Political Law Up 2012

2012
POLITICAL
Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law
Dean Danilo L. Concepcion Dean, UP College of Law Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law Prof. Ma. Gisella D. Reyes Secretary, UP College of Law Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012 Ramon Carlo F. Marcaida Commissioner Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads Rogelio Benjamin Redoble Moises Ronette Colobong Political Law Subject Heads Graciello Timothy Reyes Layout
UP L AW BAR REVIEWER
LAW
UP LAW BAR OPERATIONS COMMISSION
2012
POLITICAL
BAR OPERATIONS COMMISSION 2012 LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages
EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events
POLITICAL LAW TEAM 2012 Faculty Editor | Prof. Florin T. Hilbay Subject Heads |Rogelio Benjamin Redoble Moises Ronette Colobong Contributors| Alferri Bayalan Cielo Gono Noel Luciano
LAW
POLITICAL
2012 UP Law Bar Reviewer
LAW
Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law. All Rights reserved.
POLITICAL
Constitutional Law 1
A. The Constitution ........................ 11 I. Definition, Nature and Concepts ..... 11 II. Parts ..................................... 12 III. Amendments and Revisions ......... 12 IV. Self-Executing and Non-SelfExecuting Provisions ...................... 16 V. General Provisions..................... 16 B. General Considerations ................ 16 I. National Territory ...................... 16 II. State Immunity ........................ 17 III. Principles and Policies ............... 19 IV. Separation of Powers ................ 20 V. Forms of Government ................. 21 C. Legislative Department ................ 22 I. Who May Exercise Legislative Power 22 II. Houses of Congress .................... 22 III. Legislative Privileges, Inhibitions and Disqualifications .......................... 24 IV. Quorum and Voting Majorities ...... 25 V. Discipline of Members ................ 26 VI. Electoral Tribunals and the Commission on Appointments ........... 26 VII. Powers of Congress .................. 28 D. Executive Department ................. 32 I. Privileges, Inhibitions and Disqualifications .......................... 32 II. Powers .................................. 36 D. Judicial Department .................... 48 I. Concepts ................................. 48 II. Constitutional Safeguards of the Supreme Court ............................ 50 III. Judicial Restraint ..................... 51 IV. Appointments to the Judiciary ..... 51 F. Constitutional Commissions ........... 54 I. Institutional Independence Safeguards .............................................. 54 II. Powers and Functions ................. 54 III. Judicial Review ....................... 57 G. Citizenship ............................... 57 1. Natural-Born Citizens and Public Office ....................................... 58 2. Naturalization and Denaturalization 58 3. Loss of Citizenship ..................... 59 4. Repatriation ............................ 60 H. National Economy & Patrimony ...... 60 1. Regalian Doctrine ...................... 60 2. Nationalist and Citizenship Requirement Provisions .................. 60 3. Exploration, Development and Utilization of Natural Resources ........ 61 4. Franchises, Authority and Certificates for Public Utilities ........................ 62 5. Acquisition, Ownership and Transfer of Public and Private Lands ............. 63 6. Practice of Professions ................ 63 7. Organization and Regulation of Corporations, Private and Public ....... 63 8. Monopolies, Restraint of Trade and Unfair Competition ....................... 63 I. Social Justice & Human Rights ......... 64 1. Concept of Social Justice ............. 64 2. Commission on Human Rights ........ 64 J. Education, Science, Technology, Arts, Culture and Sports .......................... 65 1. Academic Freedom .................... 65
LAW
A. Fundamental Powers of the State.... 67 1. Concept and Application .............. 67 2. Requisites for Valid Exercise ......... 70 3. Similarities and Differences .......... 71 4. Delegation .............................. 72 B. Private Acts & the Bill of Rights ...... 73 1. In General ............................... 73 2. Bases and Purpose ..................... 73 3. Accountability .......................... 74 C. Due Process .............................. 74 1. Relativity of Due Process ............. 75 2. Procedural and Substantive Due Process ..................................... 75 3. Constitutional and Statutory Due Process ..................................... 76 4. Hierarchy of Rights .................... 76 5. Judicial Standards of Review ........ 77 D. Equal Protection......................... 77
POLITICAL
1. Concept ................................. 77 2. Requisites for Valid Classification ... 77 E. Searches and Seizures.................. 79 1. Concept ................................. 79 2. Warrant Requirement ................. 79 3. Warrantless Searches ................. 80 4. Warrantless Arrests.................... 83 5. Administrative Arrests ................ 85 6. Drug, Alcohol and Blood Tests ....... 85 F. Privacy of Communications and Correspondence ............................ 85 1. Private and Public Communications 85 Intrusion, When Allowed ................. 85 2. Writ of Habeas Data ................... 86 1. Concept and Scope .................... 86 2. Content-Based and Content-Neutral Regulations ................................ 87 Content-Neutral Restrictions............ 89 3. Facial Challenges and the Overbreadth Doctrine .................... 90 4. Tests ..................................... 91 5. State Regulation of Different Types of Mass Media ................................. 91 6. Commercial Speech ................... 93 7. Private v. Government Speech ...... 93 8. Hecklers Veto ......................... 93 H. Freedom of Religion .................... 93 1. Non-Establishment Clause ........... 93 2. Free Exercise Clause .................. 94 I. Liberty of Abode and Freedom of Movement .................................... 95 1. Limitations ............................. 95 Right to Travel ............................ 95 2. Return to Ones Country .............. 95 J. Right to Information .................... 95 1. Limitations ............................. 96 2. Publication of Laws and Regulations 96 3. Access to Court Records .............. 96 4. Right to Information Relative to .... 97 K. Right to Association..................... 97 1. Labor Unionism ........................ 98 2. Communist and Similar Organizations .............................................. 98 3. Integrated Bar of the Philippines.... 98 L. Eminent Domain ......................... 98 1. Concept ................................. 98 2. Expansive Concept of Public Use . 99 3. Just Compensation ...................100 4. Abandonment of Intended Use and Right of Repurchase .....................101 5. Miscellaneous Application ...........101
LAW
M. Contracts Clause ...................... 102 1. Application of the Contract Clause 102 2. Contemporary Application of the Contract Clause ..........................102 3. Limitations .............................103 N. Legal Assistance and Free Access to Courts ....................................... 103 O. Rights of Suspects ..................... 103 1. Availability .............................104 2. Requisites ..............................105 3. Waiver ..................................106 P. Rights of the Accused................. 106 1. Criminal Due Process .................107 2. Bail ......................................107 3. Presumption of Innocence ...........109 4. Right to be Heard .....................109 5. Assistance of Counsel ................109 6. Right to be Informed .................109 7. Right to Speedy, Impartial and Public Trial ........................................109 8. Right of Confrontation ...............110 9. Compulsory Process ..................110 10. Trials In Absentia ....................110 Q. Writ of Habeas Corpus ............... 111 R. Writ of Amparo ........................ 112 S. Self-Incrimination Clause ............ 114 1. Scope and Coverage ..................114 2. Application.............................115 3. Immunity Statutes ....................115 T. Involuntary Servitude and Political Prisoners ................................... 115 U. Excessive Fines and Cruel and Inhuman Punishments ................... 116
POLITICAL
W. Double Jeopardy ..................... 117 1. Requisites .............................. 117 2. Motions for Reconsideration and Appeals .................................... 118 3. Dismissal with Consent of Accused. 118 X. Ex Post Facto and Bills of Attainder 118 G. Rights of Public Officers ............. 133 I. In General ..............................133 II. Right to Compensation ..............134 III. Other Rights ..........................134 H. Liabilities of Public Officers......... 135 I. Preventive Suspension and Back Salaries ....................................136 II. Illegal Dismissal, Reinstatement and Back Salaries ..............................137 I. Immunity of Public Officers .......... 137 J. De Facto Officers ...................... 137 I. De Facto Doctrine .....................137 II. De Facto Officer Defined ............138 III. Elements of a De Facto Officership .............................................139 IV. Office created under an unconstitutional statute ................139 V. Legal Effect of Acts of De Facto Officers ....................................139 VII. Right to Compensation of De Facto Officer .....................................140 K. Termination of Official Relation .... 140 I. Expiration of the term or tenure of office ......................................140 II. Reaching the age limit (retirement) .............................................140 III. Death or permanent disability .....140 IV. Resignation ...........................140 V. Acceptance of an incompatible office .............................................141 VI. Abandonment of office..............141 VII. Prescription of right to office .....141 IX. Impeachment .........................141 X. Abolition of office ....................141 XI. Conviction of a crime ...............141 XII. Recall .................................142 L. The Civil Service ....................... 142 I. Scope ....................................142 Civil Service Commissions (CSCs) Jurisdiction ...............................142 II. Appointments to the Civil Service ..142 III. Personnel Actions ....................142 M. Accountability of Public Officers... 143
LAW
Law on Public Officers

A. General Principles .................... 121 I. Concept and Application ............. 121 II. Public Officer ......................... 123 III. Classification of Public Offices and Public Officers ........................... 124 B. Modes of Acquiring Title to Public Office ....................................... 124 I. Classification of Appointments ...... 125 II. Steps in Appointment Process ...... 125 III. Presidential Appointees............. 125 IV. Discretion of Appointing Official .. 126 V. Effectivity of Appointment.......... 127 VI. Effects of a Complete, Final and Irrevocable Appointment ............... 127 D. Eligibility and Qualification Requirements ............................. 127 I. Definition ............................... 127 II. Power to Prescribe Qualifications.. 127 III. Time of Possession of Qualifications ............................................. 128 IV. Eligibility is Presumed .............. 128 V. Qualifications Prescribed By Constitution .............................. 128 VI. Religious Test or Qualification is not Required .................................. 129 VII. Qualification Standards and Requirements under the Civil Service Law ........................................ 129 E. Disabilities and Inhibitions of Public Officers ..................................... 130 F. Powers and Duties of Public Officers ............................................... 132 I. Classification of Powers and Duties 132 II. Source of Powers and Authority .... 132 III. Duties of Public Officers ............ 133
POLITICAL
I. Impeachment .......................... 143 II. Ombudsman ........................... 144 III. Sandiganbayan ....................... 144 IV. Ill-Gotten Wealth .................... 145 N. Term Limits ............................ 146 VIII. Reactivation of Registration ......158 IX. Certified List of Voters ..............159 X. Annulment of Book of Voters .......159 XI. Overseas Absentee Voter ...........159 D. Inclusion and Exclusion Proceedings ............................................... 159 E. Political Parties ........................ 160 I. Party System ........................160 III. Purpose ..............................160 IV. Procedure for Registration .........160 V. Who May Not be Registered ......160 VI. Grounds for refusal and/or cancellation of registration.............160 VII. Parameters in Allocation of Seats for Party-List Representatives .........161 VIII. Effect of Change of Affiliation ...161 IX. Nomination of Party-List Representative ...........................161 F. Candidacy ............................... 162 I. Qualifications of Candidates .........162 II. Filing of Certificates of Candidacy .163 G. Campaign ............................... 165 I. Premature Campaigning ..............165 II. Prohibited Contributions ............167 H. Board of Canvassers .................. 168 I. Composition of Board of Canvassers 168 II. Prohibitions on BOC ..................169 III. Canvass by the BOC ..................169 IV. Certificate of Canvass and Statement of Votes ...................................169 V. Proclamation ..........................169 I. Remedies and Jurisdiction in Election Law .......................................... 170 I. Petition Not to Give Due Course to Certificate of Candidacy ................170 II. Petition to Declare Failure of Elections...................................170 III. Pre-Proclamation Controversy .....171 IV. Election Protest ......................172 V. Quo Warranto .........................173 J. Prosecution of Election Offenses ... 173 I. Jurisdiction over Election Offenses .173
LAW
Administrative Law
A. General Principles .................... 148 I. Definitions .............................. 148 II. Historical Considerations ............ 148 B. Administrative Agencies ............. 148 I. Modes of Creation of Administrative Agencies................................... 148 II. When is an agency administrative? 148 III. Types of Administrative Agencies . 148 C. Powers of Administrative Agencies 148 I. Quasi-Legislative (Rule Making) Power ............................................. 148 III. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers ................. 152 II. Doctrine of Exhaustion of Administrative Remedies ............... 153 III. Doctrine of Finality of Administrative Action ..................................... 154
Election Law
_Toc324721036
A. Suffrage ................................. 156 I. Scope.................................... 156 II. Election Period........................ 156 B. Qualification and Disqualification of Voters ....................................... 156 I. Qualifications .......................... 156 II. Overseas Absentee Voter ............ 157 C. Registration of Voters ................ 157 I. Definition .............................. 157 II. System of Continuing Registration of Voters ..................................... 157 III. Illiterate or disabled voters ........ 158 IV. Election Registration Board ...... 158 V. Change of residence or address .... 158 VI. Challenges to right to register ..... 158 VII. Deactivation of Registration ...... 158
POLITICAL
II. Preferential Disposition of Election Offenses ................................... 173 III. Election Offenses .................... 173 IV. Arrests in Connection with Election Campaign ................................. 175 V. Prescription ........................... 175 VI. Prohibited Acts Under R.A. 9369 .. 175 A. Concepts ................................ 210 1. Obligations Erga Omnes ..............210 2. Jus Cogens .............................210 3. Concept of Aequo Et Bono ...........210 B. International and National Law ..... 210 Relationship between PIL and Municipal Law.........................................210 C. Sources .................................. 211 1. Treaty as Source of Law .............211 2. Customary International Law .......211 3. General Principles of Law ...........213 4. Subsidiary Source: Judicial Decisions .............................................213 5. Subsidiary Source: Publicists ........214 D. Subjects ................................. 214 1. States ...................................214 2. International Organizations .........216 3. Individuals .............................217 E. Diplomatic and Consular Law ....... 217 1. Agents of Diplomatic Intercourse...217 Functions and Duties ....................217 2. Diplomatic Immunities and Privileges .............................................218 3. Consular Relations ....................220 F. Treaties ................................. 221 1. Definition ..............................221 2. Requisites for Validity................222 3. The Treaty-Making Process ..........222 4. Invalid Treaties .......................223 5. Grounds for Termination ............223 G. Nationality and Statelessness ....... 223 1. Nationality .............................223 2. Statelessness ..........................224 Definition of Human Rights .............226 2. International Covenant on Civil and Political Rights (ICCPR)..................226 3. International Covenant on Economic, Social and Cultural Rights (ICESCR) ...227 J. International Humanitarian Law (IHL) and Neutrality ............................. 227 2. Core International Obligations of States in IHL ..............................228
LAW
Local Governments
A. Public Corporations ................... 178 1. Concept ................................ 178 2. Classifications ......................... 178 B. Municipal Corporations .............. 178 1. Elements ............................... 178 2. Nature and Functions ................ 179 3. Requisites for Creation, Conversion, Division, Merger or Dissolution ......... 179 C. Principles of Local Autonomy ....... 183 1. State Policy, Principles of Decentralization ......................... 183 2. Local Autonomy ....................... 183 3. Decentralization ...................... 183 4. Devolution (asked in 1999) .......... 184 D. Powers of Local Government Units (LGUs)....................................... 184 1. Police Power (General Welfare Clause) ............................................. 184 2. Eminent Domain [Sec. 19, LGC] .... 186 3. Taxing Power [Sec. 18, LGC] ........ 187 4. Closure and Opening of Roads [Sec. 21, LGC] ................................... 188 5. Legislative Power [Secs. 48-59, LGC] ............................................. 189 6. Corporate Powers..................... 194 7. Liability of LGUs ...................... 194 Liability for Torts, Violation of the Law and Contracts ............................ 195 8. Settlement of Boundary Disputes .. 196 9. Succession of Elective Officials ..... 196 Rules on Succession ..................... 197 10. Discipline of Local Officials ........ 199 11. Recall ................................. 203 12. Term Limits .......................... 204
Public International Law
POLITICAL
3. Principles of IHL ...................... 228 4. Law on Neutrality .................... 230 K. Law of the Sea ......................... 230 1. Baselines ............................... 230 2. Archipelagic States ................... 230 3. Internal Waters ....................... 231 4. Territorial Sea......................... 231 5. Exclusive Economic Zone ............ 232 6. Continental Shelf ..................... 232 7. Tribunal of the Law of the Sea ..... 233 L. International Environment Law .... 234
LAW
2012
POLITICAL
LAW
POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble Moises Ronette Colobong Contributors| Alferri Bayalan Cielo Gono Noel Luciano LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes
BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages
CONSTITUTIONAL LAW 1
POLITICAL LAW REVIEWER

unwritten constitution, and the power of judicial review by the courts. Thus, the courts cannot invalidate the acts of the parliament as being unconstitutional because of "parliamentary supremacy." (2) The European continental type - where there is a written constitution w/c gives the courts no power to declare ineffective statutes contrary to it [Sinco 67]. A written constitution but no power of judicial review by the courts. The socalled Constitutional Courts of France do not exercise real judicial review but only render advisory opinions on constitutional questions upon the request of the government, not of parties in actual litigation. (3) The American type - where the legal provisions of the written constitution are given effect through the power of the courts to declare ineffective or void ordinary statutes repugnant to it. [Sinco 67]. Constitution defined (1) It is the document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise, for the benefit of the body politic [Malcolm, Phil. Constitutional Law]. (2) "A law for the government, safeguarding individual rights, set down in writing." [Hamilton] (3) According to Schwartz, "a constitution is seen as an organic instrument, under which governmental powers are both conferred and circumscribed. Such stress upon both grant and limitation of authority is fundamental in American theory. 'The office and purpose of the constitution is to shape and fix the limits of governmental activity.'" [Fernando, The Constitution of the Philippines, 20-21, 2nd ed., 1977] Classification of Constitutions 1. Written v. unwritten. A written constitution is one whose precepts are embodied in one document or set of documents; while an unwritten constitution consist of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of fundamental character, judicial decisions, commentaries of publicists, customs and traditions. [Cruz, Constituional Law, pp. 45; Nachura, Outline Reviewer in Political Law, p. 2] 2. Enacted (conventional) v. evolved (cumulative). A conventional constitution is enacted, formally struck off at a definite time and place following a conscious or deliberate effort taken by a constitutent body or ruler; while a cumulative body is the result of political
A. B. C. D. E. F. G. H. I. J.
POLITICAL LAW The Constitution General Considerations Legislative Department Executive Department Judicial Department Constitutional Commissions Citizenship National Economy and Patrimony Social Justice and Human Rights Education, Science, Technology, Arts, Culture and Sports
11
A. The Constitution
I. Definition, Nature and Concepts II. Parts III. Amendments and Revisions IV. Self-Executing and Non-Self Executing Provisions V. General Provisions
I. Definition, Nature and Concepts

Political law branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. [People v. Perfecto, 43 Phil 88, 1922] Scope of Political Law - The entire field of political law may be subdivided into: (1) the law of public administration; (2) constitutional law, (3) administrative law, and (4) the law of public corporations. These four subdivisions may be briefly described for the time being, as follows: The first deals with the organization and management of the different branches of the government; the second, with the guaranties of the constitution to individual rights and the limitations on governmental action; the third, with the exercise of executive power in the making of rules and the decision of questions affecting private rights; and the last, with governmental agencies for local government or for other special purposes. [Sinco 1] Constitutional Law designates the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases. It is the study of the maintenance of the proper balance between the authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights. Types of Constitutional Law. In general, there are three (3) different types of constitutional law, namely, (1) The English type - characterized by the absence of a written constitution (Sinco 67). An
evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. [Cruz, ibid, p.5]. 3. Rigid v. flexible - A constitution is classified as rigid when it may not be amended except through a special process distinct from and more involved than the method of changing ordinary laws. It is supposed that by such a special procedure, the constitution is rendered difficult to change and thereby acquires a greater degree of stability. A constitution is classified as flexible when it may be changed in the same manner and through the same body that enacts ordinary legislation. The British Constitution is flexible.

reduces or deletes without altering the basic principles involved. It affects only the specific provision being amended. (Lambino v. Comelec. G.R. No.174153. October 25, 2006). Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution (Lambino v. Comelec. G.R. No.174153. October 25, 2006). Difference between amendment and revision Courts have long recognized the distinction between an amendment and a revision of a constitution. xxx Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended [Lambino v. Comelec. G.R. No.174153. October 25, 2006]. This distinction is significant because the 1987 Constitution allows peoples initiative only for the purpose of amending, not revising, the Constitution. (See tables below) Legal Test: The Court in Lambino considered the two-part test: the quantitative test and the qualitative test. (1) The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change. (2) The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances. [See Lambino Case] Steps in the Amendatory Process
12
Note: A constitution's stability depends upon other factors than the mere rigidity or flexibility of the amending process, such as (1) the general temperament of the people and their leaders and (2) the degree of a nation's political maturity and social homogenity. [Sinco 68-70] The Philippine Constitution is written, enacted and rigid. The 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on the same date, and not on the date its ratification was proclaimed [De Leon v. Esguerra, No.L-78059, August 31, 1987] State a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience; a politically organized sovereign community independent of outside control bound by ties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law. [Collector of Internal Revenue v. Campos Rueda, No.L-13250, October 29, 1971]
II. Parts
Parts of the Constitution (1) Constitution of Government establishes the structure of government, its branches and their operation. (2) Constitution of Sovereignty provides how the Constitution may be changed. (3) Constitution of Liberty states the fundamental rights of the people. [Lambino v. Comelec. G.R. No.174153. October 25, 2006]
III. Amendments and Revisions

Article XVII Amendments or Revisions Amendment refers to an addition or change within the lines of the original constitution as will effect an improvement, or better carry out the purpose for which it was framed. It refers to a change that adds,
(1) Proposal The adoption of the suggested change in the Constitution. a. By Congress (as a constituent assembly) a vote of of ALL its members. b. Constitutional Convention which may be called into existence by 2/3 of all the members of Congress. The Congress, upon a majority vote of all its members may submit the question of whether to call a constitutional convention to be resolved by the people in a plebiscite. [Sec. 3, Art. XVII]. 3 Theories on the Constitutional Position of Conventions i. A Convention as a body of very limited powers, purely delegated by the people directly or by the regularly constituted legislature. ii. Theory of conventional sovereignty the convention as the supreme organ of the people, a representative body. iii. Constitutional convention as one of the coordinate departments of the existing government. [Sinco, p. 55-56]. c. People, through the power of initiative A petition of an at least 12% of the total number of registered voters of which every

legislative district must be represented by at least 3% of the registered voters therein. i. Limitation: No amendment in this manner shall be authorized within 5 years following the ratification of this Constitution nor more often than once every 5 years thereafter. (2) Ratification the proposed amendment shall be submitted to the people and shall be deemed ratified by the majority of the votes cast in the plebiscite, held not earlier than 60 days nor later than 90 days: a. After approval of the proposal by Congress or Concon; b. After certification by the COMELEC of sufficiency of petition of the people. Doctrine of Proper Submission plebiscite may be held on the same day as regular election [Gonzales v. COMELEC, 21 SCRA 774]. The use of the word election in the singular meant that the entire Constitution must be submitted for ratification at one plebiscite only; furthermore, the people must have a proper frame of reference. [Tolentino v. Comelec, 41 SCRA 702]. Judicial Review of Amendments The question in now regarded as subject to judicial review, because invariably, the issue will boil down to whether or not the constitutional provisions had been followed.
13
Amendments or Revisions (Three Stages) Proposal Both amendments and revisions a. Congress, upon a vote of of all its members b. Constitutional Convention 1. Congress may, by a vote of 2/3 of all its Members, call a ConCon 2. By a majority vote of all its Members, submit to the electorate the question of calling such a convention (Sec.3) Amendments only c. People, 1.through initiative 2.upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein (Sec.2) Submission Ratification The people, through a majority of the votes cast in a plebiscite held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision The people, through a majority of the votes cast in a plebiscite held not earlier than 60 days nor later than 90 days after the certification by the COMELEC of the sufficiency of the petition.
(Prevailing view) Congress, through a law calling for plebiscite
Table of Cases re: Constitutional Amendments Date/Timeline What happened Case and ratio May 14, 1935 Electorate ratifies the 1935 ------Constitution 1940 1940 Amendments (Amended to create a bicameral Congress; an independent Electoral Commission; and a four year term for the President
Date/Timeline 1947 What happened Parity Amendment

Case and ratio with a maximum of 2 consecutive terms of office) Mabanag vs. Lopez Vito petitioners seek to prevent enforcement of the Resolution of Congress proposing the Parity Amendment to the people was assailed on the grounds that it did not comply with the rule prescribed by the Constitution. Held: Proposal of amendments to the constitution is a political question. Moreover, the enrolled copy of the resolution in which it was certified that the proposal had been approved by the required vote was conclusive upon the courts. Petition dismissed. Gonzales vs. COMELEC involves three resolutions passed by Congress acting as Constituent Assembly. Res.1 called for increase in the membership of the HOR, Res.2 called for a Constitutional Convention, and Res.3 called for amendment of Sec.16, Art.VI to allow members of Congress to become delegates to the ConCon without losing their seats. Petitioners seek to restrain respondents from enforcing the law passed by Congress providing that amendments in Res.1 and 3 be submitted for approval by the people at the general elections scheduled to held on November 1967. Held: Petition denied. 1.) Proposal of amendments is not a political but a justiciable question subject to judicial review; 2.) Congress may propose amendments and at the same time call for a Constituent Assembly; 3.) Ratification may be done simultaneous with a general election or in a special election called specifically for that purpose 4.) There is proper submission Tolentino vs. COMELEC involves the validity of a resolution of the ConCon submitting the proposal to lower the voting age to 18 for ratification. The question here is whether piecemeal amendments to the Constitution could be submitted to the people for ratification or rejection. Held: All amendments proposed by the same Constitutional Convention shall be submitted to the people in a single election. Petition granted. (some delegates of the 1971 ConCon went to hiding, gone missing, some remained, etc. The revised Constitution was miraculously finished two months after the declaration of Martial Law) Planas v. COMELEC - Petitioners seek to enjoin respondents from implementing PD 73, which called for a plebiscite (to be held on January 15, 1973) for the constitution approved by the ConCon on 1972, on the theory that: a.) the power to submit is lodged exclusively in Congress, and b.) there is no proper submission to the people. Held: The issue of validity of calling for a plebiscite (submission) is justiciable. BUT, Issue became moot. Petition dismissed. Javellana vs. Executive Secretary Petitioners now seek to enjoin the respondents from implementing any of the provisions of the new constitution not found in the 1935 Constitution, on the theory that it was not validly ratified in accordance with the provisions of Art.1, Section XV. Held: Although the question of whether a Constitution was validly ratified is a justiciable question, the question whether a Constitution has come into force and effect is a political question beyond the competence of the SC to decide. Sanidad vs. COMELEC petitioners question the authority of the President in issuing several PDs proposing amendments to the New Constitution and calling for a national referendumplebiscite for the said amendments. Held: The amending process, both as to proposal and ratification, raises a judicial question.
14
1967`
Resolution calling for the 1971 Constitutional Convention
1971
1971 Constitutional Convention convened
September 10, 1972 1973
Marcos declared Martial Law Plebiscite cases
Ratification cases
1976
1976 Amendments
Date/Timeline What happened

Case and ratio Held: In a crisis government, the President shall have the power to assume the constituent power to propose amendments lodged in the Legislative body. Mitra vs. COMELEC I consider this a belated continuation of the Ratification Cases. At the core, the petitioners are arguing that the 1973 Constitution never validly took effect, the ruling in Javellana aside. Their theory is that the 1973 Constitution was still and is still at the stage of proposal, and in the event it was rejected by the people in a plebiscite, the 1935 Constitution, which was merely suspended by the declaration of Martial Law, could be one more operative Held: Even without valid ratification, a new Constitution could come into force and effect by the acquiescence of the people. Popular acquiescence to a new Constitution gives the document the force and effect of the Fundamental Law of the Land, regardless of the method of ratification. If it is accepted by the people, in whom sovereignty resides according to the Constitution, then the courts cannot refuse to yield assent to such a political deicision. (Legazpi vs. Minister of Finance) President retained his legislative powers even after the lifting of Martial Law and the 1981 Amendments to the 1973 Constitution (which vested executive powers back to the President) by virtue of Amendment No.6 Lawyers League for a Better Philippines vs. Aquino The question of legitimacy of a new government arising from a successful revolution is a political question beyond the pale of review by the courts. In re: Saturnino V. Bermudez Reaffirmed Lawyers League for a Better Philippines. vs Aquino. The President referred to in the Draft (1987) Constitution is Pres. Aquino, not Pres.Marcos who was proclaimed under authority of the 1973 Constitution. De Leon vs. Esguerra Power granted by a superseded constitution is deemed terminated the day the new constitution was ratified. Santiago et al. vs. COMELEC Petitioners seek to enjoin respondent COMELEC from acting on the petition by the PIRMA group asking for an order fixing details on how to collect signatures for a peoples initiative to amend the Constitution Held: Court agreed with the position of petitioners. The system of initiative found in Article XVII, Sec.2 is not selfexecutory. It needs an enabling law before the right of the people to could be exercised. However, an examination of its provisions reveals that RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. COMELEC permanently enjoined from entertaining or taking cognizance of any petition for initiative until a sufficient law shall have been validly enacted to provide for the implementation of the system. Estrada vs. Desierto Legal distinction between EDSA I and EDSA II: The government arising from EDSA I was extraconstitutional, while EDSA II was a constitutional exercise of the right to free speech, freedom of assembly, and to petition the government for redress. Lambino vs. COMELEC The constituent power reserved to people under Art.XVII Sec.2 is limited to the power to propose amendments to, not revision of, the Constitution. Moreover, direct proposal by the people means that the petition signed by the people should contain the full text of the proposed amendments to the Constitution.
15
1981
Martial Law lifted. 1981 Amendments
1986
EDSA Revolution
February 2, 1987 1997
1987 Constitution ratified PIRMA case
2001
EDSA II
2007
Peoples Initiative of PGMA

times of war or other national emergency declared by the Congress (4) Police Force (Section 6) a. One police force b. National in scope c. Civilian in character (5) Consumer Protection (Section 9) (6) Mass Media (Section 11) a. Ownership and management limited to citizens of the Philippines or to corporations, cooperatives or associations wholly-owned and managed by Filipino citizens (7) Advertising Industry (Section 11) a. Can only be engaged in by Filipino citizens or corporations or associations at least 70% of which is owned by Filipino citizens b. Participation of foreign investors is limited to their proportionate share in the capital c. Managing officers must be Filipino citizen
IV. Self-Executing and Non-SelfExecuting Provisions

a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. [Manila Prince Hotel v. GSIS (1997)] o Exception: Sec. 16, Article II of the 1987 Constitution - As a matter of logic, by finding petitioners cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. [Justice Feliciano, concurring opinion, Oposa v. Factoran (1993)]
16
V. General Provisions
Article XVI General Provisions (1) Flag of the Philippines (Section 1) a. Red, white and blue, with a sun and three stars b. Design of the flag may be changed only by constitutional amendment (Bernas) (2) Name of the country, national anthem, and national seal (Section 2) a. b. May be changed by Congress by law Such law will only take effect upon ratification by the people in a national referendum
B. General Considerations
I. National Territory II. State Immunity III. Principles and Policies IV. Separation of Powers V. Checks and Balances VI. Delegation of Powers VI. Forms of Government
I. National Territory
Scope of the national territory as defined in the Constitution (1) Philippine archipelago, with all the islands embraced therein. (2) All other territories over which the Philippines has sovereignty or jurisdiction (3) Territorial sea, Seabed, Subsoil, Insular shelves, and other submarine areas corresponding to (1) and (2) (4) (1) and (2) also consist of terrestrial, fluvial, and aerial domains Treaty of Paris, Art. III Spain cedes to the United States the archipelago known as the Philippines Islands, and comprehending the islands lying within the following line xxx
(3) Armed Forces of the Philippines (Section 4) a. Composed of a citizen armed force b. Shall take an oath of affirmation to uphold and defend the Constitution (Section 5 (1)) c. May not be appointed or designated to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries (Section 5 (4)) Laws on retirement of military officers shall not allow extension of their service (Section 5 (5)) Recruited proportionately from all provinces and cities as far as practicable (Section 5 (6)) Tour of duty of the Chief of Staff shall not exceed three years (Section 5 (7)) May be extended by the President in
d. e. f. g.
Ceding the Turtle and Mangsee Islands.
17
Straight baseline method consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago NOTE: Please refer to PIL, Chap. 12, II for further discussion on Baselines
II. State Immunity

Doctrine of Sovereign Immunity (State Immunity from Suit) Constitutional Basis: The State may not be sued without its consent. (Sec 3, Art XVI). International Law Basis: Par in parem non habet imperium Jurisprudential Basis: (1) Positivist Theory - There can be no legal right as against the authority that makes the laws on which the right depends. Also called the doctrine of Royal Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)] (2) Sociological Theory - If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing it other functions. [Republic vs. Villasor (1973)] A suit is against the State regardless of who is named the defendant if: (1) It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. (2) Cannot prosper unless the State has given its consent. In the following instances, it was held that the suit is not against the State: a. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compel performance of a ministerial duty. [Begoso v. PVA (1970)] b. When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity; c. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular. How the States consent to be sued is given
*Image taken from: http://media.photobucket.com/image/philippine%20map%20image %20international%20law/jibrael_2007/Jibrael%202008/map1_rpterri tory.jpg
Archipelagic Doctrine - The basic concept of an archipelago is that body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one unit. The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises the archipelago. The Constitutional doctrine are : provisions embodying this
(1) "archipelago, with all the island and waters embraced therein" An archipelago is a body of water, studded with islands. (2) "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth and dimensions, form part of internal water" Treaty Limits of the Philippine Archipelago (1) Treaty of Paris of 10 December 1898. Article 3 defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth. (2) Treaty of Washington of 7 November 1900 between the United States and Spain. Ceding Cagayan, Sibuto and Sulu. (3) Treaty of 2 January 1930 between the United States and Great Britain.
Express consent - It is effected only by the will of the legislature through the medium of a duly enacted statute. May be embodied either in a: (1) General Law - authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law a. Money Claims arising from contract express or implied

Sec. 8. The President of the Philippines, at the commencement of each regular session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year. b. Torts
18
Act No. 3083. An Act Defining the Conditions under which the Government of the Philippines may be Sued. Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Commission on Audit and that the latter did not decide the same within two months from the date of its presentation. Sec. 3. Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Regional Trial Court of the City of Manila or of the province where the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions. Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties. Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties. Sec. 6. Process in actions brought against the Government of the Philippines pursuant to the authority granted in this Act shall be served upon the Solicitor-General whose duty it shall be to appear and make defense, either himself or through delegates. Sec. 7. No execution shall issue upon any judgment rendered by any court against the Government of the Philippines under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the President of the Philippines, within five days after the same becomes final.
Art 2189, CC: Provinces, cities and municipalities shall be liable for damages for the death or injuries suffered by any person by reason of the defective conditions of roads, streets, public buildings and other public works under their control and supervision. As to the vicarious liability under Art. 2180(6) of the CC: The Government is only liable for the acts of its agents, officers and employees, when they act as special agents within the meaning of Art. 2180 (6) CC. Special Agent - One who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. [Merritt v. Govt of the Philippine Islands, (1916)] (2) Special Law - may come in the form of a private bill authorizing a named individual to bring suit on a special claim Implied consent (1) When the State enters into a business contract or itself commences litigation. (2) If the Govt. files a complaint, defendant may file a counterclaim against it. When the state files complaint, suability will result only where the government is claiming affirmative relief from the defendant. [US v. Guinto, (1990)] (3) When it would be inequitable for the State to invoke its immunity. (4) In instances when the State takes private property for public use or purpose. Suits against Government Agencies Depends on whether the agency is incorporated (there is a separate charter) or unincorporated (no separate personality). (1) Incorporated If the charter provides that the agency can sue, then suit will lie. The provision in the charter constitutes express consent. (see SSS v. Court of Appeals, 120 SCRA 707). (2) Unincorporated There must be an inquiry unto the principal functions of government. a. If governmental NO suit without consent. (Bureau of Printing v. Bureau of Printing Employees Association). b. If proprietary Suit will lie, because when the state engages in principally proprietary functions, then it descends to the level of a private individual, and may, therefore be vulnerable to suit.
(Civil Aeronautics Administration v. Court of Appeals, 167 SCRA 29). State may only be liable for proprietary acts (jure gestionis) and not for sovereign acts (jure imperii). Synthesis of the Rules Incorporated Regardless of whether it performs governmental or proprietary functions UNincorporated Governmental functions Proprietary functions If the Charter allows it to be sued CAN be sued CANNOT be sued unless consent is given CAN be sued

does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the pltff the chance to prove, it can, that the def. is liable. (US v. Ceballos, 182 SCRA 644)
19
III. Principles and Policies

Art. II Declaration of Principles and State Policies Principles: (Sections 1- 6) Binding rules which must be observed in the conduct of government (Bernas) (1) The Philippines is a democratic and republican state (Section 1) a. The Philippines under the new Constitution is not just a representative government but also shares some aspects of direct democracy such, for instance, as the initiative and referendum under Article VI, Section 32 (Bernas)
Suit against Public Officers The doctrine of state immunity also applies to complaints filed against officials of the State for acts perfomed by them in the discharge of their duties within the scope of their authority. Unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen, for acts without authority or in excess of the powers vested in him. [Lansang vs CA (2000)] Caselaw provides that the following are wellrecognized exceptions when a public officer MAY be sued without the prior consent of the state: (1) To compel him to do an act required by law; (2) To restrain him from enforcing an act claimed to be unconstitutional; (3) To compel the payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose; (4) To secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; and (5) Where the government itself has violated its own laws. [Sanders v. Veridiano, 162 SCRA 88]. Scope of Consent: Suability v. Liability. There seems to be a failure to distinguish bet. suability and liability. Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it
(2) Renunciation of war (Section 2) a. Only refers to wars of aggression, not defensive war (3) Adoption of the principle of international law (Section 2) (4) Adherence to a policy of peace, freedom, and amity with all nations (Section 2) (5) Civilian supremacy (Section 3) a. Civilian authority (Section 3, Article II) is not defeated in a joint task force between the PNP and Marines for the enforcement of law and order in Metro Manila as long as control is left to the PNP. [IBP v. Zamora (2000)] (6) Role of the armed forces (Section 3) a. Protector of the people and the State b. Secure the sovereignty of the State and the integrity of the national territory (7) Compulsory military and civil service (Section 4) a. Under conditions provided by law (8) Maintenance of peace and order, promotion of general welfare (Section 5) (9) Recognition of a hierarchy of rights [Bernas] a. Life b. Liberty c. Property (10) Separation of Church and State (Section 6) Policies: (Sections 7 28) Guidelines for the orientation of the state [Bernas] (1) Independent foreign policy (Section 7) (2) Freedom from nuclear weapons (Section 8) (3) Promote a just and dynamic social order (Section 9)
(4) Promote social justice in all phases of national development (Section 10) (5) Personal dignity and human rights (Section 11) (6) Family as basic social institution (Section 12) (7) Vital role of youth in nation-building (Section 13) (8) Role of women in nation-building (Section 14) (9) Fundamental equality before the law of women and men (Section 14) (10) Right to health (Section 15) (11) Right to a balanced and healthful ecology (Section 16) (12) Priority to education, science and technology, arts, culture, and sports (Section 17) (13) Labor as a primary social economic force (Section 18) (14) Self-reliant and independent national economy (Section 19) (15) Role of private sector (Section 20) (16) Comprehensive rural development and agrarian reform (Section 21) (17) Recognition and promotion of rights of indigenous cultural communities (Section 22) (18) Community-based, sectoral organizations (Section 23) (19) Role of communication and information in nation-building (Section 24) (20) Autonomy of local governments (Section 25) (21) Equal access for public service and prohibition of political dynasties (Section 26) (22) Honesty and integrity in public service (Section 27) (23) Policy of full public disclosure (Section 28)

the Republic of the Philippines). Checks and Balances It does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. [Angara v. Electoral Commission, G.R. No. L-45081. July 15, 1936]. Delegation of Powers GENERAL RULE on delegation of powers: Delegata potestas non potest delegari what has been delegated can no longer be delegated. Since the powers of the government have been delegated to them by the people, who possess original sovereignty, these powers cannot be further delegated by the different government departments to some other branch or instrumentality of the government. The principle of non-delegation of powers is usually applied to legislative power. Since the legislative power of Congress is already a delegated power given to them by the people (thru Article 1, Section VI of the Constitution), Congress cannot pass laws delegating such power to some other department, branch, or instrumentality of the government. EXCEPTIONS: (1) Subordinate legislation made by administrative agencies Under the theory of Administrative Law, what is delegated is in fact not lawmaking power, but law-executing power. Hence, administrative agencies have the power to fill up the details of a statute passed by
20
IV. Separation of Powers

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government (Angara v. Electoral Commission, G.R. No. L-45081. July 15, 1936). The government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial (Anagara v. Electoral Commission, G.R. No. L-45081. July 15, 1936). Separation of powers is not expressly provided for in the Constitution. But it obtains from actual division found in Section 1 of Articles VI, VII, VIII, where the three great powers of the government are canalized. Separation of powers is founded on the belief that, by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided (Bernas, The 1987 Constitution of
Congress in the course of its implementation. (2) Delegated legislative power to local governments Local governments may be allowed to legislate on purely local matters (Rubi vs. Provincial Board of Mindoro) (3) Legislative power reserved to the people by the provision on initiative and referendum (Article VI, Sec.1) (4) Emergency power delegated to the Executive during State of War or National Emergency (Article VI, Sec.23 (2)) (5) Certain taxing powers of the President (Article VI, Sec.28 (2)). The Congress may authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. Tests for Valid Delegation (1) Completeness test the law must be complete in all essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. (2) Sufficient standard test a sufficient standard is intended to map out boundaries of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. BOTH tests must be complied with. [Pelaez v. Auditor General, 15 SCRA 569]
(1) De jure government a. Has rightful title but b. no power or control, either because this has been withdrawn from it, or because it has not yet actually entered into the exercise thereof. [In re Letter of Associate Justice Puno, (1992)] (2) De facto government - Government of fact, that is, it actually exercises power or control without legal title. [Co Kim Cham v. Valdes, (1945)] a The govt that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal govt and maintans itself against the will of the latter. b That established as an independent govt by the inhabitants of a country who rise in insurrection against the parent state. c That which is established and maintained by military forces who invade and occupy a territory of the enemey in the course of war, and w/c is denominated as a govt of paramount force, like the Second Republic of the Phils. established by the Japanese belligerent. The legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. [In re Bermudez, (1986) citing Lawyers League for a Better Philippines v. Aquino, (1986)] In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al], we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended."
21
V. Forms of Government
Definition Sec. 2(1) Administrative Code. Government of the Republic of the Philippines is defined as: the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including (1) the various arms through which political authority is made effective in the Philippines, whether pertaining to: i. the autonomous regions, ii. the provincial, city, municipal, or barangay subdivisions, or iii. other forms of local government. Government is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. [US vs Dorr (1903)] De Jure and De Facto Governments
It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extraconstitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intraconstitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. xxx Even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. [Estrada v Desierto/ Estrada v GMA, (2001)]

