination of the real nature of the crime
early as practicable under the continuous trial
system, appointed a counsel de officio and Description, not designation of the offense, is
withdrew the counsel de parte. Is the action of controlling. The real nature of the crime charged is
the judge valid? determined from the recital of facts in the
information. It is neither determined based on the
A: YES. The appointment of counsel de officio caption or preamble thereof nor from the
under such circumstances is not proscribed under specification of the provision of the law allegedly
the Constitution. The preferential discretion is not violated.
absolute as would enable an accused to choose a
particular counsel to the exclusion of others NOTE: The accused cannot be convicted thereof if
equally capable. The choice of counsel by the the information fails to allege the material
accused in a criminal prosecution is not a plenary elements of the offense even if the prosecution is
one. If the counsel deliberately makes himself able to present evidence during the trial with
scarce the court is not precluded from appointing a respect to such elements.
counsel de officio whom it considers competent
and independent to enable the trial to proceed The right to be informed of the nature and cause of
until the counsel of choice enters his appearance. accusation cannot be waived. However, the defense
Otherwise the pace of criminal prosecution will may waive the right to enter a plea and let the
entirely be dictated by the accused to the court enter a plea of not guilty.
detriment of the eventual resolution of the case
(People v. Larranaga, G.R. No. 138874-75, Feb. 3, Variance doctrine
2004).
In spite of the difference between the crime that
RIGHT TO BE INFORMED OF THE NATURE AND was charged and that which was eventually
CAUSE OF ACCUSATION proved, the accused may still be convicted of
whatever offense that was proved even if not
Purpose specifically set out in the information provided it is
necessarily included in the crime charged (Teves v.
1. To furnish the accused with such a description Sandiganbayan, G.R. No. 154182, Dec. 17, 2004).
of the charge against him as will enable him to
make his defense RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
2. To avail himself of his conviction or acquittal TRIAL
for protection against further prosecution for
the same cause Right to speedy trial
3. To inform the court of the facts alleged so that
it may decide whether they are sufficient in The term speedy means free from vexatious,
law to support a conviction, if one should be capricious and oppressive delays. The factors to be
had (US v. Karelsen G.R. No. 1376, Jan. 21, 1904). considered are:
1. Time expired from the filing of information
Requisites for properly informing the accused 2. Length of delay
of the nature and cause of accusation 3. Reasons for the delay
4. Assertion or non-assertion of the right by the
1. Information must state the name of the accused
accused 5. Prejudice caused to the defendant
2. Designation given to the offense by statute
3. Statement of the acts or omission so NOTE: The denial of the right to speedy trial is a
complained of as constituting the offense ground for acquittal.
4. Name of the offended party
5. Approximate time and date of commission of The right to speedy trial [Sec. 14 (2)] particularly
the offense refers to criminal prosecutions which are at the
6. Place where offense was committed trial stage, while the right to speedy disposition of
7. Every element of the offense must be alleged in cases (Sec. 16) applies to all cases before judicial,
the complaint or information quasi-judicial or administrative bodies.

2015GOLDEN NOTES
BILL OF RIGHTS
Right to impartial trial NOTE: Under Sec. 21, Rule 119 of the Rules of
Criminal Procedure it is provided that the judge
Impartial trial means that the accused is entitled to may motu proprio exclude the public from the court
cold neutrality of an impartial judge, one who is room when the evidence to be adduced is offensive
free from interest or bias. to decency and public morals.
Speedy Disposition of Cases In a constitutional sense, public trial is not

synonymous with publicized trial. The right to a
All persons shall have the right to a speedy public trial belongs to the accused. The
disposition of their cases before all judicial, quasi- requirement of a public trial is satisfied by the
judicial, or administrative bodies (Art. III, Sec. 16, opportunity of the members of the public and the
1987 Constitution). press to attend the trial and to report what they
have observed. The accuseds right to a public trial
The constitutional right to a "speedy disposition of should not be confused with the freedom of the
cases" is not limited to the accused in criminal press and the publics right to know as a
proceedings but extends to all parties in all cases, justification for allowing the live broadcast of the
including civil and administrative cases, and in all trial. The tendency of a high profile case like the
proceedings, including judicial and quasi-judicial subject case to generate undue publicity with its
hearings. Hence, under the Constitution, any party concomitant undesirable effects weighs heavily
to a case may demand expeditious action by all against broadcasting the trial. Moreover, the fact
officials who are tasked with the administration of that the accused has legal remedies after the fact is
justice. of no moment, since the damage has been done and
may be irreparable. It must be pointed out that the
fundamental right to due process of the accused
The right to a speedy disposition of a case, like the cannot be afforded after the fact but must be
right to a speedy trial, is deemed violated only protected at the first instance (In Re: Petition for
when the proceedings are attended by vexatious, Radio and Television Coverage of the Multiple
capricious, and oppressive delays; or when Murder Cases against Maguindanao Governor Zaldy
unjustified postponements of the trial are asked for Ampatuan, et al., A.M. No. 10-11-5-SC, October 23,
and secured; or even without cause or justifiable 2012).
motive, a long period of time is allowed to elapse
without the party having his case tried. Equally RIGHT OF CONFRONTATION
applicable is the balancing test used to determine
whether a defendant has been denied his right to a Purpose of the right of confrontation
speedy trial, or a speedy disposition of a case for
that matter, in which the conduct of both the 1. To afford the accused an opportunity to test
prosecution and the defendant is weighed, and the testimony of a witness by cross-
such factors as the length of the delay, the reasons examination;
for such delay, the assertion or failure to assert 2. To allow the judge to observe the deportment
such right by the accused, and the prejudice caused of the witness.
by the delay. The concept of a speedy disposition is
a relative term and must necessarily be a flexible If the failure of the accused to cross-examine a
concept (Roquero v. The Chancellor of UP-Manila, witness is due to his own fault or was not due to
G.R. No. 181851, March 9, 2010). the fault of the prosecution, the testimony of the
witness should not be excluded.
Right to public trial
The affidavits of witnesses who are not presented
GR: during trial are inadmissible for being hearsay. The
1. Trial must be public in order to prevent accused is denied the opportunity to cross-examine
possible abuses which may be committed the witnesses.
against the accused.
2. The attendance at the trial is open to all, NOTE: Depositions are admissible under
irrespective of their relationship to the circumstances provided by the Rules of Court.
accused.
XPN: If the evidence to be adduced is offensive to

decency or public morals, the public may be
excluded.

RIGHT TO COMPULSORY PROCESS TO SECURE Elements of trials in absentia

ATTENDANCE OF WITNESS AND PRODUCTION
OF EVIDENCE 1. Accused has been validly arraigned
2. Accused has been duly notified of the dates of
Means available to the parties to compel the hearing
attendance of witnesses and the production of 3. Failure to appear is unjustifiable
documents and things needed in the
prosecution or defense of a case The presence of the accused is mandatory in
the following instances
1. Subpoena ad testificandum and subpoena
duces tecum 1. During arraignment and plea
2. Depositions and other modes of discovery 2. During trial, for identification, unless the
3. Perpetuation of testimonies accused has already stipulated on his identity
during the pre-trial and that he is the one who
Ad Testificandum v. Duces Tecum will be identified by the witnesses as the
accused in the criminal case
AD TESTIFICANDUM DUCES TECUM 3. During promulgation of sentence, unless for a
A process directed to a person The person is also light offense (Lavides v. CA, G.R. No. 129670,
requiring him to attend and to required to bring February 1, 2000).
testify at the hearing or trial of with him any
an action, or at any books, NOTE: While the accused is entitled to be present
investigation conducted by documents, or during promulgation of judgment, the absence of
competent authority, or for other things his counsel during such promulgation does not
the taking of his deposition. under his control. affect its validity.
NOTE: The subpoena duces tecum shall contain a Promulgation of judgment in absentia is valid
reasonable description of the books, documents or provided the following are present
things demanded which must appear to the court
as prima facie relevant. 1. Judgment be recorded in the criminal docket
2. Copy be served upon accused or counsel
Requirements for the exercise of the right to
secure attendance of witness NOTE: Recording the decision in the criminal
docket of the court satisfies the requirement of
1. The witness is really material notifying the accused of the decision wherever he
2. The attendance of the witness was previously may be (Estrada v. People, G.R. No. 162371, Aug. 25,
obtained 2005).
3. The witness will be available at the time
desired WRIT OF HABEAS CORPUS
4. No similar evidence could be obtained
Writ of Habeas Corpus
NOTE: Right to cross-examine is demandable only
during trials. Thus, it cannot be availed of during The writ of habeas corpus is a writ directed to the
preliminary investigations. person detaining another, commanding him to
produce the body of the detainee at a designated
Principal exceptions to the right of time and place, and to show the cause of his
confrontation detention.
1. Admissibility of dying declarations and all Privilege of the Writ of Habeas Corpus
exceptions to the hearsay rule
2. Trial in absentia under Sec.14 (2) of Art. III of The right to have an immediate determination of
the Constitution the legality of the deprivation of physical liberty.
3. With respect to child testimony
Requisites for the suspension of the privilege of
TRIAL IN ABSENTIA the writ of habeas corpus
Trials in absentia allows the accused to be absent at 1. There must be an invasion or rebellion; and
the trial (Lavides v. CA, G.R. No. 129670, February 1, 2. Public safety requires the suspension
2000).

2015GOLDEN NOTES
BILL OF RIGHTS
NOTE: The invasion and rebellion must be actual WRIT OF AMPARO, HABEAS DATA
and not merely imminent. AND KALIKASAN
The writ applies only to persons judicially charged Writ of Amparo

for rebellion or offenses inherent in or directly
connected with invasion and anyone arrested or A remedy available to any person whos right to
detained during suspension must be charged life, liberty, and security has been violated or is
within 3 days. Otherwise, he should be released. threatened with violation by an unlawful act or
omission of a public official or employee, or of a
Q: One morning, Michael, Estrelitas husband, private individual or entity. The writ covers
was abducted by a group of people. Someone extralegal killings and enforced disappearances or
gave a tip that he saw Michael at CIDG at Camp threats thereof (Sec.1, Rule on Writ of Amparo).
Crame, being questioned for the death of Nida
Blanca. Michael is reported to be detained in Extralegal killings
Camp Crame. In view thereof, Estrelita then
filed a petition for habeas corpus in the RTC, Killings committed without due process of law, i.e.,
requesting to produce the body of the Michael. without legal safeguards or judicial proceedings.
Will the petition prosper?
Enforced disappearance
A: NO. The Court held that the grant of relief in a
habeas corpus proceeding is not predicated on the An arrest, detention or abduction of a person by a
disappearance of a person, but on his illegal government official or organized groups or private
detention. It may not be used as a means of individuals acting with the direct or indirect
obtaining evidence on the whereabouts of a acquiescence of the government. It is further
person, or as a means of finding out who has characterized by the refusal of the State to disclose
specifically abducted or caused the disappearance the fate or whereabouts of the person concerned or
of a certain person. When forcible taking and a refusal to acknowledge the deprivation of liberty
disappearance not arrest and detention have which places such persons outside the protection
been alleged, the proper remedy is not habeas of law.
corpus proceedings, but criminal investigation and
proceedings. Ostensibly, his disappearance has Main advantages of the Writ of Amparo over the
been established. However, the grant of relief in a Writ of Habeas Corpus
habeas corpus proceeding is not predicated on the
disappearance of a person, but on his illegal WRIT OF
detention. Habeas corpus generally applies to all WRIT OF
BASIS HABEAS
cases of illegal confinement or detention by which AMPARO
CORPUS
any person is deprived of his liberty or by which Interim reliefs, No interim
the rightful custody of any person is withheld from such as reliefs
the person entitled thereto (Martinez v. Mendoza, temporary
499 SCRA 234, 2006). protection
order, witness
Q: Jane Lopez was arrested by the military on As to
protection
the basis of a mission order issued by the availability of
order,
Department of National Defense. A petition for interim reliefs
inspection
habeas corpus was filed. The writ was issued. order and
Later, an information for rebellion was filed production
against Jane. The military moved that the order, are
petition should be dismissed for having become available
moot and academic. Decide. Covers acts Limited to
which violate cases
A: The function of the special proceeding of habeas or threaten to involving
corpus is to inquire into the legality of ones As to acts
violate the actual
detention. Now that the detainees incarceration is covered
right to life, violation of
by virtue of a judicial order in relation to criminal liberty and right to
cases subsequently filed against them, the remedy security liberty
of habeas corpus no longer lies. The writ has As to General denial Mere denial is
served its purpose (Ilagan v. Enrile, G.R. No. 70748, allowability of is not allowed; a ground for
Oct. 21, 1985). denial detailed return dismissal of

is required of the petition protected by the Constitution. He argues that

the respondent liberty includes the right to exist and the right
No Presumption to be free from arbitrary personal restraint or
As to presumption of of regular servitude and includes the right of the citizens
applicability regularity; performance to be free to use his faculties in all lawful ways.
of must prove of official Part of the right to liberty guaranteed by the
presumption observance of duty is Constitution is the right of a person to travel.
of regularity extraordinary applicable Can the Writ of Amparo be invoked to protect
diligence his right to travel?
Enforceable Only
anywhere in enforceable A: NO. The restriction on his right to travel as a
the Philippines anywhere in consequence of the pendency of the criminal case
As to filed against him was not unlawful. Fr. Reyes also
the Phil. if
enforceability failed to establish that his right to travel was
filed with the
CA or SC impaired in the manner and to the extent that it
justice amounted to a serious violation of his right to life,
liberty, and security, for which there exists no
Exempted from Not exempted
As to payment readily available legal remedy (Reyes v. Gonzales,
payment of
of docket fees G.R. No. 182161, Dec. 3, 2009).
docket fees
Release of Release of
Q: Almarius and Aaron were abducted by the
As to effect of detained detained
CAFGU. They were taken to various military
release of person does person
camps, put in chains and tortured. While
detained not render the renders it
detained, they were threatened that if they
person petition moot moot and
escape, they and their families would be killed.
and academic academic
While in captivity they met April, Mela, and Sol
who were also prisoners then eventually,
Q: Engr. Peregrina disappeared one day and his
Almarius and Aaron were able to escape.
wife filed a petition for the Writ of Amparo with
the CA directed against the PNP, claiming that
Presently, Almarius and Aaron are now in
the unexplained uncooperative behavior of
protective custody under private individuals.
the respondents request for help and their
Almarius and Aaron then filed a petition for the
failure and refusal to extend assistance in
issuance of the Writ of Amparo, implicating
locating the whereabouts of Peregrina were
several officers of the military as their
indicative of their actual physical possession
abductors. They allege that their cause of
and custody of the missing engineer. The PNP
action consists in the threat to their right to life
was held responsible for the enforced
and liberty, and a violation of their right to
disappearance of Engr. Peregrina. Is this valid?
security. Considering the fact that they have
already escaped, will the petition still prosper?
A: YES. The government in general, through the
PNP and the PNP-CIDG, and in particular, the Chiefs
A: YES. While Almarius and Aaron were detained,
of these organizations together with Col. Kasim,
they were threatened that if they escaped, their
should be held fully accountable for the enforced
families, including them, would be killed. In time,
disappearance of Peregrina. Given their mandates,
they were able to escape. The condition of the
the PNP and the PNP-CIDG officials and members
threat to be killed has come to pass. It should be
were the ones who were remiss in their duties
stressed that they are now free from captivity not
when the government completely failed to exercise
because they were released by virtue of a lawful
extraordinary diligence that the Amparo rule
order or voluntarily freed by their abductors. It
requires (Razon v. Tagitis, G.R. No. 182498, Dec. 3,
ought to be recalled that towards the end of their
2009).
ordeal their captors even told them that they were
still deciding whether they should be executed.
Q: Fr. Reyes was charged with rebellion and his
name was included in the hold departure list.
The possibility of Almarius and Aaron being
The case was later on dismissed but the Hold
executed stared them in the eye while they were in
Departure Order still subsisted. Fr. Reyes
detention. With their escape, this continuing
maintains that the writ of amparo does not only
threat to their life is apparent, more so now that
exclusively apply to situations of extrajudicial
they have surfaced and implicated specific officers
killings and enforced disappearances but
in the military not only in their own abduction and
encompasses the whole gamut of liberties
torture, but also in those of other persons known

2015GOLDEN NOTES
BILL OF RIGHTS
to have disappeared such as April, Mela, and Sol, Writ of Amparo and Habeas Data in Favor of
among others. Noriel H. Rodriguez v. Macapagal-Arroyo, GR.
No. 193160, Nov. 15, 2011).
Understandably, since their escape, they have been
under concealment and protection by private WRIT OF HABEAS DATA
citizens because of the threat to their life, liberty
and security. The threat vitiates their free will as
NOTE: See discussion under Right to privacy, after
they are forced to limit their movements or
the Anti-Wiretapping Law
activities. Precisely because they are being
shielded from the perpetrators of their abduction,
WRIT OF KALIKASAN
they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or
Writ of Kalikasan
written threats to their life, liberty and security.
Nonetheless, the circumstances of their abduction,
A remedy available to a natural or juridical person,
detention, torture and escape reasonably support a
entity authorized by law, peoples organization,
conclusion that there is an apparent threat that
non-governmental organization, or any public
they will again be abducted, tortured, and this
interest group accredited by or registered with any
time, even executed. These constitute threats to
government agency, on behalf of persons whose
their liberty, security, and life, actionable through a
constitutional right to a balanced and healthful
petition for a Writ of Amparo (Sec. of National
ecology is violated, or threatened with violation by
Defense and AFP Chief of Staff v. Manalo, G.R. No.
an unlawful act or omission of a public official or
180906, Oct. 7, 2008).
employee, or private individual or entity, involving
environmental damage of such magnitude as to
Liability of the President for the extralegal
prejudice the life, health or property of inhabitants
killings and enforced disappearances or
in two or more cities or provinces (A.M. No. 09-6-8-
threats committed by a public official or
SC).
employee under the principle of command
responsibility when the following requisites
Essence for the promulgation of the writ
are present:
There is an increasing awareness of the need to
1. The existence of a superior-subordinate
protect the environment and conserve the finite
relationship between the accused as superior
resources of the Earth. In fact, the urgent call for
and the perpetrator of the crime as his
the preservation of the environment was
subordinate;
recognized by the international community as
2. The superior knew or had reason to know that
early as June 16, 1972 during the Stockholm
the crime was about to be or had been
Declaration. After almost two decades, the
committed;
Stockholm Declaration was reaffirmed by the Rio
3. The superior failed to take the necessary and
Declaration.
reasonable measures to prevent the criminal
acts or punish the perpetrators thereof.
Our very own Constitution also considers as a State
4. The superior has knowledge that a crime or
policy the obligation of the State to protect and
offense shall be committed, is being
advance the right of the people to a balanced and
committed, or has been committed by his
healthful ecology in accord with the rhythm and
subordinates, or by others within his area of
harmony of nature. This right was recognized as an
responsibility and, despite such knowledge, he
enforceable right in the case of Oposa v. Factoran,
did not take preventive or corrective action
G.R. No. 101083, July 30, 1993, wherein the
either before, during, or immediately after its
Supreme Court recognized the Intergenerational
commission; and
Responsibility of the people over the Earths
natural resources. The first issue it resolved was
NOTE: Knowledge of the commission of
the issue of locus standi on the part of the
irregularities, crimes or offenses is presumed
petitioners who claimed to represent their
when:
generation, and generations yet unborn. The Court
1. The acts are widespread within the
ruled in favor of the petitioners saying that the
government officials area of jurisdiction;
minor petitioners assertion of their right to a
2. The acts have been repeatedly or regularly
sound environment is a performance of their duty
committed within his area of responsibility;
to preserve such for the succeeding generations.
and
3. Members of his immediate staff or office
personnel is involved (In Re: Petition for the

More importantly, the case of Oposa clarified the NOTE: The rationale for this is that the jurisdiction
fact that although the right to a balanced and of both tribunals is national in scope which
healthful ecology is found in the Declaration of corresponds with the magnitude of the
Principles of the Constitution, this right is of equal environmental damage contemplated by the Rules.
importance with the civil and political rights found
in the Bill of Rights. Thus, in the exercise of the Procedure for the issuance of a writ of
Supreme Courts power to promulgate rules kalikasan
concerning the protection and enforcement of
constitutional rights, an environmental writ was The petitioner shall file his application for a Writ of
established to further to protect a persons kalikasan with the proper tribunal as specified in
environmental right when measures taken by the the preceding paragraph. The filing of a petition for
executive and the legislative are insufficient. the writ does not preclude the filing of separate
civil, criminal, or administrative actions.
Nature of the writ of kalikasan
NOTE: The petitioner does not need to pay docket
The Writ of kalikasan is an extraordinary remedy fees. While this is similar to the rule on filing fees
which may be issued depending on the magnitude for civil and criminal cases under the Rules, the
of the environmental damage. The environmental exemption from payment of docket fees under this
damage must be one which prejudices the life, remedy is a necessary consequence of the fact that
health or property of inhabitants in two or more no award of damages to private individuals can be
cities or provinces, or that which transcends made under the writ. In comparison to civil or
political and territorial boundaries. criminal cases under the Rules of Civil Procedure,
the filing fees need not be paid at the time of filing
It is also a remedy which enforces the right to but the same shall be imputed from the award of
information by compelling the government or a damages that may be given to the complainant in
private entity to produce information regarding the judgment.
the environment that is within their custody.
INCRIMINATION CLAUSE
Persons who may file a petition for a writ of
kalikasan Basis
The Writ of Kalikasan may be availed of by any of No person shall be compelled to be a witness
the following: against himself (Sec. 17, Art. III of the Constitution).
a. Natural or juridical persons;
b. Entities authorized by law; or NOTE: This constitutional privilege has been
c. Peoples organizations, non-governmental defined as a protection against testimonial
organizations, or any public interest group compulsion, but this has since been extended to
accredited by or registered with any any evidence communicative in nature acquired
government agency. under circumstances of duress (People v. Olvis, G.R.
No. 71092, Sept. 30, 1987).
The petition must be on behalf of persons whose
constitutional right to have balanced and healthful What is prohibited is the use of physical or moral
ecology is violated and involving environmental compulsion to extort communication from the
damage that injures the life, health or property of witness or to otherwise elicit evidence which
inhabitants in two or more cities or provinces. would not exist were it not for the actions
compelled from the witness.
Persons against whom a petition for a writ of
kalikasan is filed The right is available in:
The Writ of Kalikasan may be applied against: 1. Criminal cases

a. A public official or employee; or 2. Civil cases
b. A private individual or entity. 3. Administrative cases
4. Impeachment
Where to file the petition 5. Other legislative investigations that possess a
criminal or penal aspect
(a) The Supreme Court; or
(b) Any station of the Court of Appeals. NOTE: It does not apply to private investigations
done by private individual (BPI v. CASA,
GR.No.149454, May 28, 2004). When the privilege

2015GOLDEN NOTES
BILL OF RIGHTS
against self-incrimination is violated outside of Q: Brian was asked by Atty. Tamayo to re-enact
court, say, by the police, then the testimony, as how he robbed the BPI Bank. Brians counsel
already noted, is not admissible under the objected on the ground that the question is
exclusionary rule. When the privilege is violated by incriminating. Can Brian validly invoke his
the court itself, that is, by the judge, the court is right against self-incrimination?
ousted of its jurisdiction, all its proceedings are
null and void, and it is as if no judgment has been A: YES. A person who is made to re-enact a crime
rendered (Chavez v. CA, G.R. No. L-29169, Aug. 19, may rightfully invoke his privilege against self-
1968). incrimination, because by his conduct of acting out
how the crime was supposedly committed, he
Incriminating question thereby practically confesses his guilt by action
which is as eloquent, if not more so, than words
A question tends to incriminate when the answer (See: People vs. Olvis, G.R. No. 71092, September 30,
of the accused or the witness would establish a fact 1987).
which would be a necessary link in a chain of
evidence to prove the commission of a crime by the Q: Fiscal Jessa Bernardo petitioned the lower
accused or the witness. court to order Art to appear before the former
to take dictation in Arts own handwriting to
NOTE: The privilege against self-incrimination is determine whether or not it was Art who wrote
not self-executing or automatically operational. It certain documents supposed to be falsified. The
must be claimed. It follows that the right may be lower court granted the petition of the fiscal.
waived, expressly, or impliedly, as by a failure to Art refused what the fiscal demanded and
claim it at the appropriate time. sought refuge in the constitutional provision of
his right against self-incrimination. Is Arts
Q: Jane Lopez, a witness, is ordered by the judge contention valid?
to testify in Court but she refused to abide by
the said order invoking her right against self- A: YES. Under Sec. 17, Art. III of the 1987
incrimination. Can Jane invoke such right? Constitution, no person shall be compelled to
be a witness against himself. Since the provision
A: NO. The privilege against self-incrimination can prohibits compulsory testimonial incrimination, it
be claimed only when the specific question, does not matter whether the testimony is taken by
incriminatory in character, is actually addressed to oral or written. Writing is not purely a mechanical
the witness. It cannot be claimed at any other time. act because it requires the application of
It does not give a witness the right to disregard a intelligence and attention. The purpose of the
subpoena, to decline to appear before the court at privilege is to avoid and prohibit thereby the
the time appointed (Rosete et. al. v. Lim, G.R. No. repetition and recurrence of compelling a
136051, June 8, 2006). person, in a criminal or any other case, to
furnish the missing evidence necessary for his
Right against self-incrimination of an accused v. conviction (Bermudez v. Castillo, July 26, 1937;
Right against self-incrimination of a witness Beltran v. Samson, G.R. No. 32025, Sept. 23, 1929).
ACCUSED ORDINARY WITNESS NOTE: There is similarity between one who is

Can refuse to take the Cannot refuse to take compelled to produce a private document (Boyd v.
witness stand the witness stand; can US, 1886), and one who is compelled to furnish a
altogether by invoking only refuse to answer specimen of his handwriting, for in both cases, the
the right against self- specific questions which witness is required to furnish evidence against
incrimination would incriminate him himself.
in the commission of an
offense Q: Jez, an employee at the Post Office was
apprehended by the NBI agents and he was
NOTE: For, in reality, the purpose of calling an accused of mail theft. During custodial
accused as a witness for the People would be to investigation, Jez was asked to sign the
incriminate him. The rule positively intends to envelopes of the letters without the assistance
avoid and prohibit the certainly inhuman of the counsel. This was to identify the letters
procedure of compelling a person to furnish the as the ones seized from him. The letters were
missing evidence necessary for his conviction admitted in evidence and Jez was convicted. On
(Chavez v. Court of Appeals, G.R. L-29169, August appeal, Jezs counsel Zenia argued that the
1968). signing of Jezs and her co-accuseds names was
not a mere mechanical act but one which

required the use of intelligence and therefore USED-AND- TRANSACTIONAL

constitutes self-incrimination. Is there a DERIVATIVE-USE IMMUNITY
violation of the accuseds right against self- IMMUNITY
incrimination? Only prevents the Completely protects the
prosecution from using witness from future
A: None. The purpose for securing the signature of the witness' own prosecution for crimes
petitioner on the envelopes was merely to testimony, or any related to his or her
authenticate the envelopes as the ones seized from evidence derived from testimony.
him. Moreover, when the signatures of the accused the testimony, against
were affixed, such signatures were actually him. However, should
evidence of admission obtained from the petitioner the prosecutor acquire
and his co-accused under circumstances evidence substantiating
constituting custodial investigation. Under the the supposed crime
Constitution, among the rights of a person under independent of the
custodial investigation is the right to have witness's testimony
competent and independent counsel preferably of the witness may then be
his own choice and if the person cannot afford the prosecuted for the
services of a counsel, that he must be provided same.
with one. It is on this ground that the letters with Does not protect the Gives the witness the
the signature of the accused could be rejected witness quite as much, most protection from
(Marcelo v. Sandiganbayan, G.R. No. 109242, because here the prosecution because
January 26, 1999). witness is only that witness can never
protected from future be prosecuted in the
Inapplicability of the right against self- prosecution based on future for any crimes
incrimination to juridical persons exactly what he or she related to his or her
says on the witness testimony.
It is not available to juridical persons as it would stand, and not from any
be a strange anomaly to hold that a state having evidence the prosecutor Also known as blanket
chartered a corporation to make use of certain finds to substantiate the or total immunity.
franchises, could not, in the exercise of sovereignty, witness crime.
inquire how these franchises had been employed,
and whether they have been abused, and demand Q: The Republic of the Philippines filed a case
the production of the corporate books and papers against Westinghouse Corporation before the
for that purpose. (Bataan Shipyard and US District Court due to the belief that
Engineering Corporation v. PCG, GR. No. 75885, May Westinghouse contract for the construction of
27, 1987). the Bataan Nuclear power plant, which was
brokered by Herminio Disinis company, had
IMMUNITY STATUTES been attended by anomalies. Having worked as
Herminios executive in the latters company
Used-and-derivative-use Immunity for 15 years, the Republic asked Jesus Disini to
give his testimony regarding the case.
A witness is only assured that his or her particular
testimony and evidence derived from it will not be An immunity agreement was entered between
used against him or her in a subsequent Jesus and the Republic which he undertook to
prosecution. testify for his government and provide its
lawyers with information needed to prosecute
Transactional Immunity the case. Said agreement gave Jesus an
assurance that he shall not be compelled to give
A witness can no longer be prosecuted for any further testimonies in any proceeding other
offense whatsoever arising out of the act or than the present matter. Jesus complied with
transaction (Mapa vs. Sandiganbayan, G.R. No. his undertaking. But after 18 years,
100295, April 26, 1994). Sandiganbayan issued a subpoena against him,
commanding him to testify and produce
documents before said court in an action filed
against Herminio. Can Jesus be compelled to
testify before the Sandiganbayan?

2015GOLDEN NOTES
BILL OF RIGHTS
A: NO. A contract is the law between the parties. It manner as if IMMUNITY had in fact been
cannot be withdrawn except by their mutual offered. The applicability of the immunity
consent. In the case at bar, the Republic, through granted by P.D. 1886 cannot be made to
the PCGG, offered Jesus not only criminal and civil depend on a claim of the privilege against self-
immunity but also immunity against being incrimination which the same law practically
compelled to testify in any proceeding other than strips away from the witness (Galman v.
the civil and arbitration cases identified in the Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985).
agreement, just so he would agree to testify. When
the Republic entered in such agreement, it needs to INVOLUNTARY SERVITUDE AND POLITICAL
fulfill its obligations honorably as Jesus did. The PRISONERS
government should be fair (Disini v.
Sandiganbayan, G.R. No. 180564, June 22, 2010). Involuntary servitude
Q: Lisette and Angela were called before the Condition where one is compelled by force,
AGRAVA Board to elicit and determine the coercion, or imprisonment, and against his will, to
surrounding facts and circumstances of the labor for another, whether he is paid or not.
assassination of Benigno Aquino Sr. Sec. 5 of PD
1886 creating the Board compels a person to GR: No involuntary servitude shall exist.
take the witness stand, testify or produce
evidence, under the pain of contempt if they XPNs:
failed or refused to do so. Lisette and Angela 1. Punishment for a crime for which the party has
gave their testimonies without having been been duly convicted
informed of their right to remain silent and that 2. Personal military or civil service in the interest
any statement given by them may be used of national defense
against them. The Board then used the 3. In naval enlistment, a person who enlists in a
information from the testimonies of Lisette and merchant ship may be compelled to remain in
Angela to support the prosecution's case service until the end of a voyage
against them in Sandiganbayan. The Board 4. Posse comitatusor the conscription of able-
contends that the fact that Lisette and Angela bodied men for the apprehension of criminals
testified before the Board constituted as a valid 5. Return to work order issued by the DOLE
waiver of their constitutional rights to remain Secretary or the President
silent and not to be compelled to be a witness 6. Minors under patria potestas are obliged to
against themselves. obey their parents
1. Was there a valid waiver of the rights?
2. Are the testimonies of Lisette and Angela Q: Yolanda is a stenographer in the RTC of
admissible in court? Nueva Ecija. She is now retired, however she
3. How can the unconstitutional effects be had unfinished work left in the RTC which were
reconciled? on appeal, so the Court of Appeals ordered her
to finish her work. However, she refused to
A: comply as she is already retired. CA cited her
1. None. In the case at bar, Lisette and Angela for contempt of court and incarcerated her. In
were under the directive of law and under the return, Joy filed for a petition of Habeas Corpus
compulsion of fear for the contempt powers of arguing that her incarceration constitutes
the Board. They were left with no choice but to illegal detention and that the court making her
provide testimonies before the Board. finish her work is involuntary solitude. Will her
petition prosper? Explain.
2. No. The manner in which testimonies were
taken from Lisette and Angela falls short of the A: NO. The Incarceration does not amount to illegal
constitutional standards both under the due detention, contrary to her claim. Such incarceration
process clause and under the exclusionary is the consequence of her non-compliance with the
rule. court order. The Court of Appeals, ordering her to
finish her work, does not amount to involuntary
3. As a rule, such infringement of constitutional servitude either. The courts have the inherent
right renders inoperative the testimonial power to issue such orders as are necessary for the
compulsion, meaning, the witness cannot be administration of justice. Thus, the court may order
compelled to answer UNLESS a co-extensive her to finish her work even if she is no longer in the
protection in the form of IMMUNITY is offered. government service.
The only way to cure the law of its
unconstitutional effects is to construe it in the

EXCESSIVE FINES AND CRUEL AND

INHUMAN PUNISHMENTS If an accused fails to pay the fines imposed upon
him, this may result in his subsidiary
Coverage imprisonment because his liability is ex delicto and
not ex contractu.
It has long been held that the prohibition of cruel
and unusual punishments is generally aimed at the Generally, a debtor cannot be imprisoned for
form or character of the punishment rather than its failure to pay his debt. However, if he contracted
severity in respect of duration or amount, and his debt through fraud, he can be validly punished
applies to punishments which public sentiment has in a criminal action as his responsibility arises not
regarded as cruel or obsolete, for instance, those from the contract of loan but from commission of a
inflicted at the whipping post, or in the pillory, crime (Lozano v. Martinez, G.R. No. L-63419, Dec.18,
burning at the stake, breaking on the wheel, 1986).
disemboweling, and the like. Fine and
imprisonment would not thus be within the RIGHT AGAINST DOUBLE JEOPARDY
prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty Right against Double Jeopardy
to be obnoxious to the Constitution.
No person shall be twice put in jeopardy of
NOTE:The fact that the punishment authorized by punishment for the same offense. If an act is
the statute is severe does not make it cruel and punished by a law and an ordinance, conviction or
unusual (Corpuz v. People, G.R. No. 180016, April 29, acquittal under either shall constitute a bar to
2014). another prosecution for the same act
Cruel and Inhuman penalty Requisites
A penalty is cruel and inhuman if it involves torture 1. Valid complaint or information

or lingering suffering (example: being drawn and 2. Filed before a competent court
quartered). 3. To which the defendant had pleaded
4. Defendant was previously acquitted or
Degrading penalty convicted, or the case dismissed or otherwise
terminated without his express consent
A penalty is degrading if it exposes a person to
public humiliation (example: being tarred and NOTE: Consent of the accused to the dismissal
feathered, then paraded throughout town). cannot be implied or presumed; it must be
expressed as to have no doubt as to the accuseds
NON-IMPRISONMENT FOR DEBTS conformity (Caes v. Intermediate Appellate Court,
179 SCRA 54).
Basis
Rationale behind the Right
No person shall be imprisoned for debt or non-
payment of a poll tax (Sec. 20, Art. III of the To reconsider a judgment of acquittal places the
Constitution). accused twice in jeopardy for being punished for
the crime of which he has already been absolved.
Debt There is reason for this provision of the
Constitution. In criminal cases, the full power of the
Any civil obligation arising from contract State is ranged against the accused. If there is no
limit to attempts to prosecute the accused for the
Poll tax same offense after he has been acquitted, the
infinite power and capacity of the State for a
A specific sum levied upon any person belonging to sustained and repeated litigation would eventually
a certain class without regard to property or overwhelm the accused in terms of resources,
occupation (e.g. Community tax). stamina, and the will to fight (Lejano v. People, G.R.
Nos. 176389 and 176864, December 14, 2010).
NOTE: A tax is not a debt since it is an obligation
arising from law. Hence, its non-payment maybe
validly punished with imprisonment. Only poll tax
is covered by the constitutional provision.

2015GOLDEN NOTES
BILL OF RIGHTS
Grant of demurrer to evidence operates as an 1. Dismissal based on insufficiency of

acquittal evidence
2. Dismissal because of denial of accuseds
The general rule that the grant of a demurrer to right to speedy trial
evidence operates as an acquittal and is, thus, final 3. Accused is discharged to be a State witness
and unappealable, to wit:
6. When the case was provisionally dismissed.
The demurrer to evidence in criminal cases, such 7. The graver offense developed due to
as the one at bar, is "filed after the prosecution had supervening facts arising from the same act or
rested its case," and when the same is granted, it omission constituting the former charge.
calls "for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant NOTE: Doctrine of Supervening Event - The
conviction beyond reasonable doubt, resulting in accused may still be prosecuted for another
a dismissal of the case on the merits, tantamount to offense if a subsequent development changes
an acquittal of the accused." Such dismissal of a the character of the first indictment under
criminal case by the grant of demurrer to evidence which he may have already been charged or
may not be appealed, for to do so would be to place convicted.
the accused in double jeopardy. The verdict being
one of acquittal, the case ends there. 8. The facts constituting the graver charge
became known or were discovered only after a
plea was entered in the former complaint or
Related protections provided by the right information.
against double jeopardy 9. The plea of guilty to a lesser offense was made
without the consent of the prosecutor and of
1. Against a second prosecution for the same the offended party except as otherwise
offense after acquittal; provided in Sec. 1(f) of Rule 116.
2. Against a second prosecution for the same
offense after conviction; Q: Hans, a writer in Q Magazine, published an
3. Against multiple punishments for the same article about Carlos illicit affairs with other
offense. women. The magazine also happened to have a
website where the same article was published.
Exceptions to the right against double jeopardy Carlo then filed a libel case against Hans both
under the Revised Penal Code and the
1. When the trial court acted with grave abuse of Cybercrime Law. Is there a violation of the
discretion amounting to lack or excess of proscription against double jeopardy?
jurisdiction.
2. The accused was not acquitted nor was there a A: YES. There should be no question that if the
valid and legal dismissal or termination of the published material on print, said to be libelous, is
case. again posted online or vice versa, that identical
3. Dismissal of the case was during the material cannot be the subject of two separate
preliminary investigation. libels. The two offenses, one, a violation of Art. 353
4. It does not apply to administrative cases. of the Revised Penal Code and the other a violation
5. Dismissal or termination of the case was with of Sec. 4(c)(4) of R.A. 10175 involve essentially the
the express consent of the accused. same elements and are in fact one and the same
offense. Online libel under Sec. 4(c)(4) is not a new
NOTE: When the dismissal is made at the crime but is one already punished under the Art.
instance of the accused, there is no double 353. Sec. 4(c)(4) merely establishes the computer
jeopardy (People v. Quizada, 160 SCRA 516). system as another means of publication. Charging
the offender under both laws would be a blatant
GR: Double jeopardy is not available when the violation of the proscription against double
case is dismissed other than on the merits or jeopardy (Disini v. Secretary of Justice, G.R. No.
other than by acquittal or conviction upon 203335, Feb. 11, 2014).
motion of the accused personally, or through
counsel, since such dismissal is regarded as Q: Jet was convicted for Reckless Imprudence
with express consent of the accused, who is Resulting in Slight Physical Injuries. Can he still
therefore deemed to have waived the right to be prosecuted for Reckless Imprudence
plea double jeopardy. Resulting in Homicide and Damage to Property
arising from the same incident?
XPNs:

A: NO. The doctrine that reckless imprudence Q: If the first case was dismissed due to
under Art. 365 is a single quasi-offense by itself and insufficiency of evidence without giving the
not merely a means to commit other crimes such prosecution the opportunity to present its
that conviction or acquittal of such quasi-offense evidence, has jeopardy attached?
bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts. A: NO. The first jeopardy has not yet attached.
Reason and precedent both coincide in that once There is no question that four of the five elements
convicted or acquitted of a specific act of reckless of legal jeopardy are present. However, the last
imprudence, the accused may not be prosecuted element valid conviction, acquittal, dismissal or
again for that same act. For the essence of the termination of the case is wanting since the right
quasi-offense of criminal negligence under Art. 365 to due process was violated (People v. Dumlao, G.R.
of the Revised Penal Code lies in the execution of No. 168918, Mar. 2, 2009).
an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law Q: Upon arraignment, Arwin pleaded not guilty
penalizes thus the negligent or careless act, not the to the charge of serious physical injuries. Days
result thereof. The gravity of the consequence is later, the victim died. Hence, the Fiscal moved
only taken into account to determine the penalty, it for the amendment of the information so as to
does not qualify the substance of the offense. And, charge the accused with the crime of homicide.
as the careless act is single, whether the injurious The accused objected on the ground that he had
result should affect one person or several persons, been put in jeopardy of being convicted of the
the offense (criminal negligence) remains one and crime of serious physical injuries; and that
the same, and cannot be split into different crimes another prosecution for homicide for the same
and prosecutions (Jason Ivler y Aguilar v. Hon. act under the amended information would
Maria Rowena Modesto-San Pedro, G.R. No. 172716, constitute double jeopardy. If you were the
November 17, 2010). judge, how would you resolve the motion?
Explain (1984 BAR QUESTION, Political Law
Q: Allan was charged with a criminal case in the Reviewer, Suarez, 2011).
court. He was arraigned and he pleaded not
guilty. Later the prosecution moved to dismiss A: There is no double jeopardy and the motion of
the case. The counsel for the accused wrote No the accused should therefore be denied. His plea
Objection at the bottom of the prosecutors was only with respect to the charge of physical
motion. The court granted the motion and injuries but not with respect to the crime of
dismissed the case against Allan. A year after homicide.
Allan was charged for the same case. May Allan
invoke the right against double jeopardy? Q: After a long and protracted trial, the accused
involved in the murder of then Senator Aquino
A: NO. The act of Allans counsel in writing No were acquitted by the Sandiganbayan. After the
Objection constituted an express consent to the EDSA People Power Revolution, a commission
termination within the meaning of Sec. 9 of Rule appointed by President Aquino recommended
117 Rules of Court. He could not thereafter revoke the re-opening of the Galman-Aquino murder
that conformity since the court had already acted case after finding out that the then
upon it by dismissing the case. Allan was bound by authoritarian president ordered the
his counsels consent to the dismissal (People v. Tanodbayan and Sandiganabyan to rig the trial.
Pilpa, G.R. No. L-30250, Sept. 22, 1977). Was there double jeopardy?
Q: Two policemen were charged before the A: NO. There was no double jeopardy. The
Sandiganbayan for the death of Aki and Kat. proceedings that took place before was a sham and
The policemen entered their pleas of not guilty. a mock trial which resulted in the denial of the
However, the prosecution was ordered to States right to due process (Galman v.
amend the information and the accused were Sandiganbayan, GR. No. 72670, Sept. 12, 1986).
arraigned anew and consequently convicted.
Were they placed in double jeopardy? MOTION FOR RECONSIDERATION AND APPEAL
A: NO. The first requirement for jeopardy to attach Motion for Reconsideration
that the information were valid has not been
complied with (Herrera v. Sandiganbayan, G.R. Nos. At any time before a judgment of conviction
119660-61, Feb. 13, 2009). becomes final, the court may on motion of the
accused, or on its own instance with the consent of
the accused, grant a new trial or reconsideration

2015GOLDEN NOTES
BILL OF RIGHTS
(Rule 121, Sec. 1 of the Revised Rules of Criminal

Procedure). Kinds of ex post facto law
NOTE: A motion for reconsideration is a motion It can be a law that:

generally filed by the accused whereby he seeks 1. Makes an act, which was innocent when done,
the modification of the conclusions of the court in criminal and punishes such action
the judgment of conviction on the basis of what is 2. Aggravates a crime or makes it greater than
already on record. It does not call for the when it was committed
introduction of evidence unlike in new trial 3. Changes the punishment and inflicts a greater
(Pineda, The Revised Rules of Criminal Procedure, punishment than the law annexed to the crime
2006 ed., 536-537). when it was committed
4. Alters the legal rules of evidence and receives
Appeal less or different testimony than the law
required at the time of the commission of the
Any party may appeal from a judgment or final offense in order to convict the defendant
order, unless the accused will be placed in double 5. Assumes to regulate civil rights and remedies
jeopardy (Rule 122, Sec. 1 of the Revised Rules of only. In effect imposes penalty or deprivation
Criminal Procedure). of a right for something which when done was
lawful
NOTE: The authority to represent the State in 6. Deprives a person accused of a crime of some
appeals of criminal cases before the Supreme Court lawful protection to which he has become
and the CA is solely vested in the Office of the entitled, such as the protection of a former
Solicitor General (OSG). conviction or acquittal, or a proclamation of
amnesty (Nuez v. Sandiganbayan and People
To be sure, in criminal cases, the acquittal of the of the Philippines, January 30, 1982).
accused or the dismissal of the case against him
can only be appealed by the Solicitor General, Q: On Oct. 8, 1992 President Ramos issued A.O.
acting on behalf of the State. The private No. 13 creating the Presidential AdHoc Fact-
complainant or the offended party may question Finding Committee on Behest Loans. Behest
such acquittal or dismissal only insofar as the civil loans are loans granted by government banks
liability of the accused is concerned. or GOCC at the behest, command, or urging by
previous government officials to the
In a special civil action for certiorari filed under disadvantage of the Philippine government.
Sec. 1, Rule 65 of the Rules of Court wherein it is The Committee was tasked to inventory all
alleged that the trial court committed a grave behest loans and determine the courses of
abuse of discretion amounting to lack of action that the government should take to
jurisdiction or on other jurisdictional grounds, the recover these loans.
rules state that the petition may be filed by the
person aggrieved. In such case, the aggrieved By Memorandum Order No. 61 dated Nov. 9,
parties are the State and the private offended party 1992, the functions of the Committee were
or complainant. The complainant has an interest in expanded to include all non-performing loans
the civil aspect of the case so he may file such which shall embrace behest and non-behest
special civil action questioning the decision or loans. Said Memorandum also named criteria to
action of the respondent court on jurisdictional be utilized as a frame of reference in
grounds. In so doing, complainant should not bring determining a behest loan.
the action in the name of the People of the
Philippines. The action may be prosecuted in name Several loan accounts were referred to the
of said complainant (Bautista & Alcantara v. Committee for investigation, including the loan
Cuneta-Pangilinan, G.R. No. 189754, Oct. 24, 2012). transactions between PEMI and the DBP. The
Committee determined that they bore the
EX POST FACTO LAW AND characteristics of behest loans because the
BILL OF ATTAINDER stockholders and officers of PEMI were known
cronies of then President Marcos; the loan
An ex post facto law is any law that makes an was under-collateralized; and PEMI was
action, done before the passage of the law, and undercapitalized at the time the loan was
which was innocent when done, criminal, and granted.
punishes such action (The United State v. Vicente
Diaz Conde and Apolinaria R. De Conde, G.R. No. L- Consequently, Atty. Salvador, Consultant of the
18208, February 14, 1922). Fact-Finding Committee, and representing the

PCGG, filed with the Ombudsman a sworn Q: Carlos was charged with illegal possession of
complaint for violation of Sections 3(e) and (g) firearms. When Carlos committed the offense,
of R.A. No. 3019 against the respondents Mapa, the governing law was PD 1866, which
Jr. et. al. The Ombudsman dismissed the provided for the penalty of reclusion temporal
complaint on the ground of prescription. to reclusion perpetua. However, while the case
was pending, PD 1866 was amended by RA
According to the Ombudsman, the loans were 8294, which reduced the penalty to prision
entered into by virtue of public documents correccional but increasing the amount of fine.
during the period of 1978 to 1981.Records If Carlos is convicted, which penalty shall be
show that the complaint was referred and filed imposed?
with the Ombudsman on Oct. 4, 1996 or after
the lapse of more than fifteen years from the A: R.A. 8294 is the applicable law. As a general rule,
violation of the law. Therefore, the offenses penal laws should not have retroactive application,
charged had already prescribed. lest they acquire the character of an ex post facto
law. An exception to this rule, however, is when the
The Presidential Ad Hoc Committee on Behest law is advantageous to the accused. Although an
Loans was created on Oct. 8, 1992 under ;additional fine of P15,000.00 is imposed by RA
Administrative Order No. 13. Subsequently, 8294, the same is still advantageous to the accused,
Memorandum Order No. 61, dated Nov. 9, 1992, considering that the imprisonment is lowered to
was issued defining the criteria to be utilized as prision correccional in its maximum period from
a frame of reference in determining behest reclusion temporal in its maximum period to
loans. reclusion perpetua under PD 1866.
Accordingly, if these Orders are to be Hence, RA 8294 should be applied, without

considered the bases of charging respondents prejudice to the application of the Indeterminate
for alleged offenses committed, they become Sentence Law (Valeroso v. People, G.R. No. 164815,
ex-post facto laws which are proscribed by the Feb. 22, 2008).
Constitution. The Committee filed a Motion for
Reconsideration, but the Ombudsman denied it Bill of attainder
on July 27, 1998.
A legislative act that inflicts punishment without
Are Administrative Order No. 13 and trial, its essence being the substitution of
Memorandum Order No. 61 ex-post facto laws? legislative fiat for a judicial determination of guilt
(People v. Ferrer, G.R. Nos. L-32613-14, December
A: NO. The constitutional doctrine that outlaws an 27, 1972).
ex post facto law generally prohibits the
retrospectivity of penal laws. Penal laws are those NOTE: It is only when a statute applies either to a
acts of the legislature which prohibit certain acts named individuals or easily ascertainable members
and establish penalties for their violations; or those of a group in such a way as to inflict punishment on
that define crimes, treat of their nature, and them without a judicial trial that it becomes a bill
provide for their punishment. The subject of attainder.
administrative and memorandum orders clearly do
not come within the shadow of this definition. Two kinds of bill of attainder
Administrative Order No. 13 creates the
Presidential Ad Hoc Fact-Finding Committee on 1. Bill of attainder proper (legislative imposition
Behest Loans, and provides for its composition and of the death penalty)
functions. It does not mete out penalty for the act 2. Bill of pains and penalties (imposition of a
of granting behest loans. Memorandum Order No. lesser penalty)
61 merely provides a frame of reference for
determining behest loans. Not being penal laws,
Administrative Order No. 13 and Memorandum
Order No. 61 cannot be characterized as ex post
facto laws. There is, therefore, no basis for the
Ombudsman to rule that the subject administrative
and memorandum orders are ex post facto
(Salvador v. Mapa, Jr., G.R. No. 135080, November
28, 2007).

2015GOLDEN NOTES
CITIZENSHIP
CITIZENSHIP NOTE: The 1935 Constitution, during which

regime FPJ had seen first light, confers citizenship
Citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate
Membership in a political community, which is or illegitimate (Tecson v. COMELEC, G.R. No.
personal and more or less permanent in character. 161434, Mar. 3, 2004).
Citizenship v. Nationality MODES OF ACQUIRING CITIZENSHIP
Citizenship Nationality 1. By birth

A term denoting It has broader meaning, a. Jus sanguinis acquisition of citizenship
membership of a citizen embracing all who owe on the basis of blood relationship.
in a political society, allegiance to a state, b. Jus soli acquisition of citizenship on the
which membership whether democratic or basis of the place of birth.
implies, reciprocally, a not, without thereby 2. By naturalization the legal act of adopting an
duty of allegiance on becoming citizens. alien and clothing him with the privilege of a
the part of the member Because they owe native-born citizen.
and duty of protection allegiance to it, they are 3. By marriage
on the part of the state. not regarded as aliens.
NOTE: Jus sanguinis and naturalization are the
Citizens of the Philippines modes followed in the Philippines.
1. Those who are Filipino citizens at the time of Statutory formalities in selecting Philippine
the adoption of the 1987 Constitution: citizenship
a. Those who are citizens under the Treaty
of Paris; 1. A statement of election under oath;
b. Those declared citizens by judicial 2. An oath of allegiance to the Constitution and
declaration applying the jus soli principle, Government of the Philippines; and
before Tio Tam v. Republic, G.R. No. L-9602, 3. Registration of the statement of election and of
April 25, 1957. the oath with the nearest civil registry
c. Those who are naturalized in accordance (Balgamelo Cabiling Ma, et al. v. Commissioner
with law (Act 2927). Alipio F. Fernandez, Jr., et al. G.R. No. 183133,
d. Those who are citizens under the 1935 July 26, 2010).
Constitution.
e. Those who are citizens under the 1973 Q: Petitioners were all born under the aegis of
Constitution. the 1935 Constitution to a Filipino mother and
a Taiwanese father. Upon reaching the age of
2. Those whose fathers or mothers are Filipino 21, they claimed Philippine citizenship in
citizens accordance with the 1935 Constitution. Having
3. Those born before January 17, 1973, of taken their oaths of allegiance, however, they
Filipino mothers, who elect Philippine failed to have the necessary documents
citizenship upon reaching the age of majority; registered in the civil registry as required by
CA No. 625. It was only more than 30 years
NOTE: Time to elect: within 3 years from after did they do so, in 2005. Petitioners have
reaching the age of majority. lived in the Philippines for more than 60 years.
For failure to comply with the procedure to
4. Those naturalized in accordance with law (Sec. prove a valid claim to Philippine citizenship via
1, Art. IV, 1987 Constitution). election proceedings, they were declared
undocumented aliens.
Caram rule
Does registration of the act of election confer
Under the 1935 Constitution, those born in the Filipino citizenship?
Philippines of foreign parent, who before the
adoption of the Constitution had been elected to A: NO. It is not the registration of the act of
public office, are considered Filipino citizens election, although a valid requirement under
(Chiongbian v. de Leon, G.R. No. L-2007, Jan. 31, Commonwealth Act No. 625 that will confer
1949). Philippine citizenship on the petitioners. It is only
a means of confirming the fact that citizenship has

been claimed. In other words, the actual exercise c. Married to a Filipino woman
of Philippine citizenship for over half a century by d. Engaged as teacher in Philippine public or
the petitioners is actual notice to the Philippine private school not established for
public, which is equivalent to formal registration exclusive instruction of a particular
of the election of Philippine citizenship (Ibid.). nationality or race, or in any branches of
education or industry for a period of not
Q: When is the registration of documents of less than 2 years; and
election still allowed even beyond the time e. Born in the Philippines
frame? 3. Character
1. Good moral character
A: It should be allowed if in the meanwhile 2. Believes in the Constitution
positive acts of citizenship have been done 3. Conducted himself in an irreproachable
publicly, consistently and continuously. These acts conduct during his stay in the Philippines
constitute constructive registration (Ibid.). 4. Owns real estate in the Philippines not less
than P5,000 in value; or has some lucrative
Q: Does the failure to register the election of trade, profession or lawful occupation that can
citizenship in the civil registry defeat the support himself and his family.
election and negate the permanent fact that 5. Speaks and writes English or Filipino and any
petitioners have a Filipino mother? principal Philippine dialects (as amended by
Sec. 6 Art. XIV); and
A: NO. Having a Filipino mother is permanent. It is 6. Enrolled minor children in any public or
the basis of the right of the petitioners to elect private school recognized by the government
Philippine citizenship (Ibid.). where Philippine history, government and
civics are taught as part of the curriculum,
NATURALIZATION AND DENATURALIZATION during the entire period of residence prior to
hearing of petition.
Naturalization
Disqualified from Judicial Naturalization (CA
Act of formally adopting a foreigner into the 473)
political body of a nation by clothing him or her
with the privileges of a citizen. 1. Persons opposed to organized government or
affiliated with any association or group of
Modes of becoming a citizen by persons which uphold and teach doctrines
naturalization opposing all organized governments
2. Persons defending or teaching necessity or
1. Administrative naturalization pursuant to RA propriety of violence, personal assault or
9139 assassination for the success or predominance
2. Judicial naturalization pursuant to CA 473, as of their ideas
amended 3. Polygamists or believers of polygamy
3. Legislative naturalization in the form of a law 4. Persons suffering from mental alienation or
enacted by Congress bestowing Philippine incurable contagious disease
citizenship to an alien (So v. Rep., G.R. No. 5. Persons convicted of crime involving moral
170603, Jan. 29, 2007). turpitude
6. Persons who, during residence in the
Qualifications for Judicial Naturalization (CA Philippines, have not mingled socially with
No. 473) Filipinos, or did not evince sincere desire to
learn and embrace customs, traditions and
1. Not less than 18 years of age on the date of ideals of Filipinos
hearing the petition (as amended by RA 6809). 7. Citizens or subjects of nations with whom the
2. Resided in the Philippines for not less than 10 Philippines is at war, during the period of such
years; may be reduced to 5 years, if; war
a. Honorably held office under the 8. Citizens or subjects of a foreign country whose
Government of the Philippines or under laws do not grant Filipinos the right to become
that of any of the provinces, cities, naturalized citizens or subjects thereof (no
municipalities, or political subdivisions reciprocity)
thereof
b. Established new industry or introduced a
useful invention

2015GOLDEN NOTES
CITIZENSHIP
Qualifications for Administrative 3. Polygamists or believers in the practice of

Naturalization (RA 9139) polygamy;
4. Those convicted of crimes involving moral
1. The applicant must be born in the Philippines turpitude;
and residing therein since birth; 5. Those suffering from mental alienation or
2. The applicant must not be less than eighteen incurable contagious diseases;
(18) years of age, at the time of filing of 6. Those who, during the period of their
his/her petition; residence in the Philippines, have not mingled
3. The applicant must be of good moral character socially with Filipinos, or who have not
and believes in the underlying principles of evinced a sincere desire to learn and embrace
the Constitution, and must have conducted the customs, traditions and ideals of the
himself/herself in a proper and irreproachable Filipinos;
manner during his/her entire period of 7. Citizens or subjects with whom the Philippines
residence in the Philippines in his relation is at war, during the period of such war; and
with the duly constituted government as well 8. Citizens or subjects of a foreign country whose
as with the community in which he/she is laws do not grant Filipinos the right to be
living; naturalized citizens or subjects thereof.
4. The applicant must have received his/her
primary and secondary education in any CA 473 v. RA 9139
public school or private educational institution
dully recognized by the Department of CA 473 RA 9139
Education, Culture and Sports, where Judicial act Administrative act
Philippine history, government and civics are Covers all aliens Applies only to aliens who
taught and prescribed as part of the school regardless of class were born in
curriculum and where enrollment is not the Philippines and have
limited to any race or been residing here.
nationality: Provided, That should he/she have Less tedious, less technical
minor children of school age, he/she must and more encouraging.
have enrolled them in similar schools;
5. The applicant must have a known trade, An alien who is not
business, profession or lawful occupation, qualified under R.A. No.
from which he/she derives income sufficient 9139 may still be
for his/her support and if he/she is married naturalized under C.A. No.
and/or has dependents, also that of his/her 473
family: Provided, however, That this shall not (So v. Rep., G.R. No. 170603, January 29, 2007).
apply to applicants who are college degree
holders but are unable to practice their Procedure under CA 473
profession because they are disqualified to do
so by reason of their citizenship; 1. Declaration of Intention
6. The applicant must be able to read, write and
speak Filipino or any of the dialects of the NOTE: Must be done one year prior to the
Philippines; and filing of petition for admission to Philippine
7. The applicant must have mingled with the Citizenship
Filipinos and evinced a sincere desire to learn
and embrace the customs, traditions and 2. Petition for Citizenship
ideals of the Filipino people. 3. Notification and Appearance
Persons disqualified for Administrative NOTE: Publication of such petition in the

naturalization (RA 9139) Official Gazette and in one of the newspapers
of general circulation in the province where
1. Those opposed to organized government or the petitioner resides
affiliated with any association of group of
persons who uphold and teach doctrines 4. Hearing of the Petition
opposing all organized governments; 5. Issuance of the Certificate of Naturalization
2. Those defending or teaching the necessity of
or propriety of violence, personal assault or NOTE: The petitioner shall also take an oath
assassination for the success or predominance before the naturalization certificate is issued.
of their ideas;

6. Record Books Effects of naturalization

7. Charging of Fees
ON THE WIFE
Procedure under RA 9139 Vests citizenship on the wife who might herself be
lawfully naturalized; She need not prove her
1. Petition for Citizenship qualifications but only that she is not disqualified
2. Special Committee on Naturalization (Moy Ya Lim Yao v. Comm. of Immigration, G.R. No.
3. Approval or Disapproval of the Petition L-21289, Oct. 4, 1971).
4. Decree of Naturalization ON THE MINOR CHILDREN
5. Charging of Fees Born in the Philippines
Automatically becomes a citizen
Direct v. Derivative Naturalization Born Abroad
Before the naturalization of the father
DIRECT DERIVATIVE If residing in the Phil. At Automatically
NATURALIZATION NATURALIZATION the time of naturalization becomes a citizen.
Is effected: Is conferred:
1. By individual 1. On the wife of the If not residing in the Phil. GR: Considered
proceedings, naturalized At the time of citizen only during
usually judicial, husband naturalization minority
under general 2. On the minor
naturalization laws children of the XPN: He begins to
2. By specific act of naturalized parent reside permanently
the legislature, 3. On the alien in the Phil.
often in favor of woman upon After parents naturalization
distinguished marriage to a Considered Filipino, provided registered as such
foreigners who national before any Phil. consulate within 1 year after
have rendered 4. The unmarried attaining majority age and takes oath of allegiance.
some notable child whether
service to the local legitimate, Denaturalization
state illegitimate or
3. By collective adopted, below 18 The process taken by a government to revoke the
change of years of age, of citizenship status of an individual.
nationality those who re-
(naturalization en acquire Philippine Grounds for denaturalization
masse) as a result citizenship upon
of cession or effectivity of R.A. 1. Naturalization certificate obtained
subjugation 9225 shall be fraudulently or illegally
4. In some cases, by deemed citizens of 2. If, within 5 years, he returns to his native
adoption of orphan the Philippines. country or to some foreign country and
minors as nationals establishes residence therein
of the State where 3. Naturalization obtained through invalid
they are born declaration of intention
4. Minor children failed to graduate through the
NOTE: Derivative naturalization does not always fault of parents either by neglecting support or
follow as a matter of course, for it is usually made by transferring them to another school
subject to stringent restrictions and conditions. 5. Allowing himself to be used as a dummy
Our own laws, for instance, provide that an alien
woman married to a Filipino shall acquire his Effects of denaturalization
citizenship only if she herself might be lawfully
naturalized. 1. If ground affects intrinsic validity of
proceedings, denaturalization shall divest wife
and children of their derivative naturalization
2. If the ground is personal; the wife and children
shall retain citizenship.

2015GOLDEN NOTES
CITIZENSHIP
DUAL CITIZENSHIP AND DUAL ALLEGIANCE

LOSS AND RE-ACQUISITION OF PHILIPPINE
Dual citizenship v. Dual allegiance CITIZENSHIP
DUAL CITIZENSHIP DUAL ALLEGIANCE Grounds for loss of Philippine citizenship

Arises when, as a result Refers to the situation
of concurrent where a person 1. Naturalization in a foreign country; or
application of the simultaneously owes, 2. Express renunciation of citizenship
different laws of two or by some positive act, (expatriation); or
more States, a person is loyalty to two or more
simultaneously States. NOTE: The mere application or possession of
considered a citizen of an alien certificate of registration does not
said states. amount to renunciation (Mercado v. Manzano,
Involuntary and allowed Result of an G.R. No. 135083, May 26, 1999).
individuals volition
and is prohibited by 3. Subscribing to an oath of allegiance to the
the Constitution. constitution or laws of a foreign country upon
attaining 21 years of age; or
Q: Wilfreda, a Fil-Am citizen, born in USA with
Filipino parents, wishes to run as Mayor in City NOTE: Citizens may not divest citizenship
of Manila. She is a registered voter in the when the Philippines is at war.
Philippines. She was able to exercise such right
periodically. She also spent majority of her 4. Rendering service to or accepting commission
lifetime here in the Philippines. She in the armed forces of a foreign country; or
successfully made her oath of allegiance as
well, electing Philippine citizenship. The NOTE: It shall not divest a Filipino of his
people of Manila loved her so much, that she citizenship if:
was able to garner the highest votes the a. the Philippines has a defensive and/or
moment she ran for public office. However, one offensive pact of alliance with the said
of her adversaries challenged her citizenship foreign country;
and invoked Section 40 paragraph (D) of the b. the said foreign country maintains armed
Local Government code (R.A. 7160) stating that forces in the Philippine territory with its
Dual citizens are disqualified from running consent provided that at the time of
for any elective local position. Should Wilfreda rendering said service, or acceptance of
be disqualified from holding public office? said commission, and taking the oath of
allegiance incident thereto, states that he
A: NO. Clearly, in including Section 5 in Article IV does so only in connection with its service
on citizenship, the concern of the Constitutional to said foreign country.
Commission was not with dual citizens per se but
with naturalized citizens who maintain their
allegiance to their countries of origin even after 5. Cancellation of certificate of naturalization
their naturalization. Hence, the phrase "dual (Denaturalization); or
citizenship" in R.A. No. 7160, section 40(d) and in 6. Having been declared by final judgment a
R.A. No. 7854, Section 20 must be understood as deserter of the armed forces of the Philippines
referring to "dual allegiance." in times of war; or
7. In case of a woman, upon her marriage, to a
Consequently, persons with mere dual citizenship foreigner if, by virtue of the laws in force in
do not fall under this disqualification. Unlike those her husbands country, she acquires his
with dual allegiance, who must, therefore, be nationality.
subject to strict process with respect to the
termination of their status, for candidates with NOTE: Citizenship is renounced expressly
dual citizenship, it should suffice if, upon the filing (Mercado v. Manzano, G.R. No. 135083, May 26,
of their certificates of candidacy, they elect 1999).
Philippine citizenship to terminate their status as
persons with dual citizenship considering that
their condition is the unavoidable consequence of
conflicting laws of different states (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999).

Application of Res Judicata in Citizenship cases Reacquisition and Retention of Philippine

citizenship under RA 9225 (Citizenship
GR: Res Judicata does not set in citizenship cases. Retention and Re-acquisition Act of 2003)
XPNs: Upon taking the oath of allegiance to the Republic:

1. Persons citizenship is resolved by a court or 1. Natural-born citizens of the Philippines who
an administrative body as a material issue in have lost their naturalization as citizens of a
the controversy, after a full-blown hearing foreign country are deemed to have re-
2. With the active participation of the Solicitor acquired Philippine citizenship; and
General or his representative; and 2. Natural-born citizens of the Philippines who,
3. Finding of his citizenship is affirmed by the after the effectivity of said RA, become citizens
Supreme Court (Burca v. Republic G.R. No. L- of a foreign country shall retain their
24252, Jan. 30, 1967). Philippine citizenship (Section 3, Republic Act
No. 9225).
Ways to reacquire citizenship
Condition for the enjoyment of full civil and
1. Naturalization political rights
2. Repatriation
3. Direct act of Congress Those who retain or re-acquire Philippine
citizenship shall enjoy full civil and political rights
Naturalization v. Repatriation subject to the following conditions:
NATURALIZATION REPATRIATION 1. Right to vote: must meet the requirements of

Nature Sec. 1, Art. V of the Constitution, and of
A mode of acquisition Mode of reacquisition of Republic Act No. 9189 (The Overseas Absentee
and reacquisition of Philippine Citizenship Voting Act of 2003) and other existing laws;
Philippine citizenship
As to process 2. Elective Public Office:
Very cumbersome and Simpler process i. Possess qualification for holding such
tedious public office as required by the
Constitution and existing laws
Repatriation ii. Make a personal and sworn renunciation
of any and all foreign citizenship before
Recovery of the original nationality. This means any public officer authorized to
that a naturalized Filipino who lost his citizenship administer an oath, at the time of the filing
will be restored to his prior status as a naturalized of the certificate of candidacy.
Filipino citizen. On the other hand, if he was iii. Appointive Public Office - subscribe and
originally a natural-born citizen before he lost his swear to an oath of allegiance to the
Philippine citizenship, he will be restored to his Republic of the Philippines and its duly
former status as a natural-born Filipino (Bengzon constituted authorities prior to their
v. HRET and Cruz, G.R. No. 142840, May 7, 2001). assumption of office: Provided, That they
renounce their oath of allegiance to the
NOTE: Repatriation shall be effected by: country where they took that oath;
1. Taking the necessary oath of allegiance to the
Republic of the Philippines; and NOTE: That right to vote or be elected or
2. Registration in the proper civil registry and in appointed to any public office in the
the Bureau of Immigration. Philippines cannot be exercised by, or
extended to, those who:
The Bureau of Immigration shall thereupon cancel a. Are candidates for or are occupying any
the pertinent alien certificate of registration and public office in the country of which they
issue the certificate of identification as Filipino are naturalized citizens; and/or
citizen to the repatriated citizen. b. Are in active service as commissioned or
non-commissioned officers in the armed
forces of the country which they are
naturalized citizens (R.A. 9225).

2015GOLDEN NOTES
CITIZENSHIP
iv. Practice of profession: apply with the 8. Members of the Commission on Human Rights
proper authority for a license or permit to (Sec 17 (2), Art XIII).
engage in such practice (R.A. 9225).
NOTE: The fact that a person has dual citizenship
Q: Can a legitimate child born under the 1935 does not disqualify him from running for public
Constitution of a Filipino mother and an alien office (Cordora v. COMELEC, G.R. No. 176947, Feb.
father validly elect Philippine Citizenship 19, 2009).
fourteen (14) years after he has reached the
age of majority? Q: Dahlia, a naturalized US citizen, sought to
reacquire her Philippine citizenship. She took
A: NO. The election should be made within a her oath of allegiance to the Republic of the
"reasonable time" after attaining the age of Philippines before the Vice Consul. She then
majority. The phrase "reasonable time" has been ran and won as Vice Mayor of a municipality.
interpreted to mean that the election should be The COMELEC, however, disqualified her on the
made within three (3) years from reaching the age ground that she failed to renounce her US
of citizenship. Is Dahlia disqualified from running
majority (Re: Application for Admission to the as a candidate in the local elections for her
Philippine Bar vs. Vicente D. Ching, B.M. No. 914, failure to make a personal and sworn
October 1, 1999). renunciation of his US citizenship?
A: YES. Sec. 5(2) of RA 9225 (on the making of a

NATURAL-BORN CITIZENS AND PUBLIC OFFICE personal and sworn renunciation of any and all
foreign citizenship) requires the Filipinos availing
1. Citizens of the Philippines from birth without themselves of the benefits under the said Act to
having to perform any act to acquire or perfect accomplish an undertaking other than that which
their Philippine citizenship they have presumably complied with under Sec. 3
2. Those born before January 17, 1973 of Filipino thereof (oath of allegiance to the Republic of the
mothers, who elect Philippine citizenship Philippines). There is little doubt, therefore, that
upon reaching the age of majority the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine
NOTE: The term natural-born citizens, is defined citizenship under R.A. 9225 to take their oath of
to include those who are citizens of the allegiance to the Republic of the Philippines, but
Philippines from birth without having to perform also to explicitly renounce their foreign citizenship
any act to acquire or perfect their Philippine if they wish to run for elective posts in the
citizenship. [Tecson v. COMELEC, GR. No. 161434, Philippines. To qualify as a candidate in Philippine
Mar. 3, 2004). elections, Filipinos must only have one citizenship,
namely, Philippine citizenship.
Rule regarding marriage of a Filipino to an
alien The oath of allegiance contained in the Certificate
of Candidacy, does not constitute the personal and
GR: The Filipino retains Philippine citizenship. sworn renunciation sought under Sec. 5(2) of RA
9225. It bears to emphasize that the said oath of
XPN: If, by their act or omission they are deemed, allegiance is a general requirement for all those
under the law, to have renounced it (Sec.4, Art. IV, who wish to run as candidates in Philippine
1987 Constitution). elections; while the renunciation of foreign
citizenship is an additional requisite only for those
Government officials required to be natural- who have retained or reacquired Philippine
born Filipino citizens citizenship under R.A. No. 9225 and who seek
elective public posts, considering their special
1. President (Sec.2, Art VII). circumstance of having more than one citizenship
2. Vice-President (Sec. 3, Art VII). (Jacot v. Dal, G.R. No. 179848, Nov.27, 2008).
3. Members of Congress (Secs. 3 and 6, Art VI).
4. Justices of Supreme Court and lower collegiate Q: Art is a naturalized citizen of another
courts (Sec. 7(1), Art VIII). country who reacquires Filipino citizenship. On
5. Ombudsman and his deputies (Sec. 8, Art XI). the other hand, Christian possesses dual
6. Members of Constitutional Commissions citizenship by birth. If they desire to run for
7. Members of the Central Monetary Authority elective public office, what requirement must
(Sec. 20, Art XII). they comply as regards their citizenship?

showing his continued possession of a foreign

A: Art must comply with the requirements set in citizenship.
RA 9225. Sec 5(3) of RA 9225 states that
naturalized citizens who reacquire Filipino The renunciation of foreign citizenship is not a
citizenship and desire to run for public office shall hollow oath that can simply be professed at any
make a personal and sworn renunciation of any time, only to be violated the next day. It requires
and all foreign citizenship before any public officer an absolute and perpetual renunciation of the
authorized to administer an oath aside from the foreign citizenship and a full divestment of all civil
oath of allegiance prescribed in Sec. 3 of RA 9225. and political rights granted by the foreign country
which granted the citizenship (Maquiling vs.
Christian need not comply with the twin Comelec, G.R. No. 195649, April 16, 2013).
requirements of swearing an oath of allegiance
and executing a renunciation of foreign citizenship
because he is a natural-born Filipino who did not
subsequently become a naturalized citizen of
another country. It is sufficed, if upon the filing of
his certificate of candidacy, he elects Philippine
citizenship to terminate his status as person with
dual citizenship considering that his condition in
the unavoidable consequence of conflicting laws of
different States (Cordora v. COMELEC, G.R. No.
176947, Feb. 19, 2009).
Q: Is filing by a person with dual citizenship of

a certificate of candidacy, containing an oath of
allegiance, considered as a renunciation of his
foreign citizenship under RA 9225?
A: NO. The filing of a certificate of candidacy does

not ipso facto amount to a renunciation of his
foreign citizenship because R.A. No. 9225 provides
for more requirements. It requires the twin
requirements of swearing to an Oath of
Allegiance and executing a Renunciation of Foreign
Citizenship (Roseller De Guzman v. Commission on
Elections, et al., G.R. No. 180048, June 19, 2009).
Q: Ian, a Natural-born Filipino citizen, applied

for naturalization in the US. He lost his Filipino
Citizenship. However, with his desire to serve
for the Philippines again by taking public office
in his hometown in San Juan, he applied for
Repatriation under R.A. 9225. However, even
after his repatriation and swearing Oath of
Allegiance to the Philippines, it was proven
that he is still using his US passport in traveling
back and forth between US and Philippines.
Has Ian completely renounced his American
citizenship and proven his repatriation?
A: NO. By renouncing his foreign citizenship, he

was deemed to be solely a Filipino citizen,
regardless of the effect of such renunciation under
the laws of the foreign country. However, this legal
presumption does not operate permanently and is
open to attack when, after renouncing the foreign
citizenship, the citizen performs positive acts

2015GOLDEN NOTES
LAW ON PUBLIC OFFICERS
LAW ON PUBLIC OFFICERS 5. It is not a natural right Under our political

system, the right to hold public office exists
GENERAL PRINCIPLES only because and by virtue of some law
expressly or impliedly creating and conferring
Public office it.
It is the right, authority, and duty created and Elements of a public office
conferred by law, by which for a given period,
either fixed by law or enduring at the pleasure of 1. Created by Constitution or by law or by some
the creating power, an individual is invested with body or agency to which the power to create
some portion of the sovereign functions of the the office has been delegated;
government, to be exercised by him for the benefit 2. Invested with authority to exercise some
of the public (Fernandez v. Sto. Tomas, G.R. No. portion of the sovereign power of the State;
116418, March 7, 1995). 3. The powers conferred and the duties to be
discharged must be defined directly or
Purpose of a public office impliedly by the legislature or through
legislative authority;
A public office is created to effect the end for 4. Duties are performed independently without
which government has been instituted which is the control unless those of a subordinate;
common good; not profit, honor, or private 5. Continuing and permanent (Fernandez v. Sto.
interest of any person, family or class of persons Tomas, G.R. No. 116418, March 7, 1995; Tejada
(63C Am. Jur. 2d Public Officers and Employees 667 v. Domingo, G.R. No. 91860, January 13, 1992).
[1997]).
Public office v. Public contract
Characteristics of public office
BASIS PUBLIC PUBLIC
1. It is a public trust The principle of public OFFICE CONTRACT
office is a public trust means that the officer Incident of Originates from
holds the public office in trust for the benefit sovereignty the will of the
of the peopleto whom such officers are As to contracting parties,
required to be accountable at all times, and to creation subject to the
serve with utmost responsibility, loyalty, and limitations
efficiency, act with patriotism and justice, and imposed by law.
lead modest lives (Sec. 1, Art. XI, Constitution). Has for its Imposes
2. It is not a property The concept "public office object the obligations only
is not a property means that it is outside the carrying out upon persons who
commerce of man; hence, it cannot be the of sovereign entered the same.
subject of a contract (Santos v. Secretary of As to as well as
Labor, G.R. No.L-21624, February 27, 1968). persons governmental
3. It is not a vested right. affected functions
affecting even
NOTE: However, right to a public office is persons not
nevertheless a protected right. With the bound by
exception of constitutional offices that provide contract
for some immunity as regards salary and Embraces the Is almost always
tenure, right to a public office is protected by idea of limited in its
the constitutional provision on security of tenure, duration and
tenure. It cannot be taken from its incumbent duration, and specific in its
without due process (Morfe v. Mutuc, G.R. No. As to continuity, objects. Its terms
L-20387, January 31, 1968; Aparri v. Court of subject and the define and limit
Appeals, G.R. No. L-30057, January 31, 1984). matter duties the rights and
and connected obligations of the
4. It is personal to the public officer It is not a scope therewith are parties, and
property transmissible to the heirs of the generally neither may depart
public officer upon the latters death (Santos v. continuing therefrom without
Secretary of Labor, G.R. No.L-21624, February and the consent of the
27, 1968). permanent. other.

Public officer obtained only in the manner prescribed by the

Constitution or by law (63C Am. Jur. 2d Public
Any person who, by direct provision of law, Officers and Employees 733 (1997).
popular election or appointment by competent
authority, shall take part in the performance of MODES AND KINDS OF APPOINTMENT
public functions in the government of the
Philippine Islands, or shall perform in said Appointment
Government or in any of its branches, public duties
as an employee, agent, or subordinate official, of The act of designation by the executive officer,
any rank or class (Art. 203, Revised Penal Code). board or body to whom that power has been
delegated, the individual who is to exercise the
NOTE: Under Sec. 2. RA 3019, the term public powers and functions of a given office. In this
officer includes elective and appointive officials sense, it is to be distinguished from the selection
and employees, permanent or temporary, whether or designation by a popular vote (Borromeo v.
in the classified, unclassified or exempt service, Mariano, G.R. No. L-16808, January 3, 1921).
receiving compensation, even nominal, from the
government. It refers to the nomination or designation of an
individual to an office (Borromeo v Mariano,G.R.
Kinds of a public officer No. L-16808, January 3, 1921).
A public officer may be: It is, in law, equivalent to filling a vacancy (Conde
1. Constitutional or statutory v. National Tobacco Corp., G.R. No. L-11985 January
2. National or local 28, 1961).
3. Legislative, executive, or judicial
4. Lucrative or honorary Nature of appointment
5. Discretionary or ministerial
6. Appointive or elective Appointment is an essentially discretionary power
7. Civil or military and must be performed by the officer in which it is
8. De jure or de facto vested according to his best lights, the only
condition being that the appointee should possess
Kinds of government employment the qualifications required by law. If he does, then
the appointment cannot be faulted on the ground
1. Career Service Entrance is based on merits that there are others better qualified who should
and fitness, which is determined by have been preferred. This is a political question
competitive examination (except for non- involving considerations of wisdom which only the
competitive positions) or based on highly appointing authority can decide (Luego v. CSC, G.R.
technical qualifications. No. L-69137, August 5, 1986).
2. Non-career Service Entrance is based on
qualifications other than merit and fitness. Appointment v. Designation
MODES OF ACQUIRING TITLE TO PUBLIC APPOINTMENT DESIGNATION

OFFICE It is the selection by It merely connotes the
the proper authority imposition of additional
Modes of filling up public offices of an individual who is duties, usually by law,
to exercise the upon a person who is
Public offices are filled up either by: functions of a given already in public service
1. Appointment office. by virtue of an earlier
2. Election appointment or election.
3. Designation The mere imposition of new or It connotes It implies temporariness
additional duties upon an officer to be permanence. and therefore does not
performed by him in a special manner. confer upon the
4. In some instances by contract or by some designee security of
other modes authorized by law (Preclaro v. tenure.
Sandiganbayan, G.R. No. 111091, August 21,
1995).
NOTE: A public office, being a trust or agency

created for the benefit of the people, can be

2015GOLDEN NOTES
Appointing authority Procedure for the appointment of those that

need Commission on Appointments
1. Inherently belongs to the people. Confirmation
It belongs to where the people have chosen to
place it by their Constitution or laws (63C Am. 1. Nomination by the President;
Jur. 2d Public Officers and Employees 738 (1997). 2. Confirmation by the Commission on
Appointments;
2. Entrusted to designated elected and appointed 3. Issuance of commission; and
public officials. 4. Acceptance by the appointee.
The appointment of public officials is generally Deemed complete upon acceptance.
looked upon as properly belonging to the Pending such acceptance, which is
executive department. Appointments may also optional to the appointee, the
be made by Congress or the courts, but when so appointment may still be validly
made should be taken as an incident to the withdrawn.
discharge of functions within their respective
spheres (Government v. Springer, 50 Phil. 259, GR: Appointment to a public office cannot
affirmed in Springer v. Government, 277 U.S. 189, be forced upon any citizen.
72 Ed. 845, 48 S.CT. 480 (1928)). XPN: For purposes of defense of
the State under Sec. 4, Art. 2 (also
NOTE: The general rule is that the appointing an exception to the rule against
power is the exclusive prerogative of the involuntary servitude) (Lacson v.
President, upon which no limitations may be Romero, No. L-3081, Oct. 14,
imposed by Congress, except those resulting from 1949).
the need of securing the concurrence of the
Commission of Appointments and from the NOTE:
exercise of the limited power to prescribe the In ad interim appointments, steps 1, 3 and 4
qualifications or disqualifications to a given precede step 2.
appointive office (Rafael v. Embroidery and Apparel For appointments which do not require
Control and Inspections Board, G.R. No. L-19978, confirmation, step 2 is skipped.
September 29, 1967).
ELIGIBILITY AND QUALIFICATION
Where the law is silent as to who is the appointing REQUIREMENTS
authority, it is understood to be the President of
the Philippines (Rufino v. Endriga, G.R. No. 139554, Requirements for public office
July 21, 2006).
1. Eligibility It is the state or quality of being
Absent any contrary statutory provision, the legally fit or qualified to be chosen.
power to appoint carries with it the power to 2. Qualification This refers to the act which a
remove or discipline (Aguirre, Jr. v. De Castro, G.R. person, before entering upon the
No. 127631, December 17, 1999). performance of his duties, is by law
required to do such as the taking, and
Appointees acceptance of office often, subscribing and filing of an official
oath, and, in some cases, the giving of an
An appointees acceptance of office is not official bond. It may refer to:
necessary to complete or to make the appointment a. Endowments, qualities or attributes which
valid where there is no provision of law to the make an individual eligible for public
contrary. office, (e.g. citizenship); or
b. The act of entering into the performance
NOTE: Acceptance, however, is necessary to of the functions of a public office, (i.e.
enable the appointee to have full possession, taking oath of office).
enjoyment, and responsibility of an office
(Borromeo v Mariano, G.R. No. L-16808, January 3, NOTE: To entitle a public officer to hold a public
1921; Lacson v. Romero, G.R. No. L-3081, October office, he must possess all the qualifications and
14, 1949). none of the disqualifications prescribed by law for
the position not only at the time of his election or
appointment but also during his incumbency.

General qualifications for public office

Perfection of the right of a public officer to
1. Citizenship enter in office
2. Age
3. Residence Upon his oath of office, it is deemed perfected.
4. Education Only when the public officer has satisfied this
5. Suffrage prerequisite can his right to enter into the position
6. Civil service examination be considered complete. Until then, he has none at
7. Ability to read and write all, and for as long as he has not qualified, the hold-
8. Political affiliation, as a rule, is not a over officer is the rightful occupant (Lecaroz v.
qualification. Sandiganbayan, G.R. No. 130872, March 25, 1999).
XPN: Party-List, Membership in the
Electoral Tribunal, Commission on KINDS OF APPOINTMENTS
Appointment
1. Permanent an appointment in the civil
NOTE: The qualifications for public office are service issued to a person who meets all the
continuing requirements and must be possessed requirements for the position to which he is
not only at the time of appointment or election or being appointed, including the appropriate
assumption of office but during the officers entire eligibility prescribed, in accordance with the
tenure. Once any of the required qualification is provisions of law, rules and standards
lost, his title may be reasonably challenged promulgated in pursuance thereof. It lasts
(Frivaldo V. COMELEC, G.R. No. 87193, June 23, until lawfully terminated, thus, enjoys security
1989; Aguila v. Genato, G. R No. L-55151, March 17, of tenure (Sec. 25(a),RA 807 [Civil Service
1981). Decree]).
Authority to prescribe qualifications 2. Temporary A kind of appointment issued to a

person who meets all the requirements for the
Congress is generally empowered to prescribe the position to which he is being appointed, except
qualifications for holding public office, provided it the appropriate civil service eligibility, in the
does not exceed thereby its constitutional powers absence of appropriate eligibles and it
or impose conditions of eligibility inconsistent becomes necessary in the public interest to fill
with constitutional provisions. a vacancy (Sec. 25(b), RA 807).
Limitation on the power of Congress to NOTE: That such temporary appointment

prescribe qualifications shall not exceed twelve months, but the
appointee may be replaced sooner if a
Congress has no power to require qualifications qualified civil service eligible becomes
other than those qualifications specifically set out available (Ibid.)
in the Constitution. Such Constitutional criteria
are exclusive. One who holds a temporary or acting
appointment has no fixed tenure of office, and,
Power of Congress to prescribe therefore, his enjoyment can be terminated at
disqualifications the pleasure of the appointing power even
without hearing or cause (Erasmo v. Home
In the absence of constitutional inhibition, Insurance & Guaranty Corporation, G.R. No.
Congress has the same right to provide 139251, August 29, 2002).
disqualifications that it has to provide qualification
for office. However, if the appointment is for a specific
period, the appointment may not be revoked
Congress, however, may not add disqualification until the expiration of the term.
where the Constitution has provided them in such
a way as to indicate intention that the NOTE: Acquisition of civil service eligibility
disqualifications provided shall embrace all which will not automatically convert the temporary
are to be permitted. Moreover, when the appointment into a permanent one (Prov. Of
Constitution has attached a disqualification to the Camarines Sur v. CA, G.R. No. 104639, July 14,
holding of any office, Congress cannot remove it 1995).
under the power to prescribe qualifications as to
such offices as it may create (46 C.J. 936-937).

2015GOLDEN NOTES
3. Provisional appointment One which may be Purpose of ad interim appointment

issued, upon the prior authorization of the
Commissioner of the CSC, to a person who has Ad interim appointments are intended to prevent a
not qualified in an appropriate examination but hiatus in the discharge of official duties. Obviously,
who otherwise meets the requirements for the public office would be immobilized to the
appointment to a regular position in the prejudice of the people if the President had to wait
competitive service, whenever a vacancy occurs for Congress and the Commission of Appointments
and the filling thereof is necessary in the to reconvene before he could fill a vacancy
interest of the service and there is no occurring during the recess (Guevara v. Inocentes,
appropriate register of eligibles at the time of G.R. No. L-25577, March 15, 1966).
appointment (Jimenea v. Guanzon, G.R. No. L-
24795, January 29, 1968). Nature of ad interim appointment
Temporary appointment v. Provisional Ad interim appointments are permanent

appointment appointments. It is permanent because it takes
effect immediately and can no longer be
TEMPORARY PROVISIONAL withdrawn by the President once the appointee
APPOINTMENT APPOINTMENT qualified into office. The fact that it is subject to
Issued to a person to a Issued prior to confirmation by the CA does not alter its
position needed only authorization of CSC permanent character. In cases where the term of
for a limited period said ad interim appointee had expired by virtue of
Not to exceed 12 Regular position in the inaction by the Commission on Appointments, he
months/no definite meantime that no person may be reappointed to the same position without
tenure and is qualifies for the position violating the Constitutional provision prohibiting
dependent on the an officer whose term has expired from being re-
pleasure of the appointed (Matibag v. Benipayo, G.R. No. 130657,
appointing power April 1, 2002).
Meets all requirements Has not qualified in an
for position except civil appropriate examination NOTE: Being a permanent appointment, an ad
service eligibility but otherwise meets interim appointee pending action by the
requirements for Commission on Appointments enjoys security of
appointments tenure (Marombhosar v. CA, G.R. No. 126481,
February 18, 2000).
NOTE: Provisional appointments in general
have already been abolished by RA 6040. It
still, however, applies with regard to teachers
under the Magna Carta for Public School
Teachers.
4. Regular appointment One made by the

President while Congress is in session, which
takes effect only after confirmation by the
Commission on Appointment and, once
approved, continues until the end of the term
of the appointee.
5. Ad interim appointment One made by the
President while Congress is not in session,
which takes effect immediately, but ceases to
be valid if:
a. disapproved by the Commission on
Appointments; or
b. upon the next adjournment of Congress,
either in regular or special session
(inaction by the CA).