Republic of the Philippines) RA 6735 An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefore
22
II. Houses of Congress

Composition, Qualifications and Term of Office Senate House of (Art. VI secs. 2-4) Representatives (Art. VI secs. 5-8) Compo24 senators Not more than 250 sition elected at large members, unless otherwise provided by law, consisting of: i. District Representatives ii. Party-List Representatives iii. Sectoral Representatives Qualifi Natural-born Natural-born cations citizen citizens At least 35 At least 25 years years old on old on the day of the day of the the election election Able to read and Able to read write and write Registered voter A registered in the district he voter seeks to represent Resident of the A resident of the Philippines for said district for at least 2 at least 1 year years immediately immediately preceding the preceding the day of the day of the election election Term of 6 years 3 years Office Term 2 consecutive 3 consecutive Limits terms. terms. Senate (Art. VI Secs. 2-4) Composition: 24 senators elected at large Qualifications: 1) Natural-born citizen 2) At least 35 years old on the day of the election 3) Able to read and write 4) A registered voter 5) Resident of the Philippines for at least 2 years immediately preceding the day of the election Term of Office: 6 years, commencing at noon on the 30th day of June next following their election Term Limits: only up to 2 consecutive terms.
C. Legislative Department
I. Who May Exercise Legislative Power II. Houses of Congress III. Legislative Privileges, Inhibitions and Disqualifications IV. Quorum and Voting Majorities V. Discipline of Members VI. Electoral Tribunals and the Commission on Appointments VII. Powers of Congress
I. Who May Exercise Legislative Power

Legislative power is the authority to make laws and to alter and repeal them. It is vested in: (1) The Congress of the Philippines, which consists of a Senate and a House of Representatives (2) The people to themselves, by the system of initiative and referendum (Art. VI, Sec. 1) Grant of legislative power to Congress is plenary. Congress may legislate on any subject matter provided that the limitations are observed. Initiative and Referendum The power of initiative and referendum is the power of the people directly to propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body. (Article VI, Section 32) o The operationalization of initiative and referendum has been left by the Constitution to Congress (Article VI, Section 32; Bernas, The 1987 Constitution of the
However, they may serve for more than 2 terms provided that the terms are not consecutive. House of Representatives (Art. VI Secs. 5-8) Composition: Not more than 250 members, unless otherwise provided by law, consisting of: (1) District Representatives - Elected from legislative districts apportioned among the provinces, cities, and the Metro Manila area Rules on Apportionment of Legislative Districts: a. Apportionment of legislative districts must be by law which could be a: General Apportionment Law; or Special Law (i.e. creation of new provinces) Note: The power to apportion legislative districts is textually committed to Congress by the Constitution. Thus, it cannot be validly delegated to the ARMM Regional Assembly (Sema v. COMELEC, G.R. No. 177597, July 16, 2008). b. Proportional representation based on number of inhabitants Each city with a population of at least 250,000, or each province, shall have at least 1 representative. Each province, irrespective of the number of inhabitants, shall have at least 1 representative. c. Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. d. Re-apportionment by Congress within 3 years after the return of each census (2) Party-List Representatives who shall constitute 20% of the total number of representatives, elected through a party-list system of registered national, regional, and sectoral parties or organizations. (3) Sectoral Representatives - For 3 consecutive terms from 2 February 1987, 25 seats shall be allotted to sectoral representatives to be chosen by appointment or election, as may be provided by law. Until a law is passed, they are appointed by the President from a list of nominees by the respective sectors. (Art. XVIII, sec. 7) Qualifications of Representatives: (1) Natural-born citizens (2) At least 25 years old on the day of the election (3) Able to read and write (4) Registered voter in the district he seeks to represent (5) A resident of the said district for at least 1 year immediately preceding the day of the election.
Term of Office: 3 years, commencing at noon on the 30th day of June next following their election. Tenure may be shorter than the term or it may not exist at all. These situations will not change the duration of the term of office. [Dimaporo vs Mitra (1991)] Term Limits: No member of the House of Representatives shall serve for more than 3 consecutive terms. Party-list System (RA 7941, An Act Providing For The Election Of Party-List Representatives Through The Party-List System, And Appropriating Funds Therefor) Parties, organizations, and coalitions must obtain at least 2% of all votes cast to obtain a party-list seat. Those garnering more than 2% are entitled to additional seats in proportion to their total number of votes, but may not have more than 3 seats. Disqualified parties: (1) Religious Sects (2) Foreign Organizations (3) Those Advocating Violence or Unlawful Means (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes. (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least 2 per centum of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Qualified Sectors: (1) Labor (2) Peasant (3) Fisherfolk (4) Urban Poor (5) Indigenous Cultural Com-munities (6) Elderly (7) Handicapped (8) Women (9) Youth (10) Veterans (11) Overseas Workers (12) Professionals
23
Query: Are political parties allowed to participate in the party-list system? Political parties are allowed by the constitution to participate in the party-list system provided that they represent the interests of the marginalized and underrepresented. The following conditions must be complied: (1) Must represent marginalized and underrepresented sectors; (2) Major political parties must comply with this statutory policy; (3) Must be subject to the express constitutional prohibition against religious sects; (4) The party must not be disqualified under RA 7941; (5) The party must not be an adjunct or entity or project funded by the government; (6) The party and its nominees must comply with the requirements of the law; (7) The nominee must also represent a marginalized or under-represented sector; (8) The nominee must be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation. (Ang Bagong Bayani-OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001). Four inviolable constitutional and statutory parameters in the party-list system: (1) 20% Allocation the combined number of all party-list congressmen shall not exceed 20% of the total membership of the House of Representatives. (2) 2% threshold only those parties garnering a minimum of 2% of the total votes cast for the party-list system are qualified to have a seat in the House. (3) Three seat limit each qualified party, regardless of the number of votes it actually obtained is entitled to a maximum of three seats (1 qualifying and 2 additional seats). (4) Proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. (Veterans Federation v. COMELEC, G.R. No. 136781, Oct. 6, 2000).

such increase. (Sec. 10, Art. VI). Official President Vice-President, President of the Senate, Speaker of the House of Representatives, and Chief Justice of the Supreme Court Senators, Members of the House of Representatives, Associate Justices of the Supreme Court, and Chairmen of the Constitutional Commissions Members of the Constitutional Commissions 2. Annual Salary Php 300,000 Php 240,000
24
Php 204,000
Php 180,000
Freedom from arrest A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. (Sec. 11, Art VI). In People v. Jalosjos, G.R. No. 132875, February 3, 2000, the SC denied the request of Cong. Jalosjos that he be allowed attend legislative sessions. He denial was premised on the following: (a) membership in Congress does not exempt an accused from statutes and rules which apply to validly incarcerated persons; (b) one rationale behind confinement is public self-defense; (c) it would amount to creation of a privileged class, without justification in reason; and (d) he was provided with an office in the New Bilibid Prison.
3.
Speech and Debate Clause No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. In Jimenez v. Cabangbang, a clarification of the scope and limitation of the parliamentary immunity was made. There was reiteration that, First, Congressional immunity is a guarantee of immunity from answerability before an outside forum but not from answerability to the disciplinary authority of congress itself; Second, to come under the guarantee the speech or debate" must be one made "in Congress or in any committee thereof." [Jimenez v. Cabangbang, (1966)] Each House of the Congress can discipline its members for disorderly conduct or behavior. What constitutes disorderly behavior entirely up to Congress to define. is
III. Legislative Privileges, Inhibitions and Disqualifications

Privileges 1. Salaries The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving
Although a member of Congress shall not be held liable in any other place for any speech or debate in the Congress or in any committee thereof, such immunity, although absolute in its protection of the member of Congress against suits for libel, does not shield the member against the disciplinary authority of the Congress. [Osmena v. Pendatun, (1960)] Disqualifications (1) May not hold any other office or employment in the government during his term without forfeiting his seat. (Art VI Sec 13) The provision refers to an Incompatible Office. Forfeiture of the seat in Congress shall be automatic upon the members assumption of such office deemed incompatible. [Adaza v. Pacana, 135 SCRA 431]. (2) May not be appointed to any office created or the emoluments thereof were increased during the term for which he was elected. (Art VI Sec 13) The provision refers to a Forbidden Office. He cannot validly take the office even of he is willing to give up his seat. (3) Cannot personally appear as counsel before any court, electoral tribunal, quasi-judicial and administrative bodies during his term of office. (Art VI Sec 14) (4) Shall not be financially interested, directly or indirectly, in any contract with, or franchise or special privilege granted by the government during his term of office. (Art VI Sec 14) (5) Shall not intervene in any matter before any office of the government when it is for his pecuniary benefit or where he may be called upon to act on account of his office. (Art VI Sec 14) Appearance as counsel: Certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them after the contested election of Directors, after the quo warranto suit had been filed before SEC, and one day before the scheduled hearing of the case before the SEC. Before he moved to intervene, he had signified his intention to appear as counsel for respondent, but which was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under litigation. Under those facts and circumstances that there has been an indirect "appearance as counsel before ... an administrative body" and that is a circumvention of the Constitutional prohibition.

The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. [Puyat v De Guzman, (1982)] Duty to disclose (1) A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. (2) Cases wherein declaration shall be disclosed to the public in the manner provided by law: a. President b. Vice-President c. the Members of the Cabinet d. the Congress e. the Supreme Court f. the Constitutional Commissions and other constitutional offices g. officers of the armed forces with general or flag rank (Art XI Sec 17) (3) All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. (Art VI Sec 12) (4) The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. (Art VI Sec 20)
25
IV. Quorum and Voting Majorities

Quorum Majority of each House shall constitute a quorum. A smaller number may adjourn from day to day and may compel the attendance of absent members. In computing a quorum, members who are outside the country, thus outside of each Houses coercive jurisdiction, are not included.
Majority refers to the number of members within the jurisdiction of the Congress (those it can order arrested for the purpose of questioning). In this case, one Senator was out of the Philippines which is not within the jurisdiction of the Senate, so that the working majority was 23 Senators. There is a difference between a majority of "all members of the House" and a majority of "the House", the latter requiring less number than the first. Therefore, an absolute majority (12) of all members of the Senate less one (23) constitutes
constitutional majority of the Senate for the purpose of the quorum. [Avelino v. Cuenco, (1949)] Composition Voting Majorities Doctrine of Shifting Majority For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. Majority of all Members of Congress majority of the entire composition of Congress, regardless of the number of Members present or absent (e.g. [24 + 250/2] +1) Majority of each House majority of all Members actually present during the session, provided there is a quorum When should Vote Separately: Choosing the President (Article VII, Sec.4) Determine Presidents disability (Article VII, Sec.11) Confirm the nomination of the VP (Article VII, Sec.9) Declaring State of War, in joint session (Article VI, Sec.23 (1)) Proposing Constitutional Amendments (Article XVII, Sec.1) [subject to debate] Congress: Vote Jointly: Revoking or extending the suspension of the privilege of writ of habeas corpus (Article VII, Sec.18) Revoking or extending declaration of Martial Law (Article VII, Sec.18)

(Sec.17, Article VI)
26
(1) 3 Supreme Court Justices to be designated by the Chief Justice (The senior Justice in the Electoral Tribunal shall be its Chairman). (2) 6 Members of the Senate or House, as the case may be, chosen on the basis of proportional representation from the political parties and party-list organizations. (3) The ET shall be constituted within 30 days after the Senate and the House shall have been organized with the election of the President and the Speaker. (4) Members chosen enjoy security of tenure and cannot be removed by mere change of party affiliation. [Bondoc v. Pineda, 201 SCRA 793]. Valid grounds/Just cause for termination of membership to the tribunal: (1) Expiration of Congressional term of office; (2) Death or permanent disability; (3) Resignation form political party which one represents in the tribunal; (4) Removal from office for other valid reasons. Note: Disloyalty to party and breach of party discipline, are not valid grounds for the expulsion of a member of the tribunal. [Bondoc v. Pineda, 201 SCRA 793]. Nature of Function Jurisdiction: be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members. When does it acquire jurisdiction: ET has jurisdiction only when there is an election contest. Election Contest - one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner. The Electoral Tribunal of each House is the SOLE judge of all contests relating to the election, returns, and qualifications of the members of Congress. In the absence of election contest, the Electoral Tribunal has no jurisdiction. Supreme Court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and
V. Discipline of Members
Each house may punish its members for disorderly behavior, and with the concurrence of 2/3 of ALL its members: (1) Suspension (shall not exceed 60 days) (2) Expulsion Other disciplinary measures: (1) deletion of unparliamentary remarks from the record (2) fine (3) imprisonment (4) censure
The suspension contemplated in the Constitution is different from the suspension prescribed in the AntiGraft and Corrupt Practices Act (RA 3019). The former is punitive in nature while the latter is preventive. [Defensor-Santiago v. Sandiganbayan, G.R. No. 118364, August 10, 1995].
VI. Electoral Tribunals and the Commission on Appointments

Electoral Tribunals
qualifications of the members of the National Assembly." [Angara vs Electoral Commission (1936)] Note: Constitution mandates that the HRET shall be the sole judge of all contests relating to the election, returns and qualifications of its members. By employing the word sole, the Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its members is exclusive and exhaustive. Its exercise of power is intended to be its own full, complete and unimpaired. [Duenas Jr. v. HRET G.R. No. 185401, 2009] Independence of the Electoral Tribunals Since the ETs are independent constitutional bodies, independent even of the respective House, neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ETs. [Co vs HRET, (1991)] The HRET was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. "The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. [Bondoc v. Pineda, (1991)]

(2) with grave abuse of discretion tantamount to denial of due process. To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The petitioner in such cases must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. [Garcia vs HRET (1999)] Commission on Appointments (Sec 18, Art VI) Composition (1) Senate President as ex-officio chairman (shall not vote except in case of a tie.) (2) 12 Senators (3) 12 Members of the House The Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall act on all appointments within 30 session days from their submission to Congress. The Commission on Appointments shall rule by a majority vote of all its members. It is NOT mandatory to elect 12 Senators to the Commission; what the Constitution requires that there must be at least a majority of the entire membership. [Guingona v. Gonzales, 214 SCRA 789].
27
Powers The HRET will only gain jurisdiction upon proclamation of the candidate. Until such proclamation, he is not yet a member of the House; hence, the HRET will not have jurisdiction over him. Jurisdiction over such remains with the COMELEC. Lazatin v. HRET, (1988) As constitutional creations invested with necessary power, the Electoral Tribunals are, in the exercise of their functions independent organs independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature [Co vs HRET (1991) citing Angara vs. Electoral Commission [1936]). Judicial Review of Decisions of Electoral Tribunals With the SC only insofar as the decision or resolution was rendered: (1) without or in excess of jurisdiction, or
Rule on Proportional Representation The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations. The authority of the House of Representatives to change its representation in the Commission on Appointments to reflect at any time the changes that may transpire in the political alignments of its membership. It is understood that such changes in membership must be permanent and do
not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another. [Daza vs SIngson (1989)] The provision of Section 18 on proportional representation is mandatory in character and does not leave any discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation RATIONALE: The party with a majority representation in the Senate or the house of Representatives can by sheer force of numbers impose its will on the hapless minority. By requiring a proportional representation in the Commission on Appointments, Section 18 in effect works as a check on the majority party in the Senate and helps to maintain the balance of power. No party can claim more than what it is entitled to under such rule. [Guingona, Jr. vs Gonzales, (1993)]

session (ad-interim appointments) shall only be effective: (1) Until disapproval by the Commission on Appointments; OR (2) Until the next adjournment of Congress.
28
VII. Powers of Congress

a. Legislative
General (Sec Art VI) (1) Legislative Powers: (Scope: vested in Congress by the Constitution except to the extent reserved to the people by the provision on initiative and referendum). powers of appropriation, taxation expropriation authority to make, frame and enact laws (2) Non-legislative Powers: (Scope) power to canvass the presidential elections; declare the existence of war; give concurrence to treaties and amnesties; propose constitutional amendments; impeach; derivative and delegated power; implied powers such as the power to punish contempt in legislative investigations. Specific Powers (1) Constituent power (2) Legislative Inquiries (3) Appropriation (4) Taxation (5) Concurrence in treaties and international agreements (6) War powers and delegations powers Inherent Powers (1) Police Power Make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances as they shall judge for the good and welfare of the constituents. Includes maintenance of peace and order, protection of life, liberty and property and the promotion of general welfare (2) Power of Taxation (3) Power of Eminent Domain (4) Contempt power Legislative Inquiries and the Oversight Functions (Sec 21, Art VI) Requisites: (1) Must be in aid of legislation (2) In accordance with duly published rules of procedure (3) Right of persons appearing in or affected by
Meetings (1) Commission on Appointments shall meet only while Congress is in session. (2) Meetings are held either at the call of the Chairman or by a majority of all its members. Since the Commission on Appointments is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.
Jurisdiction (1) Commission on Appointments shall confirm the appointments by the President with respect to the following positions: (a) Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post); (b) Ambassadors, other public ministers or consuls; (c) Officers of the AFP from the rank of Colonel or Naval Captain; (d) Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members); (2) Congress cannot by law require that the appointment of a person to an office created by such law shall be subject to confirmation by the Commission on Appointments. Appointments extended by the President to the above-mentioned positions while Congress is not in
such inquiries shall be respected Note: The mere filing of a criminal or an administrative complaint before a court or quasijudicial body should not automatically bar the conduct of legislative inquiry. [Standard Chartered Bank v. Senate Committee on Banks, G.R. No. 167173, December 27, 2007] Additional limitation: (Refer to Chap 4, III) Executive Privilege

period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Note: Legislative supervision is NOT allowed under the Constitution. [Abakada Guro v. Purisima, G.R. No. 166715, August 14, 2008] (2) Bicameral Conference Committee A bill can be passed jointly (when it is a joint session, supra), or separately. In the latter case, it can be passed simultaneously (when a bill is taken up by both houses separately but at the same time, or sequentially (when a bill originates form one house and goes to the other house). There is no problem if the bill is passed jointly. But if it is passed separately, the bill approved by one house goes to the other house, which can amend such bill. Once the other house approves the bill, this is called the other house's version of the bill. A Conference Committee is then organized, composed of equal number of members from the Senate and the House, to make recommendations to the respective chambers on how to reconcile the two versions of the bill. The respective members are usually granted blanket authority to negotiate and reconcile the bills. At the end of the process, the committee comes up with a "Conference Committee Report", which is then submitted to the respective chambers for approval. (3) Limitations on Legislative Power Formal or Procedural Limitations (Prescribes the manner of passing bills in the form they should take) (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title. [Sec. 26(1), Art. VI] The title is not required to be an index of the contents of the bill. It is sufficient compliance if the title expresses: (1) the general subject and (2) all the provisions of the statute are germane to that subject. [Tio v. Videogram Regulatory Commission, 151 SCRA 208] (2) No bill passed by either house shall become law unless it has passed 3 readings on separate days. [Sec. 26(2), Art. VI] (3) Printed copies in its final form have been distributed to its members 3 days before the passage of the bill. [Sec. 26(2), Art. VI]. Exception: President certifies to the necessity of its immediate enactment to meet a public calamity or emergency It was held that the presidential certification dispensed with the requirement not only of
29
Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. (1) Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. (2) Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI. (3) Legislative supervision (Legislative Veto) The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain
printing but also that of reading the bill on separate days. [Tolentino v. Secretary of Finance] Substantive Limitations (Circumscribe both the exercise of the power itself and the allowable subject of legislation) Express limitations: (1) On general powers - Bill of Rights [Art. III] (2) On taxation [Secs. 28 and 29(3), Art. VII] (3) On appropriation [Secs. 25 and 29(1) and (2), Art VI] (4) On appellate jurisdiction of the SC [Sec. 30, Art. VI] (5) No law granting title of royalty or nobility shall be passed [Sec. 31, Art. VI] Implied Limitations: (1) No power to pass irrepealable law (2) Non-encroachment on powers departments (3) Non-delegability of powers

(4) Procedure in approving appropriations FOR THE CONGRESS shall strictly follow the procedure for approving appropriations for other departments and agencies. (5) No law shall be passed authorizing any transfer of appropriations. However, the following may, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations: (a) President (b) Senate President (c) Speaker of the House (d) Chief Justice of the Supreme Court (e) Heads of the Constitutional Commissions Guidelines for disbursement of DISCRETIONARY FUNDS appropriated FOR PARTICULAR OFFICIALS: (1) For public purposes (2) To be supported by appropriate vouchers (3) Subject to such guidelines as may be prescribed by law If Congress fails to pass the general appropriations bill by the end of any fiscal year: (1) The general appropriations bill for the previous year is deemed reenacted (2) It shall remain in force and effect until the general appropriations bill is passed by Congress. For Special Appropriations Bill (1) Shall specify the purpose for which it is intended (2) Shall be supported by funds actually available as certified by the National Treasurer or to be raised by corresponding revenue proposal therein Limitation on Use of Public Funds (Sec 29, Art VI): (1) No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law. (2) However, this rule does not prohibit continuing appropriations, e.g. for debt servicing, for the reason that this rule does not require yearly or annual appropriation. Four phases of Governments budgeting process: (1) Budget preparation (2) Legislative authorization (3) Budget execution (4) Budget accountability Taxation (Sec 28, Art VI) Nature Sec 28 is an enumeration of the limits on the inherent and otherwise unlimited power Purposes (1) Pay debts and provide for the common defense and general warfare;
30
of
other
(a) Limitations on Revenue, Appropriations and Tariff Measures Appropriations General Limitations: (1) Appropriations must be for a PUBLIC PURPOSE. (2) Cannot appropriate public funds or property, directly or indirectly, in favor of 1. Any sect, church, denomination, or sectarian institution or system of religion or 2. Any priest, preacher, minister, or other religious teacher or dignitary as such. EXCEPTION: if the priest, etc is assigned to: 1. the Armed Forces; 2. any penal institution; 3. government orphanage; 4. leprosarium (3) Government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen. (4) Also, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions. Specific Limitations For General Appropriations Bills (1) Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. (2) Form, content and manner of preparation of the budget shall be prescribed by law. (3) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein.
(2) Raise revenue; (3) Instrument of national and social policy; (4) Instrument for extermination of undesirable acts and enterprises; (5) Tool for regulation; (6) Imposition of tariffs designed to encourage and protect locally produced goods against competition for imports. Limitations (1) Public - Power to tax should be exercised only for a public purpose. (2) Uniform and Equitable. Operates with the same force and effect in every place where the subject of it is found Does not prohibit classification for the purpose of taxation Requirements for valid classification: i. Based on substantial distinctions which make real differences ii. Germane to the purpose of law iii. Applies to present and future conditions substantially identical to those of the present iv. Applies equally to those who belong to the same class (3) Progressivity. The rate increases as the tax base increases Tax burden is based on the taxpayers capacity to pay Suited to the social conditions of the people Reflects aim of the Convention that legislature following social justice command should use taxation as an instrument for more equitable distribution of wealth Constitutional Tax Exemptions: (1) Religious, charitable, educational institutions and their properties (2) All revenues and assets of NON-STOCK NONPROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes (sec. 4 (3) Art XIV). (3) Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax, subject to conditions prescribed by law (sec. 4 (4) Art XIV). Special Funds (1) Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. (2) Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government (b) Presidential Veto and Congressional Override

Submission to the President; Presidents Veto power (Sec 27, Art VI) Every bill, in order to become a law, must be presented to and signed by the President. If the President does not approve of the bill, he shall veto the same and return it with his objections to the House from which it originated. The House shall enter the objections in the journal and proceed to reconsider it. The President must communicate his decision to veto within 30 days from the date of receipt thereof. If he fails to do so, the bill shall become a law as if he signed it. To override the veto, at least 2/3 of ALL the members of each House must agree to pass the bill. In such case, the veto is overridden and becomes a law without need of presidential approval.
31
Note: As a rule, partial veto is invalid. It is allowed only for particular items in an appropriation, revenue, or tariff bill. Item veto The President may veto particular items in an appropriation, revenue or tariff bill. This veto will not affect items to which he does not object.
Veto of a Rider A rider is a provision which does not relate to a particular appropriation stated in the bill. Since it is an invalid provision under Section 25(2), the President may veto it as an item. The executive's veto power does not carry with it the power to strike out conditions or restrictions. If the veto is unconstitutional, it follows that the same produced no effect whatsoever, and the restriction imposed by the appropriation bill, therefore, remains. [Bolinao Electronics Corp vs Valencia, (1964)]
DOCTRINE OF INAPPROPRIATE PROVISIONS - A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is not an appropriation or revenue item. [Gonzales vs Macaraig, (1990)] o The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. [Bengzon vs. Drilon, (1992)] Item - in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill. It is an indivisible sum of money dedicated to a stated purpose. An 'item' of an appropriation bill means an
item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill.'" The president cannot veto unavoidable obligations such as the payment of pensions which has already been vested by the law. b. Non-Legislative (1) Informing Function

Senate of the Philippines, G.R. No. 163556, June 8, 2004]. Even after Congress has adjourned its regular session, it may continue to perform this constitutional duty of canvassing the presidential and vice-presidential election results without need of any call for a special session by the President. The joint public session of both Houses of Congress convened by express directive of the Constitution to canvass the votes for and to proclaim the newlyelected President and Vice-President has not, and cannot, adjourn sine die until it has accomplished its constitutionally mandated task. Only when a board of canvassers has completed its functions is it rendered functus officio. [Aquilino Pimentel Jr. v. Joint Committee of Congress to Canvass the votes cast for President and Vice-President, G.R. No. 163783, June 22, 2004]. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, it is, with more reason, prohibited from making an unofficial canvass of said votes. [Brillantes v. COMELEC, G.R. No. 163193, June 15, 2004] The Supreme Court as Presidential Electoral Tribunal: The Supreme Court, sitting in banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. Term of Office: 6 years which shall begin at noon on the 30th day of June next following the day of the election and shall end at noon of the same day 6 years thereafter. [Sec. 4, Art. VII] NOT eligible for re-election: President. Note: No person who has succeeded as President and has served for more than 4 years shall be qualified for election to the same office for any length of time. [Sec. 4, Art. VII]
32
D. Executive Department
I. Privileges, Inhibitions and Disqualifications II. Powers The President Qualifications: (1) Natural-born citizen of the Philippines; (2) A registered voter; (3) Able to read and write; (4) At least forty years of age on the day of the election; and (5) A resident of the Philippines for at least ten years immediately preceding such election. [Sec. 2, Art. VII] Election: (1) Regular Election Second Monday of Monday (2) Congress as canvassing board Returns of every election for President and Vice President, duly certified by the board of canvassers of each province or city, shall be transmitted to Congress, directed to the Senate President who, upon receipt of the certificates of canvass, shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. Congress shall promulgate its rules for the canvassing of the certificates. In case two or more candidates shall have an equal and highest number of votes, one of them shall be chosen by a majority vote of all the memers of Congress. [Art. VII, Sec. 4] Jurisprudence on Canvassing: Congress may validly delegate the initial determination of the authenticity and due execution of the certificates of canvass to a Joint Congressional Committee, composed of members of the House of Representatives and of the Senate. The creation of the Joint Committee does not constitute grave abuse and cannot be said to have deprived petitioner and the other members of Congress of their congressional prerogatives, because under the very Rules under attack, the decisions and final report of the said Committee shall be subject to the approval of the joint session of both Houses of Congress, voting separately. [Ruy Elias Lopez v.
I. Privileges, Inhibitions and Disqualifications

President
Privileges (1) Official residence (2) Salary. Determined by law; shall not be decreased during tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved. (3) Immunity from Suit. (4) Executive President officials Congress, public. Privilege. It is the right of the and high-level executive branch to withhold information from the courts, and ultimately, the
a. Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings, like he internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. [Senate v. Ermita, G.R. No. 169777, April 20, 2006] The claim of executive privilege is highly recognized in cases where the subject of the inquiry relates to a power textually committed by the Constitution to the President, such as in the area of military and foreign relations. Under commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. [Neri v. Senate Committees, G.R. No. 180843, March 25, 2008] The privilege being an exemption from the obligation to disclose information, the necessity for withholding the information must be of such a high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President (and to the Executive Secretary by oder of the President) the power to invoke the privilege. [Senate v. Ermita, supra]

capacity, as provided by law and as required by the primary functions of the said officials office. These posts do not comprise any other office within the contemplation of the constitutional prohibition, but properly an imposition of additional duties and functions on said officials. The exofficio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in said position. The reason is that these services are already paid for and covered by the compensation attached to the principal office. [National Amnesty Commission v. COA, G.R. No. 156982, September 8, 2004] (3) Shall not directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with; or in any franchise or special privilege granted by the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. (4) Strictly avoid conflict of interest in the conduct of their office (5) May not appoint spouse or relatives by consanguinity or affinity within the fourth civil degree as members of Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Under Secretaries, Chairmen, or heads of bureaus or offices, including government-owned or controlled corporation and their subsidiaries. B. Who are prohibited? (1) President (2) Vice-President, (3) the Members of the Cabinet, and their deputies or assistants
33
b.
c.
Vice-President
Qualifications, election and term of office and removal are same as the President but not VicePresident shall serve for more than 2 successive terms. The Vice-President may be appointed as Member of the Cabinet and such requires no confirmation by the Commission of Appointments.
Prohibitions
A. Prohibited acts: (1) Shall not receive any other emoluments from the government or any other source. (2) Unless otherwise provided in the constitution, shall not hold any other office or employment. The prohibition is not to be construed as applying to posts occupied by the Executive officials without additional compensation in an ex-officio
The stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII as compared to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricter prohibitions. However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said official's office. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and function on said officials. [Civil Liberties Union v Executive Secretary, (1991)] C. Prohibitions against other officials (1) No Senator or Member of the House of Representatives, during his term, may: Hold any other office or employment in the Government, or any of its subdivisions, agencies, or instrumentalities including GOCCs or their subsidiaries; OR Be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. [Sec. 13, Art VI]. (2) No member of the Constitutional Commission during his term, shall:

The President can assume ex officio positions. E.g. The President is the Chairman of NEDA. (Sec. 9, Art XII)
34
(2) Vice-President xxx The Vice-President may be appointed as member of the Cabinet. Such appointment requires no confirmation [Sec 3, Art VII] (3) Cabinet The Secretary of Justice shall be an ex-officio member of the Judicial and Bar Council. [Sec. 8(1), Art VIII] Unless otherwise allowed by law or by the primary functions of his position, appointive officials shall not hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government- owned or controlled corporations or their subsidiaries. [Sec. 7, Art IX-B] Art. VII, Sec. 13 talks of "unless otherwise provided by the Constitution." In the case of Cabinet members, this refers to Art. IX, B, 7, par. 2. Thus, the Constitution allows a Cabinet member to hold another office provided either: such is necessitated by the primary functions of his position (e.g. Secretary of Trade and Industry as Chairman of NDC and Secretary of Agrarian Reform as Chairman of the Land Bank) such is allowed by law
Hold any other office or employment; Engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office; OR Be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. [Sec. 2, Art IX-A]. (3) No elective official during his tenure shall be eligible for appointment or designation in any capacity to any public office or position. [Sec. 7. Art IX B] (4) No appointive official shall hold any other office or employment in the Government or any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries. [Sec. 7. Art IX B] (5) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions. [Sec. 12, Art VIII] D. Exceptions to rule prohibiting executive officials from holding additional positions: (1) President The President can assume a Cabinet post, (because the departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency, so no objection can be validly raised based on Sec. 13, Art VII.
i.
ii.
a. Presidential Immunity
The President as such cannot be sued, enjoying as he does immunity from suit, but the validity of his acts can be tested by an action against the other executive officials or such independent constitutional agencies as the Commission on Elections and the Commission on Audit. [Carillo vs. Marcos (1981)] The privilege may be invoked ONLY by the President. The SC held that the privilege of immunity from suit pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case where the President is a complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against the accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. The President may shed the protection afforded by the privilege and submit to the court's jurisdiction. [Soliven vs Makasiar (1988); Beltran vs
Makasiar (1988)] Petitioners theorize that the present petition for prohibition is improper because the same attacks an act of the President, in violation of the doctrine of presidential immunity from suit. Petitioners contention is untenable for the simple reason that the petition is directed against petitioners and not against the President. The questioned acts are those of petitioners and not of the President. Furthermore, presidential decisions may be questioned before the courts where there is grave abuse of discretion or that the President acted without or in excess of jurisdiction. [Gloria v. Court of Appeals, G.R. No. 119903, August 15, 2000] Immunity co-extensive with tenure. After tenure, the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. [Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001]
Synthesis of Jurisprudential doctrines (1) For the privilege to apply there must be a formal claim of the privilege. Only the President or the Executive Authority (by authority of the President) can invoke the privilege. (2) A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. [Senate v. Ermita, supra] (3) Once properly invoked, a presumption arises that it is privileged. If what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. [Neri v. Senate Committees, G.R. No. 180843, March 25, 2008] (4) Three elements needed to be complied with in order for the claim to executive privilege to be valid. These are: (a) the protected communication must relate to a quintessential and nondelegable presidential power (may be validly claimed by the executive department only in cases where the power subject of the legislative inquiry is expressly granted by the Constitution to the President i.e. the commander-in-chief, appointing, pardoning, and diplomatic powers); it must be authored, solicited, and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President (the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executives organizational structure); and, it may be overcome by a showing of adequate need, such that the information sought likely contains important evidence, and by the unavailability of the information elsewhere by an appropriate investigating authority. [Neri v. Senate, supra]
35
b. Presidential Privilege
Definition: The power of the Government to withhold information from the public, the courts, and the Congress. [Schwart] It as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." [Rozell] Varieties of Executive Privilege: (1) State secrets privilege - invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. (2) Informers privilege - the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. (3) Generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. [Senate v. Ermita, G.R. No. 163783, June 22, 2004] Scope: This jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters." The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Note: Executive privilege, is properly invoked in relation to specific categories of information and not to categories of persons. Only the President (and the Executive Secretary, by order of the President) can invoke the privilege. [Senate v. Ermita, supra]
(b)
(c)

departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions or boards. Definition: the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. Appointment is distinguished from: (1) Designation imposition of additional duties, usually by law, on a person already in the public service. (2) Commission written evidence of the appointment. Classification of Power of Appointment: There are 4 groups of officers whom the Pres may appoint: (1) Heads of the Executive Department, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him; (2) All other officers of the government whose appointments are not otherwise provided by law; (3) Those whom the President authorized to appoint; may be
II. Powers
a. Executive and Administrative Powers b. Power of Appointment c. Power of Control and Supervision d. Military Powers e. Pardoning Power f. Diplomatic Power g. Powers Relative to Appropriation Measures h. Residual Powers
36
a.Executive and Administrative Powers in General

Executive power Definition: It is the duty to implement the laws within the standards imposed by the legislature. *This power is exercised by the President. [Sec 1, Art VII] The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed [Sec 17, Art VII]. The Court held that as administrative head of the government, the President is vested with the power to execute, administer and carry out laws into practical operation. [National Electrification Commission vs. CA (1997)] The powers of the President cannot be said to be limited only to the specific power enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. The framers did not intend that by enumerating the powers of the Pres, he shall exercise those powers and no other. These unstated residual powers are implied from the grant of executive power and which are necessary for the Pres to comply with his duties under the Constitution. [Marcos vs Manglapus (1989)] The President has the authority to carry out a reorganization of the Department of Health under the Constitution and statues. This authority is an adjunct of the Presidents power of control under art. VII, secs 1 and 17, and it is also an exercise of his residual powers. However, the President must exercise good faith in carrying out the reorganization of any branch or agency of the executive department. [Malaria Employees and Workers Association of the Philippines, Inc. v. Romulo, G.R. No. 160093, July 31, 2007]
(4) Officers lower in rank whose appointments Congress may by law vest in the President alone. Note: Heads of bureaus were deliberately removed from the provision of appointments requiring confirmation and were included in the 4th group and hence, their appointments no longer need confirmation. [Sarmiento vs Mison, (1987)] Steps in the appointing process: (1) Nomination by the President (2) Confirmation by the Commission Appointments (3) Issuance of the Commission (4) Acceptance by the appointee
on
b. Power of Appointment IN GENERAL

Sec. 16, Art. VII: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive
Note: In the case of ad interim appointments, steps 1, 3 and 4 precedes step 2. An appointment is deemed complete only upon acceptance. [Lacson v. Romero, 84 Phil. 740]. Appointment is essentially a discretionary power and must be performed by the officer in which it is
vested according to his best lights, the only condition being that the appointee, if issued a permanent appointment, should possess the minimum qualification requirements, including the Civil Service eligibility prescribed by law for the position. This discretion also includes the determination of the nature or character of the appointment. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). Also, as observed in Sarmiento v. Mison, when Congress: (1) creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments; or (2) the officers are considered as among those whose appointments are not otherwise provided for by law. Upon Recommendation of the Judicial and Bar Council (1) Members of the Supreme Court and all other courts. (Sec 9, Art VIII) Appointments need no confirmation. For lower courts, appointment shall be issued within 90 days from submission of the list (2) Ombudsman and his 5 deputies (for Luzon, Visayas, Mindanao, general and military) Sec 9 Art XI. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. Appointment of Vice-President as Member of the Cabinet (Sec 3, Art.VII) Appointment requires NO confirmation Appointments solely by the President (Sec. 16, Art VII) (1) Those vested by the Constitution on the President alone (e.g. appointment of VicePresident to the Cabinet) [Art. VII, Sec. 3(2)] (2) Those whose appointments are not otherwise provided by law. (3) Those whom he may be authorized by law to appoint. (4) Those other officers lower in rank whose appointment is vested by law in the President (alone). The phraseology is muddled: Sarmiento v Mison (1987): In arguing that even bureau chiefs needed confirmation even if they are of inferior rank, the basis was the phrase, "the Congress may, by law, vest in the appointment of other officers lower in rank in the President alone". This meant that until a law is passed giving such appointing power to the President alone, then such appointment has to be

confirmed. The SC dismissed this view however, saying that the inclusion of the word "alone" was an oversight. Thus, the Constitution should read "The Congress may, by law, vest the appointment of other officers lower in rank in the President." Limitations on appointing power of the President (1) The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his "tenure", be appointed as (sec 13, Art VII): a. members of the Constitutional Commissions, b. member of the Office of Ombudsman, c. Secretaries, d. Undersecretaries, e. Chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. (2) The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. [Sec 16(2), Art VII] (3) Appointments extended by an acting President shall remain effective unless revoked by the elected President within 90 days from his assumption of office [Sec. 14, Art. VII] This is limited to presidential appointments. There is no law that prohibits local executive officials from making appointments during the last days of their tenure. [De Rama v. Court of Appeals, G.R. No. 131136, February 28, 2001]
37
Interim or recess appointments

a. Regular and appointments recess (ad-interim)
Appointments requiring confirmation are of two kinds (1) regular, if the CA, that is, Congress, is in session; (2) during the recess of Congress (because the Commission shall meet only while Congress is in session [Art. VI, Sec. 19]. Regular appointment - one made by the President while Congress is in session, takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee. Ad-interim appointment - one made by the President while Congress is not in session, takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments or upon the next adjournment of Congress. (Art. VII, Sec. 16, par. 2)
Ad interim appointment a permanent appointment made by the Pres in the meantime that Congress is in recess. It is permanent as it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to the confirmation of the Commission on Appointments does not alter its permanent character. Hence, said appointment is effective until (1) disapproved by the CA or (2) the next adjournment of Congress [Matibag vs Benipayo (2002)] b. Acting/Temporary appointment Can be withdrawn or revoked at the pleasure of the appointing power. The appointee does not enjoy security of tenure. This is the kind of appointment that the Constitution prohibits the Pres from making to the independent constitutional commissions. The mere filing of a motion for reconsideration of the confirmation of an appointment cannot have the effect of recalling or setting aside said appointment. The Constitution is clear there must either be a rejection by the Commission on Appointments or non-action on its part for the confirmation to be recalled. Also, the power to approve or disapprove appointments is conferred on the CA as a body and not on the individual members. [Pacete vs Secretary (1971)] c. Temporary Designations Admin Code of 1987, Book III Sec. 17 The President may designate an officer already in the govt. service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when: The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or There exists a vacancy; In no case shall a temporary designation exceed one (1) year. d. Limitations on the appointing power of the Acting President (1) Appointments extended by an Acting President shall remain effective unless revoked by the elected President within ninety days from his assumption or reassumption of office. [Sec. 14, Art VII] (2) A President or Acting President shall not make appointments two months immediately before the next presidential elections and up to the end of his term Except temporary appointments to executive positions when continued vacancies therein will

prejudice public service or endanger public safety. [Sec 15, Art VII]
Commission on Appointments Confirmation