Difference between Regular appointment, Ad interim appointment, Temporary appointment and

Designation
TEMPORARY or DESIGNATION
REGULAR AD INTERIM
ACTING
Made when Made when Congress is Those which last until a The mere imposition of new or
Congress is in NOT in session permanent additional duties upon an officer
session appointment is issued. to be performed by him in a
special manner while he performs
the function of his permanent
office.
Made only after Made before confirmation Cannot be validly The officer is already in service by
the nomination is of the CA confirmed by the CA virtue of an earlier appointment,
confirmed by CA because there was no performing other functions.
valid nomination.
Continues until Shall cease to be valid if May be terminated at Maybe terminated anytime
the expiration of disapproved by CA or the pleasure of
the term upon the next appointing power
adjournment of Congress. without hearing or
cause.
Q: What is the nature of an "acting Appointments and was made during the recess of
appointment" to a government office? Does Congress. An ad interim appointment is permanent
such appointment give the appointee the right (Summers v. Ozaeta, G.R. No. L-1534, October 24,
to claim that the appointment will, in time, 1948).
ripen into a permanent one? Explain.
Q: Can the CSC revoke an appointment by the
A: An acting appointment is merely temporary appointing power and direct the appointment
(Sevilla v. CA, G.R. No. 88498, June 9, 1992). A of an individual of its choice?
temporary appointment cannot become a
permanent appointment, unless a new A: NO. The CSC cannot dictate to the appointing
appointment, which is permanent, is made power whom to appoint. Its function is limited to
(Marohombsar v. Alonto, G.R. No. 93711, February determining whether or not the appointee meets
25, 1991). the minimum qualification requirements
prescribed for the position. Otherwise, it would be
However, if the acting appointment was made encroaching upon the discretion of the appointing
because of a temporary vacancy, the temporary power (Medalla v. Sto. Tomas, G.R. 94255, May 5,
appointee holds office until the assumption of 1992).
office by the permanent appointee. In such case,
the appointing authority cannot use the acting Protest to appointment
appointment as a justification in order to evade or
avoid the security of tenure principle provided for Any person who feels aggrieved by the
under the Constitution and the Civil Service Law appointment may file an administrative protest
(Gayatao v. Civil Service Commission, G.R. No. 93064, against such appointment. Protests are decided in
June 22, 1992). the first instance by the Department Head, subject
to appeal to the CSC.
"Appointment in an acting capacity" extended
by a Department Secretary v. Ad interim The protest must be for a cause (i.e. appointee is
appointment extended by the President not qualified; appointee was not the next-in-rank;
unsatisfactory reasons given by the appointing
An appointment in an acting capacity extended by authority in making the questioned appointment).
a Department Secretary is temporary. Hence, the The mere fact that the protestant has the more
Department Secretary may terminate the services impressive resume is not a cause for opposing an
of the appointee at any time. appointment (Aquino v. CSC, G.R. No. 92403, April
22, 1992).
On the other hand, an ad interim appointment
extended by the President is an appointment which
is subject to confirmation by the Commission on

2015GOLDEN NOTES
Revocation v. Recall of appointment Prohibitions attached to elective and

appointive officials in terms of compensation
Where an appointment requires the approval of
the CSC, such appointment may be revoked or GR: They cannot receive:
withdrawn by the appointing authority any time 1. Additional compensation An extra reward
before the approval by the CSC. given for the same office e.g. bonus
2. Double compensation When an officer is given
After an appointment is completed, the CSC has the 2 sets of compensation for 2 different offices
power to recall an appointment initially approved held concurrently by 1 officer.
on any of the following grounds: 3. Indirect compensation
1. Non-compliance with procedures/criteria in
merit promotion plan; XPN: Unless specifically authorized by law.
2. Failure to pass through the selection board;
3. Violation of existing collective relative NOTE: Specifically authorized means a specific
agreement to promotion; authority particularly directed to the officer or
4. Violation of CSC laws, rules and regulations employee concerned.
(Debulgado v. CSC, G.R. No. 111471, September
26, 1994). Pensions and gratuities, per diems and allowances
are not considered as additional, double, or
DISABILITIES AND INHIBITIONS OF PUBLIC indirect compensation (Sec. 7-8, Art. IX-B, 1987
OFFICERS Constitution).
Disqualifications attached to civil service Prohibitions imposed under the Constitution

employees or officials against the holding of 2 or more positions
1. Losing candidate in any election A. Members of Congress shall not:

a. Cannot be appointed to any office in the 1. Appear as counsel before any court, electoral
government or GOCCs or their subsidiaries tribunal, or quasi-judicial and other
b. Period of disqualification: 1 year after such administrative bodies;
election 2. Be interested in any contract with, or in any
XPN: Losing candidates in barangay franchise, or special privilege granted by the
elections Government, or any subdivision, agency or
instrumentality thereof, including GOCCs, or its
2. Elective officials: subsidiary;
GR: Not eligible for appointment or 3. Intervene in any matter before any office of the
designation in any capacity to any public office Government for his pecuniary benefit or where
or position during their tenure. he may be called upon to act on account of his
office.
XPN: May hold ex officio positions. E.g. The
Vice President may be appointed as a Cabinet B. The President, Vice President, Members of the
member Cabinet, and their deputies or assistants, unless
otherwise allowed by the Constitution, shall
3. Appointive officials: not:
GR: Cannot hold any other office or agency, 1. Directly or indirectly practice any other
instrumentality, including GOCCs and their profession;
subsidiaries 2. Participate in any business, or be financially
interested in any contract with, or in any
XPN: Unless otherwise allowed by law, or by franchise, or special privilege granted by the
the primary functions of his position. Government, or any subdivision, agency or
instrumentality thereof, including GOCCs, or its
NOTE: The exception does not apply to Cabinet subdivisions; shall avoid conflict of interest in
members, and those officers mentioned in Art. the conduct of their office.
VII, Sec. 13. They are governed by the stricter
prohibitions contained therein. C. Members of the Constitutional Commission shall
not:
1. Hold any other office or employment or engage
in the practice of any profession or in the
active management or control of any business

that may be affected by the functions of his positions, members of the Cabinet, their deputies
office; and assistants may do so only when expressly
2. Be financially interested, directly or indirectly, authorized by the Constitution itself (Civil Liberties
in any contract with, or in any franchise, or Union v Executive Secretary, 194 SCRA 317).
special privilege granted by the Government,
or any subdivision, agencies or Prohibitions under Code of Conduct and Ethical
instrumentalities including GOCCs, or their Standards for Public Officials and Employees
subsidiaries. These shall also apply to the
Ombudsman and his deputies during his term. 1. Prohibition against financial and material
interest Directly or indirectly having any
D. Unless otherwise allowed by law or by the financial or material interest in any transaction
primary functions of his position, no appointive requiring the approval of their office.
official shall hold any other office or employment 2. Prohibition against outside employment and
in the Government or any subdivision, agency other activities related thereto Owning,
or instrumentality thereof, including GOCCs or controlling, managing or accepting
their subsidiaries (Art. IX B, Sec. 7; Flores v employment as officer, employee, consultant,
Drilon, G.R. No. 104732 June 22, 1993). counsel, broker, agent, trustee or nominee in
any private enterprise regulated, supervised or
E. No member of the armed forces in the active licensed by their office.
service shall, at any time, be appointed or 3. Engaging in the private practice of their
designated in any capacity to a civilian position profession.
in the government including GOCCs or any of 4. Recommending any person to any position in
their subsidiaries (Sec. 5 par. 4, Art XVI, any private enterprise which has a regular or
Philippine Constitution). pending official transaction with their office.
Grounds for disqualification to hold public NOTE: These prohibitions shall continue to
office apply for a period of one year after resignation,
retirement, or separation from public office,
1. Mental or physical incapacity except in the case of participating in any
2. Misconduct or commission of a crime business or having financial interest in any
3. Impeachment contract with the government, but the
4. Removal or suspension from office professional concerned cannot practice his
profession in connection with any matter
NOTE: Where there is no constitutional or before the office he used to be with, in which
statutory declaration of ineligibility for case the one-year prohibition shall likewise
suspension or removal from office, the courts apply.
may not impose the disability.
Prohibitions against the practice of other
5. Consecutive terms exceeding the allowable professions under the LGC
number of terms
6. Holding more than one office (except ex officio) 1. Local Chief Executives (governors, city and
7. Relationship with the appointing power municipal mayors) are prohibited from
(nepotism) practicing their profession
8. Office newly created or the emoluments of 2. Sanggunian members may practice their
which have been increased (forbidden office) profession, engage in any occupation, or teach
9. Being an elective official (Flores v. Drilon, G.R. in schools except during session hours
No. 104732, June 22, 1993) 3. Doctors of medicine may practice their
10. Losing candidate in the election within 1 year profession even during official hours of work
following the date of election (prohibitions in cases of emergency provided that they do
from office not employment); not derive monetary compensation therefrom.
XPN: in barangay
11. Grounds provided for under the Local Q: Can the members of Sanggunian engage in
Government Code. the practice of law under the LGC?
NOTE: The Supreme Court held that while all other A: GR: Yes.
appointive officials in the Civil Service are allowed
to hold other office or employment in the XPNs:
government during their tenure when such is 1. Cannot appear as counsel in any civil case
allowed by law or by the primary functions of their where in a LGU or any office, agency or

2015GOLDEN NOTES
instrumentality of the Govt is the adverse the personal and confidential staff of the
party; above officials.
2. Cannot appear as counsel in any criminal case
wherein an officer or employee of the national NOTE: It shall, however, be unlawful for
or local government is accused of an offense them to solicit contributions from their
committed in relation to his office; subordinates or subject them to any of the
3. Shall not collect any fee for their appearance in acts involving subordinates prohibited in
administrative proceeding involving the LGU of the Election Code.
which he is an official; and
4. May not use property and personnel of the b. National, provincial, city and municipal
Govt, except when defending the interest of elective officials (Santos v. Yatco, G.R. No. L-
the Govt. 16133, November 6, 1959).
Other prohibitions imposed on public officers 3. Prohibition against engaging in strike (Social
Security System Employees Assn. v. CA, G.R No.
1. Prohibition against solicitation of gifts (Sec. 85279, Jul 28,1989)
7(d), RA 6713) 4. Restriction against engaging in the practice of
law (Sec. 90, RA 7160)
NOTE: Public officers, however, may accept the 5. Prohibition against practice of other
following gifts from foreign governments: professions (Sec. 90, RA 7160)
a. Gifts of nominal value received as souvenir 6. Restriction against engaging in private
or mark of courtesy; business (Abeto v. Garces, A.M. No. P-88-269,
b. Scholarship or fellowship grant or medical Dec. 29, 1995)
treatment; 7. Restriction against accepting certain
c. Travel grants or expenses for travel employment (Sec. 7(b), RA 6713)
outside the Philippines (Sec. 7(d), RA 6713)
Q: Does the election or appointment of an
2. Prohibition against partisan political activities attorney to a government office disqualify him
(Sec. 2(4), Art. IX(B), Constitution) from engaging in the private practice of law?
NOTE: Partisan political activity is an act A: YES. As a general rule, judges, other officials of
designed to promote the election or defeat of a the superior courts, of the office of the Solicitor
particular candidate/s to a public office. It is General and of other Government prosecution
also known as electioneering (Sec. 79, offices; the President; Vice-President, and
Omnibus Election Code). members of the cabinet and their deputies or
assistants; members of constitutional
Officers or employees in the Civil Service commissions; and civil service officers or
including members of the Armed Forces employees whose duties and responsibilities
cannot engage in such activity except to vote. require that their entire time be at the disposal of
They shall not use their official authority or the government are strictly prohibited from
influence to coerce the political activity of any engaging in the private practice of law (See: E.O.
person (Sec. 55, Subtitle A, Title I, Book V, 1987 297).
Administrative Code).
POWERS AND DUTIES OF PUBLIC OFFICERS
Officers and employees in the Civil Service can
nonetheless express their views on current Sources of powers of public officers
political issues and mention the names of the
candidates they support. 1. Expressly conferred upon him by the Act
appointing him;
Public officers who may engage in partisan 2. Expressly annexed to the office by law;
political activities 3. Attached to the office by common law as
incidents to it.
a. Those holding political offices, such as the
President of the Philippines, Vice NOTE: In general, the powers and duties of public
President of the Philippines; Executive officers are prescribed by the Constitution or by
Secretary or Department Secretaries and statute or both. Public officers have only those
other Members of the Cabinet; all other powers expressly granted or necessarily implied by
elective officials at all levels; and those in law. If broader powers are desirable, they must be
conferred by the proper authority. They cannot

merely be assumed by administrative officers, nor Reasons for the imposition of the duty to
can they be created by the courts in the proper disclose financial records
exercise of their judicial functions (63C Am. Jur. 2d
Public Officers and Employees 883 (1997). To:
1. Maintain public confidence in the Government
Doctrine of Necessary Implication and in public officials and employees;
2. Avoid conflicts of interest from arising;
All powers necessary for the effective exercise of 3. Deter corruption;
the express powers are deemed impliedly granted 4. Provide the citizens with information
(Pimentel v. COMELEC, G.R. No. L-53581, December concerning a public officers financial affairs
19, 1980). and thus enable them to better judge his
integrity and fitness for office.
Kinds of duties of public officers
RIGHTS OF PUBLIC OFFICERS
MINISTERIAL DISCRETIONARY
Discharge is Public officer may do Rights and privileges of public officers
imperative and it must whichever way he wants
be done by the public provided it is in Right to:
officer accordance with law and 1. Office
not whimsical 2. Compensation/salary
Can be compelled by Cannot be compelled by 3. Appointment
mandamus mandamus except when 4. Vacation and sick leave
there is grave abuse of 5. Maternity leave
discretion 6. Retirement pay
Can be delegated Cannot be delegated 7. Longevity pay
unless otherwise 8. Pension
provided by law 9. Self-organization
10. Protection of temporary employees
Doctrine of Ratification
Prohibition against diminution of salary of
It provides that, although the acts of a public officer constitutional officers
may not be binding on the State because he has
exercised his powers defectively, his acts may be Congress is given the power to fix the salaries of
ratified. certain constitutional officers, but after it has done
so, it may not reduce the salary of any of them
The doctrine does not apply where: during his term or tenure. This provision is
1. There is a want of power in the public officer intended to secure their independence (Article
to perform the original act. IX(A), Sec. 3, Philippine Constitution).
2. An act which was absolutely void at the time it
was done. Extent of the right to self-organization of
3. If the principal himself could not lawfully have employees in the public service
done the act, or
4. If it could not have lawfully been done by While the Constitution recognizes the right of
anyone. public employees to organize, they are prohibited
from staging strikes, demonstrations, mass leaves,
Duties of public officers walk-outs and other forms of mass action which
may result to temporary cessation of work or
1. Be accountable to the people; disturbance of public service. Their right to self-
2. Serve the people with utmost responsibility, organization is limited only to form unions or to
integrity, and efficiency; associate without including the right to strike.
3. Act with patriotism and justice and to lead Labor unions in the government may bargain for
modest lives; better terms and conditions of employment by
4. Submit a declaration under oath of his assets, either petitioning the Congress for better terms
liabilities, and net worth upon assumption of and conditions, or negotiating with the appropriate
office and as often thereafter as may be government agencies for the improvement of those
required by law; not fixed by law (SSS Employees Assn. v. CA, G.R No.
5. Owe the State and the Constitution allegiance 85279, July 28, 1989).
at all times.

2015GOLDEN NOTES
LIABILITIES OF PUBLIC OFFICERS subordinates to conform to prescribed

regulations;
Liabilities of a public officer 3. He negligently or carelessly oversees the
business of the office as to give his
GR: A Public officer is not liable for injuries subordinates the opportunity for default;
sustained by another due to official acts done 4. He directed, cooperated, or authorized the
within the scope of authority. wrongful act;
5. The law expressly makes him liable (Sec.38-39,
Chap. 9, Book I, E.O. No. 292, Administrative
XPNs: Code of 1987).
1. Otherwise provided by law;
2. Statutory liability(Arts. 27, 32, 34, New Civil Grounds for the discipline of public officers
Code);
3. Presence of bad faith, malice, or negligence; 1. Dishonesty
2. Oppression
NOTE: Absent of any showing of bad faith or 3. Neglect of duty
malice, every public official is entitled to the 4. Misconduct
presumption of good faith as well as regularity 5. Disgraceful and immoral conduct
in the performance or discharge of official 6. Discourtesy in the course of official duties
duties (Blaquera v. Alcala, G.R. No. 109406, 7. Inefficiency and incompetence in the
September 11, 1998). performance of official duties
8. Conviction of a crime involving moral
4. Liability on contracts entered into in excess or turpitude
without authority; 9. Being notoriously undesirable
5. Liability on tort if the public officer acted 10. Falsification of official documents
beyond the limits of authority and there is bad 11. Habitual drunkenness
faith (United States of America v. Reyes, G.R. No. 12. Gambling
79253, March 1, 1993). 13. Refusal to perform official duty or render
overtime service
Three-fold responsibility/liability of public 14. Physical or mental incapacity due to immoral
officers or vicious habits
15. Willful refusal to pay just debts or willful
1. Criminal liability failure to pay taxes
2. Civil liability
3. Administrative liability PREVENTIVE SUSPENSION
Liabilities of ministerial officers Nature of preventive suspension
1. Non-feasance Neglect to perform an act Preventive suspension is not a penalty by itself; it

which is the officer's legal obligation to is merely a measure of precaution so that the
perform. employee who is charged may be separated from
2. Misfeasance The failure to observe the proper the scene of his alleged misfeasance while the same
degree of care, skill, and diligence required in is being investigated, to prevent him from using his
the performance of official duty; and position or office to influence prospective
3. Malfeasance Performance of an act which the witnesses or tamper with the records, which may
officer had no legal right to perform. be vital in the prosecution of the case against him
(Beja v. CA, G.R. No. 91749, March 31, 1992).
NOTE: The plaintiff must show that he has
suffered an injury, and that it results from a breach It can be ordered even without a hearing because
of duty which the officer owed to him. this is only preliminary step in an administrative
investigation (Alonzo v. Capulong, et al., G.R. No.
Command Responsibility 110590, May 10, 1995).
This doctrine provides that a superior officer is NOTE: When a public officer is charged with
liable for the acts of his subordinate in the violation of the Anti-Graft and Corrupt Practices
following instances: Act or R. A No. 3019, a pre-suspension hearing is
1. He negligently or willfully employs or retains required solely to determine the applicability of
unfit or incompetent subordinates; such law and for the accused be given a fair and
2. He negligently or willfully fails to require his adequate opportunity to challenge the validity of

the criminal proceedings against him. This may be Q: Is a public officer entitled to backwages
done through various pleadings (Torres v. during his suspension pending appeal when the
Garchitorena, G.R. No. 153666, December 27, 2002). result of the decision from such appeal does not
amount to complete exoneration but carries
Periods of preventive suspension with it a certain number of days of suspension?
1. For administrative cases: A: NO. Although entitled to reinstatement, he is not

a. Civil Service Law 90 days entitled to back wages during such suspension
b. Local Government Code (RA 7160) pending appeal. Only one who is completely
i. Sec. 85: 60 days for appointive officials exonerated or merely reprimanded is entitled to
(suspension to be imposed by the local such back wages (Sec. of Education, etc. v. CA. G.R.
chief executive) No. 128559, October 4, 2000).
ii. Sec. 63: 60 or 90 days for elective
officials Conditions before an employee may be entitled
c. Ombudsman Act 6 months to back salaries
2. For criminal cases: Anti-Graft and Corrupt
Practices Act (RA 3019) 90 days by analogy 1) The employee must be found innocent of the
(Gonzaga v. Sandiganbayan G.R. No. 96131 charges and
September 6, 1991). 2) His suspension must be unjustified (Civil
Service Commission v. Cruz GR No. 187858,
NOTE: Service of preventive suspension will not be August 9,2011)
credited to the penalty of suspension after having
been found guilty because they are of different Disciplinary action
character. If however the preventive suspension is
indefinite wherein his term is about to expire and It is a proceeding, which seeks the imposition of
suspension is not lifted such will be considered disciplinary sanction against, or the dismissal or
unconstitutional for being violative of due process suspension of, a public officer or employee on any
of law (Layno, Sr. v. Sandiganbayan, G.R. No. L- of the grounds prescribed by law after due hearing.
65848, May 24, 1985).
Availability of appeal in administrative
Preventive suspension pending investigation v. disciplinary cases
Preventive suspension pending appeal
It depends on the penalty imposed:
PENDING 1. Appeal is available if the penalty is:
PENDING APPEAL a. Demotion
INVESTIGATION
b. Dismissal, or
Not a penalty but only a Punitive in character c. Suspension for more than 30 days or fine
means of enabling the equivalent to more than 30 day salary
disciplinary authority an (Sec.37 par [a], P.D. 807)
unhampered
investigation NOTE: Decisions are initially appealable to the
After the lapse of 90 If exonerated, he should department heads and then to the CSC.Only the
days, the law provides be reinstated with full respondent in the administrative disciplinary
that he be automatically pay for the period of case, not the complainant, can appeal to the
reinstated suspension CSC from an adverse decision. The
complainant in an administrative disciplinary
During such preventive If during the appeal he case is only a witness, and as such, the latter
suspension, the remains suspended and cannot be considered as an aggrieved party
employee is not entitled the penalty imposed is entitled to appeal from an adverse decision
to payment of salaries only reprimand, the (Mendez v. Civil Service Commission, G. R. No.
suspension pending 95575, Dec. 23, 1991).
appeal becomes illegal
and he is entitled to 2. Appeal is NOT available if the penalty is:
back salary a. Suspension for not more than 30 days
corresponding to the b. Fine not more than 30 day salary
period of suspension c. Censure
d. Reprimand
e. Admonition
f. or when the respondent is exonerated

2015GOLDEN NOTES
and Herminio C. Principio vs Rural Bank of San

NOTE: In the second case, the decision becomes Miguel (Bulacan), Inc., G.R. No. 154499, February
final and executory by express provision of law. 27, 2004).
Availability of the services of the Solicitor Applicability of the doctrine of immunity of

General public officers
If the public official is sued for damages arising This doctrine is applicable only whenever a public
out of a felony for his own account, the State is not officer is in the performance of his public functions.
liable and the Solicitor General is not authorized On the other hand, this doctrine does not apply
to represent him therefore. The Solicitor General whenever a public officer acts outside the scope of
may only do so in suits for damages arising not his public functions.
from a crime but from the performance of a public
officers duties (Vital-Gozon v. Court of Appeals, G.R NOTE: A public officer enjoys only qualified, NOT
No. 101428, August 5, 1992). absolute immunity.
The Office of the Solicitor General can represent

the public official at the preliminary investigation
of his case, and that if an information is eventually Distinction between Official immunity from
filed against the said public official, the said Office State immunity
may no longer represent him in the litigation (Anti-
Graft League v. Ortega, et.al., G.R. No. L-33912, Immunity of public officials is a more limited
September 11, 1980). principle than governmental immunity, since its
purpose is not directly to protect the sovereign, but
IMMUNITY OF PUBLIC OFFICERS rather to do so only collaterally, by protecting the
public official in the performance of his
Immunity government function, while, the doctrine of State
immunity principally rested upon the tenuous
It is an exemption that a person or entity enjoys ground that the king could do no wrong. It served
from the normal operation of the law such as a to protect the impersonal body politic or
legal duty or liability, either criminal or civil. government itself from tort liability.
Immunity of public officers from liabilities to STATE IMMUNITY OFFICIAL IMMUNITY

third persons Principle of Concept of Municipal
International Law Law
It is well settled, as a general rule, that public Availed of by States Availed of by public
officers of the government, in the performance of against an international officials against the
their public functions, are not liable to third court or tribunal members of the public
persons, either for the misfeasances or positive The purpose is to To protect the public
wrongs, or for the nonfeasances, negligences, or protect the assets of the official from liability
omissions of duty of their official subordinates State from any arising from negligence
(McCarthy v. Aldanese, G.R. No. L-19715, March 5, judgment in the performance of
1923). his discretionary duties
Rationale behind official immunity NOTE: When public officials perform purely
ministerial duties, however, they may be held
It promotes fearless, vigorous, and effective liable.
administration of policies of government. The
threat of suit could also deter competent people DE JURE AND DE FACTO OFFICERS
from accepting public office.
De jure officer
The immunity of public officers from liability for
the non-feasances, negligence or omissions of duty A de jure officer is one who is in all respects legally
of their official subordinates and even for the appointed or elected and qualified to exercise the
latters misfeasances or positive wrongs rests upon office.
obvious considerations of public policy, the
necessities of the public service and the
perplexities and embarrassments of a contrary
doctrine (Alberto V. Reyes, Wilfredo B. Domo-Ong

De facto officer Manner by which challenge to a de facto office is

made
A de facto officer is one who assumed office under
the color of a known appointment or election but 1. The incumbency may not be challenged
which appointment or election is void for reasons collaterally or in an action to which the de facto
that the officer was not eligible, or that there was officer is not a party.
want of power in the electing body, or that there 2. The challenge must be made in a direct
was some other defect or irregularity in its proceeding where title to the office will be the
exercise, wherein such ineligibility, want of power, principal issue.
or defect being unknown to the public. 3. The authorized proceeding is quo warranto
either by the Solicitor General in the name of
De jure officer v. De facto officer the Republic or by any person claiming title to
the office.
DE JURE OFFICER DE FACTO OFFICER
Has lawful title to the Has possession and Q: ACE ran as congressman of Cagayan
office performs the duties province. His opponent, Mark, however, was
under a colorable title the one proclaimed as the winner by the
without being technically COMELEC. ACE filed seasonably a protest before
qualified in all points of the HRET. After two years, the HRET reversed
law to act the COMELECs decision and ACE was
Holding of office Holding of office rests on proclaimed finally as the duly elected
rests on right reputation Congressman. Thus, he had only one year to
Officer cannot be Officer may be ousted in a serve in Congress.
removed through a direct proceeding against
direct proceeding him. 1. Can ACE collect salaries and allowances
(quo warranto). from the government for the first two years
of his term as Congressman?
2. Should Mark refund to the government the
Effects of the acts of de facto public officers salaries and allowances he had received as
Congressman?
1. The lawful acts, so far as the rights of third 3. What will happen to the bills that Mark
persons are concerned are, if done within the alone authored and were approved by the
scope and by the apparent authority of the HoR while he was seated as Congressman?
office, are considered valid and binding. Reason and explain briefly.
2. The de facto officer cannot benefit from his
own status because public policy demands that A:
unlawful assumption of public office be 1. No. ACE cannot collect salaries and allowances
discouraged. from the government for the first two years of
his term, because in the meanwhile Mark
NOTE: The general rule is that a de facto officer collected the salaries and allowances. Mark
cannot claim salary and other compensations was a de facto officer while he was in
for services rendered by him as such. However, possession of the office. To allow ACE to collect
the officer may retain salaries collected by him the salaries and allowances will result in
for services rendered in good faith when there making the government pay a second time.
is no de jure officer claiming the office. 2. No. Mark is not required to refund to the
government the salaries and allowances he
3. The de facto officer is subject to the same received. As a de facto officer, he is entitled to
liabilities imposed on the de jure officer in the the salaries and allowances because he
discharge of official duties, in addition to rendered services during his incumbency.
whatever special damages may be due from 3. The bills which Mark alone authored and were
him because of his unlawful assumption of approved by the House of Representatives are
office. valid because he was a de facto officer during
4. The acts of the de facto public officer, insofar as his incumbency. The acts of a de facto officer
they affect the public, are valid, binding and are valid insofar as the public is concerned
with full legal effect. (Rodriguez v. Tan, G.R. No. L-3913, August 7,
1952).

2015GOLDEN NOTES
Recovery of the salary received by a de facto De facto officer v. Usurper

officer during a wrongful tenure
DE FACTO OFFICER USURPER
As a rule, the rightful incumbent of the public office
may recover from a de facto officer the salaries Complies with the 3 Takes possession of an
received by the latter during the time of the latter's elements of a de jure office and does official
wrongful tenure even though he entered into the officer, namely: acts without any actual
office in good faith and under a colorable title. The 1. existence of a de jure or apparent authority
de facto officer takes the salaries at his risks and office;
must therefore account to the de jure officer for the 2. must possess the
amounts he received. However, where there is no legal qualifications
de jure officer, a de facto officer shall be entitled to for the office in
the salaries and emoluments accruing during the question;
period when he actually discharged the duties 3. must have qualified
(Monroy v. CA, G.R. No. L-23258, July 1, 1967). himself to perform
the duties of such
NOTE: In Monroy v. CA, the Supreme Court said office according to
that the Rodriguez ruling cannot be applied for the the mode prescribed
absence of factual and legal similarities. by law.
Has color of right or title Has neither color of
Essence of de facto doctrine
to office right or title to office
The de facto doctrine has been formulated, not for
Acts are rendered valid Acts are absolutely void
the protection of the de facto officer principally, but
as to the public until his
rather for the protection of the public and
title is adjudged
individuals who get involved in the official acts of
insufficient
persons discharging the duties of an office without
being lawful officers. GR: Not entitled to
The rightful incumbent compensation
Q: May the salary of a public officer or of a public office may
employee be subject to garnishment? Why? recover from an officer
de facto the salary
A: No. It may not, by garnishment, attachment, or received by the latter
order of execution, be seized before being paid to during the time of his
him, and appropriated for the payment of his debts, tenure even though he
because of the following reasons: entered into the office in
1. While it is still in the hands of the disbursing good faith and under
officer, it belongs to the government; color of title.
2. Public policy forbids such practice since it
would be fatal to the public service; and XPN:
3. It would be tantamount to a suit against the Where there is no de jure
State in its own court, which is prohibited, public officer, the officer
except with its consent. de facto who in good
faith has had possession
of the office and has
discharged the duties
pertaining thereto, is
legally entitled to the
emoluments of the office,
and may, in an
appropriate action,
recover the salary, fees
and other compensations
attached to the office.
(Gen. Manager, Philippine
Ports Authority v.
Monserrato, April 17,
2002)

QUO WARRANTO respondent to recover warranto proceedings

damages (Sec. 11, Rule under the Omnibus
Quo warranto 66, Rules of Court). Election Code.
It is a proceeding or writ issued by the court to NOTE: If the dispute is as to the counting of votes
determine the right to use an office, position or or on matters connected with the conduct of the
franchise and to oust the person holding or election, quo warranto is not the proper remedy
exercising such office, position or franchise if his but an election protest (Cesar v. Garrido, G.R. No.
right is unfounded or if a person performed acts 30705, March 25, 1929).
considered as grounds for forfeiture of said
exercise of position, office or franchise. TERMINATION OF OFFICIAL RELATION
NOTE: It is commenced by a verified petition Modes of terminating official relationships

brought in the name of the Republic of the
Philippines or in the name of the person claiming 1. Expiration of term or tenure
to be entitled to a public office or position usurped 2. Reaching the age limit for retirement
or unlawfully held or exercised by another (Sec. 1, 3. Resignation
Rule 66). 4. Recall
5. Removal
Nature and purpose of quo warranto 6. Abandonment
7. Acceptance of an incompatible office
It literally means by what authority and the 8. Abolition of office
object is to determine the right of a person to the 9. Prescription of the right to office
use or exercise of a franchise or office and to oust 10. Impeachment
the holder from its enjoyment, if his claim is not 11. Death
well-founded, or if he has forfeited his right to 12. Failure to assume office
enjoy the office (Tecson v. Comelec, 424 SCRA 227). 13. Conviction of a crime
14. Filing fof a COC
Quo warranto under Rule 66 v. Quo warranto in
electoral proceedings NOTE:
Appointive officials, active members of the
QUO WARRANTO IN Armed Forces of the Philippines, and officers
QUO WARRANTO
ELECTORAL and employees of the GOCCs, shall be resigned
UNDER RULE 66
PROCEEDINGS from his office upon the filing of his CoC
Issue is legality of the Issue is eligibility of (Quinto v. COMELEC, February 22, 2010, G.R. No.
occupancy of the office the person elected 189698).
by virtue of a legal
appointment Elective officials shall continue to hold office,
Grounds: usurpation, Grounds: ineligibility whether he is running for the same or a
forfeiture, or illegal or disqualification to different position (Sec. 14, Fair Elections Act
association (Sec. 1, Rule hold the office (Sec. expressly repealed Sec. 67 of B.P. Blg. 881).
66, Rules of Court) 253, Omnibus Election
Code) Age limit for retirement
Presupposes that the Petition must be filed
respondent is already within 10 days from 1. For members of SC and judges of lower courts
actually holding office the proclamation of 70 y.o.
and action must be the candidate. 2. Gov't officers and employees 65 y.o.
commenced within 1 3. Optional retirement 60 y.o. and must have
year from cause of rendered at least 20 service years
ouster or from the time
the right of petitioner Resignation
to hold office arose.
Petitioner is person Petitioner may be any It is the act of giving up or declining a public office
entitled to office voter even if he is not and renouncing the further right to use such office.
entitled to the office. It must be in writing and accepted by the accepting
Person adjudged Actual or authority as provided for by law.
entitled to the office compensatory
may bring a separate damages are
action against the recoverable in quo

2015GOLDEN NOTES
Accepting authorities for resignation its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by
1. For appointed officers the tender of resignation acts of relinquishment. The validity of a resignation
must be given to the appointing authority; is not governed by any formal requirement as to
2. For elected officers, tender to officer form. It can be oral, written, express or implied. As
authorized by law to call an election to fill the long as the resignation is clear, it must be given
vacancy. The following authorized officers are: legal effect. In the case at bar, whether Henry
a. Respective chambers For members of resigned has to be determined from his acts and
Congress; omissions before, during and after January 20 or by
b. President For governors, vice-governors, the totality of prior, contemporaneous and
mayors and vice-mayors of highly posterior facts and circumstantial evidence bearing
urbanized cities and independent a material relevance on the issue. Using this
component cities; totality test, the resignation of Henry could not be
c. Provincial governor For municipal doubted. The proposal for a snap election for
mayors and vice-mayors, city mayors and president in May where he would not be a
vice-mayors of component cities; candidate is an indicium that petitioner had
d. Sanggunian concerned For intended to give up the presidency even at that
sanggunianmembers; time. It was also confirmed by his leaving
e. Municipal/city mayors For barangay Malacaang. He emphasized he was leaving the
officials. Palace, the seat of the presidency, for the sake of
peace and in order to begin the healing process of
Courtesy resignation our nation. He did not say he was leaving the
Palace due to any kind inability and that he was
It cannot properly be interpreted as resignation in going to re-assume the presidency as soon as the
the legal sense for it is not necessarily a reflection disability disappears. Thus, Henry constructively
of a public official's intention to surrender his resigned as President (Estrada v. Arroyo, G.R. No.
position. Rather, it manifests his submission to the 146738, March 2, 2001).
will of the political authority and the appointing
power (Ortiz V. COMELEC, G.R. No. 78957, June 28, Removal
1988).
Forcible and permanent separation of the
Q: During the May 1998 election, petitioner incumbent from office before the expiration of the
Henry was elected President while respondent public officer's term (Feria, Jr. v. Mison, G.R. No.
Erika was elected Vice-President. From the 8196, August 8, 1989).
beginning of his term, petitioner was plagued
by jueteng issues that slowly eroded his Recall
popularity. Afterwards, the impeachment trial
started and the people conducted a 10- It is an electoral mode of removal employed
kilometer line holding lighted candles in EDSA directly by the people themselves through the
Shrine to symbolize their solidarity in exercise of their right of suffrage. It is a political
demanding Henrys resignation. On January 19, question not subject to judicial review. It is a
Henry agreed to the holding of a snap election political question that has to be decided by the
for President. On January 20, Chief Justice people in their sovereign capacity (Evardone v.
Dexter administered the oath to respondent COMELEC, G.R. No. 94010, December 2, 1991).
Erika as President of the Philippines. On the
same day, Henry issued a press statement that NOTE: Recall only applies to local officials.
he was leaving Malacaang Palace for the sake
of peace and in order to begin the healing Limitations on recall
process of the nation. It also appeared that on
the same day, he signed a letter stating that he 1. An elective official can be subjected to recall
was transmitting a declaration that he was only once
unable to exercise the powers and duties of his 2. No recall shall take place within one (1) year
office and that by operation of law and the from the assumption of office or one year
Constitution, the Vice-President shall be the immediately preceding a regular local election
Acting President. Are the acts of Henry (Sec. 74 (b) of Republic Act No. 7160).
constitutive of resignation?
NOTE: For the time bar to apply, the
A: YES. Resignation is not a high level legal approaching local election must be one where
abstraction. It is a factual question and the position of the official to be recalled is to be

actually contested and filled by the electorate Period to take the oath of office to avoid failure
(Angobung v. COMELEC, G.R. No. 126576, March to assume office
5, 1997).
Failure to take the oath of office within 6 months
Effect of Recall on the 3-term limit rule from proclamation of election shall cause the
vacancy of the office UNLESS such failure is for a
The three-term limit for local elected officials is not cause beyond his control (Sec. 11, B.P. 881).
violated when a local official wins in a recall
election for mayor after serving three full terms as Termination of official relationship by
mayor since the recall election is not considered an conviction of final judgment
immediate re-election. Term limits should be
construed strictly to give the fullest possible effect When the penalty imposed carries with it the
to the right of the electorate to choose their leaders accessory penalty of disqualification.
(Socrates v. COMELEC, G.R. No. 154512).
APPOINTMENTS TO THE CIVIL SERVICE
Abandonment
Manner of appointment to the civil service
It is the voluntary relinquishment of an office by
the holder with the intention of terminating his Appointments in the civil service shall be made
possession and control thereof. only according to merit and fitness to be
determined, as far as practicable, and, except to
Q: Does the acceptance of an incompatible positions which are policy-determining, primarily
office ipso facto vacate the other? confidential, or highly technical, by competitive
examination (Sec. 2(2), Art. IX-B, 1987 Constitution).
A: GR: Yes.
Principal groups of position in the Civil Service,
XPN: Where such acceptance is authorized by law. on the basis of appointment
NOTE: It is contrary to the policy of the law that 1. Competitive positions according to merit and
the same individual should undertake to perform fitness to be determined by competitive
inconsistent and incompatible duties. He who, examinations, as far as practicable.
while occupying one office, accepts another 2. Non-competitive positions do not have to take
incompatible with the first, ipso facto, absolutely into account merit and fitness. No need for
vacates the first office. That the second office is competitive examinations.
inferior to the first does not affect the rule. a. Policy-determining tasked to formulate a
method of action for the government or
Q: Does the acceptance of an incompatible any of its subdivisions.
office pertain to its physical impossibility or its b. Primarily confidential duties are not
nature? merely clerical but devolve upon the head
of an office, which, by reason of his
A: It refers to the nature and relation of the two numerous duties, delegates his duties to
offices to each other, they should not be held by others, the performance of which requires
one person from the contrariety and antagonism skill, judgment, trust and confidence.
which would result in the attempt by one person to
faithfully and impartially discharge the duties of Proximity Rule
one, toward the incumbent of the other.
The test used to determine confidentiality
Prescriptive period for petitions for of a position. The occupant of a particular
reinstatement or recovery of public office position could be considered a confidential
employee if the predominant reason why
It must be instituted within 1 year from the date of he was chosen by the appointing authority
unlawful removal from the office. Such period may was the latters belief that he can share a
be extended on grounds of equity. close intimate relationship with the
occupant which ensures freedom of
discussion without fear of embarrassment
or misgivings of possible betrayals of
personal trust and confidential matters of
State (De los Santos v. Mallare, G.R. No. L-
3881, August 31, 1950).

2015GOLDEN NOTES
Positions included in career service

c. Highly technical requires technical skill
or training in the highest degree 1. Open career positions for appointment to which
prior qualifications in an appropriate
NOTE: The test to determine whether the examination is required
position is non-competitive is the nature of the 2. Closed career positions which are scientific or
responsibilities, not the description given to it. highly technical in nature
The Constitution does not exempt the above- 3. Positions in the Career executive service
given positions from the operation of the 4. Career officers other than those in the career
principle that no officer or employee of the executive service, who are appointed by the
civil service shall be removed or suspended President
except for cause provided by law. 5. Commissioned officers and enlisted men of the
Armed Forces
Characteristics of career service 6. Personnel of GOCCs, whether performing
governmental or proprietary functions, who do
Under Sec. 7, Chapter 2, Title 1, Book V of the not fall under the non-career service; and
Administrative Code of 1987, the career service is 7. Permanent laborers, whether skilled, semi-
characterized by: skilled, or unskilled (Sec. 5, P.D. No. 807)
1. Entrance based on merit and fitness to be
determined as far as practicable by Positions included in non-career service
competitive examination or based on highly
technical qualification; 1. Elective officials;
2. Opportunity for advancement to higher career 2. Department heads and other officials of
position; and Cabinet rank who hold positions at the
3. Security of tenure. pleasure of the President;
3. Chairmen and members of commissions and
Career service v. Non-career service boards with fixed terms of office;
CAREER SERVICE NON-CAREER SERVICE NOTE: The personal and confidential staffs of
the above three enumerated positions are
Entrance is based on Entrance is based on
considered included in non-career service.
merits and fitness, qualifications other than
which is determined by merit and fitness.
4. Contractual personnel whose job requires
competitive
special or technical skills not available in the
examination (except for
employing agency, to be accomplished within a
non-competitive
period not exceeding one year; and
positions) or based on
5. Emergency and seasonal personnel.
highly technical
qualifications.
Q: Who may be appointed in the civil service?
There is opportunity for No such opportunity A: Whoever fulfills all the qualifications prescribed
advancement to a advancement to a by law for a particular position may be appointed
higher career position. higher career position. therein.
There is security of Tenure is limited to a
tenure. period specified by law, NOTE: The CSC cannot disapprove an appointment
coterminous with the just because another person is better qualified, as
appointing authority or long as the appointee is himself qualified. It cannot
subject to his pleasure, add qualifications other than those provided by
or which is limited to law (Cortez v. CSC, G.R. No. 92673, March 13, 1991).
the duration of a
particular purpose Security of tenure
(Jocom v. Regalado, G.R.
No. 77373, August 22, It means that no officer or employee in the civil
1991). service shall be suspended or dismissed except for
a cause provided by law and after due process or
after he shall have been given the opportunity to
defend himself.

NOTE: One must be validly appointed to enjoy with previous notice and hearing (Aquino v. CSC,
security of tenure. Thus, one who is not appointed G.R. No. 92403, April 22, 1992).
by the proper appointing authority does not
acquire security of tenure. Security of tenure for non-competitive
positions
Once an appointment is issued and completed and
the appointee assumes the position, he acquires a 1. Primarily confidential officers and employees
legal right, not merely an equitable right to the hold office only for so long as confidence in
position (Lumigued v. Exevea, G.R. No. 117565, them remains. If there is genuine loss of
November 18, 1997). confidence, there is no removal, but merely the
expiration of the term of office.
Regardless of the characterization of the position 2. Non-career service officers and employees
held by a government employee covered by civil security of tenure is limited to a period
service rules, be it career or non-career position, specified by law, coterminous with the
such employee may not be removed without just appointing authority or subject to his pleasure,
cause (Jocom v. Regalado, G.R. No. 77373, August 22, or which is limited to the duration of a
1991). particular purpose.
3. Political appointees in Foreign Service possess
Bases of the constitutional guaranty of security tenure coterminous with that of the appointing
of tenure in the civil service authority or subject to his pleasure.
The prohibition against suspension or dismissal of Instance where a transfer may be considered
an officer or employee of the Civil Service except violative of employees security of tenure
for cause provided by law is a guaranty of both
procedural and substantive due process. Not only When the transfer is a preliminary step toward his
must removal or suspension be in accordance with removal, or a scheme to lure him away from his
the procedure prescribed by law, but also they can permanent position, or when it is designed to
only be made on the basis of a valid cause provided indirectly terminate his service, or force his
by law. (Land Bank of the Philippines v Rowena O. resignation. Such a transfer would in effect
Paden, G.R. No. 157607, July 7, 2009). circumvent the provision that safeguards the
tenure of office of those who are in the Civil Service
Characteristic of security of tenure (CSC v. PACHEO, G.R. No. 178021, January 25, 2012).
It is the nature of the appointment that NOTE: Acceptance of a temporary appointment or

characterizes security of tenure and not the nature assignment without reservation or upon ones own
of ones duties or functions. volition is deemed waiver of security of tenure
(Palmera v. Civil Service Commission, G.R. No.
Where the appointment is permanent, it is 110168, August 4, 1994).
protected by the security of tenure provision. But if
it is temporary or in an acting capacity, which can Rules applicable to temporary employees vis-a-
be terminated at any time, the officer cannot vis security of tenure
invoke the security of tenure.
1. Not protected by security of tenure can be
NOTE: The holder of a temporary appointment removed anytime even without cause.
cannot claim a vested right to the station to which 2. If they are separated, this is considered an
assigned, nor to security of tenure thereat. Thus, he expiration of term. But, they can only be
may be reassigned to any place or station (Teotico removed by the one who appointed them.
v. Agda, G.R. No. 87437, May 29, 1991). 3. Entitled to such protection as may be provided
by law (Sec. 2[6], Art. IX-B, 1987 Constitution).
Attachment of security of tenure
Q: Sol was first employed as private secretary
It attaches once an appointment is issued and the in the GSIS in 1960 on a confidential status. In
moment the appointee assumes a position in the 1962, Sol was promoted to Tabulating
civil service under a completed appointment, he Equipment Operator with permanent status.
acquires a legal, not merely equitable, right (to the In 1986, she was appointed corporate secretary
position) which is protected not only by statute, of the Board of Trustees (BOT) of the
but also by the constitution, and cannot be taken corporation. In 2001, she opted for early
away from him either by revocation of the retirement. In 2002, Sol, who was 64 years old
appointment, or by removal, except for cause, and at the time, was reappointed by GSIS President

2015GOLDEN NOTES
(with approval of BOT) as corporate secretary.

The BOT classified her appointment as Elements of a valid abolition of office
confidential in nature and the tenure of office
is at the pleasure of the Board. 1. In good faith; (good faith is presumed)
2. Not for political or personal reasons; and
On October 10, 2002, CSC issued a resolution 3. Not in violation of law.
invalidating the reappointment of Sol as
corporate secretary, on the ground that the NOTE: The Congress has the right to abolish an
position is a permanent, career position and office even during the term for which an existing
not primarily confidential. incumbent may have been elected EXCEPT when
restrained by the Constitution.
May the courts determine the proper
classification of a position in government? Is Reorganization
the position of corporate secretary in a GOCC
primarily confidential in nature? Reorganization involves the reduction of
personnel, consolidation of offices, or abolition
A: The courts may determine the proper thereof by reason of economy or redundancy of
classification of a position in government. A strict functions. It alters the existing structure of
reading of the law (EO 292) reveals that primarily government offices or the units therein, including
confidential positions fall under the non-career the lines of control, authority and responsibility
service. The tenure of a confidential employee is between them to make the bureaucracy more
coterminous with that of the appointing authority, responsive to the needs of the public clientele as
or is at the latter's pleasure. However, the authorized by law (Pan v. Pena G.R. No. 174244, Feb
confidential employee may be appointed or remain 13, 2009).
in the position even beyond the compulsory
retirement age of 65 years. Circumstances that may be considered as
evidence of bad faith in the removals made as a
Jurisprudence establishes that the Court is not result of reorganization, giving rise to
bound by the classification of positions in the civil reinstatement or reappointment
service made by the legislative or executive
branches, or even by a constitutional body like the 1. Where there is a significant increase in the
CSC. The Court is expected to make its own number of positions in the new staffing pattern
determination as to the nature of a particular of the department or agency concerned
position, such as whether it is a primarily 2. Where an office is abolished and other
confidential position or not, without being bound performing substantially the same functions is
by prior classifications made by other bodies. created
3. Where incumbents are replaced by those less
In fine, a primarily confidential position is qualified in terms of status of appointment,
characterized by the close proximity of the performance and merit
positions of the appointer and appointee as well as 4. Where there is reclassification of offices in the
the high degree of trust and confidence inherent in department or Agency concerned and the
their relationship. classified offices perform substantially the
same function as the original offices
In the light of the instant controversy, the Court's 5. Where the removal violates the order of
view is that the greater public interest is served if separation provided in Sec. 3 of R.A. 6656
the position of a corporate secretary is classified as (Cotiangco v. Province of Biliran, G.R. No.
primarily confidential in nature (CSC v. Javier, G.R. 157139, October 19, 2011).
No. 173264, February 22, 2008).
Q: President Benigno Aquino III issued EO 1
Creation and Abolition of Office creating the Philippine Truth Commission
(PTC). The legality of the creation of the PTC
The creation and abolition of public offices is was assailed before the SC. The petitioners
primarily a legislative function (Eugenio v. Civil contend that the PTC is a public office and thus
Service Commission, et al., G.R. No. 115863, March the president is without authority to create it.
31, 1995). However, the President may abolish an The OSG countered that the creation of a fact-
office either from a valid delegation from Congress, finding body like the PTC is covered by the
or his inherent duty to faithfully execute the laws Presidents power of reorganization under the
(Biraogo v. Philippine Truth Commission of 2010, Administrative Code and the Presidents power
G.R. No. 192935, December 7, 2010). of control. The OSG likewise contends that

Congress has delegated to the President the recognized powers of the President granted
power to create public offices by virtue of P.D. pursuant to this constitutionally-mandated duty is
1416, as amended by PD 1772. the power to create ad hoc committees. This flows
from the obvious need to ascertain facts and
Does the creation of the PTC fall within the determine if the laws have been faithfully executed.
ambit of the power to reorganize as expressed It should be stressed that the purpose of allowing
in Sec. 31 of the Revised Administrative Code? ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled
A: NO. Reorganization refers to the reduction of to know so that he can be properly advised and
personnel, consolidation of offices, or abolition guided in the performance of his duties relative to
thereof by reason of economy or redundancy of the execution and enforcement of the laws of the
functions. This refers to situations where a body or land (Ibid.)
an office is already existent but a modification or
alteration thereof has to be effected. The creation NOTE: The SC, however, declared the creation of
of an office is nowhere mentioned, much less PTC as unconstitutional for violating the equal
envisioned in said provision. To say that the PTC is protection clause
borne out of a restructuring of the Office of the
President under Sec. 31 is a misplaced supposition, PERSONNEL ACTIONS
even in the plainest meaning attributable to the
term restructure and alteration of an existing Personnel Actions
structure. Evidently, the PTC was not part of the
structure of the Office of the President prior to the Any action denoting movement or progress of
enactment of EO 1 (Ibid.) personnel in the civil service (City Mayor
Debulgado v. CSC, G.R. No. 111471, September 26,
Q: Is the creation of the PTC justified by the 1994).
Presidents power of control?
Personnel actions include
A: NO. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate 1. Appointment through Certification Issued to a
officer had done in the performance of his duties person who has been selected from a list of
and to substitute the judgment of the former with qualified persons certified by the Commission
that of the latter. Clearly, the power of control is from an appropriate register of eligible and
entirely different from the power to create public who meets all other requirements of the
offices. The former is inherent in the Executive, position (Sec. 26(2), Chapter 5, Book V, Title I-A
while the latter finds basis from either a valid of the Revised Administrative Code of 1987).
delegation from Congress, or his inherent duty to 2. Promotion Movement from one position to
faithfully execute the laws (Ibid.) another with increase in duties and
responsibilities as authorized by law and
Q: What then could be the justification for the usually accompanied by an increase in pay
Presidents creation of the PTC? (Sec. 26(2), Chapter 5, Book V, Title I-A of the
Revised Administrative Code of 1987).
A: The creation of the PTC finds justification under 3. Transfer A movement from one position to
Sec. 17, Art. VII of the Constitution imposing upon another which is of equivalent rank, level or
thePresident the duty to ensure that the laws are salary without break in service involving
faithfully executed. The Presidents power to issuance of an appointment.
conduct investigations to aid him in ensuring the 4. Reinstatement A person who has been
faithful execution of laws in this case, permanently appointed to a position in the
fundamental laws on public accountability and career service and who has, through no
transparency is inherent in the Presidents delinquency or misconduct, been separated
powers as the Chief Executive. That the authority therefrom, may be reinstated to a position in
of the President to conduct investigations and to the same level for which he is qualified.
create bodies to execute this power is not explicitly 5. Reemployment Persons who have been
mentioned in the Constitution or in statutes does appointed permanently to positions in the
not mean that he is bereft of such authority. career service and who have been separated as
result of reduction in force and or
The Executive is given much leeway in ensuring reorganization shall be entered in a list from
that our laws are faithfully executed. The powers of which selection for reemployment shall be
the President are not limited to those specific made (Sec. 26(5), Chapter 5, Book V, Title I-A of
powers under the Constitution. One of the the Revised Administrative Code of 1987).

2015GOLDEN NOTES
6. Detail A movement of an employee from one

agency to another without issuance of an NOTE: The enumeration is exclusive.
appointment and shall be allowed, only for a
limited period in the case of employees Culpable violation of the Constitution
occupying professional, technical and scientific
positions (Sec. 26(6), Chapter 5, Book V, Title I- It refers to wrongful, intentional or willful disregard
A of the Revised Administrative Code of 1987). or flouting of the fundamental law. Obviously, the act
7. Reassignment An employee may be must be deliberate and motivated by bad faith to
reassigned from one organizational unit to constitute a ground for impeachment. Mere mistakes
another in the same agency, provided that such in the proper construction of the Constitution, on
reassignment shall not involve a reduction in which students of law may sincerely differ, cannot be
rank, status or salary (Sec. 26(7), Chapter 5, considered a valid ground for impeachment.
Book V, Title I-A of the Revised Administrative
Code of 1987). Betrayal of public trust
8. Demotion A movement from one position to
another involving the issuance of an The 1987 Constitution has added betrayal of public
appointment with diminution in duties, trust, which means any form of violation of the oath
responsibilities, status or rank which may or of office even if such violation may not be a
may not involve reduction in salary. criminally punishable offense.
ACCOUNTABILITY OF PUBLIC OFFICERS This is a catch-all statement to cover all manner of

offenses unbecoming a public functionary but not
IMPEACHMENT punishable by the criminal statutes, like inexcusable
negligence of duty, tyrannical abuse of authority,
Impeachment breach of official duty by malfeasance or
misfeasance, cronyism, favoritism, obstruction of
Method by which persons holding government justice.
positions of high authority, prestige, and dignity
and with definite tenure may be removed from Steps in the impeachment process
office for causes closely related to their conduct as
public officials. 1. Initiating impeachment case
a. Verified complaint filed by any member of
NOTE: It is a national inquest into the conduct of the House of Representatives or any
public men. It is primarily intended for the citizen upon resolution of endorsement by
protection of the State, not for the punishment of any member thereof.
the offender. The penalties attached to the
impeachment are merely incidental to the primary NOTE: If the verified complaint is filed by
intention of protecting the people as a body politic. at least 1/3 of all its members of the House
of Representatives, the same shall
Impeachable officers constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
1. President proceed (Sec. 3 (4), Art. XI, 1987
2. Vice-President Constitution).
3. Members of the Supreme Court
4. Members of the Constitutional Commissions b. Included in the order of business within 10
5. Ombudsman session days.
c. Referred to the proper committee within 3
NOTE: The enumeration is exclusive (Sec. 2, Art. XI, session days from its inclusion.
1987 Constitution). d. The committee, after hearing, and by
majority vote of all its members, shall
Grounds for impeachment submit its report to the House of
Representatives together with the
1. Culpable violation of the Constitution corresponding resolution.
2. Treason e. Placing on calendar the Committee
3. Bribery resolution within 10 days from
4. Graft and Corruption submission;
5. Other high crimes f. Discussion on the floor of the report;
6. Betrayal of public trust (Sec. 2, Art. XI, 1987 g. A vote of at least 1/3 of all the members of
Constitution) the House of Representatives shall be

necessary either to affirm a favorable formulated determinable standards as to form and

resolution with the Articles of substance of an impeachment complaint.
Impeachment of the committee or Furthermore the impeachment rules are clear in
override its contrary resolution (Sec. 3 (2- echoing the constitutional requirements in
3), Art. XI. 1987 Constitution). providing that there must be a verified complaint
or resolution and that the substance requirement
2. Trial and Decision in impeachment proceedings is met if there is a recital of facts constituting the
a. The Senators take an oath or affirmation offense charged and determinative of the
jurisdiction of the committee (Gutierrez v. The
NOTE: When the President of the House of Representatives Committee on Justice, G.R.
Philippines shall be impeached, the Chief No. 193459, February 15, 2011).
Justice of the Supreme Court shall preside,
otherwise the Senate President shall Limitations imposed by the Constitution upon
preside in all other cases of impeachment the initiation of impeachment proceedings
(Senate Resolution No. 890).
1. The House of Representatives shall have the
b. A decision of conviction must be exclusive power to initiate all cases of
concurred in by at least 2/3 of all the impeachment.
members of Senate. 2. Not more than one impeachment proceeding
shall be initiated against the same official
NOTE: The power to impeach is essentially a non- within a period of one year. (One-year bar
legislative prerogative and can be exercised by rule)
Congress only within the limits of the authority
conferred upon it by the Constitution (Gutierrez v. NOTE: An impeachment case is the legal
The House of Representatives Committee on Justice, controversy that must be decided by the
G.R. No. 193459, February 15, 2011). Senate while an impeachment proceeding is
one that is initiated in the House of
The Senate has the sole power to try and decide all Representatives. For purposes of applying the
cases of impeachment (Sec. 3(6), Art. XI, 1987 one-year ban rule, the proceeding is initiated
Constitution). or begins when a verified complaint is filed
and referred to the Committee on Justice for
Impeachment is deemed initiated when action (Francisco v. House of Representatives, et.
al., G.R. No. 160261, November 10, 2003).
A verified complaint is filed and referred to the
Committee on Justice for action. This is the Purpose of the one-year bar rule
initiating step which triggers the series of steps
that follow. The term to initiate refers to the filing The purpose of the one-year bar is two-fold:
of the impeachment complaint coupled with 1. To prevent undue or too frequent harassment
Congress taking initial action of said complaint 2. To allow the legislature to do its principal task
(Francisco v. House of Rep., G.R. No. 160261, of legislation (Francisco v. House of Rep., G.R.
November 10, 2003). No. 160261, November 10, 2003).
NOTE: Initiation takes place by the act of filing of The consideration behind the intended limitation
the impeachment complaint and referral to the refers to the element of time, and not the number
House Committee on Justice. Once an impeachment of complaints. The impeachable officer should
complaint has been initiated in the foregoing defend himself in only one impeachment
manner, another may not be filed against the same proceeding, so that he will not be precluded from
official within a one year period (Gutierrez v. House performing his official functions and duties.
of Representatives Committee on Justice, G.R. No. Similarly, Congress should run only one
193459, February 15, 2011). impeachment proceeding so as not to leave it with
little time to attend to its main work of law-making.
Power of the HoR to determine the sufficiency The doctrine laid down in Francisco that initiation
of form and substance of an impeachment means filing and referral remains congruent to the
complaint rationale of the constitutional provision (Gutierrez
v. The House of Representatives Committee on
It is an exponent of the express constitutional grant Justice, G.R. No. 193459, February 15, 2011).
of rulemaking powers of the House of
Representatives. In the discharge of that power
and in the exercise of its discretion, the House has

2015GOLDEN NOTES
Effects of conviction in impeachment

Term of office
1. Removal from office
2. Disqualification to hold any other office under 7 years without reappointment (Sec. 11, Art. XI,
the Republic of the Philippines 1987 Constitution).
3. Party convicted shall be liable and subject to
prosecution, trial and punishment according to Qualifications of the Ombudsman and his
law (Sec. 3 (7), Art. XI, 1987 Constitution). Deputies
Q: Can a Supreme Court Justice be charged in a 1. Natural born citizen of the Philippines;
criminal case or disbarment proceeding 2. At least 40 years of age at the time of
instead of an impeachment proceeding? appointment;
3. Of recognized probity and independence;
A: No, because the ultimate effect of either is to 4. Member of the Philippine Bar;
remove him from office, and thus circumvent the 5. Must not have been candidate for any elective
provision on removal by impeachment thus office in the immediately preceding election;
violating his security of tenure (In Re: First 6. For Ombudsman: He must have been for ten
Indorsement from Hon. Raul Gonzalez, A.M. No. 88- years or more as a judge or engaged in the
4-5433, April 15, 1988). practice of law in the Philippines.
An impeachable officer who is a member of the Rank and salary

Philippine bar cannot be disbarred first without
being impeached (Jarque v. Desierto, 250 SCRA 11 The Ombudsman and his Deputies shall have the
[1995]). rank of Chairman and Members, respectively, of
the Constitutional Commissions, and they shall
OMBUDSMAN receive the same salary, which shall not be
decreased during their term of office (Article 11,
Composition Section 10, 1987 Philippine Constitution).
1. The Ombudsman Disqualifications and inhibitions

2. One overall Deputy.
3. At least one Deputy each for Luzon, Visayas and 1. Shall not hold any other office or employment;
Mindanao. 2. Shall not engage in the practice of any
4. One Deputy for the military establishment profession or in the active management or
(Article XI, Section 5, 1987 Philippine control of any business which in any way may
Constitution) be affected by the functions of his office;
3. Shall not be financially interested, directly or
Function of the Ombudsman indirectly, in any contract with, or in any
franchise or privilege granted by the
He is tasked to entertain complaints addressed to government, or any of its subdivisions, etc.
him against erring public officers and take all 4. Shall not be qualified to run for any office in
necessary actions thereon. the election immediately succeeding their
cessation from office (Sec. 9, RA 6770).
NOTE: The powers of the Ombudsman are not
merely recommendatory. His office was given teeth Scope of powers
to render this constitutional body not merely
functional but also effective. Under RA 6770 and Over the years, the scope of the powers of the
the 1987 Constitution, the Ombudsman has the Ombudsman under Sec. 13, Art. XI of the 1987
constitutional power to directly remove from Constitution has been clarified thus settling various
government service an erring public official other disputed issues:
than a member of Congress and the Judiciary 1. The ombudsman can investigate only officers
(Estarija v. Ranada, G.R No. 159314, June 26, 2006). of government owned corporations with
original charter (Khan, Jr v Ombudsman, G.R.
Ombudsmans fiscal autonomy No. 125296, July 20, 2006).
2. The jurisdiction of the Ombudsman over
The Ombudsman shall enjoy fiscal autonomy. Its disciplinary cases involving public school
approved annual appropriations shall be teachers has been modified by Sec. 9 of RA
automatically and regularly released (Sec. 14, Art. 4670 (Magna Carta for Public School Teachers)
XI, 1987 Constitution). which says that such cases must first go to a

committee appointed by the Secretary of is a ground for disciplinary action. Thus, there is a
Education (Ombudsman v. Estandarte, G.R. strong indication that the Ombudsmans
168670, April 13, 2007). recommendation is not merely advisory in nature
3. The Ombudsman Act authorizes the but actually mandatory within the bounds of law.
Ombudsman to impose penalties in This should not be interpreted as usurpation of the
administrative cases (Ombudsman v. CA, G.R. Ombudsman of the authority of the head of office
No. 167844,November 22, 2006; Ombudsman v. or any officer concerned. It has long been settled
Lucero, G.R. No. 168718 November 24, 2006). that the power of the Ombudsman to investigate
and prosecute any illegal act or omission of any
NOTE: According to Section 60 of the LGC, public official is not an exclusive authority, but a
elective officials may be dismissed only by the shared or concurrent authority in respect of the
proper court. Where the disciplining authority offense charged (Ledesma v. CA, GR 161629, 29 July
is given only the power to suspend and not the 2005).
power to remove, it should not be permitted to
manipulate the law by usurping the power to Power of the Military Deputy Ombudsman to
remove.(Sangguniang Barangay v. Punong investigate civilian police
Barangay, G.R. No. 170626, March 3, 2008).
Since the power of the Ombudsman is broad and
5. The Special Prosecutor may not file the Deputy Ombudsman acts under the direction of
information without authority from the the Ombudsman, the power of the Military Deputy
Ombudsman (Perez v. Sandigabayan, G.R. No. to investigate members of the civilian police has
166062, Sept. 26, 2006). also been affirmed (Acop v. Ombudsman, G.R. No.
6. The Ombudsman has been conferred rule 120422, September 27, 1995).
making power to govern procedures under it
(Buencamino v. CA, GR 175895, April 12, 2007). Q: Can the claim of confidentiality prevent the
7. A preventive suspension will only last ninety Ombudsman from demanding the production of
(90) days, not the entire duration of the documents needed for their investigation?
criminal case (Villasenor v. Sandiganbayan G.R.
No. 180700, March 4, 2008). A: NO. In Almonte v. Vasquez, G.R. No. 95367, May
23, 1995, the Court said that where the claim of
Delegability of the powers of the Ombudsman confidentiality does not rest in the need to protect
military, diplomatic or the national security secrets
The power to investigate or conduct a preliminary but on general public interest in preserving
investigation on any Ombudsman case may be confidentiality, the courts have declined to find in
exercised by an investigator or prosecutor of the the Constitution an absolute privilege even for the
Office of the Ombudsman, or by any Provincial or President.
City Prosecutor or their assistants, either in their
regular capacities or as deputized Ombudsman Moreover, even in cases where matters are really
prosecutors (Honasan II v. Panel of Investigators of confidential, inspection can be done in camera.
the DOJ, 2004).
Powers, functions & duties of the Office of the
NOTE: While the Ombudsmans power to Ombudsman as Protector of the People
investigate is primary, it is not exclusive and, under
the Ombudsman Act of 1989, he may delegate it to 1. Investigate and prosecute on its own or on
others and take it back any time he wants to (Acop complaint by any person, any act or omission
v. Ombudsman, G.R. No. 120422, September 27, of any public officer or employee, office or
1995). agency, when such act or omission appears to
be illegal, unjust, improper or inefficient. It has
Power of the Ombudsman to directly dismiss a primary jurisdiction over cases cognizable by
public officer the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any
Under Sec. 13(3) of Art. XI, the Ombudsman can stage, from any investigatory agency of
only recommend to the officer concerned the Government, the investigation of such
removal of a public officer or employee found to be cases (Sec. 15(1), RA 6770; see also Sec. 13(1),
administratively liable (Tapiador v. Office of the Art. XI, 1987 Constitution);
Ombudsman, G.R. No. 129124. March 15, 2002). Be 2. Direct, upon complaint or at its own instance,
that as it may, the refusal, without just cause, of any any officer or employee of the Government, or
officer to comply with such an order of the of any subdivision, agency or instrumentality
Ombudsman to penalize erring officer or employee thereof, as well as any government-owned or

2015GOLDEN NOTES
controlled corporations with original charter, power to examine and have access to bank
to perform and expedite any act or duty accounts and records (Sec. 15(8), RA 6770);
required by law, or to stop, prevent, and 9. Punish for contempt in accordance with the
correct any abuse or impropriety in the Rules of Court and under the same procedure
performance of duties (Sec. 15(2), RA 6770; Sec. and with the same penalties provided
13(2), Art. XI, 1987Constitution); therein (Sec. 15(9), RA 6770);
3. Direct the officer concerned to take 10. Delegate to the Deputies, or its investigators or
appropriate action against a public officer or representatives such authority or duty as shall
employee at fault or who neglects to perform ensure the effective exercise of performance of
an act or discharge a duty required by law, and the powers, functions, and duties herein or
recommend his removal, suspension, hereinafter provided (Sec. 15(10), RA6770);
demotion, fine, censure, or prosecution, and 11. Investigate and initiate the proper action
ensure compliance therewith; or enforce its for the recovery of ill-gotten and/or
disciplinary authority as provided in Sec. 21 or unexplained wealth amassed after February
this Act: Provided, That the refusal by any 25, 1986 and the prosecution of the parties
officer without just cause to comply with an involved therein (Sec. 15(11), RA 6770);
order of the Ombudsman to remove, suspend, 12. Promulgate its rules of procedure and exercise
demote, fine, censure, or prosecute an officer such other powers or perform such functions
or employee who is at fault or who neglects to or duties as may be provided by law (Sec.
perform an act or discharge a duty required by 13(7), Art. XI, 1987 Constitution; see also Sec.
law shall be ground for disciplinary action 18, RA 6770);
against said officer (Sec. 15(3), RA 6770; see
also Sec. 13(3), Art. XI, 1987 Constitution); JUDICIAL REVIEW IN ADMINISTRATIVE
4. Direct the officer concerned, in any PROCEEDINGS
appropriate case, and subject to such
limitations as it may provide in its rules of Authority of the Ombudsman in reviewing
procedure, to furnish it with copies of Administrative proceedings
documents relating to contracts or
transactions entered into by his office Sec. 19 of the Ombudsman Act further enumerates
involving the disbursement or use of public the types of acts covered by the authority granted
funds or properties, and report any to the Ombudsman. The Ombudsman shall act on
irregularity to the Commission on Audit for all complaints relating, but not limited to acts or
appropriate action (Sec. 15(4), RA 6770; see omissions which:
also Sec. 13(4), Art. XI, 1987 Constitution); 1. Are contrary to law or regulation;
5. Request any government agency for assistance 2. Are unreasonable, unfair, oppressive or
and information necessary in the discharge of discriminatory;
its responsibilities, and to examine, if 3. Are inconsistent with the general course of an
necessary, pertinent records and agency's functions, though in accordance with
documents (Sec. 15(5), RA 6770; see also Sec. law;
13(5), Art. XI, 1987 Constitution); 4. Proceed from a mistake of law or an arbitrary
6. Publicize matters covered by its investigation ascertainment of facts;
of the matters mentioned in paragraphs (1), 5. Are in the exercise of discretionary powers but
(2), (3) and (4) hereof, when circumstances so for an improper purpose; or
warrant and with due determine what cases 6. Are otherwise irregular, immoral or devoid of
may not be made public: Provided further, justification
That any publicity issued by the Ombudsman
shall be balanced, fair, and true (Sec. 15(6), RA In the exercise of its duties, the Ombudsman is
6770; see also Sec. 13(6), Art. XI,1987 given full administrative disciplinary authority. His
Constitution); power is not limited merely to receiving,
7. Determine the causes of inefficiency, red tape, processing complaints, or recommending penalties.
mismanagement, fraud, and corruption in the He is to conduct investigations, hold hearings,
Government and make recommendations for summon witnesses and require production of
their elimination and the observance of high evidence and place respondents under preventive
standards of ethics and efficiency (Sec. 15(7), suspension. This includes the power to impose the
RA 6770; see also Sec. 13(7), Art. XI, 1987 penalty of removal, suspension, demotion, fine, or
Constitution); censure of a public officer or employee
8. Administer oaths, issue subpoena and (Ombudsman v. Galicia, G.R. No. 167711, October 10,
subpoena duces tecum, and take testimony in 2008).
any investigation or inquiry, including the

NOTE: Appeals from resolutions of the Office of the

Ombudsman in administrative disciplinary cases Exclusive original jurisdiction of the
should be taken to the Court of Appeals via Petition Sandigabayan
for Review under Rule 43 of the Rules of Court
(Fabian v. Desierto, G.R. No. 129742, September 16, 1. Violations of the Anti-Graft and Corrupt
1998). Practices Act (RA 3019), RA 1379, Chapter II,
Section 2, Title VII, Book II of the Revised Penal
JUDICIAL REVIEW IN PENAL PROCEEDINGS Code, and Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986.
Authority of the Ombudsman in reviewing 2. The offender who violates RA 3019, RA 1379,
penal proceedings the RPC provisions, and other offenses is a
public official or employee holding any of the
In the exercise of its investigative power, the Court positions enumerated in par. a, Sec. 4, RA 8249
has consistently held that courts will not interfere 3. Other offenses or felonies whether simple or
with the discretion of the fiscal or the Ombudsman complexed with other crimes committed by
to determine the specificity and adequacy of the the public officials and employees in relation to
averments of the offense charged. He may dismiss their office (RA 10660).
the complaint forthwith if he finds it to be
insufficient in form and substance or if he NOTE: In case private individuals are charged as
otherwise finds no ground to continue with the co-principals, accomplices or accessories with the
inquiry; or he may proceed with the investigation public officers or employees, they shall be tried
of the complaint if, in his view, it is in due and jointly with said public officers and employees (Sec.
proper form (Ocampo v. Ombudsman, 225 SCRA 725 4, PD 1606).
(1993)).
Private persons may be charged together with
NOTE: In Garcia-Rueda v. Pascasio, G.R. No. 118141, public officers to avoid repeated and unnecessary
September 5, 1997, the Court held that while the presentation of witnesses and exhibits against
Ombudsman has the full discretion to determine conspirators in different venues, especially of the
whether or not a criminal case is to be filed, the issues involved are the same. It follows therefore
Court is not precluded from reviewing the that if a private person may be tried jointly with
Ombudsmans action when there is grave abuse of public officers, he may also be convicted jointly
discretion. with them (Balmadrid v. Sandiganbayan, G.R. No. L-
58327 March 22, 1991).
SANDIGANBAYAN
Determination of the jurisdiction of the
Sandiganbayan is a special appellate collegial Sandiganbayan
court in the Philippines. The special court was
established by Presidential Decree No. 1486, as It shall be determined by the allegations in the
subsequently modified by Presidential Decree No. information specifically on whether or not the acts
1606 and by Republic Acts numbered 7975 and complained of were committed in relation to the
8249. official functions of the accused. It is required that
the charge be set forth with particularity as will
Composition of the Sandiganbayan reasonably indicate that the exact offense which
the accused is alleged to have committed is one in
Under PD 1606, as amended by RA 8249, further relation to his office (Lacson v. Executive
amended by RA 10660, it is composed of: SecretaryG.R. No. 128096, January 20, 1999) .
1. Presiding Justice
2. Twenty Associate Justices, with the rank of Voting requirement
Justice of the Court of Appeals
All three members of a division shall deliberate on
NOTE: It sits in 7 divisions with three members all matters submitted for judgment, decision, final
each. order or resolution.
Nature of the Sandiganbayan The concurrence of a majority of the members of a

division shall be necessary to render a judgment,
Sandiganbayan is NOT a constitutional court. It is a decision, or final order, or to resolve interlocutory
statutory court; that is, it is created not by the or incidental motions (RA 10660).
Constitution, but by statute, although its creation is
mandated by the Constitution.

2015GOLDEN NOTES
Mandatory suspension of a public officer owned-or-controlled corporations and their

against whom a valid information is filed subsidiaries
4. By obtaining, receiving or accepting directly or
It is now settled that Sec. 13, RA 3019, makes it indirectly any shares of stock, equity or any
mandatory for the Sandiganbayan to suspend any other form of interest or participation
public officer against whom a valid information including promise of future employment in any
charging violation of that law, or any offense business enterprise or undertaking
involving fraud upon the government or public 5. By establishing agricultural, industrial or
funds or property is filed (Bolastig v. commercial monopolies or other combinations
Sandiganbayan, 235 SCRA 103). and/or implementation of decrees and orders
intended to benefit particular persons or
NOTE: Under Sec. 13, RA 3019, any public officer special interests
against whom any criminal prosecution under a 6. By taking undue advantage of official position,
valid information under this Act or under the authority, relationship, connection or influence
provisions of the Revised Penal Code on bribery is to unjustly enrich himself or themselves at the
pending in court, shall be suspended from office. expense and to the damage and prejudice of
Should he be convicted by final judgment, he shall the Filipino people and the Republic of the
lose all retirement or gratuity benefits under any Philippines (RA 7080, An Act Defining and
law, but if he is acquitted, he shall be entitled to Penalizing the Crime of Plunder).
reinstatement and to the salaries and benefits
which he failed to receive during suspension, Non-applicability of prescription, laches and
unless in the meantime administrative proceedings estoppel in criminal prosecution for the
have been filed against him. recovery of ill-gotten wealth
Appeal of a decision of the Sandiganbayan to The provision found in Sec. 15, Art. XI of the 1987
the SC Constitution that "the right of the State to recover
properties unlawfully acquired by public officials
The appellate jurisdiction of the Supreme Court or employees, from them or from their nominees
over decisions and final orders of the or transferees, shall not be barred by prescription,
Sandiganbayan is limited to questions of law laches or estoppel," has already been settled in
(Cabaron v. People, G.R. No. 156981, October 5, Presidential Ad Hoc Fact-Finding Committee on
2009). Behest Loans v. Desierto. G.R. No. 130140, where the
Court held that the above cited constitutional
ILL-GOTTEN WEALTH provision "applies only to civil actions for recovery
of ill-gotten wealth, and NOT to criminal cases
Ill-gotten wealth (Presidential Ad Hoc Fact- Finding Committee On
Behest Loans v. Desierto, G.R. No. 135715, April 13,
Any asset, property, business enterprise or 2011).
material possession of any person within the
purview of Sec. 2 of RA 7080, acquired by him TERM LIMITS
directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by Term v. Tenure
any combination or series of the following means
or similar schemes: TERM TENURE
1. Through misappropriation, conversion, The time during which the Represent the
misuse, or malversation of public funds or officer may claim to hold period during which
raids on the public treasury the office as a right, and the incumbent
2. By receiving, directly or indirectly, any fixes the interval after actually holds the
commission, gift, share, percentage, kickbacks which the several office;
or any other form of pecuniary benefit from incumbents shall succeed
any person and/or entity in connection with one another;
any government contract or project or by It is not affected by holding It may be shorter
reason of the office or position of the public over of the incumbent after than term.
officer concerned expiration of the term for
3. By the illegal or fraudulent conveyance or which he was appointed or
disposition of assets belonging to the National elected.
Government or any of its subdivisions,
agencies or instrumentalities or government- NOTE: Term of office is different from the right to
hold office. The latter is the just and legal claim to

hold and enjoy the powers and responsibilities of operation of law. Under Sec. 8 of Art. X of the
the office (Casibang v. Aquino,G.R. No. L-38025, Constitution, voluntary renunciation of the office
August 20, 1979). for any length of time shall not be considered as an
interruption in the continuity of his service for the
Kinds of terms full term for which he was elected (Bolos v
COMELEC, G.R. No. 184082, March 17, 2009).
1. Term fixed by law
2. Term dependent on good behavior until Q: Ryan Cristopher was elected City Councilor
reaching retirement age for three consecutive terms. During his last
3. Indefinite term, which terminates at the term, the Sandiganbayan preventively
pleasure of the appointing authority (Borres v. suspended him for 90 days in relation with a
Court of Appeals, G.R. No. L-36845, August 21, criminal case he then faced. The Court,
1998). however, subsequently lifted the suspension
order; hence he resumed performing his
3-Term Limit Rule functions and finished his term. He filed his COC
for the same position. April sought to deny due
The term of office of elective local officials, course to Ryan Cristopher's COC on the ground
except barangay officials, which shall be that he had been elected and he served for
determined by law, shall be three years and no three terms. Is preventive suspension
such official shall serve for more than considered an interruption of the three-term
three consecutive terms. limit rule?
Note: Voluntary renunciation of the office for any A: NO. The intent of the three-term limit rule
length of time shall not be considered as an demands that preventive suspension should not be
interruption in the continuity of his service for the considered an interruption that allows an elective
full term for which he was elected (Section 8, official's stay in office beyond three terms. A
Article X, Philippine Constitution). preventive suspension cannot simply be a term
interruption because the suspended official
For the three-term limit rule for elective local continues to stay in the office although he is barred
government officials to apply, two conditions or from exercising his functions and prerogatives of
requisites must concur, to wit: 1) that the official the office within the suspension period. The best
concerned has been elected for three consecutive indicator of the suspended official's continuity in
terms in the same local government post, and 2) office is the absence of a permanent replacement
that he has fully served three consecutive terms and the lack of authority to appoint one since no
[Lonzanida v. COMELEC, 311 SCRA 602 (1999)]. vacancy exists (Aldovino v. COMELEC, G.R. No.
184836, December 23, 2009).
Rationale for the three-term limit rule
Q: Henry was elected and served as mayor of
To prevent the establishment of political dynasties the Municipality of Digos for terms 1992-1995,
and to enhance the freedom of choice of the people 1995-1998, and 1998-2001. During his third
(Borja, Jr. v. COMELEC, G.R. No. 133495, September term, the Municipality of Digos was converted
3, 1998). into a component city, with the corresponding
cityhood law providing the holdover of elective
Q: For three consecutive terms, Conrad was officials. When Henry filed his COC as mayor for
elected as a Punong Barangay. During his third the 2001 elections, the court declared Henry as
term, he ran for Municipal Councilor. He won disqualified to run as mayor of Digos City for
and later assumed office and served the full violation of the three-term limit rule. Should
term. After serving his term as Muncipal Henry be disqualified?
Councilor, he filed his COC for the position of
Punong Barangay. His opponent filed a Petition A: YES. The conversion of a municipality into a city
for Disqualification on the ground the he had does not constitute an interruption of the
already served the three-term limit for the incumbent officials continuity of service. Henry did
position of PB. Should Conrad be disqualified? involuntarily relinquish his office as municipal
mayor since the said office has been deemed
A: YES. Conrad was serving his third term as PB abolished due to the conversion. However, the very
when he ran for Municipal Councilor and, upon instant he vacated his office as municipal mayor, he
winning, assumed the position, thus, voluntarily also assumed office as city mayor. The elective
relinquishing his office as PB. There was a officials of the Municipality of Digos continued to
voluntary renunciation of office and not one by exercise their powers and functions until elections

2015GOLDEN NOTES
were held for the new city officials. True, the new
city acquired a new corporate existence separate
and distinct from that of the municipality. This
does not mean, however, that for the purpose of
applying the subject Constitutional provision, the
office of the municipal mayor would now be
construed as a different local government post as
that of the office of the city mayor (Abundo v.
COMELEC, G.R.No. 201716, January 08, 2013).
Hold-over
In the absence of an express or implied

constitutional or statutory provision to the
contrary, an officer is entitled to hold office until
his successor is elected or appointed and has
qualified (Lecaroz v. Sandiganbayan, G.R. No.
130872, March 25, 1999).
Term limits of elective officers
1. President 6 years, without re-election

2. Vice President 6 years, with 1 re-election if
consecutive
3. Senators 6 years, with 1 re-election if
consecutive
4. Representative 3 years, with 2 re-elections if
consecutive
5. Local Executive Officials 3 years, with 2 re-
elections if consecutive, in the same position

ADMINISTRATIVE LAW Part that is of general Part that pertains to

nature and common to particular services;
GENERAL PRINCIPLES all, or most, admin proceeds from the
agencies; chiefly but not particular statute
Administrative Law exclusively procedural creating the individual
law. agency
It is a branch of public law fixing the organization
and determines the competence of administrative Kinds of administrative law
authorities, and indicates the individual remedies
for the violation of the rights (Sec. 2(3) of the Admin 1. Statutes setting up administrative authorities.
Code). 2. Body of doctrines and decisions dealing with
the creation, operation, and effect of
Scope of administrative law determinations and regulations of such
administrative authorities.
1. Fixes the administrative operation and 3. Rules, regulations, or orders of such
structure of the government administrative authorities in pursuance of the
2. Executes or enforces that which is entrusted to purposes, for which administrative authorities
administrative authorities (all those public were created or endowed.
officers and organs of the government charged Example: Omnibus Rules Implementing the
with the amplification, application and Labor Code, circulars of Central Monetary
execution of the law) Authority
3. Governs public officers 4. Determinations, decisions, and orders of such
4. Creates administrative officers administrative authorities in the settlement of
5. Provides the remedies to those aggrieved by controversies arising in their particular field.
these agencies Example: Awards of NLRC with respect to
6. Governs Judicial Review money claims of employees
7. Includes rules, regulation, orders and decisions
made by administrative authorities ADMINISTRATIVE BODIES AND AGENCIES
8. Includes the body of judicial doctrines on any
of the above Administrative Agency
Classifications of Administrative Law It is an organ of government, other than a court

and the legislature, which affects the rights of
As to Source private parties either through adjudication or rule
Law that controls Law made by the making.
administrative administrative
authorities authorities Interpretation of the powers of the
Constitution, statutes, General regulations and administrative agencies
judicial decisions, particular
Executive Orders, determinations; Administrative agencies have powers and
Administrative constitute under functions which may be administrative,
Orders,etc. delegations of power investigatory, regulatory, quasi-legislative, or
embodied in statutory quasi-judicial or mix of the five, as may be
administrative law, and conferred by the constitution or by the statute.
imposing and constantly They have in fine only such powers or authority as
expanding body of law. are granted or delegated, expressly or impliedly, by
As to Purpose law. And in determining whether an agency has
Adjective or certain powers, the inquiry should be from the law
Substantive itself. But once ascertained as existing, the
Procedural
Administrative Law authority given should be liberally construed
Administrative Law
Establishes the Derived from same (Soriano v. MTRCB, G.R. No. 165785, April 29, 2009).
procedure which an sources but contents
agency must or may are different in that the Instrumentality
follow in the pursuit of law establishes primary
its legal purpose. rights and duties. It refers to any agency of the National
As to Applicability Government, not integrated within the department
General Special/ particular framework, vested with special functions or
Administrative Law administrative law jurisdiction by law, endowed with some if not all
corporate powers, administering special funds and

2015GOLDEN NOTES
ADMINISTRATIVE LAW
enjoying operational autonomy, usually through a

charter. This term includes regulatory agencies, KINDS
chartered institutions and government-owned or
controlled corporations. (United Residents of Kinds of administrative bodies or agencies
Dominican Hills v. Commission on the Settlement of
Land Problems, G.R. No. 135945, March 7, 2001). The common kinds of administrative agencies have
been classified according to their purpose
Agency 1. Those created to function in situations
wherein the government is offering some
Any of the various units of the government, gratuity, grant, or special privilege
including a department, bureau, office, Example: GSIS, SSS, PAO
instrumentality, or government-owned or 2. Those set up to function in situations wherein
controlled corporations, or a local government or a the government is seeking to carry on certain
distinct unit therein (Sec.2, Introductory Provisions, functions of government
E.O. No. 292 Administrative Code of 1987). Example: BIR, BOC, BOI
3. Those set up in situations wherein the
Department government is performing some business
service for the public
It refers to an executive department created by law Example: PNR, MWSS, NFA, NHA
(Sec. 2(7), Introductory Provisions, E.O. No. 292 4. Those set up to function in situations wherein
Administrative Code of 1987). the government is seeking to regulate
businesses imbued with public interest
Bureau Example: Insurance Commission, LTFRB, NTC
5. Those set up to function in situations wherein
Any principal subdivision or unit of any the government is seeking under the police
department (Sec. 2(8), Introductory Provisions, E.O. power to regulate private businesses and
No. 292 Administrative Code of 1987). individuals
Example: SEC, MTRCB
Office 6. Those agencies set up to function in situations
wherein the government is seeking to adjust
It refers, within the framework of governmental individual controversies because of some
organization, to any major functional unit of a strong social policy involved
department or bureau including regional offices. It Example: NLRC, ECC, SEC
may also refer to any position held or occupied by
individual persons, whose functions are defined by POWERS OF ADMINISTRATIVE AGENCIES
law or regulation (Sec. 2(9), Introductory
Provisions, E.O. No. 292 Administrative Code of Administrative power or function
1987).
Those which involve the regulation and control
MANNER OF CREATION over the conduct and affairs of individuals for their
own welfare and the promulgation of rules and
Manner of creation regulations to better carry out the policy of the
legislature or such as are devolved upon the
By: administrative agency by the organic law of its
1. Constitutional provision existence (In re: Rodolfo U. Manzano, A.M. No. 88-7-
2. Authority of law 1861-RTC, Oct. 5, 1988).
3. Legislative enactment
Powers of administrative agencies
Reasons for the creation of administrative
agencies 1. Discretionary the law imposes a duty upon a
public officer, and gives him the right to decide
To: how or when the duty shall be performed.
1. Help unclog court dockets 2. Ministerial is one which is as clear and
2. Meet the growing complexities of modern specific as to leave no room for the exercise of
society discretion in its performance.
3. Help in the regulation of ramified activities of a
developing country

Basic powers of administrative agencies Legislative v. Quasi-legislative power
1. Quasi-legislative power or rule-making power LEGISLATIVE QUASI-LEGISLATIVE

2. Quasi-judicial or adjudicatory power Involves the
Determinative power Involves the discretion
3. discretion to
to determine what the
determine how the
Quasi-legislative v. Quasi-judicial power law shall be
law shall be enforced
Cannot be delegated Can be delegated
QUASI-LEGISLATIVE QUASI-JUDICIAL
Operates on the future Operates based on Limitations to the exercise of quasi-legislative
past facts power
Has general application Has particular
application (applies 1. It must be within the limits of the powers
only to the parties granted to administrative agencies.
involved in a dispute) 2. Cannot make rules or regulations which are
Issuance pursuant to Issuance pursuant to inconsistent with the provision of the
the exercise of quasi- the exercise of quasi- Constitution or statute.
legislative power may judicial power may, as 3. Cannot defeat the purpose of the statute.
be assailed in court a rule, only be 4. May not amend, alter, modify, supplant,
without subscribing to challenged in court enlarge, or limit the terms of the statute.
the doctrine of with prior exhaustion 5. A rule or regulation must be uniform in
exhaustion of of administrative operation, reasonable and not unfair or
administrative remedies. discriminatory.
remedies (DEAR).
A valid exercise of A valid exercise of Administrative rule
quasi-legislative power quasi-judicial power
does not require prior requires prior notice Any agency statement of general applicability,
notice and hearing and hearing (except which implements or interprets a law fixes and
(except when the law when the law does not describes procedures in, or practice requirements
requires it). require it). of, an agency, including its regulations. The term
An issuance pursuant An issuance pursuant includes memoranda or statements concerning the
to the exercise of quasi- to the exercise of internal administration or management of an
legislative power may quasi-judicial function agency not affecting the rights of, or procedure
be assailed in court is appealed to the available to the public (Section 2 (2), Administrative
through an ordinary Court of Appeals via Code of 1987).
action. petition for review
(Rule 43). Source of the power to promulgate
administrative rules and regulations
Non-similarity of functions and powers of
administrative agencies The power to promulgate regulations is derived
from the legislature, by virtue of a valid delegation,
Not all administrative agencies perform the same either expressed or implied.
functions or exercise the types of powers. While
some act merely as investigative or advisory Doctrine of Subordinate Legislation
bodies, most administrative agencies have
investigative, rule-making, and determinative Power of administrative agency to promulgate
functions, or at least two of such functions. rules and regulations on matters within their own
specialization.
QUASI-LEGISLATIVE (RULE-MAKING) POWER
Reason behind the delegation
Quasi-legislative power/Rule-Making
It is well established in this jurisdiction that, while
The exercise of delegated legislative power, the making of laws is a non-delegable activity that
involving no discretion as to what the law shall be, corresponds exclusively to Congress, nevertheless
but merely the authority to fix the details in the the latter may constitutionally delegate authority
execution or enforcement of a policy set out in the to promulgate rules and regulations to implement
law itself. a given legislation and effectuate its policies, for
the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and

2015GOLDEN NOTES
ADMINISTRATIVE LAW
provide for the multifarious and complex Commission on Audit, G.R. No. 132593, June 25,
situations that may be met in carrying the law into 1999).
effect. All that is required is that the regulation
should be germane to the objects and purposes of Exceptions to the requirement of publication
the law; that the regulation be not in contradiction
with it, but conform to the standards that the law 1. Interpretative regulations
prescribes (People of the Philippines v. Exconde, G.R. 2. Internal regulations
No. L-9820, August 30, 1957). 3. Letters of instructions (Taada v. Tuvera G.R.
No. L-63915, December 29, 1986)
Non-applicability of notice and hearing in the
issuance of an administrative rule or regulation Effectivity of administrative rules
GR: An administrative body need not comply with GR: Administrative rules take effect depending on
the requirements of notice and hearing, in the the date provided by it.
performance of its executive or legislative
functions, such as issuing rules and regulations XPN: If the administrative rule is silent, after 15
(Corona v. United Harbor Pilots Association of the days following the completion of their publication
Philippines, G.R. No. 111963, December 12, 1997).
Penal sanctions in administrative rules and
XPNs: regulations
The legislature itself requires it and mandates that
the regulation shall be based on certain facts as Administrative agencies may promulgate rules
determined at an appropriate investigation (Hon. with penal sanctions provided the following
Executive Secretary, et.al. v. Southwing Heavy requisites are complied with:
Industries, Inc., et.al., G.R. No. 164171, August 22, 1. The law must declare the act punishable;
2006). 2. The law must define the penalty;
3. The rules must be published in the Official
The administrative rule goes beyond merely Gazette or in a newspaper of general
providing for the means that can facilitate or circulation (The Hon. Secretary Vincent S. Perez
render least cumbersome the implementation of v. LPG Refillers Association of the Philippines,
the law but substantially adds to or increases the G.R. No. 159149, June 26, 2006).
burden of those governed, it behooves the agency
to accord at least to those directly affected a chance Authority of administrative officers to interpret
to be heard, and to be duly informed, before that the law
new issuance is given the force and effect of law
(Commissioner of Internal Revenue v. CA, G.R. No. Administrative officers tasked to implement the
11976, August 26, 1996). law are also authorized to interpret it because they
have the expertise to do so.
Filing of copies of administrative rules and
regulations before the UPLC Contemporaneous construction
Sec. 3 of the Administrative Code of 1987 expressly The construction placed upon the statute by an
requires each agency to file with the Office of the executive or administrative officer called upon to
National Administrative Register (ONAR) of the execute or administer such statute.
University of the Philippines Law Center three
certified copies of every rule adopted by it. These interpretative regulations are usually in the
Administrative issuances which are not published form of circulars, directives, opinions, and rulings.
or filed with the ONAR are ineffective and may not
be enforced (GMA v. MTRCB, G.R. No. 148579, Effect of administrative interpretations to
February 5, 2007). courts
Publication requirement Contemporaneous constructions are not binding

upon the courts. Such interpretations of
Publication is required as a condition precedent to administrative officers, however, are given great
the effectivity of a law to inform the public of the weight unless such construction is clearly shown to
contents of the law or rules and regulations before be in sharp contrast with the governing law of the
their rights and interests are affected by the same state (Nestle Philippines Inc. v. CA, G.R. No. 86738,
(Philippine International Trading Corporation v. November 13, 1991).

KINDS OF ADMINISTRATIVE RULES AND Racing Commission G.R. No. 175220, February 12,
REGULATIONS 2009).
Kinds of administrative rules and regulations QUASI-JUDICIAL (ADJUDICATORY) POWER
1. Supplementary or detailed legislation Quasi-judicial power

2. Interpretative legislation
3. Contingent legislation Power of administrative authorities to make
4. Procedural determinations of facts in the performance of their
5. Interpretative official duties and to apply the law as they construe
6. Internal it to the facts so found. It partakes the nature of
7. Penal judicial power, but is exercised by a person other
than a judge.
Administrative issuances may be distinguished
according to their nature and substance: Limited jurisdiction of quasi-judicial agencies
1. Legislative Rule It is in the matter of An administrative body to which quasi-judicial

subordinate legislation, designed to implement power has been delegated is a tribunal of limited
a primary legislation by providing the details jurisdiction and as such it could wield only such
thereof. powers as are specifically granted to it by its
2. Interpretative rule It is designed to provide enabling statute. Its jurisdiction is interpreted
guidelines to the law which the administrative strictissimi juris.
agency is in charge of enforcing (BPI Leasing v.
Court of Appeals, G.R. No. 127624, November 18, Conditions for the proper exercise of quasi-
2003). judicial power
REQUISITES FOR VALIDITY 1. Jurisdiction must be properly acquired by the

administrative body;
Requisites for a valid delegation of quasi- 2. Due process must be observed in the conduct
legislative or rule-making power of the proceedings.
1. The statute is complete in itself, setting forth Classifications of adjudicatory powers

the policy to be executed by the agency
(Completeness test); and 1. Enabling powers Permits the doing of an act
2. Said statute fixes a standard, mapping out the which the law undertakes to regulate and
boundaries of the agencys authority to which which would be unlawful without
it must conform (Sufficient standard test) governmental orders. It is characterized by the
grant or denial of permit or authorization
NOTE: A law is complete when it sets forth therein Example: Issuance of licenses to engage in a
the policy to be executed, carried out or particular business.
implemented by the delegate. 2. Directing powers Orders the doing or
performing of particular acts to ensure the
It lays down a sufficient standard when it compliance with the law and are often
provides adequate guidelines or limitations in the exercised for corrective purposes.
law to map out the boundaries of the delegates Example: public utility commissions, powers of
authority and prevent the delegation from running assessment under the revenue laws,
riot. To be sufficient, the standard must specify the reparations under public utility laws, and
limits of the delegates authority, announce the awards under workmens compensation laws,
legislative policy and identify the conditions under and powers of abstract determination such as
which it is to be implemented (ABAKADA Guro definition-valuation, classification and fact
Party List v. Purisima, G.R. No. 166715, August 14, finding
2008). 3. Dispensing powers Exemplified by the
authority to exempt from or relax a general
The administrative body may not make rules and prohibition, or authority to relieve from an
regulations which are inconsistent with the affirmative duty. Its difference from licensing
provisions of the Constitution or a statute, power is that dispensing power sanctions a
particularly the statute it is administering or which deviation from a standard
created it, or which are in derogation of, or defeat, 4. Summary powers Those that apply
the purpose of a statute (Dagan, et.al. v. Philippine compulsion or force against person or

2015GOLDEN NOTES
ADMINISTRATIVE LAW
property to effectuate a legal purpose without reason for such decision (AngTibay v. CIR, G.R.
a judicial warrant to authorize such action. No. L-46496, February 27, 1940).
Example: Abatement of nuisance, summary
restraint, levy of property of delinquent NOTE: The essence of due process in
taxpayers administrative proceedings is the opportunity to
5. Equitable powers Pertain to the power to explain ones side or seek a reconsideration of the
determine the law upon a particular state of action or ruling complained of. As long as the
facts has the right to, and must, consider and parties are given the opportunity to be heard
make proper application of the rules of equity. before judgment is rendered, the demands of due
Example: Power to appoint a receiver, power process are sufficiently met. What is offensive to
to issue injunctions due process is the denial of the opportunity to be
6. Examining This is also called as investigatory heard (Flores v. Montemayor, G.R. No. 170146, June
power. It requires production of books, papers, 6, 2011).
etc., the attendance of witnesses and
compelling the testimony. Effect of non-observance of notice and hearing
ADMINISTRATIVE DUE PROCESS As a rule, it will invalidate the administrative

proceedings. A failure to comply with the
Nature of administrative proceedings requirements may result in a failure to acquire
jurisdiction.
It is summary in nature.
NOTE: Right to notice may be waived.
Inapplicability of technical rules of procedure
and evidence in administrative proceedings Q: Does administrative due process always
entail notice and hearing prior to the
The technical rules of procedure and of evidence deprivation of a right?
prevailing in courts of law and equity are not
controlling in administrative proceedings to free A: NO. A hearing may occur after the deprivation.
administrative boards or agencies from the What the law prohibits is not the absence of
compulsion of technical rules so that the mere previous notice but the absolute absence thereof
admission of matter which would be deemed and the lack of opportunity to be heard.
incompetent in judicial proceedings would not
invalidate an administrative order. NOTE: There has been no denial of due process if
any irregularity in the premature issuance of the
NOTE: The rules of procedure of quasi-judicial assailed decision has been remedied by an order
bodies shall remain effective unless disapproved giving the petitions the right to participate in the
by the Supreme Court. hearing of the MR. The opportunity granted by,
technically, allowing petitioners to finally be able
Cardinal requirements of due process in to file their comment in the case, resolves the
administrative proceedings procedural irregularity previously inflicted upon
petitioners (Nasecore v. ERC, G.R. No. 190795, July 6,
1. Right to a hearing which includes the right to 2011).
present ones case and submit evidence in
support. Exceptions to the Requirement of notice and
2. The tribunal must consider the evidence hearing
presented.
3. The decision must be supported by evidence. 1. Urgency of immediate action
4. Such evidence must be substantial. 2. Tentativeness of administrative action
5. The decision must be based on the evidence 3. Grant or revocation of licenses or permits to
presented at the hearing or at least contained operate certain businesses affecting public
in the record, and disclosed to the parties order or morals
affected. 4. Summary abatement of nuisance per se which
6. The tribunal or body of any of its judges must affects safety of persons or property
act on its own independent consideration of 5. Preventive suspension of public officer or
the law and facts of the controversy in arriving employee facing administrative charges
at a decision. 6. Cancellation of a passport of a person sought
7. The board or body should render decision that for criminal prosecution
parties know the various issues involved and 7. Summary proceedings of distraint and levy
upon property of a delinquent taxpayer

8. Replacement of a temporary or acting officer or body subject to appeal, review or

appointee redetermination by another officer or body in
9. Right was previously offered but not claimed the same agency or in the same administrative
system.
Inapplicability of the right to counsel in 3. In which the statute makes or attempts to
administrative inquiries make a court a part of the administrative
scheme by providing in terms or effect that the
The right to counsel which may not be waived, court, on review of the action of an
unless in writing and in the presence of counsel, as administrative agency.
recognized by the Constitution, is a right of a 4. In which the statute provides that an order
suspect in a custodial investigation. It is not an made by a division of a commission or board
absolute right and may, thus, be invoked or has the same force and effect as if made by the
rejected in criminal proceeding and, with more subject to a rehearing by the commission.
reason, in an administrative inquiry (Lumiqued v. 5. In which the statute provides for an appeal to
Exevea, G.R No. 117565, Nov. 18, 1997). an officer on an appeal to the head of the
department or agency.
Quantum of proof required in administrative 6. Embraced in statutes which provide for appeal
proceedings at the highest level namely, the president (De
Leon, page 311).
Only substantial evidence that amount of relevant
evidence that a reasonable mind might accept as Enforcement of administrative decisions
adequate to support a conclusion.
1. As provided for by law
ADMINISTRATIVE APPEAL AND REVIEW 2. Through the courts intervention
Administrative appeal ADMINISTRATIVE RES JUDICATA
Review by a higher agency of decisions rendered Non-applicability of the doctrine of res judicata
by an administrative agency, commenced by
petition of an interested party. The doctrine of res judicata applies only to judicial
or quasi-judicial proceedings and not to the
NOTE: Under the 1987 Administrative Code, exercise of purely administrative functions.
administrative appeals from a decision of an Administrative proceedings are non-litigious and
agency are taken to the Department Head, unless summary in nature; hence, res judicata does not
such appeal is governed by a special law. apply (Nasipit Lumber Company, Inc. v. NLRC, G.R.
No. 54424, August 31, 1989).
Administrative review
Exceptions to the non-applicability of res
Administrative appeals are not the only way by judicata in administrative proceedings
which a decision of an administrative agency may
be reviewed. A superior officer or department 1. Naturalization proceedings or those involving
head may upon his or her own volition review a citizenship and immigration;
subordinates decision pursuant to the power of 2. Labor relations
control. 3. Family relations, personal status or condition,
and capacity of persons
Administrative reviews by a superior officer are,
however, subject to the caveat that a final and NOTE: It is well settled that findings of fact of
executory decision is not included within the quasi-judicial agencies, such as the COA, are
power of control, and hence can no longer be generally accorded respect and even finality by this
altered by administrative review. Court, if supported by substantial evidence, in
recognition of their expertise on the specific
Different kinds of administrative appeal and matters under their jurisdiction (Reyna v.
review Commission on Audit, G.R. No. 167219, February 8,
2011).
That:
1. Which inheres in the relation of administrative
superior to administrative subordinate
2. Embraced in statutes which provide for
determination to be made by a particular

2015GOLDEN NOTES
ADMINISTRATIVE LAW
FACT-FINDING, INVESTIGATIVE, LICENSING Investigatory power

AND RATE-FIXING POWERS
Power to inspect, secure, or require the disclosure
Fact-finding power of information by means of accounts, records,
reports, statements and testimony of witnesses.
A statute may give to non-judicial officers: This power is implied and not inherent in
a) Power to declare the existence of facts administrative agencies.
which call into operation its provisions;
and Q: Is the power to issue subpoena inherent in
b) Power to ascertain and determine administrative bodies?
appropriate facts as a basis for procedure
in the enforcement of particular laws A: NO. It is settled that these bodies may summon
(Lovina v. Moreno, G.R. No. L-17821, witnesses and require the production of evidence
November 21, 1963). only when duly allowed by law, and always only in
connection with the matter they are authorized to
NOTE: The mere fact that an officer is required by investigate.
law to inquire the existence of certain facts and to
apply the law thereto in order to determine what Q: Do administrative agencies have the
his official conduct shall be. The fact that these acts inherent power to declare persons in
may affect private rights do not constitute an contempt?
exercise of judicial powers (Ibid.).
A: NO. The power to punish for contempt is not an
Exceptions to the rule that findings of facts of inherent right by the administrative body. It must
administrative agencies are binding on the be expressly conferred upon by the body, and
courts additionally, must be used only in connection with
its quasi-judicial as distinguished from its purely
1. Findings are vitiated by fraud, imposition, or administrative or routinary functions.
collusion
2. Procedure which led to factual findings is NOTE: If there is no express grant, the agency must
irregular invoke the aid of the RTC.
3. Palpable errors are committed
4. Factual findings not supported by evidence Q: May administrative agencies issue warrants
5. Grave abuse of discretion, arbitrariness, or of arrest or administrative searches?
capriciousness is manifest
6. When expressly allowed by statute; and A: GR: No. Under the 1987 Constitution, only a
7. Error in appreciation of the pleadings and in judge may issue warrants.
the interpretation of the documentary
evidence presented by the parties XPN: In cases of deportation of illegal and
undesirable aliens, whom the President or the
Q: Does a fact-finding quasi-judicial body have Commissioner of Bureau of Immigration and
the power to take into consideration the result Deportation may order arrested following a final
of its own observation and investigation of the order of deportation (Salazar v. Achacoso, G.R. No.
matter submitted to it for decision? 81510, March 14, 1990).
A: YES. A fact-finding quasi-judicial body (e.g., Land Licensing power

Transportation Franchising and Regulatory Board)
whose decisions (on questions regarding The action of an administrative agency in granting
certificate of public convenience) are influenced or denying, or in suspending or revoking, a license,
not only by the facts as disclosed by the evidence in permit, franchise, or certificate of public
the case before it but also by the reports of its field convenience and necessity.
agents and inspectors that are periodically
submitted to it, has the power to take into License
consideration the result of its own observation and
investigation of the matter submitted to it for Includes the whole or any part of any agencys
decision, in connection with other evidence permit, certificate, passport, clearance, approval,
presented at the hearing of the case (Pantranco registration, charter, membership, statutory
South Express, Inc. v Board of Transportation, G.R. exemption or other form of permission, or
No. L-49664, November 22, 1990). regulation of the exercise of a right or privilege

(Sec. 2(10), Administrative Procedure, 1987 found more advantageous to place the
Administrative Code). performance of these functions in some
administrative agency. The reason is that the
Licensing legislature has not the time, the knowledge or the
means necessary to handle adequately these
Includes agency process involving the grant, matters. The needs for dispatch, for flexibility and
renewal, denial, revocation, suspension, for technical know-how is better met by entrusting
annulment, withdrawal, limitation, amendment, the rate-fixing to an agency other than the
modification or conditioning of a license (Sec. legislature itself (Cortes, 1963).
2(11), Administrative Procedure, 1987
Administrative Code). Rate-fixing procedure
NOTE: Except in cases of willful violation of The administrative agencies perform this function
pertinent laws, rules and regulations or when either by issuing rules and regulations in the
public security, health, or safety requires exercise of their quasi-legislative power or by
otherwise, no license may be withdrawn, issuing orders affecting a specified person in the
suspended, revoked or annulled without notice and exercise of its quasi-judicial power.
hearing (Sec. 17(2), Administrative Procedure, 1987
Administrative Code). NOTE: In the fixing of rates, no rule or final order
shall be valid unless the proposed rates shall have
Nature of an administrative agencys act if it is been published in a newspaper of general
empowered by a statute to revoke a license for circulation at least 2 weeks before the first hearing
non-compliance or violation of agency thereon (Sec. 9(2), Administrative Procedure, 1987
regulations Administrative Code).
Where a statute empowers an agency to revoke a Requirements for the delegation of the power
license for non-compliance with or violation of to ascertain facts to be valid
agency regulations, the administrative act is of a
judicial nature, since it depends upon the The law delegating the power to determine some
ascertainment of the existence of certain past or facts or state of things upon which the law may
present facts upon which a decision is to be made take effect or its operation suspended must
and rights and liabilities determined. provide the standard, fix the limits within which
the discretion may be exercised, and define the
Rate conditions therefor. Absent these requirements,
the law and the rules issued thereunder are void,
It means any charge to the public for a service open the former being an undue delegation of legislative
to all and upon the same terms, including power and the latter being the exercise of rule-
individual or joint rates, tolls, classification or making without legal basis (U.S. v. Ang Tang Ho,
schedules thereof, as well as communication, G.R. No. L-17122, February 27, 1992).
mileage, kilometrage and other special rates which
shall be imposed by law or regulation to be Q: In case of a delegation of rate-fixing power,
observed and followed by a person (Sec. 2(3), what is the only standard which the legislature
Administrative Procedure, 1987 Administrative is required to prescribe for the guidance of
Code). administrative authority?
Rate-fixing power A: That the rate be reasonable and just (American

Tobacco Co. v Director of Patents, G.R. No. L-26803,
Power usually delegated by the legislature to October 14, 1975).
administrative agencies for the latter to fix the
rates which public utility companies may charge Q: In the absence of an express requirement as
the public. to reasonableness, may the standard be
implied?
NOTE: The power to fix rates is essentially
legislative but may be delegated (Philippine Inter- A: YES. In any case, the rates must both be non-
Island v. CA, G.R. No. 100481, January 22, 1997). confiscatory and must have been established in the
manner prescribed by the legislature. Even in the
The legislature may directly provide for these absence of an express requirement as to
rates, wages, or prices. But while the legislature reasonableness, this standard may be implied. A
may deal directly with these subjects, it has been rate-fixing order, temporary or provisional though

2015GOLDEN NOTES
ADMINISTRATIVE LAW
it may be, is not exempt from the procedural Requisites of judicial review of administrative
requirements of notice and hearing when action
prescribed by statute, as well as the requirement of
reasonableness (Philippine Communications 1. Administrative action must have been
Satellite Corporation v. NTC, G.R. No. 84818, completed (principle of finality of
December 18, 1989). administrative action); and
2. Administrative remedies must have been
Q: May the delegated power to fix rates be re- exhausted (principle of exhaustion of
delegated? administrative remedies.)
A: The power delegated to an administrative Limitations on judicial review

agency to fix rates cannot, in the absence of a law
authorizing it, be delegated to another. This is 1. Final and executory decisions cannot be made
expressed in the maxim, potestas delagata non the subject of judicial review.
delegari potest (Kilusang Mayo Uno Labor Center v. 2. Administrative acts involving a political
Garcia, Jr., G.R. No. 115381, December 23, 1994). question are beyond judicial review, except
when there is an allegation that there has been
POWER TO FIX RATES POWER TO FIX RATE grave abuse of discretion.
EXERCISED AS A EXERCISED AS A 3. Courts are generally bound by the findings of
LEGISLATIVE QUASI-JUDICIAL fact of an administrative agency.
FUNCTION FUNCTION
Where the rules and/or Where the rules and the NOTE: Courts will not render a decree in advance
rates laid down are rate imposed apply of administrative action. Such action would be
meant to apply to all exclusively to a rendered nugatory.
enterprises of a given particular party, based
kind throughout the upon a finding of fact It is not for the court to stop an administrative
country officer from performing his statutory duty for fear
The giving of prior Prior notice and hearing that he will perform it wrongly.
notice and hearing to are essential to the
the affected parties is validity of such rates. Doctrine of Ripeness for Review
not a requirement of But an administrative
due process, except agency may be It is similar to that of exhaustion of administrative
where the legislature empowered by law to remedies except that it applies to the rule-making
itself requires it. approve provisionally, power and to administrative action which is
when demanded by embodied neither in rules and regulations nor in
urgent public need, rates adjudication or final order.
of public utilities
without a hearing. Purpose of the doctrine of ripeness of review
JUDICIAL RECOURSE AND REVIEW 1. To prevent the courts, through avoidance of

premature adjudication, from entangling
Judicial review themselves in abstract disagreements over
administrative policies
Re-examination or determination by the courts in 2. To protect the agencies from judicial
the exercise of their judicial power in an interference until an administrative decision
appropriate case instituted by a party aggrieved has been formalized and its effects felt in a
thereby as to whether the questioned act, rule, or concrete way by the challenging parties
decision has been validly or invalidly issued or (Abbott Laboratories v. Gardner, 387 U.S. 136,
whether the same should be nullified, affirmed or 1967).
modified.
Application of the doctrine of ripeness of
review
NOTE: The mere silence of the law does not
necessarily imply that judicial review is
1. When the interest of the plaintiff is subjected
unavailable.
to or imminently threatened with substantial
injury.
2. If the statute is self-executing.

3. When a party is immediately confronted with 2. Question requires determination of technical

the problem of complying or violating a statute and intricate issues of a fact;
and there is a risk of criminal penalties. 3. Uniformity of ruling is essential to comply with
4. When plaintiff is harmed by the vagueness of purposes of the regulatory statute
the statute. administered
Two tests to determine whether a controversy NOTE: In such instances, relief must first be
is ripe for adjudication obtained in administrative proceeding before a
remedy will be supplied by the courts even though
1. Fitness of the issue for judicial decision the matter is within the proper jurisdiction of a
2. Hardship to the parties of withholding court court. The judicial process is accordingly
consideration (Abbott Laboratories v. Gardner, suspended pending referral of the claim to the
Ibid.) administrative agency for its view.
Questions reviewable by the courts Rationale for the doctrine:
1. Questions of fact 1. To take full advantage of administrative

GR: Courts will not disturb the findings of expertness; and
administrative agencies acting within the 2. To attain uniformity of application of
parameters of their own competence, special regulatory laws which can be secured only if
knowledge, expertise, and experience. The determination of the issue is left to the
courts ordinarily accord respect if not finality administrative body
to factual findings of administrative tribunals.
Instances where the doctrine finds no
XPN: If findings are not supported by application
substantial evidence.
1. By the court's determination, the legislature
2. Questions of Law administrative decisions did not intend that the issues be left solely to
may be appealed to the courts independently the initial determination of the administrative
of legislative permission. It may be appealed body.
even against legislative prohibition because 2. The issues involve purely questions of law.
the judiciary cannot be deprived of its inherent 3. Courts and administrative bodies have
power to review all decisions on questions of concurrent jurisdiction.
law.
3. Mixed (law and fact) when there is a mixed Exceptions to the Doctrine of Primary
question of law and fact and the court cannot Jurisdiction
separate the elements to see clearly what and
where the mistake of law is, such question is 1. Where there is estoppel on the part of the
treated as question of fact for purposes of party invoking the doctrine
review and the courts will not ordinarily 2. Where the challenged administrative act is
review the decision of the administrative patently illegal, amounting to lack of
tribunal.
jurisdiction
3. Where there is unreasonable delay or official
DOCTRINE OF PRIMARY ADMINISTRATIVE
JURISDICTION inaction that will irretrievably prejudice the
complainant
Doctrine of Primary Jurisdiction or Doctrine of 4. Where the amount involved is relatively small
Prior Resort so as to make the rule impractical and
oppressive
Under the principle of primary jurisdiction, courts 5. Where the question involved is purely legal
cannot or will not determine a controversy and will ultimately have to be decided by the
involving question within the jurisdiction of an courts of justice
administrative body prior to the decision of that 6. Where judicial intervention is urgent
question by the administrative tribunal where the: 7. When its application may cause great and
irreparable damage
1. Question demands administrative
8. Where the controverted acts violate due
determination requiring special knowledge,
experience and services of the administrative process
tribunal;

2015GOLDEN NOTES
ADMINISTRATIVE LAW
9. When the issue of non-exhaustion of her favor effective for 20 days. Cindy Wata,
administrative remedies has been rendered another member of the board, questioned the
moot jurisdiction of the RTC over the subject matter,
10. When there is no other plain, speedy and for it should be the National Electrification
adequate remedy Administration (NEA) which has the
11. When strong public interest is involved jurisdiction over the matter. Does the NEA have
primary jurisdiction over the question of the
12. In quo warranto proceedings (The Province of
validity of the Board Resolution issued by
Aklan v. Jody King Construction and
NUVELCO?
Development Corp., G.R. Nos. 197592 & 202623,
November 27, 2013) A: Yes, pursuant to Subsection (a), Sec. 24, Chapter
III of PD 269 as amended by Sec. 7, PD 1645 clearly
Q: Can the court motu proprio raise the issue of
shows that, pursuant to its power of supervision
primary jurisdiction?
and control, NEA is granted the authority to
conduct investigations and other similar actions as
A: YES. The court may motu proprio raise the issue
well as to issue orders, rules and regulations with
of primary jurisdiction and its invocation cannot be
respect to all matters affecting electric
waived by the failure of the parties to argue it, as
cooperatives. In addition, while the RTC has
the doctrine exists for the proper distribution of
jurisdiction over the petition for prohibition, the
power between judicial and administrative bodies
NEA, in its exercise of its power of supervision and
and not for the convenience of the parties. In such
control, has primary jurisdiction to determine the
case the court may:
issue of the validity of the subject resolution
1. Suspend the judicial process pending referral
(SAMELCO II et. al. v. Seludo Jr., G.R. No. 173840,
of such issues to the administrative body for its
April 25, 2012).
review, or
2. If the parties would not be unfairly
Q: A civil case for the collection of sum of
disadvantaged, dismiss the case without
money was filed by X Company against the
prejudice (Euro-Med Laboratories Phil. v.
province of Batangas before the RTC. After the
Province of Batangas, G.R No. 148106, July 17,
petitioners presentation of evidence, the
2006).
province of Batangas moved for the dismissal of
the case on the ground that it is the Commission
Q: Does the doctrine of primary jurisdiction on Audit which has primary jurisdiction over
apply to cases involving justiciable question? the matter for it involves transactions with the
province which was governed by the Local
A: YES. In recent years, it has been the Government Code provisions and COA rules and
jurisprudential trend to apply this doctrine to cases regulations on supply and property
involving matters that demand the special management in local governments. Is the
competence of administrative agencies even if the contention of the province of Batangas correct?
question involved is also judicial in character. It
applies "where a claim is originally cognizable in A: YES. It is the COA and not the RTC which has
the courts, and comes into play whenever primary jurisdiction to pass upon petitioners
enforcement of the claim requires the resolution of money claim against respondent local government
issues which, under a regulatory scheme, have unit. Such jurisdiction may not be waived by the
been placed within the special competence of an parties failure to argue the issue nor active
administrative body; in such case, the judicial participation in the proceedings. The doctrine of
process is suspended pending referral of such primary jurisdiction holds that if a case is such that
issues to the administrative body for its view its determination requires the expertise,
(Villaflor v. Court of Appeals, G.R. No. 95694, October specialized training and knowledge of an
9, 1997). administrative body, relief must first be obtained in
an administrative proceeding before resort to the
Q: Amanda Kila is one of Nueva Vizcaya Electric courts is had even if the matter may well be within
Cooperative Inc. (NUVELCO) Board of Directors. their proper jurisdiction. It applies where a claim is
The board issued a resolution disallowing her originally cognizable in the courts and comes into
to attend meetings effective immediately until play whenever enforcement of the claim requires
the end of her term. She was also disqualified the resolution of issues which, under a regulatory
for one term to run as candidate for director in scheme, have been placed within the special
the upcoming district elections. She filed an competence of an administrative agency. In such a
Urgent Petition for Prohibition against case, the court in which the claim is sought to be
NUVELCO with the RTC and it was granted in enforced may suspend the judicial process pending

referral of such issues to the administrative body 7. When the subject matter is a private land case
for its view or, if the parties would not be unfairly proceedings
disadvantaged, dismiss the case without prejudice 8. When it would be unreasonable
(Euro-Med Laboratories Phil. Inc. v. Province of 9. When no administrative review is provided by
Batangas, G.R. No. 148106, July 17, 2006). law
10. When the rule does not provide a plain,
DOCTRINE OF EXHAUSTION OF speedy, and adequate remedy
ADMINISTRATIVE REMEDIES 11. When the issue of non-exhaustion of
administrative remedies has been rendered
Doctrine of Exhaustion of Administrative moot
Remedies 12. When there are circumstances indicating the
urgency of judicial intervention
It calls for resorting first to the appropriate 13. When it would amount to a nullification of a
administrative authorities in the resolution of a claim; and
controversy falling under their jurisdiction and 14. Where the rule of qualified political agency
must first be appealed to the administrative applies (Laguna CATV Network v. Maraan, G.R.
superiors up to the highest level before the same No. 139492, November 19, 2002).
may be elevated to the courts of justice for review.
Effect of non-exhaustion of administrative
The premature invocation of court intervention is remedies
fatal to ones cause of action. Exhaustion of
administrative remedies is a prerequisite for Failure to observe the doctrine of exhaustion of
judicial review; it is a condition precedent which administrative remedies does not affect the
must be complied with. jurisdiction of the Court. The only effect of non-
compliance with this rule is that it will deprive the
Reasons for the doctrine complainant of a cause of action, which is a ground
for a motion to dismiss. If not invoked at the
1. To enable the administrative superiors to proper time, this ground is deemed waived and the
correct the errors committed by their court can take cognizance of the case and try it
subordinates. (Republic of the Philippines v. Sandiganbayan, G.R.
2. Courts should refrain from disturbing the Nos. 112708-09, March 29, 1996).
findings of administrative bodies in deference
to the doctrine of separation of powers. Q: Is non-compliance with the doctrines of
3. Courts should not be saddled with the review primary jurisdiction or exhaustion of
of administrative cases. administrative remedies a jurisdictional
4. Judicial review of administrative cases is defect?
usually effected through special civil actions
which are available only if there is no other A: NO. Non-compliance with the doctrine of
plain, speedy, and adequate remedy. primary jurisdiction or doctrine of exhaustion of
5. To avail of administrative remedy entails administrative remedies is not jurisdictional for
lesser expenses and provides for a speedier the defect may be waived by a failure to assert the
disposition of controversies. same at the earliest opportune time.
Exceptions to the application of the doctrine Q: Alicia Water District (ALWAD), a GOCC that
operates water utility services conducted
1. Violation of due process public hearing for the purpose of increasing the
2. When there is estoppel on the part of the water rate. They subsequently received a letter
administrative agency concerned from the Local Water Utilities Administration
3. When the issue involved is a purely legal (LWUA) confirming the proposed water rates.
question ALWAD issued a resolution implementing the
4. When there is irreparable injury water rate increase of P90 for the first ten cubic
5. When the administrative action is patently meters of water consumption. Because of this,
illegal amounting to lack or excess of consumers filed a Petition for Injunction
jurisdiction against the petitioner before the RTC alleging
6. When the respondent is a Department that ALWAD violated LOI 700 by implementing
Secretary whose acts as an alter ego of the a rate increase greater than 60% of current
President bears the implied and assumed rate and failing to conduct public hearing for
approval of the latter the imposed rate of 90. ALWAD filed a Motion
to Dismiss for failure to exhaust administrative

2015GOLDEN NOTES
ADMINISTRATIVE LAW
remedy under PD 198 as amended. One of the validity of the OPs decision on the merits of the
respondents then questioned the legality of the dismissal is inextricably anchored on the final and
water rate increase before the National Water correct ruling on the constitutional issue, the whole
Resources Board (NWRB). RTC denied ALWADs case including the constitutional issue remains
Motion to Dismiss. On appeal, CA affirmed the alive for the Courts consideration on motion for
RTC. Does RTC have jurisdiction over the reconsideration (Emilio A. Gonzales III v. Office of
matter? the President, etc., et al./Wendell Bareras-Sulit v.
Atty. Paquito N. Ochoa, Jr., et al., G.R. No.
A: YES. The failure to exhaust administrative 196231/G.R. No. 196232, January 28, 2014).
remedy does not affect the RTCs jurisdiction. Non-
exhaustion of administrative remedies only Doctrine of primary jurisdiction v. Doctrine of
renders the action premature, that the cause of exhaustion of administrative remedies
action is not ripe for judicial determination. It is
incumbent upon the party who has an DOCTRINE OF
DOCTRINE OF
administrative remedy to pursue the same to its EXHAUSTION OF
PRIMARY
appropriate conclusion before seeking judicial ADMINISTRATIVE
JURISDICTION
intervention. Although the doctrine of exhaustion REMEDIES
does not preclude in all cases a party from seeking Both deal with the proper relationships between
judicial relief, cases where its observance has been the courts and administrative agencies.
disregarded require a strong showing of the Applies where a case Applies where a claim
inadequacy of the prescribed procedure and of is within the is cognizable in the first
impending harm (Merida Water District et. al. v. concurrent instance by an
Bacarro et. al., G.R. No. 165993, September 30, jurisdiction of the administrative agency
2008). court and an alone
administrative agency
Q: Deputy Ombudsman Katerina Sanchez was but the determination
dismissed by the Office of the President on the of the case requires
ground of betrayal of public trust and a the technical expertise
disciplinary proceeding against Special of the administrative
Prosecutor Miranda Ramos is pending before agency
the OP. For this reason, Sanchez and Ramos Although the matter is Judicial interference is
challenged the constitutionality of Section 8(2) within the jurisdiction withheld until the
of R.A. 6770 or The Ombudsman Act of 1989 of the court, it must administrative process
regarding the presidents disciplinary yield to the has been completed
jurisdiction over a deputy ombudsman and a jurisdiction of the
special prosecutor. The Supreme Court administrative case
rendered its decision upholding the
constitutionality of the said law and ordered NOTE: The general rule is that before a party may
the reinstatement of Sanchez. As regards seek the intervention of the court, he should first
Ramos, the Court ruled that the disciplinary avail of all the means afforded him by
proceeding against her should be continued administrative processes. The issues which
because Section 8(2) of R.A. No. 6770 is not administrative agencies are authorized to decide
unconstitutional. Only the OP, through the OSG should not be summarily taken from them and
moved for the reconsideration of the Courts submitted to a court without first giving such
ruling. What then is the effect of the absence of administrative agency the opportunity to dispose
motion for reconsideration on the part of of the same after due deliberation.
Sanchez and Ramos?
Corollary to the doctrine of exhaustion of
A: NONE. The omission of the filing of a motion for administrative remedies is the doctrine of primary
reconsideration poses no obstacle for the Courts jurisdiction; that is, courts cannot or will not
review of its ruling on the whole case since a determine a controversy involving a question
serious constitutional question has been raised and which is within the jurisdiction of the
is one of the underlying bases for the validity or administrative tribunal prior to the resolution of
invalidity of the presidential action. If the President that question by the administrative tribunal, where
does not have any constitutional authority to the question demands the exercise of sound
discipline a Deputy Ombudsman and/or a Special administrative discretion requiring the special
Prosecutor in the first place, then any ruling on the knowledge, experience and services of the
legal correctness of the OPs decision on the merits administrative tribunal to determine technical and
will be an empty one. In other words, since the

intricate matters of fact (Republic of the Philippines

v. Lacap, G.R. No. 158253, March 2, 2007).
DOCTRINE OF FINALITY OF
ADMINISTRATIVE ACTION
Doctrine of Finality of Administrative Action
It provides that no resort to courts will be allowed

unless administrative action has been completed
and there is nothing left to be done in the
administrative structure.
Instances where the doctrine finds no

application
1. To grant relief to preserve the status quo

pending further action by the administrative
agency
2. When it is essential to the protection of the
rights asserted from the injuries threatened
3. Where an administrative officer assumes to act
in violation of the Constitution and other laws
4. Where such order is not reviewable in any
other way and the complainant will suffer
great and obvious damage if the order is
carried out
5. Interlocutory order affecting the merits of a
controversy
6. Order made in excess of power, contrary to
specific prohibition in the statute governing
the agency and thus operating as a deprivation
of a right assured by the statute
7. When review is allowed by statutory
provisions.
NOTE: Appeal to the CA is allowed because a quasi-

judicial agency is equivalent in rank with the RTC
(Rule 43, RoC).

2015GOLDEN NOTES
ELECTION LAW
ELECTION LAW iii. for PartyList Representatives

b. Local Elections
SUFFRAGE i. For Members of HOR
ii. Provincial Officials
Right of Suffrage iii. City Officials
iv. Municipal Officials
It is the right to vote in the election of officers c. Barangay Elections
chosen by the people and in the determination of d. ARRM Elections
questions submitted to the people. It includes: i. For Regional Governor
1. Election ii. Regional Vice Governor
2. Plebiscite iii. Regional Assemblymen
3. Initiative; and e. Sangguniang Kabataan (SK) Elections
4. Referendum
2. Special election one held to fill a vacancy in
NOTE: The right to suffrage is not an absolute office before the expiration of the term for
right. Needless to say, the exercise of the right of which the incumbent was elected. It is when
suffrage, as in the enjoyment of all other rights, is there is failure of election on the scheduled
subject to existing substantive and procedural date of regular election in a particular place or
requirements embodied in our Constitution, which is conducted to fill up certain vacancies,
statute books and other repositories of law as provided by law
(AKBAYAN-YOUTH v. COMELEC, G.R. No. 147066, 3. Plebisciteelectoral process by which an
March 26, 2001). initiative on the Constitution is approved or
rejected by the people.
Election 4. Initiativepower of the people to propose
amendments to the Constitution or to propose
It is the selection of candidates to public office by and enact legislations through election called
popular vote of the people. for the purpose
a. Initiative on the Constitution
Purpose of an election b. Initiative on Statutes
c. Initiative on Local Legislation
To enable the electorate to choose the men and 5. Referendumpower of the electorate to
women who would run their government, whether approve or reject a piece of legislation through
national, provincial, city, municipal or barangay an election called for the purpose.
(Teves v. Comelec, G.R. No. L-5150, November 8, i. Referendum on Statutes
1951). ii. Referendum on Local Laws
6. Recallmode of removal of an elective public
Components of an election officer by the people before the end of his term
of office.
1. Choice or selection of candidates to public
office by popular vote Rules on construction of election laws
2. Holding of electoral campaign
3. Conduct of the polls CONSTRUCTION OF ELECTION LAW
4. Listing of votes Laws for conduct of Before the election:
5. Act of casting and receiving the ballots from elections Mandatory
the voters After the election:
6. Counting the ballots Directory
7. Making the election returns
8. Proclaiming the winning candidates Laws for Mandatory and
Candidates strictly construed
Types of elections Procedural rules Liberally construed in
favor of ascertaining
1. Regular election refers to an election the will of the
participated in by those who possess the right electorate
of suffrage, are not otherwise disqualified by
law, and who are registered voters. Commencement of election period
b. National Election The election period shall commence ninety days

i. for President and VP before the day of the election and shall end thirty
ii. for Senators days thereafter, unless otherwise fixed in special

cases by the Commission on Elections (Sec. 3, Art. I, Domicile

Omnibus Election Code OEC).
A place to which, whenever absent for business or
QUALIFICATION AND for pleasure, one intends to return, and depends on
DISQUALIFICATION OF VOTERS facts and circumstances in the sense that they
disclose intent (Ong Huan Tin v. Republic, G.R. No. L-
Qualifications for the exercise of suffrage 20997, April 27, 1967).
1. Filipino citizenship Residence for election purposes

2. At least 18 years of age
3. Resident of the Philippines for at least one year For election purposes, the concepts of residence
4. Resident of the place where he proposes to and domicile are dictated by the peculiar criteria of
vote for at least 6 months immediately political laws. As these concepts have evolved in
preceding the election; and our election law, what has clearly and
5. Not otherwise disqualified by law (Sec. 1, Art. unequivocally emerged is the fact that residence
V, 1987 Constitution) for election purposes is used synonymously with
domicile (Romuladez-Marcos v. COMELEC, G.R. No.
NOTE: These qualifications are continuing 119976, September 18, 1995).
requirements. Congress may not add qualifications
but can provide for procedural requirements and Effect of transfer of residence
disqualifications. However, the disqualifications
must not amount to qualifications. Any person, who transfers residence solely by
reason of his occupation, profession or
Procedural qualifications employment in private or public service, education,
etc., shall not be deemed to have lost his original
As to the procedural limitation, the right of a residence (Art. XII, Sec. 117[2], OEC; Asistio v.
citizen to vote is necessarily conditioned upon Aguirre, G.R. No. 191124, April 27, 2010).
certain procedural requirements he must undergo:
among others, the process of registration. Effect of reacquisition of Philippine citizenship
Specifically, a citizen in order to be qualified to as to the domicile/residence requirement for
exercise his right to vote, in addition to the running as a mayoralty candidate
minimum requirements set by the fundamental
charter, is obliged by law to register, at present, Under RA 9225, it has no automatic impact or
under the provisions of RA 8189, otherwise known effect on a candidates residence/domicile. He
as the Voters Registration Act of 1996. (Akbayan- merely has an option to again establish his
Youth v. COMELEC, G.R. No. 147066, March 26, domicile in the municipality, which place shall
2001). become his new domicile of choice. The length of
his residence therein shall be determined from the
Persons disqualified to vote time he made it his domicile of choice and it shall
not retroact to the time of his birth (Japson v.
1. Persons sentenced by final judgment to suffer COMELEC, G.R .No. 180088, January 19, 2009).
imprisonment for not less than one year,
unless pardoned or granted amnesty; but the REGISTRATION OF VOTERS
right to vote is reacquired upon expiration of 5
years after service of sentence Registration requirement
2. Conviction by final judgment of any of the Registration does not confer the right to vote. It is
following: but a condition precedent to the exercise of the
a. Crime involving disloyalty to the right to vote. Registration is a regulation, not a
government qualification (Yra v. Abano, G.R. No. L-30187,
b. Violation against national security November 15, 1928).
c. Firearms laws
Double-registrant
NOTE: The right to vote is reacquired upon
expiration of 5 years after service of sentence. Any person who, being a registered voter, registers
anew without filing an application for cancellation
3. Insanity or incompetence declared by of his previous registration (sub-par. (5), par. (y),
competent authority (Sec. 118, Art. XII, OEC) Sec. 261, Art. XXII, OEC).

2015GOLDEN NOTES
ELECTION LAW
Q: Are double registrants still qualified to vote? to be registered in the permanent list of voters for
the city or municipality in which he resides (Sec.
A: YES. Double registrants are still qualified to vote 115, OEC). In the case of illiterate and disabled
provided that COMELEC has to make a voters, their voter's affidavit may be prepared by
determination on which registration is valid, and any relative within the fourth civil degree of
which is void. COMELEC laid down the rule in consanguinity or affinity or by any member of the
Minute Resolution No. 00-1513 that while the first board of election inspectors who shall prepare the
registration of any voter subsists, any subsequent affidavit in accordance with the data supplied by
registration thereto is void ab initio (Maruhom v. the applicant (Sec. 14, RA 8189).
COMELEC, G.R. No. 179430, July 27, 2009).
Kinds of registration system
Q: Wil filed a petition for the cancellation of the
COC of Allen for Mayor of South Upi alleging 1. Continuing
that Allen was not a registered voter in the 2. Computerized
Municipality of South Upi since Allen failed to
sign his application for registration, thus, the System of continuing registration
unsigned application for registration has no
legal effect. In refutation, Allen asseverated that GR: It is a system where the application of
his failure to sign his application for registration of voters shall be conducted daily in
registration did not affect the validity of his the office hours of the election officer during
registration since he possesses the regular office hours.
qualifications of a voter set forth in the OEC as
amended by Sec. 9 of RA 8189. Should Allen be XPN: No registration shall be conducted during the
disqualified? period starting 120 days before a regular election
and 90 days before a special election (Sec. 8, RA
A: YES. RA 8189 (The Voters Registration Act of 8189).
1996) specifically provides that an application for
registration shall contain specimen signatures of Q: On Nov. 12, 2008, COMELEC issued
the applicant as well as his/her thumbprints, Resolution 8514 setting Dec. 2, 2008 to Dec.15,
among others. The evidence shows that Allen failed 2009 as the period of continuing voter
to sign very important parts of the application, registration. Subsequently, COMELEC issued
which refer to the oath which Allen should have Resolution 8585 on February 12, 2009
taken to validate and swear to the veracity of the adjusting the deadline of voter registration for
contents appearing in the application for the May 10, 2010 national and local elections to
registration. Plainly, from the foregoing, the Oct. 31, 2009 instead of Dec. 15, 2009 as
irregularities surrounding Allens application for previously fixed by Resolution 8514.
registration eloquently proclaims that he did not Petitioners challenged the validity of COMELEC
comply with the minimum requirements of RA Resolution 8585 and seek the declaration of its
8189. This leads to only one conclusion: that Allen, nullity. Petitioners further contend that
not having demonstrated that he duly COMELEC Resolution 8585 is an encroachment
accomplished an application for registration, is not on the legislative power of Congress as it
a registered voter. Hence, he must be disqualified amends the system of continuing voter
to run for Mayor (Gunsi Sr. v. COMELEC, G.R. No. registration under Sec. 8 of RA 8189. Is
168792, February 23, 2009). COMELEC Resolution 8585 valid?
Q: Sheldon, while of legal age and of sound A: NO. In the present case, the Court finds no
mind, is illiterate. He has asked your advice on ground to hold that the mandate of continuing
how he can vote in the coming election for his voter registration cannot be reasonably held within
brother is running for mayor. This will be the the period provided by Sec. 8, RA 8189, which is
first time Sheldon will vote and he has never daily during the office hours, except during the
registered as a voter before. What advice will period starting 120 days before the May 10, 2010
you give him on the procedure he needs to regular elections. There is thus no occasion for the
follow in order to be able to vote? COMELEC to exercise its power to fix other dates or
deadlines thereof.
A: The Constitution provides that until Congress
shall have provided otherwise, illiterate and The present case differs significantly from the
disabled voters shall be allowed to vote under Akbayan-Youth v. COMELEC, G.R. No. 147066, March
existing laws and regulations (Sec. 2, Art. V, 1987 26, 2001. In the said case, the Court held that the
Constitution). It is necessary for any qualified voter COMELEC did not abuse its discretion in denying

the request of the therein petitioners for an votes and proclaim the winning candidates for
extension of the Dec. 27, 2000 deadline of voter President and Vice-president (Ibid.).
registration for the May 14, 2001 elections. The
therein petitioners filed their petition with the Persons qualified to vote under the Absentee
court within the 120-day prohibitive period for the Voting Law
conduct of voter registration under Sec. 8, RA 8189,
and sought the conduct of a two-day registration of All citizens of the Philippines abroad, who are not
February 17, and 18, 2001, clearly also within the otherwise disqualified by law, at least eighteen
120-day prohibited period. (18) years of age on the day of the elections, may
vote for president, vice-president, senators and
The clear import of the Courts pronouncement in party-list representatives (Sec. 4, RA 9189).
Akbayan-Youth is that had therein petitioners filed
their petition and sought an extension date that Persons disqualified from voting under the
was before the 120-day prohibitive period, their Absentee Voting Law
prayer would have been granted pursuant to the
mandate of RA 8189. In the present case, as 1. Those who have lost their Filipino citizenship
reflected earlier, both the dates of filing of the in accordance with Philippine laws;
petition (October 30, 2009) and the extension 2. Those who have expressly renounced their
sought (until January 9, 2010) are prior to the 120 Philippine citizenship and who have pledged
day prohibitive period. The Court therefore, finds allegiance to a foreign country;
no legal impediment to the extension prayed for 3. Those who have committed and are convicted
(KabataanPartylist v. COMELEC, G.R. No. 189868, in a final judgment by a court or tribunal of an
December 15, 2009). offense punishable by imprisonment of not
less than one (1) year, including those who
Computerized system of registration have committed and been found guilty of
Disloyalty as defined under Art. 137 of the
Voters may accomplish their application and other Revised Penal Code, such disability not having
forms online before proceeding to their local been removed by plenary pardon or amnesty;
COMELEC office. After filling out the application
forms online at www.comelec.gov.ph or NOTE: However, any person disqualified to
iRehistro.com, applicants may opt to schedule their vote under this subsection shall automatically
appearance at the local COMELEC office for their acquire the right to vote upon expiration of
biometrics. Applicants only need to print three five (5) years after service of sentence;
copies of the form and submit unsigned copies to Provided further, that the Commission may
the election officer (EO). take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of
Absentee voting reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on
It is a process by which qualified citizens of the execution of judgments.
Philippines abroad exercise their right to vote
pursuant to the constitutional mandate that 4. An immigrant or a permanent resident who is
Congress shall provide a system for absentee recognized as such in the host country
voting by qualified Filipinos abroad (Sec. 2, Art. V,
1987 Constitution). NOTE: An immigrant or permanent resident
may vote if he/she executes, upon registration,
Absentee voting is an exception to the six- an affidavit prepared for the purpose by the
month/one-year residency requirement Commission declaring that:
(Macalintal v. COMELEC, G.R. No. 157013, July 10, a. he/she shall resume actual physical
2003). permanent residence in the Philippines
not later than three (3) years from
NOTE: Sec. 18.5 (empowering the COMELEC to
approval of his/her registration under this
proclaim the winning candidates for national
offices and party list representatives including the Act.
President and the Vice-President) of RA 9189 b. he/she has not applied for citizenship in
(Absentee Voting) is not violative of Sec. 4(4), Art. another country.
VII of the Constitution with respect only to the
authority given to the COMELEC to proclaim the Failure to return shall be the cause for the
winning candidates for the Senators and party-list removal of the name of the immigrant or
representatives but not as to the power to canvass permanent resident from the National Registry

2015GOLDEN NOTES
ELECTION LAW
of Absentee Voters and his/her permanent

disqualification to vote in absentia. Manner of registration for absentee voters
5. Any citizen of the Philippines abroad It shall be done in person (Sec. 6, RA 9189, Absentee
previously declared insane or incompetent by Voting Law).
competent authority in the Philippines or
abroad, as verified by the Philippine Voting by mail
embassies, consulates or foreign service
establishments concerned Voting by mail may be allowed in countries that
satisfy the following conditions:
NOTE: Unless such competent authority 1. Where the mailing system is fairly well-
subsequently certifies that such person is no developed and secure to prevent the occasion
longer insane or incompetent (Sec. 5, Absentee of fraud
Voting Law). 2. Where there exists a technically established
identification system that would preclude
Q: May duals or dual citizens be allowed to multiple or proxy voting; and
vote under the Overseas Absentee Voting Act of 3. Where the system of reception and custody of
2003? mailed ballots in the embassies, consulates and
other foreign service establishments
A: YES. There is no provision in the dual concerned are adequate and well-secured.
citizenship law - RA 9225 - requiring "duals" to
actually establish residence and physically stay in Thereafter, voting by mail in any country shall be
the Philippines first before they can exercise their allowed only upon review and approval of the Joint
right to vote. On the contrary, RA 9225, in implicit Congressional Oversight Committee (Sec. 17.1, RA
acknowledgment that duals are most likely non- 9189 Absentee Voting Law).
residents, grants under its Sec. 5(1) the same right
of suffrage as that granted an absentee voter under Q: Can the canvass of the overseas absentee
RA 9189. It cannot be overemphasized that RA votes delay the proclamation of winners?
9189 aims, in essence, to enfranchise as much as
possible all overseas Filipinos who, save for the A: No, if the outcome of the election will not be
residency requirements exacted of an ordinary affected by the results thereof. Notwithstanding
voter under ordinary conditions, are qualified to the foregoing, the COMELEC is empowered to
vote (Lewis v. COMELEC, G.R. No. 162759, August 4, order the proclamation of winning candidates
2006). despite the fact that the scheduled election has not
yet taken place in a particular country or countries,
Q: May an immigrant or permanent resident if the holding of elections therein has been
(green card holder) abroad be qualified to run rendered impossible by events, factors, and
for an elective position in the Philippines? circumstances peculiar to such country or
countries, and which events, factors and
A: NO. Acquisition of a lawful permanent resident circumstances are beyond the control or influence
status abroad amounts to an abandonment and of the COMELEC (Sec. 18, RA 9189 Absentee Voting
renunciation of ones status as a resident of the Law).
Philippines; it constituted a change from ones
domicile of origin to a new domicile of choice Local absentee voting
(Ugdoracion v. COMELEC, G.R. No. 179851, April 18,
2008). It refers to a system of voting whereby
government officials and employees, including
Process of absentee voting members of the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP)
1. The overseas absentee voter shall personally as well as members of the media, media
accomplish his/her ballot at the embassy, practitioners including their technical and
consulate or other foreign service support staff (media voters) pursuant to the
establishment that has jurisdiction over the aforementioned COMELEC En Banc Resolution
country where he/she temporarily resides or who are duly registered voters, are allowed to
at any polling place designated and accredited vote for the national positions, i.e. President, Vice-
by the Commission (Sec. 16, RA 9189 Absentee President, Senators and Party-List
Voting Law). Representatives in places where they are not
2. The overseas absentee voter may also vote by registered voters but where they are temporarily
mail (Sec. 17,RA 9189). assigned to perform election duties on election

day as provided for under Executive Order No. properly marked and dated in indelible ink, in the
157 and Republic Act No. 7166 (Sec. 1(a), inactive file after entering the cause of
COMELEC Resolution 9637, 13 February 2013). deactivation.
Persons qualified to register/vote in local Grounds for deactivation

absentee voting
1. Those which would disqualify you as a voter:
1. Government officials and employees a. Convicted by final judgment to suffer
2. Members of the PNP imprisonment not less than 1 year
3. Members of the AFP b. Disloyalty
4. Members of the media, media practitioners, c. Insanity
and including their technical and support staff 2. Others:
who are actively engaged in the pursuit of a. Loss of citizenship
information gathering and reporting or b. Failed to vote for 2 successive preceding
distribution, in any manner or form, including, regular elections
but not limited to the following: c. Registration was ordered excluded by the
i. Print Journalists; court.
ii. Television Journalists;
iii. Photo Journalists; Grounds for the annulment of Book of voters
iv. Online Journalists;
v. Radio Journalists; 1. Fraud
vi. Documentary makers; 2. Forgery
vii. Television/Radio Production 3. Force
4. Intimidation
Requisites to be covered by the Rule of Local 5. Impersonation
Absentee Voting 6. Bribery
7. Similar Irregularity
1. Duly registered voters 8. Contains data that are statistically improbable
2. On election day, in case of government
officials, members of the PNP and AFP, they INCLUSION AND EXCLUSION PROCEEDINGS
are assigned temporarily to perform election
duties in places where they are not registered Courts which have jurisdiction over inclusion
voters; and exclusion proceedings
3. In case of media voters, they will not be able to
vote due to the performance of their functions 1. MTC original and exclusive
in covering and reporting the conduct of 2. RTC appellate jurisdiction
elections. (Sec. 2, COMELEC Resolution 9637, 3. SC appellate jurisdiction over RTC on
13 February 13, 2013) question of law
Book of Voters Persons who may file a petition for inclusion or

exclusion
Classified as permanent whereby each precinct
shall have a permanent list of all registered voters 1. Inclusion
residing within the territorial jurisdiction of the 1. Any private person whose application was
precinct. disapproved by the Election Registration
Board
Grounds for the alteration of Book of voters 2. Those whose names were stricken out
from the list of voters (Sec. 139, OEC)
1. Deactivation/Reactivation 3. COMELEC
2. Exclusion/ Inclusion
3. Cancellation of Registration in case of death 2. Exclusion
4. Annulment of Book of Voters 1. Any registered voter in the city or
5. New Voters municipality(Sec. 142, OEC)
6. Transfer of residence 2. Representative of political party
3. Election officer
Deactivation 4. COMELEC (BP 881 OEC)
Removal from the registration records from the

precinct books of voters and places the same,

2015GOLDEN NOTES
ELECTION LAW
Period for filing a petition in an inclusion or grounds, and upon clear and convincing proof, may
exclusion proceeding a citizen be deemed to have forfeited this precious
heritage of freedom (Asistio v. Aguirre, G.R. No.
Inclusion: Any day except 105 days before regular 191124, April 27, 2010).
election or 75 days before a special election
(COMELEC Resolution No. 8820). POLITICAL PARTIES
Exclusion: Anytime except 100 days before a Political party

regular election or 65 days before a special election
(COMELEC Resolution No. 9021). Any organized group of citizens advocating an
ideology or platform, principles and policies for the
general conduct of government and which, as the
Grounds for Inclusion and Exclusion most immediate means of securing their adoption,
Proceedings regularly nominates and supports certain of its
leaders and members as candidate in public office.
1. Inclusion
1. Application for registration has been NOTE: To acquire juridical personality and to
disapproved by the board entitle it to rights and privileges granted to
2. Name has been stricken out political parties, it must be registered with
COMELEC (Sec. 3 (c), RA 7941).
2. Exclusion
1. Not Qualified for possessing Jurisdiction of COMELEC over political parties
disqualification
2. Flying voters Sec. 2(5), Art. IX-C of the Constitution grants the
3. Ghost voters Commission the power to register political parties.
It also has the power to require candidates to
Inapplicability of the doctrine of res judicata in specify in their certificates of candidacy their
inclusion or exclusion proceedings political affiliation, allow political parties to
appoint watchers, limit their expenditures, and
The proceedings for the exclusion or inclusion of determine whether their registrations should be
voters in the list of voters are summary in cancelled in appropriate proceedings. These
character. Except for the right to remain in the list powers necessarily include the jurisdiction to
of voters or for being excluded therefrom for the resolve issues of political leadership in a political
particular election in relation to which the party, and to ascertain the identity of political
proceedings had been held, a decision in an party and its legitimate officers (Palmares v.
exclusion or inclusion proceeding, even if final and COMELEC, G.R. No. 86177, August 31, 1989).
unappealable, does not acquire the nature of res
judicata. In this sense, it does not operate as a bar Grounds for the refusal and/or cancellation of
to any further action that a party may take registration of national, regional or sectoral
concerning the subject passed upon in the party, organization or coalition
proceeding. Thus, a decision in an exclusion
proceeding would neither be conclusive on the 1. It is a religious sect or denomination,
voters political status, nor bar subsequent organization or association, organized for
proceedings on his right to be registered as a voter religious purposes
in any other election (Domino v. COMELEC, G.R. No. 2. It advocates violence or unlawful means to
134015, July 19, 1999). seek its goal
3. It is a foreign party or organization
Q: Can a voter be excluded for stating a fake 4. It is receiving support from any foreign
address? government, foreign political party,
foundation, organization, whether directly or
A: NO. The right to vote is a precious political through any of its officers or members or
right, as well as a bounden duty of every citizen, indirectly through third parties for partisan
enabling and requiring him to participate in the election purposes
process of government to ensure that it can truly 5. It violates or fails to comply with laws, rules or
be said to derive its power solely from the consent regulations relating to elections
of its constituents. 6. It declares untruthful statements in its petition
7. It has ceased to exist for at least one (1) year;
A citizen cannot be disenfranchised for the or
flimsiest of reasons. Only on the most serious

8. It fails to participate in the last two (2) 11. Convicted by final judgment for violating the
preceding elections or fails to obtain at least oath of allegiance to the Republic
two per centum (2%) of the votes cast under 12. Dual citizenship (more specifically, dual
the party-list system in the two (2) preceding allegiance)
elections for the constituency in which it has 13. Fugitives from justice in criminal or non-
registered (Sec. 6, RA 7941). political cases here or abroad
14. Permanent residents in a foreign country or
CANDIDACY those who have acquired the right to reside
abroad and continue to avail of the same right
QUALIFICATIONS OF CANDIDATES 15. Insane or feeble- minded
16. Nuisance candidate
Qualifications of elective local officials 17. Violation of Sec. 73 OEC with regard to COC
18. Violation of Sec. 78: material
1. Must be a citizen of the Philippines misrepresentation in the COC
2. A registered voter in the barangay,
municipality, city, or province or, in the case of NOTE: The votes cast in favor of the ineligible
a member of the sangguniang panlalawigan, candidate will not be considered at all in the
sangguniang panlungsod, or sangguniang determination of the winner. However, even if it is
bayan, the district where he intends to be disregarded, the will of the electorate is still
elected respected because the votes cast in favor of an
3. A resident therein for at least one (1) year ineligible candidate do not constitute the sole and
immediately preceding the day of the election total expression of the sovereign voice. The votes
4. And able to read and write Filipino or any cast in favor of eligible and legitimate candidates
other local language or dialect (Sec. 39, RA form part of that voice and must also be respected.
7160 Local Government Code of the Philippines).
Knowledge by the electorate of a candidates
NOTE: Congress may not add to qualifications for disqualification is not necessary before a qualified
elective officials provided in the Constitution. candidate who placed second to a disqualified one
However, they may do so for elective officials not can be proclaimed as the winner. The second-
provided in the Constitution. placer in the vote count is actually the first-placer
among the qualified candidates. Furthermore, that
Grounds for disqualification of a candidate the disqualified candidate has already been
proclaimed and has assumed office is of no
1. Declared as incompetent or insane by moment. The subsequent disqualification based on
competent authority a substantive ground that existed prior to the filing
2. Convicted by final judgment for subversion, of the CoC voids not only the CoC but also the
insurrection, rebellion, or any offense for proclamation (Maquiling v. COMELEC, G.R. No.
which he has been sentenced to a penalty of 18 195649, April 16, 2013).
months imprisonment
3. Convicted by final judgment for a crime Effect of an unsworn renunciation of foreign
involving moral turpitude citizenship
4. Election offenses under Sec. 68 of the OEC
5. Committing acts of terrorism to enhance Failure to renounce foreign citizenship in
candidacy accordance with the exact tenor of Sec. 5(2) of RA
6. Spending in his election campaign an amount 9225 renders a dual citizen ineligible to run for and
in excess of that allowed thus hold any elective public office (Condon v.
7. Soliciting, receiving, making prohibited COMELEC, G.R. No. 198742, August 10, 2012).
contributions
8. Not possessing qualifications and possessing FILING OF CERTIFICATES OF CANDIDACY
disqualifications under the Local Government
Code EFFECT OF FILING
9. Sentenced by final judgment for an offense
involving moral turpitude or for an offense Certificate of Candidacy (Coc)
punishable by one year or more of
imprisonment within two years after serving It is in the nature of a formal manifestation to the
sentence whole world of the candidates political creed or
10. Removed from office as a result of an lack of political creed (Sinaca v. Mula, G.R. No.
administrative case 135691, September 27, 1999).

2015GOLDEN NOTES
ELECTION LAW
NOTE: A CoC may be amended before the elections, by virtue of the mandate of the electorate. They are
even after the date of its filing. elected to an office for a definite term and may be
removed therefrom only upon stringent conditions.
Provisions of the election law on certificates of On the other hand, appointive officials hold their
candidacy are mandatory in terms. However, after office by virtue of their designation thereto by an
the elections, they are regarded as directory so as appointing authority. Some appointive officials
to give effect to the will of the electorate (Saya-Ang hold their office in a permanent capacity and are
Sr. v. COMELEC, G.R. No. 155087, November 28, entitled to security of tenure while others serve at
2003). the pleasure of the appointing authority (Quinto v.
COMELEC, G.R. 189698, December 1, 2009).
Purposes of the law in requiring the filing of
certificate of candidacy and in fixing the time Candidate
limit therefor
It refers to any person aspiring for or seeking an
To: elective public office, who has filed a CoC by
1. Enable the voters to know, at least 60 days himself or through an accredited political party,
before the regular election, the candidates aggroupment or coalition of parties (Sec. 79(a),
among whom they have to choose, and OEC).
2. Avoid confusion and inconvenience in the
tabulation of the votes cast (Miranda v. Abaya, Q: When can a person be considered a
G.R. No. 136351, July 28, 1999). candidate?
Effect of filing a CoC on the tenure of incumbent A: Any person who files his CoC within the filing
government officials period shall only be considered a candidate at the
start of the campaign period for which he filed his
1. Appointive official Sec. 66 of the OEC provides CoC.
that any person holding an appointive office or
position, including active members of the Any person may thus file a CoC on any day within
Armed Forces of the Philippines, and officers the prescribed period for filing a CoC yet that
and employees in GOCCs, shall be considered person shall be considered a candidate, for
ipso facto RESIGNED from his office upon the purposes of determining ones possible violations
filing of his CoC. Such resignation is of election laws, only during the campaign period
irrevocable. (Penera v. COMELEC, G.R. No. 181613, November 25,
2009).
2. Elective official No effect. The candidate shall
continue to hold office, whether he is running Any unlawful act or omission applicable to a
for the same or a different position (Sec. 14, candidate shall take effect only upon the start of
Fair Elections Act expressly repealed Sec. 67 of the campaign period (Section 15 of RA 8436, as
BP 881). amended by RA 9369).
Q: Do the deemed-resigned provisions which SUBSTITUTION OF CANDIDATES

are applicable to appointive officials and not to
elective officials violate the equal protection Substitution
clause of the constitution?
If after the last day for the filing of Certificates of
A: NO. The legal dichotomy created by the Candidacy, an official candidate of a duly registered
Legislature is a reasonable classification, as there political party or coalition of political parties dies,
are material and significant distinctions between withdraws or is disqualified for any cause, he may
the two classes of officials. This is because elected be substituted by a candidate belonging to, and
public officials, by the very nature of their office, nominated by, the same political party. No
engage in partisan political activities almost all substitute shall be allowed for any independent
year round, even outside of the campaign period. candidate (Sec. 15, COMELEC Resolution 9518,
Political partisanship is the inevitable essence of a September 11, 2013).
political office, elective positions included. The
equal protection of the law clause in the
Constitution is not absolute, but is subject to
reasonable classification. Substantial distinctions
clearly exist between elective officials and
appointive officials. The former occupy their office

Requisites for valid substitution A: YES. As a general rule, the same will be
considered as stray votes but will not invalidate
GR: the whole ballot. Exception is when the substitute
1. The substitute must belong to the same party carries the same family name (Sec. 12, RA 9006).
2. The deceased, disqualified or withdrawn
candidate must have duly file a valid CoC Q: Al Espaldon filed his CoC, signifying his
(Ibid.). intent to run for congressional office in the
fourth district of Leyte. Dexter Suyat filed a
XPN: This does not include those cases where the petition for denial of due course and/or
CoC of the person to be substituted had been cancellation of Als CoC. The COMELEC First
denied due course and canceled under Sec. 78 of Division disqualified Al without any
the OEC. qualification for failure to comply with the one
year residency requirement. He was
Sec. 78 provides that a verified petition seeking to substituted by his wife, appellee Camille
deny due course or to cancel a CoC may be filed by Gonzales as the COMELEC En Banc ruled that
the person exclusively on the ground that any resolution of the First Division refers only to
material representation contained therein as disqualification and not to cancellation of CoC.
required under Sec. 74 of the OEC is false. Camille won the congressional elections in
2010. Again, Dexter filed a motion to
While the law enumerated the occasion where a reconsider which remained unacted. CA
candidate may be validly substituted, there is no Mindaro, appellant, filed a petition for quo
mention of the case where a candidate is excluded warranto before the House of Representatives
not only by disqualification but also by denial and Electoral Tribunal. The HRET ruled in favor of
cancellation of his CoC (Ong v. Alegre, G.R. No. Camille. Does Als disqualification without any
163295, January 23, 2006). qualification permit substitution of candidates?
Q: Henry Tamayo and Dexter Suyat filed their A: NO. Since there would be no candidate to speak
CoCs for the position of Mayor of Lucena City. of under a denial of due course to and/or
Dexter filed a petition to disqualify Henry, cancellation of a CoC case, then there would be no
alleging that Henry still filed his CoC despite candidate to be substituted.
knowing that he had exceeded the 3-term limit
as Mayor of Lucena City. COMELEC 1st Division As explained in the case of Miranda v. Abaya, G.R.
disqualified Henry. Camille Tamayo, the wife of No. 136351, July 28, 1999, a candidate who is
Henry, filed her own CoC in substitution of her disqualified under Sec. 68 (Disqualifications) of the
husband, Henry. Can Camille validly substitute OEC can be validly substituted pursuant to Sec. 77
her husband? (Candidates in case of death, disqualification, or
withdrawal) because he remains a candidate until
A: NO. A disqualified candidate may only be disqualified; but a person whose CoC has been
substituted if he had a valid CoC in the first place denied due course to and/or cancelled under Sec.
because, if the disqualified candidate did not have a 78 (Misrepresentations) cannot be substituted
valid and seasonably filed CoC, he is and was not a because he is not considered a candidate. Stated
candidate at all. If a person was not a candidate, he differently, since there would be no candidate to
cannot be substituted under Sec. 77 of the OEC. If speak of under a denial of due course to and/or
we were to allow the so-called "substitute" to file a cancellation of a CoC case, then there would be no
"new" and "original" CoC beyond the period for the candidate to be substituted; the same does not
filing thereof, it would be a crystalline case of obtain, however, in a disqualification case since
unequal protection of the law. Thus, there was no there remains to be a candidate to be substituted,
valid candidate for Camille to substitute due to although his or her candidacy is discontinued.
Henrys ineligibility. The existence of a valid CoC is
therefore a condition sine qua non for a disqualified Case law dictates that if a petition prays for the
candidate to be validly substituted (Talaga v. denial of due course to and/or cancellation of CoC
COMELEC, G.R. No. 196804, October 9, 2012). and the same is granted by the COMELEC without
any qualification, the cancellation of the
Q: Pedro Mahilig died while campaigning. His candidate's CoC is in order. This is precisely the
son substituted him. Voters on the day of the crux of the Miranda ruling wherein the Court, in
election wrote Pedro Mahilig instead of casting upholding the COMELEC En Banc's nullification of
the same in the name of his son, Garry Mahilig. the substitution in that case, decreed that the
Should the votes be counted in favor of Garry? COMELEC Division's unqualified grant of the
petition necessarily included the denial of due

2015GOLDEN NOTES
ELECTION LAW
course to and/or cancellation of the candidate's intention to run for the office for which his CoC
CoC, notwithstanding the use of the term has been filed and thus prevent a faithful
"disqualified" in the COMELEC Division's determination of the true will of the electorate
resolution, as the foregoing was prayed for in the (Tajanan v. COMELEC, G.R. No. 104443, April 13,
said petition (Silverio R. Tagolino v. House of 1992).
Representatives Electoral Tribunal and Lucy Marie
Torres-Gomez, G.R. No. 202202, March 19, 2013). The COMELEC may, motu proprio or upon verified
petition of an interested party, refuse to give due
Effect of filing two certificates of candidacy course to or cancel a CoC upon showing of the
above-stated circumstances (Sec. 69, OEC).
It disqualifies the person to run for both elective
positions (Sec. 73, BP 881, OEC). Q: Jean and Joyette were the only candidates for
mayor of Bigaa, Bulacan in the May 1995 local
MINISTERIAL DUTY OF COMELEC TO RECEIVE elections. Jean obtained 10,000 votes as against
CERTIFICATES 3,000 votes for Joyette. In the same elections,
Gem got the highest number of votes among the
Duty of the COMELEC in receiving CoCs candidates for the Sangguniang Bayan of the
same town. Jean died the day before her
GR: When a candidate files his CoC, the COMELEC proclamation.
has a ministerial duty to receive and acknowledge 1. Who should the Board of Canvassers
its receipt pursuant to Sec. 76, of the Election Code. proclaim as elected mayor, Jean, Joyette or
The COMELEC may not, by itself, without the Gem? Explain.
proper proceedings, deny due course to or cancel a 2. Who is entitled to discharge the functions
CoC filed in due form (Luna v. COMELEC, G.R. No. of the office of the mayor, Joyette or Gem?
165983, April 24, 2007). Explain.
XPNs: A:
1. Nuisance candidates; (Sec. 69 of the OEC) 1. It is Jean who should be proclaimed as winner,
2. Petition to deny due course or to cancel a CoC; because she was the one who obtained the
(Sec. 78 of the OEC) highest number of votes for the position of
3. Filing of a disqualification case on any of the mayor, but a notation should be made that she
grounds enumerated in Sec. 68, OEC. died for the purpose of applying the rule on
succession to office. Joyette cannot be
Q: Ka Dikko went to Laguna to file his CoC. The proclaimed, because the death of the candidate
election officer refused to receive Ka Dikkos who obtained the highest number of votes
CoC because he seeks to achieve his goals does not entitle the candidate who obtained
through violence. Is the refusal valid? the next highest number of votes to be
proclaimed the winner, since he was not the
A: NO. It is the ministerial duty on the part of the choice of the electorate. Gem is not entitled to
election officer to receive and acknowledge receipt be proclaimed elected as mayor, because she
of the CoC. The question of whether or not a person ran for the Sangguniang Bayan.
is disqualified belongs to another tribunal in an
appropriate disqualification case. 2. Neither Joyette nor Gem is entitled to
discharge the functions of the office of mayor.
NUISANCE CANDIDATES Joyette is not entitled to discharge the office of
mayor, since she was defeated in the election.
Nuisance candidates Gem is not entitled to discharge the office of
mayor. Under Sec. 44 of the Local Government
Candidates who have no bona fide intention to run Code, it is the vice mayor who should succeed
for the office for which the CoC has been filed and in case of permanent vacancy in the office of
would thus prevent a faithful election. And upon the mayor. It is only when the position of the
showing that: vice mayor is also vacant that the member of
1. Said certificate has been filed to put the the Sangguniang Bayan who obtained the
election process in mockery or disrepute highest number of votes will succeed to the
2. To cause confusion among the voters by the office of mayor (Benito v. COMELEC, G.R. No.
similarity of the names of the registered 106053, August 17, 1994).
candidates; or
3. By other circumstances or acts which
demonstrate that a candidate has no bona fide

Q: Renato and Enrique, both sharing the same Requisites for the grant of a petition to deny
surname Dela Cruz, run for Vice Mayor. Renato due course to or cancel a CoC
had Enrique declared to be a nuisance
candidate and asked the COMELEC to strike out 1. Material misrepresentation in the
his name from the ballot. But the ballot still qualifications for elective office, which
retained Enriques name despite his includes:
declaration as a nuisance candidate. During a. age;
Renatos campaign, he stressed that his b. residency;
designated number was 2 and that Enrique was c. citizenship; and
declared by the COMELEC to be a nuisance d. any other legal qualifications necessary to
candidate. Bruno, the other candidate, won as run for an elective office;
Vice Mayor by a difference of 39 votes against 2. Deliberate attempt to mislead, misinform or
Renato. COMELEC regarded the votes cast for hide a fact which would otherwise render a
Enrique as stray votes. Renato contends that he candidate ineligible.
should have won had the votes cast for Enrique
been counted in his favor. Should the stray NOTE: These two requirements must concur to
votes for Enrique be counted in favor of warrant the cancellation of the CoC.
Renato?
Material misrepresentation
A: YES. As we pronounced in Bautista v. COMELEC,
G.R. No. 133840, November 13, 1998,the voters Material misrepresentation in a CoC refers to the
constructive knowledge of such cancelled qualification for elective office, which includes false
candidacy made their will more determinable, as it statement as to age, residency, citizenship, being a
is then more logical to conclude that the votes cast registered voter and any other legal qualifications
for Enrique could have been intended only for the necessary to run for an elective office.
legitimate candidate, Renato. The possibility of
confusion in names of candidates if the names of NOTE: A misrepresentation which does not affect
nuisance candidates remained on the ballots on ones qualification to run or hold public office will
election day, cannot be discounted or eliminated, not suffice for the cancellation of a CoC.
even under the automated voting system especially
considering that voters who mistakenly shaded the Q: Alejandro Salvador II and Barbara Salvador
oval beside the name of the nuisance candidate both ran for the position of Mayor in the
instead of the bona fide candidate they intended to Municipality of Alicia, Isabela. Carlo filed a
vote for could no longer ask for replacement disqualification complaint against Barbara
ballots to correct the same (Dela Cruz v. COMELEC, since she was using the surname Salvador when
G.R. No. 192221, November 13, 2012). in fact her marriage to Michael Salvador was
void. Barbara claims that she did not know that
PETITION TO DENY DUE COURSE OR CANCEL A Michael has a subsisting marriage when they
CERTIFICATE OF CANDIDACY got married. Did Barbara commit any material
misrepresentation by using Salvador as her
Petition to deny due course or cancel a CoC surname when in fact their marriage was void?
A verified petition seeking to deny due course or to A: NO. A false representation under section 78
cancel a CoC may be filed by the person exclusively must consist of a "deliberate attempt to mislead,
on the ground that any material representation misinform, or hide a fact which would otherwise
contained therein as required under Sec. 74 of the render a candidate ineligible." It must be made
OEC is false. with an intention to deceive the electorate as to
one's qualifications for public office. The use of a
Period to file a petition to deny due course to or surname, when not intended to mislead or deceive
cancel a CoC the public as to one's identity, is not within the
scope of the provision (Salcedo II v. COMELEC et. al.,
The petition may be filed at any time not later than G.R. No. 135886, August 16, 1999).
twenty-five (25) days from the time of the filing of
the CoC and shall be decided, after due notice and
hearing, not later than fifteen days (15) before the
election.