The seats reserved for sectoral reps may be filled by appointment by the President under Art XVIII, Sec. 7. It is indubitable that sectoral representatives to the House are among the other officers whose appointments are vested in the Pres in this Constitution, referred to in the 1st sentence of Art. VII, Sec. 16. These appointments require the confirmation of the Commission on Appointments. Synthesis: From the rulings in Sarmiento III v. Mison 1987, Bautista v. Salonga 1989, and Deles v. Constitutional Commission 1989, these doctrines are deducible: Confirmation by the Commission on Appointments is required only for presidential appointees as mentioned in the first sentence of Sec. 16, Art. VII, including those officers whose appointments are expressly vested by the Constitution itself in the President: (1) Heads of the executive departments (2) Ambassadors, other public ministers and consuls (3) Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain (because these are officers of a sizeable command enough to stage a coup) (4) Other officers whose appointments are vested in the President in the Constitution: Chairman and Commissioners of the Constitutional Commissions (Sec 1 Art IX-B, Sec 1 (2) Art IX-B, Sec 1(2) Art IxD) Regular members of the Judicial and Bar Council (Sec 8 (2) Art VII) Sectoral representatives (Sec 7 Art XVIII, Sec 18 Art X)
38
Midnight Appointments
General Rule: Two months immediately before the next presidential elections (2nd Monday of March), and up to the end of his "term" (June 30), a President (or Acting President) shall not make appointments. [Sec 15, Art VII] Exception: Temporary appointments to executive positions, when continued vacancies will: (1) prejudice public service (e.g Postmaster); or (2) endanger public safety (e.g. Chief of Staff). The SC ruled that while "midnight appointments" (note: made by outgoing President near the end of his term) are not illegal, they should be made in the capacity of a "caretaker" doubly careful and prudent in making the selection, so as not to defeat the policies of the incoming administration. The filling up of vacancies in important posts, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the
appointment and the appointees qualifications, may be undoubtedly permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may be regarded as abuse of presidential prerogatives. [Aytona vs Castillo (1962)] The SC emphasized that the Aytona ruling does not declare all midnight appointments as invalid, and that the ad interim appointment of the petitioner chief of police here, whose qualification and regularity were not disputed, except for the fact that it was made during the last few days of the old administration, is thus not invalid. [Quimsing vs Tajanglangit (1964)] The prohibition against midnight appointments applies only to the president and does not extend to local elective officials. Moreover, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. [De Rama v. CA (2001)] NOTE: The Court in the case of De Castro v. JBC, [G. R. No. 191002, March 17, 2010] ruled that the prohibition against midnight appointment applies only to positions in the executive department. Thus, the appointment of Chief Justice Corona was held valid. This ruling effectively overruled In re: Mateo Valenzuela [A.M. No. 98-5-01-SC, November 9, 1998] which extended the prohibition for midnight appointments to the judiciary.
Doctrine of Qualified Political Agency Qualified political agency doctrine (also alter ego principle)- all the different executive and administrative organizations are mere adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases wherein the Chief Executive is required by the Constitution or by the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive depts., performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively acts of the Chief Executive. [Free Telephone Workers Union vs. Minister of Labor and Employment (1981)]
39
General Supervision over Local government units and the autonomous regions
(1) The President shall exercise general supervision over local governments. [Sec 4, Art X] (2) The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. [Sec 16, Art X] Supervision and Control Distinguished Supervision Control Overseeing or the power Power of an officer or authority of the officer to to alter, modify, see that subordinate officers nullify or set aside perform their duties, and if what a subordinate the latter fail or neglect to officer had done fulfill them, then the former and to substitute may take such action or steps the judgment of as prescribed by law to make the former for that them perform these duties. of the latter. This does not include the power to overrule their acts, if these acts are within their discretion.
Power of Removal
The power of removal may be implied from the power of appointment. However, the President cannot remove officials appointed by him where the Constitution prescribes certain methods for separation of such officers from public service, e.g. Chairmen and Commissioners of Constitutional Commissioners who can be removed only by impeachment, or judges who are subject to the disciplinary authority of the Supreme Court. Members of the career civil service of the Civil Service who are appointed by the President may be directly disciplined by him [Villaluz v. Zaldivar, 15 SCRA 710] Members of Cabinet and such officers whose continuity in office depends upon the pleasure of the president may be replaced at any time, but legally speaking, their separation is effected not by removal but by expiration of their term.
d. Military powers
Commander in chief powers (1) He may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. (2) He may suspend the privilege of the writ of habeas corpus, or (3) He may proclaim martial law over the entire Philippines or any part thereof. [Sec. 18, Art. VII]. Subject to judicial review to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction [Sec 1(2), Art VIII]. The President shall be the Commander-in-chief of all armed forces of the Philippines Thus, in one
c. Power of Control and Supervision

Control of Executive Departments (Sec 17, Art VII) Control - is the power of an officer to alter or modify or nullify or to set aside what a subordinate has done in the performance of his duties and to substitute one's own judgment to that of a subordinate. [Mondano v. Silvosa, ]
case, the President prohibited a general from attending a hearing at the Senate. However, the ability of the President to require a military official to secure prior consent before appearing before Congress pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control. The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that the President shall be the Commander-in-Chief of all armed forces of the Philippines x x x Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. [Gudani v. Senga, G.R. No. 170165, August 15, 2006]. Graduated Powers - Sec. 18, Art VII, grants the President, as Commander-in-Chief, a sequence of graduated power[s]. From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, [t]hese conditions are not required in the exercise of the calling out power. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. [Sanlakas v. Executive Secretary, 2004]

contemplated by Section 23 (2), Article VI. [Sanlakas v Executive Secretary (2004)] Assailed is PP1017 (Declaration of State of National Emergency). It is different from the law in Sanlakas as this proclamation was woven out of the calling out and take care powers of the President joined with the temporary takeover provision under Art. XII, section 17.
40
PP1017 purports to grant the President, without authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. The SC held that while the President could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment, the exercise of the emergency powers, such as the taking over of privately-owned public utility or business affected with public interest, requires a delegation from Congress which is the repository of emergency powers. PP1017 did not authorize said temporary take over without authority from Congress. [David v. Arroyo (2006)]
a.Suspend the privilege of the writ of habeas corpus

"Writ of habeas corpus" is an order from the court commanding a detaining officer to inform the court (1) if he has the person in custody, and (2) his basis in detaining that person. "Privilege of the writ" is that portion of the writ requiring the detaining officer to show cause why he should not be tested. Note that it is the privilege that is suspended, not the writ itself. Requisites: (1) There must be an invasion or rebellion, and (2) The public safety requires the suspension. Duration: Not to exceed 60 days unless extended by Congress. Effects of the suspension of the privilege: (1) The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion [Sec. 18(5), Art. VII]. Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest. The suspension of the privilege does not make the arrest without warrant legal. But the military is, in effect, enabled to make the arrest, anyway since, with the suspension of the privilege, there is no remedy available against such unlawful arrest (arbitrary detention). The arrest without warrant is justified by the emergency situation and the
Call out the AFP to prevent lawless violence

This is merely a police measure meant to quell disorder. As such, the Constitution does not regulate its exercise radically. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers
difficulty in applying for a warrant considering the time and the number of persons to be arrested. The crime for which he is arrested must be one related to rebellion or invasion. As to other crimes, the suspension of the privilege does not apply.

the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation. (2) Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension. (3) Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken). (4) The Congress shall then vote jointly, by an absolute majority. It has two options: (a) To revoke such proclamation or suspension. When it so revoked, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills. (b) To extend it beyond the 60-day period of its validity. Congress can only so extend the proclamation or suspension upon the initiative of the President. The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency. Note: If Congress fails to act before the measure expires, it can no longer extend it until the President again re-declares the measure. Congress cannot "validate" the proclamation or suspension, because it is already valid. If Congress extends the measure, but before the period of extension lapses the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back. If Congress does not review or lift the order, this can be reviewed by the Supreme Court pursuant to the next section.
41
(2) During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released. [Sec. 18(6),Art. VII] The effect of the suspension of the privilege, therefore, is only to extend the periods during which he can be detained without a warrant. When the privilege is suspended, the period is extended to 72 hours. What happens if he is not judicially charged nor released after 72 hours? The public officer becomes liable under Art. 125 for "delay in the delivery of detained persons." (3) The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. [Sec. 13,Art. III]
b. Proclaim Martial Law

Requisites: (1) There must be an invasion or rebellion, and (2) Public safety requires the proclamation of martial law all over the Philippines or any part thereof. The following cannot be done [Sec. 18 (4), Art. VII] (1) Suspend the operation of the Constitution. (2) Supplant the functioning of the civil courts and the legislative assemblies. (3) Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function. "open court" doctrine holds that civilians cannot be tried by military courts if the civil courts are open and functioning. if the civil courts are not functioning, then civilians can be tried by the military courts. Martial law usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, that is a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect. (4) Automatically suspend the privilege of the writ of habeas corpus. The President must suspend the privilege expressly. The Role of Congress [Art. VII, Sec. 18, pars. 1-2] (1) Congress may revoke the proclamation of martial law or suspension of the privilege of
The Role of the Supreme Court [Art. VII, Sec. 18, par. 3] (1) The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of: (a) the proclamation of martial law or the suspension of the privilege of the writ, or (b) the extension thereof. It must promulgate its decision thereon within 30 days from its filing. [Sec
18 (3), Art. VII] (2) The jurisdiction of the SC may be invoked in a proper case. (3) Petition for habeas corpus (a) When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension. (b) Before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension. (4) Test of Arbitrariness: The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact. [IBP v. Zamora, (2000)] amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction. [Sec 1(2) Art. VIII] The function of the court is to check and not supplant the executive or to ascertain merely whether he has gone beyond the constitutional limits of jurisdiction. The proper standard is not correctness but arbitrariness. There are 4 ways, then, for the proclamation or suspension to be lifted: (P-C-S-O) (1) Lifting by the President himself (2) Revocation by Congress (3) Nullification by the Supreme Court (4) Operation of law after 60 days Cf. RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by Returning to the Civil Courts the Jurisdiction over Certain Offenses involving Members of the Armed Forces of the Philippines, other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees" RA 7055 effectively placed upon courts the jurisdiction over offenses involving members of and other members subject to law. the civil certain the AFP military

by court-martial. The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. [Olaguer vs Military Commission No. 34 (1987)]
42
(5) Pardoning Power

a) b) Nature Forms of executive clemency
Executive clemencies (1) Reprieves - a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution. [Blacks Law Dictionary]. It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution. [People vs. Vera, supra] (2) Commutations - Reduction of sentence. [Blacks Law Dictionary] . It is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed. [People vs. Vera, supra] (3) Amnesty - a sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty usually of political offenses and who are subject to trial but have not yet been convicted, and often conditioned upon their return to obedience and duty within a prescribed time. (BLACK; Brown v Walker, 161 US 602). (4) Pardons - Permanent cancellation of sentence. [Blacks Law Dictionary]. It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for the crime he has committed. It is a remission of guilt, a forgiveness of the offense. [People v Vera, supra] Plenary or partial Plenary - extinguishes all the penalties imposed upon the offender, including accessory disabilities Partial does not extinguish all penalties imposed Absolute or conditional Conditional - the offender has the right to reject the same since he
RA 7055 provides that when these individuals commit crimes or offenses penalized under the RPC, other special penal laws, or local government ordinances, regardless of whether civilians are co-accused, victims, or offended parties which may be natural or juridical persons, they shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is serviceconnected in which case it shall be tried
may feel that the condition imposed is more onerous than the penalty sought to be remitted. Absolute pardon - pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not subject to acceptance by the offender. Amnesty Addressed to Political Offenses To classes of persons Requires concurrence of Congress Public act which the courts could take judicial notice Looks backward and puts into oblivion the offense itself.

contempt or civil contempt. (6) Cannot restore public offices forfeited. Pardon implies guilt and does not erase the fact of the commission of the crime and the conviction thereof. It does not ipso facto restore a convicted felon to a public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office. [Monsanto vs Factoran (1989)] Application of Pardoning Powers to Administrative Cases If the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. However, the power of the President to grant executive clemency in administrative cases refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the govt. [Llamas v Executive Secretary (1991)] Removal of Administrative Penalties Sec. 53, Chapter 7, Subtitle A, Title I, Book V, Administrative Code of 1987 Removal of Administrative Penalties or Disabilities In meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service Who may avail of amnesty? (Case Law) (Asked 5 times in the Bar) Amnesty Proclamation No. 76 applies even to Hukbalahaps already undergoing sentence upon the date of its promulgation. The majority of the Court believes that by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. [Tolentino vs Catoy (1948)] The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified from amnesty. The acts for which they were convicted were ordinary crimes without any political complexion and consisting only of diversion of public funds to private profit. The amnesty proclamation covered only acts in the furtherance of resistance to duly constituted authorities of the Republic and applies only to members of the MNLF, or other antigovernment groups. [Macaga-an vs People (1987)] (6) Diplomatic Power Scope of Diplomatic Power: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in
43
Pardon Infractions of peace of the state Granted to individuals Exercised solely by the executive Private act which must be pleaded and proved Looks forward and relieves the pardonee of the consequences of the offense
(5) Remit fines and forfeitures, after conviction by final judgment Except: (a) In cases of impeachment, and (b) As otherwise provided in this Constitution No pardon, amnesty, parole or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation by the Commission (on Elections.) [Sec 5, Art IX] The President shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. [Sec 19, Art VII] Probation - a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer. [Sec. 3 (a), PD 968.] Parole - suspension of the sentence of a convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspended. [REYES] Limitations on the Pardoning Power (1) Cannot be granted on impeachment cases. [Sec. 19, Art. VII]. (2) Cannot be granted in cases of violation of election laws without the favorable recommendation of the COMELEC. [Sec. 5, Art. IX-C]. (3) Can be granted only after conviction by final judgment [People v. Salle, 250 SCRA 581]. (4) Cannot absolve the convict of civil liability. (5) Cannot be granted to cases of legislative
external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority: (1) to deal with foreign states and governments; (2) extend or withhold recognition; (3) maintain diplomatic relations; (4) enter into treaties; and (5) transact the business of foreign relations. [Pimentel v. Executive Secretary, G. R. No. 158088, July 6, 2005]

the Senate. From the point of view of international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. The distinction between an executive agreement and a treaty is purely a constitutional one and has no international legal significance. [USAFFE Veterans Assn. vs Treasurer (1959)] Two Classes of Executive Agreements (1) Agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements; and (2) Agreements entered into in pursuance of acts of Congress, or Congressional-Executive Agreements. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. [Gonzales v Hechanova (1963)] The issue in this case is the constitutionality of the VFA. The SC held that once the Senate performs the power to concur with treaties or exercise its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot be viewed as an abuse of power, much less a grave abuse of discretion. The President, in ratifying the VFA and submitting the same for concurrence of the Senate, acted within the confines and limits of the power vested in him by the Constitution. The President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. [Bayan vs Executive Secretary (2000)]
44
(a) Treaty-making power

No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the members of the Senate. [Sec 21, Art VII] Treaty - as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. [Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000]. Other terms for a treaty: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. Note: It is the President who RATIFIES a treaty (not the Senate), the Senate merely CONCURES. [Bayan v. Executive Secretary] Executive Agreements Entered into by the President Needs no concurrence. International agreements involving political issues or changes in national policy and those involving international agreements of permanent character usually take the form of TREATIES. But the international agreements involving adjustments in detail carrying out well-established national policies and traditions and those involving a more or less temporary character usually take the form of EXECUTIVE AGREEMENTS. [ Commissioner of Customs vs. Eastern Sea Trading (1961)] The agreement is not a "treaty" as the term is used in the Constitution. The agreement was never submitted to the Senate for concurrence. It must be noted that a treaty is not the only form that an international agreement may assume. For the grant of treaty making power to the Executive and the Senate does not exhaust the power of the government over international relations. Consequently, executive agreements may be entered into with other states and are effective even without the concurrence of
(b) Deportation of undesirable aliens

The President may deport only according to grounds enumerated by law since it would be unreasonable and undemocratic to hold that an alien be deported upon an unstated or undefined ground depending merely on the use of an unlimited discretion by the President. [Qua Chee Gan vs Deportation Board (1963] 2 ways of deporting an undesirable alien: (1) by order of the President after due investigation, pursuant to section 69 of the Revised Administrative Code
(2) by the Commissioner of Immigration under section 37 of the immigration Law [Qua Chee Gan v. Deportation Board, supra] Scope of the power The Deportation Board can entertain deportation based on grounds not specified in Sec 37 of the Immigration Law. The Board has jurisdiction to investigate Go Tek even if he had not been convicted yet. The Presidents power to deport aliens and to investigate them subject to deportation are provided in the Revised Administrative Code. The State has inherent power to deport undesirable aliens. This power is exercised by the President. There is no legal nor constitutional provision defining the power to deport aliens because the intention of the law is to grant the Chief Executive the full discretion to determine whether an aliens residence in the country is so undesirable as to affect the security, welfare or interest of the state. The Chief Executive is the sole and exclusive judge of the existence of facts which would warrant the deportation of aliens. [Go Tek vs Deportation Board (1977)]

approval by the Congress (1) Because the Constitution places the power to check the Presidents power on the Monetary Board (2) Congress may provide guidelines and have them enforced through the Monetary Board
45
Prepare and Submit the Budget

The President shall submit to Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. [Sec 22, Art VII] The budget is the plan indicating: i.expenditures of the government, ii.sources of financing, and iii.receipts from revenue-raising measures.
This budget is the upper limit of the appropriations bill to be passed by Congress. Through the budget, therefore, the President reveals the priorities of the government.
Fixing of tariff rates (Sec 28, Art VI)

The Congress may, by law, authorize the President to fix: within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates import and export quotas tonnage and wharfage dues other duties or imposts within the framework of the national development program of the Government. Rationale for delegation: highly technical nature of international commerce, and the need to constantly and with relative ease adapt the rates to prevailing commercial standards.
(7) Powers Relative to Appropriation Measures Contracting and guaranteeing foreign loans
Requisites for contracting and guaranteeing foreign loans: (1) With the concurrence of the monetary board [Sec 20, Art VII] (2) subject to limitations as may be provided by law [Sec 21, Art XII] (3) information on foreign loans obtained or guaranteed shall be made available to the public [sec 21, Art XII] Cf. Republic Act 4860 An Act Authorizing The President Of The Philippines To Obtain Such Foreign Loans And Credits, Or To Incur Such Foreign Indebtedness, As May Be Necessary To Finance Approved Economic Development Purposes Or Projects, And To Guarantee, In Behalf Of The Republic Of The Philippines, Foreign Loans Obtained Or Bonds Issued By Corporations Owned Or Controlled By The Government Of The Philippines For Economic Development Purposes Including Those Incurred For Purposes Of Re-Lending To The Private Sector, Appropriating The Necessary Funds Therefore, And For Other Purposes Approved, September 8, 1966. Role of Congress: The President does not need prior
Veto Power
General rule: all bills must be approved by the President before they become law Exceptions: (1) the veto of the President is overridden by 2/3 vote of all the Members of the House where it originated; (2) the bill lapsed into law because the inaction of the President; and (3) the bill passed is the special law to elect the President and Vice-President. This gives the President an actual hand in legislation. However, his course of action is only to approve it or veto it as a whole. (See Legislative Power of Congress)
It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec. 27 [1]). Said remedy, however, is available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to be ultra vires. In the latter case, it becomes the duty of the Court to draw the dividing line where the exercise of executive power ends and the bounds of legislative jurisdiction begin. [PHILCONSA v Enriquez (1994)]

Congress held its regular session. The fact that Congress could now meet meant that there was no emergency anymore that would justify the delegation. The assertion that new legislation is needed to repeal CA671 is not in harmony with the Constitution. If a new law were necessary to terminate it, then it would be unlimited and indefinite. This would create an anomaly since what was intended to meet a temporary emergency becomes a permanent law. [Araneta v Dinglasan (1949)] The specific power to continue in force laws and appropriations which would lapse or otherwise become inoperative is a limitation on the general power to exercise such other powers as the executive may deem necessary to enable the government to fulfill its responsibilities and to maintain and enforce its authority. [Rodriguez v Gella (1953)]
46
(8) Residual Powers Emergency powers

The Congress may by law authorize the President to exercise powers necessary and proper to carry out a declared national policy. Different from the Commander-in-Chief clause: When the President acts under the Commander-in-Chief clause, he acts under a constitutional grant of military power, which may include the law-making power. When the President acts under the emergency power, he acts under a Congressional delegation of law-making power. Meaning of power necessary and proper - Power to issue rules and regulations This power is: (1) for a limited period, and (2) subject to such restrictions as Congress may provide. The power ceases: (1) upon being withdrawn by resolution of the Congress, or, if Congress fails to adopt such resolution, (2) upon the next (voluntary) adjournment of Congress. For the fact that Congress is able to meet in session uninterruptedly and adjourn of its own will proves that the emergency no longer exists is to justify the delegation. This rule or the termination of the grant of emergency powers is based on decided cases, which in turn became Art. VII, Sec. 15 of the 1973 Constitution. The Congress granted the President certain emergency powers. (CA671) After the war, Congress held a special session. The SC held that the emergency power lasted only until
Inconsistency between the Constitution and the cases: (BARLONGAY) The Constitution [Art. VI, Sec. 23 (2)] states that the emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress Cases tell us that the emergency powers shall cease upon resumption of session. Reconciling the two: it would not be enough for Congress to just resume session in order that the emergency powers shall cease. It has to pass a resolution withdrawing such emergency powers, otherwise such powers shall cease upon the next adjournment of Congress. Emergency Power In times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Sec 23, Art VI see discussion above) Please refer to preceding subsection 2.a. EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL
RULES ON SUCCESSION President Death or permanent disability of the President-elect President-elect fails to qualify President shall not have been chosen No President and Vice-President chosen nor shall have qualified, or both shall have died or become permanently disabled Vice-President-elect shall become President Vice-President-elect shal act as President until the Presidentelect shall have qualifiedl Vice-President-elect shall act as President until a President shall have been chosen and qualified. President of the Senate or incase of his inability, Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified. Vice-President-elect become President shall
47
Vacancy at the Beginning of the term
In the event of inability of the officials mentioned, Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or Vice-President shall have qualified.
Vacancy during the term
Death, permanent disability, removal from office, or resignation of the President Death, permanent disability, removal from office, or resignation of President and Vice-President
Temporary disability
When President transmits to the Senate President and the Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office When a Majority of all the members of the Cabinet transmit to the Senate Presdent and the Speaker their writted declaration that the President is unable to discharge the powers and duties of his office If after the President transmits his declaration of his ability to discharge his office, and a majority of members of the Cabinet transmit within 5 days to the Senate President and Speaker their written declaration that the President is unable to discharge the powers and duties of his office, Congress shall decide the issue.
Senate President or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a Presidnet or Vice-President shall be elected and qualified. Congress, by law, shall provide for the manner in which one is to act as President in the event of inability of the officials mentioned above. Such powers and duties shall be discharged by the VicePresident as Acting President, until the President transmits to them a written declaration to the contrary the Vice-President shall immediately assume the powers and duties of the office as Acting President until the President transmits to the Senate President and Speaker his written declaration that no inability exists. Congress determines by a 2/3 vote of both houses, voting separately, that the President is unable to discharge the powers and dutes of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office
Congress shall convene, if not in session, within 48 hours. And if within 10 days from receipt of the last written declaration or, if not in session, within 12 days after it is required to assemble.
JUDICIAL POWER Constitutional duty of Congress in case of vacancy in the offices of President and Vice-President At 10 oclock in the morning of the 3rd day after the vacancy occurs, Congress shall convene without need of a call, and within 7 days enact a law calling for a special election to elect a President and a VicePresident to be held not earlier than 45 nor more than 60 days from the time of such call. The bill shall be deemed certified and shall become law upon its approval on third reading by Congress. xxx the Convening of Congress cannot be suspended nor the special election postponed. xxx No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election. Vice-President Sec. 9 Art. VII The President shall nominate a VicePresident from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the members of both houses of Congress voting separately. enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government [Art. VIII, Sec. 1, Par. 2] Jurisdiction power to decide and hear a case and execute a decision thereof
JUDICIAL REVIEW conformity with the Constitution [Angara v. Electoral Commission (1936)]
Requisites for exercise
D. Judicial Department
I. Concepts II. Judicial Indepdence Safeguards III. Judicial Restraint IV. Appointments to the Judiciary V. Supreme Court
1.Appropriate case: actual case or controversy 2.Standing: personal and substantial interest 3.Question raised at the earliest opportunity 4.Lis mota of the case
I. Concepts
a. Judicial Power (Section 1, Article VIII) Judicial power includes the duty of the courts of justice to: (a) settle actual controversies involving rights which are legally demandable and enforceable, and (b) to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The second clause effectively limits the doctrine of political question. Vested in: Supreme Court and in such lower courts as may be established by law. b. Judicial Review JUDICIAL POWER Where vested Definition Supreme Court Lower courts Duty to settle actual controversies involving rights which are legally demandable and JUDICIAL REVIEW Supreme Court Lower courts Power of the courts to test the validity of executive and legislative acts in light of their
When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial upremacy" which properly is the power of judicial review under the Constitution. (Angara v. Electoral Commission, 1936) Functions of Judicial Review i. Checking ii. Legitimating iii. Symbolic
Essential Requisites for Judicial Review

a. Actual case or controversy
This means that there must be a genuine conflict of legal rights and interests which can be resolved through judicial determination. (John Hay vs. Lim, 2003) This precludes the courts from entertaining the following: i. ii. Request for an advisory opinion [Guingona vs. CA, (1998)] Cases that are or have become moot and academic, UNLESS --a. there is a grave violation of the Constitution;
b. the exceptional character of the situation and the paramount public interest is involved; c. when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; d. fourth, the case is capable of repetition yet evading review.[capable of repetition yet evading review [Alunan III v. Mirasol, (1997); Sanlakas v. Executive Secretary, (2004)]; or e. when the court feels called upon to exercise its symbolic function and provide future guidance [Salonga v. Pao, (1985)] b. Standing: NOT the same as real party in interest A proper party is one who has sustained or is in imminent danger of sustaining a direct injury as a result of the act complained of (IBP v. Zamora, 2000). The alleged injury must also be capable of being redressed by a favorable judgment [Tolentino v. Comelec, 2004]. i. Requires partial consideration of the merits of the case in view of its constitutional and public policy underpinnings [Kilosbayan vs Morato, (1995)] ii. May be brushed aside by the court as a mere procedural technicality in view of transcendental importance of the issues involved [Kilosbayan vs Guingona, 1994]; [Tatad vs DOE, (1995)}. iii. Who are proper parties? Taxpayers, when public funds are involved (Tolentino vs Comelec, 2004) Government of the Philippines, when questioning the validity of its own laws (People vs Vera, 1937) Legislators, when the powers of Congress are being impaired (Philconsa vs Enriquez, 1994). Citizens, when the enforcement of a public right is involved Taada vs Tuvera, (1985). c. Constitutional question must be raised at the earliest possible opportunity, except: i. in criminal cases, at the discretion of the court ii. in civil cases, if necessary for the determination of the case itself iii. when the jurisdiction of the court is involved d. Decision on the constitutional question must be determinative of the case itself. The reason for this is the doctrine of separation of powers which requires that due respect be given to the co-equal branches, and because of the grave consequences of a declaration of unconstitutionality. (De la Llana v. Alba, 1982) (1) Operative Fact Doctrine Even if a law was stricken off as unconstitutional, courts shall still give recognition to its operative effects that inhered when it still took effect. Although the orthodox view holds that

unconstitutional laws cannot be the basis of any legal right or duty, it is not sufficiently realistic in admitting that prior to the declaration of nullity, such challenged act must have been in force and had to be complied with. Refusing to recognize what had transpired prior to such adjudication will deprive the law of its quality of fairness and justice. The actual existence of a stature, prior to such a determination of unconstitutionality, is an operative fact and may have consequences which cannot be justly ignored. [De Agbayani v. PNB (1971)] Effect of a Declaration of Unconstitutionality a. Orthodox view An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative, as if it had not been passed at all. b. Modern view Pelaez v. Auditor General, (1965) Certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized. [NACHURA] (2) Moot Questions One requirement for the exercise of judicial power is the ripeness of the controversy. This means it must be raised not too early that it is conjectural or anticipatory, nor too late that it becomes moot. HOWEVER, there are exceptions to the mootness doctrine: When the issue is capable of repetition yet evading review. (3) Political Question Doctrine The term political question refers to: (1) matters to be exercised by the people in their primary political capacity; or (2) those specifically delegated to some other department or particular office of the government, with discretionary power to act. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. [Taada v. Cuenco, (1957)] In recent years, the Court has set aside this doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislative and Executive branches [BERNAS]. POLITICAL QUESTION Alejandrino v. Quezon, (1924): The legislatures exercise of disciplinary power over its member is not to be interfered with by the Court. Vera v. Avelino, (1946): inherent right of the legislature to determine who shall be admitted to its membership JUSTICIABLE CONTROVERSY Avelino v. Cuenco, (1949): election of Senate President was done without the required quorum Taada v. Cuenco, (1957): The selection of the members of the Senate Electoral Tribunal is subject to
49
POLITICAL QUESTION JUSTICIABLE CONTROVERSY constitutional limitations. Cunanan v. Tan, Jr., (1962): The Commission on Appointments is a constitutional creation and does not derive its power from Congress. Gonzales v. Comelec, (1967); Tolentino v. Comelec, (1971): abandoned Mabanag v. Lopez-Vito Lansang v. Garcia, (1971): Suspension of the privilege of the writ of habeas corpus is not a political question.

(2) The members of the judiciary are not subject to confirmation by the CA. (3) The members of the SC may not be removed except by impeachment. (Art. IX, Sec. 2.) (4) The SC may not be deprived of its minimum original and appellate jurisdiction as prescribed in Art. X, Sec. 5 of the Consti. (Art. VIII, Sec. 2.) (5) The appellate jurisdiction of the SC may not be increased by law w/o its advice and concurrence. (Art. VI, Sec. 30.) (6) The SC now has administrative supervision over all lower courts and their personnel. (Art. VIII, Sec. 6.) (7) The SC has exclusive power to discipline judges of lower courts. (Art. VIII, Sec. 11.) (8) The members of the SC and all lower courts have security of tenure, w/c cannot be undermined by a law reorganizing the judiciary. (Id.) (9) They shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12.) (10) The salaries of judges may not be reduced during their continuance in office. (Art. VIII, Sec. 10.) (11) The judiciary shall enjoy fiscal autonomy. (Art. VIII, Sec. 3.) Fiscal autonomy means freedom from outside control. As the Court explained in Bengzon v. Drilon: As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission and the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. (In re: Clarifying and Strengthening the Organizational Structure and Set-up of the Philippine Judicial Academy, A.M. No. 01-1-04-SC).
50
Mabanag v. Lopez-Vito, (1947): Proposal to amend the Constitution is a highly political function performed by Congress in its sovereign capacity. Osmea v. Pendatun, (1960): disciplinary power of the legislature Severino v. GovernorGeneral, (1910): Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary (calling a special local election). Montenegro v. Castaeda, (1952): Authority to decide whether the exigency has arisen requiring the suspension of the privilege of the writ of habeas corpus belongs to the President. Manalang v. Quitoriano, (1954): Presidents appointing power is not to be interfered with by the Court. Javellana v. Executive Secretary, (1973): The people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.
Javellana v. Executive Secretary, (1973): WON the 1973 Constitution had been ratified in accordance with the 1935 Constitution is justiciable.
II. Constitutional Safeguards of the Supreme Court

(1) The SC is a constitutional body. It cannot be abolished nor may its membership or the manner of its meetings be changed by mere legislation. [Art. VIII, Sec. 4 (1)]
(12) The SC alone may initiate rules of court. [Art. VIII, Sec. 5 (5).]
(13) Only the SC may order the temporary detail of judges. [Art. VIII, Sec. 5 (3)] (14) The SC can appoint all officials and employees of the judiciary. [Art. VIII, Sec. 5 (6)]

or its officers, to compel the performance of duties purely legislative in their character which therefore pertain to their legislative functions over which they have exclusive control. Baker v. Carr: Guidelines for determining whether a question is political or not: o There is a textually demonstrable constitutional commitment of the issue to a political department; o Lack of judicially discoverable and manageable standards for resolving it; o The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; o Impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; o An unusual need for unquestioning adherence to a political decision already made; o Potentiality of embarrassment from multifarious pronouncements by various departments on one question
51
III. Judicial Restraint

The judiciary will not interfere with its co-equal branches in cases of: i. When there is no showing of a grave abuse of discretion (1) issue is a political question ii. There is no showing of grave abuse of discretion (1) PPA v. Court of Appeals: If there is no showing of grave abuse of discretion on the part of a branch or instrumentality of the government, the court will decline exercising its power of judicial review. Courts will not rule on the WISDOM of the decision of a separate branch or department. Courts will only judge whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction. (2) Chavez v. COMELEC: Judicial review shall involve only those resulting to grave abuse of discretion by virtue of an agencys quasi-judicial powers, and not those arising from its administrative functions. iii. The issue is a political question. Even when all requisites for justiciability has been met, judicial review will not be exercised when the issue involves a political question. Mabanag v. Lopez Vito: Proposals for revision or amendment of the Constitution duly certified by the legislative authority shall be binding and conclusive upon the courts under the enrolled bill rule. o The validity of a proposal which leads to ratification of an amendment to the Constitution is a political question. o A duly authenticated copy of a Congressional Resolution proposing an amendment to the Constitution is conclusive upon the Courts under the Enrolled Bill Rule. o An enrolled bill is a bill duly certified by the President of the Senate and the Speaker of the House as having been passed in accordance with the rules stated in the Constitution. Reversed in Gonzales vs. COMELEC: Whether Congress or a Constitutional convention has properly proposed amendments to the Constitution is a justiciable and not a political question. Alejandrino v. Quezon: Mandamus will not lie against the legislative body, its members,
IV. Appointments to the Judiciary

Synthesis of Constituional and Statutory Qualifications SC and RTC MTC/ CA JUDGE MCTC JUSTICE JUDGE Citizenship Naturalborn Filipino Filipino Age At least At least At least 40 years 35 years 30 years old old old Experience 15 years Has been engaged or more for at least 5 years in as a the practice of law* judge or in the Philippines or a lower has held public court or office in the has been Philippines requiring engaged admission to the in the practice of law as an practice indispensable of law in requisite the Phils. for the same period Tenure Hold office during good behavior until they reach the age of 70 or become incapacitated to discharge their duties Characteristics Person of proven competence, integrity, probity and independence *Practice of law is not confined to litigation. It means any activity in and out of court, which requires the application of law, legal procedure,
knowledge, training and experience. [Cayetano v. Monsod, (1991)]

But the term of those initially appointed shall be staggered in the following way so as to create continuity in the council: IBP representative - 4 years Law professor - 3 years Retired justice - 2 years Private sector - 1 year Primary function: Recommend appointees to the judiciary, May exercise such other functions and duties as the SC may assign to it. [Art. VIII, Sec. 8(5)]
Subtopic 1. Constitutional Requirements (cannot be reduced by law)

Supreme Court Justice: (1) Natural born citizens (2) At least 40 years of age (3) Enagaged in the practice of law or a judge of of 15 years or more (4) Must be of proven competence, integrity, probity and independence. Lower Collegiate Courts (1) Natural born citizens (2) Member of the Philippine Bar (3) Must be of proven competence, integrity, probity and independence (4) Such additional requirements provided by law. Lower Courts (1) Natural born citizens (2) Member of the Philippine Bar (3) Must be of proven competence, integrity, probity and independence. (4) Such additional requirements provided by law. Note: In the case of judges of the lower courts, the Congress may prescribe other qualifications. (Art VIII, Sec. 7(3).
52
Subtopic 3. Procedure of Appointment

(1) The JBC shall submit a list of three nominees for every vacancy to the President. [Art. VIII, Sec. 9] (2) Any vacancy in the Supreme Court shall be filed within ninety (90) days from the occurrence thereof. [Art. VIII, Sec. 4(1)] (3) For lower courts, the President shall issue the appointment within ninety (90) days from the submission by the JBC of such list. [Art. VIII, Sec. 9]. Relate this to the constitutional prohibition against midnight appointments. The Court in the case of De Castro v. JBC, [G. R. No. 191002, March 17, 2010] ruled that the prohibition against midnight appointment applies only to positions in the executive department. Thus, the appointment of Chief Justice Corona was held valid. This ruling effectively overruled In re: Mateo Valenzuela [A.M. No. 98-5-01-SC, November 9, 1998] which extended the prohibition for midnight appointments to the judiciary.
Subtopic 2. Judicial and Bar Council

Composition: Ex-officio members [Art. VIII, Sec. 8(1)] (1) Chief Justice as ex-officio Chairman (2) Secretary of Justice (3) Representative of Congress Regular members [Art. VIII, Sec. 8(1)] (4) (5) (6) (7) Representative of the Integrated Bar Professor of Law Retired member of the SC Representative of private sector
Subtopic 4. Disqualification from Other Positions or Offices

Art. VIII, Sec. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasijudicial or administrative functions. It was held that the SC and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected w/ the administering of judicial functions. [Meralco vs Pasay Transportation Co., (1932)] A judge in the CFI shall not be detailed with the Department of Justice to perform administrative functions as this contravenes the doctrine of separation of powers. [Garcia vs Macaraig, (1972)]
Secretary ex-officio [Art. VIII, Sec. 8(3)]- Clerk of the SC, who shall keep a record of its proceedings Appointment, Tenure, Salary of JBC Members (1) Ex-officio members - For obvious reasons this does not apply since the position in the Council is good only while the person is the occupant of the office. (2) Regular members [Art. VIII, Sec. 8(2)] - The regular members shall be appointed by the President with the consent of the Commission on Appointments. The term of the regular members is 4 years.
Subtopic 5. Composition of the Supreme Court

(1) Chief Justice and 14 Associate Justices (2) May sit en banc or in divisions of three, five,
or seven Members (3) Vacancy shall be filled within 90 days from the occurrence thereof En Banc and Division Cases En banc - decided with the concurrence of a majority of the Members who actually took part in the deliberations and voted. Instances when the SC sits en banc: (C-DD-MM-PO) (1) Those involving the constitutionality, application, or operation of: (TOIL-PIPOO) Treaty Orders International or executive agreement Law Presidential decrees Instructions Proclamations Ordinances Other regulations (2) Exercise of the power to discipline judges of lower courts, or order their dismissal [Art. VIII, Sec. 11] (3) Cases or matters heard by a division where the required number of votes to decide or resolve (the majority of those who took part in the deliberations on the issues in the case and voted thereon and in no case less than 3 members) is not met [Art. VIII, Sec. 4(3)] (4) Modifying or reversing a doctrine or principle of law laid down by the court in a decision rendered en banc or in division [Art. VIII, Sec. 4(3)] (5) Actions instituted by citizen to test the validity of a proclamation of martial law or suspension of the privilege of the writ [Art. VII, Sec. 18] (6) When sitting as Presidential Electoral Tribunal [Art. VII, Sec. 4, par. 7] (7) All other cases which under the Rules of Court are required to be heard by the SC en banc. [Id., Sec. 4(2)] In divisions Requirement and Procedures: (1) With the concurrence of a majority of the Members who actually took part in the deliberations and voted (2) In no case without the concurrence of at least three of such Members (3) When required number is not obtained, the case shall be decided en banc: Provided: that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc The Supreme Court sitting en banc is not an

appellate court vis--vis its Divisions. The only constraint is that any doctrine or principle of law laid down by the Court, either rendered en banc or in division, may be overturned or reversed only by the Court sitting en banc.[ Firestone Ceramics v. CA, (2000)]
53
Subtopic 6. Procedural Rule Making

Art. VIII, Sec. 5. The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. The 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. [Echegaray vs Secretary of Justice, (1999)] Limitations: a. Shall provide a simplified and inexpensive procedure for speedy disposition of cases b. Uniform for all courts in the same grade c. Shall not diminish, increase or modify substantive rights
Subtopic 7. Administrative Supervision Over Lower Courts

Administrative Powers of the Supreme Court (1) Assign temporarily judges of lower courts to other stations as public interest may require; shall not exceed 6 months without the consent of the judge concerned (2) Order a change of venue or place of trial to avoid a miscarriage of justice; (3) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law; (4) Supervision over all courts and the personnel thereof; (5) Discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted [en banc]. Grounds Removal from Office on Impeachment of Members of the SC (Art. XI, Sec. 2) i. Culpable violation of the Constitution ii. Treason iii. Bribery iv. Graft and corruption v. Other high crimes vi. Betrayal of public trust

instrumentalities, including GOCCs or their subsidiaries.
F. Constitutional Commissions
I. Institutional Independence Safeguards II. Powers and Functions III. Judicial Review Commission on Election Commission on Audit Civil Service Commission
II. Powers and Functions

Civil Service Commission
Art. IX-B, Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs. Functions: (1) In the exercise of its powers to implement R.A. 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys a wide latitude of discretion, and may not be compelled by mandamus. [Torregoza v. Civil Service Commission, 211 SCRA 230]. (2) Under the Administrative Code of 1987, the Civil Service Commission has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. (3) The Commission has original jurisdiction to hear and decide a complaint for cheating in the Civil Service examinations committed by government employees. [Cruz v. CSC, G.R. No. 144464, Nov. 22, 2001] (4) It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower level officials (in cases involving personnel actions) be appealed to the agency head, then to the Civil Service Commission. [Olanda v. Bugayong, G.R. No. 140917, Oct. 10, 2003]. Scope of the Civil Service: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters. [Sec. 2(1), Art. IX-B]. The University of the Philippines, having an original charter, is clearly part of the CSC. [UP v. Regino, 221 SCRA 598] Composition: A Chairman and 2 Commissioners Qualifications: (1) Natural-born citizens of the Philippines; (2) At the time of their appointment, at least 35 years of age; (3) With proven capacity for public administration; and (4) Must not have been candidates for any elective position in the election immediately preceding their election.
54
I. Institutional Independence Safeguards

The three constitutional commissions perform key functions in the government. In order to protect their integrity, they have been made constitutional bodies. Because they government, independence influences and perform vital functions in the it is essential that their be protected against outside political pressures.
Hence, the following institutional safeguards: (1) They are constitutionally created, hence may not be abolished by statute. (2) Each commission is vested with powers and functions which cannot be reduced by statute. (3) Independent constitutional bodies. (4) The Chairmen and members cannot be removed except by impeachment. (5) Fixed term of office of 7 years. (6) The Chairmen and members may not be appointed in an acting capacity. (7) The salaries of the Chairmen and may not be decreased during their tenure. (8) The Commissions enjoy fiscal autonomy. (9) Each Commission may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights [though subject to disapproval by the Supreme Court]. (10) The Commission may appoint their own officials and employees in accordance with Civil Service Law.
Prohibitions: No members of the Constitutional Commissions shall, during their tenure: (1) Hold any other office or employment. This is similar to the prohibition against executive officers. It applies to both public and private offices and employment. (2) Engage in the practice of any profession. (3) Engage in the active management or control of any business which in any way may be affected by the functions of his office. (4) Be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by, the Government, its subdivisions, agencies or
Classes of Service: (1) Career Service Characterized by entrance based on merit and fitness to be determined, as far as practicable by competitive examinations, or based on highly technical qualifications; opportunity for advancement to higher career positions; and security of tenure. a. Open career positions where prior qualification in an appropriate examination is required. b. Closed career positions e.g. scientific or highly technical in nature; c. Career Executive Service e.g. undersecretaries, bureau directors d. Career Officers other than those belonging to the Career Executive Service who are appointed by the President, e.g. those in the foreign service e. Positions in the AFP although governed by a different merit system f. Personnel of GOCCs with original charters g. Permanent laborers, whether skilled, semi-skilled or unskilled. (2) Non-career Service characterized by entrance on bases other than those of the usual tests utilized for the career service; tenure limited to a period specified by law, or which is coterminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose the employment was made. a. Elective officials, and their personal and confidential staff; b. Department heads and officials of Cabinet rank who hold office at the pleasure of the President, and their personal and confidential staff; c. Chairmen and members of commissions and bureaus with fixed terms; d. Contractual personnel; e. Emergency and seasonal personnel. Appointments in the Civil Service General Rule: Made only according to merit and fitness to be determined, as far as practicable, by competitive examination. Exceptions: (1) Policy determining where the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subdivisions. E.g. department head. (2) Primarily confidential denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of state [De los Santos v. Mallare, 87 Phil 289]; OR one declared to be so by the President of the Philippines upon the recommendation of the CSC [Salazar v. Mathay, 73 SCRA 285].

(3) Highly technical requires possession of technical skill or training in supreme degree. [De los Santos v. Mallare, supra] Disqualifications: (1) No candidate who has lost in any election shall within 1 year after such election, be appointed to any office in the Government of any GOCC or in any of its subsidiaries. [Sec. 6, Art. IX-B] (2) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. [Sec. 7(1), Art. IX-B]. (3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision agency or instrumentality thereof including GOCCs or their subsidiaries. [Sec. 7(2), Art IX-B] (4) No office or employee in the civil service shall engage directly or indirectly, in any electioneering or partisan political activity. [Sec. 2(4), Art. IX-B]
55
Commission on Election
Functions and Powers (1) Enforce all laws relating to the conduct of election, plebiscite, initiative, referendum and recall. Initiative the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for that purpose. There are 3 systems of initiative: Initiative on the Constitution, initiative on statutes, and initiative on local legislation[Sec. 2(a), R.A. 6735]. Referendum is the power of the electorate to approve or reject legislation through an lection called for that purpose. There are 2 classes: referendum on statutes or referendum on local laws. [Sec. 2(c), R.A. 6735]. Recall is the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate. Plebiscite is the submission of constitutional amendments or important legislative measures to the people for ratification. (2) Recommend to the Congress effective measures to minimize election spending, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (3) Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Power to declare failure of election The
COMELEC may exercise such power muto proprio or upon a verified petition, and the hearing of the case shall be summary in nature. The SC held that there are only 3 instances where a failure of elections may be declared: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any poling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, fraud, or other analogous causes; and (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. [Sison v. COMELEC, G.R. No. 134096, March 3, 1999] (4) Decide administrative questions pertaining to election except the right to vote. (5) File petitions in court for inclusion or exclusion of voters. (6) Investigate and prosecute cases of violations of election laws. The COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws. [De Jesus v. People, 120 SCRA 760] Thus, the trial court was in error when it dismissed an information filed by the Election Supervisor because the latter failed to comply with the order of the Court to secure the concurrence of the Prosecutor. [People v. Inting, 187 SCRA 788]. However, the COMELEC may validly delegate this power to the Provincial Fiscal. [People v. Judge Basilia 179 SCRA 87] (7) Recommend pardon, amnesty, parole or suspension of sentence of election law violators. (8) Deputize law enforcement agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (9) Recommend to the President the removal of any officer or employee it has deputized for violation or disregard of, or disobedience to its directive. (10) Registration of political parties, organizations and coalitions and accreditation of citizens arms. (11) Regulation of public utilities and media of information. The law limits the right of free speech and of access to mass media of the candidates themselves. The limitation however, bears a clear and reasonable connection with the objective set out in the Constitution. For it is precisely in the unlimited

purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. The purpose is to ensure "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." [National Press Club vs Comelec, (1992)] Note: The SC held that this power may be exercised only over the media, not over practitioners of media. Thus, the SC invalidated a COMELEC resolution prohibiting radio and TV commentators and newspaper columnists from commenting on the issues involved in the forthcoming plebiscite for the ratification of the organic law establishing the CAR. [Sanidad v. COMELEC, 181 SCRA 529] (12) Decide election cases Art. IX-C, Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Cases which must be heard by division All election cases, including pre-proclamation contests originally cognizable by the Commission in the exercise of its powers under Sec. 2(2), Art IX-C. Jurisdiction over a petition to cancel a certificate of candidacy. Even cases appealed from the RTC or MTC have to be heard and decided in Division before they may be heard en banc. Note: If the COMELEC exercises its quasi-judicial functions then the case must be heard through a division. If the COMELEC exercises its administrative functions then it must act en banc. [Buatista v. COMELEC, 414 SCRA 299 (2003)]. Composition: A Chairman and 6 Commissioners. Qualifications: (1) Must be natural-born citizens; (2) At least 35 years of age; (3) Holders of a college degree; (4) Have not been candidates in the immediately preceding election; (5) Majority, including the Chairman, must be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years. [Sec. 1, Art. IX-C].
56
Commission on Audit
Powers and Functions (1) Examine, audit, and settle accounts pertaining to Government funds or property: its revenue, receipts, expenditures, and uses Post-audit basis: Constitutional bodies, commissions and offices; Autonomous state colleges and universities; GOCCs with no original charters and their subsidiaries; Nongovernmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. (2) Exclusive Authority Define the scope of its audit and examination; Establish techniques and methods required ; Promulgate accounting and auditing rules and regulations. Note: Art. IX-D, Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. Composition: A Chairman and 2 Commissioners Qualifications: (1) Natural born Filipino citizens (2) At least 35 years of age (3) CPAs with not less than 10 years of auditing experience or members of the Philippine bar with at least 10 years practice of law Note: At no time shall all members belong to the same profession.

certiorari by the aggrieved party within 30 days from receipt of the copy thereof. Certiorari jurisdiction of the Supreme Court: Limited to decisions rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their quasi-judicial powers. The Court exercises extraordinary jurisdiction, thus, the proceeding is limited only to issues involving grave abuse of discretion resulting in lack or excess of jurisdiction, and does not ordinarily empower the Court to review the factual findings of the Commission. [Aratuc v. COMELEC, G.R. No. 133676, April 14, 1999] Synthesis on the Rules of Modes of Review (1) Decisions, order or ruling of the Commissions in the exercise of their quasi-judicial functions may be reviewed by the Supreme Court. (2) The mode of review is a petition for certiorari under Rule 64 (not Rule 65). (3) The Rules of Civil Procedure, however, provides for a different legal route in the case of the Commission on Civil Service. In the case of CSC, Rule 43 will be applied, and the case will be brought to the Court of Appeals.
57
b. Administrative
Each Commission shall appoint its own officials in accordance with law (Art IX-A, Section 4) Each Commission en banc may promulgate its own rules concerning pleadings and practices before it (Art IX-A, Section 6) o But these rules shall not diminish, increase or modify substantive rights Each Commission shall perform such other functions as may be provided by law (Art IX-A, Section 8)
III. Judicial Review

a. Quasi-Judicial Functions
Article IX-A, Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. Decisions Each Commission shall decide by a majority vote of all its members [NOT only those who participated in the deliberations] any case or matter brought before it within 60 days from the date of its submission for decision or resolution. [Sec. 7, Art. IX-A] Any decision, order or ruling of each Commission may be brought to the SC on
G. Citizenship
1. 2. 3. 4. Natural-Born Citizens and Public Office Naturalization and Denaturalization Loss of Citizenship Repatriation
(Asked 25 times in the Bar) Who are citizens? (1) Citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those who elected to be citizens. This is available only to: those born before January 17, 1973, to Filipino mothers, and elect Philippine citizenship upon reaching the age of majority (4) Those naturalized in accordance with law.
ARTICLE IV, Section 1 (3), 1987 Constitution is also applicable to those who are born to Filipino mothers and elected Philippine citizenship before February 2, 1987. This is to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen, while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. [Co v. Electoral Tribunal of the House of Representatives (1991)] Who were the citizens of the Philippines at the time of the adoption of the 1987 Constitution? To answer this question, we have to go back to 1973 Constitution. Citizens under the 1973 Constitution (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935; and (4) Those who are naturalized in accordance with law. [Sec.1(1), Art. III] Citizens under the 1935 Constitution (1) Those who are citizens at the time of the adoption of this Constitution; (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands; (3) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; (4) Those who are naturalized in accordance with law. [Sec. 1, Art. IV] The following persons were citizens of the Philippines on May 14, 1935 the date of the adoption of the 1935 Constitution: (1) Persons born in the Philippine Islands who resided therein on April 11, 1899 and were Spanish subjects on that date, unless they had lost their Philippine citizenship on or before May 14, 1935. (2) Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899, and who did not declare their intention of preserving their Spanish nationality between that date and October 11, 1900, unless they had lost their Philippine citizenship on or before May 14, 1935. (3) Naturalized citizens of Spain who resided in the Philippines on April 11, 1899, and did not declare their intention to preserve their Spanish nationality within the prescribed period (up to October 11, 1900). (4) Children born of (1), (2) and (3) subsequent to April 11, 1899, unless they lost their

Philippine citizenship on or before May 14, 1935. (5) Persons who became naturalized citizens of the Philippines in accordance of naturalization law since its enactment on March 26, 1920.
58
1. Natural-Born Citizens and Public Office

Natural-born (1) citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship; and (2) those who elect Philippine citizenship in accordance with ARTICLE IV, Section 1 (3) The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." [Tecson vs COMELEC (2004)] Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Who must be Natural-Born? (1) President (Sec. 2, Art VII) (2) Vice-President (Sec. 3, Art VII) (3) Members of Congress (Secs. 3 and 6, Art VI) (4) Justices of SC and lower collegiate courts (Sec. 7 (1), Art VIII) (5) Ombudsman and his deputies (Sec. 8, Art XI) (6) Members of Constitutional Commissions (7) CSC (Sec. 1 (1), Art IX B) (8) COMELEC (Sec. 1 (1) Art IX C) (9) COA (Sec. 1 (1), Art IX D) (10) Members of the Central Monetary Authority (Sec. 20, Art XII) (11) Members of the Commission on Human Rights (Sec. 17 (2), Art XIII)
2. Naturalization and Denaturalization

How may citizenship be reacquired? (1) Naturalization (CA No. 63 and CA No. 473) (a) now an abbreviated process, no need to wait for 3 years (1 year for declaration of intent, and 2 years for the judgment to become executory) (b) requirements: be 21 years of age be a resident for 6 months have good moral character have no disqualification
Naturalization is never final and may be revoked if one commits acts of moral turpitude. [Republic vs Guy (1982)] (2) Repatriation NOTE: Please see subsection 4 for further discussion (3) Legislative Act Both a mode of acquiring and reacquiring citizenship Dual Allegiance (1) aliens who are naturalized as Filipinos but remain loyal to their country of origin (cite source) (2) public officers who, while serving the government, seek citizenship in another country disqualified from running for any elective local position. (Sec 40d, Local Government Code) Once a candidate files his candidacy, he is deemed to have renounced his foreign citizenship in case of dual citizenship. [Mercado vs Manzano (1999)]

acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Sec. 1, Art. V of the Constitution, RA 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: provided, that they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens.
59
(1) Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. (2) Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect 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. Cf: RA 9225 (Citizenship Retention and Reacquisition Act of 2003) Sec. 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: xxx Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Sec. 4. Derivative Citizenship. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-
3. Loss of Citizenship
Grounds for Loss of Citizenship (1) Naturalization in a foreign country [Sec.1 (1), CA 63]; (2) Express renunciation or expatriation [Sec.1 (2), CA 63]; (3) Taking an oath of allegiance to another country upon reaching the age of majority; (4) Accepting a commission and serving in the armed forces of another country, unless there is an offensive/ defensive pact with the country, or it maintains armed forces in RP with RPs consent; (5) Denaturalization; (6) Being found by final judgment to be a deserter of the AFP; (7) Marriage by a Filipino woman to an alien, if by the laws of her husbands country, she becomes a citizen thereof. Expatriation is a constitutional right. No one can be
compelled to remain a Filipino if he does not want to. [Go Gullian vs Government] EXCEPTION: A Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country. (Sec. 1 (3), Com. Act No. 63) Aznar v COMELEC (1995): Loss of Philippine citizenship cannot be presumed. Considering the fact that admittedly, Osmea was both a Filipino and an American, the mere fact that he has a certificate stating that he is an American does not mean that he is not still a Filipino, since there has been NO EXPRESS renunciation of his Philippine citizenship. [Aznar vs COMELEC (1995)]
1. Regalian Doctrine
Please refer to next page
2. Nationalist and Citizenship Requirement Provisions

Citizenship Requirements 100% Filipino 60-40 Marine Wealth Natural [Art. XII, Sec. 2, Resources [Art. par. 2] XII, Sec. 2, par. 1] (Co-production, Joint venture, Production sharing agreemenents) Agreements shall not exceed a period of 25 years renewable for another 25 years. Educational Institutions [Art. XIV, Sec. 4(2)] 70-30 Advertising Industry [Art. XVI, Sec. 11]
60
4. Repatriation
Repatriation results in the recovery of the original nationality. Therefore, if he is a natural-born citizen before he lost his citizenship, he will be restored to his former status as a natural-born Filipino. [Bengson III vs. HRET (2001)] Mere filing of certificate of candidacy is not a sufficient act of repatriation. Repatriation requires an express and equivocal act. [Frivaldo vs COMELEC (1989)] In the absence of any official action or approval by proper authorities, a mere application for repatriation does not, and cannot, amount to an automatic reacquisition of the applicants Philippine citizenship. [Labo vs COMELEC (1989)]
H. National Economy & Patrimony

1. 2. 3. 4. 5. 6. 7. 8. Regalian Doctrine Nationalist and Citizenship Requirement Provisions Exploration, Development and Utilization of Natural Resources Franchises, Authority and Certificates for Public Utilities Acquisition, Ownership and Transfer of Public and Private Lands Practice of Professions Organization and Regulation of Corporations, Private and Public Monopolies, Restraint of Trade and Unfair Competition
Agricultural lands [Art. XII, Sec. 3] o Lease: < 500 ha. o Purchase, homestead or grant: < 12 ha. o Private corporations may lease not more than 1,000 ha. for 25 years, renewable for another 25 years. Practice of professions [Art. XII, Sec. 14]
General Principles Goals (1) More equitable distribution of opportunities, income and wealth (2) Sustained increase in amount of goods and services produced by the nation for the benefit of the people (3) Expanding production as the key to raising the quality of life for all, especially the underprivileged.
Small-scale utilization of natural resources (as may be provided by law) [Art. XII, Sec. 2, par. 3]
Areas of Investment as Congress may prescribe (percentage can be higher) [Art. XII, Sec. 10] Operation of public utility [Art. XII, Sec. 11] o Cannot be for longer period than 50 years o Executive and managing officers must be Filipino
A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence. A joint venture falls within the purview of an
association pursuant to Sec. 11, Art. XII; thus a joint venture which would engage in the business of operating a public utility must comply with the 60%-40% Filipino-foreign capitalization requirement. [JG Summit Holdings v. CA, (2000)] Filipino First Art. XII, Sec. 10. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The term patrimony pertains to heritage, and given the history of the Manila Hotel, it has become a part of our national economy and patrimony. Thus, the Filipino First policy provision of the Constitution is applicable. Such provision is per se enforceable, and requires no further guidelines or implementing rules or laws for its operation. [Manila Prince Hotel v. GSIS, (1997)]

Art. XII, Sec. 2, par. 4. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The State, being the owner of the natural resources, is accorded the primary power and responsibility in the exploration, development and utilization thereof. As such it may undertake these activities through four modes: (1) The State may directly undertake such activities; (2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations; (3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens; or (4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance. [La Bugal-BLaan Tribal Assn. v. Ramos, (Jan,2004)] FTAA (1987 Const.) Parties Only the President (in behalf of the State), and only with corporations Only largescale exploration, development and utilization SERVICE CONTRACT (1973 Const.) A Filipino citizen, corporation or association with a foreign person or entity Contractor provides all necessary services and technology and the requisite financing, performs the exploration work obligations, and assumes all exploration risks Virtually the entire range of the countrys natural resources Contractor provides financial or technical resources, undertakes the exploitation or
61
Art. XII, Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. Natural Resources Regalian Doctrine [Jura Regalia] The King had title to all the land in the Philippines except so far as it saw fit to permit private titles to be acquired. [Cario v. Insular Government, (1909)]. In present context, ownership of all lands of the public domain is vested in the State. As in previous Constitutions, the 1987 Constitution adheres to this doctrine as illustrated by this section: Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. Under the Regalian Doctrine, all lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. The classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President. [Republic v. Register of Deeds of Quezon, (1994)]
Size of Activities
Natural Resources Covered Scope of the Agreements
3. Exploration, Development and Utilization of Natural Resources
Minerals, petroleum and other mineral oils Involving either financial or technical assistance
FTAA (1987 Const.) SERVICE CONTRACT (1973 Const.) production of a given resource, or directly manages the productive enterprise, operations of the exploration and exploitation of the resources or the disposition of marketing or resources

statute along with its implementing rules, or the nullification of an otherwise legal and binding FTAA contract. The Court believes that it is not unconstitutional to allow a wide degree of discretion to the Chief Executive, given the nature and complexity of such agreements, the humongous amounts of capital and financing required for large-scale mining operations, the complicated technology needed, and the intricacies of international trade, coupled with the States need to maintain flexibility in its dealings, in order to preserve and enhance our countrys competitiveness in world markets. On the basis of this control standard, the Court upholds the constitutionality of the Philippine Mining Law, its Implementing Rules and Regulations -- insofar as they relate to financial and technical agreements -as well as the subject Financial and Technical Assistance Agreement (FTAA). [La Bugal-Blaan Tribal Assn. v. Ramos, (Dec. 2004)]
62
Following this framework, the SC declared the following provisions of the Philippine Mining Act of 1995 (RA 7942) unconstitutional for being contrary to Sec. 2, Art. XII of the 1987 Constitution: a. The proviso in Sec. 3(aq), which defines a qualified person, to wit: Provided, That a legally foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, FTAA or mineral processing permit b. Sec. 23, which specifies the rights and obligations of an exploration permit grantee c. Sec. 33, which prescribes the eligibility of a contractor in an FTAA d. Sec. 35, which enumerates the terms and conditions for every FTAA e. Sec. 39, which allows the contractor to convert the FTAA into a mineral production-sharing agreement (MPSA) f. Sec. 56, which authorizes the issuance of a mineral processing permit to a contractor in an FTAA The Court then struck down the Financial and Technical Assistance Agreement (FTAA) entered into between the Government and Western Mining Corporation (Phils.), Inc. (WMCP) for being similar to service contracts, previously allowed under the 1973 Constitution but which are now proscribed under the 1987 Constitution. On motion for reconsideration, the SC reversed its original decision and upheld the constitutionality of the subject FTAA, the Mining Law, and its Implementing Rules.
4. Franchises, Authority and Certificates for Public Utilities

Franchise, certificate or any other form of authorization for the operation of public utilities ONLY to citizens of the Philippines, or corporations at least 60% of whose capital is Filipino-owned. [Sec. 11, Art. XII] Nature of the franchise: (1) It is a privilege not a right (2) Shall NOT be exclusive; (3) Shall NOT be for a period of more than 50 years; (3) Shall be subject to amendment, alteration or repeal by Congress. [Sec.11, Art. XII] Jurisprudence: (1) The Congress does not have the exclusive power to issue franchises. Administrative bodies (i.e. LTFRB, Energy Regulatory Board) may be empowered by law to do so. [Albano v. Reyes, 175 SCRA 264] (2) What constitutes a public utility is not the ownership but the use to the public. The Constitution requires a franchise for the operation of public utilities. However, it does not require a franchise before one can own the facilities needed to operate a public utility so long as it does not operate them to serve the public. [Tatad v. Garcia] E.g. X Company may own an airline without the need of a franchise. But in operating an air transport business, franchise is required. (3) A joint venture falls within the purview of an association pursuant to Sec. 11, Art. XII; thus a joint venture which would engage in the business of operating a public utility, such as shipyard, most comply with the 60%-40% rule. [JG Summit Holdings v. Court of Appeals, G.R. No. 124293, Nov. 2, 2000]
The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace. The Court fully sympathize with the plight of La Bugal Blaan and other tribal groups, and commend their efforts to uplift their communities. However, the Court cannot justify the invalidation of an otherwise constitutional

Query: Can a former owner file an action to recover the property? YES. The Court in Philippine Banking Corp. v. Lui She, (21 SCRA 52) abandoned the application of the principle of in pari delicto. Thus, the action will lie. HOWEVER, land sold to an alien which was later transferred to a Filipino citizen OR when the alien later becomes a Filipino citizen can no longer be recovered by the vendor, because there is no longer any public policy involved. [Republic v. IAC, 175 SCRA 398]
5. Acquisition, Ownership and Transfer of Public and Private Lands

Lands of the Public Domain are classified into: (1) Agricultural Lands (2) Forest or Timber Lands (3) Mineral Lands (4) National Park [Sec. 3, Art. XII] Note: The classification of public lands is a function of the executive branch, specifically the Director of the Land Management Bureau (formerly Director of Lands). The decision of the Director, when approved by the Secretary of the DENR, as to questions of fact, is conclusive upon the courts. [Republic v. Imperial, G.R. No. 130906, February 11, 1999]. Alienable lands of the public domain shall be limited to agricultural lands. [Sec. 3, Art. XII] To prove that the land subject of an application for registration is alienable, an applicant must conclusively establish the existence of a positive act of the government such as a presidential proclamation or an executive order or a legislative act or statute. [Republic v. Candymaker, Inc. G.R. No. 163766, June 22, 2006] Foreshore land is that part of the land which is between the high and low water, and left dry by the flux and reflux of the tides. It is part of the alienable land of the public domain and may be disposed of only by lease and not otherwise. [Republic v. Imperial, G.R. No. 130906, February 11, 1999] Private corporations or associations may not hold such alienable lands of public domain except by lease, for a period not exceeding 25 years, and not to exceed 1000 hectares in area. Citizens of the Philippines may lease not more than 500 has, or acquire not more than 12 hectares thereof by purchase, homestead, or grant. [Sec. 3, Art. XII] Private Lands GENERAL RULE No private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. [Sec. 7, Art. XII] EXCEPTIONS (1) Hereditary succession [Sec. 7, Art. XII] (2) A natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. [Sec. 8, Art. XII] Consequence of sale to non-citizens: Any sale or transfer in violation of the prohibition is null and void. [Ong Ching Po. V. CA]
63
6. Practice of Professions
The practice of ALL profession in the Philippines shall be limited to Filipino citizens, save in the case prescribed by law. [Sec. 12, Art. XII]
7. Organization and Regulation of Corporations, Private and Public

Stewardship Concept Art. XII, Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. Art. XIII, Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.
8. Monopolies, Restraint of Trade and Unfair Competition

Monopolies Art. XIII, Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. 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. [Philippine Coconut Dessicators v. PCA, (1998)] Monopolies are not per se prohibited by the
Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. Nonetheless, a determination must first be made as to whether public interest requires a monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a higher level of State regulation than an ordinary business undertaking. [Agan, Jr. v. PIATCO, (2003)] Central Monetary Authority [Art. XII, Sec. 20] Functions: (1) Provide policy directions in the areas of money, banking, and credit; (2) Supervise the operations of banks; (3) Exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions Qualifications of the Governors: (1) Natural-born Filipino; (2) Known probity, integrity and patriotism; (3) Majority shall come from the private sector Subject to such other qualifications disabilities as may be provided by law and

Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."
64
2. Commission on Human Rights

1987 Phil. Constitution Article 13, Section 17. (1) There is hereby created an independent office called the Commission on Human Rights. (2) The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released. Article 13, Section 18. The Commission on Human Rights shall have the following powers and functions: (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities;
Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.
I. Social Justice & Human Rights

1. Concepts of Social Justice 2. Commission on Human Rights
1. Concept of Social Justice

1987 Phil. Constitution Article 2, Section 10. The State shall promote social justice in all phases of national development. Article 13, Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Article 13, Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Calalang vs. Williams (GR 47800, 2 December 1940):
(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. Cario vs. CHR (G.R. No. 96681 December 2, 1991): As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights violations involving civil and political rightsBut it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings.

It cannot be gainsaid that "the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach." Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject to the established academic and disciplinary standards laid down by the academic institution.
65
J. Education, Science, Technology, Arts, Culture and Sports

1. Academic Freedom
1. Academic Freedom
1987 Phil. Constitution, Article 14, Section 5. (2) Academic freedom shall be enjoyed in all institutions of higher learning. DLSU Inc., vs CA (G.R. No. 127980, December 19, 2007): Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint. According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.
2012
POLITICAL
LAW
Constitutional Law 2 22
BAR OPERATIONS COMMISSION 2012
EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor
COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages

society." [Lake View vs. Rose Hill Cemetery Co. (1873)] the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Persons may be subjected to all kinds of restraints and burdens, in order to secure the general comfort health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated. [Ortigas & Co., Limited Partnership vs. Feati Bank and Trust Co. (1979)] ...has been properly characterized as the most essential, insistent and the least limitable of powers, [Ermita-Malate Hotel and Motel Operators Assoc. vs. Mayor of Manila (1967) Cf. Ichong v. Hernandez, (1957)] extending as it does "to all the great public needs." [Noble State Bank vs. Haskell, 219 U.S. 412] Police Power cannot be bargained away through treaty or contract. [Ichong v. Hernandez (1957)] Taxation may be used as an implement of police power [Lutz v. Araneta (1955); Tiu v. Videogram Regulatory Board, 151 SCRA 208; Gaston v. Republic Planters Bank, 158 SCRA 626; Osmena v. Orbos, 220 SCRA 703] Eminent domain may be used as an implement to attain the police objective [Association of Small Landowners v. Secretary of Agrarian Reform (1989)] Police power prevails over contracts. [PNB v. Office of the President (1996)] Specific Coverage (1) Public Health (2) Public Morals (3) Public Safety (4) Public Welfare Test of Reasonability (1) Lawful subject (2) Lawful means (3) Least restrictions of individual right. The limit to police power is reasonability. The Court looks at the test of reasonability to decide whether it encroaches on the right of an individual. So long as legitimate means can reasonably lead to create that end, it is reasonable. [Morfe vs. Mutuc (1968)] The legislative determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court. [US vs. Toribio (1910) citing Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S., 133, 136)] The proper exercise of Police Power requires compliance with the following requisites: (a) the interests of the public generally, as distinguished from those of a particular class, require the interference by the State; and (b) the means employed are reasonably necessary for the
POLITICAL LAW Fundamental Powers of the State Private Acts and the Bill of Rights Due Process Equal Protection Searches and Seizures Privacy of Communications and Correspondence G. Freedom of Expression H. Freedom of Religion I. Liberty of Abode and Freedom of Movement J. Right to Information K. Right to Association L. Eminent Domain M. Contract Clause N. Legal Assistance and Free Access to Courts O. Rights of Suspects P. Rights of the Accused Q. Writ of Habeas Corpus R. Writ of Amparo S. Self-Incrimination Clause T. Involuntary Servitude and Political Prisoners U. Excessive Fines and Cruel and Inhuman Punishments V. U.Non-Imprisonment for Debts W. Double Jeopardy X. Ex Post Facto Laws and Bills of Attainder A. B. C. D. E. F.
67
A. Fundamental Powers of the State

1. 2. 3. 4. Concept and Application Requisites for Valid Exercise Similarities and Differences Delegation
1. Concept and Application

Police Power
a. Definition
It is the inherent and plenary power of the state which enables it to prohibit all that is hurtful to the comfort, safety and welfare of society. [ErmitaMalate Hotel and Motel Operators Association, Inc. vs. Mayor of Manila (1967)] b. Scope and Limitations
General Coverage "The police power of the State," one court has said, "is a power coextensive with self-protection, and is not inaptly termed the 'law of overruling necessity.' [Rubi vs. Provincial Board (1919)] It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of
attainment of the object sought and not unduly oppressive upon individuals. [Lucena Grand Central Terminal v. JAC Liner (2005)] The SC Upheld the validity of Administrative Orders which converted existing mine leases and other mining agreements into production-sharing agreements within one year from effectivity. The subject sought to be governed by the AOs are germane to the object and purpose of E.O. 279 and that mining leases or agreements granted by the State are subject to alterations through a reasonable exercise of police power of the State. [Miners Association of the Philippines v. Factoran, 240 SCRA 100] c. Illustrations on the Exercise of Police Power

vehicles to install specific early warning devices to reduce road accidents. Agustin already installed warning devices in his car but they were not the same ones specified in the LOI. He argued that the said LOI violated the police power of the state for being oppressive, arbitrary and unconscionable. Police power, public safety: The Court identified police power as a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal peace, safety, good order, and welfare. According to the Court, a heavy burden lies in the hands of the petitioner who questions the states police power if it was clearly intended to promote public safety. [Agustin vs. Edu, (1979)] Public Morals Ermita Malate Hotel and Motel Operations Assoc. assails the constitutionality of Ordinance No. 4760. The grounds adduced were: (1) unreasonable and violative of due process insofar as it would impose different fees for different classes of hotels/motels and prohibit 18 year-olds from being accepted in such hotels, unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion more than twice every 24 hours, and (2) invasion of the right to privacy and the guaranty against self-incrimination because it requires clients to fill up the prescribed form in a lobby open to public view at all times and in his presence, wherein personal information are mandated to be divulged. Police power, public morals: The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. Police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society xxx There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. [Ermita-Malate Motel and Motel Operators Assn. vs. City Mayor of Manila (1967)] The case of White Light vs. City of Manila was termed by Justice Tinga as a middle case. It was meant to identify its case within a spectrum of cases decided by the Supreme Court which dealt with ordinances which has for its view the regulation of public morals. It is called a middle case because unlike its predecessors where the issue is either a wholesale
68
General Welfare RA 9257, the Expanded Senior Citizens Act of 2003, is a legitimate exercise of police power. Administrative Order No. 177 issued by the Department of Health, providing that the 20% discount privilege of senior citizens shall not be limited to the purchase of unbranded generic medicine but shall extend to both prescription and non-prescription medicine, whether branded or generic, is valid. When conditions so demand, as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by the due process clause, must yield to the general welfare. [Carlos Superdrug Corporation v. DSWC et al. G.R. No. 166494, June 29, 2007] National Security SC upheld the constitutionality of RA 1180 (An Act to Regulate the Retail Business) which sought to nationalize the retail trade business by prohibiting aliens in general from engaging directly or indirectly in the retail trade. Aliens did not question the exercise of police power; they claim, however, that there was a violation of the due process and equal protection clauses. [Ichong vs. Hernandez (1957)] Scope of the police power: Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. Police power and national security: The disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business; the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future. Public Safety Agustin questions President Marcos Letter of Instruction No. 229 compelling owners of motor
ban against hotels and motels or a reasonable regulatory device as the one found in Ermita-Malate vs. City of Manila, this is a case where the ordinance in question severely restricts the services of the abovementioned establishments. The rationale started with an outline of the test of a valid ordinance i.e. it must be within the corporate powers of the local government to enact and pass and it must conform with substantive requirements. A reading of the ordinance at bar would yield that it prohibits two practices: the wash-up rate admission and renting out a room more than twice per day. These prohibitions are anchored in the power of the LGU to implement ordinances hinged on the general welfare clausethe devolved aspect of police power. This case churned out three standards for judicial review: the STRICT SCRUTINY TEST for laws dealing with freedom of the mind and curtailment of political process and the RATIONAL BASIS STANDARD OF REVIEW for economic legislation. A third standard was created known as the IMMEDIATE SCRUTINY for evaluating standards based on gender and legitimacy. The Supreme Court justified the application of the strict scrutiny test to this particular ordinance despite its lack of political significance by saying that it is not gravitas alone which is sheltered by the Bill of Rights. It is precisely these reflexive exercises of fundamental acts which best reflect the degree of liberty enjoyed. Sexual behavior is one of these fundamental acts covered by the penumbra of rights. While the reality of illicit activity is judicially recognized, it cannot be denied that sexual behavior between consenting adults is constitutionally protected. Apart from the right to privacy, the ordinance also proscribes other legitimate activities most of which are grounded on the convenience of having a place to stay during the short intervals between travels. The Ordinance was struck down as an arbitrary intrusion to private rights. It made no distinction between lodgings and placed every establishment as susceptible to illicit patronage. [Cf. White Light Corporation, et al vs. City of Manila (2009)]
b. Who may exercise the power Congress and, by delegation, the President, administrative bodies, local government units, and even private enterprises performing public services may exercise the power of eminent domain. The exercise of the right of eminent domain, whether directly by the state or by its authorized agents, is necessarily in derogation of private rights. Hence, strict construction will be made against the agency exercising the power. [Jesus is the Lord Christian School Foundation v. Mun. of Pasig, G.R. No. 152230, Aug. 9, 2005]
69
Taxation
a. Definition and Scope
It is the enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of the government and for all public needs. It is as broad as the purpose for which it is given. Purpose: (1) To raise revenue (2) Tool for regulation (3) Protection/power to keep alive Tax for special purpose [Sec. 29 (3), Art. VI]: Treated as a special fund and paid out for such purpose only; when purpose is fulfilled, the balance, if any shall be transferred to the general funds of the Government. See: Osmena v. Orbos, 220 SCRA 703 Scope and Limitation General Limitations (1) Power to tax exists for the general welfare; should be exercised only for a public purpose (2) might be justified as for public purpose even if the immediate beneficiaries are private individuals (3) Tax should not be confiscatory: If a tax measure is so unconscionable as to amount to confiscation of property, the Court will invalidate it. But invalidating a tax measure must be exercised with utmost caution, otherwise, the States power to legislate for the public welfare might be seriously curtailed (4) Taxes should be uniform and equitable [Sec. 28(1), Art. VI] The legislature has discretion to determine the nature, object, extent, coverage, and situs of taxation. But where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for despite all its plenitude, the power to tax cannot override constitutional prescriptions. [Tan v. del Rosario, 237 SCRA 324]
Eminent Domain
a. Definition and Scope
The power of eminent domain is the inherent right of the State to condemn private property to public use upon payment of just compensation. It also known as the power of expropriation. It is well settled that eminent domain is an inherent power of the state that need not be granted even by the fundamental law. Sec. 9, Art. III merely imposes a limit on the governments exercise of this power. [Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].
Specific Limitations (1) Uniformity of taxation: GENERAL RULE: simply geographical uniformity, meaning it operates with the same force and effect in every place where the subject of it is found EXCEPTION: rule does not prohibit classification for purposes of taxation, provided the ff requisites are met: (SNAGAE) (a) standards used are substantial and not arbitrary (b) if the classification is germane to achieve the legislative purpose (c) if that classification applies to both present and future conditions, other circumstances being equal (d) applies equally to members of the same class. [Pepsi Cola v. City of Butuan]. (2) Tax Exemptions No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of Congress [Sec. 28 (4), Art. VI] A corollary power but must be for a public purpose, uniform and equitable and in conformity with the equal protection clause Tax exemptions are granted gratuitously and may be revoked at will, except when it was granted for valuable consideration May either be constitutional or statutory If statutory, it has to have been passed by majority of all the members of Congress [sec. 28 (4), Art. VI] Constitutional exemptions [sec. 28(3), Art. VI] (a) Educational institutions (both profit and non-profit): Benefits redound to students, but only applied to property taxes and not excise taxes All revenues and assets of non-stock, non-profit educational institutions used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties. xxx Proprietary educational institutions, including those co-operatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. [Sec. 4(3), Art. XIV] Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax.

(b) Charitable institutions: Religious and charitable institutions give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped (c) Religious property: Charitable Institutions, churches, and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings and improvements, actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation. [Sec. 28 (3), Art. VI]
70
2. Requisites for Valid Exercise

Police Power
Tests for Validity of Exercise of Police Power (1) LAWFUL SUBJECT: Interest of the general public (as distinguished from a particular class required exercise). This means that the activity or property sought to be regulated affects the general welfare. [see Taxicab Operators v. Board of Transportation, 119 SCRA 597] (2) LAWFUL MEANS: Means employed are reasonably necessary for the accomplishment of the purpose, and are not unduly oppressive. [see Tablarin v. Gutierrez, 152 SCRA 730] (3) Least restrictions of individual rights. Additional Limitations when police power is delegated. (1) Express grant by law [e.g. Secs. 16, 391, 447, 458 and 468, R.A. 7160, for LGUs] (2) Limited within its territorial jurisdiction [for local government units] (3) Must not be contrary to law.
Eminent Domain
a. Requisites for a valid taking [Republic v. Castelvi, 58 SCRA 336]: (1) The expropriator must enter a private property All private property capable of ownership may be expropriated, except money and choses in action. [Republic v. PLDT, 26 SCRA 620] (2) Entry must be for more than a momentary period (3) Entry must be under warrant or color of legal authority
(4) Property must be devoted to public use or otherwise informally appropriated or injuriously affected Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property When is there taking in the constitutional case? When the owner is deprived of his proprietary rights there is taking of private property. Examples: (1) The imposition of a right-of-way easement was held to be taking. The exercise of the power of eminent domain does not always result in the taking or appropriation of title to the expropriated property; it may also result in the imposition of a burden upon the owner of the condemned property, without loss of title or possession. [NPC v. Gutierrez, 193 SCRA 1] (2) May include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended. [Ayala de Roxas v. City of Manila, 9 Phil 215] (3) A municipal ordinance prohibiting a building which would impair the view of the plaza from the highway was likewise considered taking. [People v. Fajardo, 104 Phil. 44] b. Adequacy of compensation The full and fair equivalent of the property taken; it is the fair market value of the property. Fair market value is the sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given and received therefore. However, where only a PORTION of the property is taken, the owner is entitled only to the market value of the portion actually taken and the consequential damage to the remaining part. Note: Just compensation means not only the correct amount to be paid but also payment within reasonable time from its taking. [Esteban v. De Onorio, G.R. No. 146062, June 28, 2001] Use of Property

Delegated tax legislation: Congress may delegate law-making authority when the constitution itself specifically authorizes it.
71
3. Similarities and Differences

Similarities (Nachura) (1) Inherent in the State (Exercised even without need of express constitutional grant) (2) Necessary and indispensable (State cannot be effective without them) (3) Method by which state interferes with private property (4) Presuppose equivalent compensation (5) Exercised primarily by the legislature Differences Compensat ion Police Power None (The altruistic feeling that one has contribute d to the public good [NACHURA ]) Not appropria ted for public use Eminent Domain Just compensat ion (Full and fair equivalent of the property taken) required. Taxation None (The protection given and public improveme nts instituted by the State because of these taxes [NACHURA] ) Use taxing power as an implement for the attainment of a legitimate police objective to regulate a business or trade Earn revenue for the governmen t
Appropriat ed for public use
Objective
Taxation
Equal protection clause: taxes should be uniform (persons or things belonging to the same class shall be taxed at the same rate) and equitable (taxes should be apportioned among the people according to their ability to pay) Progressive system of taxation: The rate increases as the tax base increases, with basis as social justice Taxation as an instrument for a more equitable distribution of wealth
Coverage
To destroy noxious property or to restrain the noxious use of property Liberty and Property
Property taken for public use; it is not necessarily noxious
Property rights only
Property rights only
Police power is the power of the State to promote public welfare by restraining and regulating the use of liberty and property. The power of eminent domain is the inherent right of the state to condemn
private property to public use upon payment of just compensation. Although both police power and eminent domain have the general welfare for their object, and recent trends show a mingling of the two with the latter being used as an implement of the former, there are still traditional distinctions between the two. Property condemned under police power is usually noxious or intended for a noxious purpose, hence no compensation is paid. Likewise in the exercise of police power, property rights of individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the State. Where a property interest is merely restricted because the continued use thereof would be injurious to public interest, there is no compensable taking. However, when a property interest is appropriated and applied to some public purpose, there is need to pay just compensation. In the exercise of police power, the State restricts the use of private property, but none of the property interests in the bundles of rights which constitute ownership is appropriated for use by or for the benefit of the public. Use of the property by the owners is limited, but no aspect of the property used or for the benefit of the public. The deprivation of use can, in fact, be total, and it will not constitute compensable taking if nobody else acquires use of the property or any interest therein. If, however, in the regulation of the use of the property, somebody else acquires the use or interest thereof, such restriction constitutes compensable taking. [Dipidio Earth-Savers Multipurpose Association v. Gozun, G.R. No. 157882, March 30, 2006] If the generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax, but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. [Gerochi v. Department of Energy, G.R. No. 159796, July 17, 2007] License Fee v. Tax License Fee is paid for the privilege of doing something, and may be revoked when public interest so requires; Tax is imposed on persons of property for revenue. [Compania General de Tabaco v. City of Manila, 8 SCRA 367] Amount collected for a license fee is limited to the cost of permit and reasonable police regulation [Except when the license fee is imposed on a nonuseful occupation, such as the practice of hygienic and aesthetic massage in Physical Therapy Organization v. Municipal Board of Manila (1957)]. a. Legislature
Police power is lodged primarily in the national legislature. b. Executive
72
By virtue of a valid delegation of legislative power, it may also be exercised by the president, administrative bodies, and lawmaking bodies of LGUs. [sec. 16, R.A. 7160] ...this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. [Churchill and Tait vs. Rafferty (1915)] Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and all its functions are administrative in nature. [MMDA v. Bel-Air Village Association, G.R. No. 135962, March 27, 2000] BUT it is not precludedand in fact is duty-bound to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs. [MMDA vs. Garin (2005); Sec. 3(b), Rep. Act No. 7924]
Eminent Domain
The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority is a question which the courts have the right to inquire into. [City of Manila vs. Chinese Community of Manila, G.R. No. L-14355, October 31, 1919]
4. Delegation
Police Power
When a statute or charter or by general law has conferred the right of eminent domain upon a private entity. [Tenorio vs. Manila Railroad Co., G.R. No. L-6690, March 29, 1912] AS EXERCISED BY CONGRESS Pervasive and allencompassing AS EXERCISED BY DELEGATES Can only be as broad as the enabling law and the conferring authorities want it to be Justiciable question. RTC has to determine whether there is a genuine necessity for its exercise, as well as what the propertys value is. If not justiciable, theres grant of special authority for special purpose Delegate cannot expropriate private property already devoted to public use

It is generally self-executing Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. (1) Civil rights rights that belong to an individual by virtue of his citizenship in a state or community (e.g. rights to property, marriage, freedom to contract, equal protection, etc.) (2) Political rights rights that pertain to an individuals citizenship vis-vis the management of the government (e.g. right of suffrage, right to petition government for redress, right to hold public office, etc.) (3) Social and economic rights rights which are intended to insure the well-being and economic security of the individual (4) Rights of the accused civil rights intended for the protection of a person accused of any crime
73
Extent of Power
Question of Necessity
Political question
Re: Private Property
2. Bases and Purpose

a. Bases: (1) Importance accorded to the dignity and worth of the individual. (2) Protection against arbitrary actions of government and other members of society b. Purpose: (1) To preserve democratic ideals (2) To safeguard fundamental rights (3) To promote the happiness of an individual The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles." (Justice Cardozo, Nature of Judicial Process, 90-93; Tanada and Fernando, Constitution of the Philippines, 1952 ed., 71.) [Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc. (1973)] In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." [West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638]
Taxation
(1) legislature (primarily) (2) local legislative bodies [Sec. 5, Art. X] (3) President (to a limited extent, when granted delegated tariff powers under Sec. 28 (2) Art. VI)
B. Private Acts & the Bill of Rights

1. In General 2. Bases and Purpose 3. Accountability
1. In General
It is a declaration and enumeration of a person's fundamental civil and political rights. It also imposes safeguards against violations by the government, by individuals, or by groups of individuals. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas, Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied) [People vs. Marti, G.R. No. 81561, January 18, 1991]

Hotel & Motel Operators Association v. City of Manila, 20 SCRA 849] Life includes the right of an individual to his body in its completeness, free from dismemberment, and extends to the use of God-given faculties which make life enjoyable [Justice Malcolm Malcolm, Philippine Constitutional Law, pp. 320-321; See Buck v. Bell, 274 US 200] Liberty includes the right to exist and the right to be free from arbitrary personal restraint or servitude.xxx (It) includes the right of the citizen to be free to use his faculties in all lawful ways xxx [Rubi v. Provincial Board of Mindoro, 39 Phil 660] Property is anything that can come under the right of ownership and be the subject of contract. It represents more than the things a person owns; it includes the right to secure, use and dispose of them. [Torraco v. Thompson, 263 US 197] Scope and Limitations Universal in application to all persons without regard to any difference in race, color or nationality. Artificial persons are covered by the protection but only insofar as their property is concerned [Smith Bell & Co. v. Natividad, 40 Phil. 163] The guarantee extends to aliens and includes the means of livelihood. [Villegas v. Hiu Chiong, 86 SCRA 275] Minimum Requirements Due process of law guarantees: (1) notice and (2) opportunity to be heard (3) to persons who would be affected by the order or act contemplated. Noted Exceptions to Due Process (1) The conclusive presumption, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. (2) There are instances when the need for expeditious action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. (3) Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. (4) The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. (5) Filthy restaurants may be summarily padlocked in the interest of the public
3. Accountability
Sec. 2 Art III shall apply only against law officials or people working as agents of government concerned about being able to procure evidence. [People vs. Marti (1991)] Section 3 of Article XIII of the Constitution requires the State to give full protection to labor. We cannot be faithful to this duty if we give no protection to labor when the violator of its rights happens to be private parties like private employers. A private person does not have a better right than the government to violate an employee's right to due process. To be sure, violation of the particular right of employees to security of tenure comes almost always from their private employers. [Serrano vs. NLRC (2000)]
74
C. Due Process
1. 2. 3. 4. 5. 6. Relativity of Due Process Procedural and Substantive Due Process Constitutional and Statutory Due Process Hierarchy of Rights Judicial Standards of Review Void for Vagueness Doctrine
Art. III, Sec. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. In General Due process of law simply states that [i]t is part of the sporting idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. [Ynot vs. IAC (1987)] It covers any governmental action which constitutes a deprivation of some person's life, liberty, or property. Definition A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial [Darthmouth College v. Woodward, 4 Wheaton 518] Responsiveness to the supremacy of reason, obedience to the dictates of justice [Ermita-Malate
health and bawdy houses to protect the public morals. [Ynot vs. IAC (1987)] In such instances, previous judicial hearing may be omitted without violation of due process in view of: 1) the nature of the property involved; or 2) the urgency of the need to protect the general welfare from a clear and present danger.