2015GOLDEN NOTES
ELECTION LAW
EFFECT OF DISQUALIFICATION (4) Complaint filed after election but before

proclamation of winner The complaint shall be
Grounds for Disqualifications: dismissed as a disqualification case.
1. Any person who has been declared by NOTE: The complaint shall be referred for
competent authority insane or incompetent, or preliminary investigation to the Law Department.
has been sentenced by final judgment for If the Law Department makes a prima facie finding
subversion, insurrection, rebellion or for any of guilt and the corresponding information has
offense for which he has been sentenced to a been filed with the trial court, the complainant may
penalty of more than 18 months or for a crime file a petition for suspension of the proclamation of
involving moral turpitude. the respondent.
2. Any candidate who, in action or protest in
which he is a party, is declared by final (5) Submission of recommendation to Commission
decision guilty of or found by COMELEC of en banc The Law Department shall terminate the
having: preliminary investigation within 30 days from
a) Given money or other material receipt of the referral and shall submit its study,
consideration to influence, induce or report and recommendation to the Commission en
corrupt the voters of public officials banc within 5 days from the conclusion of the
performing electoral functions preliminary investigation. If it makes a prima facie
b) Committed acts of terrorism to enhance finding of guilt, it shall submit with such study the
his candidacy Information for filing with the appropriate court.
c) Spent in his election campaign an
amount in excess of the allowed Effects of disqualification
d) Solicited, received or made any
contribution prohibited under the (1) Final judgment before election The candidate
Omnibus Election Code shall not be voted for, and the votes cast for him
3. Any person who is a permanent resident of or shall not be counted.
an immigrant to a foreign country, unless said
person has waived his status as permanent (2) No final judgment until after election and
resident or immigrant of a foreign country receives the highest number of votes in the election
The Court or Commission shall continue with the
NOTE: The Dual Citizenship Act of 2003 expressly trial and hearing of the action, inquiry or protest
provides for the conditions before those who re- and upon motion of the complainant or any
acquired Filipino citizenship may run for a public intervenor, may, during the pendency thereof,
office in the Philippines. order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is
Rules governing cases of disqualifications strong.
(1) Complaint filed before election The complaint Q: Should the Vice Mayor succeed the Mayor if
shall be inquired into by the Commission for the latter be disqualified because it was later found
purpose of determining whether the acts that he is ineligible to run for the position?
complained of have in fact been committed. Where
the inquiry results in a finding that the respondent A: NO. The candidate for the same position who
candidate did in fact commit the acts complained, garnered the next highest vote shall be proclaimed
COMELEC shall order the disqualification of the as the winner. Technically, such candidate is the
respondent candidate from continuing as such first-placer for the reason that a void CoC cannot
candidate. produce any legal effect and therefore, an ineligible
(2) Complaint not resolved before election candidate is not considered a candidate at all
COMELEC may motu propio or on motion of any of (Maquiling v. COMELEC, G.R No. 195649, April 16,
the parties refer the complaint to the Law 2013).
Department of the Commission.
Q: What will happen to the votes of the
(3) Complaint filed after election and proclamation electorate for the ineligible candidate?
of winner The complaint shall be dismissed as a
disqualification case. A: It will not be considered at all. However, even if
it is disregarded, the will of the electorate is still
NOTE: The complaint shall be referred for respected because the votes cast in favor of an
preliminary investigation to the Law Department. eligible candidate do not constitute the sole and

total expression of the sovereign voice (Maquiling cases and furnish all Commissioners copies of the
v. COMELEC, G.R No. 195649, April 16, 2013). said list.
Q: What if the Mayor was disqualified because In the event that a candidate with an existing and
of an election offense under Sec. 68 of the pending Petition to disqualify is proclaimed
Omnibus Election Code? Who will succeed? winner, the Commission shall continue to resolve
the said petition (Sec. 5, Rule 25, COMELEC Res.
A: Vice Mayor. The effect of the Mayors 9523, September 25, 2012).
disqualification is a permanent vacancy in the
position. Under Sec. 44 of the Local Government NOTE: This is further discussed in Petition for
Code, in case of permanent vacancy in the position Disqualification in the latter part of this chapter.
of Mayor, the Vice Mayor will succeed.
WITHDRAWAL OF CANDIDATES
Application of the rule on succession
Period to withdraw Certificate of Candidacy
MAQUILING CASE E.R EJERCITO CASE
The rule on succession The rule on succession At any time before Election Day (Sec. 15, COMELEC
under the Local provided for in Sec. 44 of Res. 9518, September 11, 2012).
Government Code will R.A. 7160 or the Local
not apply because the Government Code Effect of withdrawal on the liabilities of the
issue here is his applies in this case candidate
citizenship which is a because what occurred
continuing here after his The filing of a withdrawal of a CoC shall not affect
requirement. Being a disqualification is a whatever civil, criminal or administrative liabilities
continuing permanent vacancy in a candidate may have incurred (Sec 14, COMELEC
requirement, he must the position. What is Res. 9518, September 11, 2012).
possess it before and involved in this case is
after elections until the commission of an Rule on withdrawal of candidates
the end of his term. election
His use of US Passport offense(overspending) 1. Any person who has filed a CoC may withdraw
after reacquiring his provided for in Sec. 68 of the same (Sec. 15, COMELEC Res. 9518,
citizenship negated his OEC which, in effect, September 11, 2012).
Affidavit of disqualifies the 2. To be effective, the withdrawal should be
Renunciation. As a candidate from holding under oath or in the form of a sworn
dual citizen, he is office. declaration that he is withdrawing his CoC,
disqualified from the such being the requirement of the law.
very beginning to run Here, the candidate
for office. With him possesses all the GR: An invalid withdrawal of candidacy
being barred to run for qualifications and none produces no legal effect, and for all legal
office, he is not of the disqualifications intents and purposes there is no withdrawal
considered as a to run for office. and he remains a candidate.
candidate at all. Therefore, he is a valid
candidate (Emilio Ramon XPN: When the withdrawal which is not under
"E.R." P. Ejercito v. oath, is actually made and accepted by the
Comelec, et al., election registrar, as a result of which a
G.R. No. 212398. substitute candidate files his CoC in his place
November 25, 2014). and receives the winning number of votes.
Remedy of a petitioner if the petition for 3. Withdrawal of a CoC cannot be made by

disqualification is unresolved on the day of the someone else. It must be filed personally
election subject to the rule on substitution of
candidates. No Statement of Withdrawal shall
The petitioner may file a motion with the Division be accepted if filed by a person `other than the
or Commission En Banc where the case is pending, candidate himself or if filed by mail, electronic
to suspend the proclamation of the candidate mail, telegram or facsimile. (Sec. 15, COMELEC
concerned, provided that the evidence for the Res. 9518, September 11, 2012).
grounds to disqualify is strong. For this purpose, at
least three (3) days prior to any election, the Clerk
of the Commission shall prepare a list of pending

2015GOLDEN NOTES
ELECTION LAW
Q: May a person who has withdrawn his CoC be attributes of or criticisms against probable
eligible to run for another position or become a candidates proposed to be nominated in a
substitute candidate? forthcoming political party convention shall not be
construed as part of any election campaign or
A: NO. A person who has withdrawn his CoC for a partisan political activity contemplated under the
position shall not be eligible, whether as a OEC (Sec. 79, OEC).
substitute candidate or not, for any other position
(Sec. 14, COMELEC Resolution 9518, 11 September Period to campaign
2012).
1. Presidential and Vice presidential election 90
Q: On the last day of filing a CoC, March 31, days;
Kristine Rossellini withdrew her CoC. On April 2. Election of members of the Congress and local
1, campaign period started. On April 2, she election 45 days;
wanted to run again so she filed a written 3. Barangay Election 15 days
declaration withdrawing her withdrawal. Is her 4. Special election under Art. VIII, Sec. 5(2) of the
act of withdrawing the withdrawal valid? Constitution 45 days
A: NO. The withdrawal of the withdrawal of the NOTE: Reckoning period will be set by COMELEC.
CoC made after the last day of filing is considered
as filing of a new CoC. Hence, it was not allowed The campaign periods shall not include the day
since it was filed out of time (Monsale v. Nico, G.R. before and the day of the election (Sec. 3, BP 881
No. L-2539, May 28, 1949). OEC).
CAMPAIGN PREMATURE CAMPAIGNING
Election campaign Premature campaign
An act designed to promote the election or defeat It shall be unlawful for any person, whether or not
of a particular candidate or candidates to a public a voter or candidate, or for any party, or
office which shall include: association of persons, to engage in an election
1. Forming organizations, associations, clubs, campaign or partisan political activity except
committees or other groups of persons for the during the campaign period.
purpose of soliciting votes and/or undertaking
any campaign for or against a candidate Provided, that political parties may hold political
2. Holding political caucuses, conferences, conventions or meetings to nominate their official
meetings, rallies, parades, or other similar candidates within thirty days before the
assemblies, for the purpose of soliciting votes commencement of the campaign period and forty-
and/or undertaking any campaign or five days for Presidential and Vice-Presidential
propaganda for or against a candidate election (Sec. 80, OEC).
3. Making speeches, announcements or
commentaries, or holding interviews for or NOTE: The use of lawful election propaganda
against the election of any candidate for public under the Fair Elections Act is subject to the
office supervision and regulation by the COMELEC in
4. Publishing or distributing campaign literature order to prevent premature campaigning and to
or materials designed to support or oppose the equalize, as much as practicable, the situation of all
election of any candidate; or candidates by preventing popular and rich
5. Directly or indirectly soliciting votes, pledges candidates from gaining undue advantage in
or support for or against a candidate (Sec. 79, exposure and publicity on account of their
BP 881 OEC). resources and popularity (Chavez v. COMELEC, G.R.
No. 162777, August 31, 2004).
NOTE: The foregoing enumerated acts if
performed for the purpose of enhancing the Q: Petitioner Diana De Castro and respondent
chances of aspirants for nomination for candidacy Marj Perez ran for mayor of Sta. Monica,
to a public office by a political party, aggroupment, Surigao Del Norte during the May 14, 2007
or coalition of parties shall not be considered as elections. Dianas political party held a
election campaign or partisan election activity. motorcade preceding the filing of her CoC
announcing her candidacy for mayor. Because
Public expressions or opinions or discussions of of this, Marj filed a petition to disqualify Diana
probable issues in a forthcoming election or on for engaging in premature campaigning in

violation of Sec.80 and 68 of the OEC. Did Diana

violate the prohibition against premature XPN: Loans made by such institutions in the
campaigning? business of lending money to a candidate or
political party, made in accordance with laws
A: NO. The campaign period for local officials and in the ordinary course of business
began on 30 March 2007 and ended on 12 May
2007. Diana filed her CoC on 29 March 2007. Diana 2. Persons operating public utilities or those
was thus a candidate on 29 March 2007 only for exploiting natural resources of the nation
purposes of printing the ballots under Sec. 11 of RA 3. Persons with contracts to supply the
8436. Acts committed by Diana prior to 30 government with goods or services or to
March2007, the date when she became a perform construction or other works
"candidate", even if constituting election 4. Grantees of franchises, incentives, exemptions,
campaigning or partisan political activities, are not allocations, or similar privileges or concessions
punishable under Sec. 80 of the OEC. Such acts are by the government
within the realm of a citizens protected freedom of 5. Persons who, within one year prior to the date
expression. Acts committed by Diana within the of the election, have been granted by the
campaign period are not covered by Sec. 80 as Sec. government loans or other accommodations in
80 punishes only acts outside the campaign excess of P100,000
period. 6. Educational institutions which have received
grants of public funds not less than P100,000
In laymans language, this means that a candidate 7. Officials or employees in the Civil Service or
is liable for an election offense only for acts done members of the Armed Forces of the
during the campaign period, not before. The law is Philippines; and
clear as daylight any election offense that may 8. Foreigners and foreign corporations (Sec. 95,
be committed by a candidate under any election OEC).
law cannot be committed before the start of the
campaign period (Penera v. COMELEC, G.R. No. Prohibited means of raising funds
181613, November 25, 2009).
1. Holding any of the following activities:
PROHIBITED CONTRIBUTIONS a. Dances
b. Lotteries
Electoral contributions and expenditures c. Cockfights
d. Games
1. Gift e. Boxing bouts
2. Donation f. Bingo
3. Subscription g. Beauty contests
4. Loan h. Entertainments
5. Advance or deposit of money or anything of i. Cinematographic, theatrical, or other
value performances for the purpose of raising
6. A contract, promise or agreement of funds for an election campaign or for the
contribution, whether or not legally enforceable support of any candidate from the
7. Use of facilities voluntarily donated by commencement of the election period up
other persons, the money value of which to and including election day.
can be assessed based on the rates prevailing
in the area 2. It shall also be unlawful for any person or
8. Those made for the purpose of influencing organization, whether civic or religious,
the results of the elections directly or indirectly, to solicit and/or accept
from any candidate for public office or his
NOTE: It does not include services rendered representative any gift, food, transportation,
without compensation by individuals volunteering contribution or donation in cash or in kind
a portion or all of their time in behalf of a candidate from the commencement of the election period
or political party (Sec. 94, OEC). up to and including election day, except normal
and customary religious stipends, tithes, or
Prohibited contributions collections (Sec. 97, OEC).
Those made for purposes of partisan political

activity, directly or indirectly by any of the
following:
1. Public or private financial institutions

2015GOLDEN NOTES
ELECTION LAW
LAWFUL AND PROHIBITED PROPAGANDA retained in a capacity by any candidate or

political party shall be deemed resigned, if so
Lawful election propaganda requires by their employer, shall take a LOA
from his work as such during campaign period.
1. Written printed materials (does not exceed 8
in. width by 14 in. length) Prohibited forms of election propaganda
2. Handwritten/printed letters
3. Posters (not exceeding 2 x 3 ft. or 3 x 8 ft. on a) To print, publish, post or distribute any
the occasion of a public meeting or rally, or in newspaper, newsletter, newsweekly, gazette
announcing the holding of such). Provided, or magazine advertising, pamphlet, leaflet,
that said streamers may be displayed five (5) card, decal, bumper sticker, poster, comic
days before the date of rally but shall be book, circular, handbill, streamer, sample list
removed within 24 hours after said rally; of candidates or any published or printed
4. Print ads page in broadsheets and page political matter and to air or broadcast any
in tabloids thrice a week per newspaper, election propaganda or political advertisement
magazine or other publication during the by television or radio or on the internet for or
campaign period; against a candidate or group of candidates to
5. Broadcast media (i.e. TV and radio) any public office, unless they bear and be
6. All other forms of election propaganda not identified by the reasonably legible, or audible
prohibited by the OEC or this Act (Sec. 3,RA words political advertisement paid for,
9006, The Fair Elections Act). followed by the true and correct name and
7. Streamers not exceeding 3 ft.x8 ft. in size address of the candidate or party for whose
displayed at the site and on the occasion of a benefit the election propaganda was printed or
public meeting or rally. Said streamers may be aired. It shall likewise be unlawful to publish,
displayed five (5) days before the date of the print or distribute said campaign materials
meeting or rally and shall be removed within unless they bear, and are identified by, the
twenty-four (24) hours after said meeting or reasonably legible, or audible words political
rally advertisements paid by, followed by the true
8. Mobile units, vehicles motorcades of all types, and correct name and address of the payor.
whether engine or manpower driven or animal b) To print, publish, broadcast or exhibit any such
drawn, with or without sound systems or loud election propaganda donated or given free of
speakers and with or without lights; charge by any person or publishing firm or
9. Paid advertisements in print or broadcast broadcast entity to a candidate or party
media subject to the requirements set forth without the written acceptance by the said
in Sec. 9 hereof and RA 9006 (Sec. 6, COMELEC candidate or party and unless they bear and be
Res. 9615, January 15, 2013). identified by the words "printed free of
charge, or airtime for this broadcast was
Rules on election propaganda provided free of charge by, respectively,
followed by the true and correct name and
1. All registered parties and bona fide candidates address of the said publishing firm or
shall have a right to reply to charges published broadcast entity;
against them. c) To show, display or exhibit publicly in a
2. No movie, cinematographic, documentary theater, television station, or any public forum
portraying the life or biography of a candidate any movie, cinematography or documentary
shall be publicly exhibited in theatre, TV portraying the life or biography of a candidate,
station, or any public forum during the or in which a character is portrayed by an
campaign period. actor or media personality who is himself a
3. No movie, cinematograph, documentary candidate;
portrayed by an actor or media personality d) For any newspaper or publication, radio,
who is himself a candidate shall be publicly television or cable television station, or other
exhibited in a theatre, TV station or any public mass media, or any person making use of the
form during the campaign period. mass media to sell or to give free of charge
4. All mass media entities shall furnish the print space or air time for campaign or election
COMELEC with the copies of all contracts for propaganda purposes to any candidate or
advertising, promoting, or opposing any party in excess of the size, duration or
political party or the candidacy of any person frequency authorized by law or these rules;
for public office within 5 days after its signing. e) For any radio, television, cable television
5. Any media personality who is a candidate or is station, announcer or broadcaster to allow the
campaign volunteer for or employed or scheduling of any program, or permit any

sponsor to manifestly favor or oppose any terminal under Sec.

candidate or party by unduly or repeatedly 9 of RA 9006
referring to, or unnecessarily mentioning his
name, or including therein said candidate or prints, printing 1. criminally
party; and reproduces press, liable with
f) To post, display or exhibit any election or printer, or the candidate
campaign or propaganda material outside of publishes publisher 2. if applicable,
authorized common poster areas, in public said further suffer
places, or in private properties without the campaign the penalties
consent of the owner thereof. materials of
g) Public places referred to in the previous without the suspension
subsection (f) include any of the following: required or revocation
a. Electronic announcement boards, such as data or in of franchise
LED display boards located along violation of or permit in
highways and streets, LCD TV displays these rules accordance
posted on walls of public buildings, and airs or broadcaster, with law
other similar devices which are owned by shows the station
local government units, government- political manager,
owned and controlled corporations, or any advertisem owner of the
agency or instrumentality of the ents, radio or
Government; without the television
b. Motor vehicles used as patrol cars, required station, or
ambulances, and other similar purposes data or in owner or
that are owned by local government units, violation of administrat
government-owned and controlled these rules or of any
corporations, and other agencies and website
instrumentalities of the Government, (Sec. 7, COMELEC Res. 9615, January 15, 2013)
particularly those bearing red license
plates; ALLOWABLE COMELEC AIR TIME FOR
c. Waiting sheds, sidewalks, street and lamp CANDIDATES (Fair Elections Act)
posts, electric posts and wires, traffic NATIONAL POSITIONS LOCAL POSITIONS
signages and other signboards erected on 120 minutes for TV 60 minutes for TV
public property, pedestrian overpasses 180 minutes for radio 90 minutes for radio
and underpasses, flyovers and
underpasses, bridges, main thoroughfares, NOTE: The COMELEC cannot compel newspapers
center islands of roads and highways of general circulation to donate free print space as
d. Schools, shrines, barangay halls, health COMELEC space without payment of just
centers, public structures and buildings or compensation. Such compulsion amounts to taking;
any edifice thereof; hence, it is an exercise of eminent domain and not
e. Public utility vehicles such as buses, of police power (Philippine Press Institute v.
jeepneys, trains, taxi cabs, ferries, pedicabs COMELEC, G.R. No. 119694, May 22, 1995). The
and tricycles, whether motorized or not; payment of just compensation is now expressly
f. Within the premises of public transport provided under Sec. 7 of the Fair Elections Act.
terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and However, all broadcasting stations, whether by
the like. radio or television stations, which are licensed by
the government, do not own the airways and
Persons Liable in committing prohibited acts of frequencies; they are merely given the temporary
election propaganda privilege of using them. A franchise is a privilege
subject to amendment, and the provision of BP 881
Violation Persons Consequence granting free airtime to the COMELEC is an
Liable amendment of the franchise of radio and television
The owner 1. revocation of stations (Telecommunications and Broadcast
violation of and/or the public Attorneys of the Philippines v. COMELEC, G.R. No.
letters d operator of utility 132922, April 21, 1998). Payment of just
and e under the franchise compensation is not necessary since it is a valid
subsection transportati 2. liable for an exercise of police power.
(g) on service election
and/or offense

2015GOLDEN NOTES
ELECTION LAW
Q: Petitioners assail the constitutionality of Sec. candidates. The resolution is challenged as a

9 of COMELEC Resolution No. 9615 providing violation of the freedom of speech and of the
for an interpretation of the rules on allowable press. Is the resolution constitutionally
air time for candidates in RA 9906 - Fair defensible? Explain.
Election Act. The resolution changed the
allowable time for broadcast and radio A: YES. The resolution is constitutionally
advertisements of candidates and political defensible. Under Sec. 4, Art. IX-C of the 1987
parties for national election positions to 120 Constitution, during the election period the
minutes and 180 minutes, respectively, on COMELEC may supervise or regulate the media of
aggregate basis for all stations, instead of the communication or information to ensure equal
previous per station rule. They contend that opportunity, time, and space among candidates
such restrictive regulation on allowable with the objective of holding free, orderly, honest,
broadcast time violates freedom of the press, peaceful, and credible elections. To allow
impairs the people's right to suffrage as well as candidates who are supported by more than one
their right to information relative to the political party to purchase more air time and
exercise of their right to choose who to elect advertising space than candidates supported by
during the forthcoming elections. Are the one political party only will deprive the latter of
petitioners correct? equal time and space in the media.
A: YES. The COMELEC went beyond the authority ALTERNATIVE ANSWER:

granted it by RA 9006 in adopting aggregate No. Although the expenditure limitation applies
basis in the determination of allowable time. The only to the purchase of air time, thus leaving
law, on its face, does not justify the conclusion that political parties free to spend for other forms of
the maximum allowable airtime should be based campaign, the limitation nonetheless results in a
on the totality of possible broadcast in all television direct and substantial reduction of the quantity of
or radio stations. The legislative intent relative to political speech by restricting the number of issues
airtime allowed is on a per station basis. that can be discussed, the depth of their discussion
Congress intended to provide a more expansive and the size of the audience that can be reached,
and liberal means by which the candidates, through the broadcast media.
political parties, citizens and other stake holders in
the periodic electoral exercise may be given a Since the purpose of the Free Speech Clause is to
chance to fully explain and expound on their promote the widest possible dissemination of
candidacies and platforms of governance, and for information, and the reality is that to do this
the electorate to be given a chance to know better requires the expenditure of money, a limitation on
the personalities behind the candidates. expenditure for this purpose cannot be justified,
not even for the purpose of equalizing the
The assailed rule on "aggregate-based" airtime opportunity of political candidates (Gonzalez v.
limits is unreasonable and arbitrary as it unduly COMELEC, G.R. No. L-28783, April 18, 1969).
restricts and constrains the ability of candidates
and political parties to reach out and communicate Q: COMELEC promulgated a resolution
with the people. Here, the adverted reason for providing that decals and stickers may be
imposing the "aggregate-based" airtime limits - posted only in any of the authorized posting
leveling the playing field - does not constitute a areas provided for. Atty. Espaldon, a senatorial
compelling state interest which would justify such candidate, assails the COMELEC's Resolution
a substantial restriction on the freedom of insofar as it prohibits the posting of decals and
candidates and political parties to communicate stickers in "mobile" places like cars and other
their ideas, philosophies, platforms and programs moving vehicles. According to him, such
of government. And, this is specially so in the prohibition is violative of Sec. 82 of the OEC and
absence of a clear-cut basis for the imposition of Sec. 11(a) of RA 6646. Is the resolution valid?
such a prohibitive measure (GMA Network, Inc., v.
COMELEC, G.R. No. 205357, September 2, 2014). A: NO. The COMELEC's prohibition on posting of
decals and stickers on "mobile" places whether
Q: A COMELEC resolution provides that political public or private except in designated areas
parties supporting a common set of candidates provided for by the COMELEC itself is null and void
shall be allowed to purchase jointly air time on constitutional grounds. The prohibition unduly
and the aggregate amount of advertising space infringes on the citizen's fundamental right of free
purchased for campaign purposes shall not speech enshrined in the Constitution. Significantly,
exceed that allotted to other political parties or the freedom of expression curtailed by the
groups that nominated only one set of questioned prohibition is not so much that of the

candidate or the political party. The regulation Q: May the media be compelled to publish the
strikes at the freedom of an individual to express results of the election survey?
his preference and, by displaying it on his car, to
convince others to agree with him. A: No, but should they decide to publish the said
survey for public consumption, they must likewise
Also, the questioned prohibition premised on the publish the following information:
statute (RA 6646) and as couched in the resolution 1. The name of the person, candidate, party, or
is void for overbreadth. The restriction as to where organization that commissioned or paid for the
the decals and stickers should be posted is so survey;
broad that it encompasses even the citizen's 2. The name of the person, polling firm or survey
private property, which in this case is a privately- organization who conducted the survey;
owned vehicle. In consequence of this prohibition, 3. The period during which the survey was
another cardinal rule prescribed by the conducted, the methodology used, including
Constitution would be violated. Sec. 1, Art. III of the the number of individual respondents and the
Bill of Rights provides that no person shall be areas from which they were selected, and the
deprived of his property without due process of specific questions asked;
law. The right to property may be subject to a 4. The margin of error of the survey;
greater degree of regulation but when this right is 5. For each question for which the margin of
joined by a "liberty" interest, the burden of error is greater than that reported under par.
justification on the part of the Government must be (4), the margin of error for that question; and
exceptionally convincing and irrefutable. The 6. A mailing address and telephone number,
burden is not met in this case. indicating it as an address or telephone
number at which the sponsor can be contacted
Additionally, the constitutional objective to give a to obtain a written report regarding the survey
rich candidate and a poor candidate equal in accordance with the next succeeding
opportunity to inform the electorate as regards paragraph.
their candidacies, mandated by Art. II, Sec. 26 and 7. The survey together with raw data gathered to
Art. XIII, Sec. 1 in relation to Art. IX (c) Sec. 4 of the support its conclusions shall be available for
Constitution, is not impaired by posting decals and inspection, copying and verification by the
stickers on cars and other private vehicles. It is to Commission. Any violation of this section shall
be reiterated that the posting of decals and stickers constitute an election offense (Sec. 26,
on cars, calesas, tricycles, pedicabs and other COMELEC Res. 9615 as amended by COMELEC
moving vehicles needs the consent of the owner of Res. 9631, February 1, 2013).
the vehicle. Hence, the preference of the citizen
becomes crucial in this kind of election propaganda Exit Poll
not the financial resources of the candidate (Adiong
v. COMELEC, G.R. No. 103956, March 31, 1992). An exit poll is a species of electoral survey
conducted by qualified individuals or groups of
Q: Is the conduct of election survey prohibited? individuals for the purpose of determining the
probable result of an election by confidentially
A:No. The SC held that Sec. 5.4 of the Fair Elections asking randomly selected voters whom they have
Act prohibiting publication of survey results 15 voted for, immediately after they have officially
days immediately preceding a national election and cast their ballots (ABS-CBN Broadcasting
7 days before a local election violates the Corporation v. COMELEC, G.R. No. 133486, January
constitutional rights of speech, expression and the 28, 2000).
press because:
1. It imposes a prior restraint on the freedom of Requirements in the conduct of exit polls
expression
2. It is a direct and total suppression of a a. Pollster shall not conduct their surveys within
category of expression and even though such fifty (50) meters from the polling place,
suppression is only for a limited period; and whether said survey is taken in a home,
3. The governmental interest sought to be dwelling place and other places;
promoted can be achieved by means other b. Pollsters shall wear distinctive clothing and
than the suppression of freedom of expression prominently wear their identification cards
(SWS v. COMELEC, G.R. No. 147571, May 5, issued by the organization they represent;
2001). c. Pollsters shall inform the voters that they may
refuse to answer; and

2015GOLDEN NOTES
ELECTION LAW
The results of the exit polls may be announced NOTE: The formal verified claim shall include:
after the closing of the polls on Election Day, and a) A detailed enumeration of the circumstances
must identify the total number of respondents, and and occurrences which warrant the invocation
the places where they were taken. Said of the right of reply
announcement shall state that the same is b) Must be accompanied by supporting evidence,
unofficial and does not represent a trend (Sec. 27, such as a copy of the publication or recording
COMELEC Res. 9615, January 15, 2013). of the television or radio broadcast, as the case
may be.
Q: Does the conduct of exit polls transgress the c) If the supporting evidence is not yet available
sanctity and secrecy of the ballot? due to circumstances beyond the power of the
claimant, the latter shall supplement his claim
A: NO. In exit polls, the contents of the official as soon as the supporting evidence becomes
ballot are not actually exposed. Furthermore, the available, without delay on the part of the
revelation of whom an elector has voted for is not claimant.
compulsory, but voluntary. d) Claimant must furnish a copy of the verified
claim and its attachments to the media outlet
Voters may also choose not to reveal their concerned prior to the filing of the claim with
identities. Indeed, narrowly tailored the COMELEC (Sec. 14, COMELEC Res. 9615 as
countermeasures may be prescribed by the amended by COMELEC Res. 9631, February 1,
COMELEC, so as to minimize or suppress incidental 2013).
problems in the conduct of exit polls, without
transgressing the fundamental rights of our people Period of resolution
(ABS-CBN Broadcasting Corporation v. COMELEC,
G.R. No. 133486, January 28, 2000). The COMELEC, through the appropriate RED or the
Education and Information Department (EID), shall
Right to Reply review the formal verified claim within thirty-six
(36) hours from receipt thereof, and if
All registered political parties, party-list groups or circumstances warrant, endorse the same to the
coalitions and bona fide candidates shall have the media outlet involved, which shall, within twenty-
right to reply to charges published or aired against four (24) hours, submit its report to the RED or
them. The reply shall be given publicity by the EID, as the case maybe, explaining the action it has
newspaper, television, and/or radio station which taken to address the claim. The media outlet must
first printed or aired the charges with the same likewise furnish a copy of the said report to the
prominence or in the same page or section or in the claimant invoking the right to reply (Sec. 14,
same time slot as the first statement (Sec. 14, COMELEC Res. 9615 as amended by COMELEC Res.
COMELEC Resolution 9615 as amended by COMELEC 9631, February 1, 2013).
Res. 9631, February 1, 2013).
Remedy of a candidate who feels that his right
Persons who may invoke the right to reply to reply was not addressed
Registered political parties, party-list groups or File the appropriate petition and/or complaint
coalitions and bona fide candidates may invoke the before the Commission on Elections, Intramuros,
right to reply (Sec. 14, COMELEC Resolution 9615 as Manila (Sec. 14, COMELEC Res. 9615 as amended by
amended by COMELEC Res. 9631, 1 February 2013). COMELEC Res. 9631, February 1, 2013).
Time within which the candidate may invoke LIMITATION AND EXPENSES
the right to reply
Lawful expenditures
By submitting a formal verified claim within a non-
extendible period of thirty-six (36) hours from first 1. Traveling expenses
broadcast or publication against the media outlet 2. Compensation of campaigners, clerks,
to the COMELEC, through the appropriate Regional stenographers, messengers and other persons
Election Director (RED) (Sec. 14, COMELEC actually employed in the campaign
Resolution 9615 as amended by COMELEC 3. Telegraph and telephone tolls, postage, freight
Resolution 9631, 1 February 2013). and express delivery charges
4. Stationery, printing and distribution of printed
matters relative to candidacy
5. Employment of watchers at the polls

6. Rent, maintenance and furnishing of campaign A: YES. Section 5 of COMELEC Resolution No. 9615
headquarters, office or place of meetings or the implementing rules and regulations of
7. Political meetings or rallies Republic Act 9006 otherwise known as the Fair
8. Advertisements Elections Act in connection with the May 13, 2013
9. Employment of counsel, the cost of which shall elections, states that the aggregate amount that a
not be taken into account in determining the candidate or party may spend for election
amount of expenses which a candidate or campaign shall be three pesos (P3.00) for every
political party may have incurred voter currently registered in the constituency
10. Copying and classifying list of voters, where the candidate filed his certificate of
investigating and challenging the right to vote candidacy. Moreover, Sections 100, 101, and 103
of persons registered in the lists, the cost of of OEC regulates not just the election expenses of
which shall not be taken into account in the candidate but also of his
determining the amount of expenses which a contributor/supporter/donor as well as the
candidate or political party may have incurred expenses incurred by the latter (Ejercito v.
11. Printing sample ballots, the cost of which shall COMELEC, G.R. No. 212398, November 25, 2014).
not be taken into account in determining the
amount of expenses which a candidate or STATEMENT OF CONTRIBUTIONS AND
political party may have incurred (Sec. 102, BP EXPENSES
88, OEC).
Statement of contribution and expenses
NOTE: The cost of numbers 9, 10, 11 shall not be
taken into account in determining the amount of Every candidate and treasurer of the political party
expenses which a candidate or political party may shall, within 30 days after the day of the election,
have incurred. file in duplicate with the offices of the COMELEC,
the full, true and itemized statement of all
Limitations on expenses for the candidates and contributions and expenditures in connection with
political parties the election (Sec. 14, RA 7166).
a. For candidates - Three pesos (P3.00) for every Effects of failure to file the said statement
voter currently registered in the constituency
where the candidate filed his CoC; 1. No person elected to any public office shall
b. For other candidates without any political party enter upon the duties of his office until he has
and without support from any political party filed the statement of contributions and
Five pesos (P5.00) for every voter currently expenditures herein required. The same
registered in the constituency where the prohibition shall apply if the political party
candidate filed his CoC. which nominated the winning candidates, or
c. For Political Parties and party-list groups Five winning party-list group, fails to file the
pesos (P5.00) for every voter currently statement required herein.
registered in the constituency or 2. Such failure will constitute an administrative
constituencies where it has official candidates offense for which the offenders shall be liable
(Sec. 5, COMELEC Res. 9615, January 15, 2013). to pay an administrative fine ranging from
P1,000.00 to P30,000.00, in the discretion of
Q: Barbara Santos and Amando Dela Cruz are the Commission. This, however, does not apply
gubernatorial candidates in the province of to candidates for elective barangay office (Sec.
Cagayan. During the campaign period, Dela 14, RA 7166).
Cruz spent over 3,000,000 for ad campaign in
television alone and the aggregate sum of his BOARD OF ELECTION INSPECTORS AND
campaign expenses amounted to over BOARD OF CANVASSERS
4,000,000. The province of Cagayan has total
registered voters of 952,123 for the May 2013 Composition of Board of Election Inspectors
elections. Santos sought for Dela Cruzs (BEI)
disqualification on the ground of overspending
provided under Sec. 68 of the Omnibus Election A Board of Election Inspectors for each precinct
Code. In his defense, Dela Cruz claims that a shall be composed of:
supporter paid for such television campaign. 1. Chairman
The COMELEC decided in favor of Santos and 2. Poll Clerk; and
ordered Dela Cruz to vacate his office. Is the
COMELEC correct?

2015GOLDEN NOTES
ELECTION LAW
NOTE: The Chairman and the Poll Clerk must political party entitled to be represented,
be public school teachers and priority to be as members.
given to civil service eligibles. 3. District BoC of Metropolitan Manila The BoC
shall be composed of:
3. Two members, each representing the two a. a lawyer of the Commission, as chairman;
accredited political parties (Sec. 164, Art. XIV, b. a ranking fiscal in the district;
OEC). c. the most senior district school supervisor
in the district to be appointed upon
NOTE: The Commission shall, directly or through consultation with the Ministry of Justice
its duly authorized representatives constitute the and the Ministry of Education, Culture and
BEI. The appointment shall state the precinct to Sports, respectively; and
which they are assigned and the date of the d. one representative from each of the ruling
appointment (Ibid.). party and the dominant opposition
political party in the constituency
Period of Constitution of the BEI concerned, as members.
4. Municipal BoC The municipal BoC shall be
At least thirty days before the date when the voters composed of:
list is to be prepared in accordance with the a. the election registrar or a representative
Omnibus Election Code, in the case of a regular of the Commission, as chairman;
election or fifteen days before a special election b. the municipal treasurer;
(Ibid.). c. the district supervisor or in his absence
any public school principal in the
Powers of the BEI municipality and;
d. one representative from each of the ruling
1. Conduct the voting and counting of votes in party and the dominant opposition
their respective polling places; political party entitled to be represented,
2. Act as deputies of the Commission in the as members.
supervision and control of the election in the 5. BoC for newly created political subdivisions
polling places wherein they are assigned, to The Commission shall constitute a board of
assure the holding of the same in a free, canvassers and appoint the members thereof
orderly and honest manner; and for the first election in a newly created
3. Perform such other functions prescribed by province, city or municipality in case the
this Code or by the rules and regulations officials who shall act as members thereof have
promulgated by the Commission (Sec. 168, Art. not yet assumed their duties and functions
XIV, OEC). (Sec. 221, OEC).
Composition of the Board of Canvassers (BoC) Characteristics of the BoC
1. Provincial BoC The provincial board of 1. The BoC is a collegial body.

canvassers shall be composed of: 2. The BoC exercises ministerial duty.
a. the provincial election supervisor or a 3. The BoC exercises quasi judicial functions
senior lawyer in the regional office of the 4. Proceedings before BOC are summary
Commission, as chairman, 5. Canvassing shall be in public
b. the provincial fiscal, as vice-chairman, 6. Proceedings are continuous from day to day,
c. the provincial superintendent of schools, without interruption except to adjourn.
and 7. After Proclamation, BOC becomes functus
d. one representative from each of the ruling officio
party and the dominant opposition
political party in the constituency Supervision and control over the BoC
concerned entitled to be represented, as
members. The Commission shall have direct control and
2. City BoC The city BoC shall be composed of: supervision over the board of canvassers. Any
a. the city election registrar or a lawyer of member of the board of canvassers may, at any
the Commission, as chairman, time, be relieved for cause and substituted
b. the city fiscal motuproprio by the Commission (Sec. 227., BP 881,
c. the city superintendent of schools, and OEC).
d. one representative from each of the ruling
party and the dominant opposition

BoC for President and Vice-President b. another by the representative of the

ruling party and
Congress c. the third by the representative of the
dominant political opposition party (Sec.
Duties of Congress as BoC for President and
Vice President 229, OEC).
Congress shall determine the authenticity and due Process of safekeeping of transmitted election
execution of certificate of canvass. returns
1. Each certificate of canvass was executed, The BoC shall keep the ballot boxes containing the
signed, thumb marked by the Chair and election returns in a safe and secure room before
transmitted to Congress and after the canvass. The door to the room must
2. Each certificate contains the names of all be padlocked by three locks with the keys thereof
candidates and votes and words and figures. kept as follows:
3. No discrepancy in authentic copies 1. One with the chairman,
2. The other with the representative of the ruling
BoC for Senators party,
3. And the other with the representative of the
COMELEC en banc dominant opposition political party.
Manner of delivery and transmittal of election The watchers of candidates, political parties,
returns coalition of political parties and organization
collectively authorized by the Commission to
appoint watchers shall have the right to guard the
CITY AND MUNICIPAL PROVINCIAL AND
room. Violation of this right shall constitute an
BOARD OF DISTRICT BoC IN
election offense (Sec. 230, OEC).
CANVASSERS METROPOLITAN
MANILA
Process of canvassing by the BoC
The copy of the election The copy of the
returns must be: election returns shall
1. The BOC shall meet not later than six o'clock in
a. Duly placed inside a be:
the afternoon of Election Day at the place
sealed envelope a. Personally
designated by the Commission to receive the
signed delivered by the election returns and to immediately canvass
b. Affixed with the members of the BEI those that may have already been received.
imprint of the thumb to the Election 2. It shall meet continuously from day to day
of the right hand of Registrar for until the canvass is completed, and may
all the members of transmittal to the adjourn but only for the purpose of awaiting
proper BoC under the other election returns from other polling
the Board Of Election
places within its jurisdiction.
Inspectors, proper receipt to
3. Each time the board adjourns, it shall make a
c. Personally delivered be signed by all the total of all the votes canvassed so far for each
by the members of members thereof candidate for each office, furnishing the
the Board of Election (Sec. 299(b), OEC). Commission in Manila by the fastest means of
Inspectors to the city communication a certified copy thereof, and
making available the data contained therein to
or municipal board of
the mass media and other interested parties.
canvassers under 4. As soon as the other election returns are
proper receipt to be delivered, the board shall immediately resume
signed by all the canvassing until all the returns have been
members thereof canvassed.
(Sec. 299(a), OEC). 5. The respective Board Of Canvassers shall
prepare a certificate of canvass duly signed
and affixed with the imprint of the thumb of
The Election Registrar concerned shall place all the the right hand of each member, supported by a
returns intended for the BoC inside a ballot box statement of the votes received by each
provided with three padlocks whose keys shall be candidate in each polling place and, on the
kept as follows: basis thereof, shall proclaim as elected the
a. one by the election registrar, candidates who obtained the highest number

2015GOLDEN NOTES
ELECTION LAW
of votes cast in the province, city, municipality NOTE: The BoC, notwithstanding the fact that not
or barangay (Sec. 231, OEC). all the election returns have been received by it,
may terminate the canvass and proclaim the
NOTE: Failure to comply with this requirement candidates elected on the basis of the available
shall constitute an election offense. election returns if the missing election returns will
not affect the results of the election (Sec. 233, OEC)
Persons not allowed inside the canvassing
room Duty of the BoC when the integrity of ballots is
violated
1. Any officer or member of the Armed Forces of
the Philippines, including [Philippine National When integrity of ballots is violated The
Police] Commission shall not recount the ballots but shall
2. Any peace officer or any armed or unarmed forthwith seal the ballot box and order its
persons belonging to an extra-police agency, safekeeping (Sec. 237, OEC).
special forces, reaction forces, strike forces,
home defense forces, barangay self-defense 1. In case of material defects in the election
units, barangay tanods returns If it should clearly appear that some
3. Any member of the security or police requisites in form or data had been omitted in
organizations of government ministries, the election returns, the BoC shall call for all
commissions, councils, bureaus, offices, the members of the BEI concerned by the most
instrumentalities, or government-owned or expeditious means, for the same board to effect
controlled corporations or their subsidiaries the correction (Sec. 234, OEC).
4. Any member of a privately owned or operated 2. In case of the omission in the election returns of
security, investigative, protective or the name of any candidate and/or his
intelligence agency performing identical or corresponding votes The BoC shall require the
similar functions to enter the room where the BEI concerned to complete the necessary data
canvassing of the election returns are held by in the election returns and affix therein their
the board of canvassers and within a radius of initials (Sec. 234, OEC).
fifty meters from such room (Sec. 232, OEC).
NOTE: The right of a candidate to avail of this
NOTE: The BoC by a majority vote, if it deems provision shall not be lost or affected by the
necessary, may make a call in writing for the detail fact that an election protest is subsequently
of policemen or any peace officers for their filed by any of the candidates.
protection or for the protection of the election
documents and paraphernalia in the possession of 3. In case the election returns appear to be
the board, or for the maintenance of peace and tampered with or falsified If the election
order, in which case said policemen or peace returns submitted to the BoC appear to be
officers, who shall be in proper uniform, shall stay tampered with, altered or falsified after they
outside the room within a radius of thirty meters have left the hands of the BEI, or otherwise not
near enough to be easily called by the Board of authentic, or were prepared by the BEI under
Canvassers at any time (Ibid.) duress, force, intimidation, or prepared by
persons other than the member of the BEI, the
Duty of the BoC in case the election returns are BoC shall use the other copies of said election
delayed, lost or destroyed returns and, if necessary, the copy inside the
ballot box which upon previous authority
In case its copy of the election returns is missing, given by the Commission may be retrieved in
the board of canvassers shall: accordance with Sec. 220 hereof (Sec. 235,
1. Obtain such missing election returns from the OEC).
BEI concerned
2. If said returns have been lost or destroyed, the 4. In case of discrepancies in the election return
BoC, upon prior authority of the Commission, If it appears to the BoC that there exists
may use any of the authentic copies or a discrepancies in the other authentic copies of
certified copy of said election returns issued by the election returns from a polling place or
the Commission, and discrepancies in the votes of any candidate in
3. Direct its representative to investigate the case words and figures in the same return, and in
and immediately report the matter to the either case the difference affects the results of
Commission the election, the Commission, upon motion of
the BoC or any candidate affected and after due
notice to all candidates concerned, shall:

a. proceed summarily to determine 1. Precipitate canvassing

whether the integrity of the ballot box 2. Terrorism
had been preserved, and 3. Lack of sufficient notice to the members of the
b. once satisfied thereof shall order the BoC
opening of the ballot box to recount the 4. Improper venue (Sec. 2, Rule 4, COMELEC Res.
votes cast in the polling place solely for 8804, March 22, 2010).
the purpose of determining the true
result of the count of votes of the Idem Sonans
candidates concerned (Sec. 236, OEC).
Under Rule 7 of the rules for the appreciation of
NOTE: In abovementioned cases, the BoC shall ballots in Sec. 211 of the OEC, the idem sonans rule
continue the canvass of the remaining or means that a name or surname incorrectly written
unquestioned returns. If, after the canvass of all the which, when read, has a sound similar to the name
said returns, it should be determined that the or surname of a candidate when correctly written
returns which have been set aside will affect the shall be counted in his favor.
result of the election, no proclamation shall be
made except upon orders of the Commission after REMEDIES AND JURISDICTION IN ELECTION
due notice and hearing. Any proclamation made in LAW
violation hereof shall be null and void (Sec. 238,
OEC). PETITION NOT TO GIVE DUE COURSE TO
CERTIFICATE OF CANDIDACY
Instances of a tie in election result
Requisites for the grant of a petition to deny
1. Two or more candidates have received an due course to or cancel a CoC
equal and highest number of votes, or
2. In cases where two or more candidates are to 1. Material misrepresentation in the
be elected for the same position and two or qualifications for elective office, which includes
more candidates received the same number of age, residency, citizenship, and any other legal
votes for the last place in the number to be qualifications necessary to run for an elective
elected (Sec. 240, OEC). office; and
2. Deliberate attempt to mislead, misinform or
Duty of the BoC in case of tie hide a fact which would otherwise render a
candidate ineligible.
The board of canvassers shall:
1. Record this fact in its minutes NOTE: These two requirements must concur to
2. Notify, through a resolution, all the tied warrant the cancellation of the CoC.
candidates within 5 days from the recording of
such fact A verified petition may be filed exclusively on the
3. Hold a special public meeting at which the BoC ground that any material representation contained
shall proceed to the drawing of lots of the in the certificate as required under Sec. 74 is false.
candidates who have tied The petition may be filed not later than 25 days
4. Proclaim as elected the candidates who may be from the time of filing of the CoC, and shall be
favored by luck, and the candidates so decided, after due notice and hearing, not later
proclaimed shall have the right to assume than 15 days before the election (Sec. 78, OEC).
office in the same manner as if he had been
elected by plurality of vote. Jurisdiction over a petition to cancel a COC lies
5. Make a certificate stating the name of the with the COMELEC in division, not with the
candidate who had been favored by luck and COMELEC en banc (Garvida v. Sales, G.R. No.
his proclamation on the basis thereof (Sec. 240, 122872, September 10, 1997).
OEC).
Q: Joy and Bel both ran as mayoralty candidates
Instances when proceedings of the BoC are
in the Municipality of Marantao, Lanao del Sur.
considered illegal proceedings
Bel filed a Petition for Disqualification and to
Deny Due Course under Sec. 78 of the OEC
There is an illegal proceeding of the BoC when the
against Joy. Bel alleged that Joy was a double
canvassing is a sham or mere ceremony, the results
registrant, being a registered voter in Marawi
of which are pre-determined and manipulated as
City and Marantao. There being double
when any of the following circumstances are
registration, Joys subsequent registration in
present:
Marantao was null and void. Therefore, Joy was

2015GOLDEN NOTES
ELECTION LAW
disqualified to run for the position of municipal PETITION FOR DISQUALIFICATION

mayor of said municipality. Is Joys voter
registration a material fact, the falsity of which Petition for disqualification
would be a ground for a petition to deny due
course to her CoC? It is the remedy against any candidate who does
not possess all the qualifications required by the
A: YES. In Maruhom v. COMELEC, G.R. No. 179430, Constitution or law, or who commits any act
July 27, 2009, her prior registration makes her declared by law to be grounds for disqualification
subsequent registration null and void. She cannot (Sec.1, Rule 25, COMELEC Rules of Procedure).
be considered a registered voter in Marantao and
thus she made a false representation in her CoC Time of filing the petition for disqualification
when she claimed to be one.A persons voter
registration constitutes a material fact because it It may be filed any day after the last day for filing of
affects her eligibility to be elected as municipal certificates of candidacy, but not later than the date
mayor of Marantao. Sec. 39(a) of the LGC requires of proclamation (Sec. 3, Rule 25, COMELEC Rules of
that an elective official must be, among other Procedure).
things, a registered voter in the barangay,
municipality, city or province where she intends to Nature of the proceedings
be elected.
The petition is heard summarily. However, the
If a candidate states a material representation in COMELEC cannot disqualify a candidate without
the COC that is false, the COMELEC is empowered hearing and affording him opportunity to adduce
to deny due course to or cancel the CoC. The evidence to support his side and taking into
person whose COC is denied due course or account such evidence.
cancelled under Sec. 78 of the OEC is not treated as
a candidate at all, as if such person never filed a Final and executory judgment
COC.
A Decision or Resolution is deemed final and
Petition for disqualification v. Petition to deny executory if, in case of a Division ruling, no motion
due course for reconsideration is filed within the reglementary
period, or in cases of rulings of the Commission En
PETITION TO DENY Banc, no restraining order is issued by the
PETITION FOR
DUE COURSE/ CANCEL Supreme Court within five (5) days from receipt of
DISQUALIFICATION
COC the decision or resolution (Rule 23, Sec. 8,2013
Premised on Sec. 12 of Based on a statement of COMELEC Rules of Procedure ,as amended by
OEC, or Sec. 40 of the a material COMELEC Resolution No. 9523).
LGC. representation in the
said certificate that is Grounds for disqualification
false.
A person who is The person whose Those declared by final decision of a competent
disqualified under Sec. certificate is cancelled court, guilty of, or found by the Commission to be
68 is merely prohibited or denied due course suffering from any disqualification provided by law
to continue as a under Sec. 78 is not or the Constitution (Sec. 1, Rule 25,2013 COMELEC
candidate. treated as a candidate Rules of Procedure).
at all, as if he never filed Grounds for disqualification are:
a CoC. 1. Lacking qualification
Thus, a candidate who is A person whose Coc has 2. Filing of COC for more than 1 office
disqualified under Sec. been denied due course 3. False and Material representation in the CoC
68 can be validly or cancelled under Sec. 4. Disqualification under the LGC
substituted under Sec. 78 cannot be 5. Nuisance Candidate
77 of the OEC because substituted because he 6. Election offenses enumerated under Sec. 68 of
he remains a candidate is never considered as the OEC
until disqualified. candidate. 7. Declaration of insanity or incompetency by
competent authority
8. Sentenced by final judgment for subversion,
insurrection, rebellion or an offense which he
has been sentenced to a penalty of more than
18 months or a crime involving moral

turpitude, unless given plenary pardon/ candidates for municipal positions withdrew
amnesty. from the race. One candidate for Mayor
petitioned the COMELEC for the postponement
PETITION TO DECLARE FAILURE OF ELECTIONS of the elections and the holding of special
elections after the causes of such postponement
Instances where a failure of election may be or failure of elections shall have ceased.
declared 1. How many votes of the COMELEC
Commissioners may be cast to grant the
1. The election in any polling place has not been petition? Explain.
held on the date fixed on account of force 2. A person who was not a candidate at the
majeure, violence, terrorism, fraud, or other time of the postponement of the elections
analogous causes; decided to run for an elective position and
2. The election in any polling place had been filed a CoC prior to the special elections.
suspended before the hour fixed by law for the May his CoC be accepted? Explain.
closing of the voting on account of force 3. Suppose he ran as a substitute for a
majeure, violence, terrorism, fraud, or other candidate who previously withdrew his
analogous causes; and candidacy, will your answer be the same?
3. After the voting and during the preparation Explain.
and transmission of the election returns or
canvass thereof such election results in failure A:
to elect on account of force majeure, violence, 1. The COMELEC shall decide by a majority vote
fraud or analogous causes (Banaga Jr. vs of all its members on any case or matter
COMELEC, G.R. No. 134696, July 31, 2000). brought before it (Sec. 7, Art. IX-A of the 1987
Constitution). In Cua v. COMELEC, G.R. No.
NOTE: There is failure of elections only when the 80519-2, December 17, 1987, the Supreme
will of the electorate has been muted and cannot be Court stated that a two-to-one decision
ascertained (Benito v. COMELEC, G.R. No. 134913, rendered by a Division of the COMELEC and a
January 19, 2001). three-to-two decision rendered by the
COMELEC en banc was valid where only five
Power to declare a failure of election members took part in deciding the case.
The COMELEC has the power to declare a failure of 2. No, his CoC cannot be accepted. As a rule, in
election and this can be exercised motu proprio or cases of postponement or failure of election no
upon verified petition (Loong v. COMELEC, G.R. Nos. additional CoC shall be accepted (Sec. 75, OEC).
107814-15, May 16, 1996).
NOTE: This rule does not apply in cases of
NOTE: The hearing is summary in nature and the substitution of candidates in case of death,
COMELEC may delegate to its lawyers the power to disqualification or withdrawal of another
hear the case and to receive evidence (Ibid.). under Sec. 77.
The COMELEC en banc by majority vote may grant 3. No, the answer will be different. An additional
the postponement of elections and failure of CoC may be accepted in cases of postponement
elections. or failure of election if there was a substitution
of candidates; but the substitute must belong
Q: Is low turn-out of voters enough basis to to and must be endorsed by the same party
grant a petition to declare a failure of election? (Sec.75 OEC).
A: NO. All the law requires is that a winning Postponement of elections v. Failure of
candidate must be elected by a plurality of valid elections
votes, regardless of the actual number of ballots
cast. Thus, even if less than 25% of the electorate in POSTPONEMENT OF FAILURE OF
the questioned precincts cast their votes, the same ELECTIONS ELECTIONS
must still be respected (Mitmug v. COMELEC, G.R. Any serious cause of:
No. 106270-73, February 10, 1994). a. Force Majeure
b. Violence
Q: Due to violence and terrorism attending the c. Terrorism
casting of votes in a municipality in Lanao del d. Loss or destruction of election paraphernalia
Sur, it became impossible to hold therein free, e. Other analogous cases
orderly and honest elections. Several

2015GOLDEN NOTES
ELECTION LAW
Serious impossibility to Failure to elect and Nature of pre-proclamation controversy

have free and orderly affect results of
elections elections It shall be heard summarily by the COMELEC. Its
Grounds must exist Grounds may occur any decision shall be executory after 5 days from
before voting time before receipt by the losing party, unless contrary orders
proclamation from the SC.
1. Verified petition by 1. Verified petition by
any interested any interested Q: Are there pre-proclamation cases in
person or motu person elections for President, Vice-president and
proprio by 2. Due Notice Members of the House of Representatives on
COMELEC en banc 3. Hearing matters relating to the preparation,
2. Due notice transmission, receipt, custody, and
3. Hearing appreciation of the election returns or the
1. Election is 1. Declaration of certificates of canvass?
postponed Failure of elections
2. Conduct elections 2. Holding of A:
reasonably close to continuation of GR: No (Sec. 38, RA 9369).
elections not held, elections
but not later than 30 reasonably close to XPNs:
days from cessation election not held, 1. Correction of manifest errors
of cause but not later than 2. Questions affecting the composition or
30 days from proceedings of the Board of Canvassers(see:
cessation of cause. Sec. 1, Rule 3, COMELEC Res. No. 8804, March
22, 2010); and
Q: Is a petition to declare failure of election
different from a petition to annul the election NOTE: However, this does not preclude the
results? authority of the appropriate canvassing body
motu proprio or upon written complaint of an
A: NO. A prayer to declare failure of elections and a interested person to correct manifest errors in
prayer to annul the election results are actually of the certificate of canvass or election before it
the same nature. Whether an action is for (Sec. 38, RA 9369).
declaration of failure of elections or for annulment
of election results, based on allegations of fraud, 3. Determination of the authenticity and due
terrorism, violence or analogous, the OEC execution of certificates of canvass as provided
denominates them similarly (Banaga, Jr. v. in Sec. 30 of RA 7166, as amended by RA 9369.
COMELEC, G.R. No. 134696, July 31, 2000).
NOTE:
PRE-PROCLAMATION CONTROVERSIES GR: The COMELEC is restricted to a mere
examination of returns on their face and not to go
Pre-proclamation controversies beyond and investigate irregularities (Belac v.
COMELEC, G.R. No. 145802, April 4, 2001).
They refer to any question pertaining to or
affecting the proceedings of the Board of XPN: If there is a prima facie showing that return is
Canvassers, and the preparation, transmission, not genuine (Ibid.).
receipt, custody and appreciation of election
returns which may be raised by any candidate or No pre-proclamation cases are allowed in case of
by any registered political party or coalition of barangay election (Sec. 9, RA 6679).
political parties before the Board or directly with
the COMELEC in relation to the preparation, Termination of pre-proclamation cases
transmission, receipt, custody and appreciation of
election returns (Sec. 241, OEC). GR: At the beginning of term of the officers (Sec. 16,
RA 7166).
NOTE: The purpose of this kind of controversy is to
ascertain winners in the elections on basis of XPNs:
election returns duly authenticated by BEI and 1. When based on evidence,
admitted by the BoC (Abella v. Larrazabal, G.R. No. COMELEC determines that petition is
87721-30, December 21, 1989). meritorious
2. The SC in a petition for certiorari issues a
contrary order; or

3. The case is not a pre-proclamation case Q: Is the COMELEC precluded from exercising
(Peaflorida v. COMELEC, G.R. No. 125950, powers over pre proclamation controversies,
November 18, 1997). when the Electoral Tribunal acquires
jurisdiction?
Issues which may be raised in a pre-
proclamation controversy A:
GR: Yes.
1. Illegal composition or proceedings of the BoC
2. Canvassed election returns are incomplete, XPNs:
contain material defects, appear to be 1. BOC was improperly constituted
tampered with or falsified; or contain 2. Proclamation was null and void
discrepancies in the same returns or in other 3. Quo warranto is not the proper remedy
authentic copies thereof as mentioned in Sec. 4. What was filed was a petition to annul a
233, 234, 235, and 236 of BP 881. proclamation, and not a Quo warranto or
Election Protest
NOTE: An incomplete canvass is illegal and 5. Election Contest expressly made without
cannot be the basis of a valid proclamation. A prejudice to Pre Proclamation Controversy or
proclamation made where the contested it was made ad cautelam
returns set aside will affect the result of the
election and the board of canvassers ELECTION PROTESTS
proceeded to proclaim without the authority
from the COMELEC is null and void (Sema v. Post-election disputes
COMELEC, G.R. No. 141249-50, December 13,
2000). They are disputes which arise or are instituted
after proclamation of winning candidates and
3. Election returns were prepared under duress which issues pertain to the casting and counting of
threat, coercion, or intimidation, or they are votes (Election Protests), or to the eligibility or
obviously manufactured or not authentic. disloyalty of the winning candidates (Quo
4. When substitute or fraudulent returns in warranto).
controverted polling places were canvassed,
the results of which materially affected the Nature of an election contest
standing of the aggrieved candidate/s (Sec.
243, OEC). It is a special summary proceeding the object of
5. Irregularities in relation to preparation, which is to expedite the settlement of
transmission, receipt, custody, and controversies between candidates as to who
appreciation of election returns and certificate received the majority of legal votes.
of canvass.
NOTE: Statutes providing for election contests are
Petition to annul or suspend the proclamation to be liberally construed to the end that the will of
the people in the choice of public officers may not
It is a remedy where there is a manifest error on be defeated by mere technical objections. An
the face of the transmitted returns or variance of election contest, unlike an ordinary action, is
results from the election returns and CoC, and a imbued with public interest since it involves not
winning candidate is about to be, or has already only the adjudication of the private interests of
been proclaimed on the basis thereof. rival candidates but also the paramount need of
dispelling the uncertainty which beclouds the real
The COMELEC is required to hear the petition choice of the electorate with respect to who shall
immediately and the ballots may be ordered to be discharge the prerogatives of the office within their
manually recounted to verify the manifest errors or gift. Moreover, it is neither fair nor just to keep in
alleged variance. office for an uncertain period one whos right to it
is under suspicion. It is imperative that his claim be
NOTE: The filing of a petition to annul or suspend immediately cleared not only for the benefit of the
the proclamation shall suspend the running of the winner but for the sake of public interest, which
period within which to file an election protest or can only be achieved by brushing aside
quo warranto proceedings. technicalities of procedure which protract and
delay the trial of an ordinary action (Vialogo v.
COMELEC, G.R. No. 194143, October 4, 2011).

2015GOLDEN NOTES
ELECTION LAW
Where election protests can be filed term coincides with the term of the 2004-2010
Vice-Presidency. She was elected and assumed
1. COMELEC sole judge of all contests relating to the office of senator. Will the protest prosper?
elections, returns, and qualifications of all
elective regional, provincial and city officials A: NO. In assuming the office of Senator, Karen has
(reviewable by SC under Rule 64 using Rule effectively abandoned or withdrawn this protest.
65). Such abandonment or withdrawal operates to
2. Presidential Electoral Tribunal President and render moot the instant protest. Moreover, the
Vice President dismissal of this protest would serve public
3. SET Senator interest as it would dissipate the aura of
4. HRET representative uncertainty as to the results of the election
5. RTC over contests for municipal officials (Legarda v. De Castro, PET case no. 003, January 18,
which may be appealed to COMELEC 2008).
6. MeTC or MTC for barangay officials which
may be appealed to COMELEC Effect if the protestant accepts a permanent
appointment
Grounds for the filing of election protests
Acceptance of a permanent appointment to a
1. Fraud regular office during the pendency of his protest is
2. Vote-buying an abandonment of the electoral protest. The same
3. Terrorism is true if a protestant voluntarily sought election to
4. Presence of flying voters an office whose term would extend beyond the
5. Misreading or misappreciation of ballots expiry date of the term of the contested office, and
6. Disenfranchisement of voters after winning the said election, took her oath and
7. Unqualified members of board of election assumed office and there after continuously serves
inspector it. The reason for this is that the dismissal of the
8. Other election irregularities. protest would serve public interest as it would
dissipate the aura of uncertainty as to the results of
NOTE: Pendency of election protest is not the presidential election, thereby enhancing the all-
sufficient basis to enjoin the protestee from to crucial political stability of the nation during this
assuming office. period of national recovery (Santiago v. Ramos,
P.E.T. Case No. 001, February 13, 1996).
A protestant has the right to withdraw his protest
or drop polling places from his protest. The Requisites for an execution pending appeal in
protestee, in such cases, has no cause to complain election protest cases
because the withdrawal is the exclusive
prerogative of the protestant. 1. It must be upon motion by the prevailing party
with notice to the adverse party
Content of an election protest 2. There must be good reasons for the said
execution
It must be initiated by filing a protest that must 3. The order granting the said execution must
contain the following allegations: state the good reasons (Navarosa v. COMELEC,
a. The protestant is a candidate who duly G.R. No. 157957, September 18, 2003)
filed a COC and was voted for in the
election. Good reasons
b. The protestee has been proclaimed
c. That the petition was filed within ten (10) A combination of two or more of the following:
days after the proclamation (Miro v. 1. That public interest is involved or the will of
COMELEC, G.R. No. L-57574, April 20, 1983). the electorate
2. The shortness of the remaining portion of the
Q: On June 23, 2004, the National Board of term of the contested office
Canvassers (NBC) proclaimed Sitro as the duly 3. The length of time that the election contest has
elected Vice-President of the Philippines. Karen been pending (Ramas v. COMELEC, G.R. No.
was the person who obtained the second 130831. February 10, 1998).
highest number of votes. Karen filed a protest
with the PET praying for the annulment of NOTE: If instead of issuing a preliminary injunction
Sitro's proclamation on the ground of fraud and in place of a TRO, a court opts to decide the case on
manipulation of the results. While the protest its merits with the result that it also enjoins the
was pending, Karen ran in the Senate, which same acts covered by its TRO, it stands to reason

that the decision amounts to a grant of preliminary cast? disqualified

injunction. Such injunction should be deemed in because of
force pending any appeal from the decision. The Whether there ineligibility or
view that execution pending appeal should still were disloyalty to the
continue notwithstanding a decision of the higher irregularities in Philippines.
court enjoining such executiondoes not make the conduct of
sense. It will render quite inutile the proceedings the election
before such court (Panlilio v. COMELEC, G.R. No. which affected
184286, February 26, 2010). its results.
Best pieces of evidence in an election contest Function of Senate and House of

Representatives Electoral Tribunals
1. Ballots are the best and most conclusive
evidence in an election contest where the The Senate and the House of Representatives each
correctness of the number of votes of each have an Electoral Tribunal which shall be the sole
candidate is involved (Delos Reyes, G.R. No. judge of all contests relating to elections, returns,
170070, February 28, 2007). and qualifications of their respective members.
2. Election returns are the best evidence when Such jurisdiction begins only after a candidate has
the ballots are lost, destroyed, tampered or become a member of the legislative body. The
fake. judicial review of the decisions of these electoral
tribunals is possible only in the exercise of the SCs
QUO WARRANTO extraordinary jurisdiction.
Quo warranto proceeding for an elective office Q: In March 2013, COMELEC First Division
issued a resolution cancelling Kats CoC on the
It is a proceeding to determine the right to the use ground that she is not a citizen of the
or exercise of an office and to oust the holder from Philippines because of her failure to comply
its enjoyment, if his claim is not well-founded or if with the requirements of the Citizenship
he has forfeited his right to enjoy the privilege. Retention and Re-acquisition Act of 2003. On
April 8, 2013, Kat filed an MR claiming that she
Unlike an election protest, which can only be filed is a natural-born Filipino citizen, but it was
by a candidate, any voter can file a petition for quo denied by COMELEC on May 14 for lack of merit
warranto. and declared it final and executory. Kat,
however, was proclaimed the winner of the
NOTE: Election Protests and Quo warranto May 2013 elections, and took her oath of office
proceedings against a Congressman-elect, Senator- but is yet to assume office on June 30, 2013. Kat
elect, President-elect and VP-elect are brought contends that COMELEC lost jurisdiction
before the appropriate electoral tribunals created pursuant to Sec. 17, Art. 6 of the 1897
by the Constitution Constitution which states that HRET has the
exclusive jurisdiction to be the sole judge of all
Election protest v. a Quo warranto case under contests relating to the election, returns and
the OEC qualifications of the Members of the HOR. Is
the contention of Kat correct?
BASIS ELECTION QUO
PROTEST WARRANTO A: NO. The Court has invariably held that once a
By a losing By any voter who winning candidate has been proclaimed, taken
candidate for is a registered his oath, and assumed office as a Member of the
the same office voter in the HOR, the COMELEC's jurisdiction over election
for which the constituency contests relating to his election, returns, and
Who may qualifications ends, and the HRET's own
winner filed his where the
file jurisdiction begins. Here, Kat cannot be considered
COC winning
candidate sought a Member of the HoR because, primarily, she has
to be disqualified not yet assumed office. To repeat what has earlier
ran for office been said, the term of office of a Member of the
Who received Whether the HOR begins only at noon on the thirtieth day of
the majority or candidate who June next following their election. Thus, until such
Issue/s plurality of the was proclaimed time, the COMELEC retains jurisdiction (Reyes v.
votes which and elected COMELEC, G.R. No. 207264, June 25, 2013).
were legally should be

2015GOLDEN NOTES
ELECTION LAW
PROSECUTION OF ELECTION OFFENSES Jurisdiction of courts to hear and decide

election offenses
Authority to prosecute election offenses
GR: The RTC has the exclusive and original
COMELEC is vested with the power of a public jurisdiction to hear and decide any criminal action
prosecutor with the exclusive authority to conduct or proceedings for violation of the OEC.
the preliminary investigation and prosecution of
election offenses punishable under the OEC (Sec. XPN: The MTC has jurisdiction over offenses
265, OEC). relating to failure to register or failure to vote.
Q: May the COMELEC delegate such authority? Q: President Gemma Tiama was accused of
electoral fraud and sabotage. COMELEC issued a
A: YES. The COMELEC en banc may delegate such Resolution approving the creation of a
authority to any public prosecutor but always COMELEC-DOJ Joint Panel, which shall conduct
subject to the control and supervision of the preliminary investigation on the alleged
COMELEC (People v. Delgado, G.R. Nos. 93419-32, offenses and anomalies committed during the
September 18, 1990). elections. Gemma filed a petition before the SC
arguing that the Joint Panel has no jurisdiction
Q: In cases where the prosecutor exercises to conduct preliminary investigation of the
delegated authority to conduct preliminary electoral sabotage cases. Is Gemmas contention
investigation of election offenses and such acceptable?
officer, after investigation, already resolves the
issue of probable cause, where should one A: NO. DOJ and COMELEC exercise concurrent
appeal the resolution? jurisdiction in conducting preliminary
investigation of election offenses. The grant of
A: From such resolution, appeal to the COMELEC exclusive power to investigate and prosecute cases
lies, and the latters ruling on the appeal would be of election offenses to the COMELEC was not by
immediately final and executory. However, if the virtue of the Constitution but by the OEC which
preliminary investigation is conducted by the was eventually amended by Sec. 43 of RA 9369.
COMELEC itself, appeal to the COMELEC is Thus, the DOJ now conducts preliminary
unavailing, but the respondent may file a motion investigation of election offenses concurrently with
for reconsideration of the resolution of the the COMELEC and no longer as mere deputies.
COMELEC en banc finding probable cause (Faelnar
v. People, G.R. Nos. 140850-51. May 4, 2000). Clearly, COMELEC recognizes the need to delegate
to the prosecutors the power to conduct
Election offenses preliminary investigation. Otherwise, the prompt
resolution of alleged election offenses will not be
1. Vote buying and vote selling attained. This delegation of power, otherwise
2. Conspiracy to bribe voters known as deputation, has long been recognized
3. Wagering upon result of election and, in fact, been utilized as an effective means of
4. Coercion of subordinates disposing of various election offense cases.
5. Threats, intimidation, terrorism, use of Apparently, as mere deputies, the prosecutors
fraudulent device or other forms of coercion played a vital role in the conduct of preliminary
6. Coercion of election officials and employees investigation, in the resolution of complaints filed
7. Appointment of new employees, creation of before them, and in the filing of the information
new position, promotion, giving of salary with the proper court. COMELEC, though it acts
increases jointly with the DOJ, remains in control of the
8. Intervention of public officers and employees proceedings. In no way can we say that the
9. Undue influence COMELEC has thereby abdicated its independence
10. Unlawful electioneering to the executive department (Jose Miguel T. Arroyo.
11. Others (Sec. 261, OEC). DOJ, et al., G.R. No. 199082, September 18, 2012).
Prescriptive period of election offenses
5 years from the date of their commission (Sec. 267,

OEC).

LOCAL GOVERNMENTS Dual characteristic of public corporation
Local Government Unit 1. Public or governmental - It acts as an agent

of the State as the government of the territory
A political subdivision of the State which is it occupies and its inhabitants within the
constituted by law and possessed of substantial municipal limits. The municipal corporation
control over its own affairs. Remaining to be an exercises, by delegation, a part of the
intra-sovereign subdivision of one sovereign nation, sovereignty of the state.
but not intended, however, to be an imperium in 2. Private or proprietary - It acts as an agent of
imperio (empire within empire), the local the community in the administration of local
government unit is autonomous in the sense that it affairs which is wholly beyond the sphere of
is given more powers, authority, responsibility and public purposes, for which its governmental
resources (Alvarez v. Guingona, G.R. No. 118303, powers are conferred. It acts as separate
January 31, 2996). entity for its own purposes, and not as a
subdivision of the State.
Kinds of Local Governments
NOTE: Not all corporations, which
1. Provinces A political and territorial corporate are not government owned or controlled, are ipso
body consisting of several municipalities and facto to be considered private corporations. These
cities. corporations are treated by law as agencies or
2. Municipalities Consist of groups of barangays, instrumentalities of the government which are not
including municipal districts. subject to the tests of ownership or control and
3. Cities Consist of more urbanized and economic viability but to different criteria relating
developed barangays. to their public purposes/interests or constitutional
a. Highly urbanized cities Determined by policies and objectives and their administrative
law. relationship to the government or any of its
b. Cities not raised to highly urbanized Departments or Offices.
category but their charters prohibit their
voters from voting in provincial elections. The economic viability test would only apply in
c. Component cities Still under the province cases wherein the corporation is engaged in some
in some way. economic activity or business function for the
government (Boy Scouts of the Philippines v. COA, G.R.
4. Barangays Basic political and territorial self- No. 177131, June 7, 2011).
governing body corporate and is subordinate to
the municipality or city of which it forms part. DISTINGUISHED FROM GOCC
5. Autonomous Regions A political and territorial
subdivision that has a certain degree of freedom Government owned and controlled
from the national government. corporations (GOCC)
PUBLIC CORPORATIONS Any agency organized as a stock or non-stock

corporation, vested with functions relating to
Public corporation public needs, whether governmental or
proprietary in nature, and owned by the
It is one created by the State, either by general or Government of the Republic of the Philippines
special act for purposes of administration of directly or through its instrumentalities either
local government, or rendering service for wholly or, where applicable as in the case of stock
the public interest. corporations, to the extent of at least a majority of
its outstanding capital stock (Sec. 3 (o), Chapter 1
Criterion to determine whether a corporation is of R.A. 10149, GOCC Governance Act of 2011).
a public corporation
NOTE: Provided that such agencies are further
It is the relationship of the corporation to the state. categorized by Department of Budget, CSC, and COA
If it was created by the State as its own agency to for purposes of the exercise and discharge of their
help it in carrying out its governmental functions, it respective powers, functions and responsibilities
is public. Otherwise, it is private. (Sec. 2 (13) of E.O. No. 292 Administrative Code of
1987).

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Elements of a GOCC 2. Municipal corporations - A political and

corporate body constituted by the
1. Any agency organized as a stock or non- incorporation of inhabitants for the purpose of
stock corporation local government. It is established by law,
2. Vested with functions relating to public partly as an agency of the State to assist in the
needs whether governmental or proprietary in civil government of the country, but chiefly to
nature regulate and administer the local or internal
3. Owned by the government directly or through affairs of the city, town or district which is
its instrumentalities either wholly, or, incorporated.
where applicable as in the case of stock
corporations, to the extent of at least fifty-one MUNICIPAL CORPORATIONS
(51) of its capital stock (Leyson, Jr. v. Office of
the Ombudsman, G.R. No. 134990, April 27, Essential elements of a municipal corporation
2000).
1. Legal creation or incorporation;
Public corporation v. GOCC 2. Corporate name;
PUBLIC NOTE: The Sangguniang Panlalawigan may, in

BASIS GOCC
CORPORATION consultation with the Philippine Historical
Administration of Performance of Commission, change the name of component
local government functions relating cities and municipalities, upon the
or rendering to public needs, recommendation of the sanggunian concerned
As to
service for the whether (Sec. 13, LGC).
Purpose
public interest. Governmental or
Proprietary in 3. Inhabitants; and
nature. 4. Territory.
Created by the Created by
As to
state, either by Congress or by Nature of a municipal corporation
who
general act or incorporators.
creates
special act. Every LGU created or recognized under the LGC is a
Through (1) Original body politic and corporate endowed with powers to
legislation. charters or special be exercised by it in conformity with law. As such, it
As to laws or shall exercise powers as a political subdivision of
how (2) General the National Government and as a corporate entity
created corporation law, as representing the inhabitants of its territory (Sec. 15,
a stock or non- LGC).
stock
Dual function of Municipal Corporation
CLASSIFICATIONS
1. Public or governmental - It acts as an agent of
Kinds of corporations the State or the government of the territory it
occupies and its inhabitants. Examples are:
1. Quasi-public corporations - Private a. Delivery of sand and gravel for the
corporations that render public service, construction of a municipal bridge
supply public wants, or pursue other (Municipality of San Fernando v. Firme, G.R.
eleemosynary objectives. While purposely No. L-52179, April 8, 1901).
organized for the gain or benefit of its
members, they are required by law to b. The collection and disposal of garbage as
discharge functions for the public benefit. It conserving the public health is
must be stressed that a quasi-public governmental in nature (Department of
corporation is a specie of private Public Services Labor Unions v. CIR, G.R. No.
corporation, but the qualifying factor is the L-15458, January 28, 1961).
type of service the former renders to the 2. Private or proprietary - It acts as an agent of
public: if it performs a public service, the community in the administration of local
then it becomes a quasi-public affairs. As such, it acts as a separate entity acting
corporation (Philippine Society for the for its own purposes, and not as a subdivision of
Prevention of Cruelty to Animals v. Commission the State (Bara Lidasan v. COMELEC, G.R. No. L-
on Audit, G.R. No. 169752, September 25, 2007). 28089, October 25, 1967). Examples are:

a. Maintenance of cemeteries (City of Manila v. State as private corporations (Hebron v. Reyes, G.R.
IAC, G.R. No. 71159, November 15, 1989). No. L-9124, July 28, 1958).
b. The renting of a city of its private property
(Chamber of Filipino Retailers v. Villegas, Types of municipal corporations
G.R. No. L-29819, April 14, 1972).
1. De jure municipal corporations - Created or
Q: The plaintiffs are creditors of the City of recognized by operation of law.
Manila as it existed during the Spanish colonial 2. Municipal corporations by prescription -
rule. As the Philippine Islands was ceded to the Exercised their powers from time immemorial
United States, the old City of Manila was with a charter, which is presumed to have
reincorporated during the American regime. An been lost or destroyed.
action was brought against the City of Manila 3. De facto municipal corporations It is where
upon the theory that the city, under its present the people have organized themselves, under
charter from the government of the Philippine color of law, into ordinary municipal bodies
Islands, is the same juristic person as it existed and have gone on, year after year, raising
during the Spanish rule and liable upon the taxes, making improvements, and
obligations of the old city. Is the present exercising their usual franchises, with their
municipality liable for the civil obligations of rights dependent quite as much on
the city incurred prior to the cession to the acquiescence as on the regularity of their
United States? origin.
A: YES. While military occupation or territorial NOTE: Inquiries about the legal existence of a
cession may work a suspension of the de facto corporation is reserved to the State in
governmental functions of municipal corporations, a proceeding for quo warranto or other direct
such occupation or cession does not result in their proceeding (Mun. of Malabang, Lanao del Sur v.
dissolution. The legal entity of the City of Manila Benito, G.R. No. L-28113, March 28, 1969).
survived both its military occupation by, and its
cession to, the United States, and, as in law, the Q: President Garcia issued EO 353 creating the
present city, as the successor of the former city, is municipal district of San Andres, Quezon, by
entitled to the property rights of its predecessor, it segregating from the municipality of San
is also subject to its liabilities. The present city is in Narciso 6 barrios and their respective sitios. By
every legal sense the successor of the old. The virtue of EO. 174, issued by President
argument that by the change in the sovereignty the Macapagal, the municipal district of San Andres
old city was extinguished in the same manner that was later officially recognized to have gained
the agency dies upon the death of the principal, the status of a fifth class municipality.
loses sight of the dual character of municipal
corporations, government and corporate. Only The Municipality of San Narciso filed a petition
such governmental functions as are incompatible for quo warranto with the RTC, against the
with the present sovereignty may be considered officials of the Municipality of San Andres,
suspended. The juristic identity of the corporation seeking the declaration of nullity of EO 353.
is not affected by the change of sovereignty. The The municipality contended that EO 353, a
City of Manila is liable to its creditors (Vilas v. City presidential act, was a clear usurpation of the
of Manila, G.R. Nos. 53-54 and 207, April 3, 1911). inherent powers of the legislature and in
violation of the constitutional principle of
In the exercise of corporate, non-governmental separation of powers. The Municipality of San
functions, municipal governments stand on the Andres, however, contended that the case had
same level as the National Government become moot and academic with the enactment
of Sec. 442 (d) of the LGC which provides for the
The constitutional provision limiting the authority of continued existence of municipalities created
the President over local governments to general by executive orders. Is the Municipality of San
supervision is unqualified and applies to all Narciso correct?
constitutional powers of the President as regards
the corporate functions of local governments, A: NO. EO 353 was issued in 1959 but it was only
inasmuch as the Executive never had any control after 30 years that the Municipality of San Narciso
over said functions. The same powers are not under finally decided to challenge the legality of the EO.
the control even of Congress, for, in the exercise of Created in 1959, the Municipality had been in
corporate, non-governmental or non-political existence for 6 years when the Court decided the
functions, municipal corporations stand practically case of Pelaez v. Auditor General which declared
on the same level as the National Government or the void ab initio several EOs creating 33

2015GOLDEN NOTES
LOCAL GOVERNMENTS
municipalities in Mindanao. The ruling could have meet the requisites set forth by Sec. 442 (d) of the
sounded the call for a similar declaration of the LGC which requires that in order for a municipality
unconstitutionality of EO 353 but it was not to be created by executive order to receive recognition,
the case. Granting that EO 353 was a complete it must have a set of elective municipal officials
nullity for being result of an unconstitutional holding office at the time of effectivity of the LGC.
delegation of legislative power, the Municipality of Andong has never elected its municipal officers at
San Andres created by the EO attained the status of all. Out of obeisance to the ruling in Pelaez, the
a de facto municipal corporation. Certain national government ceased to recognize the
governmental acts all pointed to the States existence of Andong, depriving it of its share of the
recognition of the continued existence of the public funds, and refusing to conduct municipal
municipality, i.e., it being classified as a fifth class elections for the void municipality. Section 442(d)
municipality, the municipality had been covered by does not serve to affirm or reconstitute the
the 10th Municipal Circuit Court and its inclusion in judicially dissolved municipalities which had been
the Ordinance appended to the 1987 Constitution. previously created by executive orders. They
Equally significant is Section 442(d) of the Local remain inexistent unless recreated through specific
Government Code to the effect that municipal legislative enactments. The provision only affirms
districts organized pursuant to presidential the legal personalities only of those municipalities
issuances or executive orders and which have their which may have been created through executive
respective sets of elective municipal officials fiat but whose existence have not been judicially
holding office at the time of the effectivity of the annulled (Camid v. Office of the President, G.R. No.
Code shall henceforth be considered as regular 161414, January 17, 2005).
municipalities. The power to create political
subdivisions is a function of the legislature. NOTE:
Congress did just that when it incorporated Sec. I. The color of authority required for the
442 (d) in the LGC. Curative laws are validly organization of a de facto municipal corporation
accepted in this jurisdiction, subject to the usual may be:
qualification against impairment of vested rights. 1. A valid law enacted by the legislature.
All considered, the de jure status of the 2. An unconstitutional law, valid on its face,
Municipality of San Andres in the province of which has either:
Quezon must now be conceded (Municipality Of San a. been upheld for a time by the courts;
Narciso v. Mendez, G.R. No. 103702, December 6, or
1994). b. not yet been declared
void; provided that a warrant for its
Q: President Macapagal issued several creation can be found in some other
executive orders creating 33 municipalities in valid law or in the recognition of its
Mindanao, one of which is the Andong in Lanao potential existence by the general laws
Del Sur. He justified the creation of such or constitution of the state.
municipalities under Sec. 68 of the Revised
Administrative Code. However, in the case of II. There can be no de facto municipal corporation
Pelaez v. Auditor General, the Court held that unless either directly or potentially, such a de jure
these EOs were null and void because Sec. 68 corporation is authorized by some legislative fiat.
did not meet the requirements for a valid III. There can be no color of authority in an
delegation of legislative power to the executive unconstitutional statute alone, the invalidity of
branch. Among the annulled EOs was the one which is apparent on its face.
creating the Municipality of Andong. Petitioner IV. There can be no de facto corporation created to
Camid is a resident of Andong and claims that take the place of an existing de jure corporation, as
despite the ruling in Pelaez, Andong remains in such organization would clearly be a usurper
existence citing the case of Municipality of San (Municipality of Malabang v. Benito, G.R. No. L-
Narciso where the Court affirmed the status of 28113, March 28, 1968).
the Municipality of San Andres as a de facto
municipal corporation and citing Sec. 442 (d) of Creation of municipalities by the president
the LGC recognizing municipal corporations
created by executive order. Is Camid correct? The EOs, which created municipalities are
declared null and void because Sec. 68 of the
A: NO. The case of Municipality of San Narciso is Revised Administrative code was repealed by the
different from the case of Andong. Unlike in San 1935 constitution (Pelaez v. Auditor General, G.R.
Narciso, the Executive Order creating Andong was No. L-23825, December 24, 1965). Hence,
judicially declared null and void ab initio by the municipalities created by an EO could not claim
Court in the case of Pelaez. Andong also does not to be a de facto municipal corporation, because

there was no valid law authorizing incorporation. requirements like: considered a

a. Authorization by a corporation in relation
Q: The Municipality of Sinacaban was created valid law to someone who dealt
by EO 258 of then President Quirino. Based on b. A colorable and bona with it and acquiesced
the technical description of EO 258, Sinacaban fide attempt to in its exercise of its
laid claims to 5 barrios located in the adjoining organize under a valid corporate functions or
Municipality of Jimenez. The Municipality of law entered into a contract
Jimenez, while conceding that under EO 258 the c. An assumption of with it (Martin, Public
disputed area is part of Sinacaban, nonetheless, powers conferred Corporations, 1985
asserted jurisdiction based on an agreement it under the law ed.,p.20).
had with the Municipality of Sinacaban which
fixed the common boundaries of the two It primarily attends to
municipalities. The Provincial Board declared the needs of the general
the disputed area to be part of Sinacaban. welfare.
Jimenez filed a petition in the RTC alleging that REQUISITES FOR CREATION, CONVERSION,
in accordance with Pelaez v. Auditor General, DIVISION, MERGER, AND DISSOLUTION
the power to create municipalities is essentially
legislative and consequently, Sinacaban which Territorial and political subdivisions
was created by an executive order, had no legal
personality and no right to assert the territorial 1. Barangays
claim vis--vis Jimenez, of which it remains part. 2. Municipalities
The RTC, however, held that Sinacaban is a de 3. Cities
facto corporation since it had completely 4. Provinces (Sec.1, Art. X, 1987 Constitution)
organized itself even prior to the Pelaez case
and exercised corporate powers for forty years Authority to create municipal corporations
before its existence was questioned. Does the
municipality of Sinacaban legally exist? A LGU may be created, divided, merged, abolished,
or its boundaries substantially altered either:
A: YES. The factors are present as to confer to 1. By law enacted by Congress in case of
Sinacaban the status of at least a de facto municipal province, city, municipality or any other
corporation, in the sense that its legal existence has political subdivision;
been recognized and acquiesced publicly and 2. By an ordinance passed by the Sangguniang
officially. Sinacaban had been in existence for 16 Panlalawigan or Sangguniang Panlungsod
years when Pelaez v. Auditor General was decided concerned in the case of a barangay located
on, yet the validity of EO 258 had never been within its territorial jurisdiction, subject to
questioned. On the contrary, the State and even the such limitations and requirements prescribed
municipality of Jimenez itself have recognized in the LGC (Sec. 6, LGC).
Sinacabans corporate existence. Lastly, Sec. 442 (d)
of the LGC must be deemed to have cured any defect NOTE: Failure to provide for seat of government is
in the creation of Sinacaban (Mun. of Jimenez v. Baz not fatal. Under Sec. 12 of the LGC, the city can still
Jr, G.R. No. 105746, December 2, 1996). establish a seat of government after its creation
(Samson v. Aguirre, G.R. No. 133076, September 22,
Essential requisites of de facto corporation 1999).
(VACA)
Requisites or limitations imposed on the
1. Valid law authorizing incorporation creation or conversion of municipal
2. Attempt in good faith to organize under it corporations
3. Colorable compliance with law
4. Assumption of corporate powers 1. Plebiscite requirement Must be approved by
majority of the votes cast in a plebiscite called for
De facto Municipal Corporation v. Municipal such purpose in the political unit or units
Corporation by Estoppel (2010 Bar Question) directly affected (Sec 20, LGC).
DE FACTO ESTOPPEL NOTE: The residents of the mother province

A public corporation A corporation which is must participate in the plebiscite to conform
that exists although it so defectively formed to the constitutional requirement (Tan v.
has not complied with as not to be a de facto COMELEC, G.R. No. 73155, July 11, 1986; Padilla
the statutory corporation but is v. COMELEC, G.R. No. 103328, October 19, 1992).

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Corporate existence
2. Income requirement Must be sufficient and
based on acceptable standards to provide for all Corporate existence of LGUs commences upon the
essential government facilities and services election and qualification of its chief executive
and special functions, commensurate with the and majority of the members of its
size of its population as expected by the sanggunian, unless some other time is fixed
LGU concerned. therefor by law or ordinance creating it (Sec. 14,
LGC).
Average annual income for the last
consecutive year should be at least: Q: At the end of the 11th Congress existence,
a. Province P 20M several bills aiming to convert certain
b. Highly Urbanized City P 50M municipalities into cities were pending. The
c. City P 100M (R.A. 9009 amending Sec. same were not, however, passed into law.
450 of LGC) During the 12th Congress, RA 9009 was enacted,
d. Municipality P 2.5M amending the LGC which increased the income
requirement for the conversion of
NOTE: The income requirement for the municipalities into cities, from P20M to
conversion of municipality to a component city P100M. Congress deliberated on exempting
only includes locally generated average annual the municipalities mentioned earlier from
income (RA. 9009 amending Sec. 450 of LGC). the new income requirement, yet, no concrete
action came out of such deliberations.
3. Population requirement determined as the
total number of inhabitants within the Through their respective sponsors, the
territorial jurisdiction of the LGU municipalities filed individual cityhood bills
concerned. The required minimum containing a common proviso exempting
population shall be: them from the new income requirement. The
a. Barangay 2,000 Congress approved the same. Concerned
parties protested that such laws allowed a
XPN: barangays located in: wholesale conversion of municipalities and is
i. Metro Manila 5,000 therefore unconstitutional. The challenged
ii. Highly urbanized cities 5,000 cities claim that it was the intent of the
Congress to grant them exemption from the
b. Municipality 25,000 income requirement, as per the deliberations of
c. City 150,000 the 11th Congress.
d. Highly Urbanized Cities 200,000
e. Province 250,000 a. Are the cityhood laws valid?
b. What will become of the cityhood bills
4. Land requirement - Must be contiguous, unless it and their deliberations that were
is comprised of two or more islands, or is pending at the adjournment of the 11th
separated by a LGU independent to the others. Congress?
It must be properly identified by metes and
bounds with technical descriptions, and A:
sufficient to provide for such basic services and a. YES. The cities covered by the Cityhood Laws
facilities. Area requirements are: not only had conversion bills pending during
a. Barangay may be created out of a the 11th Congress, but have also complied
contiguous territory (Sec. 386, LGC). with the requirements of the LGC prescribed
b. Municipality 50 sq. km (Sec. 442, LGC). prior to its amendment by RA 9009.
c. City 100 sq. km (Sec.450, LGC). Congress undeniably gave these cities all
d. Province 2,000 sq.km (Sec. 461, LGC). the considerations that justice and fair play
demanded. Hence, the Court should do no less
NOTE: Compliance with the foregoing indicators by stamping its imprimatur to the clear and
shall be attested to by: unmistakable legislative intent and by duly
a. The Department of Finance (Income recognizing the certain collective wisdom of
requirement); Congress. Congress, who holds the power of
b. NSO (Population requirement); and the purse, only sought the well-being of
c. The Lands Management Bureau of DENR (Land respondent municipalities in enacting the
requirement) (Sec. 7(c), LGC). Cityhood Laws, having seen their respective
capacities to become component cities of
their provinces, which was temporarily

stunted by the enactment of RA 9009. By v. COMELEC, G.R. No. 177597, July 16, 2008).
allowing respondent municipalities to convert
into component cities, Congress desired only Q: Congress enacted a law creating the
to uphold the very purpose of the LGC, i.e., to legislative district of Malolos based on a
make the LGUs enjoy genuine and certification of the demographic projection
meaningful local autonomy to enable them to from NSO stating that by 2010, Malolos is
attain their fullest development as self-reliant expected to reach the population of 250,000,
communities and make them more effective hence entitling it to one legislative district. Is
partners in the attainment of national goals, the law valid?
which is the very mandate of the
Constitution (League of Cities of the A: NO. Congress cannot establish a new legislative
Philippines. v. COMELEC, G.R. No. 176951, district based on a projected population of the
April 12, 2011). National Statistics Office (NSO) to meet the
population requirement of the Constitution in
b. Notwithstanding that both the 11th and 12 th the reapportionment of legislative districts.
Congress failed to act upon the pending
Cityhood bills, both the letter and intent of Sec. A city that has attained a population of 250,000 is
450 of the LGC, as amended by RA 9009, entitled to a legislative district only in the
were carried on until the 13th Congress, immediately following election. In short, a city
when the Cityhood Laws were enacted. The must first attain the 250,000 population, and
exemption clauses found in the individual thereafter, in the immediately following election,
Cityhood Laws are the express articulation of such city shall have a district representative. There
the intent to exempt respondent is no showing in the present case that the City of
municipalities from the coverage of RA 9009 Malolos has attained or will attain a population of
(League of Cities of the Philippines v. COMELEC, 250,000, whether actual or projected, before May
G.R. No. 176951, February 15, 2011). 10, 2010 elections. Thus, the City of Malolos is not
qualified to have a legislative district of its own
NOTE: On November 18, 2008, the SC ruled the under Sec. 5(3), Art. VI of the 1987 Constitution
cityhood laws unconstitutional. On December 21, and Sec 3 of the Ordinance appended to the 1987
2009, it reversed the ruling. Then again, on August Constitution (Aldaba v. COMELEC, G.R. No. 188078,
24, 2010, it decided to uphold the 2008 ruling. And January 25, 2010).
finally, on April 12, 2011 it upheld the
constitutionality of the creation of the 16 new Q: Congress enacted a law reapportioning the
cities. composition of the Province of Camarines Sur
and created legislative districts thereon.
Q: May Congress validly delegate to the ARMM Frankie challenged the law because it runs
Regional Assembly the power to create afoul to the constitutional requirement that
provinces, cities, and municipalities within the there must be at least a population of 250,000
ARMM pursuant to Congresss plenary to create a legislative district. COMELEC
legislative powers? argued that the mentioned requirement does
not apply to provinces. Is the 250,000
A: IT DEPENDS. There is no provision in the population standard an indispensable
Constitution that conflicts with the delegation to requirement for the creation of a legislative
regional legislative bodies of the power to create district in provinces?
municipalities and barangays. However, the
creation of provinces and cities is another matter. A: NO. Sec. 5(3), Art. VI of the 1987 Constitution
Only Congress can create provinces and cities, which requires 250,000 minimum population
because the creation of the same necessarily apply only for a city to be entitled to a
includes the creation of legislative districts, a representative but not for a province.
power only Congress can exercise under Sec. 5
Art. VI of the Constitution and Sec. 3 of the The provision draws a plain and clear distinction
Ordinance appended to it. between the entitlement of a city to a district, on
one hand, and the entitlement of a province to a
The ARMM Regional Assembly cannot enact a district on the other. For while a province is
law creating a national office like the office of a entitled to at least a representative, with nothing
district representative of Congress because the mentioned about population, a city must first
legislative powers of the ARMM Regional Assembly meet a population minimum of 250,000 in order
operate only within its territorial jurisdiction as to be similarly entitled (Aquino and Robredo v.
provided in Sec. 20 Art. X of the Constitution (Sema COMELEC, G.R. No. 189793, April 7, 2010).