Note: NOTICE is an essential element of due process, otherwise the Court will not acquire jurisdiction and its judgment will not bind the defendant. To be meaningful, it must be both as to time and place. Service of summons is not only required to give the court jurisdiction over the person of the defendant but also to afford the latter the opportunity to be heard on the claim made against him. Thus, compliance with the rules regarding the service of summons is as much an issue of due process as of jurisdiction. [Sarmiento v. Raon, G.R. No. 131482, July 3, 2002] (3) The defendant must opportunity to be heard be given an
75
1. Relativity of Due Process 2. Procedural and Substantive Due Process

a. Scope
Procedural Due Process
Procedural due process is that aspect of due process which serves as a restriction on actions of judicial and quasi-judicial agencies of the government. It refers to the method or manner by which a law is enforced. Concerns with government action on established process when it makes intrusion into the private sphere
Due process is satisfied as long as the party is accorded the opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violating the constitutional guarantee. [Bautista v. Court of Appeals, G.R. No. 157219, May 28, 2004] The Supreme Court reiterated that the right to appeal is not a natural right nor part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. [Alba v. Nitorreda, 254 SCRA 753] (4) Judgment must be rendered upon lawful hearing and must clearly explain its factual and legal bases... [Sec. 14, Art. VIII; Banco Espaol-Filipino vs. Palanca (1918)] Note: The allowance or denial of motions for extension rests principally on the sound discretion of the court to which it is addressed, but such discretion must be exercised wisely and prudently, with a view to substantial justice. Poverty is recognized as a sufficient ground for extending existing period for filing. The right to appeal is part of due process of law. [Reyes vs. CA (1977)] In Administrative Agencies The Ang Tibay Rules: (1) Right to a hearing to present own case and submit evidence in support thereof. (2) Tribunal must consider the evidence presented. (3) Decision rendered must have support. (4) Evidence which supports the finding or conclusion is substantial (such relevant evidence as a reasonable mind accept as adequate to support a conclusion). (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The tribunal or any of its judges, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.
Substantive Due Process

Substantive due process, asks whether the government has an adequate reason for taking away a persons life, liberty, or property. [City of Manila vs. Laguio (2005)] In other words, substantive due process looks to whether there is a sufficient justification for the governments action. Substantive due process is an aspect of due process which serves as a restriction on the law-making and rule-making power of the government. The law itself, not merely the procedures by which the law would be enforced, should be fair, reasonable, and just. It guarantees against the arbitrary power even when exercised according to proper forms and procedure.
b. Requisites
Procedural Due Process
In Civil Proceedings Requisites (1) An impartial court of tribunal clothed with judicial power to hear and determine the matter before it. (2) Jurisdiction must be lawfully acquired over the person of the defendant and over the property subject matter of the proceeding [Banco Espaol vs. Palanca (1918)]
(7) The tribunal should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. [Ang Tibay vs. CIR (1940)] In Criminal Proceedings See Rights of the Accused, Topic 1 Criminal Due Process In Academic Disciplinary Proceedings Requisites (1) The students must be informed in writing of the nature and cause of any accusation against them; (2) They shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) They shall be informed of the evidence against them; (4) They shall have the right to adduce evidence in their own behalf; (5) The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case [Non vs. Judge Dames (1990)]

unjustly terminated without just cause after notice and hearing. [Agabon v. NLRC (2004)] The Labor Code requires twin requirements of notice and hearing for a valid dismissal. However, the Court in Serrano v. NLRC clarified that this procedural due process requirement is not constitutional but merely statutory, thus a violation of such requirement does not render the dismissal void. There are three reasons why violation by the employer of the notice requirement cannot be considered a denial of due process resulting in the nullity of the employee's dismissal or layoff. xxx The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power, such as the termination of employment under the Labor Code. x x x The second reason is that notice and hearing are required under the Due Process Clause before the power of organized society are brought to bear upon the individual. This is obviously not the case of termination of employment under Art. 283. x x x The third reason why the notice requirement under Art. 283 cannot be considered a requirement of the Due Process Clause is that the employer cannot really be expected to be entirely an impartial judge of his own cause. [Serrano v. NLRC (2000)]
76
Substantive Due Process

Laws which interfere with life, liberty or property satisfy substantive due process when there is: (1) Lawful object i.e. the interests of the public in general (as distinguished from those of a particular class) require the intervention of the State, and (2) Lawful means i.e. means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. [US vs. Toribio (1910)] Publication of laws is part of substantive due process. [Taada vs. Tuvera (1986)]
4. Hierarchy of Rights
When the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are delicate and vulnerable, as well as supremely precious in our society and the threat of sanctions may deter their exercise almost as potently as the actual application of sanctions, they need breathing space to survive, permitting government regulation only with narrow specificity. [Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc (1973)] If the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider. [Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila (1967)] Under the present provision, understood in the light of established jurisprudence on the position of property in the hierarchy of constitutional values, property stands a good chance of serving and enhancing the life and liberty of all. Running through various provisions of the Constitution are various provisions to protect propertybut always with the explicit or implicit reminder that property has a social dimension and that the right to property is weighted with a social obligation. [Bernas]
3. Constitutional and Statutory Due Process

Due process under the Labor Code, like constitutional due process, has two aspects: substantive (i.e. the valid and authorized causes of employment termination), and procedural (i.e. the manner of dismissal). . . Breaches of these due process requirements violate the Labor Code, not the Constitution. Therefore, statutory due process should be differentiated from failure to comply with constitutional due process. Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being

necessarily guess at its meaning and differ as to its application." It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. Like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. A facial review of PP 1017 on the ground of vagueness is unwarranted. Petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. [David vs. Arroyo (2006)] VOID FOR VAGUENESS DOCTRINE: An accused is denied the right to be informed of the charge against him and to DUE PROCESS where the statute itself is couched in such INDEFINITE LANGUAGE that its not possible for men of ordinary intelligence to determine therefrom what acts/omissions are punished. [People vs. Nazario (1988)]
5. Judicial Standards of Review

a. Rational Basis Test
The classification should bear a reasonable relation to government's purpose, and the legislative classification is presumed valid. Notes: Important when there is no plausible difference between the disadvantaged class and those not disadvantaged. Also important when the government attaches a morally irrelevant and negative significance to a difference between the advantaged and the disadvantaged.
77
b. Strict Scrutiny Test

This test is triggered when a fundamental constitutional right is limited by a law. This requires the government to show an overriding or compelling government interest so great that it justifies the limitation of fundamental constitutional rights (the courts make the decision of WON the purpose of the law makes the classification necessary). Applied also when the classification has a "suspect" basis (Suspect Classes classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.)
D. Equal Protection
1. Concept 2. Requisites for Valid Classification
1. Concept
Definition Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. [City of Manila vs. Laguio (2005) citing Ichong vs. Hernandez (1957)] Scope Natural and juridical Persons (the equal protection clause extends to artificial persons but only insofar as their property is concerned.) A corporation as an artificial person is protected under the Bill of Rights against denial of due process, and it enjoys the equal protection of the law. [Smith, Bell & Co., vs. Natividad (1919)] A corporation is also protected against unreasonable searches and seizures. [See Stonehill vs. Diokno (1967)] It can only be proceeded against by due process of law, and is protected against unlawful discrimination. [Bache & Co. vs. Ruiz (1971)]
c. Intermediate Scrutiny Test

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. Immediate scrutiny was adopted by the U.S. Supreme Court in Craig. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. [White Light Corporation vs. City of Manila (2009)]
6. Void-for-Vagueness Doctrine
Void for Vagueness: An act is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its common meaning and differ as to its application. The statute is repugnant to the constitution in 2 respects: (1) It violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid, (2) It leaves law enforcers an unbridled discretion in carrying out its provisions. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must
2. Requisites for Valid Classification

(1) It must rest on substantial distinctions which make real differences;
(2) It must be germane to the purpose of the law; (3) It must not be limited to existing conditions only. An ordinance was declared void because it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company and none other, such that if a new sugar central is established in Ormoc, it would not be subject to the ordinance. [Ormoc Sugar Co. vs Treasurer of Ormoc City (1968)] (4) Apply equally to all members of the same class [People vs. Cayat (1939)] Serrano v. Gallant Maritime introduced a modification in equal protection jurisprudence by using the three-level review/scrutiny used in due process cases. So that, in effect, the level of review when it comes to equal protection challenges may follow the following format: (1) Whether the State was justified in making a classification at all. (three level scrutiny) (a) Rational basis test the classification should bear a reasonable relation to the governments purpose (b) Strict scrutiny test in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. It is applied when the classification has a suspect basis (suspect classes classes subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. (c) Intermediate scrutiny test Court accepts the articulated purpose of the legislation but it closely scrutinizes the relationship between the classification and the purpose based on a spectrum of standards, by gauging the extent to which constitutionally guaranteed rights depend upon the affected individual interest. In which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest Applicable to certain sensitive but not suspect classes; certain important but not fundamental interest. (2) Whether the classification was valid. (test of valid classification in People v. Cayat)
POLITICAL LAW REVIEWER Examples of Valid Classification

All classifications made by law are generally presumed to be valid unless shown otherwise by petitioner. [Lacson vs. Executive Secretary (1999)]
78
Aliens
GENERAL RULE: The general rule is that a legislative act may not validly classify the citizens of the State on the basis of their origin, race or parentage. EXCEPTIONS (1) In times of great and imminent danger, such as a threatened invasion or war, such a classification is permitted by the Constitution when the facts so warrant (e.g. discriminatory legislation against Japanese citizens during WWII). (2) The political rights of aliens do not enjoy the same protection as that of citizens. (3) Statutes may validly limit to citizens exclusively the enjoyment of rights or privileges connected with the public domain, the public works, or the natural resources of the State. The rights and interests of the state in these things are not simply political but also proprietary in nature; and so the citizens may lawfully be given preference over aliens in their use or enjoyment. The Court upheld the Retail Trade Nationalization Law despite the objection that it violated the EP clause, because there exists real and actual, positive and fundamental differences between an alien and a national. [Ichong vs, Hernandez (1957)]
Filipino Female Domestics Working Abroad

They are a class by themselves because of the special risks to which their class was exposed. [Phil Association of Service Exporters vs. Drilon (1988)]
Land-based vs. Sea-based Filipino Overseas Workers

There is dissimilarity as to work environment, safety, danger to life and limb, and accessibility to social, civil and spiritual activities. [Conference of Maritime Manning Agencies vs. POEA (1995)]
Qualification for Elective Office

Disqualification from running in the same elective office from which he retired of a retired elective provincial/municipal official who has received payment of retirement benefits and who shall have been 65 y.o. at the commencement of the term of office to which he seeks to be elected is valid. [Dumlao vs. Comelec (1980)]
Office of the Ombudsman

Allowing the Ombudsman to start an investigation based on an anonymous letter does not violate EP clause. The Office of the Ombudsman is different from other investigatory and prosecutory agencies of government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss
investigations against them. [Almonte vs. Vasquez (1995)]
Scope
Natural Persons It protects all persons including aliens [Qua Chee Gan vs. Deportation Board (1963)] Artificial Persons Artificial persons are protected to a limited extent. [Bache & Co. Inc vs. Ruiz (1971)] The opening of their account books is not protected, by virtue of police and taxing powers of the State.
Print vs. Broadcast Media

There are substantial distinctions between the two to warrant their different treatment under BP 881 [Telecommunications and Broadcast Attorneys of the Phil vs. COMELEC (1998)]
79
E. Searches and Seizures

1. 2. 3. 4. 5. 6. Concept Warrant Requirement Warrantless Searches Warrantless Arrests Administrative Arrests Drug, Alcohol and Blood Tests
2. Warrant Requirement
Must refer to one specific offense. [Asian Surety v. Herrera, 54 SCRA 312; Castro v. Pabalan, 70 SCRA 477] The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into prohibited and regulated drugs, and defines and penalizes categories of offenses which are closely related or which belong to the same class or species; thus, one search warrant may be validly issued for several violations thereof. [People v. Dichoso, 223 SCRA 174] The doctrine was reiterated in People v. Salanguit, G.R. No. 133254055, April 19, 2001.
1. Concept
ART. III, SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Requisites
(1) Existence of probable cause Warrant of Arrest Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof. [People v. Syjuco, 64 Phil. 667; Alvarez v. CFI, 64 Phil 33] Search Warrant Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. [Burgos v. Chief of Staff, 133 SCRA 800] (2) Determination of probable cause personally by the judge. Issuance of a warrant of arrest is not a ministerial function of the judge. [Placer v. Villanueva 126 SCRA 463; Lim v. Judge Felix, 194 SCRA 292] (3) After personal examination under oath or affirmation of the complainant and the witnesses he may produce. How it is done: In the form of searching questions and answers, in writing and under oath (Rule 126, Sec. 6, ROC) Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the
Nature
Personal It may be invoked only by the person entitled to it. [Stonehill vs. Diokno (1967)] It may be waived expressly or impliedly only by the person whose right is invaded, not by one who is not duly authorized to effect such waiver. [People vs. Damaso (1992)] Directed Against the Government and Its Agencies (State Action Requirement) The right cannot be set up against acts committed by private individuals. The right applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. The protection cannot extend to acts committed by private individuals so as to bring them within the ambit of alleged unlawful intrusion by the government. [People vs. Marti (1991)] What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. [Valmonte v. De Villa, 178 SCRA 211] Objections to the warrant of arrest must be made before the accused enters his plea. [People v. Codilla, 224 SCRA 104; People v. Robles, G.R. No. 101335, June 8, 2000]
witnesses he may produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. [Roan vs. Gonzales (1984)] (4) On the basis of their personal knowledge of the facts they are testifying to. (5) The warrant must describe particularly the place to be searched and the persons or things to be seized. Requirement is primarily meant to enable the law enforcers serving the warrant to (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. [People v. Tee, G.R. Nos. 140546-47, January 20, 2003] PLACE TO BE SEARCHED The search warrant issued to search petitioners compound for unlicensed firearms was held invalid for failing to describe the place with particularity, considering that the compound was made up of 200 buildings, 15 plants, 84 staff houses, 1 airstrip etc spread out over 155 hectares. [PICOP vs. Asuncion (1999)] DESCRIPTION OF PLACE/THINGS The description of the property to be seized need not be technically accurate or precise. Its nature will vary according to whether the identity of the property is a matter of concern. The description is required to be specific only in so far as the circumstances will allow. [Kho vs. Judge Makalintal (1999)] A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow. [People v. Rubio, 57 Phil 384] or when the description expresses a conclusion of fact, not of law, by which the warrant officer may be guided in making the search and seizure; or when the tings described are limited to those which bear direct relation to the offense for which the warrant is being issued. [Bache & Co. v. Ruiz, 37 SCRA 823] DESCRIPTION OF PERSONS SEARCHED Search warrant is valid despite the mistake in the name of the persons to be searched. The authorities

conducted surveillance and test-buy ops before obtaining the SW and subsequently implementing it. They had personal knowledge of the identity of the persons and the place to be searched, although they did not specifically know the names of the accused. [People vs. Tiu Won Chua (2003)] GENERAL WARRANT: One that (1) does not describe with particularity the things subject of the search and seizure; and (2) where probable cause has not been properly established. It is a void warrant. [Nolasco vs. Pao (1985)] EXCEPTION TO GENERAL WARRANTS: General descriptions will not invalidate the entire warrant if other items have been particularly described. [Uy vs. BIR (2000)] Conduct of the Search (Sec. 7, Rule 126, ROC) In the presence of a lawful occupant thereof or any member of his family, OR If occupant or members of the family are absent, in the presence of 2 witnesses of sufficient age discretion residing in the same locality Force may be used in entering a dwelling if justified by Rule 126 ROC. Failure to comply with Sec. 7 Rule 126 invalidates the search. [People vs. Gesmundo (1993)] FORCIBLE ENTRY JUSTIFIED: Occupants of the house refused to open the door despite the fact that the searching party knocked several times, and the agents saw suspicious movements of the people inside the house. [People vs. Salanguit (2001)] UNLAWFUL SEARCH: Police officers arrived at appellants residence and side-swiped (sinagi) appellants car (which was parked outside) to gain entry into the house. Appellants son, who is the only one present in the house, opened the door and was immediately handcuffed to a chair after being informed that they are policemen with a warrant to search the premises. [People vs. Benny Go (2003)]
80
3. Warrantless Searches
GENERAL RULE Areas within the reach and control of the accused are the permissible areas of search for both stopand-frisk and search-incident-to-a-valid-arrest. [Espano vs. CA; People vs. Cubcubin (2001)] EXCEPTION Sec. 3(2), Art. III, 1987 CONSTI. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Evidence obtained in violation of Sec. 2 Art. III shall be inadmissible for any purpose and in any proceeding. [Stonehill vs, Diokno (1967)]
Once the primary source is shown to have been unlawfully obtained, any secondary or derivative evidence is also inadmissible. [Nardone vs. US (1939)] It was alleged that Parliamentary Club was a gambling house; search warrant was obtained. Veloso read the warrant and said that he was not John Doe. The Court ruled that the John Doe search warrant was valid and held that there is nothing to prevent issue and service of warrant against a party whose name is unknown. Besides, the officers had the right to arrest the persons engaged in prohibited game. An officer making an arrest may take from the person arrested any money / property found upon his person, w/c was used in commission of crime, or was the fruit of the crime, or w/c may furnish the person w/ means of committing violence or escaping, or w/c may be used as evidence on trial, but not otherwise. [People vs. Veloso (1925)] Other specific situations: Quick Look: a. Search is an Incident to a Lawful Arrest. b. Search of Moving Vehicles c. Plain View Doctrine d. Stop and Frisk Searches e. Valid Express Waiver f. Customs search g. Visual Search at Checkpoints h. Conduct of Aerial Target Zoning saturation drive i. Exigent and Emergency Circumstances
Aguilar-Roque and Nolasco, allegedly connected w/ the CPP-NPA and accused of rebellion and subversion, assert that the search warrant in this case is void because (1) it doesnt sufficiently describe things subject of the search & seizure and (2) probable cause hasnt been established for lack of searching questions propounded to applicants witness. Court ruled that the search warrant is void. However, the Court also ruled that the search in question did not need a search warrant. Under the Rules of Court, a person charged w/ an offense may be searched for dangerous weapons or anything w/c may be used as proof of the commission of the offense. As an incident of an arrest, the premises where the arrest was made can also be searched w/o search warrant. [Nolasco vs Cruz Pao (1985)] In this Motion for Partial Reconsideration of the 1985 decision, the petitioners submit that a warrantless search can be justified only if its an incident to a lawful arrest and that since Aguilar wasnt lawfully arrested, a search w/o warrant couldnt be made. The SolGen offered no objection to declaration that the search was illegal and to the return of the seized items. The Motion for Partial Reconsideration is granted. [Nolasco vs. Pao on M.R. (1987)]
81
b. Search of Moving Vehicles

and Securing a search warrant is not practicable since the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought [Papa vs. Mago (1968)]
a. Search is an incident to a lawful arrest.

Sec. 12, Rule 126, Rules of Court. Search incident to lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this case, the extent and reasonableness of the search must be decided on its own facts and circumstances. What must be considered is the balancing of the individuals right to privacy and the publics interest in the prevention of crime and the apprehension of criminals. [Nolasco vs. Pano (1985)]
c. Plain View Doctrine: Things seized are within plain view of a searching party
Requisites (1) Prior valid intrusion into a place; (2) Evidence: inadvertently discovered by police who had the right to be where they were; (3) Evidence must be immediately apparent and (4) Noticed without further search [People vs. Musa; People vs. Sarap (2003)] An object is in plain view if the object itself is plainly exposed to sight. Where the seized object is inside a closed package, the object is not in plain view and, therefore, cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the content are in plain view, and may be seized. [Caballes v. Court of Appeals, G.R. No. 136282, January 15, 2002] If the package is such that it contains prohibited articles, then the article is deemed in plain view. [People v. Nuevasm G.R. No. 170233, February 22, 2007]
Test for validity Item to be searched was within the arresters custody; Search was contemporaneous with the arrest
d. Stop and Frisk Searches
There should be a genuine reason to stop-and-frisk in the light of the police officers experience and surrounding conditions to warrant a belief that the person detained has weapons concealed. [Malacat vs. CA (1997) citing Terry vs. Ohio] The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latters outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officers experience and the surrounding conditions, to warrant the belief that the person to be held has weapons or contraband concealed about him. [People v. Sy Chua, G.R. Nos. 136066-67, February 4, 2003]
g. Visual Search at Checkpoints

Stop and search without a warrant at military or police checkpoints, which has been declared not to be illegal per se so long as it is required by exigencies of public order and conducted in a way least intrusive to motorists. [Valmonte vs. de Villa, 178 SCRA 211] For a mere routine inspection, the search is normally permissible when it is limited to a mere visual search, where the occupants are not subjected to physical or body search. On the other hand, when the vehicle is stopped and subjected to a physical or body search. On the other hand, when the vehicle is stopped and subjected to an extensive search, it would be constitutionally permissible only If the officers conducting the search had reasonable or probable cause to believe, before the search, that either the motorist is a law offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. [Caballes v. Court of Appeals, G.R. No. 136292, Januarcy 15, 2002,; People v. Libnao, G.R. No. 136860, January 20, 2003]
82
e. Valid Express Waiver made Voluntarily and Intelligently

Requisites (1) Must appear that right exists; (2) Person involved had actual/ constructive knowledge of the existence of such right; (3) Said person had an actual interest to relinquish the right; (4) Waiver is limited only to the arrest; (5) Waiver does not extend to search made as an incident thereto, or to any subsequent seizure of evidence found in the search. [People vs. Peralta (2004)] It was ruled that the right to be secure from unreasonable search may be waived. Waiver may be express or implied. When one voluntarily submits to a search or consents to have it made of his person / premises, he is precluded from later complaining. In this case, the appellant neither made objection nor even muttered a bit of protest when the search was conducted on his person. Also, as held in Weeks v. United States, when the search of the person detained or arrested and seizure of effects found in his possession are incidental to an arrest made in conformity w/ the law, they cannot be considered unreasonable, much less unlawful. [People vs. Kagui Malasugui (1936)] It is the State that has the burden of proving, by clear and convincing evidence, that the necessary consent was obtained and that it was voluntarily and freely given. [Caballes v. Court of Appeals, G.R. No. 136292, January 15, 2002] When accused checked in his luggage as passenger of a plane, he agreed to the inspection of his luggage in accordance with customs laws and regulations, and thus waived any objection to a warrantless search. [People v. Gatward, 267 SCRA 785]
h. Conduct of aerial target zoning and saturation drive in the exercise of the military powers of the President [Guanzon vs. de Villa (1990)] i. Exigent and Emergency Circumstances
The raid and seizure of firearms and ammunition at the height of the 1989 coup-de-etat, was held valid, considering the exigent and emergency situation. The military operatives had reasonable ground to believe that a crime was being committed, and they had no opportunity to apply for a search warrant from the courts because the latter were closed. Under such urgency and exigency, a search warrant could be validly dispersed with. [People vs. de Gracia, 233 SCRA 716]
j. Search and seizure incident to a lawful arrest

Arresting officer may take from the arrested individual any money or property found upon the latters person --- that which was used in the commission of the crime or was the fruit of the crime, or which may provide the person arrested with the means of committing violence or escaping, or which may be used in evidence in the trial of the case. The search, must, however, be contemporaneous to the arrest and made within a permissible area of search. [People v. Estella, G.R. Nos. 138539-40, January 21, 2003]
f.
Customs Search
Properties Subject to Seizure

GENERAL RULE: Only the articles particularly described in the warrant may be seized. Property subject of an offense
Searches of vessel and aircraft for violation of immigration and smuggling laws [Papa vs. Mago (1968)]
Stolen or embezzled property and other proceeds or fruits of an offense Used or intended to be used as a means of committing an offense (Sec. 2 Rule 126, ROC) Where the warrant authorized only the seizure of shabu, and not marijuana, the seizure of the latter was held unlawful. [People vs. Salanguit, supra] It is not necessary that the property to be searched or seized should be owned by the person against whom the warrant is issued; it is sufficient that the property is within his control or possession. [Burgos vs. Chief of Staff (1984)] Comparison of Procedures in Obtaining Search Warrants and Arrest Warrants R112, Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence [NOTE: THIS IS NOT FOUND IN THE PROCEDURE FOR A SEARCH WARRANT] within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. Rule 126, Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines

Following established doctrine and procedure, he shall: (1) Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) If he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. [Beltran vs. Makasiar (1988)] Existence of probable cause: Such facts and circumstances which would lead a reasonably discreet and prudent mean to believe that an offense has been committed by the person sought to be arrested. [Webb vs. De Leon (1995)] Determination of probable cause personally by the judge as to warrant of arrest: (1) On the basis of the witnesses personal knowledge of the facts they are testifying to. (2) The arrest warrant must describe particularly the person to be seized. By stating the name of the person to be arrested. If not known, then a John Doe warrant may be issued, with some descriptio persona that will enable the officer to identify the accused. JOHN DOE WARRANT: Warrants issued against 50 John Does, none of whom the witnesses could identify, were considered as general warrants and thus void. [Pangandaman vs. Casar (1988)]
83
Requisites of a Valid Warrantless Arrest

(Rule 113, Sec. 5, Rules on Criminal Procedure) 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (in flagrante delicto) Rebellion is a continuing offense. Therefore a rebel may be arrested w/o a warrant at any time of the day or the night as he is deemed to be in the act of committing rebellion. [Umil vs. Ramos (1991)] Though kidnapping w/ serious illegal detention is deemed a continuing crime, it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another. [Parulan vs. Dir of Prisons (1968)] HOT PURSUIT: The arrest of the accused inside his house following hot pursuit of the person who committed the offense in flagrante was held valid. [People vs. De Lara (1994)] BUY-BUST: A buy-bust operation is a valid in flagrante arrest. The subsequent search of the person arrested and the premises within his
4. Warrantless Arrests
Requisites for Issuance of a Valid Arrest Warrant
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is NOT required to personally examine the complainant and his witnesses.
immediate control is valid as an incident to a lawful arrest. [People vs. Hindoy (2001)] EXCEPTION TO BUY-BUST: Instead of arresting the suspect after the sale in a buy-bust op, the officer returned to the police headquarters and filed his report. It was only in the evening that he, without warrant, arrested the suspect at his house where dried marijuana leaves were found and seized. This is unlawful arrest. [People vs. Rodrigueza] 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

extrajudicial confession made by Burgos. However, Burgos claimed that he had been mauled and hit repeatedly until he would admit and sign an extrajudicial confession. Exceptions to warrant of arrest: Art. IV, Sec. 3 of the Constitution safeguards against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers, and effects. Rule 113, Sec. 6 of the Rules of Court provides the exceptions to the warrant requirement. However, the instant case does not fall under any of the exceptions in Rule 113, Sec. 6. First, it requires that the officer arresting a person who has committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must be committed in his presence or within his view. In the instant case: The knowledge as to the offense was furnished by Masamlok. The location of the firearm was given by the Burgos wife. At the time of the arrest, Burgos was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was in fact plowing his field at the time of his arrest. It is clear that the arresting officers had no personal knowledge of the commission of the offense because such information was only supplied to them by an informant. Neither has Burgos committed any offense in their presence as he was merely plowing his field at the time of arrest. On the other hand, Sec. 6 (b) of Rule 113 requires that a crime must in fact or actually have been committed first. It is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. That a crime has actually been committed is an essential precondition. In the instant case, it was not even established that indeed a crime has been committed. The information that a crime was probably committed was supplied by Masamlok who did not even give his testimony under oath. Finally, the Court finds no compelling reason for the haste of the arresting officers to arrest Burgos if indeed he committed a crime. There is no showing that there was real apprehension that Burgos was on the verge of flight or escape and that his whereabouts are unknown. [People vs. Burgos (1986)] 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. ADDITIONAL EXCEPTIONS (NOT IN THE RULES): (1) When the right is voluntarily waived (estoppel).
84
Requisites: (1) Offense had JUST been committed; (2) Person making the arrest has probable cause to believe based on PERSONAL KNOWLEDGE. Note: There must be a large measure of immediacy between the time the offense is committed and the time of the arrest. If there was an appreciable lapse of time between arrest and commission of crime, warrant of arrest must be secured. (NACHURA) Warrantless arrest of accused for selling marijuana 2 days after he escaped is invalid. [People vs Kimura (2004)] The police saw the victim dead at the hospital and when they inspected the crime scene, they found the instruments of death. The eyewitnesses reported the happening and pointed to Gerente as one of the killers. Here the warrantless arrest only 3 hrs after the killing was held valid since personal knowledge was established as to the fact of death and facts indicating that Gerente killed the victim. [People vs Gerente (1993)] PERSONAL KNOWLEDGE: Experience of an officer which gives the idea that there is probable cause that the person caught is responsible. It has been ruled that personal knowledge of facts in arrests without a warrant must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. [Cadua v. Court of Appeals, G.R. No. 123123, Aug. 19, 1999] Burgos was convicted for the crime of Illegal Possession of Firearms in Furtherance of Subversion. Masamlok claimed that he had been forcibly recruited by Burgos to the NPA, threatening him with the use of firearm against his life and family. Masamlok was also allegedly threatened to attend an NPA seminar. The next day the authorities went to arrest Burgos without a warrant. They found him in his residence plowing his field. Burgos denied the accusation, but his wife pointed to a place below their house where a gun was buried in the ground. After the firearm was recovered, Burgos allegedly pointed to a stock pile of cogon where he had hidden subversive documents. The prosecution presented an
(2) Violent insanity. Appellant is estopped from questioning the illegality of the arrest when he voluntarily submitted himself to the jurisdiction of the court by entering a plea of not guilty and by participating in the trial. [People vs. Salvatierra (1997)] SCOPE OF WAIVER: Waiver is limited to the illegal arrest. It does not extend to the search made as an incident thereto, or the subsequent seizure of evidence allegedly found during the search [People vs. Peralta (2004]]

deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation." [Morano vs. Vivo, L-22196, 30 June 1967, 20 SCRA, 562; PHILD. 1967B, page 741]
85
6. Drug, Alcohol and Blood Tests

The Court held that Randomized Drug Testing (RDT) for students and employees doesnt violate the right to privacy in the Constitution. Students do not have rational expectation of privacy since they are minors and the school is in loco parentis. Employees and students in universities, on the other hand, voluntarily subject themselves to the intrusion because of their contractual relation to the company or university. It is unconstitutional to subject candidates for public office and criminals to RDT. The Constitution clearly provides the requirements for candidates, and adding RDT would violate or amend the Constitution. Criminals subjected to RDT would violate their right against self-incrimination since it would not be random anymore. [SJS v. Dangerous Drugs Board (2008)]
5. Administrative Arrests
Under the express terms of our Constitution, it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And if one suspected of having committed aim is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt. The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the President obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas. [Vivio v. Montesa (1968)] The Supreme Court distinguished between administrative arrest in the execution of a final deportation order and arrest as preliminary to further administrative proceedings: "Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such a legal order of
F. Privacy of Communications and Correspondence

1. Private and Public Communications 2. Writ of Habeas Data
SEC. 3, ART. III, 1987 CONSTITUTION (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
1. Private and Public Communications

Intrusion, When Allowed
a.
By lawful order of the court
Probable cause in Sec. 2, Art. III should be followed for the court to allow intrusion. Particularity of description is needed for written correspondence, but if the intrusion is done through wire-taps and the like, there is no need to describe the content. However, identity of the person or persons whose communication is to be intercepted, and the offense or offenses sought to be prevented, and the period of the authorization given can be specified. b.
When public safety or public order requires otherwise, as may be provided by law:
Intrusion has to be based upon a non-judicial government officials assessment that public safety and order demands such intrusion, limited to the provisions of law. To hold otherwise would be to opt for a government of men, and not of laws. Public order and safety is defined as the security of human lives, liberty and property against the activities of invaders, insurrectionist and rebels. [1971 Constitutional Convention, Session of November 25, 1972]
G. Freedom of Expression
1. Concept and Scope 2. Content-Based and Content-Neutral Regulations 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
86
Forms of Correspondence Covered

(1) (2) (3) (4) letters messages telephone calls telegrams, and the like (BERNAS)
1. Concept and Scope

Basis Sec. 4, Art. 3. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Sec. 18. (1), Art. 3 No person shall be detained solely by reason of his political beliefs and aspirations. All are indispensable to the uninhibited, robust and wide-open debate in the free marketplace of ideas. [Abrams vs. US (1919)] While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff, this Court however believes that the alleged defamatory articles fall within the purview of a qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving malice is accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by ill-will in what they caused to be printed and published, with a design to carelessly or wantonly injure the plaintiff. [U.S. vs. Bustos (1909)] Components Speech, expression, and press include: (1) Written or spoken words (recorded or not) (2) Symbolic speech (e.g. wearing armbands as symbol of protest) (3) Movies (BERNAS) Scope of Protected Freedoms Any and all modes of protection are embraced in the guaranty. It is reinforced by Sec. 18(1), Art. 3.
Private Communication Revised Penal Code, Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1) A private communication made by any person to another in the performance of any legal, moral or social duty; x x x
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remarks." [Borjal vs. CA (1999)] Anti-wire tapping act (RA 4200), clearly and unequivocably makes it illegal for any person, not authorized by all the parties to any private communication, to secretly record such communications by means of a tape recorder. The law does not make any distinction. [Ramirez v.Court of Appeals, 248 SCRA 590] Right may be invoked against the wife who went to the clinic of her husband and there took documents consisting of private communications between her husband and his alleged paramour [Zulueta v. Court of Appeals, 253 SCRA 699] Public Communication
Prior Restraint (Censorship)

Concept Censorship conditions the exercise of freedom of expression upon the prior approval of the government. The censor serves therefore as the political, moral, social and artistic arbiter for the people, usually applying only his own subjective standards in determining what is good and whats not. GENERAL RULES
2. Writ of Habeas Data

See Annex A.
(1) Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to show justification for the imposition of such restraint. (New York vs. United States 1971) (2) There need not be total suppression. Even restriction of circulation constitutes censorship [Grosjean vs. American Press Co., 297 US 233] Examples of Unconstitutional Prior Restraint (1) COMELEC prohibition against radio commentators or newspaper columnists from commenting on the issues involved in a scheduled plebiscite [Sanidad vs. COMELEC (1990)] (2) Arbitrary closure of a radio station (Eastern Broadcasting vs. Dans (1985)) (3) COMELEC resolution prohibiting the posting of decals and stickers in mobile units like cars and other moving vehicles [Adiong vs. COMELEC (1992)] (4) Search, padlocking and sealing of the offices of newspaper publishers (We Forum) by military authorities [Burgos vs. Chief of Staff, supra] (5) An announcement of a public figure to prohibit the media to issue a specific kind of statement amounts to prior restraint, which is violative of the right to free press. [Chavez vs. Gonzales (2006)] Examples of Constitutional Prior Restraint: (1) Law which prohibits, except during the prescribed election period, the making of speeches, announcements or commentaries for or against the election of any candidate for office [Gonzales vs. COMELEC (1969)] (2) Prohibition on any person making use of the media to sell or to give free of charge print space or air time for campaign or other political purposes except to the COMELEC. Ratio: police power of State to regulate media for purpose of ensuring equal opportunity, time and space for political campaigns. [National Press Club vs. COMELEC, G.R. NO. 1026653, March 5, 1992; Osmena vs. COMELEC] (3) Movie censorship: the power of the MTCRB can be exercised only for purposes of reasonable classification, not censorship. [NACHURA citing Gonzalez vs. Katigbak (1985) and Ayer vs. Judge Capulong] (4) Near vs. Minnesota, (1931): (a) When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right (b) Actual obstruction to the governments recruiting service or the publication of the sailing dates of transports or the number and location of troops (c) Obscene publications

(d) Incitements to acts of violence and the overthrow by force of orderly government
87
Subsequent Punishment
Concept: Freedom of speech includes freedom after speech. Without this assurance, the citizen would hesitate to speak for fear he might be provoking the vengeance of the officials he has criticized ( chilling effect). If criticism is not to be conditioned on the governments consent, then neither should it be subject to the governments subsequent chastisement. Examples of Valid Subsequent Restraints: (1) Libel. Every defamatory imputation is presumed to be malicious. [Alonzo vs. CA (1995)] Exceptions to this presumption are found in Art. 354 of the RPC. (2) Obscenity. The determination of what is obscene is a judicial function. [Pita vs. CA (1989)] Accused was convicted for exhibiting nude painting and pictures, notwithstanding his claim that he had done so in the interest of art. Court said that the purpose was commercial, not merely artistic, because he charged admission fees to the exhibition. [U.S. vs. Kottinger (1923)] (3) Contempt for criticism/publications tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding (sub judice) [People vs. Alarcon (1939)] (4) Being a public figure does not automatically destroy in toto a person's right to privacy. The limits of freedom of expression are reached when it touches upon matters of private concern [Lagunzad vs. Gonzales (1979)] (5) Right of students to free speech in school premises must not infringe on the schools right to discipline its students [Miriam College Foundation vs. CA (2000)] EXCEPTIONS (1) Fair comment on matters of public interest. Fair comment is that which is true or, if false, expresses the real opinion of the author based upon reasonable degree of care and on reasonable grounds. (2) Criticism of official conduct is given the widest latitude. [US vs. Bustos (1918)]
2. Content-Based and Content-Neutral Regulations

Content-Based Restrictions
CONSTITUTIONAL LAW 2 Specific Instances

Freedom of Expression and National Security Espuelas was convicted in the lower court of the crime of inciting to sedition. Espuelas had his picture taken, making it to appear as if he were hanging lifeless at the end of a piece of rope suspended from the limb of a tree, when in truth and in fact, he was merely standing on a barrel. After securing copies of his photograph, he sent copies to several newspapers and weeklies of general circulation throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he made to appear that it was written by a fictitious suicidee, Alberto Reveniera and addressed to the latter's supposed wife. These reasons point to the Roxas administration, his disappointments and humiliations because of the former and his lack of power to put under Juez de Cuchillo all the Roxas people in power. Finally, the letter instructed the wife to teach their children to burn pictures of Roxas if they come across one. Espuelas admitted the fact that he wrote the letter and caused its publication and that he had impersonated one Alberto Reveniera and posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of a rope tied to a limb of a tree. Freedom of Expression, national security: The letter is a scurrilous libel against the Government. It suggests or incites rebellious conspiracies or riots and tends to stir up the people against the constituted authorities, or to provoke violence from opposition groups who may seek to silence the writer, which is the sum and substance of the offense under consideration. Such writings are criminal not only because they tend to incite to a breach of the peace but because they are conducive to the destruction of the very government itself. Malicious endeavors to stir up public strife are prohibited. Our Legislature has spoken in article 142 of the RPC and the law must be applied. This kind of legislation must be weighed carefully vis--vis the fundamental right to freedom of speech. Such freedom, although secured by the Constitution, does not confer an absolute right to speak or publish without responsibility whatever one may choose. It is not unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. The privilege of any citizen to criticize his government and government officials and to submit his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the market" is not to be restrained. However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up. Such wholesale attack is nothing less than an invitation to disloyalty to the government. When

the use of irritating language centers not on persuading the readers but on creating disturbance, the rationale of free speech cannot apply and the speaker or writer is removed from the protection of the constitutional guaranty. [Espuelas vs. People (1951)] Freedom of Expression and Libel NATIONAL COMMUNITY STANDARD AS BASIS OF WHAT IS DEFAMATORY: An article in Phil. Panorama described Amir Mindalano as not belonging to a royal house. The Court held that there is no libel. Such a description cannot be regarded as defamatory, an imputation of a vice or defect, or tending to cast dishonor, discredit or contempt or to blacken the memory of one who is dead. In a community like ours which is both republican and egalitarian, such an ascription, whether correct or not, cannot be defamatory. It is to the standards of the national community, not to those of the region that a court must refer especially where a newspaper is national in reach and coverage. [Bulletin Publishing vs. Noel (1988)] REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND COVERED BY PRESS FREEDOM: Where the defamation is alleged to have been directed at a group/class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. Also, the report in the Newsweek article referring as it does to an official act performed by an elective public official (i.e. that the victim had been arrested by members of special police unit brought by the mayor of Kabankalan who incidentally is a sugar planter), is w/in the realm of privilege and is protected by the constitutional guarantees of free speech and press. [Newsweek vs. IAC (1986)] Islamic DaWah Council of the Philippines, Inc., a local federation of more than 70 Muslim religious organizations, filed a complaint for damages against MVRS Publications, Inc., arising from an article, which says that the pig is sacred for the Muslims. Freedom of Expression, Libel: As the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.
88
Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "all ideas are treated equal in the eyes of the First Amendment - even those ideas that are universally condemned and run counter to constitutional principles." Under the right to free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press. [MVRS v. Islamic DaWah Council of the Phil (2003)] Freedom of Expression and the Right to Privacy Being a public figure does not automatically destroy in toto a persons right to privacy. The right to invade a persons privacy to disseminate public info does not extend to a fictional representation of a person, no matter how public a figure he/she may be. In the case at bar, petitioner admits that he included a little romance in the film about Moises Padilla (despite efforts to present the true-to-life story of the latter) because w/o it, it would be a drab story of torture and brutality. [Lagunzad vs. Soto (1979) The TC issued a writ of preliminary injunction against petitioners ordering them to desist from producing the movie The Four-Day Revolution, a docu-drama of EDSA I, on the ground that it violated the right to privacy of Juan Ponce Enrile who was featured in the documentary. The Court held that Freedom of speech and expression includes freedom of filming and producing motion pictures and to exhibit them. The fact that such film production is a commercial activity is not a disqualification for availing of freedom of speech and expression. The right to privacy cannot be involved to resist publication and dissemination of matter of public interest. The intrusion is no more than necessary to keep the film a truthful historical account. Enrile is a public figure because of his participation as a principal actor in the culminating events of the revolution. There must be no knowing or reckless disregard of truth in depicting the participation of Enrile in EDSA I. Also, there must be no presentation of his private life and no revelation of intimate or embarrassing personal facts. [Ayer Productions vs. Capulong (1988)] Freedom of Expression and the Administration Of Justice Due to the delay in the disposition of his original case, Cabansag asked for help from the President

through a letter addressed to the Presidential Complaints and Actions Commission (PCAC). A contempt charge was brought against him for sending that letter which tended to degrade the lower court in the eyes of the President and of the people. SC reversed the ruling which cited him in contempt. Freedom of Expression and the Administration of Justice: For his act (of sending his letter to the President and not to the Sec of Justice or SC) to be contemptuous, the danger must cause a serious imminent threat to the administration of justice. We cannot infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance. [Cabansag vs. Fernandez (1957)]
89
Content-Neutral Restrictions
Freedom of Assembly
The right to freedom of speech and to peaceably assemble, and petition the government for redress of grievances are fundamental personal rights of the people guaranteed by the constitutions of democratic countries. City or town mayors are not conferred the power to refuse to grant the permit, but only the discretion in issuing the permit to determine or specify the streets or public places where the parade may pass or the meeting may be held. [Primicias vs. Fugoso (1948)] The Court held here that freedom of speech and freedom to peaceably assemble is entitled to be accorded utmost deference and respect, and cannot be limited or denied unless there is showing of a clear and present danger of a substantive evil that the State has a right to prevent. For the constitutional right to be invoked, riotous conduct, injury to property and acts of vandalism must be avoided. Furthermore, absent any clear and present danger of a substantive evil, peaceable assembly in public places like streets or parks cannot be denied. [J.B.L. Reyes vs. Bagatsing (1983)] The CPR, insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID. CPR serves no valid purpose if it means the same thing as maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance. B.P. 880 not unconstitutional. B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. The law is not vague or overbroad. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places.
Freedom Parks. B.P. 880 provides that every city and municipality must set aside a freedom park within six months from the laws effectivity in 1985, or 20 years ago. Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time. According to the SolGen (Nachura), however, he is aware of only ONE declared freedom park - Fuente Osmena in Cebu City. Without such alternative forum, to deny the permit would in effect be to deny the right. Hence, local governments are given a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the office of the mayor to allow proper coordination and orderly activities. Permit Application. There is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. Conclusion. For this reason, the so-called calibrated pre-emptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, maximum tolerance is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger standard. [Bayan vs. Ermita (2006)]

or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court. The right to associate is not absolute. [People vs. Ferrer (1972)] Sec. 2 (5), Art 9-B. 1987 Constitution. The right to self-organization shall not be denied to government employees. Sec. 8, Art. 3, 1987 Constitution. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
90
3. Facial Challenges and the Overbreadth Doctrine

Overbreadth Doctrine: A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (1) Claims of facial overbreadth are entertained in cases involving statutes which by their terms seek to regulate only spoken words. Such claims have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. (2) A facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression.
Freedom of Association and Self-Organization

SEC. 17. Human Security Act Proscription of Terrorist Organizations, Association, or Group of Persons. Any organization, association,
(3) Also, the challenger must establish that there can be no instance when the assailed law may be valid. (4) Used on freedom of expression, when on the face of a regulation, it appears sweeping. A plain reading of PP 1017 shows that it is not primarily directed to speech / speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. Petitioners did not show WON theres an instance when PP1017 may be valid. [David vs. Arroyo (2006)]

Lovely as being involved in the series of bombings in Metro Manila. Direct Incitement Test: In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg vs. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. [Salonga vs. Cruz Pao (1986)]
91
4. Tests
Dangerous Tendency Test
If the words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable. [Cabansag vs. Fernandez (1957)] It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. [People vs. Perez (1956)]
Clear and Present Danger Test

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. [Schenck vs. United States (1919)] This rule requires that the danger created must not only be clear and present but also traceable to the ideas expressed. [Gonzales vs. COMELEC (1969)] Note: This test has been adopted by the Philippine SC lock, stock and barrel and is the test most applied to cases re: freedom of expression.
Grave-But-Improbable Danger Test

In this case, the Petitioners, leaders of the Communist Party in this country, were indicted in a federal district court under 3 of the Smith Act for (1) wilfully and knowingly conspiring to organize as the Communist Party a group of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) to knowingly and wilfully advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. [Dennis vs. U.S. (1951)] Grave-But-Improbable Danger Test: To determine the clear and present danger of the utterances bringing about the evil which that legislature has the power to punish, "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." In this case, an attempt to overthrow the Government by force is a sufficient evil for Congress to prevent. It is the existence of the conspiracy which creates the danger.
Balancing of Interest Test

When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional and partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection. [American Communications Assoc. vs. Douds, 339 US 282] The test is applied when two legitimate values not involving national security crimes compete. [Gonzales vs. COMELEC (1969)]
Direct Incitement Test

In this case, the Petitioner was charged with violation of the Revised Anti-Subversion Act after being apparently implicated by a certain Victor
5. State Regulation of Different Types of Mass Media

Art. XVI Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. The Court pronounced that the freedom of broadcast media is lesser in scope than the press because of their pervasive presence in the lives of people and because of their accessibility to children.
By the clear terms of the law, the Board has the power to approve, delete, or prohibit the exhibition and/or television broadcasts of television programs. The law also directs the Board to apply contemporary Filipino culture values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of a violence or of a wrong or a crime. According to Iglesia ni Cristo vs. CA: The law gives the Board the power to screen, review and examine ALL television programs whether religious, public affairs, news documentary, etc. (Ubi lex non distinguit nec distinguere debemos-when the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it). Also, the fact that freedom of religion has been accorded a preferred status, still the Court did not exempt Iglesia ni Cristos program from MTRCBs power to review. Freedom of expression and of the press has not been declared of preferred status. [MTRCB vs. ABS-CBN (2005)] The Supreme Court could not compel TV stations and radio stations, being indispensable parties, to give UNIDO free air time as they were not impleaded in this case. UNIDO must seek a contract with these TV stations and radio stations at its own expense. [UNIDO vs COMELEC (1981)] The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public. Considering the prejudice it poses to the defendants right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of the court proceedings shall not be allowed. No video shots or photographs shall be permitted during the trial proper. Video footages of court hearings for news purposes shall be limited and restricted as above indicated. [Secretary of Justice vs Sandiganbayan (2001)]
92
Movie Censorship
Gonzales was the producer of the movie Kapit sa Patalim w/c the Board of Review for Motion Pictures and Televisions classified as fit For Adults Only. Here the Court held that the power of the Board is limited to the classification of films. For freedom of expression is the rule and restrictions the exception. Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, morals, health or any other legit public interest: (1) There should be no doubt what is feared may be traced to the expression complained of. (2) Also, there must be reasonable apprehension about its imminence. It does not suffice that the danger is only probable. [Gonzales vs. Kalaw Katigbak (1985)] Limited intrusion into a persons privacy is permissible when that person is a public figure and the information sought to be published is of a public character. What is protected is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs of an individual which are outside the realm of public concern. [Ayer Productions vs Capulong, supra]
Radio Censorship
The Supreme Court does not uphold claim that Far Eastern had no right to require the submission of the manuscript. It is a duty of Far Eastern to require the submission of a manuscript as a requirement in broadcasting speeches. Besides, laws provide for such actions: Act 8130. Franchise for Far Eastern; radio to be open to the general public but subject to regulations
Television Censorship
P.D. 1986 gives the petitioner the power to screen, review and examine all television programs.
Comm. Act 98. Sec. of Interior and/or the Radio Board is empowered to censor what is considered neither moral, educational or entertaining, and prejudicial to public interest. The Board can forfeit the license of a broadcasting station. Sec. of the Interior, Dept. Order 13. Requires submission of daily reports to Sec. of Interior/Radio Board re: programs before airing. For speeches, a manuscript or short gist must be submitted. [Santiago vs. Far Eastern Broadcasting (1941)]

Art. III, Sec. 5. No law shall be made respecting an establishment of religion; or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
93
1. Non-Establishment Clause
Concept
The clause prohibits excessive government entanglement with, endorsement or disapproval of religion [Victoriano v. Elizalde Rope Workers Union (1974); Lynch v. Donnelly, 465 US 668 (1984) O'Connor, J., concurring); Allegheny County v. Greater Pittsburg ACLU (1989)]
6. Commercial Speech
Commercial speech is unprotected speech. Commercial Advertising in the U.S. has been accorded First Amendment protection but it not in the same level of protection given to political speech. One case set down the requirements for protection of commercial speech: (1) speech must not be false, misleading or proposing an illegal activity; (2) government interest sought to be served by regulation must be substantial; (3) the regulation must advance government interest; and (4) the regulation must not be overbroad. [BERNAS]
Basis
Rooted in the separation of Church and State [Sec. 2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]
Acts NOT permitted by Non-establishment Clause

(1) Prayer and Bible-reading in public schools [Engel v. Vitale (1967); Abington School District v. Schemp (1963)] (2) Financial subsidy for parochial [Lemon vs. Kurtzman (1971)] schools
7. Private v. Government Speech

Parliamentary immunity guarantees the members the freedom of expression without fear of being made responsible in criminal or civil actions before courts or forum outside of Congress. But this does not protect them from responsibility from the legislative body. The members may nevertheless be questioned in Congress itself. For unparliamentary conduct, members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. [Osmea v. Pendatun (1960)]
8. Hecklers Veto
An attempt to limit unpopular speech. For example, an unpopular group wants to hold a rally and asks for a permit. The government isn't allowed to refuse the permit based upon the beliefs of the applicants. But the government can deny the permit, reasoning that it isn't because the government disapproves of the group's message, it's just afraid that so many people will be outraged that there might be violent protests. Under the Free Speech Clause of Sec. 4 Art III, the government may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which isn't easy to prove.
(3) Religious displays in public spaces: Display of granite monument of 10 commandments in front of a courthouse is unconstitutional for being unmistakably non-secular. Nothing in its setting de-emphasizes its religious nature. It engenders in viewers a sense that Christianity is endorsed by the government. [Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. 2003)] (4) Mandatory religious subjects or prohibition of secular subjects (evolution) in schools [Epperson vs. Arkansas (1968)] (5) Mandatory bible reading in school (a form of preference for belief over non-belief) [School District vs. Schempp (1963)] (6) Word God in the Pledge of Allegiance: Mandatory recitation in school of such a Pledge of Allegiance would tend to discriminate against students who are atheists. [Newdow vs. US (2003)]
Acts Permitted by the Establishment Clause

(1) Tax exemption Sec. 28 (3), Art. 6. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and
H. Freedom of Religion
1. Non-Establishment Clause 2. Free Exercise Clause
exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (2) Operation of sectarian schools Sec. 4(2), Art. 14. Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens (3) Religious instruction in public schools Sec. 3(3), Art. 14. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. Civil Code, Art. 359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: (1) Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian. xxx (4) Public aid to religion Sec. 29 (2), Art. 6. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (5) Postage stamps depicting Philippines as the site of a significant religious event Postage stamps which promote a Catholic event are constitutional. The benefit to religious sect is incidental to promotion of Philippines as a tourist destination. [Aglipay vs. Ruiz, (64 Phil. 201)] (6) Government sponsorship of town fiestas. Traditions which used to be purely religious but have now acquired secular character are permissible [Garces vs. Estenzo (1981)] (7) Book lending program for students in parochial schools. The benefit redounds to students and parents and not to any particular sect. [Board of Education vs. Allen, 392 U.S. 236] (8) Display of crche in a secular setting

Crche is displayed in a secular manner, and merely depicts the origins of the holiday. The Constitution mandates accommodation and not merely tolerance. Instead of an absolutist approach, court inquires if the law or conduct has a secular purpose. [Lynch vs. Donnely (1984)] (9) Financial support for secular academic facilities WON a law that grants financial support for expansion of educational facilities in parochial schools is constitutional. HELD: Yes, secular purpose facilities to be used for secular activities. The facilities built here were a library and a science center. [Tilton vs. Richardson (403 U.S. 672)] (10) Exemption from zoning requirements to accommodate unique architectural features of religious buildings WON zoning law giving exemption to religious sect (Mormons building a tall pointed steeple) is constitutional. HELD: Yes, court may not determine whether architectural features are necessary for a particular religion, e.g. steeple pointing upwards into heaven for Mormons. [Martin vs. Corporation of the Presiding Bishop (434 Mass. 141)]
94
Test
Lemon Test (1) Statute must have a secular legislative purpose. (2) Primary effect must be one that neither advances nor inhibits religion. (3) Must not foster excessive entanglement between government and religion. [Lemon vs. Kurtzman, (403 U.S. 602)]
2. Free Exercise Clause

Dual Aspect
(1) Freedom to believe - absolute (2) Freedom to act on ones belief subject to regulation
Laws Justified under Free Exercise Clause

(1) Exemption from flag salute Conscientious Objectors cannot be compelled to salute the flag on pain of being dismissed from one's job or of being expelled from school. [Ebralinag vs. Division Superintendent of Schools of Cebu (1993)] (2) Freedom to propagate religious doctrines The power to tax the exercise of the privilege is the power to control or suppress its enjoyment. Those who can tax the exercise of religious practice can make its exercise so costly as to
deprive it of the resources necessary for its maintenance. [American Bible Society vs. City of Manila (1957)] (3) Exemption from union shop Neither does the law constitute an establishment of religion. It has been held that in order to withstand objections based on this ground, the statute must have a secular purpose and that purpose must not directly advance or diminish the interest of any religion. Congress acted merely to relieve persons of the burden imposed by union security agreements. The free exercise of religious profession or belief is superior to contract rights. [Victoriano vs. Elizalde Rope Workers Union (1974)] (4) Non-disqualification from local government office For lack of votes, law disqualifying religious leaders from public office is held valid. As per free exercise clause, it is invalid for it requires a religious test for qualification. [Pamil vs. Teleron (1978)] Dean Pangalangan: There should be no distinction between ordinary believer and the Pope; if the former can hold office, why not the latter.

make them live together and the noble intention of the Government of organizing them politically will come to naught. Furthermore, their relocation (and the imposition that they are not allowed to emigrate to some other places under penalty of imprisonment) is a proper restraint to their liberty, they being taught and guided in Tigbao to improve their living conditions, and improve their education. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. [Rubi vs. Provincial Board (1919)] The executive of a municipality does not have the right to force citizens of the Philippine Islands to change their domicile from one locality to another. Law defines power, and there is no law nor regulation that allows a mayor or a police chief to restrain the liberty of abode of citizens of the Philippines. [Villavicencio vs. Lukban (1919)]
95
1. Limitations
Right to Travel
RIGHT NOT ABSOLUTE: The Constitutional Right to Travel under Sec. 5, Art. IV of the 1973 Constitution is not an absolute right, and can only be impaired upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. Releasing the petitioner on bail and that as a condition, he make himself available at all times is a valid restriction on his right to travel. To allow him to travel, especially abroad will make the order of the court nugatory as the court's jurisdiction cannot extend beyond the Philippines. [Manotok vs. CA (1986)]
I. Liberty of Abode and Freedom of Movement

1. Limitations 2. Return to Ones Country Sec. 6, Art. III: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." The right of the individual is necessarily subject to reasonable restraint by general law for the common good. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. None of the rights of the citizen can be taken away except by due process of law. The government's measure in relocating the Manguianes, a nomadic people with a wayfaring life and without permanent individual property is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provided for, you cannot
2. Return to Ones Country

The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. The President has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. One of her duties is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and, subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. [Marcos vs. Manglapus (1989)]
J. Right to Information
1. 2. 3. 4. Limitations Publication of Laws and Regulations Access to Court Records Right to Information Relative to
Art. II Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Art. III Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Art. XVI Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

While the Constitution guarantees access to information on matters of public concern, access is subject to reasonable regulation for the convenience of and for order in the office that has custody of the documents. [Baldoza vs Dimaano (1976)] While the public officers in custody or in control of public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying. [Lantaco vs Llamas (1981)]
96
2. Publication of Laws and Regulations

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, x x x. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. [Taada vs Tuvera (1986)]
Scope
Right to information contemplates inclusion of negotiations leading to the consummation of the transaction. Otherwise, the people can never exercise the right if no contract is consummated, or if one is consummated, it may be too late for the public to expose its defects. However, if the right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. [Chavez v. PEA and Amari, G.R. No. 133250, July 9, 2002]
1. Limitations
The right does not extend to matters recognized as privileged information rooted in separation of powers, nor to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused. [Chavez v. PEA and Amari, supra] Media practitioners requested information from the GM of GSIS regarding clean loans granted to certain members of the defunct Batasang Pambansa on the guaranty of Imelda Marcos shortly before the Feb 1986 elections. Request was refused on the ground of confidentiality. The right to information is not absolute. It is limited to matters of public concern and is subject to such limitations as may be provided by law. That the GSIS was exercising a proprietary function would not justify its exclusion of the transactions from the coverage of the right to info. But although citizens have such right and, pursuant thereto, are entitled to access to official records, the Constitution does not accord them the right to compel custodians of official records to prepare lists, summaries and the like in their desire to get info on matters of public concern. [Valmonte vs. Belmonte (1989)]
3. Access to Court Records

Canon II Confidentiality Code of Conduct for Court Personnel (AM No. 03-06-13-SC) SECTION 1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them while employed in the judiciary, whether such information came from authorized or unauthorized sources.
Confidential information means information not yet made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any justice or judge relating to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers. The notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or order shall remain confidential even after the decision, resolution or order is made public. Decisions are matters of public concern and interest. Pleadings and other documents filed by parties to a case need not be matters of public concern or interest. They are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interest. Access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. [Hilado, et al vs Judge (2006)]

proceedings in ensuring a fair and impartial trial race against another, jurisprudence tells us that the right of the accused must be preferred to win. With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind unbridled by running emotions or passions. [Re: Request for Live Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases against former President Joseph Ejercito Estrada, Secretary of Justice Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-03-SC, June 29, 2001]
97
K. Right to Association
1. Labor Unionism 2. Communist and Similar Organizations 3. Integrated Bar of the Philippines Sec. 8, Art. III. The right of the people, including those employed in the public and private sectors, to form unions, association, or societies for purposes not contrary to law shall not be abridged. Sec 2(5), Art. IX-B. The right to self-organization shall not be denied to government employees. Sec. 3, Art. XIII. x x x. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. The limitation "for purposes not contrary to law" should be interpreted as another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies. [Gonzales vs COMELEC (1969)] Note: The right is recognized as belonging to people whether employed or unemployed, and whether
4. Right to Information Relative to

Government Contract Negotiations
The constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government, and should not cover recognized exceptions. [Chavez v. Philippine Estate Authority (2002)] The limitations recognized to the right of information are: (1) National security matter including state secrets regarding military and diplomatic matters, inter-government exchanges prior to the conclusion of treaties and executive agreements. (2) Trade secrets and banking transactions (3) Criminal Matters (4) Other confidential matters. [Neri vs Senate (2008) citing Chavez vs President Commission on Good Government]
Diplomatic Negotiations
Diplomatic negotiations have a privileged character. [Akbayan vs Aquino cited in Neri vs Senate (2008)]
Court Hearings
When the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its
employed in the government or in the private sector. It also recognizes that the right to form associations includes the right to unionize It should be noted that the provision guarantees the right to associations. It does not include the right to compel others to form an association. But there may be situations in which, by entering into a contract, one may also be agreeing to join an association. [BERNAS] If a land buyer who buys a lot with an annotated lien that the lot owner becomes an automatic member of a homeowners association thereby voluntarily joins the association. [Bel-Air Village Association vs Diokno (1989)]

organized conspiracy for the overthrow of the Government by illegal means for the purpose of placing the country under the control of a foreign power; (b) that the accused joined the CPP; (c) that he did so willfully, knowingly and by overt acts. [People vs Ferrer (1972)]
98
3. Integrated Bar of the Philippines

Compulsory membership of a lawyer in the integrated bar of the Philippines does not violate the constitutional guarantee. [In Re: Edillon, 84 SCRA 554]
1. Labor Unionism
The right to form associations does not necessarily include the right to be given legal personality. However, if the law itself should make possession of legal personality a pre-condition for effective associational action, involved would be not just the right to have legal personality but also the right to be an association. [Philippine Association of Free Labor Unions vs Secretary of Labor (1969)] The right of association of managerial employees is denied because of Article 245 of the Labor Code which provides that managerial employees are not eligible to join, assist or form any labor organization. This is because Art III Sec 8 is subject to the condition that its exercise is for the purposes not contrary to law. [United Pepsi-Cola Supervisory Union (UPSU) vs Laguesma (1998)]
L. Eminent Domain
1. Concept 2. Expansive Concept of Public Use 3. Just Compensation 4. Abandonment of Intended Use and Right of Repurchase 5. Miscellaneous Application
1. Concept
It is the right of the government to take private property with just compensation. The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not, by implication, grant the power to the government of the state, but limit a power which would otherwise be without limit. (citations omitted) [Visayan Refining Co. vs. Camus, G.R. No. L-15870, December 3, 1919] Generally (1) Taking of Private Property (2) for Public Use, (3) with Just Compensation, and (4) Due Process. Specifically (LGUs, Sec. 19, Local Government Code) (1) Ordinance by a local legislature council is enacted authorizing local chief executive to exercise eminent domain, (2) For public use, purpose or welfare or for the benefit of the poor and of the landless, (3) Payment of just compensation, (4) Valid and definite offer has been previously made to owner of the property sought to be expropriated but such offer was not accepted [Municipality of Paraaque vs. VM Realty (1998)] Jurisdiction over a complaint for eminent domain is with the Regional Trial Court. While the value of the property to be expropriated is estimated in monetary terms for the court is duty bound to determine the amount of just compensation to be
2. Communist and Similar Organizations

This is a question of the constitutionality of the AntiSubversion Act which declares the Communist Party of the Philippines (CPP) and similar organizations illegal and outlawed. Although the Supreme Court upheld the validity of the statute, we cannot overemphasize the need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of freedom of expression and belief. The basic guidelines for prosecution under the Act, are the following elements for the crime to be established: (1) In case of subversive organizations other than the CPP, (a) that the purpose of the organization is to overthrow the present Government of the Philippines and to establish in this country a totalitarian regime under the domination of a foreign power; (b) that the accused joined such organization; and (c) that he did so knowingly, willfully and by overt acts; and (2) In the case of the CPP, (a) that the CPP continues to pursue the objectives which led Congress in 1957 to declare it to be an
paid for the property it is merely incidental to the expropriation suit [Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor, G.R. No. 138869, June 20, 2000; Bardillion v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003] The issuance of a writ of possession becomes ministerial upon the (1) filing of a complaint for expropriation sufficient in form and substance, and (2) upon deposit made by the government of the amount equivalent to 15% of the fair market value of the property sought to be expropriated per current tax declaration. [Biglang-Awa v. Judge Bacalla, G.R. Nos. 139927-139936, November 22, 2000; Bardillon v. Barangay Masili of Calamba, Laguna, Laguna, G.R. No. 146886, April 30, 2003] Scope and Limitations All Private Property capable of ownership may be expropriated, except money and choses in action. Even services may be subject to eminent domain. [Republic v. PLDT, 26 SCRA 620] The exercise of the right of eminent domain, whether directly by the State or by its authorized agents, is necessarily in derogation of private rights. Hence, strict construction will be made against the agency exercising the power. [Jesus is Lord Christian School Foundation v. Municipality of Pasig, G.R. No. 152230, August 9, 2005] Necessity The foundation of the right to exercise eminent domain is genuine necessity and that necessity must be of public character. Government may not capriciously or arbitrarily choose which private property should be expropriated. [Lagcao v. Judge Labra, G.R. No. 155746, October 13, 2004] When the power is exercised by the legislature, the question of necessity is generally a political question. [Municipality of Meycauyan, Bulacan v. Intermediate Appellate Court, 157 SCRA 640] The RTC has the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity for it. [Bardillon v. Barangay Masili of Calamba, Laguna, G.R. No. 146886, April 30, 2003] Private Property Private property already devoted to public use cannot be expropriated by a delegate of legislature acting under a general grant of authority. [City of Manila v. Chinese Community, 40 Phil 349] Taking The exercise of the power of eminent does not always result in the taking or appropriation of title to the expropriated property; it may only result in the imposition of a burden upon the owner of the condemned property, without loss of title or possession. [National Power Corporation v. Gutierrez, 193 SCRA 1] Requisites for a valid taking:

(1) The expropriator must enter a private property (2) Entry must be for more than a momentary period (3) Entry must be under warrant or color of legal authority (4) Property must be devoted to public use or otherwise informally appropriated or injuriously affected Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. [Republic v. Castelvi, 58 SCRA 336] Due Process The defendant must be given an opportunity to be heard. In the case of Belen v. Court of Appeals, the Supreme Court declared two Presidential Decrees unconstitutional for violating due process because they did not provide for any form of hearing or procedure by which the propriety of the expropriation or the reasonableness of the compensation. Taking via eminent domain vs. taking under social justice clause Agrarian Reform (Art. XIII, Sec. 4): This provision is an exercise of the police power of the State through eminent domain (Association of Small Landowners vs. Secretary of Agrarian Reform) as it is a means to regulate private property. The Comprehensive Agrarian Reform Law prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the constitution. But in carrying out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also taking under the power of eminent domain. The taking contemplated is not a mere limitation on the use of the land, but the surrender of the title to and physical possession of the excess and all beneficial rights accruing to the owner in favor of the beneficiary. [Sta. Rosa Realty & Development Corp. v. Court of Appeals, G.R. No. 112526, October 12, 2001]
99
2. Expansive Concept of Public Use

Definition The idea that "public use" means "use by the public" has been discarded. At present, whatever may be beneficially employed for the general welfare satisfies the requirement of public use. [Heirs of Juancho Ardona vs. Reyes, 123 SCRA 220] That only a few benefit from the expropriation does not diminish its public-use character, inasmuch as pubic use now includes the broader notion of indirect public benefit or advantage [Filstream International vs. CA, 284 SCRA 716] Public use is the general concept of meeting public need or public exigency. It is not confined to actual use by the public in its traditional sense. The
idea that public use is strictly limited to clear cases of use by the public has been abandoned. The term public use has now been held to be synonymous with public interest, public benefit, public welfare and public convenience. [Reyes v. National Housing Authority, G.R. No. 147511, January 20, 2003] The practical reality that greater benefit may be derived by Iglesia ni Cristo members than most others could well be true, but such peculiar advantage still remains merely incidental and secondary in nature. That only few would benefit from the expropriation of the property does not necessarily diminish the essence and character of public use [Manosca v. Court of Appeals, 252 SCRA 412]

value of the property at time of taking). The courts have the power and authority to determine just compensation, independent of what the decrees state, and thus may appoint commissioners to help in determining just compensation. [EPZA vs. Dulay, 148 SCRA 305] While commissioners are to be appointed by the court for the determination of just compensation, the latter is not bound by the commissioners findings. [Republic v. Santos, 141 SCRA 30; Republic (MECS) v. IAC, 185 SCRA 572] The court may substitute its own estimate of the value of the property only for valid reasons: (a) the commissioners have applied illegal principles to the evidence submitted to them; (b) they have disregarded a clear preponderance of evidence; or (c) where the amount allowed is either grossly inadequate or excessive. [National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007] Non-payment of just compensation in an expropriation proceeding does not entitle the private landowners to recover possession of the expropriated lots, but only to demand payment of the fair market value of the property. [Republic of the Philippines v. Court of Appeals, G.R. No. 146587, July 2, 2002; Reyes v. National Housing Authority, G.R. No. 147511, Janaury 29, 2003] The Republic was ordered to pay just compensation twice: first, in the expropriation and then, in the action for recovery of possession but it never did. 57 years have lapsed since the expropriation case was terminated but the Republic never paid the owners. The court construed the failure to pay as a deliberate refusal on the part of the Republic. When the government fails to pay just compensation within five years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. [Republic of the Philippines v. Vicente Lim, G.R. No. 161656, June 29, 2005]
10 0
3. Just Compensation
Definition It is the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. Full and fair equivalent of the property taken; it is the fair market value of the property. It is settled that the market value of the property is that the sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given and received therefor [Province of Tayabas vs. Perez (1938)]
Determination
BASIS: Fair Market Value Price fixed by a buyer desirous but not compelled to buy and a seller willing but not compelled to sell. Must include consequential damages (damages to other interest of the owner attributable to the expropriation) and deduct consequential benefits (increase of value of other interests attributable to new use of the former property). CHOICE OF PROPERTY TO BE EXPROPRIATED IS SUBJECT TO JUDICIAL REVIEW AS TO REASONABLENESS: Under Section 2, Article IV of the Philippine Constitution, the Republic of the Philippines can take private property upon payment of just compensation. However, private property to be taken cannot be chosen arbitrarily and capriciously, as the landowner is entitled to due process. The Department of Public Highways originally established the extension in Cuneta Avenue, and it is assumed that they made extensive studies regarding it. The change from Cuneta Avenue to Fernando Rein-Del Pan Streets cannot be justified on the ground of social impact, as the properties to be affected along Cuneta Avenue are mostly motels. [De Knecht vs. Bautista (1980)] The Presidential Decrees merely serve as a guide or a factor for the courts in determining amount of just compensation (which should be the fair and full
Effect of Delay
Just compensation means not only the correct amount to be paid to the owner of the land but also payment within a reasonable time from its taking [Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001] The filing of the case generally coincides with the taking. When the filing of the case coincides with the taking, and the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. Otherwise the owner would gain undeserved profit. But if the value increased independently of what the expropriator did, then the value is that of the later filing of the case. Also, between the time payment is due and the actual payment, legal interest (6%) accrues. [NAPOCOR v. CA (1996)]

use" is strictly limited to clear cases of "use by the public" has been discarded.
4. Abandonment of Intended Use and Right of Repurchase

If the expropriator (government) does not use the property for a public purpose, the property reverts to the owner in fee simple. [Heirs of Moreno vs. Mactan-Cebu International Airport (2005)]
5. Miscellaneous Application
What the due process clause requires is that the landowner must be given reasonable opportunity to be heard and to present his claim or defense. Although due process does not always necessarily demand that a proceeding be had before a court of law, it still mandates some form of proceeding wherein notice and reasonable opportunity to be heard are given to the owner to protect his property rights. Although there are exceptional situations when in the exercise of the power of eminent domain, the requirement does not need judicial process, when it is alleged that the landowners right to due process of law has been violated in the taking of his property, the courts can probe and check on the alleged violation. [Manotok vs. NHA (1987)] The performance of the administrative acts necessary to the exercise of the power of eminent domain in behalf of the state is lodged by tradition in the Sovereign or other Chief Executive. Where the Legislature has expressly conferred the authority to maintain expropriation proceedings upon the Chief Executive, the right of the latter to proceed therein is clear. Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive authorities may then decide whether the power will be invoked and to what extent. (citations omitted) [Visayan Refining Co. vs. Camus, G.R. No. L-15870, December 3, 1919] The particular mention in the Constitution of agrarian reform and the transfer of utilities and other private enterprises to public ownership merely underscores the magnitude of the problems sought to be remedied by these programs. They do not preclude nor limit the exercise of the power of eminent domain for such purposes like tourism and other development programs. There can be no doubt that expropriation for such traditions' purposes as the construction of roads, bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government office buildings, and flood control or irrigation systems is valid. However, the concept of public use is not limited to traditional purposes. Here as elsewhere the Idea that "public
Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using public streets and highways do not diminish in the least bit the public character of expropriations for roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies, and other private concerns. [Heirs of Ardona vs. Reyes, G.R. Nos. L-60549, 60553 to 60555, October 26, 1983) Art. III, Sec. 9. Private property shall not be taken for public use without just compensation. Art. XII, Sec. 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the government. Art. XIII, Sec. 4 The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary landsharing. Art. XIII, Sec. 9 The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Art XIV, Sec. 13. The National assembly may authorize, upon payment of just compensation, the
10 1
expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens.
M. Contracts Clause
1. Application of the Contracts Clause 2. Contemporary Application of the Contracts Clause 3. Limitations Art. III Section 10 (1987 Constitution): No law impairing the obligation of contracts shall be passed.
The charter of a bank, even if a contract, is no obstacle to liquidation done under police power. [Philippine Veterans Bank Employees Union v. Philippine Veterans Bank (1990)] Contracts also yield to the requirements of the freedom of religion. [Victoriano v. Elizalde Rope Workers (1974)] Timber licenses, permits, and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. They may be validly amended, modified, replaced, or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause. [Oposa v. Factoran (1993)] A rehabilitation plan approved by statute which merely suspends the actions for claims does not violate the contract clause. [GSIS v. Kapisanan (2006)] The SECs approval of the Rehabilitation Plan did not impair BPIs right to contract. The impairment clause is a limit on the exercise of legislative power and not of judicial or quasi-judicial power. The SECwas acting as a quasi-judicial body, and its order approving the plan cannot constitute an impairment of the right and the freedom to contract. Besides, the mere fact that the Rehabilitation Plan proposes a dacion en pago approach does not render it defective on the ground of impairment of the right to contract. The undertaking really partakes in a sense of the nature of sale. As such, the essential elements of a contract of sale must be present. Being a form of contract, the dacion en pago agreement cannot be perfected without the consent of the parties involved. [China Banking Corporation v. ADB Holdings (2008)] The amount of rental is an essential condition of any lease contract. The change of its rate in the Rehabilitation Plan is not justified as it impairs the stipulation between the parties. [Leca Realty v. Manuela Corporation (2007)] The non-impairment clause is a limit on legislative power, and not of judicial or quasi-judicial power. The approval of the Rehabilitation Plan by the Securities and Exchange Commission is an exercise of adjudicatory power by an administrative agency and thus the non-impairment clause does not apply. Neither does it impair the power to contract. [BPI v. SEC (2007)] Laws prohibiting premature campaigning are intended to level the playing field for candidates to public office, to equalize the situation between popular or rich candidates, on one hand, and lesserknown or poorer candidates, on the other, by preventing undue advantage in exposure and publicity on account of their resources and
10 2
1. Application
of the Contract Clause
Impairment is anything that diminishes the efficacy of the contract. There is substantial impairment when the law changes the terms of a legal contact between the parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms. [Clements v. Nolting, 42 Phil. 702]
2. Contemporary Application of the Contract Clause

As to Tax: GENERAL RULE: Power of taxation may not be used to violate the constitutional right of every person to be secured against any statute that impairs the obligation of contracts. EXCEPTION: But if the statute exempts a party from any one class of taxes, the imposition of a different tax is not an impairment of the obligation of contracts. A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those already in existence. Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of the police power. [Ortigas & Co. v. CA, G.R. No. 126102, December 4, 2000] New regulations on loans making redemption of property sold on foreclosure more strict are not allowed to apply retroactively. [Co v. Philippine National Bank (1982)] Limitations on the use of land imposed by a contract to yield to a reasonable exercise of police power are affirmed. Thus, zoning regulations are superior to contractual restrictions on the use of property. [Presley v. Bel-Air Village Association (1991)] A separation pa law can be given retroactive effect to apply to existing contracts. [Abella v. National Labor Regulations Commission (1987)]
popularity. Such laws might affect advertising contracts, the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. [Chavez v. COMELEC (2004)] The Court has imposed 2 essential requisites in order that RA 7641 (Retirement Law) may be given retroactive effect. First, the claimant for retirement benefits must still be in the employ of the employer at the time the statute took effect. Second, the claimant must have complied with the requirements for eligibility for such retirement benefits under the statute. [Universal Robina Sugar v. Cabaleda (2008)]

prejudice to whatever criminal liability may have been incurred. Rules of Court Rule 3 Sec. 21: Indigent party.A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. Such authority shall include an exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. Any adverse party may contest the grant of such authority at any time before judgment is rendered by the trial court. If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees shall be assessed and collected by the clerk of court. If the payment is not made within the time fixed by the court, execution shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose. Those protected include low paid employees, domestic servants and laborers. [Cabangis v. Almeda Lopez (1940)] The difference between paupers and indigent persons is that the latter are persons who have no property or sources of income sufficient for their support aside from their own labor though selfsupporting when able to work and in employment. [Acar v. Rosal (1067)] The new rule applies even to litigation pending at the time of its enactment. The retroactive application of the new rule has been found to be more in keeping with Section 11 of Article III. The previous rule, denied the right to litigate as paupers in appellate courts. [Martinez v. People (2000)] Note: The significance of having an explicit free access provisions in the Constitution may be gathered from the rocky road which free access seems to have traveled in American jurisprudence. The American constitution does not have an explicit free access provision and, hence, its free access doctrine has been developed as implicit from both the equal protection clause and the due process clause. [BERNAS]
10 3
3. Limitations
It is ingrained in jurisprudence that the constitutional prohibition does not prohibit every change in existing laws. To fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. Moreover, the law must effect a change in the rights of the parties with reference to each other, and not with respect to non-parties. [Philippine Rural Electric Cooperatives Association v. Secretary, DILG, G.R. No. 143076, June 10, 2003]
N. Legal Assistance and Free Access to Courts

Sec. 11 Art. III: Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Rules of Court Rule 141 Sec. 18: SEC. 18. Indigent litigants exempt from payment of legal fees.Indigent litigants (a) whose gross income and that of their immediate family do not exceed four thousand (P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00) pesos a month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt from the payment of legal fees. The legal fees shall be a lien on any judgment rendered in the case favorably to the indigent litigant, unless the court otherwise provides. To be entitled to the exemption herein provided, the litigant shall execute an affidavit that he and his immediate family do not earn a gross income abovementioned, nor they own any real property with the assessed value aforementioned, supported by an affidavit of a disinterested person attesting to the truth of the litigant's affidavit. Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to strike out the pleading of that party, without
O. Rights of Suspects
1. Availability 2. Requisites 3. Waiver
ART. III, SEC. 12, 1987 CONSTITUTION 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. 2. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. 3. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 4. The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. In Miranda vs. Arizona: The Federal Supreme Court made it clear that what is prohibited is the "incommunicado interrogation of individuals in a police dominated atmosphere, resulting in selfincriminating statements without full warnings of constitutional rights. MIRANDA RIGHTS: The person under custodial investigation must be warned that (1) He has a right to remain silent, (2) That any statement he makes may be used as evidence against him, and (3) That he has a right to the presence of an attorney, either retained or appointed. The long question during the appraisal of Galits constitutional rights followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. In this case, the accused is from Samar and there is no showing that he understands Tagalog. Furthermore, waiver of the right to counsel must be done in the presence of counsel, otherwise, the procured statements will be inadmissible. [People vs. Galit (1985)] Inasmuch as the prosecution in this case failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. Accused repudiated his alleged oral confession during trial. Since, the SC found that the procedure set out in the Miranda case was not followed, oral confession of accused to police station commander is inadmissible in evidence. (enshrined in Art. III, Sec. 12 of the 1987 Constitution) [People vs. Duero (1985)]

The SC reversed the lower courts imposition of death penalty because the accused was not even informed at the start of the investigation of his right to counsel, much less afforded the service of counsel notwithstanding his insistence. He was given the unacceptable excuse that there were no available lawyers. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. [People vs. Andag (1980)] NOTE: These rights were further reiterated under RA 7438, otherwise known as AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF RA 7438, Rights of Persons under Custodial Investigation; Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense: (1) shall inform the latter, in a language known to and understood by him, (2) of his rights to remain silent and (3) to have competent and independent counsel, preferably of his own choice, (4) who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. (5) If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.
10 4
1. Availability
When the person is already in custody Custodial investigation involves any questioning initiated by law enforcement During critical pre-trial stages in the criminal process
The rights under Sec. 12, Art. 3 are available when the investigation is no longer a general inquiry unto an unsolved crime but has begun to focus on a particular suspect, as when the suspect has been taken into police custody and the police carries out a process of interrogation that lends itself to
eliciting incriminating statements. [People vs. Mara (1994)] An out-of-court identification may be made in a show up (accused is brought face to face with the witness for identification), or police line-up (suspect is identified by witness from a group of persons gathered for that purpose). [People vs. Escordial (2002)] Neither the lineup itself nor anything required therein violated respondent's Fifth Amendment privilege against self-incrimination, since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment. HOWEVER, the Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. [U.S. vs. Wade, 388 U.S. 218 (1967)] During custodial investigations, these types of identification have been recognized as critical confrontations of the accused by the prosecution, necessitating presence of counsel for the accused. Otherwise, the identification will be inadmissible in evidence. Note: INVITATIONS - Sec. 2, RA 7438 provides that custodial investigation shall include the practice of issuing an invitation to a person who is under investigation in connection with an offense he is suspected to have committed. Ordinarily, an invitation to attend a hearing and answer some questions which the person invited may heed or refuse is not unconstitutional. Under certain circumstances, however, such an invitation can easily assume a different appearance. Here, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted and the designated interrogation site is a military camp, the same can easily be taken not as a strictly voluntary invitation but as an authoritative command which one can only defy at his peril, especially where the invitation carries the ominous seaming that "failure to appear . . . shall be considered as a waiverand this Committee will be constrained to proceed in accordance with law." [Babst vs. NBI (1984)]

communication which results in the subject/accused understanding what is conveyed.
a. Right to Remain Silent

The warning is needed simply to make the person under custodial investigation aware of the existence of the right; This warning is the threshold requirement for an intelligent decision as to its exercise. More importantly, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere. Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.
10 5
b. Right against Self-Incrimination Art. III, Sec. 12
under
The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege to remain silent, but also of the consequences of forgoing it.
c. Right to Counsel
RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel; otherwise the waiver shall be null and void and of no effect. The Miranda doctrine was modified to qualify the right to counsel to mean competent and independent counsel preferably of the suspect's own choice. An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made AFTER the warnings have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an
2. Requisites
People vs. Agustin (1995): This carries the correlative obligation on the part of the investigator to explain, and contemplates effective
attorney, but also that if he is indigent a lawyer will be appointed to represent him. The right to counsel does not mean that the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel is engaged by anyone acting on behalf of the person under investigation, or appointed by the court upon petition by said person or by someone on his behalf. [People v. Espiritu, G.R. No. 128287, February 2, 1999] POLICE LINE-UPS When petitioner was identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer. [Escobedo vs. Illinois of the United States Federal Supreme Court (1964)] However, given the clear constitutional intent in the 1987 Constitution, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel. [Gamboa vs. Cruz (1988)]
Rule on Waiver
SEC. 12, ART. III: (1) Must be in writing (2) Made in the presence of counsel RA 7438, Rights of Persons under Custodial Investigation; Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect.
10 6
Burden of Proving Voluntariness of Waiver

(People vs. Jara, 1986) Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused: (1) Willingly and voluntarily submitted his confession and (2) Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession.
d. Rights to Visitation and Conference

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with: (1) any member of his immediate family, or (2) any medical doctor; (3) priest or religious minister chosen by him; or (4) by his counsel; or (5) by any national non-governmental organization duly accredited by the Commission on Human Rights or (6) by any international non-governmental organization duly accredited by the Office of the President. (7) The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.
P. Rights of the Accused

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 to Confrontation 9. Compulsory Process 10. Trials in Absentia SEC. 14, ART. III, 1987 CONSTITUTION. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. ROC. RULE 115. RIGHTS OF ACCUSED
3. Waiver
What Cannot be Waived
(1) The right to remain silent and the right to counsel may be waived. (2) What CANNOT be waived is THE RIGHT TO BE GIVEN THE MIRANDA WARNINGS.
Section 1. Rights of accused at trial. In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law.