2015GOLDEN NOTES
LOCAL GOVERNMENTS
or reapportionment of legislative districts. A

Q: Sec. 461 of the LGC provides that before a legislative district is not a political subdivision
province could be created, it must comply with through which functions of government are
the 2000-km land area requirement. Art. 9(2) carried out. It can more appropriately be
of the LGC-IRR, however, exempts the creation described as a representative unit that merely
of provinces with more than one island from delineates the areas occupied by the people who
the said land area requirement. Thus, Dinagat will choose a representative in their national
Province consisting of more than one island, affairs. A plebiscite is required only for the
with a total land area of 802.12 sq. km, and has creation, division, merger, or abolition of local
an average annual income of P 82 M as certified government units (Bagabuyo v. COMELEC, G.R. No.
by the Bureau of Local Government Finance 176970, December 8, 2008).
was created through a law pursuant to the
exception expressly provided in the said LGC- Q: The Municipality of Dagupan was converted
IRR provision. Is the creation of Dinagat into the City of Dagupan by virtue of Act No. 170.
Province valid? However, before the government of the city was
organized, the government of the Municipality of
A: YES. When the exemption was expressly Dagupan continued to act as a municipality. Are
provided in Art. 9(2) of the LGC-IRR, the inclusion the acts of the municipality considered to be acts
was intended to correct the congressional of the city?
oversight in Sec. 461 of the LGC and to reflect the
true legislative intent, which is to allow an A: NO. After Act No. 170 which created the City of
exception to the land area requirement in cases of Dagupan took effect and before the organization of
non-contiguity also as regards to provinces the government of the City of Dagupan, the political
especially considering the physical configuration of subdivision which comprises the territory of the
the Philippine archipelago. The land area Municipality of Dagupan continued to act as a
requirement should be read together with the municipality because the government of the city had
territorial contiguity, whereas the land area, while not yet been organized and the other officers thereof
considered as an indicator of viability of LGU, is not appointed or elected. The conversion of that
conclusive in showing that Dinagat Province municipality into a city did not make ipso facto the
cannot become a province taking into account its acts of the elected officials of the said municipality
average annual income. Hence, the basic services to the acts of the City of Dagupan because the latter can
its constituents has been proven possible and only act as a city through the city officers designated
sustainable making Dinagat Province ready and by law after they have been appointed or elected
capable of becoming a province (Navarro v. and have qualified. In the meantime or during the
Executive Secretary, G.R. No. 180050, April 12, period of transition, the Municipality had to function
2011). temporarily as such; otherwise there would be
chaos or no government at all within the boundaries
Q: Congress passed a law providing for the of the territory. The status of the Municipality may
apportionment of a new legislative district in be likened to that of a public officer who cannot
CDO City. COMELEC subsequently issued a abandon his office although the successor had
resolution implementing said law. Zander already been appointed, and has to continue his/her
now assails the resolution, contending that office whatever length of time the interregnum, until
rules for the conduct of a plebiscite must first the successor qualifies or takes possession of the
be laid down, as part of the requirements office (Mejia v. Balolong, G.R. No. L-1925, September
under the Constitution. According to Zander, 16, 1948).
the apportionment is a conversion and
division of CDO City, falling under Sec. 10 Art. X Q: Is the conversion of a component city to a
of the Constitution, which provides for the highly urbanized city considered within the
rule on creation, division, merger, and ambit of creation, division, merger,
abolition of LGUs. Decide. abolition or substantial alteration of
boundaries under Sec. 10, Art. X of the
A: There is no need for a plebiscite. CDO City Constitution?
politically remains a single unit and its
administration is not divided along territorial A: YES. While conversion to an HUC is not
lines. Its territory remains whole and intact. Thus, explicitly provided in Sec. 10, Art. X of the
Sec. 10, Art. X of the Constitution does not come Constitution, the Court nevertheless observes that
into play. the conversion of a component city into an HUC is a
substantial alteration of boundaries.
No plebiscite is required for the apportionment

Substantial alteration of boundaries involves and cultural communities.

necessarily entails a change in the geographical
configuration of LGU or units. However, the phrase LGUs may be abolished when its income, population,
boundaries should not be limited to the mere or land area has been irreversibly reduced to less
physical one, referring to the metes and bounds of than the minimum standards prescribed for its
the LGU, but also to its political boundaries. It also creation, as certified by the national agencies in
connotes a modification of the demarcation lines Sec. 17 to Congress or to the sanggunian
between political subdivisions, where the LGUs concerned. The law or ordinance abolishing a
exercise of corporate power ends and that of the LGU shall specify the province, city, municipality,
other begins. And as a qualifier, the alteration must or barangay with which the LGU sought to be
be substantial for it to be within the ambit of the abolished will be incorporated or merged (Sec. 9,
constitutional provision (Umali v. COMELEC, G.R. LGC).
No. 203974, April 22, 2014).
Required vote on creation, division, merger,
NOTE: It is the duty of the President to declare a abolition, or substantial alteration of
city as highly urbanized after it shall have met the boundaries of LGUs
minimum requirements, upon proper application
and ratification in a plebiscite by qualified voters Majority of the votes cast in a plebiscite called for
therein (Sec. 453, LGC). The provision makes it the purpose in the political unit or units directly
ministerial for the President, upon proper affected.
application, to declare a component city as highly
urbanized once the minimum requirements, which NOTE: Said plebiscite shall be conducted by the
are based on certifiable and measurable indices COMELEC within one hundred twenty (120) days
under Sec. 452 of LGC, are satisfied. The mandatory from the date of effectivity of the law or
language shall used in the provision leaves the ordinance effecting such action, unless said law
President with no room for discretion (Ibid.). or ordinance fixes another date (Sec. 10, LGC).
Requirements for division and merger of LGUs A barangay may officially exist on record and the
fact that nobody resides in the place does not
1. It shall not reduce the income, population or result in its automatic cessation as a unit of local
land area of the LGU/s concerned to less than government.
minimum requirements prescribed;
2. Income classification of the original LGU/s Under the LGC of 1991, the abolition of
shall not fall below its current income an LGU may be done by Congress in the case of a
classification prior to division (Sec.8, LGC); province, city, municipality, or any other political
3. Plebiscite be held in LGUs affected (Sec.10, subdivision. In the case of a barangay, except in
LGC); Metropolitan Manila area and in cultural
4. Assets and liabilities of the communities, it may be done by the
municipality/ies affected by such Sangguniang Panlalawigan or Sangguniang
organization or creation of a new Panglungsod concerned subject to the
municipality shall be equitably distributed mandatory requirement of a plebiscite conducted
between the LGUs affected and new LGU for the purpose in the political units affected
(Sec. 1 (3), RA 688). (Sarangani v. COMELEC, G.R. No. 135927, June 26,
2000).
NOTE: When a municipal district of other territorial
divisions is converted or fused into a municipality Q: Through a plebiscite, RA 7720 took effect and
all property rights vested in original territorial converted Municipality XYZ to an independent
organization shall become vested in the component city. RA 8528 was later enacted and
government of the municipality (Sec. 1 (4), RA 688). amended RA 7720 that downgraded XYZ from an
independent component city to a component city
Abolition of LGU without the approval of the people of XYZ in a
plebiscite. Is a plebiscite required when a local
LGUs may be abolished by: government unit is downgraded?
1. Congress In case of provinces, city,
municipality, or any other political subdivision. A: YES. Sec. 10, Art. X of the Constitution calls for
2. Sangguniang Panlalawigan or Sangguniang the people of the LGU directly affected to vote in a
Panglungsod In case of a barangay plebiscite whenever there is a material change in
their rights and responsibilities.
XPN: Metropolitan Manila area and in

2015GOLDEN NOTES
LOCAL GOVERNMENTS
They may call the downgrading of XYZ to a

component city as a mere transition but they Q: Prior to R.A. 7675 which converts the
cannot blink away from the fact that the transition Municipality of Mandaluyong into a Highly
will radically change its physical and political Urbanized City, the municipalities of
configuration as the rights and responsibilities of Mandaluyong and San Juan belonged to only
its people. As such, the city mayor will be placed one legislative district. After the law was
under the administrative supervision of the passed, the people of Mandaluyong approved of
provincial governor; the resolutions and the conversion of the Municipality of
ordinances of the city council will have to be Mandaluyong into a highly urbanized city. The
reviewed by the Provincial Board; taxes collected turnout at the plebiscite was only 14.41% of
by the city will have to be shared with the the voting population. Nevertheless, there were
province; and there would be a reduction in their many who voted "yes" than those who voted
IRA. Thus, the changes are substantial. "no." By virtue of these results, RA. 7675 was
deemed ratified and in effect. Should the people
When RA 7720 upgraded the status of XYZ City of San Juan participate in the plebiscite on
from a municipality to an independent component whether to convert Mandaluyong into a highly
city, it required the approval of its people through urbanized city?
a plebiscite called for that purpose because the
consent of the people serves as a checking A: NO. The principal subject involved in the
mechanism to any exercise of legislative power. plebiscite was the conversion of Mandaluyong into
Hence, there is no reason why the same should not a highly urbanized city. The matter of separate
be done when RA 8528 downgrades the status of district representation was only ancillary thereto.
their city. The rules cover all conversions, whether Thus, the inhabitants of San Juan were properly
upward or downward so long as the result is a excluded from the said plebiscite as they had
material change in the LGU directly affected nothing to do with the change of status of
(Miranda v. Aguirre, G.R. No. 133064, September 16, neighboring Mandaluyong (Tobias et al. v. Abalos,
1999). G.R. No. L-114783, December 8, 1994).
Q: BP Blg. 885 was enacted creating a new NOTE: When an inquiry is focused on the legal
province in the island of Negros to be known as existence of a body politic, the action is reserved to
the Province of Negros del Norte. Pursuant to the State in a proceeding for quo warranto, which
such, the COMELEC conducted a plebiscite. must be timely filed, or any other direct proceeding
Petitioners opposed this and contended that BP which must be brought in the name of the Republic
Blg. 885 is unconstitutional and is not in (Municipality of San Narciso v. Mendez, G.R. No.
complete accord with the LGC because the 103702, December 6, 1994).
voters of the parent province of Negros
Occidental, other than those living within the PRINCIPLES OF LOCAL AUTONOMY
territory of the new province of Negros del
Norte, were not included in the plebiscite. Are Principle of Local Autonomy
the petitioners correct?
Local autonomy means a more responsive and
A: YES. The Constitution provides that whenever a accountable local government structure instituted
province is created, divided or merged and there is through a system of decentralization. Autonomy
substantial alteration of the boundaries, the does not contemplate making mini-states out of
approval of a majority of votes in the plebiscite in local government units, as in the federal
the unit or units affected must first be obtained. governments of the USA. Autonomy, in the
The creation of the proposed new province of constitutional sense, is subject to the guiding star,
Negros del Norte will necessarily result in the though not control, of the legislature, albeit the
division and alteration of the existing boundaries legislative responsibility under the Constitution
of Negros Occidental (parent province). Plain and and as the supervision clause itself suggest, is to
simple logic will demonstrate that two political wean local government units from over-
units would be affected. The first would be the dependence on the central government.
parent province of Negros Occidental because its
boundaries would be substantially altered. The Autonomy, however, is not meant to end the
other affected entity would be composed of those relation of partnership and interdependence
in the area subtracted from the mother province to between the central administration and local
constitute the proposed province of Negros del government units. Local governments, under the
Norte (Tan v. COMELEC, G.R. No. 73155, July 11, Constitution, are subject to regulation, however
1986). limited, and for no other purpose than precisely,

albeit paradoxically, to enhance self-government Forms of Decentralization: Deconcentration and

(Ganzon v. Court of Appeals, G.R. No. 93252, August Devolution
5, 1991).
DECONCENTRATION DEVOLUTION
Forms of Local Autonomy: Decentralization of It is administrative in It connotes political
Administration and Decentralization of Power nature and involves the decentralization, or the
transfer of functions or transfer of powers,
DECENTRALIZATION DECENTRALIZATION the delegation of responsibilities, and
OF ADMINISTRATION OF POWER authority and resources for the
The central government Involves abdication, by responsibility from the performance of certain
merely delegates the national government, national office to the functions from the
administrative powers to of political power in regional and local office. central government to
political subdivisions in favor of LGUs declared to the local government
order to broaden the be autonomous. The This is also referred to as units. This is a more
base of the government autonomous administrative liberal form of
power, and incidentally government becomes decentralization. decentralization since
making LGUs more accountable not to the there is actual transfer of
responsive and central authorities but powers and
accountable. to its constituency responsibilities.
(Limbona v. Mangelin,
It relieves the central G.R. No .80391, February It aims to grant greater
government of the 28, 1989). autonomy to local
burden of managing government units in
local affairs and enables cognizance of their right
it to concentrate on to self-government, to
national concerns. make them self-reliant,
and to improve their
Scope of Delegated Power administrative and
technical capabilities
Under the Philippine concept of local autonomy, (Disomangcop v.
only administrative powers over local affairs are Secretary of Public
delegated to political subdivisions. In turn, Works and Highways,
economic, political and social developments at the G.R. No. 149848,
smaller political units are expected to propel social November 25, 2004).
and economic growth and development. But to
enable the country to develop as a whole, the Consequences of Devolution
programs and policies effected locally must be
integrated and coordinated towards a common 1. The devolution shall include the transfer to the
national goal (Pimentel Jr. v. Aguirre, G.R. No. LGU the records, equipment, and other assets
132988, July 19, 2000). and personnel of national agencies and offices
corresponding to the devolved powers,
Decentralization functions, and responsibilities.
2. Personnel of said national agencies or offices
Decentralization is a decision by the central shall be absorbed by the LGUs to which they
government authorizing its subordinates, whether belong or in whose areas they are assigned to
geographically or functionally defined, to exercise the extent that it is administratively viable.
authority in certain areas. It involves decision-
making by sub-national units. It is typically NOTE: The rights accorded to such personnel
delegated power, wherein a larger government pursuant to civil service law, rules and
chooses to delegate certain authority to more local regulations shall not be impaired.
governments (Disomangcop v. Secretary of Public
Works and Highways, G.R. No. 149848, November 25, 3. Regional directors who are career executive
2004). service officers and other officers of similar
rank in the said regional offices who cannot be
absorbed by the LGU shall be retained by the
national government, without any diminution of
rank, salary or tenure (Se. 17 (i), LGC).

2015GOLDEN NOTES
LOCAL GOVERNMENTS
NOTE: The LGC did not fully devolve the

enforcement of the small-scale mining law to the It is clear that Mayor Plaza is empowered to issue
provincial government, as its enforcement is EO. 06-92 in order to give effect to the devolution
subject to the supervision, control and review of decreed by the LGC. As the local chief executive of
the DENR, which is in charge, subject to law and Butuan City, Mayor Plaza has the authority to
higher authority, of carrying out the State's reappoint devolved personnel and may designate
constitutional mandate to control and supervise an employee to take charge of a department until
the exploration, development, utilization of the the appointment of a regular head (Plaza II and
country's natural resource (League of Provinces of Tuazon v. Cassion, G.R. No. 136809, July 27, 2004).
the Philippines v. DENR, G.R. 175368, April, 11,
2013). Q: When can the local chief executive choose
not to absorb a national government agency
Q: Before the passage of RA. 7160, the task of personnel?
delivering basic social services was dispensed
by the national government through the DSWD. A: Absorption is mandatory on the part of the local
Upon the promulgation and implementation of chief executive and incumbent upon the personnel
the LGC, some of the functions of the DSWD absorbed. The word shall is used both in Sec. 17
were transferred to the LGUs. Mayor Plaza II (i) of LGC, and Sec. 2 (a)(2) of EO. 503, which
signed a MOA for the Devolution of the DSWD connotes a mandatory order.
to the City of Butuan. DSWDs services,
personnel, assets and liabilities, and technical The only instance that the LGU concerned may
support systems were transferred to its city choose not to absorb the NGA personnel is when
counterpart. By virtue of the MOA, Mayor Plaza absorption is not administratively viable,
issued EO. 06-92 reconstituting the City Social meaning, it would result to duplication of
Services Development Office (CSSDO), functions. However, in the absence of the
devolving or adding thereto 19 national DSWD recognized exception, devolved permanent
employees, its office was transferred from the personnel shall be automatically reappointed
original CSSDO building to the DSWD building. (Sec. 2(12), EO 503) by the local chief executive
concerned immediately upon their transfer which
Aida, Lorna and Fe refused to recognize shall not go beyond June 30, 1992 (CSC v. Yu, G.R.
Joaquin as their new head and to report at the No. 189041, July 31, 2012).
DSWD building. They contended that the
issuance of EO. 06-92 by Mayor Plaza and the POWERS OF LOCAL GOVERNMENTS
designation of Joaquin as Officer-in-charge of
the CSSDO are illegal. Despite Mayor Plazas Sources of powers of a municipal
series of orders to Aida, Lorna and Fe to report corporation
for work at the DSWD building, they failed to do
so. 1. Constitution
2. Statutes (e.g. LGC)
Is Mayor Plaza empowered to issue EO. 06-92 3. Charter
in order to give effect to the devolution and 4. Doctrine of right to self-government
have authority over Aida, Lorna and Fe?
Classifications of municipal powers
A: YES. Section 17 of the Local Government Code
authorizes the devolution of personnel, assets and 1. Express, implied, inherent
liabilities, records of basic services, and facilities of 2. Government or public, corporate or private
a national government agency to local government 3. Intramural, extramural
units. Under this Code, the term devolution refers
to the act by which the national government NOTE: Extramural powers Boundaries
confers power and authority upon the various local usually mark the limit for the exercise of the
government units to perform specific functions police powers by a municipality. However, in
and responsibilities. As a consequence, EO. 503 certain instances the performance of police
was enacted by then President Corazon Aquino to functions, the preservation of the public health
govern and ensure the efficient transfer of and acquisition of territory for water supply
responsibilities to the LGU concerned. Section 2 (g) the municipality is granted police power
provides: The local chief executive shall be beyond its boundaries (Rivera v. Campbell, G.R.
responsible for all devolved functions. He may No. 11119, March 23, 1916).
delegate such powers and functions to his duly
authorized representative xxx. 4. Mandatory, directory; ministerial, discretionary

7160).
Execution of powers of LGU
Two branches of the General Welfare Clause
1. Where statute prescribes the manner of
exercise, procedure must be followed. 1. General Legislative Power Authorizes the
2. Where the law is silent, LGU has the discretion municipal council to enact ordinances and
to select reasonable means and methods make regulations not repugnant to law, as
to exercise may be necessary to carry into effect and
discharge the powers and duties conferred
Governmental powers of LGU upon the municipal council by law.
2. Police Power Proper Authorizes the
1. Police power municipality to enact ordinances as may be
2. Basic services and facilities necessary and proper for the health and
3. Power to generate and apply resources safety, prosperity, morals, peace, good order,
4. Power of eminent domain comfort, and convenience of the municipality
5. Taxing Power and its inhabitants, and for the protection of
6. Reclassification of Land their property (Rural Bank of Makati v.
7. Local legislative power Municipality of Makati, G.R. No. 150763, July 2,
8. Closure and opening of roads 2004).
9. Corporate Powers
10. Liability of LGUs Requisites/limitations for the proper exercise
11. Settlement of Boundary Disputes of the police power
12. Succession of Local Officials
13. Discipline of Local Officials 3. The interests of the public generally, as
14. Authority over police units distinguished from those of a particular class,
require the interference of the state. (Equal
Interpretation of powers of LGUs Protection Clause)
4. The means employed are reasonably
Where a law is capable of two interpretations, one in necessary for the attainment of the object
favor of centralized power in Malacanang and the sought to be accomplished and not duly
other beneficial to local autonomy, the scales must oppressive. (Due Process Clause)
be weighed in favor of autonomy (San Juan v. Civil 5. Exercisable only within the territorial limits of
Service Commission, G.R. No. 92299, April 29, 1991). the LGU, except for protection of water supply
(Sec 16, LGC).
POLICE POWER 6. Must not be contrary to the Constitution and
the laws.
Nature of the police power of the LGU
NOTE: There must be a concurrence of a lawful
The police power of the LGU is not inherent. LGUs subject and lawful method (Lucena Grand Central v.
exercise the police power under the general JAC, G.R. No. 148339 February 23, 2005).
welfare clause (Sec. 16, LGC).
Tests when police power is invoked as the
General welfare clause rationale for the valid passage of an ordinance
LGUs shall exercise powers that are necessary, 1. Rational relationship test An ordinance must
appropriate, or incidental for its efficient and pass the requisites as discussed above.
effective governance, and those which are essential 2. Strict scrutiny test The focus is on the presence
to the promotion of general welfare. Within their of compelling, rather than substantial,
respective territorial jurisdiction, LGUs shall ensure governmental interest and on the absence of
and support, among other things, the preservation less restrictive means for achieving that interest
and enrichment of culture, promote health and (Fernando v. St. Scholasticas College, G.R. No.
safety, enhance the right of the people to a balanced 161107, March 12, 2013).
ecology, encourage and support the development of
appropriate and self-reliant scientific and Ministerial duty of the Local Chief Executive
technological capabilities, improve public morals,
enhance economic prosperity and social justice, The LGC imposes upon the city mayor, to enforce
promote full employment among its residents, all laws and ordinances relative to the governance
maintain peace and order, and preserve the comfort of the city. As the chief executive of the city, he has
and convenience of their inhabitance (Sec. 16, RA the duty to enforce an ordinance as long as it has

2015GOLDEN NOTES
LOCAL GOVERNMENTS
not been repealed by the Sanggunian or annulled by Q: Acebedo Optical Company applied with the
the courts. He has no other choice. It is his Office of the City Mayor of Iligan for a business
ministerial duty to do so (Social Justice Society v. permit. The City Mayor issued such permit
Atienza, Jr., G.R. No. 156052, March 7, 2007). subject to special conditions that the company
cannot put up an optical clinic but only a
Abatement of nuisance without judicial commercial store; it cannot examine patients
proceeding and prescribe glasses; and it cannot sell
eyeglasses without a prescription from an
The abatement of nuisances without judicial independent optometrist. Samahan ng
proceedings applies to nuisance per se or those Optometrist ng Pilipinas lodged a complaint
which affect the immediate safety of persons and against Acebedo for violating the conditions
property and may be summarily abated under the which resulted in the revocation of its permit.
undefined law of necessity (Tayaban v. People, Did the City Mayor have the authority to impose
G.R. No. 150194, March 6, 2007). special conditions in the grant of the business
permit?
The LGUs have no power to declare a particular
thing as a nuisance unless such a thing is a nuisance A: NO. Police power is essentially regulatory in
per se; nor can they effect the extrajudicial nature and the power to issue license or grant
abatement of a nuisance per accidens. Those things business permits, if for a regulatory purpose, is
must be resolved by the courts in the ordinary within the ambit of this power. This power
course of law (AC Enterprises, Inc. v. Frabelle necessarily includes the power to revoke and to
Properties Corp., G.R. No. 166744, November 2, 2006). impose conditions. However, the power to grant or
issue licenses or business permits must always be
Powers deemed implied in the power to grant exercised in accordance with law, with utmost
permits and licenses observance of the rights of all concerned to due
process and equal protection of the law. What is
Power to issue licenses and permits include power sought by Acebedo from the City Mayor is a permit
to revoke, withdraw or restrict through the to engage in the business of running an optical
imposition of certain conditions. However, the shop. It does not purport to seek a license to
conditions must be reasonable and cannot amount engage in the practice of optometry. A business
to an arbitrary interference with the business permit is issued primarily to regulate the conduct
(Acebedo Optical Company, Inc. v. CA, G.R. No. of business and the City Mayor cannot, through the
100152, March 31, 2000). issuance of such permit, regulate the practice of a
profession. Such a function is within the exclusive
Object of the permit requirement domain of the administrative agency specifically
empowered by law to supervise the profession, in
The object of the permit requirement is the proper this case the Professional Regulations Commission
supervision of the enumerated businesses, trades or and the Board of Examiners in Optometry (Acebedo
occupation. Optical Company Inc. v. Court of Appeals, G.R. No.
100152, March 31, 2000).
NOTE: The issuance of permits and licenses is a
function of the local chief executive. NOTE: However, certain professions may be
affected by the exercise of police power. An
License/permit to do business v. License to ordinance in Manila was held not to regulate the
engage in a profession practice of massage, much less restrict the practice
of such profession. Instead, the end sought to be
LICENSE/PERMIT TO LICENSE TO ENGAGE obtained was to prevent the commission of
DO IN A PROFESSION immorality under the practice of prostitution in an
BUSINESS establishment masquerading as a massage clinic
Granted by the local Board or Commission where the operation thereof offers to massage
authorities. tasked to regulate the superficial parts of the bodies of customers for
particular profession. hygienic or aesthetic purposes (Physical Therapy
Authorizes the person to Authorizes a natural Organization of the Philippines v. Municipal Board of
engage in the business or person to engage in the Manila, G.R. No. L-10488, August 30, 1957).
some form of commercial practice or exercise of
activity. his or her profession. Q: The Sangguniang Panglungsod of Marikina
City enacted an ordinance Regulating the
Construction of Fences and Walls in the City of
Marikina. The ordinance provided, among

others, that fences should not be more than 1 1967).

meter and fences in excess of 1 meter shall be
80% see-thru. It further provided that in no Q: Mayor Lim signed into law, City Ordinance
case shall walls and fences be built within the 7774, which prohibits short time admission in
five meter parking area allowance located hotels, motels, lodging houses, pension houses
between the front monument line and the and similar establishments in the City of Manila
building line of commercial and industrial to protect public morals. Pursuant to the above
establishments and educational and religious policy, short-time admission and rate, wash-up
institutions. Is the ordinance valid? rate or other similarly concocted terms, are
hereby prohibited in hotels, motels, inns,
A: NO. It has long been settled that the State may lodging houses, pension houses and similar
not, under the guise of police power, permanently establishments in the City of Manila. Petitioners
divest owners of the beneficial use of their property argued that the Ordinance is unconstitutional
solely to preserve or enhance the aesthetic and void since it violates the right to privacy
appearance of the community. Compelling the and the freedom of movement; it is an invalid
respondents to construct their fence in accordance exercise of police power; and it is an
with the assailed ordinance is, thus, a clear unreasonable and oppressive interference in
encroachment on their right to property, which their business. Is the ordinance valid?
necessarily includes their right to decide how best
to protect their property (Fernando v. St. A: NO. Individual rights may be adversely
Scholastica's College, G.R. No. 161107, March 12, affected only to the extent that may fairly be
2013). required by the legitimate demands of public
interest or public welfare. However well-
Q: Can the City Mayor of Manila validly take intentioned the Ordinance may be, it is in effect an
custody of several women of ill repute and arbitrary and whimsical intrusion into the rights of
deport them as laborers without knowledge the establishments as well as their patrons. The
and consent to the said deportation? Ordinance needlessly restrains the operation of
the businesses of the petitioners as well as
A: NO. One can search in vain for any law, order, restricting the rights of their patrons without
or regulation, which even hints at the right of the sufficient justification. The Ordinance rashly
Mayor of the city of Manila or the chief of police of equates wash rates and renting out a room more
that city to force citizens of the Philippine than twice a day with immorality without
Islands and these women despite their being in accommodating innocuous intentions (White Light
a sense lepers of society are nevertheless not Corp., v. City of Manila, G.R. No. 122846, January 20,
chattels but Philippine citizens protected by the 2009).
same constitutional guaranties as are other
citizens to change their domicile from Manila to Q: The Sangguniang Panlungsod of Pasay City
another locality (Villavicencio v. Lukban, G.R. No. L- passed an ordinance requiring all disco pub
14639, March 25, 1919). owners to have all their hospitality girls tested
for the AIDS virus. Both disco pub owners and
Q: May an LGU require customers to fill out a the hospitality girls assailed the validity of the
prescribed form stating personal information ordinance for being violative of their
such as name, gender, nationality, age, address constitutional rights to privacy and to freely
and occupation before they could be admitted to choose a calling or business. Is the ordinance
a motel, hotel, or lodging house? valid? Explain. (2010 bar question)
A: YES. The Ordinance was enacted precisely to A: YES. The ordinance is a valid exercise of police
minimize certain practices hurtful to public morals power. The right to privacy yields to certain
such as the increase in the rate of prostitution, paramount rights of the public and defers to the
adultery and fornication in Manila traceable in exercise of police power. The ordinance is not
great part to the existence of motels, which prohibiting the disco pub owners and the hospitality
"provide a necessary atmosphere for clandestine girls from pursuing their calling or business but is
entry, presence and exit" and thus become the merely regulating it (Social Justice Society v.
"ideal haven for prostitutes and thrill-seekers". Dangerous Drugs Board, G.R. No. 157870, November
Precisely it was intended to curb the opportunity 3, 2008).
for the immoral or legitimate use to which such
premises could be and are being devoted (Ermita- This ordinance is a valid exercise of police power,
Malate Hotel and Motel Operations Association v. because its purpose is to safeguard public health
City Mayor of Manila, G.R. No. L-24693, July 31, (Beltran v. Secretary of Health, G.R. No. 133640,

2015GOLDEN NOTES
LOCAL GOVERNMENTS
November 25, 2005). garments in the waters of any river or water

course. Manilas municipal board adopted the
NOTE: Municipal corporations cannot prohibit the same section by virtue of the Acts of the
operation of night clubs. They may be regulated, but Philippine Commission and was authorized to
not prevented from carrying on their business (Dela purify the source of water supply as well as the
Cruz v. Paras, G.R. Nos. L-42571-72, July 25, 1983). drainage area of such water supply. Rivera
contented that the municipal court of the City of
Q: The Quezon City Council issued Ordinance Manila and the Court of First Instance of the
2904 which requires the construction of arcades City of Manila had no jurisdiction to try her for
for commercial buildings to be constructed in the crime committed. Does the CFI of Manila
zones designated as business zones in the zoning have jurisdiction over the offense, considering
plan of Quezon City, along EDSA. However, at the that the washing of clothes was in the
time the ordinance was passed there was yet no Mariquina River?
building code passed by the legislature. Thus,
the regulation of the construction of the A: YES. Boundaries usually mark the limit for the
buildings are left to the discretion of the LGUs. exercise of the police powers by the municipality.
Under this ordinance, the city council required However, in certain instances the performance of
that the arcade is to be created, in a way, that police functions, the preservation of public health
building owners are not allowed to construct his and acquisition of territory for water supply the
wall up to the edge of the property line, thereby municipality is granted police power beyond its
creating a space under the first floor. In effect, boundaries. The Santolan pumping station is a part
instead of using the property for their own of the public water supply of Manila with water
purposes, property owners relinquish the use of taken from that part of the Mariquina River, in the
the space as an arcade for pedestrians. waters of which Rivera washed clothes. Public
water supply is not limited to water supply owned
Subsequently, Justice Gancayo sought to be and controlled by a municipal corporation, but
exempted from the application of the ordinance, should be construed as meaning a supply of water
which the City Council responded favorably in for public and domestic use, furnished or to be
his favor. furnished from water works. The provisions of the
Ordinance No. 149 would be meaningless and
MMDA then sent a notice of demolition to Justice absurd if made applicable only to the Santolan
Gancayco, alleging that a portion of his building pumping station and not to that part of the
violates the National Building Code in relation to Mariquina River immediately above it and from
the ordinance. Is the Ordinance a valid exercise which the pumping station draws water for the use
of police power in regulating the use of property of the inhabitants of the City of Manila (Rivera v.
in a business zone? Campbell, G.R. No. L-11119, March 23, 1916).
A: YES. In the exercise of police power, property Q: The Sanggunian of Cagayan De Oro enacted
rights of individuals may be subject to restraints and Ordinance No. 3353 prohibiting the issuance of
burdens in order to fulfill the objectives of the business permits and cancelling existing
government. Property rights must bow down to the business permits for the operation of casinos;
primacy of police power because it must yield to the and Ordinance No. 3375-93, prohibiting the
general welfare. It is clear that the objective of the operation of a casino. Z assailed the validity of
ordinance were the health and safety of the city and the ordinances on the ground that both violated
its inhabitants. At the time he ordinance was passed, P.D. 1869 which permits the operation of
there was no national building code, thus there was casinos, centralized and regulated by PAGCOR.
no law which prohibits the city council from The Sanggunian, however, contended that
regulating the construction of buildings, arcades and pursuant to the LGC, they have the police power
sidewalks in their jurisdiction (Gancayco v. City to prohibit the operations of casinos for the
Government of Quezon City, G.R. No. 177807, October general welfare. Was there a valid exercise of
11, 2011). police power?
Q: Rivera was found washing her clothing near A: NO. PD 1869 creating the PAGCOR expressly
the Santolan pumping station near Boso-Boso authorized it to centralize and regulate all games of
dam. Riveras act of washing clothing interfered chance including casinos. This has not been
with the purity of the water which was supplied amended by the LGC which empowers LGUs to
to Manila by the Santolan pumping station. She prevent or suppress only those forms of gambling
was charged with violation of Sec. 4(f) of prohibited by law. Casino gambling is, however,
Ordinance No. 149 which prohibited washing of authorized under PD 1869. This decree has the

status of a statute that cannot be annulled or 4. A valid and definite Offer has been
amended by a mere ordinance. PAGCOR can set up previously made to the owner of the property
casinos with or without the consent of the host sought to be expropriated, but said offer was
local government (Magtajas v. Pryce Properties and not accepted (Municipality of Paranaque v.
PAGCOR, G.R. No. 111097, July 20, 1994). V.M. Realty Corporation, G.R. No. 127820. July
20, 1998).
EMINENT DOMAIN
Due process requirements in eminent domain
Eminent Domain
Offer must be in writing specifying:
Local government units have no inherent power of 1. Property sought to be acquired
eminent domain. Local governments can exercise 2. The reason for the acquisition
such power only when expressly authorized by the 3. The price offered
Legislature. By virtue of the Local Government
Code, Congress conferred upon local government NOTE:
units the power to expropriate (Masikip v. City of 1. If owner accepts offer: a contract of sale will be
Pasig, G.R. No. 136349, January 23, 2006). executed.
2. If owner accepts but at a higher price: Local
However, while the power of eminent may be chief executive shall call a conference for the
validly delegated to LGUs, the exercise of such purpose of reaching an agreement on the
power by the delegated entities is not absolute. The selling price; If agreed, contract of sale will be
scope of such delegated power is narrower than drawn (Art. 35, LGC IRR).
that of the delegating authority and may be
exercised only when authorized by Congress, Elements for an authorized immediate entry
subject to its control and the restraints imposed
through the law conferring the power. Strictly 1. Filling of a complaint for expropriation which
speaking, the power of eminent domain delegated is sufficient in form and substance
to an LGU is in reality not eminent but inferior. 2. Deposit of the amount equivalent to fifteen
The national legislature is still the principal of the percent (15%) of the fair market value of
LGUs, and the latter cannot go against the the property to be expropriated based on its
principals will or modify the same (Beluso v. current tax declaration.
Municipality of Panay, G.R. No. 153974, August 7,
2006). NOTE: Upon compliance, the issuance of writ of
possession becomes ministerial (City of Iloilo v.
NOTE: LGUs may, through its local chief executive Legaspi, G.R. No. 154614, November 25, 2004).
and acting pursuant to an ordinance, exercise
power of eminent domain for public use, or Phases of expropriation proceedings
purpose, or welfare for the benefit of the poor and
the landless, upon payment of just compensation 1. The determination of the authority of
(Sec. 19, LGC). the plaintiff to exercise the power of
eminent domain and the propriety of its
Requisites for the valid exercise of the power exercise in the context of the facts involved in
of eminent domain (OPO) the suit.
1. An Ordinance is enacted by the local NOTE: It ends with an order, if not dismissal of
legislative council authorizing the local chief action, of condemnation declaring that the
executive, in behalf of the LGU, to exercise the plaintiff has a lawful right to take the
power of eminent domain or pursue property sought to be condemned, for the
expropriation proceeding over a public use or purpose described in the
particular private property. complaint, upon the payment of just
2. It must be for Public use, purpose or welfare compensation to be determined as of the
or for the benefit of the poor or landless date of the filing of the complaint.
NOTE: Property already devoted to public An order of dismissal, if this be ordained,

use may not be taken for another public use would be a final one, since it finally disposes
(City of Manila v. Chinese Community of of the action and leaves nothing more to be
Manila, G.R. No. L-14355, October 31, 1919). done by the Court on the merits. The order of
condemnation shall be a final one, as the Rules
3. There must be payment of just Compensation expressly state, in the proceedings before the

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Trial Court, no objection to the exercise of the Satisfaction of genuine necessity

right of condemnation (or the propriety requirement
thereof) shall be filed or heard.
The right to take private property for public
2. The determination by the RTC of the just purposes necessarily originates from the
compensation for the property sought to be necessity and the taking must be limited to such
taken. necessity. In City of Manila v. Chinese Community
of Manila, it is held that the very foundation of the
This is done by the Court with the assistance right to exercise eminent domain is a genuine
of not more than three (3) commissioners. necessity and that necessity must be of a public
The order fixing the just compensation on character. Moreover, the ascertainment of the
the basis of the evidence before, and findings necessity must precede or accompany and not
of, the commissioners would be final. It would follow the taking of the land. In City of Manila v.
finally dispose of the second stage of the suit, Arellano Law College, the necessity within the
and leave nothing more to be done by the rule that the particular property to be
Court regarding the issue (Brgy. San Roque, expropriated must be necessary, does not mean
Talisay, Cebu v. Hrs. of Francisco Pastor, G.R. an absolute, but only a reasonable or practical
No. 138896, June 20, 2000). necessity, such as would combine the greatest
benefit to the public with the least inconvenience
NOTE: LGUs prolonged occupation of private and expense to the condemning party and the
property without the benefit of expropriation property owner consistent with such benefit
proceedings entitles the landowner to damages (Masikip v. City of Pasig, G.R. No. 136349, January 23,
(City of Iloilo v. Judge Contreras-Besana, G.R. No. 2006).
168967, February 12, 2010).
Q: May LGUs expropriate a property to provide
Satisfaction of public use requirement a right-of-way to residents of a subdivision?
In cases where only a few could actually benefit A: NO. Considering that the residents who need
from the expropriation of the property does not a feeder road are all subdivision lot owners, it is
diminish its public use character. It is simply not the obligation of the subdivision owner to acquire a
possible to provide for all at once, land and right-of-way for them. However, the failure of
shelter, for all who need them. Corollary to the the subdivision owner to provide an access road
expanded notion of public use, expropriation is not does not shift the burden to the LGU
anymore confined to vast tracts of land and landed concerned. To deprive respondents of their
estates. It is therefore of no moment that the land property instead of compelling the subdivision
sought to be expropriated is less than half a owner to comply with his obligation under the
hectare only. Through the years, the public use law is an abuse of the power of eminent domain
requirement in eminent domain has evolved into a and is patently illegal. Worse, the expropriation
flexible concept, influenced by changing conditions. will actually benefit the subdivisions owner who
Public use now includes the broader notion of will be able to circumvent his commitment to
indirect public benefit or advantage including in provide road access to the subdivision in
particular, urban land reform and housing conjunction with his development permit and
(Philippine Columbian Association v. Panis, G.R. No. license to sell from the Housing and Land Use
L-106528, December 21, 1993). Regulatory Board, and also be relieved of
spending his own funds for a right-of-way
NOTE: The passage of RA 7279, the Urban (Barangay Sindalan v. CA G.R. No. 150640, March 22,
Development and Housing Act of 1992 introduced 2007).
a limitation on the size of the land sought to be
expropriated for socialized housing. The law Q: Municipality of Panay issued resolutions
expressly exempted small property owners from authorizing the municipal government through
expropriation of their land for urban land reform the Mayor to initiate expropriation proceedings.
(City of Mandaluyong v. Aguilar, G.R. No. 137152, A petition for expropriation was filed by the
January 29, 2001). Municipality of Panay. Petitioners are the
owners of parcels of land which is going to be
expropriated by the LGU.
Petitioners argue that such expropriation was

based only on a resolution and not on an
ordinance contrary to Sec. 19 of LGC. Is the

exercise of eminent domain by the Municipality Q: Petitioner Himlayang Pilipino filed a petition
of Panay valid? to annul an ordinance which provides that at
least 6% of the total area of every private
A: NO. The LGC expressly requires an ordinance for cemetery shall be set aside for charity burial
the purpose of expropriation, and a resolution grounds of deceased paupers. Petitioner
which merely expresses the sentiment of the alleged that the ordinance is an invalid exercise
municipal council will not suffice. As respondent's of the power of eminent domain as they were
expropriation in this case was based merely on a not paid just compensation. The City
resolution, such expropriation is clearly defective. government of Quezon City, however, argued
While the Court is aware of the constitutional policy that the ordinance is an exercise of police
promoting local autonomy, the court cannot grant power, hence, just compensaition is not
judicial sanction to an LGU's exercise of its necessary. Is the ordinance valid?
delegated power of eminent domain in
contravention of the very law giving it such power A: NO. The power to regulate does not include the
(Beluso, et al. v. Municipality of Panay (Capiz), G.R. power to prohibit. A fortiori, the power to regulate
No. 153974, August 7, 2006). does not include the power to confiscate. The
ordinance in question not only confiscates but also
Q: NAPOCOR undertook the Agus River prohibits the operation of a memorial park
Hydroelectric Power Plant Project to generate cemetery. There is no reasonable relation between
electricity for Mindanao. The project included the setting aside of at least 6% of the total area of a
the construction of several underground tunnels private cemeteries for charity burial grounds of
to be used in diverting the water flow from the deceased paupers and the promotion of health,
Agus River to the hydroelectric plants. Merry, morals, good order, safety, or the general welfare
Pippin and Sam belatedly discovered that one of of the people.
the underground tunnels of NAPOCOR traversed
their land. The said underground tunnel had Section 9 of the assailed Ordinance is not a mere
been constructed without their knowledge and police regulation but an outright confiscation. It is
consent. not an exercise of police power but eminent
domain. It deprives a person of his private
Merry, Pippin and Sam now seek for recovery of property without due process of law and without
the property and damages because according to payment of just compensation. Instead of building
them, the presence of the tunnel deprived them or maintaining a public cemetery for this purpose,
of the agricultural, commercial, industrial, and the city passes the burden to private cemeteries.
residential value of their land. Moreover, Police power does not involve the taking or
according to Merry, Pippin and Sam their land confiscation of property with the exception of few
had also become an unsafe place for habitation cases where there is a necessity to confiscate
because of the loud sound of the water rushing private property in order to destroy it for the
through the tunnel and the constant shaking of purpose of protecting the peace and order and of
the ground. promoting the general welfare (Quezon City v.
Ericta, G.R. No. L-34915, June 24, 1983).
Does the construction of the tunnel constitute
taking of land which entitles Merry, Pippin and Q: The municipal council of Baao, Camarines
Sam to just compensation? Sur, passed an ordinance providing that any
person who will construct or repair a building
A: YES. There was full taking on the part of should before doing such, obtain a written
NAPOCOR, notwithstanding that the owners were permit from the Municipal Mayor and if said
not completely and actually dispossessed. Taking of building destroys the view of the Public Plaza
private property for public use, to be compensable, or occupies any public property, it shall be
need not be an actual physical taking or removed at the expense of the owner of the
appropriation. Compensable taking includes building or house. X filed a written request for a
destruction, restriction, diminution, or interruption permit to construct a building on a parcel of
of the rights of ownership or of the common and land adjacent to their gasoline station. The
necessary use and enjoyment of the property in a request was denied because the proposed
lawful manner, lessening or destroying its value building would destroy the view or beauty of
(NAPOCOR v. Hrs. of Macabangkit Sangkay, G.R. No. the public plaza. X proceeded with the
165828, August 24, 2011). construction of the building without a permit
because his former house was destroyed by a
typhoon. X was charged and convicted of
violating the Ordinance for having constructed

2015GOLDEN NOTES
LOCAL GOVERNMENTS
a building that destroys the view of the public more than forty days, the city engineer took no
plaza without a mayors permit. Is the action. Wherefore, Hipolito wrote him a letter
ordinance valid? manifesting his readiness to pay the fee and to
comply with existing ordinances governing the
A: NO. The ordinance is unreasonable and issuance of building permits. The engineer
oppressive, in that it operates to permanently declined to issue the permit as according to the
deprive appellants of the right to use their own Urban Commissions Adopted Plan for the Sta.
property; hence, it oversteps the bounds of police Ana, the streets will be widened to the
power, and amounts to a taking of appellants respective widths of 22-m. and 10 m and will
property without just compensation. But while affect the proposed building. Was the engineer
property may be regulated in the interest of the correct in not issuing the permit?
general welfare and, in its pursuit, the State may
prohibit structures offensive to sight, the State may A: NO. The refusal of the city engineer to issue a
not, under the guise of police power, permanently building permit to private landowners constitutes
divest owners of the beneficial use of their eminent domain when there is no law or ordinance
property and practically confiscate them solely to requiring private land owners to conform to the
preserve or assure the aesthetic appearance of the proposed widening of the street approved by the
community. To legally achieve that result, the Urban Commission. Where the City has not
municipality must give the owners just expropriated the strip of land affected by the
compensation and an opportunity to be heard. The proposed widening of the street, inasmuch as there
Ordinance was beyond the authority of said is no legislative authority to establish a building
municipality to enact, and is therefore null and line, the denial of this permit would amount to
void (People v. Fajardo, G.R No. L-12172, August 29, taking of private property for public use under the
1958). power of eminent domain without following the
procedure prescribed for the exercise of such
Q: The Philippine Tourism Authority sought the power. The city engineer required to issue the
expropriation of 282 hectares of rolling building permit upon payment of the fees (Hipolito
land situated in Barangay Alubog and Babag, v. City of Manila, G.R No. L-3887, August 21, 1950).
Cebu City, under an express authority to
acquire by purchase or by any other means any TAXING POWER
private land within the tourism zone. Petitioner
contended that the taking was not for public Nature of the power of taxation of LGUs
use and that there is no specific constitutional
provision authorizing the taking of private The power to tax is primarily vested in the
property for tourism purposes. Is the Congress; however, in our jurisdiction, it may be
contention valid? exercised by local legislative bodies, no longer
merely by virtue of a valid delegation as before, but
A: NO. Expropriation by the PTA under PD 564 of pursuant to direct authority conferred by Section 5,
land owned by the local government for promotion Article V of the 1987 Constitution. The exercise of
of tourism is a valid exercise of the States power of the power may be subject to such guidelines and
eminent domain. The concept of public use is not limitations as the Congress may provide which,
limited to traditional purposes. Here, as elsewhere, however, must be consistent with the basic policy
the idea that public use is strictly limited to clear of local autonomy (Mactan Cebu International
cases of use by the public has been discarded. Airport Authority v. Marcos, G.R. No. 120082,
The States power of eminent domain extends to September 11, 1996).
the expropriation of land for tourism purposes
although this specific objective is not expressed in Rationale for local taxation
the Constitution. The policy objectives of the
framers can be expressed only in general terms The power of taxation is an essential and inherent
such as social justice, local autonomy, conservation attribute of sovereignty. It is a power that is purely
and development of the national patrimony public legislative and which the central legislative body
interest, and general welfare, among others (Heirs cannot delegate to either executive or judicial
of Ardona v. Reyes, G.R. No. G.R No. L-60549, October department without infringing upon the theory of
26, 1983). separation of powers. The exception, however, lies
in the case of municipal corporations, to which said
Q: Sps. Hipolito are the registered owners of a theory does not apply. Legislative powers may be
parcel of land in Santa Ana, Manila. They delegated to legislative governments in respect of
applied for permission to erect a strong- matters of local concern. This is sanctioned by
material residential building on the lot. For immemorial practice. By necessary implication,

legislative power to create political corporations provision found in the Constitution means these
for purposes of local self-government carries with local governments units cannot be required to
it the power to confer on such local government perform any act to receive the just share accruing
agencies the power to tax (Pepsi-Cola Bottling Co. v. to them from the national coffers (Civil Service
Municipality of Tanauan, G.R. No. L-31156, February Commission v. Department of Budget and
27, 1976). Management, G.R. No. 158791, July 22, 2005).
ARMMs taxing power Q: The President, through AO 372, ordered

the withholding of 10% of the LGUs' IRA
The ARMM has the legislative power to create "pending the assessment and evaluation by the
sources of revenues within its territorial Development Budget Coordinating Committee
jurisdiction and subject to the provisions of the 1987 of the emerging fiscal situation" in the country.
Constitution and national laws (Sec. 20(2), Art. X, Is the AO valid?
1987 Constitution).
A: NO. A basic feature of local fiscal autonomy is
Power to tax by ordinary LGUs v. Power to tax by the automatic release of the shares of LGUs in the
Autonomous Regions national internal revenue. This is mandated by
no less than the Constitution. The LGC specifies
LGUS OUTSIDE LGUS INSIDE further that the release shall be made directly to
AUTONOMOUS AUTONOMOUS the LGU concerned within five days after every
REGIONS REGIONS (I.E. ARMM) quarter of the year and shall not be subject to any
Basis of Taxing Power lien or holdback that may be imposed by the
Sec. 5, Art. X, 1987 Sec. 20(b), Art. X, 1987 national government for whatever purpose. As a
Constitution Constitution rule, the term "shall" is a word of command that
Governing guidelines and limitations must be given a compulsory meaning. The
provision is, therefore, imperative (Pimentel Jr. v.
LGC of 1991 Respective Organic Act
Aguirre, G.R. No. 132988, July 19, 2000).
NOTE: Unlike Sec. 5, Art. X, Sec. 20, Art. X of the
Main sources of revenues of LGUs
1987 Constitution is not self-executing. It merely
authorizes Congress to pass the Organic Act of
1. Taxes, fees, and charges (Sec. 5, Art. X, 1987
the autonomous regions which shall provide for
Constitution).
legislative powers to levy taxes upon their
2. Internal Revenue Allotment (IRA) - Just share
inhabitants.
in the national taxes which shall be
automatically released to them (Sec. 6, Art. X,
Local Fiscal Autonomy
1987 Constitution).
Fiscal autonomy means that local governments
NOTE: The current sharing is 40% local and
have the power to create their own sources of
60% national. The share cannot be reduced
revenue in addition to their equitable share in the
except if there is unmanageable public sector
national taxes released by the national
deficit.
government, as well as the power to allocate their
resources in accordance with their own priorities.
3. Equitable share in the proceeds of the
It extends to the preparation of their budgets, and
utilization and development of the national
local officials in turn have to work within the
wealth within their areas (Sec. 7, Art. X, 1987
constraints thereof. They are not formulated at the
Constitution).
national level and imposed on local governments,
whether they are relevant to local needs and
Principles governing exercise of taxing and
resources or not. Further, a basic feature of local
revenue-sharing powers of LGUs
fiscal autonomy is the constitutionally mandated
automatic release of the shares of local
1. Taxation shall be uniform in each
governments in the national internal revenue
LGU
(Province of Batangas v. Romulo, G.R. No. 152774,
2. Taxes, fees, charges and other impositions
May 27, 2004).
shall be equitable and based as far as
practicable on the taxpayers ability to pay; it
NOTE: A no report, no release policy may not be
shall be levied and collected only for public
validly enforced against offices vested with fiscal
purpose; it must not be unjust, excessive,
autonomy such as Constitutional Commissions and
oppressive, or confiscatory; it must not be
local governments. The automatic release
contrary to law, public policy, national

2015GOLDEN NOTES
LOCAL GOVERNMENTS
economic policy, or restraint of trade; the LGUs in their respective local

3. The collection of local taxes, fees, charges development plans are considered in the
and other impositions shall in no case be let formulation of budgets of national line
to any private person. agencies or offices;
4. The revenue collected shall inure solely to 12. Fiscal responsibility shall be shared by all
the benefit of, and be subject to disposition those exercising authority over the financial
by, the local government unit, unless affairs, transactions and operations of
specifically provided therein. LGUs; and
5. Each local government unit shall, as far as 13. The LGU shall endeavor to have a balanced
practicable, evolve a progressive system of budget in each fiscal year of operation (Sec. 305,
taxation (Sec. 130, LGC). LGC).
Principles governing financial affairs, Requirements for a valid tax ordinance

transactions and operations of LGUs
1. The tax is for a public purpose;
1. No money shall be paid out of the local 2. The rule on uniformity of taxation is observed;
treasury except in pursuance of an 3. Either the person or property taxed is within
appropriation ordinance or law; the jurisdiction of the government levying the
2. Local government funds and monies shall be tax; and
spent solely for public purposes; 4. In the assessment and collection of certain
3. Local revenue is generated only from sources kinds of taxes, notice and opportunity for
expressly authorized by law or ordinance, hearing are provided (Pepsi-Cola Bottling Co. v.
and collection thereof shall at all Municipality of Tanauan, G.R. No. L-31156,
times be acknowledged properly; February 27, 1976).
4. All monies officially received by a local
government officer in any capacity or on any Procedural requirements for a valid revenue
occasion shall be accounted for as local ordinance
funds, unless otherwise provided;
5. Trust funds in the local treasury shall not be 1. A prior public hearing on the measure to be
paid out except in the fulfillment of the conducted according to the prescribed rules.
purpose for which the trust was created or
the funds received; NOTE: An ordinance levying taxes, fees or
6. Every officer of the LGU whose duties permit charges shall not be enacted without any prior
or require the possession or custody of public hearing conducted for the purpose
local funds shall be properly bonded, and (Figuerres v. CA, G.R. No. 119172, March 25,
such officer shall be accountable and 1999).
responsible for said funds and for
the safekeeping thereof in conformity 2. Publication of the tax ordinance, within 10
with the provisions of law; days after their approval, for 3 consecutive
7. Local governments shall formulate days in a newspaper of local circulation,
sound financial plans and local budgets shall provided that in provinces, cities, and
be based on functions, activities, and projects municipalities where there are no newspapers
in terms of expected results; of local circulation, the same may be posted in
8. Local budget plans and goals shall, as far as at least two (2) conspicuous and publicly
practicable, be harmonized with accessible places.
national development plans, goals and
strategies in order to optimize the utilization NOTE: If the tax ordinance or revenue
of resources and to avoid duplication in the measure contains penal provisions as
use of fiscal and physical resources. authorized in Art. 280 of this Rule, the gist of
9. Local budgets shall operationalize approved such tax ordinance or revenue measure shall
local development plans; be published in a newspaper of general
10. LGUs shall ensure that their respective circulation within the province where the
budgets incorporate the requirements of their sanggunian concerned belongs (Art. 276, IRR of
component units and provide for LGC).
equitable allocation of resources among
these component units; Effectivity of tax ordinance
11. National planning shall be based on local
planning to ensure that the needs and In case the effectivity of any tax ordinance or
aspirations of the people as articulated by revenue measure falls on any date other than

the beginning of the quarter, the same demanded; the object being to save his right to
shall be considered as falling at the beginning of recover or reclaim the amount, which right would
the next ensuing quarter and the taxes, fees, or be lost by his acquiescence. Thus, taxes may be paid
charges due shall begin to accrue therefrom (Art. under "protest" (Blacks Law Dictionary).
276, IRR of LGC).
Requisites of a valid tax protest in a LGU
Q: The Province of Palawan passes an
ordinance requiring all owners/operators of 1. Taxpayer first pays the taxes
fishing vessels that fish in waters surrounding 2. There shall be annotation on the tax receipts
the province to invest ten percent (10%) of the words "paid under protest".
their net profits from operations therein in 3. The protest in writing must be filed within
any enterprise located in Palawan. NARCO thirty (30) days from payment of the tax to the
Fishing Corp., a Filipino corporation with head provincial, city treasurer or municipal
office in Navotas, Metro Manila, challenges the treasurer, in the case of a municipality within
ordinance as unconstitutional. Decide. Metropolitan Manila Area, who shall decide
the protest within sixty (60) days from receipt
A: The ordinance is invalid. The ordinance was (Sec. 252, LGC).
apparently enacted pursuant to Art. X, Sec. 7 of
the Constitution, which entitles local governments NOTE: A claim for tax exemption, whether full or
to an equitable share in the proceeds of the partial, does not deal with the authority of local
utilization and development of the national wealth assessor to assess real property tax, but merely
within their respective areas. However, this raises a question of reasonableness of correctness of
should be made pursuant to law. A law is needed such assessment, which requires compliance with
to implement this provision and a local Sec. 252 of the LGC (Camp John Hay Development
government cannot constitute itself unto a law. In Corporation v. Central Board of Assessment Appeals,
the absence of a law, the ordinance in question is G.R. No. 169234, October 2, 2013).
invalid.
Remedies available to the LGUs to enforce the
Authority to determine the legality or payment of taxes
propriety of a local tax ordinance or revenue
measure 1. Imposing penalties (surcharges and penalty
interest) in case of delinquency (Sec. 168, LGC)
It is the Secretary of Justice who shall determine 2. Availing local governments liens (Sec. 173,
questions on the legality and constitutionality LGC)
of ordinances or revenue measures. 3. Administrative action through distraint of
goods, chattels, and other personal
Such questions shall be raised on appeal within property (Sec. 174(a), LGC)
thirty days from the effectivity thereof to the 4. Judicial action (Sec. 174(b), LGC)
Secretary of Justice who shall render a decision
within sixty days from the date of receipt of the Community tax
appeal.
Community tax is a poll or capitation tax which is
NOTE: Such appeal shall not have the effect imposed upon person who resides within a
of suspending the effectivity of the ordinance and specified territory.
the accrual and payment of the tax, fee, or charge
levied therein: Provided, finally, that within thirty Exempted from the payment of community tax
days after receipt of the decision or the lapse of the
sixty-day period without the Secretary of Justice 1. Diplomatic and consular representatives;
acting upon the appeal, the aggrieved party 2. Transient visitors when their stay in
may file appropriate proceedings with a court of the Philippines does not exceed 3 months
competent jurisdiction (RTC) (Sec. 187, LGC). (Sec. 159, LGC).
Tax Protest Real property taxes
The formal statement, usually in writing, made by a These are directly imposed on privilege to use real
person who is called upon by public authority to pay property such as land, building, machinery, and
a sum of money, in which he declares that he does other improvements, unless specifically exempted.
not concede the legality or justice of the claim or his
duty to pay it, or that he disputes the amount

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Q: Bayantel was granted by Congress, after CLOSING AND OPENING OF ROADS

the effectivity of LGC, a legislative franchise
with tax exemption privileges which partly LGUs power to open or close a road
reads: the grantee, its successors or assigns
shall be liable to pay the same taxes on their real LGU may, pursuant to an ordinance, permanently
estate, buildings and personal property, or temporarily close or open any local road, alley,
exclusive of this franchise, as other persons park, or square falling within its jurisdiction;
or corporations are now or hereafter may be Provided, however, that in case of permanent
required by law to pay. This provision closure, such ordinance must be approved by at
existed in the companys franchise prior to least two-thirds (2/3) of all the members of the
the effectivity of the LGC. Quezon City then sanggunian, and when necessary, an adequate
enacted an ordinance imposing a real substitute for the public facility that is subject to
property tax on all real properties located closure is provided (Sec 21(a), LGC).
within the city limits and withdrawing all
exemptions previously granted. Among NOTE: No permanent closure of any local road,
properties covered are those owned by the street, alley, park, or square shall be effected
company. Bayantel asserts that its properties unless there exists a compelling reason or
are exempt from tax under its franchise. Is sufficient justification therefor such as, but not
Bayantel correct? limited to, change in land use, establishment of
infrastructure facilities, projects, or such other
A: YES. The properties are exempt from taxation. justifiable reasons as public welfare may require
The grant of taxing powers to local governments (Art. 44(a), IRR, RA 7160).
under the Constitution and the LGC does not affect
the power of Congress to grant tax exemptions. Limitations of permanent and temporary
closure
The term "exclusive of the franchise" is interpreted
to mean properties actually, directly and A. In case of permanent closure:
exclusively used in the radio and 1. It must be approved by at least 2/3 of all
telecommunications business. The subsequent the members of the Sanggunian and
piece of legislation which reiterated the phrase when necessary provide for an
exclusive of this franchise found in the previous adequate substitute for the public facility
tax exemption grant to the company is an express 2. Adequate provision for the public
and real intention on the part of the Congress safety must be made
to once again remove from the LGCs delegated 3. The property may be used or conveyed
taxing power, all of the companys properties that for any purpose for which other real
are actually, directly and exclusively used in the property may be lawfully used or
pursuit of its franchise (The City Government of conveyed (Sec 21(a)(b), LGC).
Quezon City, et al., v. Bayan Telecommunications,
Inc., G.R. No. 162015, March 6, 2006). NOTE: No freedom park shall be
closed permanently without provision
Elements so that the President may interfere in for its transfer or relocation to a new site
local fiscal matters (Sec 21(a)(b), LGC).
1. An unmanaged public sector deficit of the B. In case of temporary closure:

national government; 1. It must be for actual emergency,
2. Consultations with the presiding officers of fiesta celebration, public rallies,
the Senate and the House of Representatives agricultural or industrial fairs, or an
and the presidents of the various local leagues; undertaking of public works and highways,
3. And the corresponding recommendation of telecommunications and water work
the secretaries of the Department of projects
Finance, Interior and Local Government, and 2. Duration of which shall be specified
Budget and Management (Pimentel, Jr. v. 3. Except for those activities not officially
Aguirre, G.R. No. 132988, July 19, 2000). sponsored or approved by the LGU
concerned (Sec 21(c) LGC).
NOTE: Any city, municipality or barangay may, by

ordinance, temporarily close and regulate the use
of a local street, road, thoroughfare or any other
public place where shopping malls, Sunday, flea or

night markets, or shopping areas may be ordinance by an LGU to effect the opening of a local
established and where articles of commerce may be road, can have no applicability to the instant case
sold or dispensed with to the general public (Sec. since the subdivision road lots sought to be opened
21(d), LGC). to decongest traffic in the area have already been
donated by the Subdivision to, and the titles already
Material factors to consider in closing a street issued in the name of, the City Government of
Paraaque. Having been already donated or turned
The material factors which a municipality must over to Paraaque, the road lots in question have
consider in deliberating upon the advisability since then taken the nature of public roads which are
of closing a street are: withdrawn from the commerce of man, and hence
1. The topography of the property placed beyond the private rights or claims of NSVHAI.
surrounding the street in the light of ingress Consequently, BSV Sangguniang Barangay's act of
and egress to other streets; passing the Resolution had for its purpose not the
2. the relationship of the street in the road opening of a private road but merely a directive or
system throughout the subdivision; reminder to the NSVHAI to cause the opening of a
3. the problem posed by the 'dead end' of the public road which should rightfully be open for use to
street; the width of the street; the general public (New Sun Valley Homeowners
4. the cost of rebuilding and maintaining the Association Inc. v. Sangguniang Barangay, Barangay
street as contrasted to its ultimate value to Sun Valley, Paraaque City, G.R. No. 156686, July 27,
all of the property in the vicinity; 2011).
5. the inconvenience of those visiting the
subdivision; and LEGISLATIVE POWER
6. Whether the closing of the street would cut
off any property owners from access to a Nature of local legislative powers
street (Favis v. City of Baguio, G.R. No. L-29910,
April 25, 1969). It is a fundamental principle that municipal
ordinances are inferior in status and subordinate
Q: The Sangguniang Barangay of BSV passed a to the laws of the State. An ordinance in conflict
Resolution which directed the NSV Homeowners with a state law of general character and
Association to open Marshmallow and Chocolate statewide application is universally held to be
Streets to vehicular and pedestrian traffic. The invalid. The principle is frequently expressed in
NSV Homeowners Association, Inc. (NSVHAI), the declaration that municipal authorities, under
filed a petition claiming that the implementation a general grant of power, cannot adopt
of the resolution would cause grave injustice and ordinances which infringe upon the spirit of a
irreparable injury as the affected homeowners state law or repugnant to the general policy of
acquired their properties for strictly residential the state. In every power to pass ordinances
purposes, and that the subdivision is a place that given to a municipality, there is an implied
the homeowners envisioned would provide them restriction that the ordinances shall be
privacy and a peaceful neighborhood, free from consistent with the general law (Batangas CATV
the hassles of public places; and that the passage v. Court of Appeals, G.R. No. 138810, September
of the Resolution would destroy the character of 29, 2004).
the subdivision. NSVHAI averred that the opening
of the gates of the subdivision would not ease the NOTE: The rule against undue delegation of
traffic congestion in the area, and that there were legislative powers applies to LGUs. In the case of
alternative routes available. NSVHAI argued that Villegas v. Tsai Pao Ho (G.R. No. 29646, October
the Sangguniang Barangay has no jurisdiction 10, 1978), a city ordinance was declared void
over the roads and they likewise argued that a because it constituted undue delegation of
Barangay Resolution cannot validly cause the legislative power to the Mayor. The ordinance
opening of the subject roads because under the did not lay down any standard to guide the
law, an ordinance is required to effect such an Mayor in the exercise of his discretion in the
act. issuance or denial of an alien employment
permit.
Should the Sangguniang Barangay pass an
ordinance instead of a resolution to open the The Sanggunian
subject roads?
A sanggunian is a collegial body. Legislation,
A: NO. LGU's have the power to close and open roads which is the principal function of the sanggunian,
within its jurisdiction as provided for in Sec. 21 of the requires the participation of all its members so
LGC. This provision, which requires the passage of an that they may not only represent the interests of

2015GOLDEN NOTES
LOCAL GOVERNMENTS
their respective constituents but also help in the Q. May an incumbent Vice-Governor, acting as
making of decisions, by voting upon every governor, continue to preside over the sessions
question put upon the body (Zamora v. Caballero, of the Sangguniang Panlalawigan? If not, who
G.R. No. 147767, January 14, 2004). may preside in the meantime?
NOTE: A petition for certiorari filed against a A: NO. A Vice-Governor who is concurrently an
Sangguniang Panlungsod assailing the legality of acting governor is actually a quasi-governor. For
an ordinance will not lie since the Sanggunian is purposes of exercising his legislative prerogatives
not a tribunal, board or officer exercising judicial and powers, he is deemed a non-member of the SP
or quasi-judicial functions (Liga ng mga for the time being. Being the Acting Governor, the
Barangay National v. City Mayor of Manila, G.R. Vice-Governor cannot continue to simultaneously
No. 154599, January 21, 2004). exercise the duties of the latter office, since the
nature of the duties of the provincial Governor call
No power to subpoena and hold persons in for a full-time occupant to discharge them. Such is
contempt not only consistent with but also appears to be the
clear rationale of the new Code wherein the policy
The contempt power and the subpoena power of performing dual functions in both offices has
cannot be deemed implied in the delegation of already been abandoned.
certain legislative functions to local legislative
bodies. These cannot be presumed to exist in The creation of a temporary vacancy in the office of
favor of the latter and must be considered an the Governor creates a corresponding temporary
exception to Sec. 4 of BP Blg. 337 which provides vacancy in the office of the Vice-Governor
for liberal rules of interpretation in favor of local whenever the latter acts as Governor by virtue of
autonomy. Since the existence of these powers such temporary vacancy. The continuity of the
poses a potential derogation of individual rights, Acting Governors (Vice-Governor) powers as
the law cannot be liberally construed to have presiding officer of the SP is suspended so long as
impliedly granted such powers to local he is in such capacity.
legislative bodies. The intention of the people,
through their representatives, to share these Under Sec. 49(b), (i)n the event of the inability of
powers with the local legislative bodies must the regular presiding officer to preside at the
clearly appear in pertinent legislation (Negros sanggunian session, the members present and
Oriental II Electric Cooperative Inc., v. Sangguiang constituting a quorum shall elect from among
Panlungsod ng Dumaguete, G.R. No. L-72492, themselves a temporary presiding officer.
November 5, 1987). (Gamboa v. Aguirre, G.R. No. 134213, July 20, 1999).
Local legislative bodies and their presiding Quorum in the sanggunian

officers
Quorum is defined as the number of members of a
Sangguniang Vice- body which when legally assembled in their
Province
Panlalawigan governor proper places, will enable the body to transact its
Sangguniang City Vice- proper business or that number which makes a
City lawful body and gives it power to pass upon a law,
Panlungsod mayor
Sangguniang Municipal ordinance or any valid act. Majority, when
Municipality required to constitute a quorum, means the
bayan Vice-mayor
Sangguniang Punong number greater than half or more than half of any
Barangay total.
barangay Barangay
NOTE: The presiding officer shall vote only to break a The applicable rule on quorum of local legislative
tie (Sec. 49(a) LGC). bodies is found in Section 53(a) of the LGC which
provides that a majority of all members of the
In the absence of the regular presiding officer or sanggunian who have been elected and qualified
his inability to preside at the sanggunian session, shall constitute a quorum to transact official
the members present and constituting a quorum business. The entire membership must be taken
shall elect from among themselves a temporary into account in computing the quorum (Zamora v.
presiding officer (Sec. 49(b) of LGC; Gamboa v. Caballero, G.R. No. 147767, January 14, 2004).
Aguirre, G.R. No. 134213, July 20, 1999).
NOTE: The determination of the existence of
quorum is based on the total number of members
of the sanggunian without regard to filing of a

leave of absence (Zamora v. Caballero, G.R. No. b. Unless otherwise concurred in by 2/3
147767, January 14, 2004). votes of the sanggunian members
present, there being no quorum, no
Procedures to be taken by the presiding officer other matters may be considered at a
if there is a question on quorum special session except those stated in the
notice (Sec. 52, LGC).
Should there be a question of quorum raised during
a session, the presiding officer shall: Q: On its first regular session, may the
1. Immediately proceed to call the roll of the sanggunian transact business other than the
members and matter of adopting or updating its existing rules
2. Announce the results (Sec. 53 (a), LGC). or procedure?
Procedures to be taken by the presiding officer A: YES. There is nothing in the language of the
if there is no quorum LGC that restricts the matters to be taken up
during the first regular session merely to the
The presiding officer may: adoption or updating of the house rules (Malonzo
1. Declare a recess until such time that quorum v. Zamora, G.R. No. 137718, July 27, 1999).
is constituted
2. Compel immediate attendance of the ORDINANCE AND RESOLUTIONS
members who are absent without justifiable
cause Ordinance
3. Declare the session adjourned for lack of
quorum and no business shall be transacted if As a municipal statute, it is a rule of conduct or of
there is still no quorum despite enforcement of action, laid down by the municipal authorities that
attendance (Sec. 53(b)(c), LGC). must be obeyed by the citizens. It is drafted,
prepared, promulgated by such authorities for the
Fixing of Sessions information of all concerned, under and by virtue of
powers conferred upon them by law (United States
REGULAR SESSIONS SPECIAL SESSIONS v. Pablo Trinidad, G.R. No. L-3023, January 16, 1907).
By resolution on the 1st When public interest so
day of the session demands, special Elements of a valid ordinance or resolution
immediately following session may be called
the election of its for by the chief 1. Must not contravene the constitution and
members executive or by a any statute
majority vote members 2. Must not be unfair or oppressive
of sanggunian 3. Must not be partial or discriminatory
4. Must not prohibit, but may regulate trade
NOTE: The minimum number of regular sessions 5. Must not be unreasonable
shall be once a week for the sangguniang 6. Must be general in application and
panlalawigan, sangguniang panlungsod, and Consistent with public policy (Magtajas v.
sangguniang bayan, and twice a month for the Pryce Properties Corporation, Inc., G.R. No.
sangguniang barangay (Sec. 52 (a), LGC). 111097, July 20, 1994).
NOTE: The mere fact that there is already a

Guidelines in the conduct of a sanggunian general statute covering an act or omission is
session insufficient to negate the legislative intent to
empower the municipality to enact ordinances
1. It shall be open to public, unless it is a with reference to the same act or omission under
closed-door session the general welfare clause of the Municipal
2. No two sessions, regular or special, may be Charter (United States v. Pascual Pacis, G.R. No.
held in a single day 10363, September 29, 1915).
3. Minutes of the session be recorded and each
sanggunian shall keep a journal and record of Ordinance v. Resolution
its proceedings which may be published
upon resolution of the sanggunian concerned. ORDINANCE RESOLUTION
4. In case of special sessions: Law Merely a declaration of
a. Written notice to the members must be the sentiment or
served personally at least 24 hours before opinion of a
the special session is held lawmaking body on a

2015GOLDEN NOTES
LOCAL GOVERNMENTS
specific matter
General and Temporary in nature Items that the local chief executive can veto
permanent character
Third reading is GR: Third reading is 1. Item/s of an appropriation ordinance.
necessary for an not necessary in 2. Ordinance/resolution adopting local
ordinance resolution development plan and public investment
XPN: Unless decided program
otherwise by a 3. Ordinance directing the payment of money or
majority of all the creating liability (Sec. 55, LGC)
Sanggunian members
(Roble Arrastre, Inc. v. NOTE: Ordinances enacted by the sangguniang
Villaflor, G.R. No. barangay shall, upon approval by a majority of
128509, August 22, all its members be signed by the punong
2006). barangay. The latter has no veto power.
NOTE: It has been held that even where the Approval of ordinances
statute or municipal charter requires the
municipality to act by an ordinance, if a resolution 1. By affixing the signature of the local chief
is passed in the manner and with the statutory executive on each and every page thereof if he
formality required in the enactment of an approves the same
ordinance, it will be binding and effective as an 2. By overriding the veto of the local chief
ordinance. Such resolution may operate regardless executive by 2/3 vote of all members of
of the name by which it is called (Favis v. City of the sanggunian if the local chief executive
Baguio, G.R. No. L-29910, April 25, 1969). vetoed the same (Sec. 54, LGC).
Three readings allowed in one day NOTE: A sanggunian may provide for a vote
requirement different (not majority vote) from that
There is nothing in the LGC which prohibits the prescribed in the LGC for certain (but not all)
three readings of a proposed ordinance from being ordinances as in amending a zoning ordinance
held in just one session day. It is not the function (Casino v. Court of Appeals, G.R. No. 91192, December
of the courts to speculate that the councilors were 2, 1991).
not given ample time for reflection and
circumspection before the passage of the proposed Effectivity of ordinance or resolution
ordinance by conducting three readings in just one
day (Malonzo v. Zamora, G.R. No. 137718, July 27, GR: After 10 days from the date a copy is posted in a
1999). bulletin board at the entrance of the capitol or city,
municipal or barangay hall and in at least 2
Veto of the Local Chief Executive conspicuous spaces (Sec. 59 (a) LGC).
The Local Chief Executive may veto the XPN: Unless otherwise stated in the
ordinance only once on the ground that the ordinance or resolution (Sec. 59 (a), LGC).
ordinance is ultra vires and prejudicial to public
welfare. The veto must be communicated to the Effect of the enforcement of a disapproved
sanggunian within: ordinance or resolution
a. 15 days for a province
b. 10 days for a city or municipality (Secs. 54 It shall be a sufficient ground for the suspension
and 55, LGC) or dismissal of the official or employee (Sec. 58,
LGC).
NOTE: While to veto or not to veto involves the
exercise of discretion, a mayor exceeded his/her Ordinances requiring publication for its
authority in an arbitrary manner when he/she effectivity
vetoes a resolution where there exists sufficient
municipal funds from which the salary of the 1. Ordinances that carry with them penal
officer could be paid. The Mayors refusal in sanctions (Sec. 59(c) LGC).
complying with the directive of the Director of the 2. Ordinances and resolutions passed by highly
Bureau of Local Government that the salary could urbanized and independent component cities
be provided for is oppressive (Pilar v. Sangguniang (Sec. 59(d), LGC).
Bayan of Dasol, Pangasinan, G.R. No. L-63216,
March 12, 1984).

Review of ordinances or resolutions LOCAL INITIATIVE AND REFERENDUM
COMPONENY CITIES Local initiative v. Referendum

AND MUNICIPAL BARANGAY
ORDINANCES OR ORDINANCES INITIATIVE REFERENDUM
RESOLUTIONS The legal process The legal process
Who reviews whereby the registered whereby the registered
Sanggunang PanlalawiganSangguniang Panglungsod voters of LGU may voters of the LGU may
or Sangguniang Bayan directly propose, enact or approve, amend or
When copies of ordinance or resolutions be amend any ordinance reject any ordinance
forwarded (Sec. 120 LGC). enacted by the
Within 3 days after Within 10 days after sanggunian (Sec. 126 RA.
approval its enactment 7160).
Period to examine
Within 30 days after Within 30 days after NOTE: Local initiative includes not only ordinances
the receipt; the receipt. but also resolutions as its appropriate subjects
1. Examine, or (Garcia v. COMELEC, G.R. 111230, September 30,
2. Transmit to the 1994).
provincial attorney
or provincial Limitations on local initiative
prosecutor.
If it is transmitted, 1. It shall not be exercised for more than once
the provincial a year.
attorney or 2. It shall extend only to subjects or matters
prosecutor must which are within the legal powers of the
submit his sanggunian to enact.
comments or 3. If at any time before the initiative is held,
recommendations the sanggunian concerned adopts in toto the
within 10 days proposition presented and the local chief
from receipt of the executive approves the same, the initiative
document. shall be canceled. However, those against such
action may, if they so desire, apply for
When declared valid initiative in the manner herein provided (Sec.
If no action has been If no action has been 124, LGC).
taken within 30 days taken within 30 days
after submission. after submission. Procedure in conducting local initiative
When invalid (grounds) 1. Number of voters who should file petition
If it is beyond the If inconsistent with with the Sanggunian concerned:
power conferred on the the law or city or a. Province and cities not less than 1000
sangguniang municipal ordinance registered voters
panlungsod or b. Municipality at least 100 registered
sangguniang Effect: Barangay voters
pangbayan (Sec. 56, ordinance is c. Barangay at least 50 registered voters
LGC). suspended until such
time as the revision 2. The sanggunian concerned has 30 days to act
called is effected (Sec. on the petition. If the sanggunian does not take
57, LGC). any favorable action, the proponents may
invoke the powers of initiative, giving notice to
sanggunian.
3. Proponents will have the following number
of days to collect required number of
signatures
a. Provinces and cities 90 days
b. Municipalities 60 days
c. Barangay 30 days
4. Signing of petition in a public place, before the

election registrar or his designated

2015GOLDEN NOTES
LOCAL GOVERNMENTS
representatives, in the presence of a without prior authorization by the

representative of the proponent and of the sanggunian concerned. A legible copy of such
sanggunian concerned. contract shall be posted at a conspicuous place
5. Date of initiative is set by COMELEC if the in the provincial capitol or the city, municipal
required number of signatures has been or barangay hall.
obtained (Sec. 122, LGC).
6. To exercise such other powers as granted to
Effectivity of proposition corporations (Sec. 22, LGC).
If the proposition is approved by a majority of the TO SUE AND BE SUED

votes cast, it will take effect 15 days after
certification by the COMELEC (Sec. 123, LGC). Proper officer to represent the city in court
actions
Rule of COMELEC over local referendum
GR: The city legal officer is supposed to represent
The local referendum shall be held under the the city in all civil actions and special
control and direction of the COMELEC within proceedings wherein the city or any of its
a. Provinces and cities 60 days officials is a party.
b. Municipalities 45 days
c. Barangay 30 days NOTE: Only the Provincial Fiscal or the Municipal
Attorney can represent a province or municipality in
The COMELEC shall certify and proclaim the results lawsuits. This is mandatory. Hence, a private
of the said referendum (Sec. 126, LGC). attorney cannot represent a province of
municipality.
Rule on repeal, modification and amendment of
an ordinance or proposition approve through an XPN: Where the position is as yet vacant,
initiative and referendum the City Prosecutor remains the citys legal
adviser and officer for civil cases (Asean Pacific
Any proposition or ordinance approved through an Planners v. City of Urdaneta, G.R. No. 162525,
initiative and referendum shall not be repealed, September 23, 2008).
modified or amended by the sanggunian within 6
months from the date of approval thereof. NOTE: Suit is commenced by the local chief
executive, upon authority of the Sanggunian, except
It may be amended, modified or repealed within 3 when the City Councilors, by themselves and as
years thereafter by a vote of of all its members representatives of or on behalf of the City bring the
(Sec. 125 LGC). action to prevent unlawful disbursement of City
funds (City Council of Cebu v. Cuizon, G.R. No. L-
NOTE: In case of barangays, the period shall be 18 28972, October 31, 1972).
months after the approval thereof (Ibid.).
Power of LGU to sue on behalf of community it
CORPORATE POWERS represents
Corporate powers of LGUs A municipality prejudiced by the action of another

municipality is vested with the character of a
1. To have continuous succession in its juridical entity, is a corporation of public interest
corporate name endowed with the personality to acquire and hold
2. To sue and be sued property, contract obligations, and bring civil and
3. To have and use a corporate seal criminal actions in accordance with the laws
governing its organization, and it is entitled to file
NOTE: Any new corporate seal or changes on claims for the purpose of recovering damages,
such shall be registered with the DILG. losses and injuries caused to the community it
represents (Municipality of Mangaldan v.
4. To a acquire and convey real or personal Municipality of Manaoag, G.R. No. L-11627, August
property 10, 1918).
5. To enter into contracts
Q: Teotico was about to board a jeepney in P.
NOTE: Unless otherwise provided in this Burgos, Manila when he fell into an uncovered
Code, no contract may be entered into by manhole. This caused injuries upon him.
the local chief executive in behalf of the LGU Thereafter he sued for damages under Article

2189 of the Civil Code against the City of Manila from seizure or garnishment does not apply when
and its local officials. The City of Manila assailed the funds sought to be levied under execution are
the decision of the CA on the ground that the already allocated by law specifically for the
charter of Manila states that it shall not be liable satisfaction of the money judgment against the
for damages caused by the negligence of the city government. In such a case, the monetary judgment
officers in enforcing the charter; that the charter may be legally enforced by judicial processes (City of
is a special law and shall prevail over the Civil Caloocan v. Allarde, G.R. No. 107271, September 10,
Code which is a general law; and that the 2003).
accident happened in national highway. Is the
City of Manila liable? Immunity from Suit
A: YES. It is true that in case of conflict, a special law A municipality, as an agency of the State engaged in
prevails over a general law; that the charter of governmental functions, is immune from suit (Jayme
Manila is a special law and that the Civil Code is a v. Apostol, G.R. No. 163609, November 27, 2008).
general law. However, looking at the particular
provisions of each law concerned, the provision of GR: Municipalities are not liable for torts committed
the Manila Charter exempting it from liability by them in the discharge of governmental functions.
caused by the negligence of its officers is a general
law in the sense that it exempts the city from XPN: They are liable only if it can be shown that
negligence of its officers in general. Art. 2189 of the they were acting in a proprietary capacity.
NCC provides that provinces, cities, and
municipalities liable for the damages caused to a NOTE: In permitting such entities to be sued, the
certain person by reason of the defective condition State merely gives the claimant the right to show
of roads, streets, bridges, public buildings, and other- that the defendant was not acting in its
public works under their control or supervision. governmental capacity when the injury was
committed or that the case comes under the
Even though it is a national highway, the law exceptions recognized by law. Failing this, the
contemplates that regardless of whether or not the claimant cannot recover (Mun. of San Fernando, La
road is national, provincial, city, or municipal, so Union v. Firme, G.R. No. L-52179, April 8, 1991).
long as it is under the Citys control and supervision,
it shall be responsible for damages by reason of the TO ACQUIRE AND SELL PROPERTY
defective conditions thereof (City of Manila v.
Teotico, G.R. No. L-23052, January 29, 1968). Property held in trust by LGUs as agents of
the State
Q: May LGU funds and properties be seized
under writs of execution or garnishment Properties of municipalities not acquired by its
to satisfy judgments against them? own funds in its private capacity are public
property held in trust for the State. Regardless
A: NO. The universal rule that where the State of the source or classification of land in the
gives its consent to be sued by private parties possession of a municipality, except those
either by general or special law, it may limit acquired with its own funds in its private or
claimants action only up to the completion of corporate capacity, such property is held in trust
proceedings anterior to the stage of execution for the State for the benefit of its inhabitants,
and that the power of the Courts ends when the whether it be for government or proprietary
judgment is rendered. Government funds and purposes. It holds such lands subject to the
properties may not be seized under writs of paramount power of the legislature to dispose of
execution or garnishment to satisfy the same, for after all it owes its creation to it as
such judgments. This is based on obvious an agent for the performance of a part of it
considerations of public policy. Disbursements of public work, the municipality being but a
public funds must be covered by the subdivision or instrumentality thereof for the
corresponding appropriations as required by purposes of local administration (Salas v.
law. The functions and public services rendered Jarencio, G.R. No. L-29788, August 30, 1972).
by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from Properties that can be alienated by LGUs
their legitimate and specific objects (Traders
Royal Bank v. IAC, G.R. No. 68514, December 17, Only properties owned in its private or proprietary
1990). capacity (Province of Zamboanga del Norte v. City
of Zamboanga, G.R. No. L-24440, March 28, 1968).
NOTE: The rule on the immunity of public funds

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Art. 424 of the Civil Code lays down the basic Congress may transfer property to an LGU for
principle that properties of public dominion public or patrimonial purposes
devoted to public use and made available to the
public, in general, are outside the commerce of A city, being a public corporation, is not covered by
man and cannot be disposed of or leased by the LGU the constitutional ban on acquisition of alienable
to private persons (Macasiano v. Diokno, G.R. No. public lands. Congress may, by law, transfer public
97764, August 10, 1992). lands to a city, an end user government agency, to
be used for municipal purposes, which may be
Rules on LGUs power to acquire and convey public or patrimonial. Lands thus acquired by the
real or personal property city for a public purpose may not be sold to private
parties. However, lands so acquired by a city for a
1. In the absence of proof that the property patrimonial purpose may be sold to private parties,
was acquired through corporate or private including private corporations (Chavez v. Public
funds, the presumption is that it came from the Estates Authority, G.R No. 133250, November 11,
State upon the creation of the municipality 2003).
and, thus, is governmental or public
property (Salas v. Jarencio, G.R. No. L-29788, TO ENTER INTO CONTRACTS
August 30, 1972; Rabuco v. Villegas, G.R. No.
L-24661, February 28, 1974). Elements of a valid municipal contract
2. Town plazas are properties of public
dominion; they may be occupied temporarily, 1. The LGU has the express, implied or
but only for the duration of an emergency inherent power to enter into particular
(Espiritu v. Municipal Council of Pozorrubio, contract
Pangasinan, G.R. No. L-11014, January 21, 1958). 2. The contract is entered into by the proper
3. Public plazas are beyond the commerce of department board, committee, officer or agent.
man, and cannot be the subject of lease or
other contractual undertaking. And, even NOTE: No contract may be entered into by the
assuming the existence of a valid lease of the local chief executive on behalf of the local
public plaza or part thereof, the municipal government without prior authorization by
resolution effectively terminated the the sanggunian concerned, unless otherwise
agreement, for it is settled that the police provided (Sec 22(c) LGC).
power cannot be surrendered or
bargained away through the medium of 3. The contract must comply with
a contract (Villanueva v. Castaneda, G.R. No. certain substantive requirements:
L-61311, September 21, 1987). a. Actual appropriation; and
4. Public streets or thoroughfares are property b. Certificate of availability of funds
for public use, outside the commerce of man,
and may not be the subject of lease or 4. The contract must comply with the formal
other contracts (Dacanay v. Asistio, G.R. No. requirements of written contracts. (e.g.,
93654, May 6, 1992). Statue of Frauds)
Documents to support the contract of sale NOTE: This includes the power to acquire and
entered into by the LGU convey properties by the LGU through written
contracts.
1. Resolution of the sanggunian authorizing the
local chief executive to enter into a contract Void contracts of LGUs do not require judicial
of sale. The resolution shall specify the terms declaration of nullity
and conditions to be embodied in the contract.
2. Ordinance appropriating the amount specified Contracts entered into by a municipality, in
in the contract. violation of existing law, do not require judicial
3. Certification of the local treasurer as action declaring their nullity. In the case of Bunye v.
to availability of funds together with a Sandiganbayan (G.R. No. 122058, May 5, 1999), the
statement that such fund shall not be disbursed Supreme Court held that contracts which grant a 25-
or spent for any purpose other than to pay for year lease of the Public Market when the law at that
the purchase of the property involved (Jesus is time BP Blg. 337, limits such leases to a maximum of
Lord Christian School Foundation, Inc. v. Mun. five years, are void.
of Pasig, G.R. No. 152230, August 9, 2005).

Conditions/Requisites under which a local local chief executive must therefore have prior
chief executive may enter into a contract in authorization from the sanggunian
behalf of his government unit (Quisumbing v. Garcia, G.R. No. 175527,
December 8, 2008).
1. The contract must be within the power of
the municipality Ultra vires contracts
2. The contract must be entered into by an
authorized officer (e.g. mayor with proper Ultra vires contracts are those which:
resolution by the Sangguniang Bayan) a. are entered into beyond the express, implied
3. There must be appropriation and certificate or inherent powers of the LGU; and
of availability of funds b. do not comply with the substantive
4. The contract must conform with the requirements of law e.g., when expenditure of
formal requisites of a written contract as public funds is to be made, there must be an
prescribed by law; and actual appropriation and certificate of
5. In some cases the contract must be approved by availability of funds (Land Bank of the
the President and/or provincial governor (Sec. Philippines v. Eduardo Cacayuran, G.R. No.
2068 and Sec. 2196, Revised Adm. Code). 191667, April 17, 2013).
Contracts validly entered into by previous NOTE: Such are null and void and cannot be
chief executive bind successor-in-office ratified or validated.
When there is a perfected contract executed by Estoppel cannot be applied against a municipal
the former Governor, the succeeding governor corporation in order to validate a contract which
cannot revoke or renounce the same without the municipal corporation has no power to make or
the consent of the other party. The contract has which it is authorized to make only under
the force of law between the parties and they prescribed conditions, within prescribed
are expected to abide in good faith by their limitations, or in a prescribed mode or manner,
respective contractual commitments. Just as although the corporation has accepted the
nobody can be forced to enter into a contract, benefits thereof and the other party has fully
in the same manner, once a contract is entered performed his part of the agreement, or has
into, no party can renounce it unilaterally or expended large sums in preparation for
without the consent of the other. It is a general performance (Favis v. Municipality of Sabangan, G.R.
principle of law that no one may be permitted No. L-26522, February 27, 1969).
to change his/her mind or disavow and go back
upon his/her own acts, or to proceed contrary Instance when a defective municipal
thereto, to the prejudice of the other party contract may be ratified
(GSIS v. Province of Tarlac, G.R. No. 157860,
December 1, 2003). Ratification of defective municipal contracts is
possible only when there is non-compliance with
Prior authorization by municipal council the requirements of authority of the officer
entering into the contract and/or conformity with
Under Section 22(c) of the LGC, the local chief the formal requisites of a written contract as
executive cannot enter into a contract in behalf prescribed by law. Ratification may either be
of the LGU without prior authorization from expressed or implied.
the sanggunian concerned. Such authorization
may be in the form of an appropriation NOTE: An act attended only by an irregularity, but
ordinance passed for the year which remains within the municipalitys power, is
specifically covers the project, cost, or contract considered as an ultra vires act subject to
entered into by the LGU. ratification and/or validation.
However, this rule does not apply where the Examples:

LGU operated on a reenacted budget. In case of a. Those entered into by the improper
a reenacted budget, only the annual department, board, officer of agent;
appropriation for salaries and wages of b. Those that not comply with the formal
existing positions, statutory and contractual requirements of a written contract e.g., the
obligations, and essential operating expenses Statute of Frauds (Land Bank of the Philippines
authorized in the annual and supplemental v. Eduardo Cacayuran, G.R. No. 191667, April 17,
budgets for the preceding year shall be deemed 2013).
reenacted. New contracts entered into by the

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Contracts entered into by a local chief executive questioned the lack of ratification by the City
may be subject to constructive ratification Council of the contracts, among others. Should
all the documents pertaining to the purchase of
A loan agreement entered into by the provincial the lots bear the ratification by the City Council
governor without prior authorization from the of Calamba?
Sangguniang Panlalawigan is unenforceable. The
Sanggunians failure to impugn the contracts A: NO. Sec. 22(c), LGC, provides: (c) Unless
validity despite knowledge of its infirmity is an otherwise provided in this Code, no contract may
implied ratification that validates the contract be entered into by the local chief executive in
(Ocampo v. People, G.R. No. 156547-51 & 156382-85, behalf of the LGU without prior authorization by
February 4, 2008). the sanggunian concerned. Clearly, when the local
chief executive enters into contracts, the law
Doctrine of estoppel does not apply against a speaks of prior authorization or authority from the
municipal corporation to validate an invalid Sangguniang Panlungsod and not ratification. It
contract cannot be denied that the City Council issued Res.
280 authorizing Mayor Tiama to purchase the
The doctrine of estoppel cannot be applied as subject lots.
against a municipal corporation to validate a
contract which it has no power to make, or which it NOTE: As aptly pointed out by the Ombudsman,
is authorized to make only under prescribed ratification by the City Council is not a condition
conditions, within prescribed limitations, or in a sine qua non for a mayor to enter into contracts.
prescribed mode or manner, although the With the resolution issued by the Sangguniang
corporation has accepted the benefits thereof and Panlungsod, it cannot be said that there was
the other party has fully performed its part of the evident bad faith in purchasing the subject lots.
agreement, or has expended large sums in The lack of ratification alone does not characterize
preparation for performance. A reason frequently the purchase of the properties as one that gave
assigned for this rule is that to apply the doctrine unwarranted benefits to Pamana or Prudential
of estoppel against a municipality in such a case Bank or one that caused undue injury to Calamba
would be to enable it to do indirectly what it City (Vergara v. Ombudsman, G.R. No. 174567, March
cannot do directly (In Re: Pechueco Sons Company v. 12, 2009).
Provincial Board of Antique, G.R. No. L-27038,
January 30, 1970). Competitive or Public Bidding
Authority to negotiate and secure grants Refers to a method of procurement which is open
to participation by any interested party and
The local chief executive may, upon authority of which consists of the following processes:
the sanggunian, negotiate and secure financial advertisement, pre-bid conference, eligibility
grants or donations in kind, in support of the basic screening of prospective bidders, receipt and
services or facilities enumerated under Sec. 17 of opening of bids, evaluation of bids, post-
LGC, from local and foreign assistance agencies qualification, and award of contract (Sec 5 (h),
without necessity of securing clearance or IRR, RA 9184).
approval from any department, agency, or
office of the national government or from any Requirement of public bidding
higher LGU; Provided, that projects financed by
such grants or assistance with national security In the award of government contracts, the law
implications shall be approved by the national requires competitive public bidding. It is aimed to
agency concerned (Sec.23, LGC). protect the public interest by giving the public
the best possible advantages thru open
Q: The City Council of Calamba issued several competition. It is a mechanism that enables the
resolutions authorizing Mayor Tiama to government agency to avoid or preclude
negotiate with landowners within the vicinity anomalies in the execution of public contracts
of Barangays Real, Halang, and Uno, for a new (Garcia v. Burgos, G.R. No. 124130, June 29, 1998).
city hall site and to purchase several lots and to
execute, sign and deliver the required Failure of bidding
documents. Mayor Tiama then entered into
MOA, Deed of Sale, Deed of Mortgage, and Deed When any of the following occurs:
of Assignment. 1. There is only one offeror
2. When all the offers are non-complying or
Thereafter, Ong, a member of the City Council, unacceptable (Bagatsing v. Committee on

Privatization, G.R. No. 112399, July 14, 1995). 2. Liability for contracts
LIABILITY OF LGUs NOTE:

a. LGU is liable provided that the contract
Scope of municipal liability is intra vires or it is ultra vires that is only
attended by irregularities, which does not
Municipal liabilities arise from various sources in preclude ratification or the application of
the conduct of municipal affairs, both the doctrine of estoppel.
governmental and proprietary.
If it is ultra vires, which are entered into
NOTE: Tests of liability is the nature of task being beyond the express, implied or inherent
performed. powers of the local government unit or do
not comply with the substantive
Rule on the liabilities of LGUs and their officials requirements of law they are not liable.
b. A private individual who deals with a
LGUs and their officials are not exempt from municipal corporation is imputed with
liability arising from death or injury to persons CONSTRUCTIVE knowledge of the
or damage to property (Sec. 24, LGC). extent of the power or authority of the
municipal corporation to enter into
Liabilities of LGUs contracts.
1. LGUs shall be liable for damages for the death 3. Liability for tort
of, or injuries suffered by, any person by
reason of the defective condition of roads, NOTE: They may be held liable for torts arising
streets, bridges, public buildings, and other from the performance of their private and
public works under their control or proprietary functions under the principle of
supervision (Art. 2189, NCC). respondeat superior. They are also liable for
back salaries for employees illegally
NOTE: LGU is liable even if the road does not dismissed/separated or for its refusal to
belong to it as long as it exercises control or reinstate employees.
supervision over the said roads.
Doctrine of Implied Municipal Liability
2. The State is responsible in like manner when
it acts through a special agent; but not when A municipality may become obligated, upon an
the damage has been caused by the official to implied contract, to pay the reasonable value of
whom the task done properly pertains. In the benefits accepted or appropriated by it as to
which case, Art. 2176 shall be applicable (Art. which it has the general power to contract. The
2180 (6), NCC). doctrine of implied municipal liability has been
3. When a member of a city or municipal said to apply to all cases where money or other
police force refuses or fails to render aid or property of a party is received under such
protection to any person in case of circumstances that the general law, independent
danger to life or property, such peace of express contract, implies an obligation upon
officer shall be primarily liable for damages the municipality to do justice with respect to the
and the city or municipality shall be same (Province of Cebu v. IAC, G.R. No. 72841,
subsidiarily responsible therefor (Art. 34, January 29, 1987).
NCC).
NOTE: The obligation of a municipal
Bases for municipal liabilities corporation upon the doctrine of an implied
contract does not connote an enforceable
1. Liability arising from violation of law obligation. Some specific principle or situation
of which equity takes cognizance must be the
NOTE: Liability arising from violation of law foundation of the claim. The principle of
such as closing municipal streets without liability rests upon the theory that the
indemnifying persons prejudiced thereby, non- obligation implied by law to pay does not
payment of wages to its employees due to lack originate in the unlawful contract, but arises
of funds or other causes or its refusal to abide from considerations outside it. The measure of
a temporary restraining order may result in recovery is the benefit received by the
contempt charge and fine. municipal corporation. The province cannot
set up the plea that the contract was ultra vires

2015GOLDEN NOTES
LOCAL GOVERNMENTS
and still retain benefits (Ibid.). to be considered and will be decisive. The basic
element, however beneficial to the public the
Tort liability of LGUs undertaking may be, is that it is governmental in
essence; otherwise the function becomes private or
1. LGU-engaged in governmental function Not proprietary in character (Ibid.).
liable
2. LGU-engaged in proprietary function Liable Q: X was elected as Vice Mayor of Dasol,
Pangasinan. The Sangguniang Bayan adopted
Q: A collision between a passenger jeepney, Resolution No. 1 which increased the salaries of
sand and gravel truck, and a dump truck the Mayor and Municipal Treasurer to P18,636
driven by Monte and owned by the and P16,044 per annum respectively. However,
Municipality of San Fernando occurred the Resolution did not provide for an increase in
which resulted to the death of Jessica, a salary of the Vice Mayor despite the fact that
passenger of the jeepney. The heirs of such position is entitled to an annual salary of
Jessica instituted an action for damages P16,044. X questioned the failure of the
against the Municipality. Is the municipality Sangguniang Bayan to appropriate an amount
liable for the tort committed by its employee? for the payment of his salary. The Sangguniang
Bayan increased his salary and enacted a
A: NO. The driver of the dump truck was Resolution No. 2 appropriating an amount as
performing duties or tasks pertaining to his office payment of the unpaid salaries. However, the
he was on his way to get a load of sand and gravel Resolution was vetoed by the respondent
for the repair of San Fernando's municipal streets. mayor. Can X avail of damages due to the failure
The municipality cannot be held liable for the tort of the respondents to pay him his lawful salary?
committed by its regular employee, who was then
engaged in the discharge of governmental functions. A: YES. The Mayor alone should be held liable and
The death of the passenger tragic and responsible and not the whole Sanggunian Bayan.
deplorable though it may be imposed on the Respondent Mayor vetoed the Resolution without
municipality no duty to pay monetary just cause. While "to veto or not to veto involves the
compensation (Municipality of San Fernando v. Hon. exercise of discretion" as contended by
Firme, G.R. No. L-52179, April 8, 1991). respondents, respondent Mayor, however, exceeded
his authority in an arbitrary manner when he
Q: The Municipality of Malasiqui authorized the vetoed the resolution since there are sufficient
celebration of town fiesta by way of a municipal funds from which the salary of the
resolution and appropriated an amount for the petitioner could be paid.
construction of 2 stages. One of the members of
the group to perform a play during the fiesta Respondent Mayors refusal, neglect or omission in
was Fontanilla. Before the dramatic part of the complying with the directives of the Provincial
play was reached, the stage collapsed and Budget Officer and the Director of the Bureau of
Fontanilla was pinned underneath resulting to Local Government that the salary of X be provided
his death. The heirs of Fontanilla filed a for and paid the prescribed salary rate, is reckless
complaint against the Municipality. Is the and oppressive, hence, by way of example or
municipality liable? correction for the public good, respondent Mayor is
liable personally to the petitioner for exemplary or
A: YES. The town fiesta was an exercise of a private corrective damages (Pilar v. Sangguniang bayan ng
or proprietary function of the municipality. Dasol, Pangasinan, G.R. No. 63216, March 12, 1984).
Holding a fiesta, even if the purpose is to
commemorate a religious or historical event of the SUCCESSION OF ELECTIVE OFFICIALS
town, is in essence an act for the special benefit of
the community and not for the general welfare of Vacancy
the public performed in pursuance of a policy of
the state. No governmental or public policy of the Absence should be reasonably construed to mean
state is involved in the celebration of a town fiesta effective absence, that is, one that renders the
(Municipality of Malasiqui v. Heirs of Fontanilla, G.R. officer concerned powerless, for the time being, to
No. L-29993, October 23, 1978). discharge the powers and prerogatives of his/her
office. There is no vacancy whenever the office is
NOTE: There can be no hard and fast rule for occupied by a legally qualified incumbent. A sensu
purposes of determining the true nature of an contrario, there is a vacancy when there is no
undertaking or function of a municipality; the person lawfully authorized to assume and exercise
surrounding circumstances of a particular case are at present the duties of the office (Gamboa, Jr. v.