(2) Accused is proceeded against under the orderly process of law; (3) Accused is given notice and opportunity to be heard; (4) Judgment rendered is within the authority of a constitutional law. (Mejia vs. Pamaran, 1988)
10 7
2. Bail
Sec. 13, Art. III. All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Definition [Sec. 1, Rule 114, ROC] Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as may be required. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. [Dela Camara vs. Enage (1971)] The military men who participated in the failed coup d etat should be denied release on bail. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable, given that the officers and members of the military are not similarly situated with others. They are allowed a fiduciary use of firearms and can easily continue their insurgent activities against the government. National security considerations should impress upon the Court that release on bail of respondents constitutes a damaging precedent. [Comendador vs. De Villa (1991)] It has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. Senator
1. Criminal Due Process

Requisites [People vs. Vera (1937)] (1) Accused is heard by a court of competent jurisdiction;
Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. Since the evidence in this case is hearsay, the evidence of guilt is not strong, bail is allowed. [Enrile vs. Perez (En Banc Resolution, 2001)]

No charge need be filed formally before one can file for bail, so long as one is under arrest. [Heras Teehankee vs. Rovica (1945)] Arraignment of the accused is not essential to the approval of the bail bond. When bail is authorized, it should be granted before arraignment. Otherwise the accused may be precluded from filing a motion to quash. Also, the court will be assured of the presence of the accused at the arraignment precisely by grating bail and ordering his presence at any stage of the proceeding. [Lavides vs CA (2000)] Exceptions: (1) When charged with an offense punishable by reclusion perpetua. (2) Traditionally, the right to bail is not available to the military, as an exception to the bill of rights. [People v. Reyes, 212 SCRA 402]
10 8
Bail as a Matter of Right vs. Matter of Discretion

Matter of right Bail is a matter of right in all cases not punishable by reclusion perpetua. Matter of Discretion 1. In case the evidence of guilt is strong. In such a case, according to People vs. San Diego (1966), the court's discretion to grant bail must be exercised in the light of a summary of the evidence presented by the prosecution. Thus, the order granting or refusing bail must contain a summary of the evidence for the prosecution followed by the conclusion on whether or not the evidence of guilt is strong (Note: it is not the existence of guilt itself which is concluded but the strength of the probability that guilt exists). 2. In extradition proceedings. Extradition courts do not render judgments of conviction or acquittal so it does not matter WON the crimes the accused is being extradited for is punishable by reclusion perpetua [US Govt. vs. Judge Puruganan and Mark Jimenez (2002)]
Standards for Fixing Bail

RULE 114. Sec. 9. Amount of bail; guidelines. The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. The constitution prohibits excessive bail. Where the lower court fixed bail at P 1, 195, 200.00, it rendered the right to bail nugatory. "Discretion is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy. [Dela Camara v. Enage (1971)] STANDARDS FOR FIXING BAIL: Guidelines in the fixing of bail are: (1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is
When Available
General rule: From the very moment of arrest (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgment (which means after appeal).
under bond for appearance at trial in other cases." [Villaseor vs. Abano (1967)]

These rights cannot be waived except in writing and in the presence of counsel. It means the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause of the defense and acts accordingly. It is an efficient and truly decisive legal assistance, and not simply a perfunctory representation. [People v. Bermas, G.R. No. 120420, April 21, 1999]
Right to Bail and Right to Travel Abroad

The main issue in this case is WON a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel. The Court held that the constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health. The Court considered the order of the TC releasing petitioner on bail as a lawful order contemplated by the above-quoted constitutional provision. [Manotok vs CA (1986)]
10 9
5. Assistance of Counsel
RA 7438. Rights of Persons under Custodial Investigation. SEC. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel; Elements of the Right to Counsel (1) Courts duty to inform the accused of right to counsel before being arraigned; (2) It must ask him if he desires the services of counsel; (3) If he does, and is unable to get one, the Court must give him one; if the accused wishes to procure private counsel, the Court must give him time to obtain one. (4) Where no lawyer is available, the Court may appoint any person resident of the province and of good repute for probity and ability.
3. Presumption of Innocence
The requirement of proof beyond reasonable doubt is a necessary corollary of the constitutional right to be presumed innocent. [People vs. Dramavo (1971)] The accused cannot present evidence before the prosecution does so, even if the accused pleads guilty. It violates the presumption of innocence. [Alejandro vs. Pepito (1980)] The presumption of regularity (in official duties) cannot by itself prevail over the presumption of innocence of the accused. But where it is not the sole basis for conviction, the presumption of regularity of performance of official functions may prevail over the constitutional presumption of innocence. [People vs. Acuram (2000)] EQUIPOISE RULE: Where the evidence adduced by the parties is evenly balanced, the constitutional presumption of innocence should tilt the balance in favor of the accused. [Corpuz vs. People (1991)] In order that circumstantial evidence may warrant conviction, the following requisites must concur: (1) There is more than one circumstance (2) The facts from which the inferences are derived are proven (3) The combination of all the circumstances is such as to produce conviction beyond reasonable doubt. [People v. Bato, G.R. No. 113804, January 16, 1998]
6. Right to be Informed
Procedural due process requires that the accused must be informed why he is being prosecuted and what charge he must meet. [Vera vs. People, supra]
7. Right to Speedy, Impartial and Public Trial

ART. III. SEC. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. ART. III. SEC. 3. Civilian authority is, at all times, supreme over the military. xxx Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2), Article III, of the 1987 Constitution. IMPARTIAL TRIAL: A civilian cannot be tried by a military court so long as the civil courts are open and operating, even during Martial Law. [Olaguer vs. Military Commission (1987)]
4. Right to be Heard
SEC. 12, ART. III. 1987 CONSTITUTION. 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
Dismissal based on the denial of the right to speedy trial amounts to an acquittal. [Acevedo vs. Sarmiento (1970)] Note: RA 8493 provides: a 30-day arraignment within the filing of the information or from the date the accused appeared before the court; trial shall commence 30 days from the arraignment, as fixed by the court. The entire trial period shall not exceed 180 days, except as otherwise authorized by the SC Chief Justice. The right to a speedy trial is violated only when the proceeding is attended by vexatious, capricious and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. [dela Rosa v. Court of Appeals, 253 SCRA 499; Tai Lim v. Court of Appeals, G.R. No. 131483, October 26, 1999] The different interests of the defendant which the right to speedy trail are designed to protect are: (1) To prevent oppressive pre-trail incarceration, (2) To minimize anxiety and concern of the accused, (3) To limit the possibility that the defense will be impaired. But the right to speedy trail cannot be invoked where to sustain the same would result in a clear denial of due process to the prosecution. In essence, the right to a speedy trial does not preclude the peoples equally important right to public justice. [Uy v. Hon. Adriano, G.r. No. 159098, October 27, 2006] RA 8493 is a means of enforcing the right of the accused to a speedy trial. The spirit of the law is that the accused must go on record in the attitude of demanding a trial or resisting delay. If he does not do this, he must be held, in law, to have waived the privilege. [Uy v. Hon. Adriano, G.R. No. 159098, October 27, 2006]

Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition. [Caamic v. Galapon, 237 SCRA 390] Before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present: (1) The books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy), and (2) Such books must be reasonably described by the parties to be readily identified (test of definiteness). [Roco v. Contreras, G.R. No. 158275, June 28, 2005]
11 0
10. Trials In Absentia

WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused failed to appear for trial despite postponement and notice to his bondsmen. The Court then allowed prosecution to present evidence despite the fact that accused had not been arraigned. Petitioner was found guilty. The issue is WON the court has jurisdiction. The Court held that because accused was not arraigned, he was not informed of the nature and cause of accusation against him, Therefore, the Court has no jurisdiction. The indispensable requisite for trial in absentia is that it should come after arraignment. [Borja vs. Mendoza (1977)] After arraignment, during which accused pleaded not guilty, case was set for hearing but the accused escaped. He was tried in absentia. Lower court held the proceedings against him in abeyance to give him the opportunity to cross examine witnesses against him and present his evidence. The Court held that abeyance of proceedings was invalid. Such right to cross examine and present evidence on his behalf is waived by failure to appear during the trial of which he had notice. [Gimenez vs. Nazareno (1988)] When Presence of the Accused is a DUTY (1) Arraignment and Plea (2) During Trial, for identification (3) Promulgation of Sentence (Exception: Light offense -> can be via counsel) Petitioner challenges the jurisdiction of military commissions to try him (for murder, illegal possession of firearms and for violation of the AntiSubversion Act) arguing that he being a civilian, such trial during martial law deprives him of his right to due process. An issue has been raised as to WON petitioner could waive his right to be present during trial. On a 7-5 voting: SEVEN justices voted that petitioner may waive his right to be present at ALL stages of the proceedings while FIVE voted that this waiver is
8. Right of Confrontation
This is the basis of the right to cross-examination. Testimony of a witness who has not submitted himself to cross examination is not admissible in evidence. The affidavits of witnesses who are not presented during the trial, hence not subjected to cross examination, are inadmissible because they are hearsay. [People v. Quidate, G.R. No. 117401, October 1, 1998; Cariago v. Court of Appeals, G.R. No. 143561, June 6, 2001]
9. Compulsory Process
(1) Right to Secure Attendance of Witness (2) Right to Production of Other Evidence
qualified, he cannot waive when he is to be identified. Trial in Absentia: As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. Considering Art IV, Sec 19, 1973 Constitution (trial of a capital offense may proceed even in the absence of the accused) and the absence of any law specifically requiring his presence at all stages of his trial, there appears, no logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation of testimony, since this right was conferred upon him for his protection and benefit. [Aquino vs. Military Commission (1975)]

The Supreme Court may: 1) review, 2) in an appropriate proceeding; 3) filed by any citizen, 4) the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and 5) must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. The true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. [Villavicencio vs. Lukban (1919)] Petitioners were arrested without warrants and detained, upon the authority of Proclamation 889 (Which suspended the privilege of the Writ of Habeas Corpus) and subsequently filed a petition for writ of habeas corpus, assailing the validity of the said Proclamation and their detention. The Court upheld the violation of the Proclamation and dismissed the petitions. The Supreme Court held that the authority to suspend the privilege of the writ is circumscribed, confined and restricted, not
11 1
Q. Writ of Habeas Corpus

Habeas Corpus SEC. 15. ART. III. 1987 CONSTITUTION The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. SEC. 18. ART. VII. 1987 CONSTITUTION The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twentyfour hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. Thus, the Court has the authority to inquire into the existence of the factual bases for the proclamation in order to determine its constitutional sufficiency. The test for such judicial inquiry is whether or not the Executive acted arbitrarily in issuing the Proclamation. The test is not correctness, but arbitrariness. For the suspension of the privilege of the writ to be valid, (a) there must be "invasion, insurrection or rebellion" or, pursuant to paragraph (2), section 10 of Art. VII of the Constitution, "imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No. 889, as amended, that both conditions are present, and the Supreme Court agreed. The President did not act arbitrarily; the Court acknowledged the existence of a sizeable group of men (Communists and the NPA) who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. [Lansang vs. Garcia (1971)] It is not physical restraint alone which can be inquired into by means of the writ of habeas corpus. In this case, the petition is valid as petitioners temporary release from detention is accompanied with restrictions w/ the ff effects: 1) curtailed freedom of movement by the condition that he must get approval of respondents for any travel outside Metro Manila, 2) abridged liberty of abode because prior approval of respondent is required in case petitioner wants to change place of residence, 3) abridged freedom of speech due to prohibition from taking any interviews inimical to national security, and 4) petitioner is required to report regularly to respondents or their reps. [Moncupa vs. Enrile (1986)] It being undeniable that if the Hernandez ruling were to be given retroactive effect, petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? YES. Cruz vs. Director of Prisons (1910): "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess. The rule is that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release. [Gumabon vs. Director of Prisons (1971)]
Sombong claims that she is the mother of the child Christina, who is under the custody of Neri, and filed a petition for the issuance of the writ of habeas corpus. The Supreme Court denied the petition. In order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. However, habeas corpus may still be resorted to even if the restraint is voluntary in cases where the rightful custody of any person is withheld from the person entitled thereto. The said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the child is in the custody of a third person of her own free will. Sombong does not have the right of custody over the child, because the evidence adduced does not warrant the conclusion that Christina is the same person as her child Arabella. [Sombong vs. CA (1990)] Larkins was arrested after a certain Alinea filed a complaint-affidavit for rape against him before the NBI. There was no warrant. A complaint for rape was subsequently filed before the RTC. His common-law wife filed a petition for habeas corpus. The Supreme Court held that even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. The court must thus look into the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events are: (1) The issuance of a judicial process preventing the discharge of the detained person. (2) Another is the filing of a complaint or information for the offense for which the accused is detained. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted an offense in the Philippines." It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. [Velasco vs. CA (1995)]
11 2
R. Writ of Amparo
Definition The petition for a writ of amparo is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. [Sec. 1, The Rule on the Writ of Amparo] Basis The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, xxx. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. xxx [Sec. 5, Art. VIII, 1987 Consti] justices Court of Appeals or any of its justices

any justice thereof, OR (2) Any RTC of the place where the threat, act or omission was committed or any of its elements occurred (1) Before the issuing court or any justice thereof (2) Before the Sandiganbayan or CA or any of their justices, OR (3) Any RTC of the place where the threat, act or omission was committed or any of its elements occurred
11 3
SC or any of its justices
Petition for Writ

Form The petition shall be signed and verified. [Sec. 5] Contents The petition shall allege the following: (a) The personal circumstances of the petitioner (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission (f) The relief prayed for. The petition may include a general prayer for other just and equitable reliefs. [Sec. 5] Where to file The petition may be filed on any day and at any time [Sec. 3] Filing RTC of the place where the threat, act or omission was committed or any of its elements occurred Sandiganbayan or any of its Enforceability Returnable Before the issuing court or judge
Docket fees The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. [Sec. 4] Return Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: (a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission (b) The steps or actions taken by the respondent to determine the date or whereabouts of the aggrieved party and the person/s responsible for the threat, act or omission (c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party (d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (i) To verify the identity of the aggrieved party (ii) To recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person/s responsible
Anywhere in the Philippines (1) Before the issuing court or
(iii) To identify witnesses and obtain statements from them concerning the death or disappearance (iv) To determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance (v) To identify and apprehend the person/s involved in the death or disappearance (vi) To bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. [Sec. 9] Hearing The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. [Sec. 13] Burden of proof The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. [Sec. 17] The Manalo brothers were abducted, detained, and tortured repeatedly by the military. After their escape, they filed a petition for the privilege of the Writ of Amparo. The Supreme Court granted the petition and held that there was a continuing violation of the Manalos right to security. Considering that they only escaped from captivity and have implicated military officers, there is still a threat to their lives, liberty, and security. The threat vitiates their free will and they are forced to limit their movements and activities. The government also failed to provide them protection because the military themselves perpetrated the abduction, detention, and torture. The government also failed to provide an effective investigation.
As regards the relief granted, the Court held that the production order under the Amparo rule is different from a search warrant and may be likened to the production of documents or things under Rule27.1, ROC. They also said that the disclosure of the present places of assignment of the implicated military officers would not jeopardize the exercise of the military functions of the officers. Such disclosure is relevant in ensuring the safety of the Manalo brothers. [Secretary of National Defense vs. Manalo (2008)]
11 4
S. Self-Incrimination Clause
1. Scope and Coverage 2. Application 3. Immunity Statutes
1. Scope and Coverage

Sec. 17, Art. 3. No person shall be compelled to be a witness against himself. Only applies to compulsory testimonial, and doesnt apply to material objects [Villaflor vs. Summers (1920)] It refers therefore to the use of the mental process and the communicative faculties, and not to a merely physical activity. If the act is physical or mechanical, the accused can be compelled to allow or perform the act, and the result can be used in evidence against him. Examples (1) Handwriting in connection with a prosecution for falsification is NOT allowed, for this involves the use of the mental processes [Beltran vs. Samson, 53 Phil 570; Bermudez vs. Castillo (1937)] (2) Re-enactment of the crime by the accused is NOT allowed, for this also involves the mental process. (3) The accused can be required to allow a sample of a substance taken from his body [U.S. vs. Tan The (1912)], or be ordered to expel the morphine from his mouth [U.S. vs. Ong Sio Hong (1917)] (4) Accused may be made to take off her garments and shoes and be photographed [People vs. Otadura, 96 Phil 244, 1950]; compelled to show her body for physical investigation to see if she is pregnant by an adulterous relation [Villaflor vs. Summers (1920)] (5) Order to give a footprint sample to see if it matches the ones found in the scene of the crime is allowed [People vs. Salas and People vs. Sara]
Foreign Laws
The privilege which exists as to private papers, cannot be maintained in relation to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. [Shapiro v. US (1948)] In recent cases, the US Supreme Court has struck down certain registration requirements that presented real and appreciable risk of selfincrimination. These involved statues directed at inherently suspect groups in areas permeated by criminal statutes, a circumstance which laid the subjects open to real risk of self-incrimination. [BERNAS] The great majority of persons who file income tax returns do not incriminate themselves by disclosing their occupation. The requirement that such returns be completed and filed simply does not involve the compulsion to incriminate considered in Mackey. [US v. Sullivan (1927)]

(8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority;
11 5
Use and Fruit of Immunity

Use immunity prohibits use of a witness compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, transactional immunity grants immunity to witness from prosecution for an offense to which his compelled testimony relates. [Galman vs. Pamaran (1985)]
T. Involuntary Servitude and Political Prisoners

SEC. 18, ART. III. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
2. Application
GENERAL RULE: The privilege is available in any proceedings, even outside the court, for they may eventually lead to a criminal prosecution. It extends to administrative proceedings which possess a criminal or penal aspect. A doctor who was being investigated by a medical board for alleged malpractice who would lose his license if found guilty, could not be compelled to take the witness stand without his consent. [Pascual vs. Board of Medical Examiners (1969)] It extends to a fact-finding investigation by an ad hoc body. A person can be compelled to testify provided he is given immunity co-extensive with the privilege against self-incrimination [Galman vs. Pamaran (1985)] Effect of Denial of Privilege EXCLUSIONARY RULE under SEC. 17, ART. III in relation to SEC. 12: When the privilege against selfincrimination is violated outside of court (e.g. police), then the testimony, as already noted, is not admissible. OUSTED OF JURISDICTION: When the privilege is violated by the Court itself, that is, by the judge, the court is ousted of its jurisdiction, all its proceedings, and even judgment are null and void. [Chavez vs. CA (1968)]
Involuntary Servitude
Slavery and involuntary servitude, together with their corollary peonage, all denote a condition of enforced, compulsory service of one to another. [Hodges v. US (1906) in Rubi v. Provincial Board of Mindoro (1919)] The term of broadest scope is possibly involuntary servitude. It has ben applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. [Bailey v. Alabama (1910) in Rubi v. Provincial Board of Mindoro (1919)] A private person who contracts obligations of this sort toward the Army cannot, by law that we know of, either civil or military be compelled to fulfill them by imprisonment and deportation from his place of residence, we deem it wholly improper to sustain such means of compulsion which are not justified either by law or by the contract. [In Re Brooks (1901)] While the constitutional prohibition operated to nullify agreements violative of it, suppletory legislation was required to give the prohibition penal effect. [US v. Cabanag (1907)] Domestic services are always to be remunerated, and no agreement may subsist in law in which it is stipulated that any domestic service shall be absolutely gratuitous, unless it be admitted that slavery may be established in this country through a covenant entered into between interested parties. [de los Reyes v. Alojado (1910)]
3. Immunity Statutes
Transactional Immunity
ART. XIII. SEC. 18. 1987 CONSTITUTION. The Commission on Human Rights shall have the following powers and functions: xxx
A former court stenographer may be compelled under pain of contempt to transcribe stenographic notes he had failed to attend to while in service. x x x such compulsion is not the condition of enforced compulsory service referred to by the Constitution. Fernando, J. concurring opinion: The matter could become tricky should a stenographer stubbornly refuse to obey and the court insist on keeping him in jail. The detention could then become punitive and give rise to the issue of involuntary servitude. [Aclaracion v. Gatmaitan (1975)]
SEC. 19. ART. III. 1987 CONSTITUTION 1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. 2. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. In this case the Court took into account, in lowering the penalty to reclusion perpetua of the accused most of whom were already death row convicts, the deplorable sub-human conditions of the National Penitentiary where the crime was committed. [People vs. dela Cruz (1953)] RA 9346 (June 24, 2006): An Act Prohibiting the Imposition of Death Penalty in the Philippines: Sec. 1. The imposition of the penalty of death is hereby prohibited. Accordingly, R.A. No. 8177, otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. R.A. No. 7659, otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly. The import of the grant of power to Congress to restore the death penalty requires: (1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly motivated by compelling reasons involving heinous crimes. For a death penalty bill to be valid, a positive manifestation in the form of higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty [is not required in Sec. 19 (1)]. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. [People v. Echegaray (1997)] The Golez resolution, signed by 113 congressman as of January 11, 1999 (House Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of the House of Representatives to reject any move to review R.A. No. 7659, which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary
11 6
Political Prisoners
Although they may also be considered as military prisoners as indicated in the second "Whereas", are in fact civil prisoners, accused of offenses of political character, not amenable to military justice but to the ordinary administration of justice in civil courts. If the petitioners are political prisoners subject to the civil jurisdiction of ordinary courts of justice if they are to be prosecuted at all, the army has no jurisdiction, nor power, nor authority, from all legal standpoints, to continue holding them in restraint. They are entitled, as a matter of fundamental right, to be immediately released, any allegation as to whether the war was ended or not. [Raquiza v. Bradford (1945)] Sec. 19 of CA No. 682 authorizes that the political prisoners in question "may be released on bail, even prior to the presentation of the corresponding information," and this may be done "existing provisions of law to the contrary notwithstanding." We must assume that the discretion granted must be construed in the sense that the same may be exercised in cases wherein it was not heretofore granted by law. And it is reasonable to assume that the discretion granted is to the effect that the People's Court may exercise jurisdiction to order the release on bail of political prisoners "even prior to the presentation of the corresponding information." [Duran v. Abad Santos (1945)] Petitioner has also contended that his arrest was partly motivated by political reasons, and has endeavored to show that, due to his oratorical ability, he became very popular and contributed "to the bad licking" of political opponents in Davao. Petitioner also called our attention to the fact that of the thousands of other prisoners who were released by the Japanese by pardon or otherwise, no one except him has been re-arrested. Thus, Camasura was released from confinement. [Camasura v. Provost Marshal (1947)]
U. Excessive Fines and Cruel and Inhuman Punishments
and the Executive Department of the position of the House of Representative on this matter and urging the President to exhaust all means under the law to immediately implement the death penalty law.") House Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify the Second Protocol in review of the prevalence of heinous crimes in the country. [Echegaray v. Secretary (1998)] To be prohibited by this provision the punishment must not only be unusual but it must also be cruel. There is no reason why unusual punishments which were not cruel should have been prohibited. If that had been done it would have been impossible to change the punishments that existed when the Constitution was adopted. A law which changes a penalty so as to make it less severe would be unconstitutional if the new penalty were an unusual one. Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. The constitutional limit must be reckoned on the basis of the nature and mode of punishment measured in terms of physical pain. [Legarda v. Valdez (1902)] Cruel and unusual as found in the Constitution, do not have the same meaning as clearly excessive found in Article 5 of the Penal Code. It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. x x x the punishment must be flagrantly and plainly oppressive, wholly disproportionate to the nature of the offense as to shock the moral sense of the community [for it to be banned]. [People v. Estoista (1953)] Sec 19 (2) as worded, already embodies constitutional authorization for the Commission on Human Rights to take action in accordance with Art XIII Sec 18. There is a command addressed to Congressed to pass whatever civil or penal legislation might be required for the subject. [BERNAS]

not involuntary servitude or imprisonment for debt. [Ramirez v. de Orozco (1916)] The obligation incurred by the debtor, as shown by the receipt, was yp [ay an ordinary contractual obligation. Since the guardianship proceeding was civil in nature, the Court did not allow enforcement of the civil obligation by an order of imprisonment. [In re Tamboco (1917)] No person may be imprisoned for debt in virtue of a civil proceeding. [Makapagal v. Santamaria (1930)] A person may be imprisoned as a penalty for a crime arising from a contractual debt and imposed in a proper criminal proceeding. Thus, the conversion of a criminal fine into a prison term does not violate the provision because in such a case, imprisonment is imposed for a monetary obligation arising from a crime. [Ajeno v, Judge Insero (1976)]
11 7
W. Double Jeopardy
1. Requisites 2. Motions for Reconsideration and Appeals 3. Dismissal with Consent of Accused SEC. 21. ART. III. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Termination of Jeopardy (1) By acquittal (2) By final conviction (3) By dismissal without express consent of accused (4) By dismissal on the merits
1. Requisites
(1) Court of competent jurisdiction; (2) A Complaint/Information sufficient in form and substance to sustain a conviction; (3) Arraignment and plea by the accused; (4) Conviction, acquittal, or dismissal of the case without the express consent, of the accused. [Rule 117, Sec. 7; People vs. Obsania (1968)] When Subsequent Prosecution is Barred (1) Same offense (2) Attempt of the same offense (3) Frustration of the same offense (4) Offense necessarily included in the 1st offense (All the elements of the 2nd constitute some of the elements of the 1st offense) (5) Offense that necessarily includes the 1st offense (All the elements of the 1st constitute some of the elements of the 2nd offense) Exceptions (1) The graver offense developed due to "supervening facts" arising from the same
V. Non-Imprisonment for Debts

ART. III. SEC. 20. 1987 CONSTITUTION No person shall be imprisoned for debt or nonpayment of a poll tax. Santos refused to pay 16 pesos for Ramirezs cedula as payment for what Santos owed Ramirez. Thus, Ramirez was convicted and imprisoned for estafa. Upon demand for release, the Court held that the imprisonment was correct since it was for estafa and
act or omission constituting the former charged. (2) The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information. (3) The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party. When Defense of Double Jeopardy is Available (1) Dismissal based on insufficiency of evidence; (2) Dismissal because of denial of right to speedy trial; (3) Accused is discharged to be a state witness.

When the case is dismissed other than on the merits, upon motion of the accused personally, or through counsel, such dismissal is regarded as with express consent of the accused, who is therefore deemed to have waived the right to plea double jeopardy.
11 8
X. Ex Post Facto and Bills of Attainder

SEC. 22. ART. III. 1987 CONSTITUTION No ex post facto law or bill of attainder shall be enacted. RA 1700 which declared the Communist Party of the Philippines a clear and present danger to Philippine security, and thus prohibited membership in such organization, was contended to be a bill of attainder. Although the law mentions the CPP in particular, its purpose is not to define a crime but only to lay a basis or to justify the legislative determination that membership in such organization is a crime because of the clear and present danger to national security. [People vs. Ferrer (1972)]
2. Motions for Reconsideration and Appeals

The accused cannot be prosecuted a second time for the same offense and the prosecution cannot appeal a judgment of acquittal. [Kepner v. US (1904)] Provided, that the judge considered the evidence, even if the appreciation of the evidence leading to the acquittal is erroneous, an appeal or motion for reconsideration by the prosecution will not be allowed. [People v. Judge Velasco (2000)] No error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed. [People v. Ang Cho (1945) citing State v. Rook] A mere verbal dismissal is not final until written and signed by the judge. [Rivera, Jr. v. People (1990)] When an accused appeals his conviction, he waives his right to the plea of double jeopardy. If the accused had been prosecuted for a higher offense but was convicted for a lower offense, he has technically been acquitted of the higher offense. His appeal would give the Court the right to impose a penalty higher than that of the original conviction imposed on him. [Trono v. US (1905)] Double jeopardy provides three related protections: (1) Against a second prosecution for the same offense after conviction; (2) Against a second prosecution for the same offense after conviction; and (3) Against multiple punishments for the same offense. [People v. Dela Torre, G.R. No. 1379-58, March 11, 2002]
Ex Post Facto LawsDefined

(1) Makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action. (2) Aggravates a crime or makes it greater than when it was committed. (3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed. (4) Alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. (Mekin v. Wolfe, 1903) (5) Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful. (6) Deprives a person accused of a crime of some lawful protection of a former conviction or acquittal, or a proclamation of amnesty. [In re Kay Villegas Kami (1970)] The prohibition applies only to criminal legislation which affects the substantial rights of the accused. [Phil. National Bank v. Ruperto (1960)] It applies to criminal procedural law prejudicial to the accused. [US v. Gomez (1908)] It is improper to apply the prohibition to an executive proclamation suspending the privilege of
3. Dismissal with Consent of Accused

RULE 117. Sec. 8, par 1. Provisional dismissal.A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.
the writ of habeas corpus. [Montenegro v. Castaeda (1952)]

and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. [Cummings v. Missouri (1867)] It is a general safeguard against legislative exercise of the judicial function, or trial by legislature. [US v. Brown (1965)]
Bills of AttainderDefined
A bill of attainder is a legislative act which inflicts punishment without judicial trial. If the punishment be less than death, the act is termed a bill of pains
11 9
Annex A
QUERY What is the writ of habeas data? HABEAS DATA Remedy Available to any person Whose right to life, liberty, and security has been violated or is threatened with violation By an unlawful act or omission of a public official or employee, or of a private individual or entity Engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights. (Constitution, Art. VIII, Sec. 5[5]). The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general circulation. The aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. Supreme Court; Court of Appeals; Sandiganbayan: when the action concerns public data files of government offices. No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition. Yes. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets , or when the data or information cannot be divulged to the public due to its nature or privileged character
What rule governs petitions for and the issuance of a writ of habeas data? What is the Supreme Courts basis in issuing the Rule? When does the Rule take effect? Who may file a petition for the issuance of a writ of habeas data?
Where can the petition be filed?
How much is the docket or filing fees for the petition? Instead of having the hearing in open court, can it be done in chambers?
2012
POLITICAL
LAW

LAW ON PUBLIC OFFICERS

the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. Public office is a responsibility, not a right. [Morfe v. Mutuc (1968)]

POLITICAL LAW A. General Principles B. Modes of Acquiring Title to Public Office C. Modes and Kinds of Appointment D. Eligibility and Qualification Requirements E. Disabilities and Inhibitions of Public Officers F. Powers and Duties of Public Officers G. Rights of Public Officers H. Liabilities of Public Officers I. Immunity of Public Officers J. De Facto Officers K. Termination of Official Relation L. The Civil Service M. Accountability of Public Officers N. Term Limits
12 1
4. Elements
i. Created by law or by authority of law Public office must be created by: o Constitution o National Legislation o Municipal or other bodys legislation, via authority conferred by the Legislature The first element defines the mode of creation of a public office while the other elements illustrate its characteristics.
A. General Principles
I. Concept and Application II. Public Officer III. Classification of Public Officers and Public Officers
ii. Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public There are certain GOCCs which, though created by law, are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature), and thus may not be considered as a Public Office. iii. Powers conferred and duties imposed must be defined, directly or impliedly iv. Duties must be performed independently and without the control of a superior power other than the law, UNLESS for duties of an inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body v. Defined as unhindered performance. Must have permanence and continuity Note: The elements of permanence and continuity are dispensable. On the dispensability of the element of permanence: an example is the public office of the Board of Canvassers, yet its duties are only for a limited period of time. On the dispensability of the element of continuance: Mechem in one case states that the the most important characteristic in characterizing a position as a public office is the DELEGATION to the individual of some of the sovereign functions of government. o Here, the court held that Laurel, as chair of the National Centennial Commission (NCC), is a public officer. The public office of NCC was delegated and is performing executive functions: it enforces the conservation and promotion of the nations historical and cultural heritage. o Such delegated function is a policy embodied in the Constitution. It is inconsequential
I. Concept and Application

1. Definition
The term "public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. [Fernandez v. Sto. Tomas (1995)] Breakdown of the definition: (nature) right, authority and duty (origin) created and conferred by law (duration) by which for a given period either: 1) fixed by law or 2) enduring at the pleasure of the appointing power an individual is invested with some portion of the sovereign functions of the government (purpose) to be exercised by him for the benefit of the public.
2. Purpose
to effect the end for the governments institution : common good; NOT profit, honor, or private interest of any person, family or class of persons [63 Am Jur 2d 667]
3. Nature
Philippine Constitution, Art. XI Sec. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to

that Laurel was not compensated during his tenure. A salary is a usual (but not necessary) criterion for determining the nature of a position. Also, the element of continuance is not indispensable. [Laurel v. Desierto (2002)] as in the case of Ad Hoc Bodies or commissions Where duties are defined The law

Contract
7. No vested right to public office.

GENERAL RULE: A public office, being a mere privilege given by the State, does not vest any right in the holder of the office. This rule applies when the law is clear. EXCEPTION: When the law is vague, the persons holding of the office is protected and he should not be easily deprived of his office. A public office is neither property nor a public contract. Yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear. [Segovia v. Noel (1925)]
12 2
5. Public Office v. Public Employment

Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. Public employment as a position lacks either one or more of the foregoing elements of a public office. (Bernard v. Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9])1 o created by contract rather than by force of law the most important characteristic which distinguishes an office from an employment is that: o the creation and conferring of an office involves a delegation to the individual of ome of the sovereign functions of government, to be exercised by him for the benefit of the public, and o that the same portion of the sovereignty of the country, either legislative, executive or judicial, attached, for the time being, to be exercised for the public benefit.
8. Public Office is not Property.

A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution. It is a public trust/agency. Due process is violated only if an office is considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office. [Cornejo v. Gabriel (1920)] It is personal. Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. [Abeja v. Taada (1994)] Exceptions: In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office In an action for recovery of compensation accruing by virtue of the public office
Unless the powers so conferred are of this nature, the individual is not a public officer. [Laurel v. Desierto (2002)]
6. Public Office v. Public Contract

How Created Object Public Office Incident of sovereignty. Sovereignty is omnipresent. To carry out the sovereign as well as governmental functions affecting even persons not bound by the contract. A public office embraces the idea of tenure, duration, continuity, and the duties connected therewith are generally continuing and permanent. Duties that are generally continuing and permanent. Public Contract Originates from will of contracting parties. Obligations imposed only upon the persons who entered into the contract. Limited duration and specific in its object. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. Duties are very specific to the contract.
Subject Matter
9. Creation of Public Office

Modes of Creation of Public Office by the Constitution by statute / law by a tribunal or body to which the power to create the office has been delegated How Public Office is Created GENERAL RULE: The creation of a public office is PRIMARILY a Legislative Function. EXCEPTIONS: o where the offices are created by the Constitution;
Scope
ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE

o where the Legislature validly delegates such power. Legislature should Validly Delegate the Power to Create a Public Office Or else, the office is inexistent. The Presidents authority to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. [UST v. Board of Tax Appeals (1953)] Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts." [Art. VIII sec. 2, 1987 Constitution] But note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. [Art. VI, sec. 30, 1987 Constitution]

Except when the public official is constrained to accept because the non-acceptance of the new appointment would affect public interest. (no abandonment) [Zandueta v. De La Costa (1938)]
12 3
12. Estoppel in Denying Existence of Office

A person is estopped from denying that he has occupied a public office when he has acted as a public officer; more so when he has received public monies by virtue of such office. [Mendenilla v. Onandia (1962)]
II. Public Officer

1.
Definition
(What he is) He performs governmental public functions / duties which involve the exercise of discretion ( not clerical or manual) (How he became Public Officer) by virtue of direct provision of law, popular election, or appointment by competent authority. (Who ARE Public Officers)
10. Methods of Organizing Public Offices

Method Singlehead Board System Composition one head assisted by subordinates collegial body for formulating polices and implementing programs Efficiency Swifter decision and action but may sometimes be hastily made Mature studies and deliberations but may be slow in responding to issues and problems
Administrative Code, Sec. 2. (14) The term officer includes any government employee, agent, or body authorized to exercise governmental power in performing particular acts or functions Revised Penal Code Art 203. Who are public officersfor the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official of any rank or class, shall be deemed to be a public officer Persons in authority and their agents (Art. 152, RPC) A PERSON IN AUTHORITY is any person, either an individual or a member of a governmental body, who is directly vested with jurisdiction. o The barrio captains and barangay chairpersons are included. o For RPC Articles 148 [Direct Assaults] and 151 [Resistance and Disobedience], teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities are included. An AGENT of a person in authority is charged with the maintenance of public order and the protection and security of life and property.
11. Modification Office
and
Abolition
of
Public
GENERAL RULE The power to create an office includes the power to modify or abolish it (i.e. Legislature generally has this power) EXCEPTIONS Where the Constitution prohibits such modification / abolition; Where the Constitution gives the people the power to modify or abolish the office [i.e. Recall] Abolishing an office also abolishes unexpired term. The legislatures abolition of an office (i.e. court) also abolishes the unexpired term. The legislative power to create a court carries with it the power to abolish it. [Ocampo v. Sec. of Justice (1955)] Is Abandonment equivalent to Abolition? When a public official voluntarily accepts an appointment to an office newly created by law -- which new office is incompatible with the former -- he will be considered to have abandoned his former office.

o They become such either by direct provision of law, by election or by a competent authoritys appointment. o Examples are barrio captain, barrio councilman, barrio policeman, barangay leader, and any person who comes to the aid of persons in authority. Temporary performer of public functions A person performing public functions even temporarily is a public official. Here, a laborer temporarily in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203. According to the Court, the law is comprehensive: who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class [Maniego v. People (1951)] Money order-sorter and filer. A person sorting and filing money orders in the Auditor's Office of the Bureau of Posts is obviously doing a public function or duty. Such person here was convicted for infidelity in the custody of documents. [People v. Paloma (1997)] Who are NOT Public Officers Special policemen salaried by a private entity and patrolling only the premises of such private entity [Manila Terminal Co. v. CIR (1952)] Concession forest guards [Martha Lumber Mill v. Lagradante (1956)] Company cashier of a private corporation owned by the government [Tanchoco v. GSIS (1962)]

officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a DELEGATION of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. [Villegas v. Subido (1971)]
12 4
III. Classification of Public Offices and Public Officers

Creation Public Body Served Department of government to which their functions pertain Nature of functions Exercise of Judgment or Discretion Legality of Title to office Compensation Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary
B. Modes of Acquiring Title to Public Office

Modes of Commencing Official Relation
1. 2. 3. Election Appointment Others: a. Succession by operation of law; b. Direct provision of law, e.g. ex-officio officers
2. A Person Cannot be Compelled to Accept a Public Office.

EXCEPTIONS When citizens are required, under conditions provided by law, to render personal military or civil service (see Sec. 4, Art. II, 1987 Const.); When a person who, having been elected by popular election to a public office, refuses without legal motive to be sworn in or to discharge the duties of said office. This is a felony. Art 234, RPC: Refusal to discharge elective office- the penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.
1. Election
Selection or designation by popular vote
2. Appointment
(a) Definition Designation Definition Imposition of additional duties upon existing office Extent of Powers Security of tenure? Is prior/1st office abandoned when Limited No. a 2nd designated position is assumed? NO Appointment Appointing authority selects an individual who will occupy a certain public office Comprehensive Yes. a 2nd appointive position is assumed? Usually YES
3. Public Officers Power is Delegated (not Presumed)

A public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its
Political. Appointment is generally a political question so long as the appointee fulfills the

minimum qualification requirements prescribed by law. Vacancy for Validity. For the appointment to be valid, the position must be vacant [Castin v. Quimbo (1983)] (b) Nature of Power to Appoint The power to appoint is intrinsically an executive act involving the exercise of discretion. [Concepcion v. Paredes (1921)] Must be unhindered and unlimited by Congress. Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, EXCEPT those: o requiring the concurrence of the Commission on Appointments; and o resulting from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. [Manalang v. Quitoriano (1954)] The Presidents power to appoint under the Constitution should necessarily have a reasonable measure of freedom, latitude, or discretion in choosing appointees. [Cuyegkeng v. Cruz (1960)] Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature of appointment itself. [Flores v. Drilon (1993)]

(No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY; o an acting appointment is a temporary appointment and revocable in character. [Marohombsar v. Alonto (1991)] o A temporary appointee is like a designated officer they: occupy a position in an acting capacity and do not enjoy security of tenure. [Sevilla v. CA (1992)] o Even a Career Service Officer unqualified for the position is deemed temporarily-appointed. Thus he does not enjoy security of tenure he is terminable at will. o A public officer who later accepts a temporary appointment terminates his relationship with his former office. [Romualdez III v. CSC (1991)] o EXCEPT Fixed-Period Temporary Appointments: may be revoked ONLY at the periods expiration. Revocation before expiration must be for a valid cause. (Duration) until a permanent appointment is issued.
12 5
II. Steps in Appointment Process

For Appointments requiring confirmation Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts. Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.
C. Modes and Kinds of Appointment

I. Classification of Appointments II. Steps in Appointment Process III. Presidential Appointees IV. Discretion of Appointing Official V. Effectivity of Appointment VI. Effects of a Complete, Final and Irrevocable Appointment
For Appointments Not Requiring Confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts. Note: If a person is appointed to the career service of the Civil Service, the Civil Service Commission must bestow attestation.
I. Classification of Appointments
1) Permanent: The permanent appointee: o must be qualified o must be eligible o is constitutionally guaranteed security of tenure (Duration) until lawful termination. Note: Conditional appointments are not permanent. Temporary: an acting appointment; the temporary appointee qualified or eligible;
III. Presidential Appointees

Who can be nominated and appointed only WITH the Commission on Appointments consent? (Art. VII, Sec. 16, 1987 Const.) Heads of the executive departments; Ambassadors; Other public ministers and consuls; Officers of the armed forces from the rank of colonel or naval captain;
2)
NEED
NOT
be

Other officers whose appointments are vested in him by the Constitution, including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).

the Constitutional prohibition on temporary or acting appointments of COMELEC Commissioners. o By-passed Appointee may be Reappointed. Commission on Appointments failure to confirm an ad interim appointment is NOT disapproval. An ad interim appointee disapproved by the COA cannot be reappointed. But a by-passed appointee, or one whose appointment was not acted upon the merits by the COA, may be appointed again by the President.
12 6
Who can the President appoint WITHOUT CAs approval? All other officers of the government whose appointments are not otherwise provided for by law; Those whom he may be authorized by law to appoint; Members of the Supreme Court; Judges of lower courts; Ombudsman and his deputies Kinds of Presidential Appointments Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments, and continues until the end of the term. Ad interim: made while Congress is not in session, before confirmation by the Commission on Appointments; immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. This is a permanent appointment and it being subject to confirmation does not alter its permanent character. o Efficient. Recess appointment power keeps in continuous operation the business of government when Congress is not in session. The individual chosen may thus qualify and perform his function without loss of time. o Duration. The appointment shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. o Permanent. It takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. [Matibay v. Benipayo (2002)] o Not Acting. An ad interim appointment is distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued. o Applicable to COMELEC Commissionsers, being permanent appointments, do not violate
IV. Discretion of Appointing Official

Presumed. Administrators of public officers, primarily the department heads should be entrusted with plenary, or at least sufficient, discretion. Their position most favorably determines who can best fulfill the functions of a vacated office. There should always be full recognition of the wide scope of a discretionary authority, UNLESS the law speaks in the most mandatory and peremptory tone, considering all the circumstances. [Reyes v. Abeleda (1968)] Discretionary Act. Appointment is an essentially discretionary power. It must be performed by the officer in whom it is vested, the only condition being that the appointee should possess the qualifications required by law. [Lapinid v. CSC (1991)] Scope. The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of the appointment intended (i.e., whether the appointment is permanent or temporary). Inclusive Power. The appointing authority holds the power and prerogative to fulfill a vacant position in the civil service. The exercise of the power to transfer, reinstate, reemploy or certify is widely used (need not state reason)
To hold that the Civil Service Law requires filling up any vacancy by promotion, transfer, reinstatement, reemployment, or certification IN THAT ORDER would be tantamount to legislative appointment which is repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible. [Pineda v. Claudio (1969)] Promotion of next-in-rank career officer is not Mandatory. The appointing authority should

be allowed the choice of men of his confidence, provided they are qualified and eligible. When abused, use Mandamus. Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. [Gesolgon v. Lacson (1961)] Upon recommendation is not Merely Advisory. Sec. 9. Provincial/City Prosecution Offices. [par. 3] All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary. The phrase upon recommendation of the Sec. of Justice should be interpreted to be a mere advice. It is persuasive in character, BUT is not binding or obligatory upon the person to whom it is made.