Aguirre, G.R. No. 134213, July 20, 1999). ranking in the Sanggunian shall be
determined on the basis of the
Classes of vacancies in the elective post proportion of the votes obtained by
each winning candidate to the total
PERMANENT TEMPORARY number of registered voters in each
VACANCY VACANCY district in the immediately preceding
Arises when an elected Arises when an elected local election (Sec. 44 (d)(3), LGC).
local official: official is temporarily
1. Fills a higher vacant incapacitated to GR: The successor (by appointment)
office perform his duties due should come from the same political
2. Refuses to assume to legal or physical party as the sanggunian member
office reason such as: whose position has become vacant.
3. Fails to qualify 1. Physical sickness
4. Dies 2. Leave of absence XPN: In the case of vacancy in the
5. Removed from 3. Travel abroad or Sangguniang barangay.
office 4. Suspension from
6. Voluntarily resigns office (Sec. 46, LGC) The reason for the rule is to maintain
7. Permanently the party representation as willed by
incapacitated to the people in the election.
discharge the
functions of his office B. In case automatic succession is not applicable
(Sec. 44, LGC) and there is vacancy in the membership of the
sanggunian, it shall be filled up by appointment in
Filling of vacancy the following manner:
1. The President, through the Executive
1. Automatic succession Secretary, shall appoint the political
2. By appointment (Sec. 45, LGC). nominee of the local chief executive for
the sangguniang panlalawigan and
Rules of succession in case of permanent panlungsod of highly urbanized cities and
vacancies independent component cities (Sec. 45
(a)(1), LGC).
A. In case of permanent vacancy in: 2. The Governor shall appoint the political
1. Office of the Governor: Vice-Governor nominees for the sangguniang panlungsod
2. Office of the Mayor: Vice-Mayor of component cities and the sangguniang
3. Office of the Vice Governor or Vice- bayan concerned (Sec. 45 (a)(2), LGC).
Mayor: highest ranking Sanggunian 3. The city or municipal mayor shall appoint
member or in case of his permanent the recommendee of the sangguniang
inability, the second highest ranking barangay concerned (Sec. 45 (a)(3), LGC).
Sanggunian member successor should
have come from the same political party Hold-over status
NOTE: The highest-ranking municipal In case of failure of elections involving barangay

officials, the incumbent officials shall remain in
councilors succession to the office of vice-
office in a hold-over capacity pursuant to R.A. 9164
mayor cannot be considered a voluntary
(Adap v. COMELEC, G.R. No. 161984, February 21,
renunciation of his office as councilor, 2007).
since it occurred by operation of law
(Montebon v. COMELEC, G.R. No. 180444, The last vacancy in the Sanggunian
April 8, 2008).
It refers to the vacancy created by the elevation of
4. Office of the Punong Barangay: the the member formerly occupying the next higher in
highest ranking sanggunian barangay rank, which in turn also had become vacant by any
member or, in case of his permanent of the causes enumerated.
inability, the second highest ranking
sanggunian member successor may or Q: In the 1997 local elections Calimlim was
may not have come from the same elected as Mayor, Aquino as Vice-Mayor and
political party Tamayo as the highest ranking member of the
Sanggunian. In 1999, Mayor Calimlim died, thus
NOTE: For purposes of succession, Vice-Mayor Aquino succeeded him as Mayor.

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Accordingly, the highest-ranking member of the Rules on temporary vacancies

Sanggunian, Tamayo, was elevated to the
position of the Vice-Mayor. Since a vacancy 1. In case of temporary vacancy of the post of
occurred in the Sangguniang Bayan by the the local chief executive (leave of absence,
elevation of petitioner Tamayo to the office of travel abroad, and suspension): Vice-
the Vice-Mayor, Governor Agbayani appointed Governor, City or Municipal Vice Mayor, or the
Navarro as Member of the Sangguniang Bayan. highest ranking sangguniang barangay shall
Navarro belonged to the same political party as automatically exercise the powers and
that of Tamayo. perform the duties and functions of the
local chief executive concerned.
Respondents argue that it was the former vice-
mayor Aquino who created the permanent NOTE:
vacancy in the Sanggunian and thus, the GR: The acting Governor or Mayor cannot
appointee must come from the former vice exercise the power to appoint, suspend or
mayors political party. Petitioners, however, dismiss employees.
contend that it was the elevation of Tamayo to
the position of vice-mayor which resulted in a XPN: If the period of temporary incapacity
permanent vacancy and thus, the person to be exceeds thirty (30) working days.
appointed to the vacated position should come
from the same political party as that of Tamayo, 2. If travelling within the country, outside
in this case Navarro. Are the respondents his jurisdiction, for a period not exceeding 3
correct? days, he may designate in writing the officer-
in-charge for the same office. The OIC cannot
A: NO. With the elevation of Tamayo to the position exercise the power to appoint, suspend or
of Vice-Mayor, a vacancy occurred in the dismiss employee.
Sanggunian that should be filled up with someone 3. If without said authorization, the Vice-
who should belong to the political party of Governor, City or Municipal Vice-Mayor or
petitioner Tamayo. Under Sec 44 of the LGC, a the highest ranking sangguniang barangay
permanent vacancy arises when an elective official member shall assume the powers, duties and
fills a higher vacant office, refuses to assume office, functions of the said office on the 4th day of
fails to qualify, dies, is removed from office, absence (Sec. 46, LGC).
voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his Termination of temporary incapacity
office. Sec 45 (b) of the same law provides that
only the nominee of the political party under 1. Upon submission to the appropriate
which the Sanggunian member concerned has been sanggunian of a written declaration by the
elected and whose elevation to the position next local chief executive concerned that he has
higher in rank created the last vacancy in the reported back to office, if the temporary
Sanggunian shall be appointed in the manner incapacity was due to
herein provided. The appointee shall come from a. Leave of absence;
the political party as that of the Sanggunian b. Travel abroad; and
member who caused the vacancyThe term last c. Suspension
vacancy is thus used in Sec. 45(b) to differentiate
it from the other vacancy previously created. The 2. Upon submission by the local chief executive
term by no means refers to the vacancy in the No. of the necessary documents showing that the
8 position which occurred with the elevation of 8th legal causes no longer exist, if the temporary
placer to the 7th position in the Sanggunian. Such incapacity was due to legal reasons (Sec.
construction will result in absurdity (Navarro v. CA, 46(b), LGC).
G.R. No. 141307, March 28, 2001).
DISCIPLINE OF LOCAL OFFICIALS
NOTE: In case of vacancy in the representation of
the youth and the barangay in the Sanggunian, it Grounds for disciplinary actions
shall be filled automatically by the official next in
rank of the organization concerned (Sec. 45(d), An elective local official may be disciplined,
LGC). suspended or removed from office on any of the
following grounds:
1. Disloyalty to the Republic of the Philippines

NOTE: An administrative, not criminal, case JURISDICTION

for disloyalty to the Republic only requires
substantial evidence (Aguinaldo v. Santos, G.R. PREVENTIVE SUSPENSION
No. 94115, August 21, 1992).
Preventive suspension may be imposed:
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office, 1. After the issues are joined;
gross negligence, or dereliction of duty 2. When the evidence of guilt is strong;
3. Given the gravity of the offense, there is
NOTE: Acts of lasciviousness cannot be great
considered misconduct in office, and may not probability that the continuance in office of
be the basis of an order of suspension. To the respondent could influence the witnesses
constitute a ground for disciplinary action, the or pose a threat to the safety and integrity of
mayor charged with the offense must be the records and other evidence (Sec. 63(b),
convicted in the criminal action (Palma v. LGC).
Fortich, G.R. No. L-59679, January 29, 1987).
NOTE: It is immaterial that no evidence has
Before the provincial governor and board may been adduced to prove that the official may
act and proceed against the municipal official, influence possible witnesses or may tamper
a conviction by final judgment must precede with the public records. It is sufficient that
the filing by the provincial governor of the there exists such a possibility (Hagad v. Gozo-
charges and trial by the provincial board." Dadole, G.R. No. 108072, December 12, 1995).
(Mindano v. Silvosa, et al., 97 Phil. 144-145
[1955]). Persons who can impose preventive suspension
4. Commission of any offense involving moral AUTHORITY TO RESPONDENT LOCAL

turpitude, or an offense punishable by at IMPOSE SUSPENSION OFFICIAL
least prision mayor BELONGS TO THE
5. Abuse of authority President Elective official of a
province, highly
GR: Unauthorized absence for 15 consecutive urbanized or
working days independent component
city
XPNs: In the case of members of the
Governor Elective official of a
Sangguniang: component city or
a. Panlalawigan
municipality
b. Panlungsod
Mayor Elective official of a
c. Bayan
barangay (Sec 63(a),
d. Barangay
LGC).
6. Application for, or acquisition of, foreign
citizenship or residence or the status of an Rules on preventive suspension
immigrant of another country
7. Such other grounds as may be provided by 1. A single preventive suspension shall not
the Code and other laws (Sec. 60, LGC). extend beyond 60 days (Rios v. Sandiganbayan,
G.R. No. 129913, September 26, 1997).
NOTE: An elective local official may be removed 2. In the event that there are several
from office on any of the grounds enumerated administrative cases filed, the elective
above only by an order from the proper court. The official cannot be preventively suspended
Office of the President does not have any power to for more than 90 days within a single year on
remove elected officials, since such power is the same ground or grounds existing and
exclusively vested in the proper courts as expressly known at the time of his first suspension (Sec.
provided for in the last paragraph of Sec. 60 of LGC 63(b), LGC)
(Salalima v. Guingona, G.R. No. 117589-92, May 22,
1996).

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Preventive suspension under RA 6770

(Ombudsman Act of 1989) v. Preventive Effect of an appeal on the preventive suspension
suspension under RA 7160 (LGC) ordered by the Ombudsman
PREVENTIVE PREVENTIVE An appeal shall not stop the decision from being
SUSPENSION UNDER SUSPENSION UNDER executory. In case the penalty is suspension
RA 6770 THE LGC or removal and the respondent wins such
Requirements appeal, he shall be considered as having been
1. The evidence of guilt 1. There is under preventive suspension and shall be paid
is strong; and reasonable ground the salary and such other emoluments that he
2. That any of the to believe that the did not receive by reason of the suspension or
following respondent has removal. A decision of the Office
circumstances are committed the act or of the Ombudsman in administrative cases shall
present: acts complained of; be executed as a matter of course (Office of the
a. The charge 2. The evidence of guilt Ombudsman v. Samaniego, G.R. No. 175573, October
against the is strong; 5, 2010).
officer or 3. The gravity of the
employee offense so warrants REMOVAL
involves 4. The continuance in
dishonesty, office of the Removal
oppression or respondent could
grave misconduct influence the Removal imports the forcible separation of the
or neglect in the witnesses or pose a incumbent before the expiration of his term and
performance of threat to the safety can be done only for causes as provided by law
duty; and integrity of the (Dario v. Mison, G.R. No. 81954, August 8, 1989).
b. The charges records and other
would warrant evidence NOTE: The unjust removal or non-compliance
removal from with the prescribed procedure constitutes
office; or reversible error and this entitles the officer or
c. The respondents employee to reinstatement with back salaries and
continued stay in without loss of seniority rights.
office may
prejudice the Q: Does the Sangguniang Panlungsod and
case filed against Sangguniang Bayan have the power to remove
him. elective officials?
Maximum period
6 months 60 days A: NO. The pertinent legal provisions and
cases decided by this Court firmly establish that
(Hagad v.Gozo-Dadole, G.R. No. 108072, December
12, 1995). the Sanggunaing Bayan is not empowered to do
so. The most extreme penalty that the Sangguniang
Panlungsod or Sangguniang Bayan may impose on
Power of the Ombudsman under RA 6770 to
the erring elective barangay official is suspension;
conduct administrative investigation
if it deems that the removal of the official from
service is warranted, then it can resolve that the
The Ombudsman and the Office of the
proper charges be filed in court. The courts are
President have concurrent jurisdiction to
conduct administrative investigations over exclusively vested with the power to remove
elective officials under Section 60 of the Local
elective officials (Hagad v. Gozo-Dadole, G.R. No.
Government Code (The Sangguniang Barangay of
108072, December 12, 1995).
Don Mariano Marcos v. Martinez, G.R. No. 170626,
March 3, 2008).
Signing of preventive suspension order
Resignation of public elective officials
The Ombudsman, as well as his Deputy, may sign
an order preventively suspending officials. Also,
Resignation of elective officials shall be deemed
the length of the period of suspension within the
effective only upon acceptance by the following
limits provided by law and the evaluation of the
strength of the evidence both lie in the authorities:
1. The President in case of Governors,
discretion of the Ombudsman (Castillo-Co v.
Vice-Governors, and Mayors and Vice-Mayors
Barbers, G.R. No. 129952, June 16, 1998).
of highly urbanized cities and

independent and component cities cities.

2. The Governor in the case of municipal
Mayors and Vice-Mayors, city Mayors and NOTE: It may be noted that the Constitution
Vice-Mayors of component cities places local governments under the
3. The Sanggunian concerned in case of supervision of the Executive. Likewise, the
sanggunian members Constitution allows Congress to include in the
4. The City or Municipal Mayor in case of LGC provisions for removal of local officials,
barangay officials (Sec. 82, LGC). which suggests that Congress may exercise
removal powers. Note also that legally,
NOTE: The resignation shall be deemed supervision is not incompatible with
accepted if not acted upon by the authority disciplinary action (Ganzon v. CA, G.R. No.
concerned within 15 working days from receipt 93252, August 5, 1991).
thereof. Irrevocable resignations by sanggunian
members shall be deemed accepted upon Under AO 23, the President has delegated the
representation before an open session of the power to investigate complaints to the
sanggunian concerned and duly entered in its Secretary of Interior and Local Government.
records, except where the sanggunian members This is valid delegation because what is
are subject to recall elections or to cases where delegated is only the power to investigate, not
existing laws prescribed the manner of acting upon the power to discipline. Besides, the power
such resignations (Sec. 82(c)(d), LGC). of the Secretary of Interior and Local
Government is based on the alter-ego
ADMINISTRATIVE APPEAL principle (Joson v. Torres, G.R. No. 131255, May
20, 1998).
Rule on administrative appeals
2. Sangguniang Panlalawigan Elective officials
Decisions in administrative cases may, within 30 of municipalities;
days from receipt thereof, be appealed to the
following: NOTE: Decision may be appealed to the Office of
1. The Sangguniang Panlalawigan, in the case the President
of decisions of the Sangguniang Panlungsod
of component cities and the Sangguniang 3. Sangguniang Panglungsod or Bayan Elective
Bayan; and barangay officials (Sec. 61, LGC).
2. The Office of the President, in the case of
decisions of the Sangguniang Panlalawigan NOTE: Decision shall be final and executory.
and the Sangguniang Panlungsod of Highly
Urbanized Cities and Independent DOCTRINE OF CONDONATION
Component Cities (Sec. 67, LGC).
Q: Can a re-elected public official be
NOTE: Decisions of the Office of the President administratively removed from his post for an
shall be final and executory. alleged offense committed during his first term
of office?
Persons authorized to file administrative
complaint A: NO. Aguinaldos re-election has rendered the
pending administrative case against him moot and
1. Any private individual or any government academic. Clear then, the rule is that a public
officer or employee by filing a verified official cannot be removed for administrative
complaint; misconduct committed during a prior term, since
2. Office of the President or any his re-election to office operates as a condonation
government agency duly authorized by law of the officer's previous misconduct to the extent of
to ensure that LGUs act within their cutting off the right to remove him therefor. The
prescribed powers and functions (Rule 3, foregoing rule, however, finds no application to
Sec.1, AO 23, December 17, 1992). criminal cases pending against petitioner for acts
he may have committed during the failed coup
A verified complaint shall be filed with the (Aguinaldo v. Santos, G.R. No. 94115, August 21,
following: 1992).
1. Office of the President Against elective

official of provinces, highly urbanized cities,
independent component cities, or component

2015GOLDEN NOTES
LOCAL GOVERNMENTS
Elective Officials v. Appointive Officials APPOINTIVE OFFICIALS
APPOINTIVE Appointive Officials and the Civil Service

ELECTIVE OFFICIALS
OFFICIALS Commission
Occupy their office by Hold their office by
virtue of the mandate of virtue of their The authority granted by the Civil Service
the electorate. They are designation thereto by Commission (CSC) to a city government to take
elected to an office for a an appointing authority. final action on all its appointments did not deprive
definite term and may Some appointive the CSC of its authority and duty to review
be removed therefrom officials hold their office appointments. The CSC is empowered to take
only upon stringent in a permanent capacity appropriate action on all appointments and other
conditions. and are entitled to personnel actions. Such power includes the
security of tenure while authority to recall appointments initially approved
others serve at the in disregard of applicable provisions of the Civil
pleasure of the Service law and regulations (Nazareno v. City of
appointing authority Dumaguete, G.R. No. 181559, October 2, 2009).
(Quinto v. COMELEC, G.R
No. 189698, February NOTE: The municipal mayor, being the appointing
22, 2010). authority, is the real party in interest to challenge
the CSCs disapproval of the appointment of his/her
Q: Romeo Jalosjos, a member of Congress, is appointee. The CSCs disapproval of an appointment
confined at the National Penitentiary while his is a challenge to the exercise of the appointing
conviction for statutory rape on two counts and authoritys discretion. The appointing authority
acts of lasciviousness on six counts is pending must have the right to contest the disapproval
appeal. Jalosjos filed a motion asking that he be (Dagadag v. Tongnawa, G.R. Nos. 161166-67,
allowed to fully discharge the duties of a February 3, 2005).
Congressman, including attendance at
legislative sessions and committee meetings Preventive suspension of appointive local
despite his having been convicted in the first officials and employees
instance of a non-bailable offense.
The local chief executives may preventively
Jalosjos relied on the ruling in Aguinaldo v. suspend, for a period not exceeding sixty (60)
Santos, which states, that The Court should days, any subordinate official or employee
never remove a public officer for acts done under his authority pending investigation if the
prior to his present term of office. To do charge against such official or employee
otherwise would be to deprive the people of involves dishonesty, oppression, or grave
their right to elect their officers. When the misconduct or neglect in the performance of
people have elected a man to office, it must be duty, or if there is reason to believe
assumed that they did this with the knowledge that the respondent is guilty of the charges which
of his life and character, and that they would warrant his removal from the service (Sec.
disregarded or forgave his fault or misconduct, 85, LGC).
if he had been guilty of any. It is not for the
Court, by reason of such fault or misconduct, to Imposable penalties
practically overrule the will of the people.
Decide. Except as otherwise provided by law, the local chief
executive may impose the penalty of:
A: The ruling in Aguinaldo v. Santos does not apply
to imprisonment arising from the enforcement of 1. Removal from service
criminal law. It can be readily seen in the above- 2. Demotion in rank
quoted ruling that the Aguinaldo case involves the 3. Suspension for not more than one (1)
administrative removal of a public officer for acts year without pay
done prior to his present term of office. Moreover, 4. Fine in an amount not exceeding six (6)
in the same way that preventive suspension is not months salary
removal, confinement pending appeal is not 5. Reprimand and otherwise discipline
removal. He remains a congressman unless subordinate officials and employees under his
expelled by Congress or, otherwise, disqualified jurisdiction
(People v. Jalosjos, G.R. Nos. 132875-76, February 3,
2000). NOTE: If the penalty imposed is suspension
without pay for not more than thirty (30) days, his

decision shall be final. of the COMELEC for the conduct of recall elections
(Sec. 75, LGC).
If the penalty imposed is heavier than suspension
of thirty (30) days, the decision shall be Q: Goh filed before the COMELEC a recall
appealable to the Civil Service Commission, petition against Mayor Bayron due to loss of
which shall decide the appeal within thirty (30) trust and confidence. On 1 April 2014, the
days from receipt thereof (Sec. 87, LGC). COMELEC promulgated Resolution No. 9864
which found the recall petition sufficient in
Q: Salumbides and Glenda were appointed as form and substance, but suspended the funding
Municipal Legal Officer/Administrator and of any and all recall elections until the
Municipal Budget Officer, respectively. A resolution of the funding issue. Petitioner
complaint was filed with the Office of the submits that the same is a grave abdication and
Ombudsman against Salumbides and Glenda. wanton betrayal of the constitutional mandate
They urge the Court to expand the settled of the COMELEC and a grievous violation of the
doctrine of condonation to cover coterminous sovereign power of the people. What
appointive officials who were administratively Resolution Nos. 9864 and 9882 have given with
charged along with the re-elected one hand (the affirmation of the sufficiency of
official/appointing authority with infractions the Recall Petition), they have taken away with
allegedly committed during their preceding the other (the issue of lack funding). The
term. They contend that the non-application of COMELEC suspended the holding of a recall
the condonation doctrine to appointive officials election supposedly through lack of funding.
violates the right to equal protection of the law. Did the COMELEC gravely abuse its discretion
Is the contention tenable? when it suspended the recall election?
A. NO. In the recent case of Quinto v. COMELEC, it A: YES. The COMELEC committed grave abuse of
discussed the material and substantive distinctions discretion in issuing Resolution Nos. 9864 and
between elective and appointive officials that could 9882. The 2014 GAA provides the line item
well apply to the doctrine of condonation. It is the appropriation to allow the COMELEC to perform its
will of the populace, not the whim of one person constitutional mandate of conducting recall
who happens to be the appointing authority, which elections. There is no need for supplemental
could extinguish an administrative liability. Since legislation to authorize the COMELEC to conduct
Salumbides and Glenda hold appointive positions, recall elections for 2014. Considering that there is
they cannot claim the mandate of the an existing line item appropriation for the conduct
electorate. The people cannot be charged with the of recall elections in the 2014 GAA, we see no
presumption of full knowledge of the life and reason why the COMELEC is unable to perform its
character of each and every probable appointee of constitutional mandate to enforce and administer
the elective official ahead of the latters actual all laws and regulations relative to the conduct of x
reelection. There is neither subversion of the x x recall. Should the funds appropriated in the
sovereign will nor disenfranchisement of the 2014 GAA be deemed insufficient, then the
electorate to speak of, in the case of reappointed COMELEC Chairman may exercise his authority to
coterminous employees (Salumbides v. Office of the augment such line item appropriation from the
Ombudsman, G.R. No. 180917, April 23, 2010). COMELECs existing savings, as this augmentation
is expressly authorized in the 2014 GAA.
RECALL Resolution No. 9864 is therefor partially reverse
and set aside insofar as it directed the suspension
Recall of any and all proceedings in the recall petition
(Goh v. Bayron, G.R No. 212584, November 25,
It is a mode of removal of a public officer, by the 2014).
people, before the end of his term. The peoples
prerogative to remove a public officer is an Ground for recall
incident of their sovereign power, and in the
absence of constitutional restraint, the power is The only ground for recall of local government
implied in all governmental operations (Garcia v. officials is loss of confidence. It is not subject to
COMELEC, G.R. No. 111511, October 5, 1993). judicial inquiry. The Court ruled that loss of
confidence as a ground for recall is a political
NOTE: All expenses incident to recall elections question (Garcia v. COMELEC, G.R No. 111511,
shall be borne by the COMELEC. For this October 5, 1993).
purpose, the annual General Appropriations Act
shall include a contingency fund at the disposal This means that the people may petition to recall

2015GOLDEN NOTES
LOCAL GOVERNMENTS
any local elective officials without specifying any elected.

particular ground except loss of confidence. There 2. Within 15 days after filing, COMELEC must
is no need for them to bring up any charge of certify the sufficiency of the required
abuse or corruption against the local elective number of signatures.
officials who are the subject of any recall petition.
NOTE: Failure to obtain required number
Recall initiation automatically nullifies petition.
The Recall of any elective provincial, city, 3. Within 3 days of certification of sufficiency,
municipal or barangay official shall be commenced COMELEC shall provide the official with copy
by a petition of a registered voter in the LGU of petition and shall cause its publication for
concerned and supported by the registered three weeks (once a week) in a national
voters in the LGU concerned during the election in newspaper and a local newspaper of general
which the local official sought to be recalled was circulation. Petition must also be posted for
elected subject to the following percentage 10 to 20 days at conspicuous places (Sec. 70,
requirements: (b)(2), LGC. Amended by RA 9244).
a. At least twenty-five percent (25%) in the NOTE: Protest should be filed at this point
case LGUs with a voting population of not and ruled with finality within 15 days after
more than twenty thousand (20,000); filing.
b. At least twenty percent (20%) in the case of
LGUs with a voting population of at least 4. COMELEC verifies and authenticates the
twenty thousand (20,000) but not more signature
than seventy-five thousand (75,000): 5. COMELEC announces acceptance of candidates.
Provided, That in no case shall the required 6. COMELEC sets election within 30 days after
petitioners be less than five thousand (5,000); the filing of the resolution or petition for
c. At least fifteen percent (15%) in the case of recall in the case of
LGUs with a voting population of at least barangay/city/municipality, and 45 days in the
seventy-five thousand (75,000) but not more case of provincial officials. Officials
than three hundred thousand (300,000): sought to be recalled are automatic candidates
Provided, however, That in no case shall the (Secs. 70 & 71, LGC).
required number of petitioners be less than
fifteen thousand (15,000); and NOTE: The official or officials sought to be
d. At least ten percent (10%) in the case of LGUs recalled shall automatically be considered as
with a voting population of over three duly registered candidate or candidates to the
hundred thousand (300,000): Provided, pertinent positions and, like other candidates,
however, that in no case shall the required shall be entitled to be voted upon (Sec. 71, LGC).
petitioners be less than forty-five thousand
(45,000) (Sec. 70 of LGC, as amended by RA Effectivity of Recall
9244).
The recall of an elective local official shall be
NOTE: By virtue of RA 9244, Secs. 70 and 71 of effective only upon the election and proclamation of
the LGC were amended, and the Preparatory a successor in the person of the candidate receiving
Recall Assembly has been eliminated as a the highest number of votes cast during the election
mode of instituting recall of elective local on recall.
government officials.
Should the official sought to be recalled receive the
All pending petitions for recall initiated through highest number of votes, confidence in him is
the Preparatory Recall Assembly shall be thereby affirmed, and he shall continue in office
considered dismissed (Sec. 72, LGC).
upon the effectivity of RA 9244 (Approved February.
19, 2004). Prohibition from resignation
Recall process The elective local official sought to be recalled shall

not be allowed to resign while the recall process is
1. Petition of a registered voter in the LGU in progress (Sec. 73, LGC).
concerned, supported by percentage of
registered voters during the election in which
the local official sought to be recalled was

Limitations on recall For a three term rule to apply, the local official
must have fully served the term and been elected
1. Any elective local official may be the subject through regular election.
of a recall election only once during his term of
office for loss of confidence; and Term limit of Barangay officials
2. No recall shall take place within one (1) year
from the date of the officials assumption to The term of office of barangay officials was fixed at
office or one (1) year immediately three years under RA 9164. (19 March 2002)
preceding a regular election (Sec. 74, LGC). Further, Sec.43 (b) provides that "no local
elective official shall serve for more than three (3)
NOTE: The one-year time bar will not apply where consecutive terms in the same position. The Court
the local official sought to be recalled is a interpreted thissection referring to all local
mayor and the approaching election is a elective officials without exclusions or exceptions
barangay election (Angobung v. COMELEC, G.R. No. (COMELEC v. Cruz, G.R. No. 186616, November 20,
126576, March 5, 1997). 2009).
Q: Sec. 74 of the LGC provides that no recall NOTE: Voluntary renunciation of the office for any
shall take place within one year immediately length of time shall not be considered as an
preceding a regular local election. What does interruption in the continuity of service for the full
the term regular local election, as used in this term for which the elective official concerned was
section, mean? elected (Sec 43(b), LGC).
A: Referring to an election where the office held

by the local elective official sought to be recalled
is to be actually contested and filled by the
electorate (Paras v. Comelec, G.R. No. 123169,
November 4, 1996).
Q. Will it be proper for the COMELEC to act

on a petition for recall signed by just one
person?
A: NO. A petition for recall signed by just one

person is in violation of the statutory 25%
minimum requirement as to the number of
signatures supporting any petition for recall
(Angobung v. COMELEC, G.R. No. 126576, March 5,
1997).
TERM LIMITS
Term of office of an elected local official
Three (3) years starting from noon of June 30

following the election or such date as may
be provided by law, except that of elective
barangay officials, for maximum of 3 consecutive
terms in the same position (Sec. 43, LGC).
The term of office of Barangay and Sangguniang

Kabataan elective officials, by virtue of RA 9164, is
three (3) years.
NOTE: The objective of imposing the three-term

limit rule is to avoid the evil of a single person
accumulating excess power over a particular
territorial jurisdiction as a result of a prolonged stay
in the same office.

2015GOLDEN NOTES
NATIONAL ECONOMY AND PATRIMONY
NATIONAL ECONOMY AND PATRIMONY 2. Any land in the possession of an occupant and
of his predecessors-in-interest since time
Threefold goals of the national economy immemorial. Such possession would justify the
presumption that the land had never been part
1. More equitable distribution of opportunities, of the public domain or that it had been a
income and wealth private property even before the Spanish
2. Sustained increase in the amount of goods and conquest (Oh Cho v. Director of Land, G.R. No.
services produced by the nation for the benefit 48321, August 31, 1946).
of the people
3. Expanding productivity (Sec 1, Art XII, 1987 Limitations imposed by Sec. 2, Art II that
Constitution). embody the Jura Regalia of the State
Patrimony 1. Only agricultural lands of the public domain

may be alienated.
It refers not only to natural resources but also to 2. The exploration, development, and utilization
cultural heritage (Manila Prince Hotel v. GSIS, G.R. of all natural resources shall be under the full
No. 122156, February 3, 1997). control and supervision of the State either by
directly undertaking such exploration,
development, and utilization or through co-
REGALIAN DOCTRINE
production, joint venture, or production-
sharing agreements with qualified persons or
Regalian Doctrine (Jura Regalia) corporations (Sec 2, Art XII, 1987 Constitution).
It is the doctrine which reserves to the State the NOTE: Two levels of controls that must be
full ownership of all natural resources or natural considered. First level is the control over the
wealth that may be found in the bowels of the corporation which may engage with the State
earth. in co-production, joint venture, or production
sharing agreements. If individuals, they must
NOTE: All lands of the public domain, waters, be Filipino citizens; if corporations, the
minerals, coal, petroleum, and other mineral oils, ownership must be 60% Filipino.
all forces of potential energy, fisheries, forests, or
timber, wildlife, flora and fauna, and other natural The second level is control of the co-
resources are owned by the state. With the production, joint venture, or production-
exception of agricultural lands, all other natural sharing operation. This must be under the full
resources shall not be alienated (Sec. 2, Art. XII, control and supervision of the State.
1987 Constitution).
What the new rule says is that whenever
Effect of the Regalian Doctrine natural resources are involved, particularly in
the case of inalienable natural resources, the
Any person claiming ownership of a portion of a State must always have some control of the
land of the public domain must be able to show exploration, development, and utilization even
title from the State according to any of the if the individual or corporation engaged in the
recognized modes of acquisition of title (Lee Hong operation is a Filipino.
Kok v. David, G.R. No. L-30389, December 27, 1972).
The new rule however is not retroactive (See:
Exception to the Regalian Doctrine Sec. 2, Art XII, 1987 Constitution).
1. When there is an existence of native title to 3. All agreements with the qualified private
land, or ownership of land by Filipinos by sector may be only for a period not exceeding
virtue of possession under a claim of 25 years, renewable for another 25 years (Sec.
ownership since time immemorial and 2, Art XII, 1987 Constitution).
independent of any grant from the Spanish
Crown. Cario case firmly established a NOTE: The 25 year limit is not applicable to
concept of private land title that existed water rights for irrigation, water supply,
irrespective of any royal grant from the State fisheries, or industrial uses other than the
and was based on the strong mandate development of water power, for which
extended to the Islands via the Philippine Bill beneficial use may be the measure and the
of 1902 (Cario vs. Insular Government, G.R. No. limit of the grant.
2869, March 25, 1907).

4. The use and enjoyment of marine wealth of the utilized by the ICCs/IPs under claims of individual
archipelagic waters, territorial sea, and or traditional group ownership (Sec.3 (b), RA 8371).
exclusive economic zone shall be reserved for
Filipino citizens (Sec. 2, Art XII, 1987 Q: Does RA 8371, otherwise known as the
Constitution). Indigenous Peoples Rights Act, infringe upon
the States ownership over the natural
NOTE: It would seem therefore that resources within the ancestral domains?
corporations are excluded, or at least must be
fully owned by Filipinos. A: NO. Sec. 3(a) of RA 8371 merely defines the
coverage of ancestral domains, and describes the
5. Small-scale utilization of natural resources by extent, limit and composition of ancestral domains
Filipino citizens, as well as cooperative fish by setting forth the standards and guidelines in
farming, with priority to subsistence fishermen determining whether a particular area is to be
and fishworkers in rivers, lakes, bays, and considered as part of and within the ancestral
lagoons (Sec. 2, Art XII, 1987 Constitution). domains. In other words, Sec. 3(a) serves only as a
yardstick which points out what properties are
Native Title within the ancestral domains. It does not confer or
recognize any right of ownership over the natural
Native title refers to the Indigenous Cultural resources to the indigenous peoples. Its purpose is
Communities/Indigenous Peoples (ICCs/IPs) definitional and not declarative of a right or title.
preconquest rights to lands and domains held
under a claim of private ownership as far back as The specification of what areas belong to the
memory reaches. These lands are deemed never to ancestral domains is, to our mind, important to
have been public lands and are indisputably ensure that no unnecessary encroachment
presumed to have been held that way since before on private properties outside the ancestral
the Spanish Conquest. The rights of ICCs/IPs to domains will result during the delineation
their ancestral domains (which also include process. The mere fact that Sec. 3(a) defines
ancestral lands) by virtue of native title shall be ancestral domains to include the natural resources
recognized and respected (Sec. 11, IPRA; Cruz v. found therein does not ipso facto convert the
Secretary of Environment and Natural Resources, character of such natural resources as private
G.R. No. 135385, December 6, 2000). property of the indigenous peoples. Similarly, Sec.
5 in relation to Sec. 3(a) cannot be construed as a
NOTE: Formal recognition, when solicited by source of ownership rights of indigenous peoples
ICCs/IPs concerned, shall be embodied in a over the natural resources simply because it
Certificate of Ancestral Domain Title (CADT), which recognizes ancestral domains as their private but
shall recognize the title of the concerned ICCs/IPs community property.
over the territories identified and delineated (Sec.
11, IPRA). Further, Sec. 7 makes no mention of any right of
ownership of the indigenous peoples over the
Ancestral domains natural resources. In fact, Sec. 7(a) merely
recognizes the right to claim ownership over
All areas belonging to ICCs/IPs held under a claim lands, bodies of water traditionally and actually
of ownership, occupied or possessed by ICCs/IPs occupied by indigenous peoples, sacred places,
by themselves or through their ancestors, traditional hunting and fishing grounds, and all
communally or individually since time improvements made by them at any time within
immemorial, continuously until the present, except the domains. Neither does Sec. 7(b), which
when interrupted by war, force majeure or enumerates certain rights of the indigenous
displacement by force, deceit, stealth or as a peoples over the natural resources found within
consequence of government projects or any other their ancestral domains, contain any recognition of
voluntary dealings with government and/or ownership vis--vis the natural resources
private individuals or corporations (Sec.3 (a), RA (Separate Opinion, Kapunan, J., in Cruz v. Secretary
8371). of Environment and Natural Resources, G.R. No.
135385, December 6, 2000).
Ancestral lands
Non-recognition of native title to natural
Lands held by the ICCs/IPs under the same resources
conditions as ancestral domains except that these
are limited to lands and that these lands are not While native title was acknowledged and
merely occupied and possessed but are also recognized as far back during the Spanish

2015GOLDEN NOTES
colonization of the Philippines, there was no Government or by possessory information title, or

similar favorable treatment as regards natural any other means for the proper acquisition of
resources. The unique value of natural resources public lands, the property must be held to be part
has been acknowledged by the State and is the of the public domain. The applicant must present
underlying reason for its consistent assertion of competent and persuasive proof to substantiate his
ownership and control over said natural resources claim; he may not rely on general statements, or
from the Spanish regime up to the present mere conclusions of law other than factual
(Separate Opinion of J. Kapunan, Cruz v. Secretary of evidence of possession and title. (Ibid.)
Environment and Natural Resources, G.R. No.
135385, December 6, 2000). And all lands not otherwise appearing to be clearly
within private ownership are presumed to belong
Coverage of the IPRA to the State (Ibid; Seville v. Natl Devt. Co., G.R. no.
129401, February. 2, 2001).
1. Protection of the indigenous peoples rights
and welfare in relation to the natural resources Stewardship Doctrine
found within their ancestral domains,
2. Preservation of the ecological balance Private property is supposed to be held by the
3. Ensure that the indigenous peoples will not be individual only as a trustee for the people in
unduly displaced when the State-approved general, who are its real owners.
activities involving the natural resources
located therein are undertaken (Ibid.). NATIONALIST AND CITIZENSHIP
REQUIREMENT PROVISION
Q: May a property granted to a state university,
although within the ancestral domains, be Filipinized activities as provided in Art. XII of
distributed to indigenous peoples and cultural the Constitution
communities?
1. Co-production, joint venture or production
A: NO. The lands by their character have become sharing agreement for exploration,
inalienable from the moment President Garcia development and utilization (EDU) of natural
dedicated them for the state universitys use in resources:
scientific and technological research in the field of
agriculture. They have ceased to be alienable GR: Filipino citizens or entities with 60%
public lands. When Congress enacted the capitalization owned by Filipino citizens.
Indigenous Peoples Rights Act (IPRA) or RA 8371
in 1997, it provided in Sec. 56 that "property rights XPN: For large-scale EDU of minerals,
within the ancestral domains already existing petroleum and other mineral oils, the
and/or vested" upon its effectivity "shall be President may enter into agreements with
recognized and respected." In this case, ownership foreign-owned corporations involving
over the subject lands had been vested in the state technical or financial agreements only (Sec. 2,
university as early as 1958. Consequently, Art XII, 1987 Constitution)
transferring the lands in 2003 to the indigenous
peoples around the area is not in accord with the NOTE: The adoption of the terms agreements
IPRA (CMU v. Exec. Sec., G.R.No.184869, September involving either technical or financial
21, 2010). assistance in the 1987 Constitution, in lieu of
service contracts found in the 1973 Charter,
Presumption in case of absence of proof of reflects the intention of the framers to disallow
private ownership the execution of service contracts with foreign
entities for the exploration, development,
The presumption is that the land belongs to the exploitation and utilization of the countrys
State. Thus, where there is no showing that the natural resources.
land had been classified as alienable before the title
was issued, any possession thereof, no matter how The State may also directly exploit its natural
lengthy, cannot ripen into ownership (Republic v. resources in either of two ways. The State may
Sayo, G.R. No. L-60413, October 31, 1990). set up its own company to engage in the
exploitation of natural resources.
NOTE: Unless the applicant succeeds in showing by Alternatively, the State may enter into a
clear and convincing evidence that the property financial or technical assistance agreement
involved was acquired by him or his ancestors (FTAA) with private companies who act as
either by composition title from the Spanish contractors of the State. The State may seek

from such contractors either financial or requires the development of a self-reliant and
technical assistance, or both, depending on the independent national economy effectively
States own needs (La Bugal-Blaan Tribal controlled by Filipino entrepreneurs, it does not
Assoc. v. DENR Sec., G.R. No. 127882, December impose a policy of Filipino monopoly of the
1, 2004). economic environment. The objective is simply to
prohibit foreign powers or interests from
2. Use and enjoyment of nations marine wealth maneuvering our economic policies and ensure
within the territory: Exclusively for Filipino that Filipinos are given preference in all areas of
citizens; (Sec. 2, Art XII, 1987 Constitution) development. In other words, the 1987
3. Alienable lands of the public domain: Constitution does not rule out the entry of foreign
a. Only Filipino citizens may acquire not investments, goods, and services. While it does not
more than 12 hectares by purchase, encourage their unlimited entry into the country, it
homestead or grant, or lease not more does not prohibit them either. In fact, it allows an
than 500 hectares. exchange on the basis of equality and reciprocity,
b. Private corporations may lease not more frowning only on foreign competition that is unfair.
than 1000 hectares for 25 years renewable The key, as in all economies in the world, is to
for another 25 years; (Sec. 3, Art XII, 1987 strike a balance between protecting local
Constitution) businesses and allowing the entry of foreign
investments and services (Espina v. Zamora, G.R.
4. Certain areas of investment: reserved for No. 143855, September 21, 2010).
Filipino citizens or entities with 60% owned by
Filipinos, although Congress may provide for Q: May an alien acquire property by virtue of a
higher percentage; (Sec. 10, Art XII, 1987 purchase made by him and his Filipino wife?
Constitution)
5. In the Grant of rights, privileges and A: NO. The fundamental law prohibits the sale to
concessions covering the national economy aliens of residential land. Sec. 14, Art. XIV of the
and patrimony, State shall give preference to 1973 Constitution ordains that, "Save in cases of
qualified Filipinos; and (Sec. 10, Art XII, 1987 hereditary succession, no private land shall be
Constitution) transferred or conveyed except to individuals,
6. Franchise, certificate or any other form of corporations, or associations qualified to acquire or
authorization for the operation of a public hold lands of the public domain." Thus, assuming
utility; only to Filipino citizens or entities with that it was his intention that the lot in question be
60% owned by Filipinos; (Sec. 11, Art XII, 1987 purchased by him and his wife, he acquired no
Constitution) right whatever over the property by virtue of that
purchase; and in attempting to acquire a right or
NOTE: Such franchise, etc., shall neither be interest in land, vicariously and clandestinely, he
exclusive, nor, for a period longer than 50 knowingly violated the Constitution; the sale as to
years, and subject to amendment, alteration or him was null and void.
repeal by Congress. All executive and
managing officers must be Filipino citizens Also, in any event, he had and has no capacity or
(Sec. 11, Art XII, 1987 Constitution). personality to question the subsequent sale of the
same property by his wife on the theory that in so
Q: President Estrada signed into law RA 8762, doing he is merely exercising the prerogative of a
also known as the Retail Trade Liberalization husband in respect of conjugal property. To sustain
Act of 2000. It expressly repealed R.A. 1180, such a theory would permit indirect controversion
which absolutely prohibited foreign nationals of the constitutional prohibition. If the property
from engaging in the retail trade business. R.A. were to be declared conjugal, this would accord to
8762 now allows them to do under special the alien husband a not insubstantial interest and
categories. Several members of the House of right over land, as he would then have a decisive
Representatives, filed a petition assailing the vote as to its transfer or disposition. This is a right
constitutionality of RA 8762. They mainly argue that the Constitution does not permit him to have
that it violates the mandate of the 1987 (Cheesman v. IAC, G.R. No. 74833, January 21, 1991).
Constitution for the State to develop a self-
reliant and independent national economy
effectively controlled by Filipinos. Is the Retail
Trade Liberalization Act of 2000
constitutional?
A: YES. While Sec. 19, Art. II of the 1987 Constitution

2015GOLDEN NOTES
EXPLORATION, DEVELOPMENT AND only with respect to minerals, petroleum, and other
UTILIZATION OF NATURAL RESOURCES mineral oils. The grant of such service contracts is
subject to several safeguards, among them:
State policy regarding exploration, 1. That the service contract be crafted in
development and utilization of natural accordance with a general law setting
resources standard of uniform terms, conditions and
requirements;
The exploration, development, and utilization of
natural resources shall be under the full control Ratio: To attain a certain uniformity in
and supervision of the State. The State may directly provisions and avoid the possible insertion of
undertake such activities, or it may enter into co- terms disadvantageous to the country.
production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations 2. The President be the signatory for the
or associations at least 60 per centum of whose government; and
capital is owned by such citizens (Sec. 2, Art. XII,
1987 Constitution). Ratio: Before an agreement is presented to the
President for signature, it will have been
NOTE: Sec. 2 speaks of co-production, joint vetted several times over at different levels to
venture, or production-sharing agreements as ensure that it conforms to law and can
modes of exploration, development, and utilization withstand public scrutiny.
of inalienable lands; it effectively excluded the
lease system with respect to mineral and forest 3. The President reports the executed
lands. agreement to Congress within thirty days.
Agricultural lands may be the subject of lease. Ratio: To give that branch of government an
opportunity to look over the agreement and
Exploration, development and utilization of interpose timely objections, if any (La
natural resources BugalBlaan v. DENR, G.R. No. 127882,
December 1, 2004).
Only Filipino citizens and corporations or
associations at least sixty percent (60%) of whose FRANCHISES, AUTHORITY AND CERTIFICATES
capital is owned by Filipino citizens are qualified to FOR PUBLIC UTILITIES
take part in exploration, development and
utilization of natural resources (Sec. 2, Art. XII, Public utility
1987 Constitution).
A business or service engaged in regularly
Since natural resources, except agricultural supplying the public with some commodity or
resources that cannot be alienated, they can be service of public consequence, such as electricity,
explored, developed, or utilized by: gas, water, transportation, telephone or telegraph
1. Direct undertaking of activities by the State service. To constitute a public utility, the facility
2. Co-production, joint venture, or production must be necessary for the maintenance of life and
sharing agreements with the State and all occupation of the residents. As the name indicates,
under the full control and supervision of the public utility implies public use and service to the
State (Miners Association of the Philippines v. public (J.G. Summit Holdings v. CA G.R. No. 124293,
Factoran, G.R. No. 98332, January 16, 1995). September 24, 2003).
NOTE: However, as to marine wealth, only Filipino Public utilities are privately owned and operated
citizens are qualified. This is also true of natural businesses whose services are essential to the
resources in rivers, bays, lakes and lagoons, but general public. They are enterprises which
with allowance for cooperatives. specially cater to the needs of the public and
conduce to their comfort and convenience. As such,
Q: Is the act of the State to enter into a service public utility services are impressed with public
contract with a foreign owned corporation interest and concern (Kilusang Mayo Uno Labor
valid? Center v. Garcia, Jr., G.R. No. 115381, Dec. 23, 1994).
A: YES. Subject to the strict limitations in the last Operation of a public utility
two paragraphs of Sec 2 Art. XII. Financial and
technical agreements are a form of service Only Filipino citizens or corporations at least 60%
contract. Such service contacts may be entered into of whose capital is Filipino owned are qualified to

acquire a franchise, certificate or any other form of Delegation of authority to grant franchises or
authorization (Sec. 11, Art. XII, 1987 Constitution). similar authorizations by the Congress
Franchise requirement before one can operate Under the 1987 Constitution, Congress has an
a public utility explicit authority to grant a public utility franchise.
However, it may validly delegate its legislative
The Constitution, in no uncertain terms, requires a authority, under the power of subordinate
franchise for the operation of a public utility. legislation, to issue franchises of certain public
However, it does not require a franchise before one utilities to some administrative agencies (Francisco
can own the facilities needed to operate a public v. Toll Regulatory Board, G.R No. 183599, October
utility so long as it does not operate them to serve 19, 2010).
the public.
NOTE: Administrative agencies may be
Sec. 11, Art. XII of the Constitution provides that, empowered by the legislature by means of a law to
No franchise, certificate or any other form of grant franchises or similar authorizations.
authorization for the operation of a public utility
shall be granted except to citizens of the Q: Can the government modify a radio or
Philippines or to corporations or associations television franchise to grant free airtime to
organized under the laws of the Philippines at least COMELEC?
sixty per centum of whose capital is owned by such
citizens, nor shall such franchise, certificate or A: YES. All broadcasting, whether by radio or
authorization be exclusive character or for a longer television stations, is licensed by the Government.
period than fifty years (Tatad v. Garcia, G.R. No. Radio and television companies do not own the
114222, April 6, 1995). airwaves and frequencies; they are merely given
temporary privilege of using them. A franchise is a
NOTE: A shipyard is not a public utility. Its nature privilege subject to amendment, and the provision
dictates that it serves but a limited clientele whom of BP 881 granting free airtime to the COMELEC is
it may choose to serve at its discretion. It has no an amendment of the franchise of radio and
legal obligation to render the services sought by television stations (TELEBAP v. COMELEC, G.R. No.
each and every client (J.G. Summit Holdings v. CA, 132922, April 21, 1998).
G.R. No. 124293, September 24, 2003).
Q: May a foreigner who owns substantial
Exclusivity of a public utility franchise stockholdings in a corporation, engaged in the
advertising industry, sit as a treasurer of said
A franchise to operate a public utility is not an corporation? (1989 Bar question)
exclusive private property of the franchisee. Under
the Constitution, no franchisee can demand or A: NO, because a treasurer is an executive or a
acquire exclusivity in the operation of a public managing officer. Sec. 11(2), Art. XVI provides that
utility. Thus, a franchisee cannot complain of the participation of the foreign investors in the
seizure or taking of property because of the governing bodies of entities shall be limited to
issuance of another franchise to a competitor their proportionate share in the capital thereof,
(Pilipino Telephone Corporation v. NRC, G.R. No. and all the officers of such entities must be citizens
138295, 2003). of the Philippines (Bar examination in Political Law,
1989).
NOTE: SC said that Congress does not have the
exclusive power to issue such authorization. Ownership requirement in business entities
Administrative bodies, e.g. LTFRB, ERB, etc., may engaged in advertising
be empowered to do so., Franchises issued by
Congress are not required before each and every 70% of their capital must be owned by Filipino
public utility may operate (Albano v. Reyes, G.R. No. citizens (Sec. 11(2), Art. XVI, 1987 Constitution).
83551, July 11, 1989) The law has granted certain
administrative agencies the power to grant licenses Ownership requirement in Mass Media
for or to authorize the operation of certain public
utilities (See EO nos. 172 and 202). It must be wholly owned by Filipino citizens (Sec.
11(1), Art. XVI, 1987 Constitution).

2015GOLDEN NOTES
Ownership requirement in educational 3. Under reasonable terms prescribed by it;

institutions (Sec. 17, Art. XII, 1987 Constitution).
60% of their capital must be owned by Filipino ACQUISITION, OWNERSHIP AND TRANSFER OF
citizens (Sec. 4[2], Art. XIV, 1987 Constitution). PUBLIC PRIVATE LANDS
Q: How should the term capital as used in Sec. Imperium v. Dominium

11, Art. XII of the Constitution be construed in
determining compliance with the ownership IMPERIUM DOMINIUM
requirement? Government authority The capacity of the State
possessed by the State to own and acquire
A: The term capital in Sec. 11, Art. XII of the which is appropriately property. It refers to
Constitution refers only to shares of stock entitled embraced in sovereignty lands held by the
to vote in the election of directors, and only to government in
common shares and not to the total outstanding proprietary character.
capital stock comprising both common and non-
voting preferred shares. Classification of lands of public domain
Considering that common shares have voting rights 1. Agricultural
which translate to control, as opposed to preferred 2. Forest or timber
shares which usually have no voting rights, the 3. Mineral lands
term "capital" in Sec. 11, Art. XII of the Constitution 4. National parks (Sec 3, Art XII, 1987
refers only to common shares. However, if the Constitution).
preferred shares also have the right to vote in the
election of directors, then the term "capital" shall Private lands
include such preferred shares because the right to
participate in the control or management of the Any land of private ownership. This includes both
corporation is exercised through the right to vote lands owned by private individuals and lands
in the election of directors. In short, the term which are patrimonial property of the State or
"capital" in Sec. 11, Art. XII of the Constitution municipal corporations (Bernas, 1995).
refers only to shares of stock that can vote in the
election of directors (Gamboa v. Sec. of Finance, G.R. Conversion of land of the public domain to
No. 176579, June 28, 2011). private land
NOTE: The Constitution expressly declares as State When it is acquired from the government either by
policy the development of an economy effectively purchase or by grant (Oh Cho v. Director of Lands,
controlled by Filipinos. Consistent with such State G.R. No. 48321, August 31, 1946).
policy, the Constitution explicitly reserves the
ownership and operation of public utilities to Requirement for the reclassification or
Philippine nationals, who are defined in the conversion of lands of public domain
Foreign Investments Act of 1991 as Filipino
citizens, or corporations or associations at least There must be a positive act from the government;
60% of whose capital with voting rights belongs to mere issuance of title is not enough (Sunbeam
Filipinos (Gamboa vs. Finance Secretary Teves, G.R. Convenience Food v. CA, G.R. No. 50464, January 29,
No. 176579, October 9, 2012). 1990).
Temporary Take-over of the state of a business Conversion of public land to private land thru
affected with public interest prescription
The State may take over or direct the operation of An alienable public land can be converted to
any privately owned public utility or business private land through prescription. Such open,
affected with public interest (Sec. 17, Art. XII, 1987 continuous, exclusive and notorious occupation of
Constitution). the disputed properties for more than 30 years
must, however, be conclusively established. This
Requisites for the State to temporarily take quantum of proof is necessary to avoid erroneous
over a business affected with public interest validation of actually fictitious claims or possession
over the property in dispute.
1. There is national emergency;
2. The public interest so requires; and

Open, exclusive and undisputed possession of formerly natural-born citizens (Republic v. CA, G.R.
alienable public land for the period prescribed by No. 108998, August 24, 1984).
law creates the legal fiction whereby the land, upon
completion of the requisite period ipso-jure and Q: Is a religious corporation qualified to have
without the need of judicial or other sanction, lands in the Philippines on which it may build
ceases to be public land and becomes private its church and make other improvements?
property (San Miguel Corporation v. CA, GR No.
57667, May 28, 1990). A: NO. The Constitution makes no exception in
favor of religious associations. The mere fact that a
Conversion of alienable public land to private corporation is religious does not entitle it to own
land public land. Land tenure is not indispensable to the
free exercise and enjoyment of religious profession
Alienable public land held by a possessor, of worship. The religious corporation can own
personally or through his predecessors-in-interest, private land only if it is at least 60% owned by
openly, continuously and exclusively for the Filipino citizens (Register of Deeds v. Ung Siu Si
prescribed statutory period (30 years under The Temple, G.R No. L-6776, May 21, 1955).
Public Land Act, as amended) is converted to
private property by the mere lapse or completion Qualification of corporation sole to purchase or
of said period, ipso jure. The land ipso jure ceases own lands in the Philippines
to be of the public domain and becomes private
property (Dir. of Lands v. IAC,G.R. No. 73002, Sec. 113, BP Blg. 68 states that any corporation sole
December 29, 1986). may purchase and hold real estate and personal
property for its church, charitable, benevolent or
NOTE: What is categorically required by law is educational purposes, and may receive bequests or
open, continuous, exclusive, and notorious gifts for such purposes. There is no doubt that a
possession and occupation under a bona fide claim corporation sole by the nature of its Incorporation
of ownership for 10 years, if the possession is in is vested with the right to purchase and hold real
good faith, and for 30 years if it is in bad faith estate and personal property. It need not therefore
(Republic v. Enciso, G.R. No. 160145, November 11, be treated as an ordinary private corporation
2005). because whether or not it be so treated as such, the
Constitutional provision involved will,
Disposition of private lands nevertheless, be not applicable (Rep. v. IAC., G.R. No.
75042, November 29, 1988).
GR: No private land shall be transferred or
conveyed except to individuals, corporations or Lease of private lands by religious corporations
associations qualified to acquire or hold lands of
the public land (Sec 7, Art XII, 1987 Constitution). Under Sec. 1 of PD 471, corporations and
associations owned by aliens are allowed to lease
XPNs: private lands up to 25 years, renewable for a
1. Foreigners who inherit through intestate period of 25 years upon the agreement of the
succession; lessor and the lessee. Hence, even if the religious
2. Former natural-born citizen may be a corporation is owned by aliens, it may still lease
transferee of private lands subject to private lands.
limitations provided by law (Sec 8, Art XII, 1987
Constitution); PRACTICE OF PROFESSION
3. Ownership in condominium units; and
4. Parity right agreement, under the 1935 State policy on professionals and skilled
Constitution. workers
Q: Can a natural born citizen of the Philippines The sustained development of a reservoir of
who has lost his Philippine citizenship be a national talents consisting of Filipino scientists,
transferee of private lands? entrepreneurs, professionals, managers, high-level
technical manpower and skilled workers and
A: YES. Subject to the limitations imposed by law. craftsmen in all fields shall be promoted by the
Thus, even if private respondents were already State (Par. 1, Sec. 14, Art. XII, 1987 Constitution).
Canadians when they applied for registration of the
properties in question, there could be no legal
impediment for the registration thereof,
considering that it is undisputed that they were

2015GOLDEN NOTES
Practice of profession in the Philippines (14) years after he has reached the age of
majority. Can Ching be admitted to the
GR: The practice of all professions in the Philippine bar?
Philippines shall be limited to Filipino citizens.
A: NO. Ching, despite the special circumstances,
XPN: In cases provided by law (Par. 2, Sec. 14, Art. failed to elect Philippine citizenship within a
XII, 1987 Constitution). reasonable time. The reasonable time means that
the election should be made within 3 years from
Regulation of profession or occupation "upon reaching the age of majority", which is 21
years old. Instead, he elected Philippine citizenship
The power to regulate the exercise of a profession 14 years after reaching the age of majority which
or pursuit of an occupation cannot be exercised by the court considered not within the reasonable
the State or its agents in an arbitrary, despotic or time. Philippine citizenship can never be treated
oppressive manner (Board of Medicine v. Yasuyuki like a commodity that can be claimed when needed
Ota, GR No. 166097, July 14, 2008). and suppressed when convenient. The Court
resolves to deny Ching's application for admission
The Constitution provides that the practice of all to the Philippine Bar (Re: Application for admission
professions in the Philippines shall be limited to to the Philippine Bar v. Ching, B.M. No. 914, October
Filipino citizens, save in cases prescribed by law. 1, 1999).
Since Filipino citizenship is a requirement for
admission to the bar, loss thereof terminates Q: After the PRC released the names of
membership in the Philippine bar and, successful examinees in the Medical Licensure
consequently, the privilege to engage in the Examination, the Board of Medicine observed
practice of law. In other words, the loss of Filipino that the grades of the 79 successfully
citizenship ipso jure terminates the privilege to examinees of Fatima College of Medicine were
practice law in the Philippines. The practice of law unusually and exceptionally high in the two (2)
is a privilege denied to foreigners. most difficult subjects of the exam, i.e.,
Biochemistry and Obstetrics and Gynecology.
The exception is when Filipino citizenship is lost by The NBI Investigation found that the Fatima
reason of naturalization as a citizen of another examinees gained early access to the test
country but subsequently reacquired pursuant to questions. The issuance of license to practice
RA 9225. This is because all Philippine citizens who was not automatically granted to the successful
become citizens of another country shall be deemed examinees. Respondents counter that having
not to have lost their Philippine citizenship under passed the 1993 licensure examinations for
the conditions of RA 9225. Therefore, a Filipino physicians, the PRC has the obligation to
lawyer who becomes a citizen of another country is administer to them the oath of physicians and
deemed never to have lost his Philippine to issue their certificates of registration as
citizenship if he reacquires it in accordance with physicians. Are the respondents correct?
RA 9225. Although he is also deemed never to have
terminated his membership in the Philippine bar, A: NO. It is long established rule that a license to
no automatic right to resume law practice accrues practice medicine is a privilege or franchise
(Petition for leave to resume practice of law, granted by the government. It must be stressed,
Benjamin M. Dacanay, B.M. No. 1678, December 17, nevertheless, that the power to regulate the
2007). exercise of a profession or pursuit of an occupation
cannot be exercised by the State or its agents in an
Q: Ching a legitimate child born under the 1935 arbitrary, despotic, or oppressive manner. A
Constitution of a Filipino mother and an alien political body that regulates the exercise of a
father, was one of the successful Bar examinees. particular privilege has the authority to both forbid
The oath taking of the successful Bar examinees and grant such privilege in accordance with certain
was scheduled on 5 May 1999. However, conditions. Such conditions may not, however,
because of the questionable status of Ching's require giving up ones constitutional rights as a
citizenship, he was not allowed to take his oath. condition to acquiring the license. Verily, to be
OSG clarifies that 2 conditions must concur in granted the privilege to practice medicine, the
order that the election of Philippine citizenship applicant must show that he possesses all the
may be effective, namely: (a) the mother of the qualifications and none of the disqualifications
person making the election must be a citizen of (PRC v. De Guzman, G.R. No. 144681, June 21, 2004).
the Philippines; and (b) said election must be
made upon reaching the age of majority. Ching
validly elect Philippine citizenship fourteen

ORGANIZATION AND REGULATION OF State policy regarding monopolies

CORPORATIONS, PRIVATE AND PUBLIC
The State shall regulate or prohibit monopolies
Organization and Regulation of Corporations when the public interest so requires. No
combination in restraint of trade or unfair
Its purpose is to prevent the pressure of special competition shall be allowed (Sec. 19, Art. XII, 1987
interests upon the lawmaking body in the creation Constitution).
of corporations or in the regulation of the same. To
permit the lawmaking body by special law to Test on whether there is unlawful machination
provide for the organization, formation or or combination in restraint of trade
regulation of private corporations would be in
effect to offer to it the temptation in many cases to Whether under the particular circumstances of the
favor certain groups to the prejudice of others or to case and the nature of the particular contract
the prejudice of the interests of the country involved, such contract is, or is not, against public
(Philippine Society for the Prevention of Cruelty to policy (Avon v. Luna, G.R. No. 153674, December 20,
Animals v. COA, G.R No. 169752, September 25, 2006).
2007).
NOTE: The phrase unfair foreign competition and
Creation of GOCC by Congress trade practices is not to be understood in a limited
legal and technical sense, but in the sense of
GOCC may be created or established by special anything that is harmful to Philippine enterprises.
charters in the interest of the common good and At the same time, however, the intention is not to
subject to the test of economic viability (Sec 16, Art. protect local inefficiency. Nor is the intention to
XII, 1987 Constitution). protect local industries from foreign competition at
the expense of the consuming public.
NOTE: Congress, however, may not create a
corporation whose purpose is to compete with a Essence of the provision
private corporation.
The provision is a statement of public policy on
Meaning of in the interest of the public good monopolies and on combinations in restraint of
and subject to the test of economic viability trade. Sec. 19 is anti-trust in history and spirit. It
espouses competition. Only competition which is
GOCC must show capacity to function efficiently in fair can release the creative forces of the market.
business and that they should not go into activities The desirability of competition is the reason for the
which the private sector can do better. Moreover, prohibition against restraint of trade, the reason
economic viability is more than financial viability for the interdiction of unfair competition, and the
but also included capability to make profit and reason for regulation of unmitigated monopolies.
generate benefits not quantifiable in financial Competition is thus the underlying principle of
terms. Section 19, Article XII of our Constitution. The
objective of anti-trust law is to assure a
NOTE: See discussion of GOCC in the chapter of competitive economy based upon the belief that
Public Corporations. through competition producers will strive to
satisfy consumer wants at the lowest price with the
MONOPOLIES, RESTRAINT OF TRADE AND sacrifice of the fewest resources. Competition
UNFAIR COMPETITION among producers allows consumers to bid for
goods and services, and, thus matches their desires
with societys opportunity costs. Additionally,
Monopoly
there is reliance upon the operation of the
market system (free enterprise) to decide what
A privilege or peculiar advantage vested in one or
shall be produced, how resources shall be allocated
more persons or companies, consisting in the
in the production process, and to whom various
exclusive right (or power) to carry on a particular
products will be distributed. The market system
business or trade, manufacture a particular article,
relies on the consumer to decide what and how
or control the sale of a particular commodity
much shall be produced, and on competition,
(Agan, Jr. v. PIATCO, G.R. No. 155001, May 5, 2003).
among producers who will manufacture it (Energy
Regulatory Board v. CA G.R. No. 113079, April 20,
2001).

2015GOLDEN NOTES
Regulation of monopolies
Monopolies are not per se prohibited by the

Constitution. It may be permitted to exist to aid the
government in carrying on an enterprise or to aid
in the interest of the public. However, because
monopolies are subject to abuses that can inflict
severe prejudice to the public, they are subjected to
a higher level of State regulation than an ordinary
business undertaking (Agan, Jr. v. PIATCO, G.R. No.
155001, May 5, 2003).
Allowance of contracts requiring exclusivity
Contracts requiring exclusivity are not per se void.

Each contract must be viewed vis--vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint
on competition (Avon v. Luna, G.R. No. 153674,
December 20, 2006).
Free enterprise clause v. Police Power of the

State
Although the Constitution enshrines free

enterprise as a policy, it nevertheless reserves to
the Government the power to intervene whenever
necessary for the promotion of the general welfare,
as reflected in Secs. 6 and 19 of Art. XII (Assoc. of
Phil. Coconut Desiccators v. Phil. Coconut Authority,
G.R. No. 110526, February. 10, 1998).
Q: The World Trade Organization

(WTO) requires the Philippines to place
nationals and products of member-countries on
the same footing as Filipinos and local
products. Does the WTO agreement violate Art.
II Sec. 19 of the Constitution?
A: NO. The WTO agreement does not violate Art. II

Sec. 19, nor Secs. 19 and 12 of Art. XII, because
these sections should be read and understood in
relation to Secs. 1 and 13 of Art. XII, which require
the pursuit of trade policy that serves the general
welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity
(Taada v. Angara, G.R. No. 118295, May 2, 1997).

SOCIAL JUSTICE AND HUMAN RIGHTS 5. Health

6. Women
Goals of social justice under the Constitution 7. Role and rights of peoples organization
8. Human rights
1. Equitable diffusion of wealth and political
power for common good; Factors which must be weighed in regulating
2. Regulation of acquisition, ownership, use and the relations between workers and employers
disposition of property and its increments; and
3. Creation of economic opportunities based on Among the factors that must be considered are:
freedom of initiative and self-reliance (Sec. 1 1. The right of labor to its just share in the fruits
and 2, Art. XIII, 1987 Constitution). of production
2. The right of enterprises to reasonable returns
CONCEPT OF SOCIAL JUSTICE of investments, and to expansion and growth
(Sec. 3, par (4), Art XIII, 1987 Constitution).
Social justice
NOTE: It must be remembered, however, that the
command to promote social justice itself might
It is neither communism, nor despotism, nor
make it necessary to tilt the balance in favor of
atomism, nor anarchy, but the humanization of
underprivileged workers.
laws and the equalization of social and economic
force by the State so that justice in its rational and
Provisions of the Constitution on women
objectively secular conception may at least be
approximated. Social justice means the promotion
1. The State shall equally protect the life of the
of the welfare of all the people, the adoption by the
mother and the life of the unborn from
Government of measures calculated to insure
conception (Sec. 12, Art II, 1987 Constitution).
economic stability of all competent elements of
2. The State recognizes the role of women in
society, through the maintenance of a proper
nation-building, and shall ensure the
economic and social equilibrium in the
fundamental equality before the law of women
interrelations of the members of the community,
and men (Sec. 14, Art. II, 1987 Constitution).
constitutionally, through the adoption of measures
3. The State shall protect working women by
legally justifiable, or extra-constitutionally, through
providing safe and healthful working
the exercise of powers underlying the existence of
conditions, taking into account their maternal
all governments on the time-honored principle of
functions, and such faculties and opportunities
salus populi est supreme lex (Calalang v. Williams,
that will enhance their welfare and enable
G.R. No. 47800, December 2, 1940).
them to realize their full potential in the
service of the nation (Sec. 14, Art. XIII, 1987
Social justice simply means the equalization of
Constitution).
economic, political, and social opportunities with
special emphasis on the duty of the state to tilt the
Consultation requirement before urban and
balance of social forces by favoring the
rural dwellers can be relocated
disadvantaged in life.
The urban and rural dwellers and the communities
Two principal activities, which the State is
where they are to be relocated must be consulted.
commanded to attend to in order to achieve the
Otherwise, there shall be no resettlement (Sec. 10
goals of social justice
(2), Art. XIII).
1. The creation of more economic opportunities
Peoples organizations
and more wealth; and
2. Closer regulation of the acquisition, ownership,
Bona fide associations of citizens with
use, and disposition of property in order to
demonstrated capacity to promote the public
achieve a more equitable distribution of wealth
interest and with identifiable leadership,
and power.
membership and structure (Sec. 15 (2), Art. XIII).
Aspects of human life covered by Art. XIII
COMMISSION ON HUMAN RIGHTS
1. Social justice and human rights
2. Labor Constitutional mandate
3. Agrarian and natural resources reform
4. Urban land reform and housing Art. XIII of the 1987 Constitution mandates the
Congress to give highest priority to the enactment

2015GOLDEN NOTES
SOCIAL JUSTICE AND HUMAN RIGHTS
of measures that protect and enhance the right of decide, settle or decree, or to sentence or condemn
all people to human dignity, reduce social, (Cario v. CHR, G.R. No. 96681, December 2, 1991).
economic, and political inequalities and remove
cultural inequities by equitably diffusing wealth Q: Informal settlers and vendors have put up
and political power for the common good. structures in an area intended for a People's
Park, which are impeding the flow of traffic in
Purpose of CHR the adjoining highway. Mayor Cruz gave notice
for the structures to be removed, and the area
As an independent national human rights vacated within a month, or else, face demolition
institution, the Commission on Human Rights is and ejectment. The occupants filed a case with
committed to ensure the primacy of all human the Commission on Human Rights (CHR) to stop
rights to their protection, promotion and the Mayor's move. The CHR then issued an
fulfillment, on the basis of equality and non- order to desist against Mayor Cruz with
discrimination, in particular for those who are warning that he would be held in contempt
marginalized and vulnerable (CHR Mission). should he fail to comply with the desistance
order. When the allotted time lapsed, Mayor
Nature of the CHR Cruz caused the demolition and removal of the
structures. Accordingly, the CHR cited him for
From the 1987 Constitution and the Administrative contempt. Is the CHR empowered to declare
Code, it is abundantly clear that the CHR is not Mayor Cruz in contempt? Does it have contempt
among the class of Constitutional Commissions powers at all?
(CHR Employees Assoc. v. CHR, G.R. No. 155336,
November 25, 2004). A: NO. The CHR does not possess adjudicative
functions and therefore, on its own, is not
Absence of fiscal autonomy empowered to declare Mayor Cruz in contempt for
issuing the "order to desist." However, under the
The CHR, although admittedly a constitutional 1987 Constitution, the CHR is constitutionally
creation is, nonetheless, not included in the genus authorized, in the exercise of its investigative
of offices accorded fiscal autonomy by either functions, to "adopt its operational guidelines and
constitutional or legislative fiat (Ibid.) rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of
Power to investigate Court." Accordingly, the CHR, in the course of an
investigation, may only cite or hold any person in
The CHR has the power to investigate all forms of contempt and impose the appropriate penalties in
human rights violations involving civil and political accordance with the procedure and sanctions
rights and monitor the compliance by the provided for in the Rules of Court (Cario v. CHR,
government with international treaty obligations G.R. No. 96681, December 2, 1991).
on human rights (Sec. 18, Art. XIII, 1987
Constitution). Absence of compulsory powers
NOTE: In essence, the Commissions power is only It may not issue writs of injunction or restraining
investigative. It has no prosecutorial power. For orders against supposed violators of human rights
prosecution, it must rely on the executive to compel them to cease and desist from continuing
department. their acts complained of (Export Processing Zone
Authority v. CHR, GR No. 101476, April 14, 1992).
The Constitution clearly and categorically grants to
the Commission the power to investigate all forms NOTE: Regarding its contempt powers, the CHR is
of human rights violations involving civil and constitutionally authorized to "adopt its
political rights. To investigate is not to adjudicate operational guidelines and rules of procedure, and
or adjudge. The legal meaning of investigate is cite for contempt for violations thereof in
essentially to follow up step by step by patient accordance with the Rules of Court." That power to
inquiry or observation, to trace or track; to search cite for contempt, however, should be understood
into; to examine and inquire into with care and to apply only to violations of its adopted
accuracy; to find out by careful inquisition; operational guidelines and rules of procedure
examination; the taking of evidence; a legal inquiry. essential to carry out its investigatorial powers
In the legal sense, adjudicate means to settle in (Simon, Jr. v. CHR, G.R. No.100150, January 5, 1994).
the exercise of judicial authority, to determine
finally and adjudge means to pass on judicially, to

EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, requiring scientific or technical knowledge may be
CULTURE, AND SPORTS required to take an examination as a prerequisite
to engaging in their chosen careers. This regulation
Educational institution assumes particular pertinence in the field of
medicine, in order to protect the public from the
Under the Education Act of 1982, such term refers potentially deadly effects of incompetence and
to schools. The school system is synonymous with ignorance (PRC v. De Guzman, GR No. 144681, June
formal education, which "refers to the 21, 2004).
hierarchically structured and chronologically
graded learnings organized and provided by the Aspects of education that are Filipinized
formal school system and for which certification is
required in order for the learner to progress 1. Ownership:
through the grades or move to the higher levels" a. Filipino Citizens; or
(CIR v. CA, G.R. No. 124043, October 14, 1998). b. Corporations or associations where at
least 60% of the capital is owned by
NOTE: It is settled that the term "educational Filipino citizens
institution," when used in laws granting tax
exemptions, refers to a "...school seminary, college XPN: Those established by religious
or educational establishment..." (Ibid.) groups and mission boards;
Principal characteristics of education which the 2. Control and administration; and

State must promote and protect 3. Student population (Sec. 4 (2), Art. XIV).
1. Quality education (Sec. 1, Art. XIV) NOTE: The Congress may increase Filipino equity
2. Affordable education (Sec. 1, Art. XIV) participation in all educational institutions.
3. Education that is relevant to the needs of the
people (Sec. 2 (1), Art. XIV) Official medium of communication and
instruction
Parens Patriae
The official languages are Filipino and, until
The State has the authority and duty to step in otherwise provided by law, English. The regional
where parents fail to or are unable to cope with languages are the auxiliary official languages in the
their duties to their children. regions and shall serve as auxiliary media of
instruction therein. Spanish and Arabic shall be
Basis for the requirement that a school or promoted on a voluntary and optional basis (Sec. 7,
educational institution must first obtain Art. XIV, 1987 Constitution).
government authorization before operating
ACADEMIC FREEDOM
Such requirement is based on the State policy that
educational programs and/or operations shall be Aspects of Academic Freedom
of good quality and, therefore, shall at least satisfy
minimum standards with respect to curricula, 1. From the standpoint of the educational
teaching staff, physical plant and facilities and institution - To provide that atmosphere which
administrative and management viability is most conducive to speculation,
(Philippine Merchant Marine School Inc. v. CA, G.R. experimentation and creation;
No. 112844, June 2, 1995). 2. From the standpoint of the faculty
a. Freedom in research and in the
Q: Can the State regulate the right of a citizen to publication of the results, subject to the
select a profession or course of study? adequate performance of his other
academic duties
A: YES. While it is true that the Court has upheld b. Freedom in the classroom in discussing his
the constitutional right of every citizen to select a subject less controversial matters which
profession or course of study subject to fair, bear no relation to the subject
reasonable and equitable admission and academic c. Freedom from institutional censorship or
requirements, the exercise of this right may be discipline, limited by his special position in
regulated pursuant to the police power of the State the community
to safeguard health, morals, peace, education,
order, safety and general welfare. Thus, persons 3. From the standpoint of the student Right to
who desire to engage in the learned professions enjoy in school the guarantee of the Bill of

2015GOLDEN NOTES
Rights (Non v. Dames, G.R. No. 89317, May 20, express provision of a law, the PMA has regulatory
1990). authority to administratively dismiss erring cadets
Respondents likewise contend that, as an academic
Freedoms afforded to educational institutions institution, the PMA has the inherent right to
relating to its right to determine for itself on promulgate reasonable norms, rules and
academic grounds regulations that it may deem necessary for the
maintenance of school discipline, which is
1. Who may teach specifically mandated by Section 3 (2), Article XIV
2. What may be taught of the 1987 Constitution. The PMA has the freedom
3. How shall it be taught on who to admit (and, conversely, to expel) given
4. Who may be admitted to study (Miriam the high degree of discipline and honor expected
College Foundation v. CA, G.R. No. 127930, from its students who are to form part of the AFP.
December 15, 2000). The schools power to instill discipline in their
students is subsumed in their academic freedom
Limitations on academic freedom and that the establishment of rules governing
university-student relations, particularly those
1. Police power of the State pertaining to student discipline, may be regarded
2. Social Interest of the community as vital, not merely to the smooth and efficient
operation of the institution, but to its very survival.
Q: Cudia was supposed to graduate with honors The dismissal of Cudia from the Philippine Military
at the Philippine Military Academy. On Academy is hereby affirmed (Cudia v. PMA, G.R. No.
November 14, 2013, the combined classes of 211362, February 24, 2015).
the Navy and Air Force 1CL cadets had a lesson
examination (LE) on OR432 PMAFI Room. The Q: May a university validly revoke a degree or
4th period class in OR432 was from 1:30-3:00 honor it has conferred to a student after the
p.m., while the 5th period class in ENG412 was graduation of the latter after finding that such
from 3:05-4:05 p.m. Five days later, Prof. degree or honor was obtained through fraud?
Berong of the 5th period class issued a
Delinquency Report (DR) against Cudia because A: YES. Academic freedom of institutions of higher
he was late for two (2) minutes in his Eng 412 learning is a freedom granted to institutions of
class. On December 4, 2013, the DRs reached higher learning which is thus given a wide sphere
the Department of Tactical Officers. They were of authority certainly extending to the choice of
logged and transmitted to the Company Tactical students. If such institution of higher learning can
Officers (CTO) for explanation of the concerned decide who can and who cannot study in it, it
cadets. Two days later, Cudia received his DR. certainly can also determine on whom it can confer
Cudia reasoned out that they were dismissed a the honor and distinction of being its graduates
bit late by their instructor. The CTO meted out (Garcia v. Faculty Admission Committee, Loyola
to him the penalty of 11 demerits and 13 School of Theology, G.R. No. L-40779, November 28,
touring hours. Immediately, Cudia clarified 1975).
with the CTO his alleged violation. The latter
told him that the basis of the punishment was Where it is shown that the conferment of an honor
the result of his conversation with Dr. Costales, or distinction was obtained through fraud, a
who responded that she never dismissed her university has the right to revoke or withdraw the
class late, and the protocol to dismiss the class honor or distinction it has thus conferred. This
10-15 minutes earlier than scheduled. On freedom of a university does not terminate upon
December 28, 2013, the CTO submitted his the graduation of a student, for it is precisely the
reply to Maj. Leander pointing out that, based graduation of such a student that is in question.
on his investigation, the 4th period class was An institution of higher learning cannot be
not dismissed late. As a result, Maj. Leander powerless if it discovers that an academic degree it
sustained the penalty imposed. Several days has conferred is not rightfully deserved. Nothing
passed Cudia was informed that the CTO can be more objectionable than bestowing a
reported him for violation of the Honor Code. universitys highest academic degree upon an
Can the PMA use the Honor Code to dismiss or individual who has obtained the same through
recommend the dismissal of a cadet from the fraud or deceit. The pursuit of academic excellence
PMA? is the universitys concern. It should be
empowered, as an act of self-defense, to take
A: YES. PMA may impose disciplinary measures measures to protect itself from serious threats to
and punishment as it deems fit and consistent with its integrity (UP Board of Regents v. Hon. Court of
the peculiar needs of the Academy. Even without

Appeals and Arokiaswamy William Margaret Celine, lawyers from UP Law to show cause, why they
G.R. No. 134625, Aug. 31, 1999). should not be disciplined as members of the
Bar for violation of Canons 1, 11 and 13 and
Q: Juan delos Santos, et al., students of De La Rules 1.02 and 11.05 of the Code of
Salle University (DLSU) and College of Saint Professional Responsibility.
Benilde are members of the Domingo Lux
Fraternity. They lodged a complaint with the 1. Does the Show Cause Resolution
Discipline Board of DLSU charging Alvin deny respondents their freedom of
Aguilar, et al. of Tau Gamma Phi Fraternity with expression?
direct assault because of their involvement in 2. Does the Show Cause Resolution
an offensive action causing injuries to the violate respondents academic
complainants, which were the result of a freedom as law professors?
fraternity war. The DLSU-CSB Joint Discipline
Board found Aguilar et al. guilty and were A:
meted the penalty of automatic expulsion. Was 1. NO. A reading of the Show Cause Resolution
DLSU within its rights in expelling the students? will plainly show that it was neither the fact
that respondents had criticized a decision of
A: NO. The penalty of expulsion imposed by DLSU the Court nor that they had charged one of its
on Aguilar, et al. is disproportionate to their deeds. members of plagiarism that motivated the said
It is true that schools have the power to instill Resolution. It was the manner of the criticism
discipline in their students as subsumed in their and the contumacious language by which
academic freedom and that the establishment of respondents, who are neither parties nor
rules governing university-student relations counsels in the Vinuya case, have expressed
particularly those pertaining to student discipline, their opinion in favor of the petitioners in the
may be regarded as vital, not merely to the smooth said pending case for the "proper disposition"
and efficient operation of the institution but to its and consideration of the Court that gave rise to
very survival. This power does not give them the said Resolution. The Show Cause Resolution
untrammeled discretion to impose a penalty which painstakingly enumerated the statements that
is not commensurate with the gravity of the the Court considered excessive and uncalled
misdeed. If the concept of proportionality between for under the circumstances surrounding the
the offense committed and the sanction imposed is issuance, publication, and later submission to
not followed, an element of arbitrariness intrudes this Court of the UP Law facultys Restoring
(DLSU, Inc. v. CA, G.R. No. 127980, December 19, Integrity Statement.
2007).
2. No. It is not contested that respondents herein
Q: The counsel of the losing party in the case of are, by law and jurisprudence, guaranteed
Vinuya, et al. v. Exec. Sec filed a Supplemental academic freedom and undisputably, they are
Motion for Reconsideration, in the said free to determine what they will teach their
Decision, they posited their charge of students and how they will teach. We must
plagiarism as one of the grounds for point out that there is nothing in the Show
reconsideration of the decision. A statement by Cause Resolution that dictates upon
the faculty of UP Law on the allegations of respondents the subject matter they can teach
plagiarism and misrepresentation in the SC and the manner of their instruction. Moreover,
entitled Restoring Integrity was submitted by it is not inconsistent with the principle of
the UP professors. They expressed academic freedom for this Court to subject
dissatisfaction over Justice Del Castillos lawyers who teach law to disciplinary action
explanation on how he cited the primary for contumacious conduct and speech, coupled
sources of the quoted portions and yet arrived with undue intervention in favor of a party in a
at a contrary conclusion to those of the authors pending case, without observing proper
of the articles supposedly plagiarized. Beyond procedure, even if purportedly done in their
this, however, the statement bore certain capacity as teachers (RE: Letter of the UP Law
remarks which raise concern for the Court. It Faculty, A.M. No. 10-10-4-SC, March 8, 2011).
reads: An extraordinary act of injustice has
again been committed against the brave
Filipinas who had suffered abuse during a time
of war.
Thus, the Court, in a Show Cause Resolution,

directed Dean Leonen, and several other

2015GOLDEN NOTES
SCIENCE AND TECHNOLOGY Principal characteristics of arts and culture
which the State must promote and protect
Principal characteristics of science and
technology which the State must promote and 1. Foster the preservation, enrichment, and
protect dynamic evolution of a Filipino national
culture (Sec. 14, Art XIV, 1987 Constitution).
1. Priority to research and development,
invention, innovation, and their utilization; and NOTE: It must be based on the principle of
to science and technology education, training, unity in diversity in a climate of free artistic
and intellectual expression (Sec. 14, Art XIV,
and services (Sec 10, Art XIV, 1987
1987 Constitution).
Constitution).
2. Support indigenous, appropriate, and self- 2. The State shall conserve, promote, and
reliant scientific and technological capabilities, popularize the nations historical and cultural
and their application to the countrys heritage and resources, as well as artistic
productive systems and national life (Sec. 10, creations (Sec. 15, Art XIV, 1987 Constitution).
Art XIV, 1987 Constitution).
NOTE: Arts and letters shall enjoy the
3. Regulate the transfer and promote the
patronage of the State (Sec. 15, Art XIV, 1987
adaptation of technology from all sources for Constitution).
the national benefit (Sec. 12, Art XIV, 1987
Constitution). 3. Recognize, respect, and protect the rights of
5. Encourage the widest participation of private indigenous cultural communities to preserve
groups, local governments, and community- and develop their cultures, traditions, and
based organizations in the generation and institutions (Sec. 17, Art XIV, 1987 Philippine
Constitution).
utilization of science and technology (Sec. 12,
Art XIV, 1987 Constitution). NOTE: It shall consider these rights in the
6. Protect and secure the exclusive rights of formulation of national plans and policies (Sec.
scientists, inventors, artists, and other gifted 17, Art XIV, 1987 Philippine Constitution).
citizens to their intellectual property and
creations, particularly when beneficial to the 4. Ensure equal access to cultural opportunities
through the educational system, public or
people, for such period as may be provided by
private cultural entities, scholarships, grants
law (Sec. 13, Art XIV, 1987 Constitution). and other incentives, and community cultural
centers, and other public venues (Sec. 18(1),
NOTE: The Congress may provide for incentives, Art XIV, 1987 Constitution).
including tax deductions, to encourage private
participation in programs of basic and applied NOTE: The State shall encourage and support
scientific research. Scholarships, grants-in-aid, or researches and studies on the arts and culture
other forms of incentives shall be provided to (Sec. 18(2), Art XIV, 1987 Constitution).
deserving science students, researchers, scientists,
inventors, technologists, and specially gifted SPORTS
citizens.(Sec. 11, Art XIV, 1987 Philippine
Constitution). The State shall promote physical education and
encourage sports programs, league competitions,
ARTS AND CULTURE and amateur sports, including training for
international competitions, to foster self-discipline,
All the countrys artistic and historic wealth teamwork, and excellence for the development of a
constitutes the cultural treasure of the nation and healthy and alert citizenry (Sec. 19(1), Art XIV,
shall be under the protection of the State which 1987 Constitution).
may regulate its disposition (Sec. 16, Art XIV, 1987
Constitution). NOTE: All educational institutions shall undertake
regular sports activities throughout the country in
cooperation with athletic clubs and other sectors
(Sec. 19(2), Art XIV, 1987 Philippine Constitution).

PUBLIC INTERNATIONAL LAW NOTE: A jus cogens norm is characterized as a

norm of general international law which by its
FUNDAMENTAL CONCEPTS nature is binding on every state.
Public International Law (PIL) Q: May a treaty violate international law? If

your answer is in the affirmative, explain when
It is a body of legal principles, norms and processes such may happen. If your answer is in the
which regulates the relations of States and other negative, explain why. (2008 Bar Question)
international persons and governs their conduct
affecting the interest of the international A: YES. A treaty may violate international law when
community as a whole (Magallona, 2005). at the time of its conclusion, it conflicts with a
peremptory norm of general international law (jus
Private International Law (PRIL) or Conflicts of cogens) or if its conclusion has been procured by
Laws the threat or use of force in violation of the
principles of international law embodied in the
It is that part of the law of each State which Charter of the United Nations (Vienna Convention
determines whether, in dealing with a factual on the Law of Treaties, Arts. 52 & 53).
situation, an event or transaction between private
individuals or entities involving a foreign element, Erga Omnes
the law of some other State will be recognized.
An obligation of every State towards the
Jus Cogens norm international community as a whole. All states have
a legal interest in its compliance, and thus all States
Literally means compelling law. A norm accepted are entitled to invoke responsibility for breach of
and recognized by the international community of such an obligation (Case Concerning The Barcelona
States as a whole as a norm from which no Traction, ICJ 1970).
derogation is permitted and which can be modified
only by a subsequent norm of general international NOTE: Such obligations derive, for example, in
law having the same character (Vienna Convention contemporary international law, from the
on the Law of Treaties, Art. 53). outlawing of acts of aggression, and of genocide, as
also from the principles and rules concerning the
Elements of Jus Cogens basic rights of the human person, including
protection from slavery and racial discrimination.
1. A norm accepted and recognized by Some of the corresponding rights of protection
international community of states as a whole have entered into the body of general international
2. No derogation is permitted law others are conferred by international
3. Which can only be modified by a subsequent instruments of universal or quasi-universal
norm having the same character character (Romulo v. Vinuya, G.R. No. 162230, April
29, 2010).
NOTE: If a treaty at the time of its conclusion,
conflicts with jus cogens, it is void. Examples of obligations erga omnes
Norms considered as jus cogens in character 1. Outlawing of acts of aggression

2. Outlawing of genocide
1. Laws on genocide 3. Basic human rights
2. Principle of self-determination 4. Protection from slavery and racial
3. Principle of racial non-discrimination discrimination
4. Crimes against humanity
5. Prohibition against slavery and slave trade, and Q: Malaya Lolas is a non-stock, non-profit
6. Piracy organization established for the purpose of
providing aid to the victims of rape by Japanese
A treaty or conventional rule may not qualify as military forces in the Philippines during the
a norm of jus cogens character Second World War. They have approached the
Executive Department through the DOJ, DFA,
Treaty rule binds only States that are parties to it and OSG, requesting assistance in filing a claim
and even in the event that all States are parties to a against the Japanese officials and military
treaty, they are entitled to terminate or withdraw officers who ordered the establishment of the
from the treaty. comfort women stations in the Philippines.
But officials of the Executive Department

2015GOLDEN NOTES
declined to assist the petitioners, and took the only the applicable law, unless the arbitral
position that the individual claims of the agreement allows the arbitrators to consider ex
comfort women for compensation had already aequo et bono, or amiable compositeur.
been fully satisfied by Japans compliance with
the Peace Treaty between the Philippines and INTERNATIONAL AND NATIONAL LAW
Japan. May we force the government to pursue
the claims of comfort women under the Grand divisions of PIL
doctrine of jus cogens?
1. Laws of Peace Govern normal relations
A: The Philippines is not under any international between States in the absence of war.
obligation to espouse petitioners claims. A State 2. Laws of War Govern relations between
may exercise diplomatic protection by whatever hostile or belligerent states during wartime.
means and to whatever extent it thinks fit, for it is 3. Laws of Neutrality Govern relations between
its own right that the State is asserting. Should the a non-participant State and a participant State
natural or legal person on whose behalf it is acting during wartime or among non-participating
consider that their rights are not adequately States.
protected, they have no remedy in international
law. All they can do is resort to national law, if Monism
means are available, with a view to furthering their
cause or obtaining redress. Both international law and domestic law are part
of a single legal order; international law is
The State, therefore, is the sole judge to decide automatically incorporated into each nations legal
whether its protection will be granted, to what system and that international law is supreme over
extent it is granted, and when will it cease. It domestic law.
retains, in this respect, a discretionary power the
exercise of which may be determined by Dualism
considerations of a political or other nature,
unrelated to the particular case. Affirms that the international law and municipal
law are distinct and separate; each is supreme in
Even if this court sidesteps the question of whether its own sphere and level of operation.
jus cogensnorms existed in 1951, Vinuyaet al. have
not deigned to show that the crimes committed by International law v. Municipal law under the
the Japanese army violated jus cogensprohibitions Theory of Dualism
at the time the Treaty of Peace was signed, or that
the duty to prosecute perpetrators of international BASIS INTERNATIONAL MUNICIPAL
crimes is an erga omnes obligation or has attained LAW LAW
the status of jus cogens (Vinuya v. Romulo, G.R. No. Adopted by states as Issued by a
162230, April 28, 2010). Enacting a common rule of political
Authority action superior for
Ex aequo et bono (According to the right and observance
good or from equity and conscience) Regulates relation of Regulates
state and other relations of
A judgment based on considerations of fairness, international individuals
not on considerations of existing law, that is, to Purpose persons among
simply decide the case based upon a balancing of themselves or
the equities (Brownlie, 2003). with their own
states
NOTE: Art. 38 of the Statute of the International Derived principally Consists
Court of Justice, which provides the sources of from treaties, mainly of
International Law, does not prejudice the power international enactments
of the Court to decide a case ex aequo et bono if the Source(s) customs and general from the
parties agree thereon. The power to decide ex principles of law lawmaking
aequoet bono involves elements of compromise authority of
and conciliation whereas equity is applied as a each state
part of normal judicial function. Resolved thru state- Redressed thru
Remedy in
to-state transactions local
Art. 33 of the United Nations Commission on case of
administrative
International Trade Laws Arbitration Rules violation
and judicial
(1976) provides that the arbitrators shall consider

processes
Collective Breach of Types of Transformation Theories
responsibility which entails
Scope of 1. Hard Transformation Theory Only legislation
because it attaches individual
Responsib can transform International Law into domestic
directly to the state responsibility
ility law. Courts may apply International Law only
and not to its
nationals when authorized by legislation.
2. Soft Transformation Theory Either a judicial
Doctrine of Incorporation or legislative act of a state can transform
International Law into domestic law.
It means that the rules of international law form
part of the law of the land and no further legislative NOTE: Municipal laws are not subject to judicial
action is needed to make such rules applicable in notice before international tribunals. Municipal
the domestic sphere. laws are only evidence of conduct attributable to
the State concerned, which create international
The fact that international law has been made part responsibility, like legislative measures or court
of the law of the land does not pertain to or imply decisions. They are not subject to judicial notice
the primacy of international law over national or and are only treated as mere facts which are
municipal law in the municipal sphere. The required to be proven.
doctrine decrees that rules of international law are
given equal standing with, but are not superior to, Pacta sunt servanda
national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect International agreements must be performed in
a treaty may repeal a statute and a statute may good faith. A treaty engagement is not a mere
repeal a treaty (Secretary of Justice v. Judge Lantion moral obligation but creates a legally binding
and Mark Jimenez, G.R. No. 139465, October 17, obligation on the parties. A state which has
2000). contracted a valid international agreement is
bound to make in its legislation such modification
NOTE: The Philippines renounces war as an as may be necessary to ensure fulfillment of the
instrument of national policy, and adopts the obligation undertaken.
generally accepted principles of international law
as part of the law of the land and adheres to the Principle of Auto-Limitation
policy of peace, equality, justice, freedom,
cooperation, and amity with all nations (1987 Any State may by its consent, express or implied,
Constitution, Art II, Sec. 2). submit to a restriction of its sovereign rights.
There may thus be a curtailment of what
Examples of generally accepted principles of otherwise is a plenary power (Reagan v. CIR, G.R.
International Law No. L-26379, December 27, 1969).
1. Pacta sunt servanda NOTE: While sovereignty has traditionally been

2. Rebus sic stantibus (agreement is valid only if the deemed absolute and all-encompassing on the
same conditions prevailing at time of contracting domestic level, it is however subject to restrictions
continue to exist at the time of performance) and limitations voluntarily agreed to by the
3. Par in parem non habet imperium (State Philippines, expressly or impliedly, as a member of
Immunity from Suit) the family of nations. By the doctrine of
5. Right of states to self-defense incorporation, the country is bound by generally
6. Right to self-determination of people accepted principles of international law, which are
considered to be automatically part of our own
Doctrine of Transformation laws.
It provides that the generally accepted rules of The sovereignty of a state therefore cannot in fact
international law are not per se binding upon the and in reality be considered absolute. Certain
state but must first be embodied in legislation restrictions enter into the picture: (1) limitations
enacted by the lawmaking body and so imposed by the very nature of membership in the
transformed into municipal law. family of nations and (2) limitations imposed by
treaty stipulations (Tanada v. Angara, 272 SCRA
18).

2015GOLDEN NOTES
Correlation of Reciprocity and the Principle of Formal sources v. Material sources
Auto-Limitation
BASIS FORMAL MATERIAL
When the Philippines enters into treaties, SOURCES SOURCES
necessarily, these international agreements may refer to the refer to the
contain limitations on Philippine sovereignty. The various substance and
consideration in this partial surrender of processes by the content of
sovereignty is the reciprocal commitment of other Definition
which rules the obligation
contracting States in granting the same privilege come into
and immunities to the Philippines. existence
gives the force supplies the
NOTE: For example, this kind of reciprocity in Effect and nature of substance of the
relation to the principle of auto-limitation law rule
characterizes the Philippine commitments under
WTO-GATT. This is based on the Constitutional Hard law
provision that the Philippines "adopts the
generally accepted principles of international law Means binding laws. To constitute law, a rule,
as part of the law of the land and adheres to the instrument or decision must be authoritative and
policy of cooperation and amity with all nations" prescriptive. In international law, hard law includes
(Tanada v. Angara, G.R. No.118295, May 2, 1997). treaties or international agreements, as well as
customary laws. These instruments result in legally
SOURCES OF PUBLIC INTERNATIONAL LAW enforceable commitments for countries (states)
and other international subjects.
Article 38 of the Statute of International Court of
Justice (SICJ) provides that the Court, whose Soft law
function is to decide in accordance with
international law such disputes as are submitted to Means commitments made by negotiating parties
it, shall apply: that are not legally binding. By implication, those
set of international customary rules, laws and
Primary Sources customs which do not carry any binding effect
whatsoever or impose no obligation at all to states
1. International conventions, whether general or for its compliance.
particular, establishing rules expressly
recognized by the contesting state Example: Yogyakarta Principles
2. International custom, as evidence of a general
practice accepted as law; and At this time, the Court is not prepared to declare
3. The general principles of law recognized by that these Yogyakarta Principles contain norms
civilized nations that are obligatory on the Philippines. Using even
the most liberal of lenses, these Yogyakarta
Secondary Sources Principles, consisting of a declaration formulated
by various international law professors, are at
1. Decisions of international tribunals; and best de lege ferenda and do not constitute
2. Teachings of the most highly qualified binding obligations on the Philippines. Indeed, so
publicists of various nations. much of contemporary international law is
characterized by the soft law nomenclature, i.e.,
NOTE: Sources of law refer to norms derived from international law is full of principles that promote
international conventions on treaties, customs, and international cooperation, harmony, and respect
general principles of law. The distinctive character for human rights, most of which amount to no more
of these norms is that they are created or they than well-meaning desires, without the support of
acquire binding effect through the methods pointed either State practice or opinio juris (Ang Ladlad
above. LGBT Party v. COMELEC, G.R. No. 190582, April 8,
2010).
Types of treaties or international conventions
1. Contract treaties (Traite contract)

2. Law making treaty (Traiteloi)

Contract treaties Binding effect of international customs
Bilateral arrangements concerning matters of GR: Dissenting States are bound by international
particular or special interest to the contracting customs.
parties.
XPN: If they had consistently objected to it while
They are sources of particular international law but the project was merely in the process of formation.
may become primary sources of public Dissent, however protects only the dissenter and
international law when different contract treaties does not apply to other States. A State joining the
are of the same nature, containing practically international law system for the first time after a
uniform provisions, and are concluded by a practice has become customary law is bound by
substantial number of States. such practice.
Law-making treaties Example of International Custom
Treaties which are concluded by a large number of The Universal Declaration of Human Rights
States for purposes of: (UDHR), while not a treaty, has evolved as an
1. Declaring, confirming, or defining their international custom, a primary source of
understanding of what the law is on a international law, and is binding upon the
particular subject; members of the international community. The
2. Stipulating or laying down new general rules Philippine commitment to uphold the
for future international conduct; and fundamental human right as well as the worth and
3. Creating new international institutions. dignity of every person is enshrined in Sec. 2,
Article II of our Constitution: The state values the
NOTE: dignity of every human person and guarantees full
GR: Only the parties are bound by treaties and respect for human rights.
international conventions.
NOTE: In a strict sense, the UDHR is not a treaty
XPN: Treaties may be considered a direct source of but it has been considered as a constitutive
international law when concluded by a sizable document for the purpose of defining
number of States, and is reflective of the will of the fundamental freedoms and human rights.
family of nations.
Teachings of Authoritative Publicists
Elements of international custom Including Learned Writers
1. General practice, characterized by uniformity Such works are resorted to by judicial tribunals
and consistency; not for the speculation of their authors concerning
2. Opinio juris, or recognition of that practice as a what the law ought to be, but for trustworthy
legal norm and therefore obligatory; and evidence of what the law really is (Mr. Justice Gray
3. Duration in Paquete Habana case, 175 U.S. 677).
NOTE: Repetition of practice or action of states These are subsidiary sources of international. e.g.,
is necessary. Human Rights in International Law by
Lauterpacht and International Law by
Period of time in the formation of customary Oppenheim-Lauterpacht.
norms
Requisites to be a highly qualified publicist
No particular length of time is required for the
formation of customary norms. What is required is 1. His writings must be fair and impartial
that within the period in question, short though it representation of law;
may be, State practice, including that of States 2. An acknowledged authority in the field.
whose interest are specially affected, should have
extensive and virtually uniform and in such a way SUBJECTS OF INTERNATIONAL LAW
as to show a general recognition that a rule of law
or legal obligation is involved. Subject of international law
An entity with the capacity of possessing

international rights and duties and of bringing

2015GOLDEN NOTES
international claims (Magallona, 2005). transactions transactions responsibilities
involving the imposed
The State is regarded as subject of international application of indirectly
law or an international legal person in that it has the law of through the
the capacity to be bearer of rights and duties under nations among instrumentality
international law. The status of the State as subject members of of an
of law or an international person is conferred by international intermediate
customary or general international law. It communities agency
possesses ergaomnes or objective personality not
merely by virtue of recognition on the part of NOTE: Under the traditional concept, only states
particular states. are considered subjects of international law.
However, under the contemporary concept,
The subjects of international law individuals and international organizations are also
subjects because they have rights and duties under
1. Direct subjects international law.
a. States;
b. Colonies and dependencies; International Community
c. mandates and trust territories; belligerent
communities; It is the body of juridical entities which are
d. The Vatican; governed by the law of nations.
e. The United Nations; international
administrative bodies; and NOTE: Under the modern concept, it is composed
f. To a certain extent, individuals. not only of States but also of such other
2. Indirect subjects international persons such as the UN, the Vatican
a. International organizations; City, colonies and dependencies, mandates and
b. Individuals; and trust territories, international administrative
c. Corporations. bodies, belligerent communities and even
3. Incomplete subjects individuals.
a. Protectorates;
b. Federal states; State
c. Mandated and trust territories.
It is a community of persons, more or less
Objects of international law numerous, permanently occupying a definite
portion of territory, independent of external
A person or thing in respect of which rights are control, and possessing an organized government
held and obligations assumed by the subject. to which the great body of inhabitants render
habitual obedience.
Subject v. Object of International Law
Elements of a State under the Montevideo
BASIS SUBJECT OBJECT Convention on the Rights and Duties of States
Entity that has Person or thing
rights and in respect of 1. A permanent population (people) An
responsibilities which rights are aggregate of individuals of both sexes, who live
Definition under that law held and together as a community despite racial or
obligations cultural differences;
assumed by the 2. A defined territory Fixed portion of the
subject earths surface which the inhabitants occupy;
Has Not directly 3. Government The agency through which the
international governed by the will of the state is formulated, expressed and
personality that rules of realized; and
it can directly international 4. Capacity to enter into relations with other
Applicable states (independence/sovereignty) The power
assert rights law
law of a state to manage its external affairs without
and can be held
responsible direction or interference from another state
under the law of (Montevideo Convention on the Rights and
nations Duties of States, Art. 1).
Capacity to It can be a Its rights are
enter into proper party in received and its

5. Diplomatic intercourse
Q: Is recognition an element of state?
International Organization
A: NO. The political existence of the state is
independent of recognition by the other states. It is a body created by sovereign states and whose
Even before recognition, the state has the right to functioning is regulated by international law, not
defend its integrity and independence to provide the law of any given country. They have functional
for its conservation and prosperity, and personality which is limited to what is necessary to
consequently to organize itself as it sees fit, to carry out their functions as found in the
legislate upon its interests, administer its services, instruments of the organization.
and to define the jurisdiction and competence of its
courts. The exercise of these rights has no other NOTE: The auxiliary status of Red Cross Society
limitation than the exercise of the rights of other means that it is at one and the same time a private
states according to international law (Montevideo institution and a public service organization
Convention on the Rights and Duties of States, Art. because the very nature of its work implies
3). cooperation with the state. The PNRC, as a National
Society of the International Red Cross and Red
Principle of State Continuity Crescent Movement, can neither be classified as an
instrumentality of the state, so as not to lose its
It states that the disappearance of any of the character of neutrality as well as its independence,
elements of statehood would cause the extinction nor strictly as a private corporation since it is
of the State, but mere changes as to one or more of regulated by international humanitarian law and is
the elements would not necessarily, as a rule, bring treated as an auxiliary of the state (Liban v. Gordon,
about such extinction. Despite such changes, the G.R. No. 175352, January 18, 2011).
State continues to be an international person.
Association
Q: If State sovereignty is said to be absolute,
how is it related to the independence of other It is formed when two states of unequal power
States and to their equality on the international voluntarily establish durable links. In the basic
plane? model, one state, the associate, delegates certain
responsibilities to the other, the principal, while
A: From the standpoint of the national legal order, maintaining its international status as a state. Free
State sovereignty is the supreme legal authority in association represents a middle ground between
relation to subjects within its territorial domain. integration and independence.
This is the traditional context in referring to
sovereignty as absolute. However, in international NOTE:
sphere, sovereignty realizes itself in the existence Example: Republic of the Marshall Islands and the
of a large number of sovereignties, such that there Federated States of Micronesia formerly part of the
prevails in fact co-existence of sovereignties under U.S. Administered Trust Territory of the Pacific
conditions of independence and equality. Islands.
State sovereignty as defined in international The associated state arrangement has usually been
law used as a transitional device of former colonies on
their way to full independence.
It is the right to exercise in a definite portion of the
globe the functions of a State to the exclusion of Example: Antigua, St. Kitts-Nevis-Anguilla,
another State. Sovereignty in the relations between Dominica, St. Lucia, St. Vincent and Grenada.
States signifies independence. Independence in
regard to a portion of the globe is the right to Q: Formal peace talks between the Philippine
exercise therein to the exclusion of any other State, Government and MILF resulted to the crafting
the functions of a State (Island of Palmas case: USA of the GRP-MILF Tripoli Agreement on Peace
v. the Netherlands). (Tripoli Agreement 2001) which consists of
three (3) aspects: a.) security aspect; b.)
Fundamental rights of a State rehabilitation aspect; and c.) ancestral domain
aspect.
1. Existence and self-preservation
2. Sovereignty and independence Various negotiations were held which led to the
3. Equality finalization of the Memorandum of Agreement
4. Property and jurisdiction on the Ancestral Domain (MOA-AD). In its body,

2015GOLDEN NOTES
it grants the authority and jurisdiction over independent State or the emergence into any other
the Ancestral Domain and Ancestral Lands of political status freely determined by a people
the Bangsamoro to the Bangsamoro Juridical which constitute modes of implementing the right
Entity (BJE). The latter, in addition, has the of self-determination by that people.
freedom to enter into any economic
cooperation and trade relation with foreign The Canadian Court went on to discuss the
countries. exceptional cases in which the right to external
self-determination can arise, namely:
The MOA-AD further provides for the extent of 1. where a people is under colonial rule,
the territory of the Bangsamoro. With regard to 2. subject to foreign domination or exploitation
governance, on the other hand, a shared outside a colonial context, and
responsibility and authority between the 3. blocked from the meaningful exercise of its
Central Government and BJE was provided. The right to internal self-determination (Prov. of
relationship was described as associative. North Cotabato v. The Govt of the Rep. of the
Does the MOA-AD violate the Constitution and Philippines, G.R. No. 183591, October 14, 2008).
the laws?
NOTE: The peoples right to self-determination
A: The concept of association is not recognized does not extend to a unilateral right of secession.
under the present Constitution. Indeed, the concept
implies powers that go beyond anything ever Right to internal self-determination of
granted by the Constitution to any local or regional indigenous peoples
government. It also implies the recognition of the
associated entity as a state. The Constitution, Indigenous peoples situated within States do not
however, does not contemplate any state in this have a general right to independence or secession
jurisdiction other than the Philippine State, much from those states under international law, but they
less does it provide for a transitory status that aims do have the right amounting to the right to internal
to prepare any part of Philippine territory for self-determination. Such right is recognized by the
independence. UN General Assembly by adopting the United
Nations Declaration on the rights of Indigenous
The provisions of the MOA indicate that the parties Peoples (UNDRIP) (Prov. of North Cotabato v. The
aimed to vest in the BJE the status of an associated Govt of the Rep. of the Philippines, G.R. No. 183591,
state or, at any rate, a status closely approximating October 14, 2008).
it.
NOTE: The UN DRIP, while upholding the right of
Even assuming arguendo that the MOA-AD would indigenous peoples to autonomy, does not obligate
not necessarily sever any portion of Philippine States to grant indigenous peoples the near
territory, the spirit animating it which has independent status of an associated state. There is
betrayed itself by its use of the concept of no requirement that States now guarantee
association runs counter to the national indigenous peoples their own police and internal
sovereignty and territorial integrity of the Republic security force, nor is there an acknowledgement of
(Prov. of North Cotabato v. The Govt of the Rep. of the right of indigenous peoples to the aerial
the Philippines, G.R. No. 183591, Ocotber 14, 2008). domain and atmospheric space. But what it
upholds is the right of indigenous peoples to the
Internal self-determination v. External self- lands, territories and resources, which they have
determination traditionally owned, occupied or otherwise used or
acquired (Prov. of North Cotabato v. The Govt of the
The recognized sources of international law Rep. of the Philippines, G.R. No. 183591, October 14,
establish that the right to self-determination of a 2008).
people is normally fulfilled through internal self-
determination a peoples pursuit of its political, Q: In 1947, the UN made the border between
economic, social and cultural development within Israel and Palestine known as the Green Line.
the framework of an existing State. A right to Following the Palestinian Arab violence in
external self-determination arises in only the most 2002, Israel began the construction of the
extreme cases and, even then, under carefully barrier that would separate West Bank from
defined circumstances. Israel. Palestinians insisted that the fence is an
Apartheid fence designed to de facto annex
External self-determination can be defined as the the West Bank of Israel. The case was submitted
establishment of a sovereign and independent to the ICJ for an advisory opinion by the General
State, the free association or integration with an Assembly of the United Nations under

resolution ES-10/14. Did Israel undermine the b. Where a State is absorbed by another
right of self-determination of the people of State, property of the absorbed State,
Palestine when it created the wall? wherever located, passes to the absorbing
State.
A: Construction of the wall severely impedes the c. Where a part of a State becomes a separate
exercise by the Palestinian people of its right to State, property of the predecessor State
self-determination. located in the territory of the new State
passes to the new State.
The existence of a Palestinian people is no longer 3. As to public debts Agreement between
in issue. Such existence has moreover been predecessor and successor State govern;
recognized by Israel in the exchange of letters. The otherwise:
Court considers that those rights include the right a. Where a part of the territory of a State
to self-determination, as the General Assembly has becomes part of the territory of another
moreover recognized on a number of occasions. State, local public debt and the rights and
The route chosen for the wall gives expression in obligations of the predecessor State under
loco to the illegal measures taken by Israel with contracts relating to that territory are
regard to Jerusalem and the settlements. There is transferred to the successor State.
also of further alterations to the demographic b. Where a State is absorbed by another
composition of the Occupied Palestinian Territory State, public debt and the rights and
resulting from the construction of the wall as it is obligations under contracts of the
contributing to the departure of Palestinian absorbed State pass to the absorbing State.
population from certain areas. That construction, c. Where a part of a State becomes a separate
along with measures taken previously, thus State, local public debt and the rights and
severely impedes the exercise by the Palestinian obligations of the predecessor State under
people of its right to self-determination, and is contracts relating to that territory are
therefore a breach of Israels obligation to respect transferred to the successor State.
that right (ICJ Advisory Opinion on Legal 4. As to treaties
Consequences of the Construction of a Wall in the a. When part of the territory of a State
Occupied Palestinian Territory, July 9, 2004). becomes the territory of another State, the
international agreements of the
SUCCESSION OF STATES predecessor State cease to have effect in
respect of the territory and international
Succession or Continuity agreements of the successor State come
into force there.
States do not last forever. The issue of state
succession can arise in different circumstances. NOTE: Moving Treaty or Moving
Existing sovereignties can disappear under Boundaries Rule 3rd State may seek
different circumstances. New political sovereigns relief from the treaty on ground of rebus
may arise as the result of decolonization, sic stantibus
dismemberment of an existing state, secession,
annexation and merger. In each of these cases an When a State is absorbed by another State,
existing sovereignty disappears either in whole or the international agreements of the
in part and a new one arises thus giving rise to absorbed State are terminated and the
questions of succession to rights and obligations. international agreements of the absorbing
State become applicable to the territory of
Rules the absorbed State.
1. As to territory The capacities, rights and NOTE: Moving Treaty or Moving

duties of the predecessor State with respect to Boundaries Rule may apply.
that territory terminate and are assumed by
the successor State. b. When a part of a State becomes a new
2. As to State property The agreement between State, the new State does not succeed to
the predecessor and the successor State the international agreements to which the
govern; otherwise: predecessor State was a party, unless,
a. Where a part of the territory of a State expressly or by implication, it accepts such
becomes part of the territory of another agreements and the other party or parties
State, property of the predecessor State thereto agree or acquiesce.
located in that territory passes to the
successor State.

2015GOLDEN NOTES
c. Pre-existing boundary and other territorial political law, it is applicable to treason committed
agreements continue to be binding against the national security of the legitimate
notwithstanding. (Utipossidetis rule) government, because the inhabitants of the
occupied territory were still bound by their
Effects of a change of sovereignty on municipal allegiance to the latter during the enemy
laws occupation. Since the preservation of the allegiance
or the obligation of fidelity and obedience of a
1. Laws partaking of a political complexion are citizen or subject to his government or sovereign
abrogated automatically does not demand from him a positive action, but
2. Laws regulating private and domestic rights only passive attitude or forbearance from adhering
continue in force until changed or abrogated to the enemy by giving the latter aid and comfort,
the occupant has no power, as a corollary of the
Effect of change of sovereignty when Spain preceding consideration, to repeal or suspend the
ceded the Philippines to the US operation of the law of treason.
The political laws of the former sovereign are not The theory of suspended allegiance was posited by
merely suspended but abrogated. As they regulate the petitioner in the case of Laurel v. Misa (G.R. No.
the relations between the ruler and the ruled, these L-409, January 30, 1947). Anastacio Laurel posited
laws fall to the ground ipso facto unless they are that a Filipino citizen who adhered to the enemy
retained or re-enacted by positive act of the new giving the latter aid and comfort during the
sovereign. Japanese occupation cannot be prosecuted for the
crime of treason defined and penalized by article
Non-political laws, by contrast, continue in 114 of the Revised Penal Code, for the reason (1)
operation, for the reason also that they regulate that the sovereignty of the legitimate government
private relations only, unless they are changed by in the Philippines and, consequently, the correlative
the new sovereign or are contrary to its allegiance of Filipino citizens thereto was then
institutions. suspended; and (2) that there was a change of
sovereignty over these Islands upon the
Effect of Japanese occupation to the sovereignty proclamation of the Philippine Republic.
of the US over the Philippines
Succession of government
Sovereignty is not deemed suspended although
acts of sovereignty cannot be exercised by the The integrity of the original State is not affected as
legitimate authority. Thus, sovereignty over the what takes place is only a change in one of its
Philippines remained with the US although the elements, the government.
Americans could not exercise any control over the
occupied territory at the time. What the belligerent Effects of a change of government
occupant took over was merely the exercise of acts
of sovereignty. 1. If the change is peaceful, the new government
assumes the rights and responsibilities of the
Status of allegiance during Japanese occupation old government.
2. If the change was effected thru violence, a
There was no case of suspended allegiance during distinction must be made.
the Japanese occupation. Adoption of the theory a. Acts of political complexion may be
of suspended allegiance would lead to disastrous denounced
consequences for small and weak nations or states, b. Routinary acts of mere governmental
and would be repugnant to the laws of humanity administration continue to be effective.
and requirements of public conscience, for it would
allow invaders to legally recruit or enlist the RECOGNITION
quisling inhabitants of the occupied territory to
fight against their own government without the Recognition
latter incurring the risk of being prosecuted for
treason. To allow suspension is to commit political It is an act by which a State acknowledges the
suicide. existence of another State, government, or a
belligerent community and indicates its willingness
NOTE: An inhabitant of a conquered State may be to deal with the entity as such under international
convicted of treason against the legitimate law.
sovereign committed during the existence of
belligerency. Although the penal code is a non-

Theories of recognition of a State (2004 Bar) Estrada Doctrine
1. Constitutive theory Recognition is the last It involves a policy of never issuing any declaration
indispensable element that converts the state giving recognition to governments and of accepting
being recognized into an international person. whatever government is in effective control
2. Declaratory theory Recognition is merely an without raising the issue of recognition. An inquiry
acknowledgment of the pre-existing fact that into legitimacy would be an intervention in the
the state being recognized is an international internal affairs of another State.
person (Cruz, 2003).
De jure recognition v. De facto recognition
Authority to recognize
BASIS RECOGNITION RECOGNITION
It is a matter to be determined according to the DE JURE DE FACTO
municipal law of each State. In the Philippines, it is Relatively Provisional (e.g.:
the President who determines the question of Duration permanent duration of
recognition and his decisions on this matter are armed struggle)
considered acts of state which are, therefore, not Vests title to Does not vest
subject to judicial review. His authority in this properties of title to
respect is derived from his treaty-making power, Entitlement
government properties of
his power to send and receive diplomatic to properties
abroad government
representatives, his military power, and his right in abroad
general to act as the foreign policy spokesman of Scope of Brings about Limited to
the nation. Being essentially discretionary, the Diplomatic full diplomatic certain juridical
exercise of these powers may not be compelled. Power relations relations
Recognition of State v. Recognition of Effects of recognition

Government
1. The recognized State acquires capacity to enter
1. Recognition of State Carries with it the into diplomatic relations and the capacity to
recognition of government since the former sue in courts of recognizing State.
implies that a State recognized has all the 2. Immunity from jurisdiction of courts of law of
essential requisites of a State at the time recognizing State.
recognition is extended. Once recognition of 3. Entitled to receive and demand possession of
state is accorded, it is generally irrevocable. properties situated within the jurisdiction of
2. Recognition of Government May be withheld the recognizing State which are owned by
from a succeeding government brought about recognized State.
by violent or unconstitutional means.
NOTE: This is not applicable as to Recognition
Requirements for recognition of government of State.
1. The government is stable and effective, with no 4. Validity of the acts and decrees of recognized
substantial resistance to its authority state/government precluding courts of the
2. The government must show willingness and recognizing state from passing judgment on
ability to discharge its international the legality of the acts or decrees of the
obligations recognized state.
3. The government must enjoy popular consent
or approval of the people Belligerency
Tobar or Wilson Doctrine It exists when the inhabitants of a State rise up in

arms for the purpose of overthrowing the
It precludes recognition to any government coming legitimate government or when there is a state of
into existence by revolutionary means so long as war between two states.
the freely elected representatives of the people
thereof have not constitutionally reorganized the Requisites in recognizing belligerency
country.
1. There must be an organized civil government
directing the rebel forces.
2. The rebels must occupy a substantial portion
of the territory of the state.

2015GOLDEN NOTES
3. The conflict between the legitimate Q: Explain, using example, recognition of
government and the rebels must be serious, belligerency (1991 Bar).
making the outcome certain.
4. The rebels must be willing and able to observe A: Recognition of belligerency is the formal
the laws of war. acknowledgment by a third party of the existence
of a state of war between the central government
Legal consequences of belligerency and a portion of that state. Belligerency exists
when a sizable portion of the territory of a state is
1. Before recognition, it is the legitimate under the effective control of an insurgent
government that is responsible for the acts of community which is seeking to establish a separate
the rebels affecting foreign nationals and their government and the insurgents are in de facto
properties. Once recognition is given, control of a portion of the territory and population,
responsibility is shifted to the rebel have a political organization, and are able to
government. maintain such control and conduct themselves
2. The legitimate government is bound to according to the laws of war. For example, Great
observe the laws and customs of war in Britain recognized a state of belligerency in the
conducting the hostilities. United States during the Civil War.
3. From the viewpoint of third States, is to put
them under obligation to observe strict DIPLOMATIC AND CONSULAR LAW
neutrality and abide by the consequences
arising from that position. Right of legation
4. Recognition puts the rebels under
responsibility to third States and to the It is the right of the state to send and receive
legitimate government for all their acts which diplomatic missions, which enables states to carry
do not conform to the laws and customs of on friendly intercourse. It is governed by the
war. Vienna Convention on Diplomatic Relations (1961).
5. On the side of the rebels, the recognition of
belligerency puts them under responsibility to The exercise of this right is one of the most
third States and to the legitimate government effective ways of facilitating and promoting
for all their acts which do not conform to the intercourse among nations. Through the active
laws and customs of war. right of sending diplomatic representatives and the
passive right of receiving them, States are able to
Insurgency v. Belligerency deal more directly and closely with each other in
the improvement of their mutual intercourse.
BASIS INSURGENCY BELLIGERENCY
A mere initial More serious and NOTE: The State is not obliged to maintain
stage of war. It widespread and diplomatic relations with other States, as the right
involves a presupposes the of legation is purely consensual.
rebel existence of war
movement, between 2 or If it wants to, a State may shut itself from the rest of
As to nature
and is usually more states (1st the world, as Japan did until the close of the 19th
not sense) or actual century. However, a policy of isolation would
recognized. civil war within a hinder the progress of a State since it would be
single state (2nd denying itself of the many benefits available from
sense). the international community.
Sanctions to Belligerency is
insurgency governed by the Agents of diplomatic intercourse
are governed rules on
As to the by municipal international law 1. Head of State
applicable law Revised as the 2. Foreign secretary or minister
law Penal Code, i.e. belligerents may 3. Members of diplomatic service
rebellion. be given 4. Special diplomatic agents appointed by head of
international the State
personality. 5. Envoys ceremonial

Diplomatic corps the acceptability of an individual to be its chief

of mission; and
It is a body consisting of the different diplomatic 2. The agreement, also informal, by which the
representatives who have been accredited to the receiving State indicates to the sending State
same local or receiving State. It is headed by a that such person, would be acceptable.
doyun de corps, who, by tradition, is the oldest
member within the highest rank or, in Catholic Letter of credence
countries, the papal nuncio.
It is the document by which the envoy is accredited
Functions of a diplomatic mission by the sending State to the foreign State to which
he is being sent. It designates his rank and the
1. Represent sending State in receiving State general object of his mission, and asks that he be
2. Protect in receiving State interests of sending received favorably and that full credence be given
State and its nationals to what he says on behalf of his State.
3. Negotiate with government of receiving State
4. Promote friendly relations between sending Letter Patent
and receiving States and developing their
economic, cultural, and scientific relations The appointment of a consul is usually evidenced
5. Ascertain by all lawful means conditions and by a commission, known sometimes as letter
developments in receiving State and reporting patent or letredprovision, issued by the appointing
thereon to government of sending State authority of the sending State and transmitted to
6. In some cases, represent friendly governments the receiving State through diplomatic channels.
at their request.
DIPLOMATIC IMMUNITY
Classes of heads of a diplomatic mission
Nature of diplomatic immunity
1. Ambassadors or nuncios accredited to Heads of
State and other heads of missions of equivalent Diplomatic immunity is essentially a political
rank. question and the courts should refuse to look
2. Envoys ministers and internuncios accredited to beyond the determination by the executive branch.
heads of State.
3. Charge d affaires accredited to ministers of Besides the head of the mission, diplomatic
foreign affairs. immunities and privileges are also enjoyed by the
diplomatic suite or retinue, which consists of the
NOTE: The appointment of diplomats is not merely official and non-official staff of the mission. The
a matter of municipal law for the receiving State is official staff is made up of the administrative and
not obliged to accept a representative who is a technical personnel of the mission, including those
persona non grata to it. Indeed, there have been performing clerical work, and the member of their
cases when duly accredited diplomatic respective families. The non-official staff is
representatives have been rejected, resulting in composed of the household help, such as the
strained relations between the sending and domestic servants, butlers, and cooks and
receiving State. chauffeurs employed by the mission.
Persona non grata NOTE: As a rule, however, domestic servants enjoy

immunities and privileges only to the extent
In international law and diplomatic usage means a admitted by the receiving State and insofar as they
person not acceptable (for reasons peculiar to are connected with the performance of their duties.
himself) to the court or government to, which it is
proposed to accredit him in the character of an Privileges and immunities of diplomatic
ambassador or minister. representatives
Agreation 1. Personal inviolability Members of diplomatic

mission shall not be liable for any form of
It is a practice of the States before appointing a arrest or imprisonment
particular individual to be the chief of their 2. Inviolability of premises Premises, furnishings
diplomatic mission in order to avoid possible and means of transport shall be immune from
embarrassment. It consists of two acts: search, seizure, attachment or execution.
1. The inquiry, usually informal, addressed by the 3. Archives or documents shall be inviolable
sending State to the receiving State regarding

2015GOLDEN NOTES
4. Diplomatic agents are immune from criminal, or in his private capacity. The consul is immune
civil or administrative liability. from criminal prosecution only for acts committed
5. Receiving State shall protect official by him in connection with his official functions.
communication and official correspondence of
diplomatic mission. Q: The Ambassador of State X to the Philippines
6. Receiving State shall ensure all members of bought, in the name of his government, two
diplomatic mission freedom of movement and houses and lots at Forbes Park, Makati. One
travel. house is used as the chancery and residence of
7. A diplomatic agent is exempted to give the ambassador, and the other as quarters for
evidence as a witness. nationals of State X who are studying in the
8. Exemption from general duties and taxes University of Santo Tomas. The Registrar of
including custom duties with certain Deeds refused to register the sale and to issue
exceptions. Transfer Certificates of Title in the name of
9. Use of flag and emblem of sending State on State X on the ground of the prohibition of the
premises of receiving State. Constitution against the alienation of lands in
favor of aliens. Is his refusal justified?
Exceptions to the privileges and immunities of
diplomatic representatives A: The prohibition in the Constitution against
alienation of lands in favor of aliens does not apply
1. Any real action relating to private immovables to alienation of the same in favor of foreign
situated in the territory of the receiving State governments to be used as chancery and residence
unless the envoy holds the property in behalf of its diplomatic representatives. The receiving
of the sending State. State is under obligation to facilitate the acquisition
2. Actions relating to succession where diplomatic on its territory, in accordance with its laws, by the
agent is involved as executor, administrator, sending State of premises necessary for its mission,
heirs or legatee as a private person and not on or to assist the latter in obtaining accommodation
behalf of the sending State in some other way. Therefore, the refusal of the
3. An action relating to any professional or Register of Deeds to register the sale and the
commercial activity exercised by the issuance of TCT in the name of State X is
diplomatic agent in the receiving State outside unjustified.
his official functions
However, in so far as the house and lot to be used
Modes of waiving diplomatic immunity and as quarters of the nationals of State X who are
privileges studying in the University of Santo Tomas are
concerned, the Register of Deeds correctly refused
1. Expressly by the sending State; registration. Here, the prohibition in the
2. Impliedly, as when the person entitled to the constitution against the transfer of properties to
immunity from jurisdiction commences parties other than the Filipino citizens or
litigation in the local courts and thereby opens corporation 60% of the capital of which is owned
himself to any counterclaim directly connected by such citizens should be followed.
with the principal claim.
Exequatur
NOTE: Waiver of immunity from jurisdiction with
regard to civil and administrative proceedings shall An authorization from the receiving State
not be held to mean implied waiver of the admitting the head of a consular post to the
immunity with respect to the execution of exercise of his functions. For example, if the
judgment, for which a separate waiver shall be Philippines appoints a consul general for New
necessary. York, he cannot start performing his functions
unless the President of the United States issues an
Q: The U.S. Ambassador from the Philippines exequatur to him.
and the American Consul General also in the
Philippines quarreled in the lobby of Manila Diplomats v. Consuls
Hotel and shot each other. May Philippine
courts take jurisdiction over them for trial and Diplomats are concerned with political relations of
punishment for the crime they may have States while consuls are not concerned with
committed? political matters. The latter attend rather to
administrative and economic issues.
A: The Ambassador is immune from prosecution
for all crimes committed by him whether officially

Kinds of consul 2. May be required to give testimony, subject to

certain exceptions.
1. Consules missi Professional or career consuls
who are nationals of the sending State and are NOTE: Members of a consular post are under no
required to devote their full time to the obligation to give evidence on the following
discharge of their duties situations:
2. Consules electi May or may not be nationals of a. Concerning matters connected with the
the sending State and perform their consular exercise of their functions
functions only in addition to their regular b. To produce official correspondence and
callings documents
c. To give evidence as expert witness with regard
NOTE: Examples of regular callings include acting to the law of the sending State
as notary, civil registrar and similar administrative
capacities and protecting and assisting the Immunity of consular offices
nationals of the sending State.
1. With respect to that part where the consular
Duties of consuls work is being performed; and
2. May be expropriated by the receiving state for
1. Protection of the interests of the sending State purposes of national defense or public utility.
and its nationals in the receiving State.
2. Promotion of the commercial, economic, NOTE: With respect to expropriation by the
cultural, and scientific relations of the sending receiving State, steps shall be taken to avoid
and receiving States. impeding the performance of consular
3. Observation of the conditions and functions, and prompt, adequate and effective
developments in the receiving State and report compensation shall be paid by the sending
the same to the sending State. State.
4. Issuance of passports and other travel
documents to nationals of the sending State Diplomatic immunity v. Consular immunity
and visas or appropriate documents to persons
wishing to travel to the sending State. BASIS DIPLOMATIC CONSULAR
5. Supervision and inspection of vessels and Premises of Consular
aircraft of the sending State. the mission premises
includes the includes the
Sources of authority of consuls building or buildings or
parts of parts of
1. Letter patent or letter de provision Which is building and buildings and
the commission issued by the sending State, the land the land
and Scope as to
irrespective of irrespective of
2. Exequatur Which is the permission given buildings and
the ownership ownership used
them by the receiving State to perform their premises
used for the exclusively for
functions therein. purpose of the the purposes of
mission consular posts
Immunity of consuls including the
residence of
Consuls enjoy their own immunities and privileges the head of
but not to the same extent as those enjoyed by the mission
diplomats. Like diplomats, consuls are entitled to: GR: The GR: The agents
1. Inviolability of their correspondence, archives agents of the of the receiving
and other documents receiving state state may not
2. Freedom of movement and travel may not enter enter the
3. Immunity from jurisdiction for acts performed the premises consular
in their official capacity; and On entry of
of the mission premises
4. Exemption from certain taxes and customs agents of the
duties receiving
XPN: Consent XPN: Consent of
state
of the head of the head of the
Liabilities of consuls the mission consular post.
Consent is
1. Arrest and punishment for grave offenses; and assumed in case
of fire or other

2015GOLDEN NOTES
disasters and are not amenable to the jurisdiction of the
requiring judicial or administrative authorities of the
prompt receiving State in respect of acts performed in the
protective action exercise of consular functions.
Personal Consular bag
baggage of a shall not be However, this does not apply in respect of a civil
diplomatic opened action either:
agent shall not It may be 1. Arising out of a contract concluded by a
be opened requested that consular officer in which he did not enter
the bag be expressly or impliedly
opened in their 2. By a third party for damages arising from an
presence by an accident in the receiving State caused by a
authorized vehicle, vessel or aircraft (Vienna Convention
As to on the Consular Relations, Arts. 41 and 43).
representative of
inviolabilty of
the receiving
baggage Grounds for termination of consular office
state if they have
serious reason
to believe that 1. Death of consular officer
the bag contains 2. Recall
objects of other 3. Dismissal
articles, 4. Notification by the receiving State to the
documents, sending State that it has ceased to consider as
correspondence member of the consular staff
or articles 5. Withdrawal of his exequatur by the receiving
Not obliged to May be called State.
give evidence upon to attend 6. War outbreak of war between his home State
as a witness as a witness; if and the receiving State.
As a witness
declined, no
before the TERMINATION OF DIPLOMATIC RELATIONS
coercive
court
measure or
penalty may be Grounds for termination of diplomatic relations
applied under municipal law
Differences in the privileges or immunities of 1. Resignation

diplomatic envoys and consular officers from 2. Accomplishment of the purpose
the civil and criminal jurisdiction of the 3. Death
receiving State 4. Abolition of the office
5. Removal
A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall Grounds for termination of diplomatic relation
also enjoy immunity from its civil and under international law
administrative jurisdiction except in the case of:
1. A real action relating to private immovable 1. War Outbreak between the sending and the
property situated in the territory of the receiving States.
receiving State, unless he holds it on behalf of 2. Extinction of either the sending State or the
the sending State for the purpose of the receiving State.
mission; 3. Recall Demanded by the receiving State when
2. An action relating to succession in which the the foreign diplomat becomes persona non
diplomatic agent is involved as executor, grata
administrator, heir or legatee as private person
and not on behalf of the sending State; NOTE: The termination of diplomatic relations
3. An action relating to any professional or does not terminate consular relations between the
commercial activity exercised by the sending and receiving States.
diplomatic agent in the receiving State outside
of his official functions (Vienna Convention of Consuls belong to a class of State agents distinct
Diplomatic Relations, Art. 31). from that of diplomatic officers. They do not
represent their State in its relations with foreign
NOTE: A consular officer does not enjoy immunity States and are not intermediaries through whom
from the criminal jurisdiction of the receiving State matters of State are discussed between

governments. international law.
Consuls look mainly after the commercial interest Usual steps in the treaty-making process
of their own State in the territory of a foreign State.
They are not clothed with diplomatic character and 1. Negotiation Conducted by the parties to
are not accredited to the government of the reach an agreement on its terms.
country where they exercised their consular 2. Signature The signing of the text of the
functions; they deal directly with local authorities. instrument agreed upon by the parties.
3. Ratification The act by which the provisions
VIENNA CONVENTION ON THE LAW OF of a treaty are formally confirmed and
TREATIES approved by the State.
4. Accession A State can accede to a treaty only
Vienna Convention on the Law of Treaties if invited or permitted to do so by the
(VCLT) contracting parties. Such invitation or
permission is usually given in the accession
It is a treaty concerning the international law on clause of the treaty itself.
treaties between states. It was adopted on 22 May 5. Exchange of instruments of ratification;
1969 and opened for signature on 23 May 1969. 6. Registration with the United Nations.
The Convention entered into force on 27 January
1980. Ratification
Applicability of the VCLT It is the act by which the provisions of a treaty are
formally confirmed and approved by a State. By
This applies to treaties between States (Vienna ratifying a treaty signed in its behalf, a State
Convention, Art. 1). expresses its willingness to be bound by the
provisions of such treaty.
The present Convention applies to any treaty
which is the constituent instrument of an Q: A petition for mandamus was filed in the SC
international organization and to any treaty to compel the Office of the Executive Secretary
adopted within an international organization and the Department of Foreign Affairs to
without prejudice to any relevant rules of the transmit (even without the signature of the
organization (Vienna Convention, Art. 5). President) the signed copy of the Rome Statute
of the International Criminal Court (ICC) to the
TREATIES Senate of the Philippines for its concurrence or
ratification in accordance with Sec. 21, Art. VII
Treaty of the 1987 Constitution.
It is an international agreement concluded between Petitioners contend that ratification of a treaty,

States in written form and governed by under both domestic law and international law,
international law, whether embodied in a single is a function of the Senate. That under treaty
instrument or in two or more related instruments law and customary international law,
and whatever its particular designation. Philippines has a ministerial duty to ratify the
Rome Statute.
Essential requisites of a valid treaty Respondents on the other hand, argued that
executive department has no duty to transmit
1. Be entered into by parties with treaty-making the Rome Statute to the Senate for concurrence.
capacity Decide.
2. Through their authorized representatives
3. Without the attendance of duress, fraud, A: Petitioners interpretation of the Constitution is
mistake, or other vice of consent incorrect. The power to ratify treaties does not
4. On any lawful subject-matter belong to the Senate.
5. In accordance with their respective
constitutional process It should be emphasized that under the
Constitution the power to ratify is vested in the
Form of a treaty President subject to the concurrence of the Senate.
The President has the discretion even after the
A treaty may still be considered as such even if not signing of the treaty by the Philippine
in writing. Oral agreements between States are representative whether or not to ratify a treaty.
recognized as treaties under customary The signature of the representative does not

2015GOLDEN NOTES
signify final consent, it is ratification that binds the agreement including those concluded with
state to the provisions of the treaty and renders it non-members.
effective. 3. The treaty itself may expressly extend its
benefits to non-signatory States.
The role of the Senate is limited only to giving or 4. Parties to apparently unrelated treaties may
withholding its consent, concurrence to the also be linked by the most-favored nation
ratification. It is within the President to refuse to clause.
submit a treaty to the Senate or having secured its
consent for its ratification, refuse to ratify it. Such Effectivity date of a treaty
decision is within the competence of the President
alone, which cannot be encroached by this Court A treaty enters into force in such manner and upon
via writ of mandamus (Pimentel v. Executive such date as it may provide or as the negotiating
Secretary, G.R. No. 158088, July 6, 2005). States may agree. Failing any such provision or
agreement, a treaty enters into force as soon as
The House of Representatives cannot take active consent to be bound by the treaty has been
part in the conduct of foreign relations, particularly established for all the negotiating States.
in entering into treaties and international
agreements. As held in US v. Curtiss Wright Export NOTE:
Corporation (299 US 304), it is the President alone GR: A State may not invoke the fact that its consent
who can act as representative of the nation in the to the treaty was obtained in violation of its
conduct of foreign affairs. Although the Senate has internal law.
the power to concur in treaties, the President alone
can negotiate treaties and Congress is powerless to XPN: If the violation was manifest and concerned a
intrude into this. rule of its internal law of fundamental importance.
NOTE: However, if the matter involves a treaty or A violation is manifest if it would be objectively
an executive agreement, the HoR may pass a evident to any State conducting itself in the matter
resolution expressing its views on the matter. in accordance with normal practice and in good
faith.
Doctrine of Unequal Treaties
Reservation
The doctrine posits that treaties which have been
imposed through coercion or duress by a State of It is a unilateral statement, however phrased or
unequal character are void. named, made by a State, when signing, ratifying,
accepting, approving, or acceding to a treaty,
Protocol de Clture whereby it purports to exclude or modify the legal
effect of certain provisions of the treaty in their
It is a final act and an instrument which records the application to that State.
winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of Reservation is not applicable when:
the texts of treaties, conventions, recommendations
and other acts agreed upon and signed by the 1. The treaty itself provides that no reservation
plenipotentiaries attending the conference. shall be admissible,
2. The treaty allows only specified reservations
Instances when a third State who is a non- which do not include the reservation in
signatory may be bound by a treaty question,
3. The reservation is incompatible with the object
1. When a treaty is a mere formal expression of and purpose of the treaty.
customary international law, which, as such is
enforceable on all civilized states because of Effects of reservation and of objections to
their membership in the family of nations. reservations
2. Under Art. 2 of its charter, the UN shall ensure
that non-member States act in accordance with 1. Modifies, for the reserving State in its relations
the principles of the Charter so far as may be with that other party, the provisions of the
necessary for the maintenance of international treaty to which the reservation relates to the
peace and security. Under Art. 103, obligations extent of the reservation;
of member-states shall prevail in case of 2. Modifies those provisions to the same extent
conflict with any other international for that other party in its relations with the
reserving State.

3. The reservation does not modify the Conflict between a treaty and a statute in the
provisions of the treaty for the other parties to Philippine setting
the treaty inter se.
4. When a State objecting to a reservation has not In case of conflict between a treaty and a statute,
opposed the entry into force of the treaty the courts should harmonize both laws first and if
between itself and the reserving State, the there exists an unavoidable contradiction between
provisions to which the reservation relates do them, the principle of lex posterior derogat priori - a
not apply as between the two States to the treaty may repeal a statute and a statute may
extent of the reservation. repeal a treaty - will apply. The later one prevails.
In our jurisdiction, treaties entered into by the
Judicial review of treaties executive are concurred by the Senate and takes
the form of a statute.
Even after ratification, the Supreme Court has the
power of judicial review over the constitutionality VFA as a treaty and as an executive agreement
of any treaty, international or executive agreement
and must hear such case en banc. In the case of Bayan v. Zamora (G.R. No. 138570,
Oct. 10, 2000), VFA was considered a treaty because
Rules case of conflict between a treaty and a the Senate concurred via 2/3 votes of all its
custom members. But in the point of view of the US
Government, it is merely an executive agreement.
1. Treaty prevails if the treaty comes after a
particular custom, as between the parties to Modification of a treaty
the treaty,
2. Customs prevails if the custom develops after GR: A treaty may not be modified without the
the treaty, it being an expression of a later will. consent of all the parties.
Treaty v. Executive Agreement XPN: If allowed by the treaty itself, two states may
modify a provision only insofar as their countries
1. Treaties need concurrence of the Senate and are concerned.
involve basic political issues, changes in
national policy and are permanent Grounds for invalidating a treaty
international agreements.
2. Executive agreements need no concurrence 1. Error
from the Senate and are just adjustments of 2. Fraud
details in carrying out well established 3. Corruption of a representative of a State
national policies and are merely temporary 4. Coercion of a representative of a State
arrangements. 5. Coercion of a State by threat or use of force
6. Violation of jus cogensnorm
Applicable rules when there is conflict between 7. Unconstitutionality Rule
a treaty and a statute 8. Lack of Representatives Authority
The rule will depend on which court is deciding. Grounds for termination of a treaty
If it is an international court, generally, it will 1. Termination of the treaty or withdrawal of a

uphold the treaty obligation. A treaty, even if party in accordance with the terms of the
contrary to a later statute, is binding in treaty
international law. 2. Extinction of one of the parties to the treaty
3. Mutual agreement of all the parties to
On the other hand, a domestic court will uphold terminate the treaty
local laws. When a treaty and domestic statute 4. Denunciation of the treaty by one of the parties
relate to the same subject, the court will try to give 5. Supervening impossibility of performance
effect to both. If they are inconsistent, the later in 6. Conclusion of a subsequent treaty inconsistent
date will control, provided that the treaty between the same parties
stipulation is self-executing. 7. Violation of the treaty by one of the parties
8. Doctrine of rebus sic stantibus
9. Outbreak of war between the parties to the
treaty
10. Severance of diplomatic or consular relations

2015GOLDEN NOTES
11. The emergence of new peremptory norm of
general international law renders void and Exceptions to the Clean Slate rule
terminates any existing treaty in conflict with
such norm 1. When the new State agrees to be bound by the
treaties made by its predecessor;
Doctrine of rebus sic stantibus 2. Treaties affecting boundary regime
(utipossidetis)
It states that a fundamental change of 3. Customary International Law
circumstances which determined the parties to
accept a treaty, if it has resulted in a radical Most Favored Nation clause (1997 Bar
transformation of the extent of the obligations Question)
imposed by it, may under certain conditions, afford
the party affected a ground to invoke the It may be defined in general, as a pledge by a
termination of the treaty. contracting party to a treaty to grant to the other
party treatment not less favorable than that which
The change must have increased the burden of the has been or may be granted to the most favored
obligations to be executed to the extent of among other countries.
rendering performance essentially different from
the original intention. The most favored nation clause is intended to
establish the principle of equality of international
Requisites of rebus sic stantibus treatment by providing that the citizens or subjects
of the contracting nations may enjoy the privileges
1. The change must not have been caused by the accorded by either party to those of the most
party invoking the doctrine favored nation (Commissioner of Internal Revenue v.
2. The doctrine cannot operate retroactively, i.e., S.C. Johnson and Son, Inc., 309 SCRA 87, 107-108).
it must not adversely affect provisions which
have already been complied with prior to the The most favored nation clause embodies the
vital change in the situation principle of non-discrimination. The clause has
3. The change must have been unforeseen or been commonly included in treaties of commercial
unforeseeable at the time of the perfection of nature. The principle means that any special
the treaty treatment given to a product from one trading
4. The doctrine must be invoked within a partner must be made available for like products
reasonable time originating from or destined for other contracting
5. The duration of the treaty must be indefinite partners. In practice, this generally refers to tariff
6. The change must be so substantial that the concessions.
foundation of the treaty must have altogether
disappeared NATIONALITY AND STATELESSNESS
Limitation on the application of the principle of Nationality

rebus sic stantibus
It is membership in a political community with all
The principle of rebus sic stantibus cannot be its concomitant rights and obligations. It is the tie
invoked as a ground for terminating or that binds the individual to his State, from which he
withdrawing from a treaty if: can claim protection and whose laws he is obliged
1. The treaty establishes a boundary; or to obey.
2. The fundamental change is the result of a
breach by the party invoking it of an obligation NOTE: Citizenship has a more exclusive meaning in
under the treaty or of any other obligation that it applies only to certain members of the State
owed to any other party to the treaty. accorded more privileges than the rest of the
people who owe it allegiance. Its significance is
Clean Slate Rule municipal, not international.
When one State ceases to exist and is succeeded by Multiple Nationality

another on the same territory, the newly
independent State is not bound to maintain in It is the possession by an individual of more than
force, or to become a party to, any treaty by reason one nationality. It is acquired as the result of the
only of the fact that at the date of the succession of concurrent application to him of the conflicting
States the treaty was in force in respect of the municipal laws of two or more States claiming him
territory to which the succession of States relates. as their national.

Doctrine of Effective Nationality

Statelessness
A person having more than one nationality shall be
It is the condition or status of an individual who is treated as if he had only one either the nationality
either: of the country in which he is habitually and
1. De jure stateless person stripped of his principally resident or the nationality of the
nationality by their former government and country with which in the circumstances he
without having an opportunity to acquire appears to be in fact most closely connected.
another
2. De facto stateless person one who possesses a Measures states have taken to prevent
nationality whose country does not give him Statelessness
protection outside his own country and who is
commonly referred to as refugee (Frivaldo v. In the Convention on the Conflict of Nationality
COMELEC, G.R. No. 123755, June 28, 1996). Laws of 1930, the Contracting States agree to
accord nationality to persons born in their territory
Consequences of statelessness who would otherwise be stateless. The Convention
on the Reduction of Statelessness of 1961 provides
1. No State can intervene or complain in behalf of that if the law of the contracting States results in
the Stateless person for an international the loss of nationality, as a consequence of
delinquency committed by another State in marriage or termination of marriage, such loss
inflicting injury upon him. must be conditional upon possession or acquisition
2. He cannot be expelled by the State if he is of another nationality.
lawfully in its territory except on grounds of
national security or public order. Doctrine of Genuine Link
3. He cannot avail himself of the protection and
benefits of citizenship like securing for himself It states that the bond of nationality must be real
a passport or visa and personal documents. and effective in order that a State may claim a
person as its national for the purpose of affording
Rights of stateless persons him diplomatic protection.
A Stateless person is not entirely without right, STATE RESPONSIBILITY

protection or recourse under the Law of
Nations.Under the Convention in Relation to the Doctrine of State Responsibility
Status of Stateless Persons, the contracting States
agree to accord the stateless persons within their A State may be held responsible for an
territories treatment at least as favorable as that international delinquency directly or indirectly
accorded their nationals with respect to: imputable to it which causes injury to the national
1. Freedom of religion of another State. Liability will attach to the State
2. Access to the courts where its treatment of the alien falls below the
3. Rationing of products in short supply international standard of justice or where it is
4. Elementary education remiss in according him the protection or redress
5. Public relief and assistance that is warranted by the circumstances.
6. Labor legislation
7. Social Security Elements of State Responsibility
NOTE: They also agree to accord them treatment 1. Breach of an international obligation
not less favorable than that accorded to aliens 2. Attributability
generally in the same circumstances. The
Convention also provides for the issuance of Kinds of State Responsibility
identity papers and travel documents to the
Stateless persons. 1. Direct State responsibility Where the
international delinquency was committed by
Doctrine of Indelible Allegiance superior government officials or organs like
the chief of State or the national legislature,
It states that an individual may be compelled to liability will attach immediately as their acts
retain his original nationality notwithstanding that may not be effectively prevented or reversed
he has already renounced it under the law of under the constitution or laws of the State.
another State whose nationality he has acquired. 2. Indirect State responsibility Where the
offense is committed by inferior government

2015GOLDEN NOTES
officials or by private individuals. The State
will be held liable only if, by reason of its Motive (intent) is relevant when:
indifference in preventing or punishing it, it
can be considered to have connived in effecting 1. The existence of a deliberate intent to injure
its commission. may have an effect on the remoteness of the
damage and may help to establish the breach
Requisites for the enforcement of the doctrine of duty.
of State Responsibility 2. Motive and intent may be a specific element in
defining permitted conduct.
1. The injured alien must first exhaust all local
remedies; and Relief available where a State is liable for an
2. He must be represented in the international internationally wrongful act
claim for damages by his own State
1. Declaratory relief Declaration by a court that
Elements of an internationally wrongful act as to the illegality of an act constitutes a
measure of satisfaction or reparation in the
1. Act or omission is attributable to the State broad sense.
under international law; and
2. Constitutes a breach of an international NOTE: Available when this is, or the parties
obligation of the State deem this, the proper way to deal with a
dispute or when the object is not to give
NOTE: Every internationally wrongful act of a State satisfaction for the wrong received but only to
entails the international responsibility of that State. recognize the liability.
Acts or situations attributable to the State 2. Satisfaction A measure other than restitution
or compensation which an offending State is
1. Acts of the State organs Acts of State organs bound to take.
in their capacity provided by law or under
instructions of superiors NOTE: Its object is often either:
2. Acts of other persons If the group of persons a. An apology and other acknowledgment of
was in fact exercising elements of the wrongdoing
governmental authority in the absence or b. Punishment of individuals concerned
default of the official authorities and c. Taking of measures to prevent a
circumstances such as to call for the exercise of recurrence
those elements of authority.
3. Acts of revolutionaries Conduct of an 3. Restitution Involves wiping out all the
insurrectional movement which becomes the consequences of the breach and re-
new government of a State or part of a State. establishing the situation which would
probably have existed had the act not been
Theory of Objective or Strict Liability committed.
With respect to state responsibility, the theory NOTE: It can either be in the form of legal
provides that fault is unnecessary for State restitution or specific restitution.
responsibility to be incurred. Its requisites are: a. Legal Restitution is declaration that an
1. Agency offending treaty, law, executive act, or
2. Casual connection between the breach and the agreement, is invalid.
act or omission imputable to the State. b. Specific Restitution is a restitution in kind
or payment of a sum corresponding to the
Culpa (fault) is relevant when: value of the restitution, and the award for
losses sustained which would not be
1. The breach results from acts of individuals not covered by the first two.
employed by the state or from the activities of
licenses or trespassers on its territory; 4. Compensation Payment of money as a
2. A state engages in lawful activities, in which valuation of the wrong done.
case responsibility may result from culpa in
executing these lawful activities; NOTE: The compensation must correspond to
3. Determining the amount of damages; the value which restitution in kind would bear;
4. Due diligence or liability for culpa is stipulated the award of damages for loss sustained which
in a treaty.

would not be covered by restitution in kind or Extra-territoriality

payment in place of it.
The exemption of foreign persons from the
Pecuniary satisfaction v. Compensation jurisdiction of the State of residence and it arises
from treaty provisions.
BASIS PECUNIARY
COMPENSATION
SATISFACTION Nationality Doctrine
A token of regret To make up for or
and repair the damage A State may exercise jurisdiction over its nationals,
As to acknowledgment done with respect to their conduct, whether within or
nature of wrongdoing outside its territory.
(monetary
sorry) Protective Principle
States exercise of diplomatic protection Any State has the right to punish acts even if
committed outside its territory, when such acts
When a State admits into its territory foreign constitute attacks against its security, as long as
investments or foreign nationals, whether natural that conduct is generally recognized as criminal by
or juristic persons, it is bound to extend to them states in the international community.
the protection of the law and assumes obligations
concerning the treatment to be afforded to them. NOTE: Examples are plots to overthrow the
government, forging its currency, and plot to break
These obligations, however, are neither absolute its immigration regulations.
nor unqualified. An essential distinction should be
drawn between the obligations of the State towards Universality of jurisdiction
the international community as a whole, and those
vis--vis another State in the field of their Certain offenses are so heinous and so widely
diplomatic protection. condemned that any state that captures an offender
may prosecute and punish that person on behalf of
By their very nature, the former are the concern of the international community regardless of the
all States. All States can be held to have a legal nationality of the offender or victim or where the
interest in their protection; they are obligations crime was committed.
erga omnes. Obligations the performance of which
is the subject of diplomatic protection are not of Q: Prior to the outbreak of WWII, Adolf
the same category. It cannot be held, when one Eichmann was an Austrian by birth who
such obligation in particular is in question, in a volunteered to work for the Security Service in
specific case, that all States have a legal interest in Berlin. He rose through the ranks and
its observance (Case Concerning Barcelona eventually occupied the position of Referant for
Traction, Light and Power Company, Limited, Feb. 5, Jewish Affairs. He oversaw the transport and
1970). deportation of Jewish persons and explored the
possibility of setting up a slave Jewish state in
JURISDICTION OF STATES Madagascar.
Jurisdiction He was captured by Israeli Security Forces in

Argentina and handed over to the District Court
In Public International Law, it is the right of a State of Jerusalem to stand for war crimes against
to exercise authority over persons and things humanity and crimes against the Jewish people.
within its boundaries subject to certain exceptions. He was convicted of all 15 counts and sentenced
to death.
Principle of Territoriality
Does the District Court of Jerusalem have
A state has absolute, but not necessarily exclusive, jurisdiction to try the case in light of the fact
power to prescribe, adjudicate and enforce rules of that Eichmann is a foreign national and crimes
conduct that occurs within its territory. were committed on foreign territory?
NOTE: An aspect of this principle is the Effects A: The principle of territorial sovereignty merely
Doctrine which provides that a state has requires that the State exercises its power to
jurisdiction over acts occurring outside its territory punish within its own borders, not outside them;
but having effects within it. that subject to this restriction every State may

2015GOLDEN NOTES
exercise a wide discretion as to the application of from doing so if its exercise will be
its laws and the jurisdiction of its courts in respect unreasonable. Unreasonableness is determined
of acts committed outside the State; and that only by evaluating various factors:
in so far as it is possible to point to a specific rule a. link of the activity to the territory of the
prohibiting the exercise of this discretion. That regulating state
view was based on the following two grounds: (1) b. the connection, such as nationality,
It is precisely the conception of State sovereignty residence, or economic activity, between
which demands the preclusion of any presumption the regulating state and the person
that there is a restriction on its independence; and principally responsible for the activity to
(2) Even if it is true that the principle of the be regulated
territorial character of criminal law is firmly c. the character of the activity to be regulated
established in various States, it is no less true that d. the existence of justified expectations that
in almost of such States criminal jurisdiction has might be protected or hurt by the
been extended so as to embrace offenses regulation
committed outside its territory. e. the likelihood of conflict with regulation by
another state.
However, it is the universal character of the crimes 3. Forum non conveniens If in the whole
in question which vests in every State the power to circumstances of the case it be discovered that
try those who participated in the preparation of there is a real unfairness to one of the suitors
such crimes, and to punish them therefor. It follows in permitting the choice of a forum which is
that the State which prosecutes and punishes a not the natural or proper forum, either on the
person for that offense acts solely as the organ and ground of convenience of trial or the residence
agent of the international community, and metes or domicile of parties or of its being the locus
out punishment to the offender for his breach of contractus, or locus solutionis, then the
the prohibition imposed by the law of nations. doctrine of forum non conveniens is properly
applied.
Passive Personality Principle
TREATMENT OF ALIENS
It authorizes states to assert jurisdiction over
offenses committed against their citizens abroad. It Standards to be used by States in treating aliens
recognizes that each state has a legitimate interest within their territory
in protecting the safety of its citizens when they
journey outside national boundaries. 1. National treatment/equality of treatment
Aliens are treated in the same manner as
Modes of addressing conflicts of jurisdiction nationals of the State where they reside.
2. Minimum international standard However
1. Balancing Test It is a judicial doctrine harsh the municipal laws might be, against a
whereby a court measures competing interest States own citizens, aliens should be protected
as between individual rights and by certain minimum standards of humane
governmental powers, or between state protection.
authority and federal supremacy and decides
which interest should prevail (Blacks Law NOTE: States protect aliens within their
Dictionary). jurisdiction in the expectation that their own
nationals will be properly treated when residing or
The court employed a tripartite analysis to sojourning abroad.
determine whether to assume jurisdiction or
not. First, was there an actual or intended Right of asylum
effect on American foreign commerce. Second,
is the effect sufficiently large to present a In international law, it is the competence of every
cognizable injury to the plaintiffs and, State inferred from its territorial supremacy to
therefore, a civil violation of the anti-trust allow a prosecuted alien to enter and to remain on
laws. Third, are the interests of, and link to, the its territory under its protection and thereby grant
United States including effects on American asylum to him.
foreign commerce sufficiently strong, vis--vis
those of other nations, to justify an assertion of Refugee
extraordinary authority (Timberlane Lumber
Co. v. Bank of America, 549 F2d 597). Any person who is outside the country of his
2. International Comity Even when a state has nationality or the country of his former habitual
basis for exercising jurisdiction, it will refrain residence because he has or had well-founded fear

of persecution by reason of his race, religion, 1. Based on the consent of the State expressed in
nationality, membership of a political group or a treaty
political opinion and is unable or, because of such 2. Principle of specialty A fugitive who is
fear, is unwilling to avail himself of the protection extradited may be tried only for the crime
of the government of the country of his nationality, specified in the request for extradition and
or, if he has no nationality, to return to the country included in the list of offenses in the
of his former habitual residence. extradition treaty, unless the requested State
does not object to the trial of such person for
Elements before one may be considered as a the unlisted offense
refugee 3. Any person may be extradited, whether he is a
national of the requesting State, of the State of
1. The person is outside the country of his refuge or of another State. He need not be a
nationality, or in the case of Stateless persons, citizen of the requesting State.
outside the country of habitual residence; 4. Political or religious offenders are generally
2. The person lacks national protection; not subject to extradition.
3. The person fears persecution in his own
country. NOTE: Attentat clause is a provision in an
extradition treaty which states that the murder
NOTE: The second element makes a refugee a or assassination of the head of a state or any
Stateless person. Because a refugee approximates member of his family will not be considered as
a Stateless person, he can be compared to a vessel a political offense and therefore extraditable.
on the open sea not sailing under the flag of any
State, or be called flotsam and res nullius. Only a 5. The offense must have been committed within
person who is granted asylum by another State can the territory of the requesting State or against
apply for refugee status; thus the refugee treaties its interest
imply the principle of asylum. 6. Double criminality rule The act for which the
extradition is sought must be punishable in
Refugees v. Internally displaced persons both States
Refugees are people who have fled their countries Common bars to extradition
while internally displaced persons are those who
have not left their countrys territory. 1. Failure to fulfill dual criminality
2. Political nature of the alleged crime
Principle of Non-Refoulment 3. Possibility of certain forms of punishment
4. Jurisdiction
Posits that a State may not deport or expel refugees 5. Citizenship of the person in question
to the frontiers of territories where their life or
freedom would be put in danger or at risk. Procedure for extradition when a foreign State
requests from the Philippines
EXTRADITION
1. File/issue request through diplomatic
Extradition representative with:
a. Criminal charge and warrant of arrest
The right of a foreign power, created by treaty, to b. Recital of facts
demand the surrender of one accused or convicted c. Text of applicable law designating the
of a crime within its territorial jurisdiction, and the offense
correlative duty of the other State to surrender d. Pertinent papers
e. Decision of conviction
Basis of extradition 2. DFA forwards request to DOJ
3. DOJ files petition for extradition with RTC
The extradition of a person is required only if there 4. Upon receipt of a petition for extradition and
is a treaty between the State of refuge and the State its supporting documents, the judge must
of origin. As a gesture of comity, however, a State study them and make, as soon as possible, a
may extradite anyone. Furthermore, even with a prima facie finding whether:
treaty, crimes which are political in character are a. they are sufficient in form and substance;
exempted. b. they show compliance with the Extradition
Treaty and Law; and
Fundamental principles governing extradition c. the person sought is extraditable.

2015GOLDEN NOTES
At his discretion, the judge may require the Nature of extradition proceeding
submission of further documentation or may
personally examine the affiants and witnesses Extradition is not a criminal proceeding which will
of the petitioner. If, in spite of this study and call into operation all the rights of an accused
examination, no prima facie finding is possible, provided in the bill of rights.
the petition may be dismissed at the discretion
of the judge. Validity of a petition for bail in extradition
5. On the other hand, if the presence of a prima cases
facie case is determined, then the magistrate
must immediately issue a warrant for the The Philippines, along with other members of the
arrest of the extraditee, who is at the same family of nations, committed to uphold the
time summoned to answer the petition and to fundamental human rights as well as value the
appear at scheduled summary hearings. worth and dignity of every person. The
6. Hearing (provide counsel de officio if commitment is enshrined in Sec. 11, Art. II of our
necessary); Constitution which provides: The State values the
7. Appeal to CA within ten days whose decision dignity of every human person and guaranteed full
shall be final and executory; respect for human rights. The Philippines,
8. Decision forwarded to DFA through the DOJ; therefore, has the responsibility of protecting and
9. Individual placed at the disposal of the promoting the right of every person to liberty and
authorities of requesting State costs and due process, ensuring that those detained or
expenses to be shouldered by requesting State. arrested can participate in the proceedings before a
court, to enable it to decide without delay on the
Extradition v. Deportation legality of the detention and order their release if
justified.
BASIS EXTRADITION DEPORTATION
Effected at the Unilateral act of The Philippine authorities are under obligation to
As to make available to every person under detention
request of the the local State
authority such remedies which safeguards their fundamental
State of origin
Based on Based on causes right to liberty. These remedies include the right to
offenses arising in the be admitted to bail (Government of Hong Kong
As to cause committed in local State Special Administrative Region v. Olalia, Jr., G.R. No.
the State of 153675, April 19, 2007).
origin
Calls of the Undesirable Requisites for granting bail in extradition cases
return of the alien may be
fugitive to the deported to a The possible extraditee must show upon a clear
As to effect and convincing evidence that:
State of origin State other than
his own or the 1. He will not be a flight risk or a danger to the
State of origin. community,
2. There exist special, humanitarian and
No notice requirement compelling circumstances.
Prior to the issuance of the warrant, the judge must Rights of a person arrested and detained in
not inform or notify the potential extraditee of the another State
pendency of the petition, lest the latter be given the
opportunity to escape and frustrate the 1. Right to have his request complied with by the
proceedings. The foregoing procedure will best receiving State to so inform the consular post
serve the ends of justice in extradition cases. of his condition
2. Right to have his communication addressed to
NOTE: An extraditee does not have the right to the consular post forwarded by the receiving
notice and hearing during the evaluation stage of State accordingly
an extradition proceeding. The nature of the right 3. Right to be informed by the competent
being claimed is nebulous and the degree of authorities of the receiving State without delay
prejudice an extraditee allegedly suffers is weak his rights as mentioned above
(US v. Purganan, G.R. No. 148571, September 24,
2002).

Retroactive application of extradition threshold of 20 ratifying states was reached in

March 2003. The Committee on Migrant Workers
In Wright v. Court of Appeals (G.R. No.113213, (CMW) monitors implementation of the
August 15,1994), it was held that the retroactive Convention, and is one of the seven UN-linked
application of the Treaty of Extradition does not human rights treaty bodies.
violate the prohibition against ex post facto laws,
because the Extradition Treaty is neither a piece of Universal Declaration of Human Rights (UDHR)
criminal legislation nor a criminal procedural
statute. It merely provided for the extradition of The basic international statement of the inalienable
persons wanted for offenses already committed at rights of human beings. It is the first
the time the treaty was ratified. comprehensive international human rights
instrument. It covers Civil and Political rights and
INTERNATIONAL HUMAN RIGHTS LAW economic, social and cultural rights.
Human Rights NOTE: Rights covered by UDHR are customary

international law, hence, even during the times
Those liberties, immunities and benefits, which all when the bill of rights under the Constitution are
human beings should be able to claim as of right inoperative, rights under UDHR remained in effect
of the society in which they live Louis Henkin, (Republic v. Sandiganbayan, G.R. No. 104768, July
Human Rights 21, 2003).
International Human Rights Law Basic Rights Guaranteed by the UDHR
The law which deals with the protection of 1. All human beings are born free and equal in
individuals and groups against violations by dignity and rights.
governments of their internationally guaranteed 2. Everyone is entitled to all the rights and
rights, and with the promotion of these rights freedoms in this Declaration, without
(Buergenthal). distinction of any kind such as race, color, sex,
religion, property, or birth. No distinction shall
NOTE: International human rights are divided into also be made on the basis of the political or
3 generations, namely: international status of a country or territory to
1. First generation: civil and political rights which a person belongs.
2. Second generation: economic, social and 3. Right to life, liberty and security of person.
cultural rights 4. Right against slavery or servitude.
3. Third generation: right to development, right to 5. Right against torture or to cruel, inhuman and
peace and right to environment degrading treatment or punishment
6. Right to be recognized everywhere as a person
Classification of Human Rights before the law.
7. Right to equal protection of the law
1. Individual rights 8. Right to an effective remedy before courts for
2. Collective rights (right to self-determination of acts violating fundamental rights
people; the permanent sovereignty over natural 9. Right against arbitrary arrest, detention or
resources) exile.
10. Right to a fair and public hearing by an
Main instruments of human rights independent and impartial tribunal
11. Right to be presumed innocent until proven
1. Universal Declaration of Human Rights guilty
2. The International Covenant on Economic, 12. Right to privacy, family, home or
Social and Cultural Rights correspondence
3. International Covenant on Civil and Political 13. Right to freedom of movement and residence;
Rights and its two Optional Protocols right to leave any country, including ones own
and to return to ones own country
NOTE: The Philippines is a signatory to the 14. Right to seek and enjoy in another country
International Convention on the Protection of the asylum from persecution; however, this may
Rights of All Migrant Workers and Members of Their not be invoked in the case of prosecutions
Families. This instrument is a multilateral treaty genuinely arising from non-political crimes or
governing the protection of migrant workers and acts contrary to the principles of the United
families. Concluded on December 18, 1990, it Nations
entered into force on July 1, 2003 after the

2015GOLDEN NOTES
15. Right to a nationality and right against Rights guaranteed in the International
arbitrary deprivation of such right Covenant on Civil and Political rights
16. Right to marry, entered into freely and with
full consent, without any limitation due to race, 1. Right to self-determination
nationality or religion; entitled to equal rights 2. Right to an effective remedy
to marriage, during marriage and dissolution; 3. Equal right of men and women to the
the family is the natural and fundamental enjoyment of all the civil and political rights
group of society and is entitled to protection 4. Right to life
by society and State. 5. Not to be subjected to torture or to cruel,
17. Right to own property alone as well as in inhuman or degrading treatment or
association with others; right against arbitrary punishment. In particular, freedom from
deprivation of such property medical or scientific experimentation except
18. Right to freedom of thought, conscience and with his consent
religion 6. Freedom from slavery and servitude
19. Right to freedom of opinion and expression 7. Right to liberty and security of person
20. Right to freedom of peaceful assembly and 8. Right to be treated with humanity and with
association; no one may be compelled to respect for the inherent dignity of the human
belong to an association person
21. Right to suffrage; right to take part in the 9. No imprisonment on the ground of inability to
government of ones country, directly or fulfill a contractual obligation
through representatives; right of equal public 10. Right to liberty of movement and freedom to
service in ones country choose his residence
22. Right to social security 11. Right to a fair and public hearing by a
23. Right to work/labor, free choice of competent, independent and impartial tribunal
employment, just and favorable conditions of established by law
work; right to equal pay for equal work; right 12. No one shall be held guilty of an criminal
to form and join trade unions offense on account of any act or omission
24. Right to rest and leisure, including reasonable which did not constitute a criminal office,
working hours and periodic holidays with pay under national or international law, at the time
25. Right to a standard of living adequate for the when it was committed
health and being of ones self and his family; 13. Right to recognition everywhere as a person
motherhood and childhood are entitled to before the law
special care and assistance. 14. Right to privacy
26. Right to education 15. Right to freedom of thought, conscience and
27. Right to freely participate in the cultural life of religion
the community, enjoy the arts and share in 16. Right to freedom of expressions
scientific advancement 17. Right of peaceful assembly
18. Right of freedom of association
Under the Declaration, everyone is entitled to a 19. Right to marry and to found a family
social and international order in which the rights 20. Right to such measures of protection as are
and freedoms in this Declaration can be fully required by his status as a minor, name and
realized. The exercise of these rights and freedoms nationality
are subject only to such limitations as are 21. Right to participation, suffrage and access to
determined by law, for the purpose of recognition public service
and respect of rights of others, for public order and 22. Right to equal protection of the law
general welfare. 23. Right of minorities to enjoy their own culture,
to profess and practice their religion and to use
International Covenant on Civil and Political their own language.
Rights
NOTE:
This is a multilateral treaty adopted by the United GR: In times of public emergency which threatens
Nations General Assembly on 16 December 1966, the life of the nation and the existence of which is
and in force from 23 March 1976. It commits its officially proclaimed, parties may take measures to
parties to respect the civil and political rights of derogate from their obligations to the extent
individuals. As of April 2014, the Covenant has 74 strictly required by the exigencies of the situation.
signatories and 168 parties.
XPNs: There can be no derogation from the
following:
1. Right to life

2. Freedom from torture or cruel, inhuman or well as arrangements for the custody and
degrading punishment treatment of persons subjected to any form of
3. Freedom from slavery arrest, detention or imprisonment in any
4. Freedom from imprisonment for failure to territory under its jurisdiction, with a view to
fulfill a contractual obligation preventing any case of torture.
5. Freedom from ex post factolaws 7. To ensure a prompt and impartial
6. Right to recognition everywhere as a person investigation wherever there is reasonable
before the law ground to believe that an act of torture has
7. Freedom of thought, conscience and religion been committed
8. To ensure that an individual subjected to
Torture torture has the right complain and have his
case promptly and impartially examined by
Any act by which severe pain or suffering, whether competent authorities
physical or mental, is intentionally inflicted on a 9. To ensure that the victim obtains redress and
person for such purposes as obtaining from him or has an enforceable right to fair and adequate
a third person, information or a confession, compensation
punishing him for an act he or a third person has 10. To ensure that any statement established to
committed or is suspected of having committed, or have been made as a result of torture shall not
intimidating or coercing him or a third person, or be invoked as evidence in any proceedings,
for any reason based on discrimination of any kind, except against a person accused of torture as
when such pain or suffering is inflicted by or at the evidence that the statement was made.
instigation of or with the consent or acquiescence 11. To prevent in any territory under its
of a public official or other person acting in an jurisdiction other acts of cruel, inhuman or
official capacity (United Nations Convention against degrading treatment or punishment which do
Torture and Other Cruel, Inhuman or Degrading not amount to torture when such acts are
Treatment or Punishment [UNCTO] Effective June 26, committed by or at the instigation of or with
1987). the consent of acquiescence of a public official
or other person acting in an official capacity.
NOTE: It does not include pain or suffering arising
only from, inherent in or incidental to lawful Instances when a state party may establish its
sanctions. jurisdiction over offenses regarding torture
Obligations of the State Parties in the UNCTO 1. When the offenses are committed in any
territory under its jurisdiction or on board a
1. No exceptional circumstances whatsoever, ship or aircraft registered in the State;
whether a state of war or a threat or war, 2. When the alleged offender is a national of that
internal political instability or any other public State;
emergency or any order from a superior officer 3. When the victim was a national of that State if
or a public authority may be invoked as a that State considers it appropriate;
justification of torture. 4. Where the alleged offender is present in any
2. No State party shall expel, return (refouler) territory under its jurisdiction and it does not
or extradite a person to another State where extradite him.
there are substantial grounds for believing that
he would be in danger of being subjected to NOTE: Nos. 1 to 3 are considered as extraditable
torture. offences. In the absence of an extradition treaty,
3. All acts of torture are offenses under a State the UNCTO may be considered as the legal basis for
Partys criminal law. extradition. Such offenses shall be treated, for the
4. State Parties shall afford the greatest measure purpose of extradition, as if they have been
of assistance in connection with civil committed not only in the place in which they
proceedings brought in respect of any of the occurred but also in the territories of the State
offences required to establish their jurisdiction.
5. To ensure that education and information
regarding the prohibition against torture are International Covenant on Economic, Social and
fully included on persons involved in the Cultural Rights
custody, interrogation or treatment of any
individual subject to any form of arrest, It is a multilateral treaty adopted by the United
detention, or imprisonment. Nations General Assembly on 16 December 1966,
6. To keep under systematic review interrogation and in force from 3 January 1976. It commits its
rules, instructions, methods and practices as parties to work toward the granting of economic,

2015GOLDEN NOTES
social, and cultural rights. As of 2015, the Covenant 5. The wounded and the sick shall be protected
has 164 parties. and cared for by the party who is in custody of
them. Protection shall cover medical
Rights guaranteed under International personnel, establishments, transports and
Covenant on Economic, Social and Cultural equipment. The emblem of Red Cross or the
Rights (ICESR) Red Crescent is a sign of such protection and
must be respected.
1. Right of Self Determination 6. Parties who captured civilians and combatants
2. Right to work and accompanying rights thereto shall respect the latters rights to life, dignity,
3. Right to Social Security and other social rights and other personal rights.
4. Adequate standard of living which includes:
a. Right to adequate housing Essential rules of IHL
b. Right to adequate food
c. Right to adequate clothing 1. The parties to a conflict must at all times
5. Right to health distinguish between the civilian population
6. Right to education and combatants.
7. Cultural Rights 2. Neither the civilian population as a whole nor
individual civilians may be attacked
INTERNATIONAL HUMANITARIAN LAW (IHL) 3. Attacks may be made sole against military
AND NEUTRALITY objectives.
4. People who do not or can no longer take part
International Humanitarian Law (IHL) in the hostilities are entitled to respect for
their lives and for their physical and mental
A set of rules that place restrictions on the use of integrity and must be treated with humanity,
weapons and methods of warfare. It protects without any unfavorable distinction whatever.
people who are not, or no longer, participating in 5. It is forbidden to kill or wound an adversary
hostilities. It aims to protect human dignity and to who surrenders or who can no longer take part
limit suffering during times of war. It is also known in the fighting.
as the law of war or the law of armed conflict. 6. Neither the parties to the conflict nor members
of their armed forces have an unlimited right
Importance of IHL to choose methods and means of warfare.
7. It is forbidden to use weapons or methods of
It is one of the most powerful tools the warfare that are likely to cause unnecessary
international community has at its disposal to losses and excessive suffering.
ensure the safety and dignity of people in times of 8. The wounded and sick must be collected and
war. It seeks to preserve a measure of humanity, cared for by the party to the conflict which has
with the guiding principle that even in war there them in its power.
are limits. 9. Medical personnel and medical establishments,
transports and equipment must be spared. The
Fundamental principles of IHL red cross or red crescent is the distinctive sign
indicating that such persons and objects must
1. Parties to armed conflict are prohibited from be respected.
employing weapons or means of warfare that 10. Captured combatants and civilians who find
cause unnecessary damage or excessive themselves under the authority of the adverse
suffering (Principle of prohibition of use of party are entitled to respect for their lives,
weapons of a nature to cause superfluous injury their dignity, their personal rights and their
or unnecessary suffering) political, religious and other convictions and
2. Parties to armed conflict shall distinguish must be protected against all acts of violence
between civilian populace from combatants or reprisals; entitled to exchange of news with
and spare the former from military attacks their families and receive aid and enjoy basic
(Principle of distinction between civilians and judicial guarantees.
combatants)
3. Persons hors de combat and those who do not Application of IHL
take part in hostilities are entitled to respect
for their lives and their moral and physical IHL concerns two situations:
integrity. They shall be protected and treated 1. International armed conflicts, which involve at
humanely without any adverse distinction. least two countries;
4. It is prohibited to kill or injure an enemy who
surrenders or who is a hors de combat.

2. Armed conflicts that take place in one country International Humanitarian Law (IHL) v.
(such as those between a government and Human Rights Law
rebel forces).
INTERNATIONAL
HUMAN RIGHTS LAW
NOTE: IHL applies to all parties to a conflict HUMANITARIAN LAW
regardless of who started it. Application
Applies in situations of Protects the individual at
Branches of IHL armed conflict. all times in war and
peace alike.
1. Law of Geneva Designed to safeguard military Permissibilty of derogation
personnel who are no longer taking part in the No derogations are Some human rights
fighting and people not actively participating permitted under IHL treaties permit
in the war. because it was conceived governments to derogate
for emergency from certain rights in
NOTE: It includes the: situations, namely situations of public
a. Wounded and Sick in the Field; armed conflict. emergency.
b. Wounded, Sick and Shipwrecked at Sea; Purpose
c. Prisoners of War; and Aims to protect people Tailored primarily for
d. Civilians. who do not or are no peacetime, and applies to
longer taking part in everyone. Their principal
2. Law of the Hague Establishes the rights and hostilities. The rules goal is to protect
obligations of belligerents in the conduct of embodied in IHL impose individuals from
military operations, and limits the means of duties on all parties to a arbitrary behavior by
harming the enemy. conflict. their own governments.
Human rights law does
NOTE: Belligerents are inhabitants of a State not deal with the
who rise up in arms for the purpose of conduct of hostilities.
overthrowing the legitimate government. Consequence to states
Humanitarian law States are bound by
Persons protected under IHL
obliges states to take human rights law to
practical and legal accord national law with
IHL protects those who are not, or no longer,
measures, such as international obligations.
participating in hostilities, such as:
enacting penal
1. Civilians;
legislation and
2. Medical and religious military personnel;
disseminating IHL.
3. Wounded, shipwrecked and sick combatants;
Applicable mechanisms
4. Prisoners of war.
Provides for several Implementing
specific mechanisms that mechanisms are complex
NOTE: Recognizing their specific needs, IHL grants
help its implementation. and, contrary to IHL
women and children additional protection.
Notably, states are include regional systems.
required to ensure Supervisory bodies, e.g.
Protection under IHL
respect also by other the UN Commission on
states. Provision is also Human Rights (UNCHR),
1. IHL prohibits the use of weapons which are
made for inquiry are either based on the
particularly cruel or which do not distinguish
procedure, a Protecting UN Charter or provided
between combatants and civilians.
Power mechanism, and for in specific treaties.
2. The parties to a conflict are required to:
the International Fact-
a. Distinguish between combatants and
Finding Commission. In The UNCHR have
civilians, and to refrain from attacking
addition, the developed a mechanism
civilians;
International Committee of special rapporteurs
b. Care for the wounded and sick and protect
of the Red Cross (ICRC) and working groups,
medical personnel;
is given a key role in whose task is to monitor
c. Ensure that the dignity of prisoners of war
ensuring respect for the and report on human
and civilian internees is preserved by
humanitarian rules. rights situations either
allowing visits by International Committee
by country or by topic.
of the Red Cross delegates.
Its role is to enhance the
effectiveness of the UN
human rights machinery

2015GOLDEN NOTES
and to build up national, Ultimatum
regional and
international capacity to A written communication by one State to another
promote and protect which formulates, finally and categorically, the
human rights and to demands to be fulfilled if forcible measures are to
disseminate human be averted.
rights texts and
information. Human Effects of the outbreak of war
rights treaties also
provide for the 1. Laws of peace are superseded by the laws of
establishment of war.
committees of 2. Diplomatic and consular relations between the
independent experts belligerents are terminated.
charged with monitoring 3. Treaties of political nature are automatically
their implementation. cancelled, but those which are precisely
Certain regional treaties intended to operate during war such as one
(European and regulating the conduct of hostilities, are
American) also establish activated.
human rights courts. 4. Enemy public property found in the territory
of other belligerent at the outbreak of the
NOTE: IHL and International human rights law hostilities is with certain exceptions, subject to
(hereafter referred to as human rights) are confiscation.
complementary. Both strive to protect the lives,
health and dignity of individuals, albeit from a NOTE: An army of occupation can only take
different angle. possession of the cash, funds, and property
liable to requisition belonging strictly to the
War State, depots of arms, means of transport,
stores and supplies, and, generally, all movable
Contention between two States, through their property of the State which may be used for
armed forces, for the purpose of overpowering the military operations. Railway plant, land
other and imposing such conditions of peace as the telegraphs, telephones, steamers, and other
victor pleases. ships, apart from cases governed by maritime
law, as well as depots of arms and, generally,
Instances when force is allowed all kinds of war material, even though
belonging to companies or to private persons,
Under the UN Charter, the use of force is allowed are likewise material which may serve for
only in two instances, to wit: military operations, but they must be restored
1. In the exercise of the inherent right of self- at the conclusion of peace, and indemnities
defense; and paid for them (Laws and Customs of War on
2. In pursuance of the so-called enforcement Land (Hague II)[ July 29, 1899], Art. 53).
action that may be decreed by the Security
Council. Tests in determining the enemy character of
individuals
Commencement of a war
1. Nationality test If they are nationals of the
1. Declaration of war other belligerent, wherever they may be.
2. Rejection of an ultimatum 2. Domiciliary test If they are domiciled aliens in
3. Commission of an act of force regarded by at the territory of the other belligerent, on the
least one of the parties as an act of war. assumption that they contribute to its
economic resources.
Declaration of War 3. Activities test If, being foreigners, they
nevertheless participate in the hostilities in
A communication by one State to another favor of the other belligerent.
informing the latter that the condition of peace 4. Territorial or Commercial Domicile Test In
between them has come to an end and a condition matters referring to economic warfare
of war has taken place. 5. Controlling Interest Test This test is applied
to corporation in addition to the place of
incorporation test. A corporation is considered
as enemy if it:

a. is incorporated in an enemy territory; Civilian

b. is controlled by individuals bearing enemy
character. Any person who does not belong to the armed
forces and who is not a combatant.
Principle of Distinction
NOTE: In case of doubt whether a person is a
Parties to an armed conflict must at all times civilian or not, that person shall be considered as a
distinguish between civilian and military targets civilian.
and that all military operations should only be
directed at military targets. Suspension of arms
Participants in war A temporary cessation of hostilities by agreement

of the local commanders for such purposes as the
1. Combatants those who engage directly in the gathering of the wounded and the burial of the
hostilities, and dead.
2. Non-combatants those who do not, such as
women and children. Armistice
Combatants The suspension of hostilities within a certain area

or in the entire region of the war, agreed upon by
Those individuals who are legally entitled to take the belligerents, usually for the purpose of
part in hostilities. These include: arranging the terms of the peace.
1. Regular Forces (RF) members of the armed
forces except those not actively engaged in Armistice v. Suspension of arms
combat. These are the army, navy, and air
force. Non-combatant members of the armed SUSPENSION OF
BASIS ARMISTICE
forces include: chaplains, army services and ARMS
medical personnel. As to Political Military
2. Irregular Forces (IF) also known as purpose
franctireurs consist of militia and voluntary As to Usually in May be oral
corps. These are members of organized form writing
resistance groups, such as the guerrillas. They Only by the May be concluded
are treated as lawful combatants provided that As to who
commanders- by the local
they are: may
in-chief commanders
a. Being commanded by a person responsible conclude
of the
for his subordinates; belligerent
b. Wearing a fixed distinctive sign or some governments
type of uniform;
c. Carrying arms openly; and Ceasefire
d. Obeying the laws and customs of war.
3. Non-privileged Combatants (NPC) individuals An unconditional stoppage of all hostilities usually
who take up arms or commit hostile acts against ordered by an international body like the United
the enemy without belonging to the armed Nations Security Council.
forces or forming part of the irregular forces. If
captured, they are not entitled to the status of Truce
prisoners of war.
4. Citizens who rise in a levee en masse The A conditional ceasefire for political purposes.
inhabitants of unoccupied territory who, on
approach of the enemy, spontaneously take Capitulation
arms to resist the invading troops without
having time to organize themselves, provided The surrender of military forces, places or districts,
only that they: in accordance with the rules of military honor.
a. Carry arms openly; and
b. Observe the laws and customs of war.
5. The officers and crew members of merchant All organized armed forces, groups and units that
vessels who forcibly resist attack. belong to a party to an armed conflict which are
under a command responsible to that party for the
conduct of its subordinates.

2015GOLDEN NOTES
Basic principles that underlie the rules of automatically restored, together with all its laws,
warfare by virtue of the jus postliminium.
1. The Principle of Military Necessity The Principle of Uti Possidetis

belligerent may employ any amount of force to
compel the complete submission of the enemy Allows retention of property or territory in the
with the least possible loss of lives, time and belligerents actual possession at the time of the
money. cessation of hostilities.
NOTE: Under RA 9851, it is the necessity of Jus ad bellum (Law on the use of force)
employing measures which isindispensible to
achieve a legitimate aim of the conflict and not It seeks to limit resort to force between States.
prohibited by IHL. States must refrain from the threat or use of force
against the territorial integrity or political
2. The Principle of Humanity Prohibits the use of independence of another state (UN Charter, Art. 2,
any measure that is not absolutely necessary par. 4).
for the purpose of the war, such as the
poisoning of wells. XPNs:
3. The Principle of Chivalry Prohibits the 1. Self-defense; or
belligerents from the employment of 2. Following a decision adopted by the UN
treacherous methods in the conduct of Security Council under Chapter VII of the UN
hostilities, such as the illegal use of Red Cross Charter.
emblems.
4. The Principle of Proportionality The legal use Status Quo Ante Bellum
of force whereby belligerents must make sure
that harm caused to civilians or civilian Each of the belligerents is entitled to the territory
property is not excessive in relation to the and property which it had possession of at the
concrete and direct military advantage from an commencement of the war.
anticipated attack or by an attack on military
objective New conflicts covered by the IHL
War may be terminated by 1. Anarchic conflicts It is a situation where

armed groups take advantage of the
1. Simple cessation of hostilities, without the weakening or breakdown of the State
conclusion of a formal treaty structures in an attempt to grab power.
2. Treaty of peace 2. Those in which group identity becomes a focal
3. Unilateral declaration point These groups exclude the adversary
4. The complete submission and subjugation of through ethnic cleansing which consists in
one of the belligerents, followed by a dictated forcibly displacing or even exterminating
treaty of peace or annexation of conquered populations. This strengthens group feeling to
territory the detriment of the existing national identity,
ruling out any possibility of coexistence with
Postliminium other groups.
The revival or reversion to the old laws and Effect/relevance of the passage of RA
sovereignty of territory which has been under 9851(Philippine Act on Crimes Against
belligerent occupation once control of the International Humanitarian Law, Genocide and
belligerent occupant is lost over the territory other Crimes Against Humanity)
affected.
RA 9851 mandates both the State and non-state
Application of the Principle of Postliminium armed groups to observe international
(1979 Bar Question) humanitarian law standards and gives the victims
of war-crimes, genocide and crimes against
Where the territory of one belligerent State is humanity legal recourse.
occupied by the enemy during war, the legitimate
government is ousted from authority. When the
belligerent occupation ceases to be effective, the
authority of the legitimate government is

State Policies under RA 9851 necessity and carried out unlawfully and
wantonly;
1. The renunciation of war and adherence to a e. Willfully depriving a prisoner of war or
policy of peace, equality, justice, freedom, other protected person of the rights of fair
cooperation and amity with all nations; and regular trial;
2. Values the dignity of every human person and f. Arbitrary deportation or forcible transfer
guarantees full respect of human rights; of population or unlawful confinement;
3. Promotion of Children as zones of peace g. Taking hostages;
4. Adoption of the generally accepted principles h. Compelling a prisoner of war or other
of international law; protected person to serve in the forces of a
5. Punishment of the most serious crimes of hostile power; and
concern to the international community; and i. Unjustifiable delay in the repatriation of
6. To ensure persons accused of committing prisoners of war or other protected
grave crimes under international law all rights persons.
for a fair and strict trial in accordance with 2. In case of non-international armed conflict,
national and international law as well as serious violation of common Art. 3 to the four
accessible and gender-sensitive avenues of Geneva Conventions of 12 August 1949,
redress for victims of armed conflicts. namely any of the following acts committed
against persons taking no active part in the
NOTE: The application of the provisions of this Act hostilities, including members of the armed
shall not affect the legal status of the parties to a forces who have laid down their arms and
conflict, nor give an implied recognition of the those placed hors de combat by sickness,
status of belligerency. wounds, detention or any other cause:
a. Violence to life and person, in particular,
Genocide willful killings, mutilation, cruel treatment
and torture;
1. Any of the following acts with intent to b. Committing outrages upon personal
destroy, in whole or in part, a national, ethnic, dignity, in particular humiliating and
racial, religious, social or any other similar degrading treatment;
stable and permanent group such as: c. Taking of hostages; and
a. Killing of members of the group d. The passing of sentences and the carrying
b. Causing serious bodily or mental harm to out of executions without previous
members of the group judgment pronounced by a regularly
c. Deliberately inflicting on the group constituted court, affording all judicial
conditions of life calculated to bring about guarantees which are generally recognized
its physical destruction in whole or in part as indispensable.
d. Imposing measure intended to prevent 3. Other serious violations of the laws and
births within the group customs applicable in the armed conflict
e. Forcibly transferring children of the group within the established framework of
to another group international law, namely:
2. Directly and publicly inciting others to commit a. Intentionally directing attacks against the
genocide (RA 9851) civilian population as such or against
individual civilians not taking direct part
NOTE: Genocide may be committed eitherduring in hostilities;
war or armed conflict or in times of peace. b. Intentionally directing attacks against
civilian objects, that is, objects which are
War crimes not military objectives;
c. Intentionally directing attacks against
1. In case of an international armed conflict, grave buildings, material, medical units and
breaches of the Geneva Conventions of August transport, and personnel using the
12, 1949, namely any of the following acts distinctive emblems of Additional Protocol
against persons or property protected: II in conformity with international law;
a. Willful killing; d. Intentionally directing attacks against
b. Torture or inhuman treatment, including personnel, installations, material, units or
biological experiments; vehicles involved in a humanitarian
c. Willfully causing great suffering, or serious assistance or peacekeeping mission in
injury to body or health; accordance with the Charter of the United
d. Extensive destruction and appropriation Nations as long as they are entitled to the
of property not justified by military protection given to civilians or civilian

2015GOLDEN NOTES
objects under the international law of NOTE: Perfidy A combatants conduct
armed conflict; that creates the impression that an
e. Launching an attack in the knowledge that adversary is entitled to, or is obliged to
such attack will cause incidental loss of life accord protection under international law
or injury to civilians or damage to civilian when in fact the conduct is use to gain an
objects or widespread long-term and advantage (Blacks Law Dictionary).
severe damage to the natural environment
which would be excessive in relation to the m. Declaring that no quarter will be given;
concrete and direct military advantage n. Destroying or seizing the enemys
anticipated; property unless such destruction or
f. Launching an attack against works or seizure is imperatively demanded by the
installations containing dangerous forces necessities of war;
in the knowledge that such attack will o. Pillaging a town or place, even when taken
cause excessive loss of life, injury to by assault;
civilians or damage to civilian objects, and p. Ordering the displacement of the civilian
causing death or serious injury to body or population for reasons related to the
health; conflict, unless the security of the civilians
g. Attacking or bombarding, by whatever involved or imperative military reasons so
means, towns, villages, dwellings or demand;
buildings which are undefended and which q. Transferring, directly or indirectly, by
are not military objectives, or making non- occupying power of parts of its own
defended localities or demilitarized zones civilian population into the territory it
the object of attack; occupies, or the deportation or transfer of
h. Killing or wounding a person in the all or parts of the population of the
knowledge that he/she is hors de combat, occupied territory within or outside this
including a combatant who, having laid territory;
down his/her arms no longer having r. Committing outrages upon personal
means of defense, has surrendered at dignity, in particular, humiliating and
discretion; degrading treatment;
i. Making improper use of a flag of truce, of s. Committing rape, sexual slavery, enforced
the flag or the military insignia and prostitution, forced pregnancy, enforced
uniform of the enemy or of the United sterilization, or any other form of sexual
Nations, as well as of the distinctive violence;
emblems of the Geneva Conventions or t. Utilizing the presence of a civilian or other
other protective signs under the protected person to render certain points,
International Humanitarian Law, resulting areas or military forces immune from
in death, serious personal injury or military operations;
capture; u. Intentionally using starvation of civilians
j. Intentionally directing attacks against as a method of warfare by depriving them
buildings dedicated to religion, education, of objects indispensable to their survival,
art, science, or charitable purposes, including willfully impending relief
historic monuments, hospitals and places supplies;
where the sick and wounded are collected, v. In an international armed conflict,
provided that they are not military compelling the nationals of the hostile
objectives. party to take part in the operations of war
k. Subjecting persons who are in the power directed against their own country, even if
of an adverse party to physical mutilation they were in the belligerents service
or to medical or scientific experiments of before the commencement of the war;
any kind, or to removal of tissue or organs w. In an international armed conflict,
for transplantation, which are neither declaring abolished, suspended or
justified by the medical, dental or hospital inadmissible in a court of law the rights
treatment of the person concerned not and actions of the nationals of the hostile
carried out in his/her interest, and which party;
cause death to or seriously endanger the x. Committing any of the following acts:
health of such person or persons; i. Conscripting, enlisting or recruiting
l. Killing wounding or capturing an children under the age of 15 years into
adversary by resort to perfidy the national armed forces;
ii. Conscripting, enlisting, or recruiting
children under the age of 18 years into

an armed force or group other than 7. Rape, sexual slavery, enforced prostitution,
the national armed forces; and forced pregnancy, enforced sterilization or any
iii. Using children under the age of 18 other form of sexual violence of comparable
years to participate actively in gravity.
hostilities;
y. Employing means of warfare which are NOTE: Forced pregnancy means the unlawful
prohibited under international law, such confinement of a woman to be forcibly made
as: pregnant, with the intent of affecting the ethnic
i. Poison or poisoned weapons composition of any population or carrying out
ii. Asphyxiating, poisonous or other other grave violations of international law.
gases, and all analogous liquids,
materials or devices; 8. Persecution against any identifiable group or
iii. Bullets which expand or flatten easily collectivity on political, racial, national, ethnic,
in the human body, such as bullets cultural, religious, gender, sexual orientation
with hard envelopes which do not other grounds that are universally recognized
entirely cover the core or are pierced as impermissible under international law
with incisions
iv. Weapons, projectiles and material and NOTE: Persecution means the intentional and
methods of warfare which are of the severe deprivation of fundamental rights
nature to cause superfluous injury or contrary to international law by reason of
unnecessary suffering or which are identity of the group or collectively.
inherently indiscriminate in violation
of the international law of armed 9. Enforced or involuntary disappearance of
conflict (RA 9851). persons the arrest detention or abduction of
persons by, or with the authorization, support,
Other crimes against humanity aside from or acquiescence of, a State or a political
war crimes and genocide under RA 9851 organization followed by a refusal to
acknowledge that deprivation of freedom or to
Any of the following acts when committed as part give information on the fate or whereabouts of
of a widespread or systematic attack directed those persons, with the intention of removing
against any civilian population, with knowledge of them from the protection of the law for a
the attack: prolonged period of time.
1. Willful killing 10. Apartheid Inhumane acts committed in the
2. Extermination the intentional infliction of context of an institutionalized regime of
conditions of life, inter alia, the deprivation of systematic oppression and domination by one
access to food and medicine, calculated to racial group/s and committed with the
bring about the destruction of a part of a intention of maintaining that regime.
population. 11. Other inhumane acts of similar character
3. Enslavement the exercise of any or all of the intentionally causing great suffering, or serious
powers attaching to the right of ownership injury to body or to mental or physical health
over a person and includes the exercise of such (RA 9851).
power in the course of trafficking in persons, in
particular women and children. CATEGORIES OF ARMED CONFLICTS
4. Arbitrary deportation or forcible transfer of
population forced displacement of the Kinds/types of conflict as contemplated in RA
persons concerned by expulsion or other 9851
coercive acts from the area in which they are
lawfully present, without grounds permitted 1. International Armed Conflict between two or
under domestic or international law. more States including belligerent occupation.
5. Imprisonment or other severe deprivation of 2. Non-International Armed Conflict between
physical liberty in violation of fundamental governmental authorities and organized
rules of international law. armed groups or between such groups within a
6. Torture the intentional infliction of severe State.
pain or suffering, whether physical, mental, or
psychological, upon a person in the custody or NOTE: It does not cover internal disturbances
under the control of the accused; except that or tensions such as riots, isolated and sporadic
torture shall not include pain or suffering acts of violence or other acts of a similar
arising only from, inherent in or incidental to, nature (RA 9851).
lawful sanctions.

2015GOLDEN NOTES
3. War of National Liberation an armed struggle Protected persons in an armed conflict
waged by a people through its liberation
movement against the established government 1. A person wounded, sick or shipwrecked,
to reach self-determination. whether civilian or military;
2. A prisoner of war or any person deprived of
It is also used to denote conflicts in which liberty for reasons related to an armed conflict
peoples are fighting against colonial 3. A civilian or any person not taking a direct part
domination and alien occupation and against or having ceased to take part in the hostilities
racist regimes in the exercise of their right of in the power of the adverse party;
self-determination, as enshrined in the U.N. 4. A person who, before the beginning of
Charter and the Declaration of Principles of hostilities, was considered a stateless person
International Law (Protocol I, Art. 1(4)). or refugee under the relevant international
instrument accepted by the parties to the
INTERNATIONAL ARMED CONFLICTS conflict concerned or under the national
legislation of the state of refuge or state of
Armed conflict under IHL and RA 9851 residence;
5. A member of the medical personnel assigned
1. All cases of declared war or any other armed exclusively to medical purposes or to the
conflict which may arise between two or more administration of medical units or to the
of the Highest contracting parties, even if the operation of an administration of medical
State of war is not recognized by one of them transports; or
(Geneva Convention of 1949, Art. 2). It also 6. A member of the religious personnel who is
applies to armed conflict between the exclusively engaged in the work of their
government and a rebel or insurgent ministry and attached to the armed forces of a
movement (Geneva Convention of 1949, Art. 3). party to the conflict, its medical units or
2. Under RA 9851, it is any use of force or armed medical transports or non-denominational,
violence between States or a protracted armed non-combatant military personnel carrying out
violence between governmental authorities functions similar to religious personnel.
and organized groups or between such groups
within a State provided that it gives rise or may NOTE: In such situations, the Geneva Conventions
give rise to a situation to which the Geneva and Additional Protocol I, which calls for the
Conventions of 12 August 1949 including their protection of wounded and sick soldiers, medical
common Art. 3, apply. personnel, facilities and equipment, wounded and
sick civilian support personnel accompanying the
Instances not covered by an armed conflict armed forces, military chaplains and civilians who
spontaneously take up arms to repel an invasion,
It does not include internal disturbances or apply.
tensions such as:
1. Riots INTERNAL OR
2. Isolated and sporadic acts of violence NON-INTERNATIONAL ARMED CONFLICT
3. Other acts of a similar nature
Inapplicability of IHL in internal disturbance
Hors de combat
Internal disturbances and other situations of
Any person who: internal violence are governed by the provisions of
1. Is in the power of an adverse party human rights law and such measures of domestic
2. Has clearly expressed an intention to legislation as may be invoked. IHL does not apply
surrender to situations of violence not amounting in intensity
3. Has been rendered unconscious or otherwise to an armed conflict.
incapacitated by wounds or sickness and
therefore is incapable of defending himself (RA Applicability of IHL in non-international armed
9851) conflicts
NOTE: In these cases the person abstains from any IHL is intended for the armed forces, whether
hostile act and does not attempt to escape. Under regular or not, taking part in the conflict, and
these circumstances, the said person shall not be protects every individual or category of individuals
made object of attack. Only combatants can be not or no longer actively involved in the hostilities.
persons hors de combat. E.g.: wounded or sick fighters; people deprived of

their freedom as a result of the conflict; civilian 3. Racist regimes when the peoples oppressed by
population; medical and religious personnel. these regimes are fighting for self-
determination.
Applicable rules in non-international armed
conflict NOTE: The wars of national liberation are
restrictive in the sense that they only fall under the
1. Persons taking no active part in the hostilities, above-cited situations.
including armed forces who have laid down
their arms and those placed hors de combat be Effect of the Protocol
treated humanely, without any adverse
distinction founded on race, color, religion or Armed conflicts that fall under the categories will
faith, sex, birth or wealth, or any other similar now be regarded as international armed conflicts
criteria. To these end, the following acts are and thus fall under the International Humanitarian
and shall remain prohibited at any time and Law.
any place whatsoever with respect to the
abovementioned persons: TREATMENT OF CIVILIANS
a. Violence to life and person, in particular
murder of all kinds, mutilation, cruel Martens clause or Principle of Humanity
treatment and torture;
b. Taking of hostages; In cases not covered by other international
c. Outrages against personal dignity, in agreements, civilians and combatants remain
particular humiliating and degrading under the protection and authority of the
treatment; principles of International Law derived from
d. The passing of sentences and the carrying established custom, from the Principles of
out of executions without previous Humanity and from the dictates of public
judgment pronounced by a regularly conscience.
constituted court, affording all the judicial
guarantees which are recognized as The extensive codification of IHL and the extent of
indispensable by civilized peoples. the accession to the resultant treaties, as well as
2. The wounded and sick shall be collected and the fact that the denunciation clauses that existed
cared for. in the codification instruments have never been
used, have provided the international community
NOTE: An impartial humanitarian body, such as the with a corpus of treaty rules the great majority of
International Committee of the Red Cross, may which had already become customary and which
offer its services to the parties to the conflict. reflected the most universally recognized
humanitarian principles. These rules indicate the
WAR OF NATIONAL LIBERATION normal conduct and behavior expected of States.
Wars of national liberation PRISONERS OF WAR
Armed conflicts in which people are fighting Prisoners of war

against colonial domination and alien occupation
and against racist regimes in the exercise of their Those lawful combatants who have fallen into the
right to self-determination (Protocol I, Art. power of the enemy.
1(4)).These are sometimes called insurgencies,
rebellions or wars of independence. Rights and privileges of prisoners of war
Basis 1. To be treated humanely

2. Not to be subject to torture
Protocol Additional to the Geneva Conventions of 3. To be allowed to communicate with their
12 August 1949 and relating to the Protection of families
Victims of International Armed Conflicts (Protocol I 4. To receive food, clothing, religious articles, and
[8 June 1977]). medicine
5. To bare minimum of information
Categories of wars of national liberation 6. To keep personal belongings
7. To proper burial
1. Colonial domination; 8. To be grouped according to nationality
2. Alien occupation; and 9. To the establishment of an informed bureau

2015GOLDEN NOTES
10. To repatriation for sick and wounded (1949
Geneva Convention) NOTE: Military Scouts are not spies.
Members of militias or volunteer groups as Spies are not entitled to prisoner-of-war status
prisoners-of-war when captured by the enemy. Any member of the
armed forces of aparty to the conflict who falls into
Members of militias or volunteer groups are the power of an adverse party while engaging in
entitled to prisoner-of-war status when captured espionage shall not have the right to the status of
by the enemy, provided that: prisoner of war and may be treated as a spy.
1. They form part of such armed forces of the
state; or However, the following acts of gathering or
2. They fulfill the following conditions: attempting to gather information shall not be
a. They are being commanded by a person considered as acts of espionage:
responsible as superior; 1. When made by a member of the armed forces
b. They have a fixed distinctive sign who is in uniform;
recognizable at a distance; 2. When made by a member of the armed forces
c. They carry arms openly; and who is a resident of the territory occupied by
d. They conduct their operations in an adverse party who does so but not through
accordance with the laws and customs of an act of false pretenses or in a deliberately
war. clandestine manner.
Captured guerilla as prisoner of war LAW OF NEUTRALITY
A captured guerilla or other members of organized Neutrality

resistance movements may demand treatment
afforded to a prisoner of war under the 1949 It is non-participation, directly or indirectly, in a
Geneva Convention, provided that: war between contending belligerents. This exists
1. They are being commanded by a person only during war time and is governed by the law of
responsible as superior; nations.
2. They have a fixed distinctive sign recognizable
at a distance; NOTE: Examples of these states are Switzerland,
3. They carry arms openly; and Sweden, The Vatican City, and Costa Rica.
4. They conduct their operations in accordance
with the laws and customs of war. Non-alignment (Neutralism)
NOTE: Persons such as civilian members of This refers to peacetime foreign policies of nations
military aircraft crews, and war correspondents, desiring to remain detached from conflicting
shall be so entitled to prisoner-of-war status when interests of other nations or power groups.
they fall under the hands of the enemy.
Neutralist policy
Status of journalists who are engaged in
dangerous professional missions in areas of It is the policy of the state to remain neutral in
armed conflicts future wars.
They shall be treated as civilians, provided that Neutrality v. Non-alignment

they take no action adversely affecting their status
as civilians, and their prisoners-of-war status to the BASIS NEUTRALITY NON-
armed forces when they fall to the enemy hands. ALIGNMENT
Presupposes Exists during
Treatment of spies when captured As to the existence peace time
applicablity of war or
As spy is a soldier employing false pretenses or conflict
acts through clandestine means to gather Avoids Rejects
information from the enemy. involvement in imperialism
a war and
A soldier not wearing uniform during hostilities Purpose
colonialism by
runs the risk of being treated as a spy and not the world
entitled to prisoner of war status. When caught, powers
they are not to be regarded as prisoners of war.

Pre- Evaluates the from international commerce and communications

determined world political with other States.
As to nature position events based
on case-to-case Elements of a valid blockade
merits
1. Binding and duly communicated to neutral
A State considered as a neutralized State states;
2. Effective and maintained by adequate sources;
When its independence and integrity are 3. Established by a competent authority of
guaranteed by an international convention on the belligerent government;
condition that such State obligates itself to never 4. Limited only to the territory of the enemy; and
take up arms against any other State, except for 5. Impartially applied to all states.
self-defense, or enter into such international
obligations as would indirectly involve a war. Contraband
NOTE: A State seeks neutralization where it is It refers to goods which, although neutral property,
weak and does not wish to take active part in may be seized by a belligerent because they are
international politics. The power that guarantees useful for war and are bound for a hostile
its neutralization may be motivated either by destination.
balance of power considerations or by desire to
make the State a buffer between the territories of Kinds of Contraband
the great powers.
1. Absolute those which are useful for war
Rights and duties of a neutral State under all circumstances (example: guns and
ammunitions);
1. Duty of abstention Abstain from taking part 2. Conditional those which have both civilian
in the hostilities and from giving assistance to and military utility (example: food and
either belligerent clothing); or
2. Duty of prevention Prevent its territory and 3. Under the free list those which are exempt
other resources from being used in the conduct from the law on contraband for humanitarian
of hostilities reasons (example: medicines)
3. Duty of acquiescence Acquiesce in certain
restrictions and limitations the belligerents Doctrine of Continuous Voyage or Continuous
may find necessary to impose Transport
4. Right of diplomatic communication To
continue diplomatic relations with other Goods immediately reloaded at an intermediate
neutral states and with the belligerents port on the same vessel, or reloaded on another
vessel or other forms of transportation may also be
Obligations of belligerents seized on the basis of doctrine of ultimate
consumption.
1. Respect the status of the neutral State;
2. Avoid any act that will directly or indirectly Doctrine of Ultimate Consumption
involve it in their conflict and to submit to any
lawful measure it may take to maintain or Goods intended for civilian use which may
protect its neutrality. ultimately find their way to and be consumed by
belligerent forces may be seized on the way.
Some restraints on neutral States
Doctrine of Infection
1. Blockade
2. Contraband of war Innocent goods shipped with contraband may also
3. Free ships make free goods be seized.
Blockade Doctrine of Ultimate Destination
It is a hostile operation by means of which vessels The liability of the contraband from being captured
and aircraft of one belligerent prevent all other is determined not by their ostensible but by their
vessels, including those of neutral States, from real destination.
entering or leaving the ports or coasts of the other
belligerent, the purpose being to shut off the place

2015GOLDEN NOTES
Doctrine of Free Ships Make Free Goods Mare Liberum Principle or Free Sea or Freedom
of the Sea
A ships nationality determines the status of its
cargo. Thus, enemy goods on a neutral ship, It means international waters are free to all nations
excepting contraband, would not be subject to and belongs to none of them.
capture on the high seas.
BASELINES
Visit and search
Baseline
Belligerent warships and aircraft have the right to
visit and search neutral merchant vessels on the It is a line from which the breadth of the territorial
high seas to determine whether they are in any sea, the contiguous zone and the exclusive
way connected with the hostilities. economic zone is measured in order to determine
the maritime boundary of the coastal State.
Unneutral service
It consists of acts, of a more hostile character than

carriage of contraband or breach of blockade,
which are undertaken by merchant vessels of a
neutral State in aid of any of the belligerents.
Right of angary
The right of a belligerent state to seize, use or

destroy, in case of urgent necessity for purposes of
offenses or defense, neutral property found in
enemy territory, or on the high seas, upon payment
of just compensation.
Requisites for the exercise of right of angary
1. That the property is in the territory under the

control or jurisdiction of the belligerent;
2. That there is urgent necessity for the taking;
and
3. That just compensation is paid to the owner.
Normal Baseline
Termination of neutrality
It is the low-water line along the coast as marked
Neutrality is terminated when the neutral State on large-scale charts officially recognized by the
itself joins the war or upon the conclusion of peace. coastal state (UNCLOS, Art. 5).
LAW OF THE SEA Formation of Baseline
International Law of the Sea (ILS) 1. Mouths of Rivers If a river flows directly into
the sea, the baseline shall be a straight line
It is a body of treaty rules and customary norms across the mouth of the river between points
governing the uses of the sea, the exploitation of its on the low-water line of its banks (UNCLOS,
resources, and the exercise of jurisdiction over Art. 9).
maritime regimes. 2. Bays Where the distance between the low-
water marks of the natural entrance points:
United Nations Convention on the Law of the a. Does not exceed 24 nautical miles a
Sea (UNCLOS) closing line may be drawn between these
two low-water marks, and the waters
A treaty that defines the rights and obligations of enclosed thereby shall be considered as
nations in their use of the worlds oceans, internal waters (UNCLOS, Art. 10 [4])
establishing rules for business, the environment b. Exceeds 24 nautical miles a straight
and the management of marine natural resources. baseline of 24 nautical miles shall be

drawn within the bay in such a manner as STRAIGHT ARCHIPELAGIC BASELINES

to enclose the maximum area of water that
is possible with a line of that length Straight archipelagic baselines vis--vis
(UNCLOS, Art. 10 [5]). archipelagic state
NOTE: This relates only to bays the coasts of which An archipelagic State may draw straight
belong to a single State and does not apply to archipelagic baselines by joining the outermost
historic bays (UNCLOS, Art. 10 (1)). points of the outermost islands and drying reefs of
the archipelago provided that within such
Bay baselines are included the main islands and an area
in which the ration of the water to the area of the
It is a well-marked indentation whose penetration land, including atolls, is between 1 to 1 and 9 to 1
is in such proportion to the width of its mouth as to (UNCLOS, Art. 47).
contain land-locked waters and constitute more
than a mere curvature of the coast (UNCLOS, Art. 10 Guidelines in drawing archipelagic baselines
(2)).
1. The length of such baselines shall not exceed
NOTE: The indentation shall not be regarded as a 100 nautical miles, except that up to 3 per cent
bay unless its area is as large as, or larger than, that of the total number of baselines enclosing any
of the semi-circle whose diameter is a line drawn archipelago may exceed that length, up to a
across the mouth of that indentation (Ibid). maximum length of 125 nautical miles
(UNCLOS, Art. 47 [2]).
ARCHIPELAGIC STATES 2. The drawing of such baselines shall not depart
to any appreciable extent from the general
Archipelago configuration of the archipelago (UNCLOS, Art.
47[3]).
It means a group of islands, including parts of 3. Such baselines shall not be drawn to and from
islands, interconnecting waters and other natural low tide elevations (UNCLOS, Art. 47[4]).
features which are so closely interrelated that such
islands, waters and other natural features form an NOTE: Unless lighthouses or similar
intrinsic geographical, economic and political installations which are permanently above sea
entity, or which historically have been regarded as level have been built on them or where a low-
such (UNCLOS, Art. 46). tide elevation is situated wholly or partly at
distances not exceeding the breadth of the
Archipelagic State territorial sea from the nearest island (Ibid).
A state constituted wholly by one or more 4. It shall not be applied in such a manner as to
archipelagos and may include other islands cut off from the high seas or the exclusive
(UNCLOS, Art. 46). economic zone the territorial sea of another
State (UNCLOS, Art. 47[5]).
Archipelagic Doctrine 5. If a part of the archipelagic water of an
archipelagic State lies between two parts of an
It emphasizes the unity of land and waters by immediately adjacent neighboring State,
defining an archipelago either as a group of islands existing rights and all other legitimate
surrounded by waters or a body of water studded interests which the latter State has
with islands. traditionally exercised in such waters and all
rights stipulated by agreement between those
Art. I, Sec. 1 of the 1987 Constitution adopts the States shall continue and be respected
archipelagic doctrine. It provides that the national (UNCLOS, Art. 47[6]).
territory of the Philippines includes the Philippine
archipelago, with all the islands and waters NOTE: The breadth of the territorial sea, the
embraced therein; and the waters around, between contiguous zone, the exclusive economic zone and
and connecting the islands of the archipelago, the continental shelf are measured from the
regardless of their breadth and dimensions form archipelagic baselines drawn in accordance with
part of the internal waters of the Philippines. article 47 (UNCLOS, Art. 48).

2015GOLDEN NOTES
Sovereignty of the archipelagic states Applicability of the right of innocent passage in
internal waters
It extends to the waters enclosed by the
archipelagic baselines (archipelagic waters), GR: There is no Right of Innocent Passage through
regardless of their depth or distance from the the internal water because it only applies to
coast, to the air space over the archipelagic waters, territorial sea and the archipelagic waters.
as well as to their bed and subsoil and the
resources contained therein. XPN: A coastal state may extend its internal waters
by applying the straight baseline method in such a
The sovereignty extends to the archipelagic waters way as to enclose as its internal waters areas which
but is subject to the right of innocent passage are previously part of the territorial sea. It also
which is the same nature as the right of innocent applies to straits used for international navigation
passage in the territorial sea (UNCLOS, Art. 49[1] in converted into internal waters by applying the
relation to Art. 52[1]). straight baselines method. Thus, the right of
innocent passage continues to exist in the
NOTE: The regime of archipelagic sea lanes extended internal waters (UNCLOS, Art. 8[2]).
passage shall not in other respects affect the status
of the archipelagic waters, including the sea lanes, ARCHIPELAGIC WATERS
or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, Archipelagic waters
bed and subsoil and the resources contained
therein (UNCLOS, Art. 49[4]). These are waters enclosed by the archipelagic
baselines, regardless of their depth or distance
INTERNAL WATERS from the coast (UNCLOS, Art. 49[1]).
Internal waters Rights by which archipelagic waters are subject

to:
These are waters of lakes, rivers and bays 1. Rights under existing agreement on the part of
landward of the baseline of the territorial sea. the third states should be respected (UNCLOS,
Waters on the landward side of the baseline of the Art. 51[1]);
territorial sea also form part of the internal waters 2. The traditional fishing rights and other
of the coastal state. However, in the case of legitimate activities of the immediately
archipelagic states, waters landward of the adjacent neighboring States (Ibid);
baseline other than those of rivers, bays, and lakes, 3. Existing submarine cables laid by other States
are archipelagic waters (UNCLOS, Art. 8 [1]). and passing through its waters without
making a windfall as well as the maintenance
Delimitation of internal waters and replacement of such cables upon being
notified of their location and the intention to
Within the archipelagic waters, the archipelagic repair or replace them (UNCLOS, Art. 51[2]).
state may draw closing lines for the delimitation of
internal waters (UNCLOS, Art. 50 in relation with Applicability of the right of innocent passage in
Arts. 9, 10, 11). archipelagic waters
NOTE: A coastal state has sovereignty over its GR: As a rule, ships of all States enjoy the right of
internal waters as if internal waters were part of innocent passage through archipelagic waters
its land territory (UNCLOS, Art. 50). (UNCLOS, Art. 52[1]).
Right of innocent passage (1991 Bar Question) XPN: Right of Innocent Passage may be suspended
in some areas of its archipelagic waters. But such
It means navigation through the territorial sea of a suspension must be:
State for the purpose of traversing the sea without 1. Without discrimination in form or in fact
entering internal waters, or of proceeding to among foreign ships;
internal waters, or making for the high seas from 2. Essential for the protection of its security; and
internal waters, as long as it is not prejudicial to 3. Shall take effect only after having been duly
the peace, good order or security of the coastal published (UNCLOS, Art. 52[2]).
State (UNCLOS, Arts. 18 [1][2], 19[1]).

Q: Does RA 9522 (Philippine Archipelagic III, operate to grant innocent passage rights over
Baseline Law) converting internal waters into the territorial sea or archipelagic waters, subject to
archipelagic waters, violate the Constitution in the treatys limitations and conditions for their
subjecting these waters to the right of innocent exercise. Significantly, the right of innocent passage
and sea lanes passage including overflight? is a customary international law, thus
automatically incorporated in the corpus of
A: Whether referred to as Philippine internal Philippine law. No modern State can validly invoke
waters under Art. I of the Constitution or as its sovereignty to absolutely forbid innocent
archipelagic waters under UNCLOS III (Art. 49 passage that is exercised in accordance with
[1]), the Philippines exercises sovereignty over the customary international law without risking
body of water lying landward of the baselines, retaliatory measures from the international
including the air space over it and the submarine community.
areas underneath. UNCLOS III affirms this:
The fact that for archipelagic States, their
Art. 49. Legal status of archipelagic waters, of archipelagic waters are subject to both the right of
the air space over archipelagic waters and of innocent passage and sea lanes passage does not
their bed and subsoil. place them in lesser footing vis--vis continental
1. The sovereignty of an archipelagic State coastal States which are subject, in their territorial
extends to the waters enclosed by the sea, to the right of innocent passage and the right
archipelagic baselines drawn in accordance of transit passage through international straits. The
with Art. 47, described as archipelagic imposition of these passage rights through
waters, regardless of their depth or distance archipelagic waters under UNCLOS III was a
from the coast. concession by archipelagic States, in exchange for
2. This sovereignty extends to the air space their right to claim all the waters landward of their
over the archipelagic waters, as well as to baselines, regardless of their depth or distance
their bed and subsoil, and the resources from the coast, as archipelagic waters subject to
contained therein. their territorial sovereignty. More importantly, the
xxx recognition of archipelagic States archipelago and
4. The regime of archipelagic sea lanes passage the waters enclosed by their baselines as one
established in this Part shall not in other cohesive entity prevents the treatment of their
respects affect the status of the archipelagic islands as separate islands under UNCLOS III.
waters, including the sea lanes, or the Separate islands generate their own maritime
exercise by the archipelagic State of its zones, placing the waters between islands
sovereignty over such waters and their air separated by more than 24 nautical miles beyond
space, bed and subsoil, and the resources the States territorial sovereignty, subjecting these
contained therein. waters to the rights of other States under UNCLOS
III (Ibid.).
The fact of sovereignty, however, does not preclude
the operation of municipal and international law ARCHIPELAGIC SEA LANES PASSAGE
norms subjecting the territorial sea or archipelagic
waters to necessary, if not marginal, burdens in the Right of archipelagic sea lanes passage
interest of maintaining unimpeded, expeditious
international navigation, consistent with the It is the right of foreign ships and aircraft to have
international law principle of freedom of continuous, expeditious and unobstructed passage
navigation. in sea lanes and air routes through or over the
archipelagic waters and the adjacent territorial sea
Thus, domestically, the political branches of the of the archipelagic state, in transit between one
Philippine government, in the competent discharge part of the high seas or an exclusive economic
of their constitutional powers, may pass legislation zone. All ships and aircraft are entitled to the right
designating routes within the archipelagic waters of archipelagic sea lanes passage (UNCLOS, Art.
to regulate innocent and sea lanes passage (Prof. 53[1] in relation with Art. 53[3]).
Magallona, et al. v. Ermita, et al., G.R. No. 187167,
Aug. 16, 2011). All ships are entitled to the right of archipelagic
sealanes passage. Submarines are not required to
Q: Suppose there is no municipal legislation, surface in the course of its passage unlike the
what will govern innocent passage rights? exercise of right of innocent passage in the
territorial sea (UNCLOS, Art. 20 in relation to Art.
A: In the absence of municipal legislation, 53[3]).
international law norms, now codified in UNCLOS

2015GOLDEN NOTES
The right is the same as Transit Passage. Both connected with baselines and all waters comprised
define the rights of navigation and overflight in the therein are regarded as internal waters.
normal mode solely for the purpose of continuous,
expeditious and unobstructed transit. In both Methods used in defining territorial sea
cases, the archipelagic state cannot suspend
passage (UNCLOS, Arts. 44 and 54). 1. Normal baseline method The territorial sea is
simply drawn from the low-water mark of the
NOTE: The right of archipelagic sea lanes passage coast, to the breadth claimed, following its
may be exercised through the routes normally used sinuousness and curvatures but excluding the
for international navigation (UNCLOS, Art. 53[12]). internal waters in the bays and gulfs (UNCLOS,
Art. 5).
Sea lanes and air routes 2. Straight baseline method Where the coastline
is deeply indented and cut into, or if there is a
It shall traverse the archipelagic waters and the fringe of islands along the coast in its
adjacent territorial sea and shall include all normal immediate vicinity, the method of straight
passage routes used as routes for international baselines joining appropriate points may be
navigation or overflight through or over employed in drawing the baseline from which
archipelagic waters and, within such routes, so far the breadth of the territorial sea is measure
as ships are concerned, all navigational channels, (UNCLOS, Art. 7).
provided that duplication of routes of similar
convenience between the same entry and exit NOTE: The Philippines uses this method in
points shall not be necessary (UNCLOS, Art. 53[4]). drawing baselines.
Designation or substitution of sea lanes Applicability of the right of innocent passage in

the internal waters and territorial sea
The archipelagic State shall refer proposals to the
competent international organization In the territorial sea, a foreign State can claim for
(International Maritime Organization). The IMO its ships the right of innocent passage, whereas in
may adopt only such sea lanes as may be agreed the internal waters of a State no such right exists.
with the archipelagic State, after which the
archipelagic State may designate, prescribe or However, in Saudi Arabia v. Aramco (Arbitration
substitute them (UNCLOS, Art. 53[9]). 1963), the arbitrator said that according to
international law ports of every state must be
TERRITORIAL SEA open to foreign vessels and can only be closed
when vital interests of the state so requires. But
Breadth of the territorial sea according to the Nicaragua v. US case, a coastal
state may regulate access to its ports.
Every State has the right to establish the breadth of
the territorial sea up to a limit not exceeding 12 Instances when the right of innocent passage is
nautical miles, measured from baselines (UNCLOS, considered prejudicial.
Art. 3).
Right of innocent passage is considered prejudicial
Outer limit of the territorial sea if the foreign ship engages in the following
activities:
It is the line every point of which is at a distance 1. Any threat or use of force against the
from the nearest point of the baseline equal to the sovereignty, territorial integrity or political
breadth of the territorial sea (UNCLOS, Art. 4). independence of the coastal State, or in any
other manner in violation of the principles of
Territorial sea v. Internal waters of the international law embodied in the Charter of
Philippines the United Nations;
2. Any exercise or practice with weapons of any
Territorial water is defined by historic right or kind;
treaty limits while internal water is defined by the 3. Any act aimed at collecting information to the
archipelago doctrine. The territorial waters, as prejudice of the defense or security of the
defined in the Convention on the Law of the Sea, coastal State;
has a uniform breadth of 12 miles measured from 4. Any act aimed at collecting information to the
the lower water mark of the coast; while the prejudice of the defense or security of the
outermost points of our archipelago which are coastal State;

5. Any act of propaganda aimed at affecting the documents and observe special precautionary
defense or security of the coastal State; measures established for such ships by
6. The launching, landing or taking on board of international agreements. They may be
any aircraft; required to confine their passage on sea lanes
7. The launching, landing or taking on board of prescribed by the coastal State (UNCLOS, Art.
any military device; 23).
8. The loading or unloading of any commodity, 3. Warships
currency or person contrary to the customs, a. Coastal State may require that it leave the
fiscal, immigration or sanitary laws and territorial sea immediately when it does
regulations of the coastal State; not comply with the laws and regulations
9. Any act of willful and serious pollution of the coastal State and disregards
contrary the Convention; compliance (UNCLOS, Art. 30)
10. Any fishering activities; b. Flag State shall bear international
11. The carrying out of research or survey responsibility for any loss or damage to
activities; the coastal State resulting from non-
12. Any act aimed at interfering with any systems compliance with the laws and regulations
of communication or any other facilities or of the coastal State concerning passage
installations of the coastal State; (UNCLOS, Art. 31).
13. Any other activity not having a direct bearing
on passage (UNCLOS, Art. 19 [2]). NOTE: This will not affect the immunities of
warships and other government ships
Laws and regulations of the coastal State operated for non-commercial purpose
relating to innocent passage (UNCLOS, Art. 32).
The coastal state may adopt laws and regulations Warship

in respect of all or any of the following:
1. Safety of navigation and the regulation of It is a ship belonging to the armed forces of a State
maritime traffic; bearing the external marks distinguishing such
2. Protection of navigational aids and facilities ships of its nationality, under the command of an
and other facilities or installations; officer duly commissioned by the government of
3. Protection of cables and pipelines; the State and whose name appears in the
4. Conservation of the living resources of the sea; appropriate service list or its equivalent, and
5. Prevention of infringement of the fisheries manned by a crew which is under regular armed
laws and regulations of the coastal State; forces discipline (UNCLOS, Art. 29).
6. Preservation of the environment of the coastal
State and the prevention, reduction and NOTE: The right of innocent passage pertains to all
control of pollution thereof; ships, including warships.
7. Marine Scientific research and hydrographic
surveys; Duties of the coastal State with regard to
8. Prevention of infringement of the customs, innocent passage of foreign ships
fiscal, immigration or sanitary laws and
regulations of the coastal State (UNCLOS, Art. The coastal State shall:
21[1]). 1. Not hamper the innocent passage of the
foreign ships through its territorial sea;
NOTE: It shall not however, apply to the design, 2. Not impose requirements on foreign ships
construction, manning or equipment of foreign which have the practical effect of denying or
ships unless they are giving effect to generally impairing the right of innocent passage;
accepted international rules or standards (UNCLOS, 3. Not discriminate in form or in fact against the
Art. 21[2]). ships of any State or against ships carrying
cargoes to, from or on behalf of any State; and
Rules when traversing the territorial sea 4. Give appropriate publicity to any danger to
through the right of innocent passage navigation, of which it has knowledge, within
its territorial sea (UNCLOS, Art. 24).
1. Submarines and other underwater vehicles
They are required to navigate on the surface
and to show their flag (UNCLOS, Art. 20).
2. Foreign nuclear-powered ships and ships
carrying nuclear or other inherently dangerous
or noxious substances They must carry

2015GOLDEN NOTES
Rights of protection of the coastal State 4. Measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic
The coastal State may: substances (UNCLOS, Art. 27[1]).
1. Take the necessary steps in its territorial sea to
prevent passage which is not innocent NOTE: Such does not affect the right of the coastal
(UNCLOS, Art. 25[1]); state to take any steps authorized by its laws for
2. Take the necessary steps to prevent any the purpose of an arrest or investigation on board a
breach of the conditions to which admission of foreign ship passing through the territorial sea
ships to internal waters or such a call is subject after leaving internal waters (UNCLOS, Art. 27[2]).
(UNCLOS, Art. 25[2]);
3. Without discrimination in form or in fact Exercise of civil jurisdiction of the coastal state
among foreign ships, suspend temporarily in
specified areas of its territorial sea the The coastal state may exercise civil jurisdiction,
innocent passage of foreign ships if such subject to the following exceptions:
suspension is essential for the protection of its 1. It should not stop or divert a foreign ship
security, including weapon exercises (UNCLOS, passing through the territorial sea for the
Art. 25[3]). purpose of exercising civil jurisdiction in
relation to a person on board the ship
NOTE: No charge may be levied upon foreign ships (UNCLOS, Art. 28[1])
by reason only of their passage through the 2. It may not levy execution against or arrest the
territorial sea (UNCLOS, Art. 26[1]). ship for the purpose of any civil proceedings,
save only in respect of obligations or liabilities
Charges may be levied only as payment for specific assumed or incurred by the ship itself in the
services rendered to the ship which shall be levied course or for the purpose of its voyage through
without discrimination (UNCLOS, Art. 26[2]). the waters of the coastal State (UNCLOS, Art.
28[2]).
Right of the coastal state to suspend innocent
passage in specified areas NOTE: It is without prejudice to the right of the
coastal State, in accordance with its laws, to
The coastal state may, without discrimination in levy execution against or to arrest, for the
form or in fact among foreign ships, suspend purpose of any civil proceedings, a foreign ship
temporarily in specified areas of its territorial sea lying in the territorial sea, or passing through
the innocent passage of foreign ships if such the territorial sea after leaving internal waters
suspension is essential for the protection of its (UNCLOS, Art. 28[3]).
security, including weapons exercises. Such
suspension shall take effect only after having been CONTIGUOUS ZONE
duly published (UNCLOS, Art. 25(3), Part II
Territorial Sea and Contiguous Zone). Contiguous zone
Exercise of criminal jurisdiction of the coastal It is the zone adjacent to the territorial sea, which
state the coastal State may exercise such control as is
necessary to:
GR: Criminal jurisdiction of the coastal state should 1. Prevent infringement of its customs, fiscal,
not be exercised on board a foreign ship passing immigration, or sanitary laws within its
through the territorial sea to arrest any person or territory or its territorial sea or
to conduct any investigation in connection with 2. Punish such infringement.
any crime committed on board the ship during its
passage. The contiguous zone may not extend more than 24
nautical miles beyond the baseline from which the
XPNs: breadth of the territorial sea is measured
1. Consequence of the crime extend to the coastal 12nautical miles from the territorial sea (UNCLOS,
state; Art. 33).
2. Crime is of a kind to disturb the peace of the
country or the good order of the territorial sea NOTE: The coastal state does not have sovereignty
3. Assistance of local authorities has been over the contiguous zone because the contiguous
requested by the master of the ship or by a zone is a zone of jurisdiction for a particular
diplomatic agent or consular officer of the flag purpose, not of sovereignty.
State; or

The coastal state must make a claim to its only take into subject to a
Contiguous Zone for pertinent rights to exist. account the proposal and
recommendations agreement
Extent of the Contiguous Zone of a competent between
international States
The coastal State may not extend its Contiguous organization. bordering the
Zone beyond the 24 nautical miles from the straits and its
baseline (from which the breadth of the territorial subsequent
sea is measured) (UNCLOS, Art. 33 [2]). adoption by a
competent
Right of Transit passage international
organization.
It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and Thalweg Doctrine
expeditious transit through the straits used for
international navigation, i.e., between two areas of It provides that for boundary rivers, in the absence
the high seas or between two exclusive economic of an agreement between the riparian States, the
zones. boundary line is laid in the middle of the main
navigable channel.
The requirement of continuous and expeditious
transit does not preclude passage through the
strait for the purpose of entering, leaving or EXCLUSIVE ECONOMIC ZONE
returning from a State bordering the strait, subject
to the conditions of entry to that State (UNCLOS, Exclusive economic zone (EEZ)
Art. 38[2]).
It gives the coastal State sovereign rights overall
NOTE: The right of transit passage is not applicable economic resources of the sea, sea-bed and subsoil
if there exists seaward of the island a route in an area extending not more than 200 nautical
through the high seas or through an exclusive miles beyond the baseline from which the
economic zone of similar convenience with respect territorial sea is measured (UNCLOS, Arts. 55 & 57).
to navigational and hydrographical characteristics
(UNCLOS, Art. 38[1]). Rights of the coastal state in the EEZ (2004 and
2005 Bar Question)
Vessels entitled to right of transit passage
1. Sovereign rights
All ships and aircraft enjoy the right of transit a. For the purpose of exploring and
passage. exploiting, conserving and managing the
living and non-living resources in the
Right of innocent passage v. Transit passage super adjacent waters of the sea-bed and
the resources of the sea-bed and subsoil;
INNOCENT TRANSIT b. With respect to the other activities for the
BASIS
PASSAGE PASSAGE economic exploitation and exploration of
Pertains only to Includes right the EEZ, such as production of energy from
As to scope navigation of of overflight water, currents and winds;
ships 2. Jurisdictional rights
Requires No a. With respect to establishment and use of
submarine and requirement artificial islands;
other underwater specially b. As to protection and preservation of the
As to
vehicles to applicable to marine environment; and
submarines
navigate on the submarines c. Over marine scientific research
surface and to 3. Other rights and duties provided for in the Law
show their flag of the Sea Convention (Law of the Sea
As to Can be suspended Cannot be Convention, Art. 56).
suspension suspended
In the designation Designation The coastal state may inspect and arrest ships
As to of sea lanes and of sea lanes crew in its EEZ
designation traffic separation and traffic
of sea lanes schemes, the separation The coastal State may board, and inspect a ship,
coastal State shall schemes is arrest a ship and its crew and institute judicial

2015GOLDEN NOTES
proceedings against them. Arrested vessels and
their crews may be required to post reasonable
bond or any other form of security. However, they
must be promptly released upon posting of bond.
In the absence of agreement to the contrary by the

States concerned, UNCLOS does not allow
imprisonment or any other form of corporal
punishment. However, in cases of arrest and
detention of foreign vessels, it shall promptly notify
the flag state of the action taken.
Primary obligations of coastal states over the

EEZ
1. Proper conservation and management

measures that the living resources of the EEZ
are not subjected to over-exploitation;
2. Promote the objective of optimum utilization Geological continental shelf
of the living resources (UNCLOS, Art. 61[2],
62[1]). It comprises the entire prolongation of the coastal
states land mass and extends up to the outer edge
Contiguous zone v. EEZ (2004 Bar Question) of the continental margin.
The contiguous zone is known as the protective It starts from the baseline from which the
jurisdiction and starts from the 12th nautical mile territorial sea is measured and has its outer limit at
from low water from the baseline, while the the outer edge of the continental margin which
exclusive economic zone ends at the 200th nautical may extend beyond the 200 nautical miles from the
mile from the baseline. baseline, or may fall short of that distance.
In the former, the coastal state may exercise the Continental shelf (Juridical/Legal Continental
control necessary to (1) prevent infringement of its Shelf)
customs, fiscal, immigration, or sanitary laws
within its territory or its territorial sea or (2) It comprises the sea-bed and subsoil of the
punish such infringement; while in the latter, no submarine areas that extend beyond its territorial
state really has the exclusive ownership of it, but sea throughout the natural prolongation of its land
the state which has a valid claim on it according to territory to the outer edge of the continental
the UNCLOS has the right to explore and exploit its margin or to a distance of 200 nautical miles
natural resources. beyond the baselines from which the breadth of the
territorial sea is measured if the edge of the
CONTINENTAL SHELF continental margin does not extend up to that
distance (UNCLOS, Art. 76[1]).
Categories of Continental shelf
NOTE: The rights of the coastal state over the
1. Continental shelf continental shelf do not depend on occupation,
a. Geological continental shelf effective or notional, or on any express
b. Juridical/Legal Continental Shelf proclamation (UNCLOS, Art. 77[3]).
2. Extended Continental Shelf
Q: How are the two shelves unified?
A: The UNCLOS unifies the two shelves into one by

providing that the continental shelf extends to the
breadth of either shelf, whichever is the farthest
(UNCLOS, Art. 76[1][4]).

Continental margin Sovereign rights of a coastal State over the

continental shelf
It is the submerged prolongations of the land mass
of the coastal state, consisting of the continental 1. Right to explore and exploit its natural
shelf proper, the continental slope and the resources (UNCLOS, Art. 77[1]);
continental rise. It does not include the deep ocean
floor with its ocean ridges or the subsoil (UNCLOS, NOTE: This right is exclusive. Should the
Art. 76[3]). coastal State not explore or exploit the natural
resources, no one may undertake these
NOTE: The coastal State shall establish the outer activities without the express consent of the
edge of the continental margin wherever the coastal State (UNCLOS, Art. 77[2]). Natural
margin extends beyond the 200 nautical miles resources include mineral and other non-living
from the baselines. In establishing the Continental resources of the seabed and subsoil together
Margin it shall either use: with living organisms belonging to sedentary
1. A line drawn by reference to points no more species (UNCLOS, Art. 77[4]).
than 60 nautical miles from the foot of the
continental slope; or Rule on payment for exploitation of non-
2. A line drawn by reference to points at which living resources
the thickness of sediments is less than one
percent of the distance to the base of the GR: Exploitation of the non-living resources of
continental slope (UNCLOS, Art. 76[4]). the continental shelf beyond 200 nautical miles
would entail the coastal State to make
Permissible breadth of the continental shelf payments or contributions in kind which shall
be made annually with respect to all
Under the said UN Convention, it extends to a production at site after the first five years of
distance not extending 200 nautical miles from the production and 1% of the value or volume of
baselines. However, if the coastal State succeeds in production at the site at the sixth year. It shall
its application for an extended continental shelf, it increase by 1% for each subsequent year until
may extend to not more than 350 nautical miles the 12th year where it shall remain at 7%.
(UNCLOS, Art. 76[1][5]).
The payments or contributions shall be made
NOTE: Under Presidential Proclamation 370, the through the International Seabed Authority,
continental shelf has no such legal limit. It extends which shall distribute them to States Parties to
outside the area of the territorial sea to where the this Convention, on the basis of equitable
depth of the superjacent waters admits of the sharing criteria, taking into account the
exploitation of such natural resources. In this case, interests and needs of developing States,
exploitation of resources may go beyond the 200 particularly the least developed and the land-
nautical miles. locked among them (UNCLOS, Art. 82[1][2][4]).
EXTENDED CONTINENTAL SHELF XPN: A developing State which is a net

importer of a mineral resource produced from
Extended continental shelf its continental shelf is exempt from making
such payments or contributions in respect of
It is that portion of the continental shelf that lies that mineral resource (UNCLOS, Art. 82[3]).
beyond the 200 nautical miles limit in the
juridical/legal continental Shelf (Ibid). 2. To lay submarine cables and pipelines on the
continental shelf (UNCLOS, Art. 79[1]);
Benham plateau
NOTE: State may make reasonable measures
It is also known as the Benham Rise. The for the prevention, reduction and control of
Philippines lodged its claim on the area with the pollution from pipelines. The laying of cables is
United Nations Commission on the Limits of the limited by the right of the coastal state to take
Continental Shelf on April 8, 2009. The UNCLOS measures in exploring its continental shelf,
approved the claim of the Philippines that the exploiting the natural resources, and the
Benham Plateau is part of Philippine Territory on protection of the marine environment from
April 12, 2012. pollution (UNCLOS, Art. 79).
3. Artificial islands, installations and structures

on the continental shelf (UNCLOS, Art. 80);

2015GOLDEN NOTES
Freedoms on the high seas
NOTE: Exclusive right to construct, to
authorize the construction, operation and use These are the freedom of:
of artificial islands and installations. 1. Navigation
Jurisdiction is also exclusive (UNCLOS, Art. 80). 2. Overflight
3. To lay submarine cables and pipelines
4. Marine scientific research (UNCLOS, Art. 4. To construct artificial islands and other
246[1]) installations permitted under international law
5. Fishing
NOTE: May be conducted only with consent. 6. Scientific research (UNCLOS, Art. 87[1] in
Beyond the 200 nautical mile, the coastal State relation to Art. 90)
cannot withhold consent to allow research on
the ground that the proposed research project NOTE: This is open to all States and shall be
has direct significance to exploration or exercised with due regard for the interests of other
exploitation of natural resources (UNCLOS, Art. States in their exercise of the freedom of the high
246[2][6]). seas (UNCLOS, Art. 87[2]).
5. Right to authorize and regulate drilling on the Flag State

continental shelf for all purposes (UNCLOS, Art.
81) It refers to the State whose nationality the ship
possesses; for it is nationality which gives the right
NOTE: This right is exclusive. to fly a countrys flag. In the high seas, a state has
exclusive jurisdiction over ships sailing under its
Limitation on the rights of coastal state over the flag. It is required however, that there exists a
continental shelf genuine link between the State and the ship
(UNCLOS, Arts. 91[1], 92[2]).
Rights of the coastal State over the continental
shelf do not affect the legal status of the Duty of the flag state
superjacent waters or of the air space above those
waters and such exercise of right must not infringe A flag state has the duty to render assistance in
or result in unjustifiable interference with distress in the sense that it shall require the master
navigation and other rights and freedoms of other of the ship, without serious danger to the ship,
States (UNCLOS, Art. 78[1][2]). crew or passengers, to render assistance to any
person at sea in danger of being lost, or to rescue
Island persons in distress. It shall require the master to
assist the other ship after a collision or its crew and
It is a naturally formed area of land, surrounded by passengers (UNCLOS, Art. 98).
water, which is above water at high tide.
Applicable laws to vessels sailing on the high
NOTE: The continental shelf of an island is seas
recognized. However, rocks which cannot sustain
human habitation or economic life shall have no GR: Vessels sailing on the high seas are subject
continental shelf or EEZ. only to international law and to the laws of the flag
State.
HIGH OR OPEN SEAS
XPN: However, the arrest or boarding of a vessel
High or Open seas sailing in the high seas may be made by a State,
other than the flag-State of such vessel, in the
The waters, which do not constitute the internal following instances:
waters, archipelagic waters, territorial sea and 1. A foreign merchant ship by the coastal State in
exclusive economic zone of a state. They are its internal waters, the territorial sea and the
beyond the jurisdiction and sovereign rights of contiguous zones for any violation of its laws.
states (UNCLOS, Art. 86). 2. A foreign merchant ship for piracy.
3. Any ship engaged in the slave trade.
It is treated as res communes or res nullius, and 4. Any ship engaged in unauthorized
thus, are not part of the territory of a particular broadcasting.
State (UNCLOS, Art. 89). 5. A ship without nationality, or flying a false flag
or refusing to show its flag.

Flag of Convenience State, and may only be continued outside if the

pursuit has not been interrupted
It is a national flag flown by a ship not because the 2. It is continuous and unabated
ship or its crew has an affiliation with the nation, 3. Pursuit conducted by a warship, military
but because the lax controls and modest fees and aircraft, or government ships authorized to
taxes imposed by that nation have attracted the that effect.
owner to register it there (Blacks Law Dictionary).
Arrival Under Stress
Q: A crime was committed on a private vessel
registered in Japan by a Filipino against an It refers to involuntary entrance of a foreign vessel
Englishman while the vessel is anchored in a on another states territory which may be due to
port of State A. Where can he be tried? lack of provisions, unseaworthiness of the vessel,
inclement weather, or other case of force majeure,
A: Under both the English and French rules, the such as pursuit of pirates.
crime will be tried by the local State A, if serious
enough as to compromise the peace of its port; Piracy under the UNCLOS
otherwise by the flag State, Japan, if it involves only
the members of the crew and is of such a petty Piracy consists of any of the following acts:
nature as not to disturb the peace of the local State. 1. Illegal acts of violence or detention, or any act
of depredation, committed for private ends by
NOTE: In the French rule, it recognizes the the crew or the passengers of a private ship or
jurisdiction of the flag state over crimes committed a private aircraft and directed:
on board the vessel except if the crime disturbs the a. On the high seas, against another ship or
peace, order and security of the host country. In aircraft, or against persons or property on
English rule, the host country has jurisdiction over board such ship or aircraft
the crimes committed on board the vessel unless b. Against a ship, aircraft, persons or
they involve the internal management of the vessel. property in a place outside the jurisdiction
of any State
Instances when a State may exercise 2. Act of voluntary participation in the operation
jurisdiction on open seas of a ship or of an aircraft with knowledge of
facts making it a pirate ship or aircraft;
1. Slave trade 3. Act of inciting or of intentionally facilitating an
2. Hot pursuit act described above (UNCLOS, Art. 101).
3. Right of approach
4. Piracy NOTE: If committed by a warship, government ship
or governmental aircraft whose crew mutinied and
Duty of every state in the transportation of taken control of the ship or aircraft, it is
slaves assimilated to acts committed by a private ship or
aircraft (UNCLOS, Art. 102).
Every state shall take effective measures to prevent
and punish the transport of slaves in ships A ship or aircraft retains its nationality
authorized to fly its flag and to prevent the although it has become a pirate (UNCLOS, Art.
unlawful use of the flag for that purpose. Any slave 104).
taking refuge on board any ship, whatever its flag,
shall ipso facto be free (UNCLOS, Art. 99). Warships on the high seas enjoy immunity from
jurisdiction of other states. They enjoy complete
Doctrine of Hot Pursuit immunity. The jurisdiction of their flag state is
exclusive (UNCLOS, Art. 95).
It provides that the pursuit of a vessel maybe
undertaken by the coastal State which has good Q: A Filipino owned construction company with
reason to believe that the ship has violated the principal office in Manila leased an aircraft
laws and regulations of that State. registered in England to ferry construction
workers to the Middle East. While on a flight to
Elements of the doctrine of hot pursuit Saudi Arabia with Filipino crew provided by the
lessee, the aircraft was highjacked by drug
1. The pursuit must be commenced when the traffickers. The hijackers were captured in
ship is within the internal waters, territorial Damascus and sent to the Philippines for trial.
sea or the contiguous zone of the pursuing Do the courts of Manila have jurisdiction over
the case?

2015GOLDEN NOTES
habitually fished in the zone (UNCLOS, Art.
A: Hijacking is actually piracy, as defined in People 70[1]).
v. Lol-lo (G.R. No. 17958, February 27, 1922), as
robbery or forcible depredation in the high seas NOTE: This is without prejudice to arrangements
without lawful authority and done animo furandi agreed upon in sub region or regions where the
and in the spirit and intention of universal hostility. coastal State may grant to land-locked States of the
Piracy is a crime against all mankind. Accordingly, same sub region or region equal or preferential
it may be punished in the competent tribunal in rights for the exploitation of the living resources in
any country where the offender may be found or the EEZ (UNCLOS, Art. 70[6]).
into which he may be carried. The jurisdiction on
piracy unlike all other crimes has no territorial This however shall not apply in case of a coastal
limits. As it is against all, all so may punish it. Nor State whose economy is overwhelmingly
does it matter that the crime was committed within dependent on the exploitation of the living
the jurisdictional 3-mile limit of a foreign State for resources of its EEZ (UNCLOS, Art. 71).
those limits, though neutral to war, are not neutral
to crimes. INTERNATIONAL TRIBUNAL
FOR THE LAW OF THE SEA
LAND-LOCKED STATES AND
GEOGRAPHICALLY DISADVANTAGED STATES International Tribunal for the Law of the Sea
(ITLoS)
Land-locked states
It is an independent judicial body established by
These are states which do not border the seas and the Third United Nations Convention on the Law of
do not have EEZ. the Sea that adjudicates disputes arising out of the
interpretation and application of the Convention. It
Geographically disadvantaged states was established after Ambassador Arvido Pardo
Malta addressed the General Assembly of the
1. Coastal states which can claim no EEZ of their United Nations and called for an effective
own; and international regime over the seabed and ocean
2. Coastal states, including states bordering floor beyond a clearly defined national
closed or semi-closed states, whose jurisdiction. Its seat is in Hamburg, Germany.
geographical situations make them dependent
on the exploitation of the living resources of Jurisdiction of the Tribunal
the EEZ of other coastal states in the region
(UNCLOS, Art. 70[2]). Its jurisdiction comprises all disputes and all
applications submitted to it and all matters
Rights of land-locked states and geographically specifically provided for in any other agreement
disadvantaged states which confers jurisdiction to the Tribunal.
1. Land-locked States shall have the right to Rules with regard membership to the Tribunal
participate, on an equitable basis, the
exploitation of an appropriate part of the 1. No two members of the Tribunal may be
surplus of the living resources of the exclusive nationals of the same State (UNCLOS, Annex VI,
economic zones of coastal States of the same Statute of ITLoS, Art. 3[1]).
sub region or region, taking into account the
relevant economic and geographical NOTE: The person shall be deemed to be a
circumstances of all States concerned national of the one in which he ordinarily
(UNCLOS, Art. 69[1]). exercises civil and political rights (Ibid).
2. Developed land-locked States shall be entitled
to participate in the exploitation of living 2. There should be no fewer than three members
resources only in the exclusive economic zones from each geographical group to be
of developed coastal States of the same sub established by the UN General Assembly
region or region having regard to the extent to (UNCLOS, Annex VI, Statute of ITLoS, Art. 3[2]).
which the coastal State, in giving access to 3. No member of the Tribunal may exercise any
other States to the living resources of its political or administrative function, or
exclusive economic zone, has taken into associate actively with or be financially
account the need to minimize detrimental interested in any of the operations of any
effects on fishing communities and economic enterprise concerned with the exploration for
dislocation in States whose nationals have or exploitation of the resources of the sea or

the seabed or other commercial use of the sea 5. Disputes between the Authority and a State
or the seabed (UNCLOS, Annex VI, Statute of Party, a state enterprise or a natural or
ITLoS, Art. 7[1]). juridical person sponsored by a State Party
4. No member of the Tribunal may act as agent, 6. Any other disputes for which the jurisdiction of
counsel or advocate in any case (UNCLOS, the Chamber is specifically provided for in the
Annex VI, Statute of ITLoS, Art. 7[2]). Convention.
5. No member of the Tribunal may participate in
the decision of any case in which he has Alternative means for the settlement of
previously taken part as agent, counsel or disputes established by the Convention
advocate for one of the parties, or as a member
of a national or international court or tribunal, Aside from the ITLOS, it also established the
or in any other capacity (UNCLOS, Annex VI, International Court of Justice, an arbitral tribunal
Statute of ITLoS, Art. 8[1]). constituted in accordance with Annex VII to the
6. If for some special reason a member of the Convention and a special arbitral tribunal
Tribunal should not sit in a particular case: constituted in accordance with Annex VIII of the
a. Member should inform the President of Convention.
the Tribunal (UNCLOS, Annex VI, Statute of
ITLoS, Art. 8[2]); or MADRID PROTOCOL AND THE PARIS
b. President should give the member notice CONVENTION FOR THE PROTECTION OF
accordingly (UNCLOS, Annex VI, Statute of INDUSTRIAL PROPERTY
ITLoS, Art. 8[3]).
Madrid protocol
NOTE: Any doubt shall be resolved by decision of
the majority of other members of the Tribunal It is the Protocol relating to the Madrid Agreement
present (UNCLOS Annex VII, Arbitration, Art. 7, 8). which governs the system of international
registration of marks. The system makes it possible
Members enjoy diplomatic privileges and to protect a mark in a large number of countries by
immunities (UNCLOS Annex VII, Arbitration, Art. obtaining an international registration which has
10). effect in each of the Contracting Parties that has
been designated.
Jurisdiction of the Seabed Dispute Chamber
Process for securing protection of marks
The categories of its jurisdiction are the following: through international registration
1. Disputes between State Parties concerning the
interpretation or application of treaty or NOTE: Any reference to an office shall be
convention may, in accordance with such construed as a reference to the office that is in
agreement, be submitted to the Tribunal. charge, on behalf of a Contracting Party, of the
2. Disputes between a State Party and the registration of marks, and any reference to marks
Authority concerning: shall be construed to pertain to trademarks and
a. Acts or omissions of the Authority or of a service marks.
State Party alleged to be violations of the
convention; 1. Where an application for the registration of a
b. Acts of the Authority alleged to be in mark has been filed with the Office of a
excess of jurisdiction of a misuse of power Contracting Party or registered in the register
3. Disputes between parties to a contract, being of the of the Office of a Contracting party, the
State Parties, the Authority or the Enterprise, person in whose name that application (basic
state enterprises and natural or juridical application) or that registration (basic
persons concerning: registration) stands may, subject to the
a. Interpretation or application of a relevant provisions of the Madrid Protocol, secure
contract or a plan of work; protection for his mark in the territory of the
b. Acts or omissions of a party to the contract Contracting Parties, by obtaining the
relating to activities in the Area and registration of that mark in the register of the
directed to the other party or directly International Bureau of the World Intellectual
affecting its legitimate interest. Property Organization, provided that: where
4. Disputes between the Authority and a the basic application has been filed with the
prospective contractor who has been Office of a Contracting State or Organization or
sponsored by a State where the basic registration has been made by
such an Office, the person in whose name that
application or registration stands is a national

2015GOLDEN NOTES
of that Contracting State or Organization, or is Period of validity of international registration
domiciled, or has a real and effective industrial under the Madrid Protocol
or commercial establishment, in the said
Contracting State. 10 years, with possibility of renewal under the
2. The application for international registration conditions set forth in Art. 7 thereof (Madrid
(international application) shall be filed with Protocol, Art. 6).
the International Bureau through the
intermediary of the Office with which the basic Requirements for renewal of international
application was filed or by which the basic registration
registration was made, as the case may be.
1. Renewal for a period of only 10 years from the
Territory of a Contracting Party expiry of the preceding period
2. Payment of the basic fee
Where the Contracting Party is a State, the 3. It must not bring about any change in the
territory of that State, and where the Contracting international registration in its latest form
Party is an intergovernmental organization, the (Madrid Protocol, Art. 7).
territory in which the constituting treaty of that
intergovernmental organization applies (Madrid NOTE: The International Bureau shall, by sending
Protocol, Art. 2). an unofficial notice, remind the holder of the
international registration and its exact date of
The following may use the system: expiry six months before the expiry of the term of
protection.
1. A natural person; or
2. Legal entity having a connection, through Moreover, a period of grace of 6 months shall be
establishment, domicile or nationality, with a allowed for such renewal (Madrid Protocol, Art. 7,
Contracting Party to the Madrid Protocol or pars. 3 & 4).
Agreement (Madrid Protocol, Art. 2).
Paris Convention on protection of industrial
Effects on an international registration property
The effects of an international registration in each It applies to industrial properties in the widest
designated Contracting Party are, as from the date sense. It includes patents, marks, industrial
of the international registration, the same as if the designs, utility models, trade names, geographical
mark had been deposited directly with the Office of indications and the repression of unfair
that Contracting Party (Madrid Protocol, Art. 4). competition.
Advantages of the Madrid system Industrial property
Instead of filing many national applications in all Shall be understood in the broadest sense, and
countries of interest, in several different languages, shall apply not only to industry or commerce
in accordance with different national procedural proper, but likewise to agricultural and extractive
rules and regulations and paying several different industries and to all manufactured or natural
fees, an international application may be obtained products, for example, wines, grain, tobacco leaf,
by simply filing one application with the fruit, cattle, minerals, mineral waters, beer, flowers
International Bureau (through the Office of the and flour, (Paris Convention, Art. 1).
home country), in one language (either English or
French) and paying only one set of fees. INTERNATIONAL ENVIRONMENTAL LAW
Also, renewal entails simple payment of the It is the branch of public international law
necessary fees, every 10 years, to the International comprising "those substantive, procedural and
Bureau. institutional rules which have as their primary
objective the protection of the environment," the
Likewise, if the international organization is term environment being understood as
assigned to a third party or any other change, such encompassing "both the features and the products
as a change in name and/or address, has occurred, of the natural world and those of human
this may be recorded with effect for all designated civilization.
Contracting Parties by means of a single procedural
step.

PRINCIPLE 21 OF THE STOCKHOLM In order to protect the environment, the

DECLARATION precautionary approach shall be widely applied by
States according to their capabilities. Where there
Stockholm Declaration are threats of serious damage, lack of full scientific
certainly shall not be used as a reason for
The Stockholm Declaration, or the Declaration of postponing cost-effective measures to prevent
the United Nations Conference on the Human environmental degradation.
Environment, was adopted on June 16, 1972 in
Stockholm, Sweden. It contains 26 principles and NOTE: This principle advocates that the potential
109 recommendations regarding the preservation harm should be addressed even with minimal
and enhancement of the right to a healthy predictability at hand. The Precautionary Principle
environment. requires a high degree of prudence on the part of
the stakeholders. Decision makers are not only
Principle 21 of the Stockholm Declaration mandated to account for scientific uncertainty but
can also take positive action, e.g., restrict a product
This declares that States have: or activity even when there is scientific
1. The sovereign right to exploit their own uncertainty.
resources pursuant to their own
environmental policies, and Under Rule 20 of the Rules of Procedure for
2. The responsibility to ensure that activities Environmental Cases, the Precautionary Principle
within their jurisdiction or control do not is adopted as a rule of evidence. The Supreme
cause damage to the environment of other Courts adoption of the Precautionary Principle in
States or of areas beyond the limits of national the newly promulgated Rules of Procedure for
jurisdiction. Environmental Cases affords plaintiffs a better
chance of proving their cases where the risks of
Principle 21 of the Stockholm Declaration is a environmental harm are not easy to prove.
part of customary law
Q: NAPOCOR began constructing steel towers to
The Court recognizes that the environment is daily support overhead high tension cables in
under threat and that the use of nuclear weapons connection with its Sucat-Araneta-Balintawak
could constitute a catastrophe for the environment. Power Transmission Project. Residents of
The court also recognizes that the environment is Dasmarias Village were alarmed by the sight
not an abstraction but represents the living space, of the towering steel towers and scoured the
the quality of life and the very human beings, internet on the possible adverse health effects
including generations unborn. The existence of the of such structures. They got hold of published
general obligation of States to ensure that activities articles and studies linking the incidence of a
within their jurisdiction and control respect the fecund of illnesses to exposure to
environment of other States or of areas beyond electromagnetic fields. The illnesses range
national control is now part of the corpus of from cancer to leukemia.
international law relating to the environment (ICJ
Advisory Opinion on the Legality of the Threat or Use Petitioners filed a complaint for the Issuance of
of Nuclear Weapons, July 8, 1996). a TRO and/or a Writ of Preliminary Injunction
against NAPOCOR. This was granted by the trial
Principle of Common but Differentiated court. The Court of Appeals reversed the order,
Responsibility holding that the proscription on injunctions
against infrastructure projects of the
This principle requires the protection of specified government is clearly mandated by Sec. 1 of PD
environmental resource or area as common 1818. Is the issuance of a Writ of Preliminary
responsibility but takes into account the differing Injunction justified, despite the mandate of PD
circumstances of certain States in the discharge of 1818?
such responsibilities (Framework Convention on
Climate Change, Art. 3[1]). A: Whether there is a violation of petitioners
constitutionally protected right to health is a
Precautionary Principle question of law that invested the trial court with
jurisdiction to issue a TRO and subsequently, a
Principle 15 of the Rio Declaration, commonly preliminary injunction. This question of law divests
known as the Precautionary Principle states: the case from the protective mantle of Presidential
Decree No. 1818.

2015GOLDEN NOTES
There is adequate evidence on record to justify the Sustainable Development
conclusion that the project of NAPOCOR probably
imperils the health and safety of the petitioners so It is a development that meets the needs of the
as to justify the issuance by the trial court of a writ present without compromising the ability of future
of preliminary injunction. The health concerns are generations to meet their own needs.
at the very least, far from imaginary.
Principles that embody sustainable
In hindsight, if, after trial, it turns out that the development
health-related fears that petitioners cleave on to
have adequate confirmation in fact and in law, the 1. Principle of intergenerational equity The need
questioned project of NAPOCOR then suffers from a to preserve natural resources for the benefit of
paucity of purpose, no matter how noble the future generations.
purpose may be. For what use will modernization 2. Principle of sustainable use The aim of
serve if it proves to be a scourge on an individuals exploiting natural resources in a manner which
fundamental right, not just to health and safety, is "sustainable," or "prudent," or "rational," or
but, ostensibly, to life preservation itself, in all of its "wise," or "appropriate."
desired quality (Hernandez v. NAPOCOR, G.R. No. 3. Principle of equitable use or intragenerational
145328, March 23, 2006)? equity The equitable use of natural resources,
which implies that use by one state must take
Polluter Pays Principle into account the needs of other states.
4. Principle of integration The need to ensure
It means that the party responsible for producing that environmental considerations are
the pollutants must bear responsibility for integrated into economic and other
shouldering the costs of the damage done to the developmental plans, programs and projects,
environment. It is expressly stated in Principle 16 and that development needs are taken into
of the Rio Declaration on Environment and account in applying environmental objectives.
Development: National authorities should
endeavor to promote the internalization of Rules for the protection of the environment in
environment costs and the use of economic armed conflict
instruments, taking into account the approach that
the polluter should, in principle, bear the cost of 1. Each State Party undertakes not to engage in
pollution, with due regard to the public interest military or other hostile use of environmental
and without distorting international trade and modification techniques having widespread,
investment (Rio Declaration, Principle 16). long-lasting or severe effects as the means of
destruction, damage or injury to any other
Other principles of International Party State (Convention on the Prohibition of
Environmental Law set forth in the Rio Military or other Hostile Use of Environmental
Declaration Modification Techniques or the Environmental
Modification Convention [ENMOD], Art. 1).
1. States have the sovereign right to exploit their
own resources pursuant to their own NOTE: Environmental Modification
environmental policies, and the responsibility Techniques refers to any technique for the
to ensure that activities within their changing through the deliberate manipulation
jurisdiction or control do not cause damage to of natural processes the dynamics,
the environment of other states or of areas composition or structure of the earth including
beyond the limits of national jurisdiction its biota lithosphere, hydrosphere and
(Principle 2); atmosphere or outer space (ENMOD, Art. II).
2. Right to development must be fulfilled so as to
equitably meet development needs of present 2. Prohibition of the employment of methods or
and future generations (Principle 3); and means of warfare which are intended, or may
3. In order to achieve sustainable development, be expected, to cause widespread, long-term
environmental protection shall constitute an and severe damage to the natural environment
integral part of the development process and (Protocol I Additional to the Geneva Convention
cannot be considered in isolation from it of 1949, Art. 35(3)).
(Principle 4).

Pollution
It means any introduction by man, directly or

indirectly, of substance or energy into the
environment resulting in deleterious effects of such
nature as to endanger human health, harm living
resources, ecosystem, and material property and
impair amenities or interfere with other legitimate
uses of the environment (Magallona, citing ILA
Reports, Vol. 60, 1982).
INTERNATIONAL ECONOMIC LAW
Characteristics of International Economic Law
1. It is part of public international law

2. It is intertwined with municipal law
3. It requires multi-disciplinary thinking
involving as it does not only economics but
also political science, history, anthropology,
geography, etc.
4. Empirical research is very important for
understanding its operation.
Key principles of international trade law
1. Agreed tariff levels The GATT contains

specified tariff levels for each state. Each state
agrees not to raise tariff levels above those
contained in the schedule.
2. The most favored nation principle (MFN) The
principle means that any special treatment
given to a product from one trading partner
must be made available for like products
originating from or destined for other
contracting parties.
3. Principle of National Treatment This
prohibits discrimination between domestic
producers and foreign producers.
4. Principle of Tariffication This principle
prohibits the use of quotas on imports or
exports and the use of licenses on importation
or exportation.
Exceptions to the abovementioned key

principles
Some of the exceptions are general in nature such

as those referring to public morals, public health,
currency protection, products of prison labor,
national treasures of historic, artistic or
archeological value, and protection of exhaustible
natural resource.

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POLITICAL AND

2015 GOLDEN NOTES

ADDRESS: Academics Committee

TEL. NO.: (02) 731-4027

No portion of this material may be copied or reproduced in books, pamphlets,

Printed in the Philippines, June 2015.

CIVIL LAW STUDENT COUNCIL

ATTY. AL CONRAD B. ESPALDON

MA. SALVE AURE M. CARILLO SECRETARY GENERAL

RAFAEL LORENZ SANTOS

POLITICAL LAW COMMITTEE

ATTY. AL CONRAD B. ESPALDON

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.

ATTY. ARTHUR B. CAPILI

ATTY. ELGIN MICHAEL C. PEREZ

JUDGE PHILIP A. AGUINALDO

LENY G. GADANIA, R.G.C.

JUSTICE OSWALDO D. AGCAOILI

JUDGE CHARITO M. SAWALI

ATTY. CARLO L. CRUZ

ATTY. ENRIQUE V. DELA CRUZ

ATTY. RENE B. GOROSPE

ATTY. VICTORIA V. LOANZON

ATTY. RAFAELITO M. GARAYBLAS

ATTY. ANICIA C. MARQUEZ

ATTY. EDWIN R. SANDOVAL

ATTY. MAURICIO C. ULEP

THE RISK OF USE, MISUSE OR

I. The Philippine Constitution .................................................................................................................................. 1

II. General Considerations ........................................................................................................................................... 5

III. Legislative Department ........................................................................................................................................ 25

IV. Executive Department .......................................................................................................................................... 50

V. Judicial Department .............................................................................................................................................. 70

VI. Constitutional Commissions ............................................................................................................................... 79

VII. Bill of Rights.............................................................................................................................................................. 85

VIII. Citizenship ...............................................................................................................................................................163

IX. Law on Public Officers ........................................................................................................................................171

XI. Election Law............................................................................................................................................................217

XII. Local Governments ..............................................................................................................................................250

XIII. National Economy and Patrimony ..................................................................................................295

XIV. Social Justice and Human Rights ...................................................................................................................306

XV. Education, Science, Technology, Arts, Culture and Sports ..................................................................311

XVI. Public International Law .................................................................................................................................312

THE PHILIPPINE CONSTITUTION Flexible Can be changed by ordinary

CONSTITUTION: NOTE: The Philippine Constitution is written,

Political Law Ways to interpret the Constitution

UNIVERSITY OF SANTO TOMAS

Amendment v. Revision If Congress, acting as a ConAss, calls for a

a. By Congress upon a vote of of all its Ratification

UNIVERSITY OF SANTO TOMAS 2

Doctrine of Proper Submission excludes initiative on the amendments of the

Initiative While RA 6735 specially detailed the process in

UNIVERSITY OF SANTO TOMAS

UNIVERSITY OF SANTO TOMAS 4

GENERAL CONSIDERATIONS the bases under lease to the American armed

UNIVERSITY OF SANTO TOMAS

Archipelagic Doctrine 2. Except as provided for in par. 3, the territorial

UNIVERSITY OF SANTO TOMAS 6

UNIVERSITY OF SANTO TOMAS

UNIVERSITY OF SANTO TOMAS 8

State divested itself of its sovereign capacity when

UNIVERSITY OF SANTO TOMAS

facts act of appropriating the needed amount to satisfy