IV. Eligibility Presumed V. Qualifications Prescribed By Constitution VI. Religious Test or Qualification is not Required VII. Qualification Standards and Requirements under the Civil Service Law
12 7
I. Definition
Eligibility: endowment/requirement/accomplish-ment that fits one for a public office. Qualification: endowment/act which a person must do before he can occupy a public office. Note: Failure to perform an act required by law could affect the officers title to the given office. Under BP 881, the office of any elected official who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant unless said failure is for cause or causes beyond his control. o An oath of office is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete. Until then, he has none at all, and for as long as he has not qualified, the holdover officer is the rightful occupant. [Lecaroz v. Sandiganbayan (1999)] o Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. [Mendoza v. Laxina (2003)]
V. Effectivity of Appointment
Immediately upon appointing authoritys issuance (Rule V, Sec. 10, Omnibus Rules)
VI. Effects of a Complete, Final and Irrevocable Appointment

GENERAL RULE An appointment, once made, is irrevocable and not subject to reconsideration. It vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process). It may be issued and deemed complete before acquiring the needed assent, confirmation, or approval of some other officer or body. EXCEPTIONS Appointment is an absolute nullity [Mitra v. Subido (1967)]; Appointee commits fraud [Mitra v. Subido, supra]; Midnight appointments o GENERAL RULE: A President or Acting President shall not appoint 2 months immediately before the next presidential elections until his term ends. (Art. VII, Sec. 15, 1987 Const.) o EXCEPTION: Temporary appointments to executive positions when continued vacancies will prejudice public service or will endanger public safety.
II. Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office. In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. (De Leon, 23) RESTRICTIONS on the Power of Congress to Prescribe Qualifications: o Congress cannot exceed its constitutional powers; o Congress cannot impose conditions of eligibility inconsistent with constitutional provisions; o The qualification must be germane to the position ("reasonable relation" rule); o Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution
D. Eligibility and Qualification Requirements

I. Definition II. Power to Prescribe Qualifications III. Time of Possession of Qualifications

expressly or impliedly gives the power to set qualifications. o Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment: it is unconstitutional and therefore void for being a usurpation of executive power examples: Extensions of the terms of office of the incumbents; A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City; [Flores v. Drilon (1993)] Designating an unqualified person. The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice.; [Vargas v. Rilloraza (1948)] Automatic transfer to a new office. A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created; [Manalang v. Quitorano (1954)] Requiring inclusion in a list. A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association as one of the qualifications for appointment; and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list; [Cuyegkeng v. Cruz (1960)]

o Citizenship requirement should be possessed on start of term (i.e. on filing candidacy). The Local Government Code does not specify any particular date or time when the candidate must possess the required citizenship, unlike for residence and age. The requirement is to ensure that no alien shall govern our people and country or a unit of territory thereof. An official begins to govern or discharge his functions only upon proclamation and on start of his term. This liberal interpretation gives spirit, life and meaning to our law on qualifications consistent with its purpose. [Frivaldo v. COMELEC (1996)]
12 8
IV. Eligibility is Presumed

IN FAVOR of one who has been elected or appointed to public office. The right to public office should be strictly construed against ineligibility. (De Leon, 26)
V. Qualifications Prescribed By Constitution

1. For President (Sec. 2, Art. VI, Constitution) and Vice President (Sec. 3, Art. VII, Constitution) Natural-born citizen 40 years old on election day Philippine resident for at least 10 years immediately preceding election day For Senator (Sec. 3, Art. VI, Constitution) Natural-born citizen 35 years old on election day able to read and write registered voter resident of the Philippines for not less than two years immediately preceding election day For Congressmen (Sec. 6, Art. VI, Constitution) Natural-born citizen 25 years old on election day able to read and write registered voter in district in which he shall be elected resident thereof for not less than one year immediately preceding election day Supreme Court Justice Natural born citizen at least 40 years old 15 years or more as a judge or engaged in law practice of proven competence, integrity, probity and independence (C.I.P.I.) Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)
2.
III. Time of Possession of Qualifications

At the time specified by the Constitution or law. If time is unspecified, 2 views: a. qualification during commencement of term or induction into office; b. qualification / eligibility during election or appointment (De Leon, 26-27) Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, the public officer forfeits the office. o No estoppel in ineligibility. Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. [Castaneda v. Yap (1952)] 3.
4.
5.

Natural-born citizen 35 years old at time of appointment proven capacity for public administration not a candidate for any elective position in election immediately preceding appointment
VI. Religious Test or Qualification is not Required

Philippine Constitution, Art. III Sec. 5. No religious test shall be required for the exercise of civil or political rights.
12 9
6.
COMELEC Commissioners (Sec. 1[1], Art. IXC) Natural-born citizen 35 years old at time of appointment college degree holder not a candidate for elective position in election immediately preceding appointment chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years COA Commissioners Natural-born citizen 35 years old at time of appointment CPA with >10 year of auditing experience or Bar member engaged in practice of law for at least 10 years Not candidates for any elective position in election immediately preceding appointment.
VII. Qualification Standards and Requirements under the Civil Service Law
1. Qualification Standards It enumerates the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, Administrative Code) The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office (ibid) It shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules)
7.
Notes: Practice of Law defined. Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill. [Cayetano v. Monsod (1991)] In the dissenting opinion of Justice Padilla in the case of Cayetano v. Monsod, citing Agpalo, he stated that engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer Residency defined. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. [Aquino v. COMELEC (1995)] Presumption in favor of domicile of origin. Domicile requires the twin elements of actual habitual residence and animus manendi (intent to permanently remain). Domicile of origin is not easily lost; it is deemed to continue absent a clear and positive proof of a successful change of domicile. [Marcos v. COMELEC (1995)]
2. Political Qualifications for an Office (i.e. membership in a political party) GENERAL RULE Political qualifications are NOT Required for public office. EXCEPTIONS Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); Party-list representation; Commission on Appointments; Vacancies in the Sanggunian (Sec. 45, Local Government Code) 3. No Property Qualifications Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidates wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. [Maguera v. Borra and Aurea v. COMELEC (1965)] 4. Citizenship Aliens not eligible for public office. The purpose of the citizenship requirement is to ensure that no alien, i.e., no person

owing allegiance to another nation, shall govern our people and country or a unit of territory thereof. [Frivaldo v. COMELEC (1996)] 5. Effect of Removal of Qualifications During the Term Termination from office 6. Effect of Pardon upon the Disqualification to Hold Public Office (Asked in 1999) GENERAL RULE Pardon will not restore the right to hold public office. (Art. 36, Revised Penal Code) EXCEPTIONS When the pardons terms expressly restores such (Art. 36, RPC); When the reason for granting pardon is noncommission of the imputed crime. [Garcia v. Chairman, COA (1993)] Public Officer The President, Vice President, the Members of the Cabinet and their deputies or assistants

Disqualifications shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution, (Art. VII, Sec. 13) may not hold during his term any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government owned or -controlled corporations or their subsidiaries Effect: or else he forfeits his seat Shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Art. VI, Sec 13) shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12) shall not hold any other office or employment [during their tenure]. (Art. IX-A, Sec. 2) (Art. XI, Sec. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8) are appointed to 7-year term, without reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11) shall not be appointed during Presidents tenure as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned-or -controlled
13 0
Senator or Member of the House of Representatives
E. Disabilities and Inhibitions of Public Officers

Disqualifications to Hold Public Office IN GENERAL: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public office are ineligible (i.e. disqualified from holding such office). Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications do not violate the Constitution. General Constitutional Disqualifications 1. Losing candidates cannot be appointed to any governmental office within one year after such election. (Art. IX-B Sec. 6) 2. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B Sec. 7(1)) 3. Appointive officials shall not hold any other governmental position. o Unless otherwise allowed by law or his positions primary functions (Art. IX-B Sec 7 (2)) o Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one cant receive compensation or other honoraria anyway), as provided by law and as required by the primary functions of his office. [ National Amnesty Commission v. COA (2004)] Members of the Supreme Court and other courts established by law Members of the Constitutional Commission Ombudsman and his Deputies Members of Constitutional Commissions, the Ombudsman and his Deputies
Members of Constitutional Commissions, the Ombudsman and his Deputies The Presidents spouse and relatives by consanguinity or affinity within the fourth civil degree
Specific Constitutional Disqualifications Public Officer Disqualifications

Public Officer Disqualifications corporations. (Art. VIII, Sec. 13)

or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law. Section 7 of RA 6713 also generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. 9. Relationship with the appointing power General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: i. appointing authority; ii. recommending authority; iii. chief of the bureau office; or iv. person exercising immediate supervision over the appointee Relative: related within the third degree of either consanguinity or of affinity. Exceptions to rule on nepotism: o persons employed in a confidential capacity o teachers o physicians o members of the Armed Forces of the Philippines
Other Disqualifications 1. Mental or physical incapacity 2. Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. 3. Impeachment 4. Removal or suspension from office: not presumed non-imposable when such ineligibility is not constitutional or statutory declared. 5. Previous tenure of office: for example, an appointed Ombudsman is absolutely disqualified for reappointment (Article XI, Constitution). 6. Consecutive terms limit: i. Vice-President = 2 consecutive terms ii. Senator = 2 consecutive terms iii. Representative = 3 consecutive terms iv.Elective local officials = 3 consecutive terms (Sec. 8, Art. X, Constitution) Public officers voluntary renunciation of office for any length of time = an interruption in the continuity of his service for the full term for which he was elected. 7. Holding more than one office: to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their holding of dual positions. Civil Liberties Union v. Executive Secretary (1991): Section 7, Article IX-B of the Constitution generally prohibits elective and appointive public officials from holding multiple offices or employment in the government unless they are otherwise allowed by law or by the primary functions of their position. This provision does NOT cover the President, Vice-President and cabinet members they are subject to a stricter prohibition under Section 13 of Article VII. To apply the exceptions found in Section 7, Article IX-B to Section 13, Article VII would obliterate the distinction set by the framers of the Constitution as to the highranking officials of the Executive branch. However, public officials holding positions without additional compensation in exofficio capacities as provided by law and as required by their offices primary functions are not covered by the Section 13, Article VII prohibition. 8. Holding of office in the private sector: Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own, control, manage,
13 1
10. Under the Local Government Code (sec. 40) i. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; ii. Removed from office as a result of an administrative case; iii. Convicted by final judgment for violating the oath of allegiance to the Republic; iv.Dual citizenship; Mercado v. Manzano (1999): Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition.

[I]n including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. v. Fugitive from justice in criminal or nonpolitical cases here or abroad; vi.Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; vii. Insane or feeble-minded.

The presumption is that the public officer was chosen because he was deemed fit and competent to exercise that judgment and discretion. Unless the power to substitute another in his place has been given to him, a public officer cannot delegate his duties to another.
13 2
2. As to the Obligation of the Officer to Perform his Powers and Duties

a. Mandatory Powers conferred on public officers are generally construed as mandatory although the language may be permissive, where they are for the benefit of the public or individuals b. Permissive Statutory provisions define the time and mode in which public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system and dispatch in public business are generally deemed directory. If the act does not affect third persons and is not clearly beneficial to the public, permissive words will not be construed as mandatory.
F. Powers and Duties of Public Officers

I. Classification of Powers and Duties II. Source of Powers and Authority III. Duties of Public Officers
I. Classification of Powers and Duties

(De Leon, 2008)
1. As to Nature a.Ministerial
Official duty is ministerial when it is absolute, certain and imperative involving merely execution of a specific duty arising from fixed and designated facts. Where the officer or official body has no judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law, their acts are ministerial only. Performance of duties of this nature may, unless expressly prohibited, be properly delegated to another. Thus, a ministerial act which may be lawfully done by another officer may be performed by him through any deputy or agent willfully created or appointed. Where the law expressly requires the act to be performed by the officer in person, it cannot, though ministerial, be delegated to another. b. Discretionary They are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature, the function is quasijudicial.
3. As to the Relationship of the Officer to his subordinates

a. Power of Control It implies the power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter. b. Power of Supervision Supervisory power is the power of mere oversight over an inferior body which does not include any restraining authority over such body. A supervising officer merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.
II. Source of Powers and Authority

(De Leon, 2008) Under our political system, the source of governmental authority is found in the people. Directly or indirectly through their chosen representatives, they create such offices and agencies as they deem to be desirable for the administration of the public functions and declare in what manner and by what persons they shall be exercised. Their will, in these respects, finds its expression in the Constitution and the laws. The right to be

a public officer, then, or to exercise the powers and authority of a public office, must find its source in some provision of the public law. Nothing is better settled in the law than that a public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. [Villegas v. Subido (1969)]

the best of his ability, in such a manner as to be above suspicion of irregularities, and to act primarily for the benefit of the public. As to outside activities: It is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties
13 3
2. Duty to make public disclosure statements of assets and liabilities
of
III. Duties of Public Officers

(De Leon, 2008)
Public officials and employees have an obligation under the Code of Conduct and Ethical Standards for Public Officials and Employees to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under 18 years of age living in their household.
1. Duties as Trustees for the Public

a. To obey the law It is the duty of an officer to obey the general laws and the laws which prescribe the duties of his office, and a public officer has no power to vary or waive any statutory law. As a general rule, a public officer must obey a law found on the statute books until its constitutionality is judicially passed upon in a proper proceeding.
3. Transparency of transactions and access to information
G. Rights of Public Officers

I. In General II. Right to Compensation III. Other Rights
I. In General
(De Leon, 2008)
b. To accept and continue in office It is the duty of every person having the requisite qualifications, when elected or appointed to a public office, to accept it. The theory is that the public has the right to command the services of any citizen in any official position which it may designate. c. To accept the burden of office One who accepts a public office does so with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office. d. As to diligence and care Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. e. As to choice and supervision of subordinates It is the duty of a public officer having an appointing power to make the best available appointment. The degree of care required in selecting subordinates must depend upon the nature of the work to be performed and the circumstances of each case. f. Ethical duties Every public officer is bound to perform the duties of his office honestly, faithfully and to
1. Rights incident to public office

The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed.
2. Rights as a citizen
a. Protection from publication commenting on his fitness and the like The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and the laws. However, by reason of the public character of his employment or office, a public officer is, in general, held not entitled to the same protection from publications commenting on his fitness and the like, as is accorded to the ordinary citizen. b. Engaging in certain political and business activities The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties.
II. Right to Compensation

(De Leon, 2008) The power to fix the compensation of public officers is not inherently and exclusively legislative in character. Unless the Constitution expressly or impliedly prohibits Congress from doing so, it may delegate the power to other government bodies or officers. The salary of a public officer may not, by garnishment, attachment or order of execution, be seized before being paid to him and, appropriated for the payment of his debts. The rationale behind this doctrine is obvious consideration of public policy. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. [De la Victoria v. Burgos, (1995)]
Employees in the government given temporary appointments do not enjoy security of tenure. They shall be given such protection as may be established by law to prevent indiscriminate dismissals and to see to it that their separation or replacement is made only for justifiable reasons c. Freedom of members of Congress from arrest and from being questioned
13 4
A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. [Sec. 11, Art. VI, Constitution] d. Right not to be removed or suspended except for cause provided by law
Basis of Right to Compensation The relation between an officer and the public is not the creation of contract, nor is the office itself a contract. Hence, his right to compensation is not the creation of contract. It exists as the creation of law and belongs to him not by force of any contract but because the law attaches it to the office. The right to compensation grows out of the services rendered. After services have been rendered, the compensation thus earned cannot be taken away by a subsequent law. As a general proposition, a public official is not entitled to any compensation if he has not rendered any service. [Acosta v. CA, (2000)]
Implicit in the constitutional prohibition against removal or suspension except for cause, is the existence of a charge, due hearing, and the finding of guilt by the proper authority.
2. Rights under the Civil Service Decree and the New Administrative Code
a. Right to preference in promotion b. Right to present complaints and grievances c. Right not to be suspended or dismissed except for cause as provided by law and after due process d. Right to organize
III. Other Rights

(De Leon, 2008)
3. Next-in-Rank Rule
This rule specifically applies only in cases of promotion. It neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. One who is next-in-rank to a vacancy is given preferential consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed. Reason for the rule: The preference given assumes that employees working in an office for longer period have gained not only superior skills but also greater dedication to the public service provided that the acts of the appointing power are bona fide for the best interest of the public service and the person chosen has the needed qualifications.
1. Rights under the Constitution

a. Right to self-organization
The right to self-organization shall not be denied to government employees. [Sec. 2(5), Art. IX-B, Constitution]. Government employees in the civil service are granted the right to form unions enjoyed by workers in the private sector However, the constitutional grant to government workers of the right to form labor organizations or unions does not guarantee them the right to bargain collectively with the government or to engage in concerted activities including the right to strike, which are enjoyed by private employees. They are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass actions which will result in temporary stoppage or disruption of public services b. Right to protection of temporary employees
4. Personnel Actions

Any action denoting the movement or progress of personnel in the civil service is known as personnel action. It includes: o appointment through certification o promotion o transfer o reinstatement o reemployment o detail o reassignment o demotion and o separation

office, belong to the public, must be determined wit reference to the facts of each case. o where such are indispensable in the proper conduct of the office, the officer may not take them as his own property. o if, not being required by law, they are prepared by the officer apart from his official duties and are not indispensable in the proper conduct of the office, the officer may acquire a property right therein.
13 5
H. Liabilities of Public Officers

I. Preventive Suspension and Back Salaries II. Illegal Dismissal, Reinstatement and Back Salaries The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. (De Leon, 2008) Three-fold Responsibility of Public Officers (De Leon, 2008) A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission: Civil Liability: if the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party Criminal Liability: if he law has attached a penal sanction, the officer may be punished criminally Administrative Liability: such violation may also lead to imposition of fine, reprimand, suspension or removal from office. This administrative liability is separate and distinct from the penal and civil liabilities. (Agpalo, 2005) Civil Liability (Agpalo, 2005) A public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. An officer who acts within his authority is not liable for damages as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent. Statutory basis of liability: o Under the Administrative Code: Sec. 38. Liability of Superior Officers. - (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. (2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law. (3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.
5. Rights under the Revised Government Service Insurance Act

Covered employees are entitled to retirement benefits, separation benefits, unemployment or involuntary separation benefits, disability benefits, survivorship benefits, funeral benefits and life insurance benefits.
6. Right to Reimbursement and Indemnity

When a public officer, in the due performance of his duties, has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and not attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public for which he should be reimbursed. Within the same limits, the officer is entitled to be indemnified by the public against the consequences of acts which he has been expressly or impliedly required to perform upon the public account, and which are not manifestly illegal and which he does not know to be wrong.
7. Right to Reinstatement and Back Salary

Reinstatement means the restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal Back salary or wages is a form of relief that restores the income that was lost by reason of unlawful dismissal For a plaintiff to succeed in seeking reinstatement to an office, he must prove his right to the office. Unless this right is shown, the action must fail even if the appointment of the successor is first in issue.
8. Rights to Property, Devices and Inventions

Title to a public office carries with it the right, during the incumbency of the officer, to the insignia and property thereof. The question whether records, discoveries, inventions, devices, data and the like, made or prepared by an officer while he is occupying the

Sec. 39. Liability of Subordinate Officers. -No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors. o Under Article 27 of the Civil Code: Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken. The provision contemplates a refusal or neglect without just cause by a public servant or employee to perform his official duty. Where there is just cause, he may not be held liable. o Under Article 32 of the Civil Code: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such

confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. This provision renders a public officer civilly liable for damages for directly or indirectly obstructing, defeating, violating or in any manner impeding or impairing civil liberties guaranteed by the Constitution. Under this provision, it is not necessary that the public officer acted with malice or bad faith. To be liable, it is enough that there was a violation of the constitutional rights of the aggrieved party, even on the pretext of justifiable motives or good faith in the performance of ones duties. Good faith is not a defense
13 6
Criminal Liability (De Leon, 2008) The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability. Crimes peculiar to certain public officers: 1. Revised Penal Code 2. Anti-Graft and Corrupt Practices Act 3. Code of Conduct and Ethical Standards 4. Forfeiture of Unexplained Wealth Act 5.Civil Service Decree 6. Government Auditing Code 7. Local Government Code 8. National Internal Revenue Code 9. Omnibus Election Code
I. Preventive Suspension and Back Salaries

Kinds of Preventive Suspension a. preventive suspension pending investigation The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation, if the charge against such

officer involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from service (De Leon, 2008) No compensation is due for the period of preventive suspension pending investigation because such is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. (De Leon, 2008) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated [Caniete v. Secretary of Education, (2000)] Employees are entitled to compensation for the period of their suspension pending appeal if they are found innocent. Such suspension is actually punitive so that a public officer should be reinstated with full pay for the period of the suspension.

deterred and intimidated in the discharge of their duties, if those who act improperly, or even exceed the authority given them, were not protected to some reasonable degree by being relieved from private liability. The threat of suit could also deter competent people from accepting public office. Other public policy considerations: o loss of valuable time caused by such actions o unfairness of subjecting officials to personal liability for the acts of their subordinates o a feeling that the ballot and removal procedures are more appropriate methods of dealing with the misconduct in public office.
13 7
b.
II. Illegal Dismissal, Reinstatement and Back Salaries

Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. Where an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office, it was held that he might recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. He may recover the full amount notwithstanding that during the period of his removal, the salary has been paid to another appointed to fill the vacancy unlawfully created. The no work, no pay principle does not apply where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and carrying out his duties If the illegal dismissal is found to have been made in bad faith by the superior officers then they will be held personally accountable for back salaries of the illegally dismissed employee. The award of backwages is limited to a maximum period of 5 years and not to full back salaries from illegal termination up to reinstatement [David v. Gania, (2003)]
Official Immunity Distinguished from State Immunity The immunity of public officials is a more limited principle than governmental immunity since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function. The doctrine of sovereign immunity principally rested upon the tenuous ground that the king could do no wrong. It served to protect the impersonal body politic or government itself from tort liability. Official Immunity serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. Official Immunity not Absolute A public officer enjoys only qualified, not absolute immunity. The protection afforded by the doctrine generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt. But acts of a public officer are protected by the presumption of good faith. Even mistakes concededly committed by such a public officer in the discharge of his official duties are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith. A public officer may be sued as such to compel him to do an act required by law
J. De Facto Officers
I. De Facto Doctrine II. De Facto Officer Defined III. Elements of a De Facto Officership IV. Office created under an unconstitutional statute V. Legal Effect of Acts of De Facto Officers VI. Liability of De Facto Officers VII. Right to Compensation of De Facto Officer
I. Immunity of Public Officers

Doctrine of Official Immunity from Liabilities for Public Officers Rationale: promotion of fearless, vigorous and effective administration of policies of government. It is generally recognized that public officers and employees would be unduly hampered,
I. De Facto Doctrine

It is the doctrine that a person who is admitted and sworn into office by the proper authority is deemed to be rightfully in such office until: (a) he is ousted by judicial declaration in a proper proceeding; or (b) his admission thereto is declared void. Doctrines Purpose: to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him. a.
Officer De Jure v. Officer De Facto (Asked

in 2000, 2004) De Jure A de jure office exists; He is legally qualified for the office; He is lawfully chosen to such office; He undertakes to perform the duties of such office according to laws prescribed mode. Right: He has the lawful right / title to the office De Facto De jure office; He assumed office under color of right or general acquiescence by the public; He actually and physically possessed the office in good faith.
Requisites
13 8
II. De Facto Officer Defined

One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law . [Torres v. Ribo (1948)] He must have: o acted as an officer for such length of time, o under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, o as to afford a presumption of election or appointment, and o induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action. A person is a de facto officer when the duties of his office are exercised under ANY of the following circumstances: 1. There is no known appointment or election, but people are induced by circumstances of reputation or acquiescence to suppose that he is the officer he assumes to be. Consequently, people do not to inquire into his authority, and they submit to him or invoke his action; 2. He possessed public office under color of a known and valid appointment or election, but he failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); 3. He possessed public office under color of a known election or appointment, but such is VOID because: o Hes ineligible; o The electing or appointing body is not empowered to do such; o His exercise of his function was defective or irregular; o (Important) The public does NOT KNOW of such ineligibility, want of power, or defect being. He possessed public office under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. o What is unconstitutional is the officers appointment to an office not legally existing, (not creation of an unconstitutional office). [Norton v. County of Shelby (1886)]
Basis of Authority
How ousted Validity of official acts Rule on Compensation
Cannot be ousted. Valid, subject to exceptions (e.g., acting beyond his scope of authority, etc.) Rightfully entitled to compensation; The principle "No work, no pay" is inapplicable to him.
Reputation: He possesses office and performs its duties under color of right, but he is not technically qualified to act in all points of law In a direct proceeding (quo warranto); (collaterally) Valid as to the public until his title to the office is adjudged insufficient. Conditionally entitled to receive compensation: only when no de jure officer is declared; He is paid only for actual services rendered.
b.
Officer De Facto v. Intruder

De Facto He becomes officer under any of the 4 circumstances discussed under Part II (above). Color of right or title to office Intruder He possesses office and performs official acts without actual or apparent authority. None. Neither lawful title nor color of right to
Nature
Basis of authority

De Facto Validity of "official" acts Valid as to the public until his title to the office is adjudged insufficient Intruder office. Absolutely void; His acts can be impeached at any time in any proceeding (unless and until he continues to act for a long time, creating a presumption of his right to act) (De Leon, 119) Not entitled to compensation at all.

to perform the duties of such office; [Luna v. Rodriguez (1917)] A judge whose position has already been lawfully abolished, and yet promulgates a decision in a criminal case after the abolition and over the fiscals objection [People v. So (1995)]
13 9
IV. Office created under an unconstitutional statute

The prevalent view is that a person appointed or elected in accordance with a law later declared to be unconstitutional may be considered de facto at least before the declaration of unconstitutionality.
Rule on compensation
Entitled to receive compensation only when no de jure officer is declared and only for actual services rendered.
V. Legal Effect of Acts of De Facto Officers

[Monroy v. CA (1967)] As regards the officers themselves: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. o RATIONALE: The doctrine is intended not for the protection of the public officer, but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office. De Facto Officers Official Acts are not subject to collateral attack o RULE: A de facto officers and his acts validity cannot be collaterally questioned (in proceedings where he is not a party, or were not instituted to determine the very question). o REMEDY: Quo warranto proceedings filed by: The person claiming entitlement to the office; The Republic of the Philippines (represented by the Solicitor-General or a public prosecutor).
An intruder / usurper may be presumed a de facto officer with the passage of time, when the public presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer.
III. Elements of a De Facto Officership

i. A validly existing public office; ii. Actual physical possession of the office in good faith; iii. Color of title to the office: a. Reputation or acquiescence; b. Known and valid appointment or election but the officer failed to conform to a legal requirement c. Known appointment or election but void because of ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public d. Known appointment or election pursuant to an unconstitutional law before declaration of unconstitutionality Who are NOT considered De Facto Officers? A judge who has accepted an appointment as finance secretary and yet renders a decision after his acceptance: if he has ceased to be judge by actually accepting and entering into some other office and has actually entered upon the performance of the duties of the other office, it is difficult to understand how he can still be considered as actually occupying and performing the duties of the office which he had abandoned and vacated. An abandonment and a vacation of an office is inconsistent and repugnant to the idea of actually continuing
VI. Liabilities of De Facto Officers

(De Leon, 130-131) A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer. The de facto officer may be liable for all imposable penalties for ANY of the following acts: o usurping or unlawfully holding office; o exercising the functions of public office without lawful right; o ineligibility for the public office as required by law

The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status.

VI. Abandonment of office VII. Prescription of right to office VIII. Removal IX. Impeachement X. Abolition of office XI. Conviction of a crime XII. Recall
VII. Right to Compensation of De Facto Officer

GENERAL RULE None. A de facto officer cannot sue for the recovery of salary, fees or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are void. (63A Am. Jur. 2d 1094-1095) The rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure, even though he entered into the office in good faith and under color of title.[ Monroy v CA (1967) EXCEPTIONS Where there is no de jure public officer, the officer 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. [Monroy v. CA [1967]) In Civil Liberties Union v. Executive Secretary (1991), even as EO No. 284 was declared unconstitutional because it allowed Cabinet members to hold multiple offices in direct contravention of the Constitution, it was held that during their tenure in the questioned positions, the respondents may be considered de facto officers and as such entitled to the emoluments of the office/s for actual service rendered. A de facto officer, not having good title, takes the salaries at his risk and must account to the de jure officer (when there is one) for whatever salary he received during the period of his wrongful tenure, even if he occupied the office in good faith. o BUT when the de jure officer assumed another position under protest, for which she received compensation: while her assumption to the said position and her acceptance of the corresponding emoluments do not constitute abandonment of her rightful office, she cannot recover full back wages for such. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. [Gen. Manager, Philippine Ports Authority v. Monserate (2002)]
14 0
I. Expiration of the term or tenure of office

Upon the expiration of the officers term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must ipso facto cease Term of office means the time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall succeed one another. It is a fixed and definite period of time to hold office, perform its functions and enjoy its privileges and emoluments until the expiration of said period Tenure of office represents the period during which the incumbent actually holds office.
II. Reaching the age limit (retirement)

This mode results in the compulsory and automatic retirement of a public officer
III. Death or permanent disability

The death of the incumbent of an office, which is by law to be filled by one person only, necessarily renders the office vacant. The public official cease to hold office upon his death and all his rights, duties and obligations pertinent to the office are extinguished Permanent disability covers both physical or mental disability.
IV. Resignation
Resignation is the formal renunciation or relinquishment of a public office. It implies an expression by the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish his right to the office and its acceptance by competent and lawful authority. To constitute resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. A written resignation, delivered to the board or officer authorized to receive it and fill the vacancy thereby created, is prima facie, but not conclusive evidence of the intention to relinquish the office. Acceptance by the proper authority is necessary for a resignation to be operative and effective.
K. Termination of Official Relation

I. Expiration of the term or tenure of office II. Reaching the age limit (retirement) III. Death or permanent disability IV. Resignation V. Acceptance of an incompatible office
V. Acceptance of an incompatible office

It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. One who, while occupying one office, accepts another incompatible with the first, ipso facto, absolutely vacates the first office. When Incompatible o Incompatibility is to be found in the character of the offices and their relation to each other, in the subordination of one to the other and in the nature of the functions and duties which attach to them o It exists where: There is conflict in such duties and functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both One is subordinate to te other and is subject in some degree to its supervisory power for obviously in such a situation, the design that one acts as a check on the other would be frustrated The Constitution of the law itself declares the incompatibility even though there is no inconsistency in the nature and functions of the offices
IX. Impeachment
Impeachment has been defined as a method of national inquest into the conduct of public men. Its purpose is to protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Sec. 2, Art. XI, Constitution) The House of Representatives has the sole power to initiate all cases of impeachment while the Senate sits as a court for the trial of impeachment cases. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law. (Sec. 3, Art. XI, Constitution)
14 1
X. Abolition of office
To consider an office abolished, there must have been an intention to do away with it wholly and permanently. As a general rule, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. Such power may be exercised at any time and even while the office is occupied by a duly elected or appointed incumbent. Absent any constitutional prohibition, an office created by Congress may be abolished by it during the term of the incumbent. The fundamental principle afforded to civil service employees against removal except for cause as provided by law does not protect them against abolition of the positions held by them in the absence of any other provision expressly or impliedly prohibiting abolition thereof. [Castillo v. Pajo, (1958)]
VI. Abandonment of office

Abandonment means the voluntary relinquishment of an office by the holder of all right, title, or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof.
VII. Prescription of right to office

Under the Rules of Court, quo warranto is the proper remedy against a public officer for is ouster from office which should be commenced within one year after the cause of such ouster or the right of the plaintiff to hold such office or position arose; otherwise, the action will be barred Rationale for the one year period: Title to public office should not be subjected to uncertainties but should be determined as speedily as possible.
XI. Conviction of a crime

When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime, termination of official relation results, for one of te effects of the imposition of said penalties is the deprivation of the public office which the offender may have held.
VIII. Removal
Removal entails the ouster of an incumbent before the expiration of his term. It implies that the office exists after the ouster. Removal from office may be express or implied.

Conviction means conviction in a trial court. It contemplates a court finding guilt beyond reasonable doubt followed by a judgment upholding and implementing such finding.

o The CSC cannot co-manage or be a surrogate administrator of government offices and agencies. o It cannot change the nature of the appointment extended by the appointing officer. [ Luego v. CSC (1986)]
XII. Recall
Through recall, an elective official may be removed at any time during his term by the vote of the people at an election called for such purpose or at a general election.
14 2
II. Appointments to the Civil Service

SCOPE Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service 1. Career Service Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure. 2. Non-career Service Entrance on bases other than those of the usual tests. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project. (i.e. elective officials, Department Heads and Members of Cabinet) Requisites: Appoint only according to merit and fitness, to be determined as far as practicable. Require a competitive examination. o Exceptions: (Positions where Appointees are exempt from Competitive Examination Requirements) Policy determining in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries Primarily Confidential denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state (Proximity Rule as enunciated in De los Santos v Mallare [1950]) Highly Technical requires possession of technical skill or training in a superior degree. (i.e. City Legal Officer) NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly technical
L. The Civil Service

I. Scope II. Appointments to the Civil Service III. Personnel Actions
I. Scope
Civil Service Commissions (CSCs) Jurisdiction Exclusive Jurisdiction o Disciplinary cases o Cases involving personnel action affecting the Civil Service employees Appointment through certification Promotion Transfer Reinstatement Reemployment Detail, reassignment Demotion Separation o Employment status o Qualification standards Recall of appointment o Includes the authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations. o as opposed to Recall under Sec 69-75 of the Local Government Code: Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)]
Review Appointees Qualifications. The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. [Lapinid v. CSC (1991)] What it cannot do. o It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. [Lapinid v. CSC (1991)]
III. Personnel Actions

Other Personnel Actions Promotion is a movement from one position to another with increase in duties and

responsibilities as authorized by law and is usually accompanied by an increase in pay. o Next-in-rank Rule. The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated. BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the special reason or reasons for not appointing the officer next-inrank. o Automatic Reversion Rule. All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code) Requisites: 1. series of promotions 2. all promotional appointments are simultaneously submitted to the Commission for approval 3. the Commission disapproves the appointment of a person to a higher position. Appointment through Certification is issued to a person who is: o selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles o qualified Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service. o This may be imposed as an administrative remedy. o If UNconsented = violates security of tenure. o EXCEPTIONS: Temporary Appointee Career Executive Service Personnel whose status and salaries are based on ranks ( positions) Reinstatement. It is technically the issuance of a new appointment and is discretionary on the part of the appointing power. o It cannot be the subject of an application for a writ of mandamus. o Who may be reinstated to a position in the same level for which he is qualified: Any permanent appointee of a career service position

No commission of delinquency or misconduct, and is not separated. o Same effect as Executive Clemency, which completely obliterates the adverse effects of the administrative decision which found him guilty of dishonesty. He is restored ipso facto upon grant of such. Application for reinstatement = unnecessary. Detail is the movement of an employee from one agency to another without the issuance of an appointment. o Only for a limited period. o Only for employees occupying professional, technical and scientific positions. o Temporary in nature. Reassignment. An employee may be reassigned from one organizational unit to another in the SAME agency. o It is a management prerogative of the CSC and any dept or agency embraced in the Civil Service. o It does not constitute removal without cause. o Requirements: NO reduction in rank, status or salary. Should have a definite date or duration (c.f. Detail). Otherwise, a floating assignment = a diminution in status or rank. Reemployment. Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.
14 3
M. Accountability of Public Officers

I. Impeachment II. Ombudsman III. Sandiganbayan IV. Ill-Gotten Wealth
I. Impeachment
Impeachment has been defined as a criminal proceeding against a public officer, before a quasi-judicial political court, instituted by written accusation called articles of impeachment. (Agpalo, 2005) Its purpose is to protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic. (De Leon, 2008)
Grounds (Sec. 2, Art. XI, Constitution) 1. culpable violation of the Constitution 2. treason 3. bribery 4. graft and corruption

5. other high crimes 6. betrayal of public trust The acts which are impeachable grounds must be committed in the performance of the officials public office. (Agpalo, 2005) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (Sec. 3, Art. XI, Constitution) o Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. [Francisco, Jr. v. House of Representatives, (2003)]

misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. (Sec. 24, RA 6770) The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Sec. 24, RA 6770) Prior notice and hearing is not required before suspension may be meted out. Suspension is not a punishment or penalty but only a preventive measure to prevent the respondent from using his position or office to influence or intimidate prospective witnesses or tamper with the records which may be vital in the prosecution of the case against them.
14 4
II. Ombudsman
(Agpalo, 2005) Disciplinary Power Over Public Officers The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries. (Sec. 21, RA 6770) The disciplinary power of the Ombudsman is not exclusive but is shared with other disciplinary authorities of the government. The disciplinary power of the Ombudsman over elective officials is concurrent with the power vested in the officials specified in the Local Government Code of 1991. [Hagad v. DozoDadole, (1995)] Exceptions to Ombudsmans Disciplinary Power The Ombudsman has no disciplinary power over the following (Sec. 21, RA 6770): 1. Officials who may be removed only by impeachment 2. Members of Congress 3. Members of the Judiciary However, the Office of the Ombudsman has the power to investigate any serious misconduct in office committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Sec. 22, RA 6770)
(1) Judicial Review in Administrative Proceedings

Decisions or resolutions of the Ombudsman in administrative cases absolving the respondent of the charge or imposing upon him the penalty of public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, is final and unappealable. (Agpalo, 2005) Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. [Fabian v. Ombudsman, (1998)]
(2) Judicial Review in Penal Proceedings

In all other cases, the decision shall become final after the expiration of 10 days from receipt thereof by the respondent, unless a motion for reconsideration or a petition for review is file with the CA pursuant to Rule 43 of the Rules of Court. (Agpalo, 2005)
III. Sandiganbayan
Exclusive Original Jurisdiction over (a) violations of R.A. No. 3019 and No. 1379 (b) crimes committed by public officers and employees embraced in Title VIII of the Revised Penal Code (c) other offenses or felonies (whether simple or complexed with other crimes) committed by public officers and employees in relation to their office, where the penalty prescribed by law is higher than prision correccional or
Power to Preventively Suspend The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave

imprisonment for six (6) years, or a fine of P6,000; and (d) Civil and criminal cases filed pursuant to and in connection with Executive Orders No. 1,2, 14, and 14-a issued in 1986 In the absence of any allegation that the offense charged was necessarily connected with the discharge of the duties or functions of a public officer, the ordinary court, not the Sandiganbayan, has jurisdiction to hear and decide the case. What is controlling is not whether the phrase "committed in relation to public office" appears in the Information. What determines the jurisdiction of the Sandiganbayan is the specific factual allegation in the Information that would indicate close intimacy between the discharge of the accused's official duties and the commission of the offense charged in order to qualify the crime is having been committed in relation to public office. The relation between the crime and the office must be direct and not accidental, that is, the relation has to be such that, in the legal sense, the offense cannot exist without the office.

prosecutors in the Office of the Ombudsman and special prosecutor; b) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (c) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (d) Members of the judiciary without prejudice to the provisions of the Constitution; (e) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (f) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classificafion Act of 1989. In case private individuals are charged as coprincipals, accomplices or accessories with the public officers or employees, including those employed in government-owned or -controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.
14 5
Officials and private individuals subject to its jurisdiction Under Section 4(a, b) of PD No. 1606, as amended, the Sandiganbayan shall exercise exclusive original jurisdiction over the cases mentioned in (a), (b), and (c) above where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity at the time of the commission of the offense: (a) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (R.A. No. 6758), specifically including: 1) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; 2) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; 3) Officials of the diplomatic service occupying the position of consul and higher; 4) Philippine army and air force colonels, naval captains, and all officers of higher rank; 5) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; 6) City and provincial prosecutors and their assistants, and officials and
Exclusive Appellate Jurisdiction The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction.
IV. Ill-Gotten Wealth

Ill-gotten wealth means any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) by receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; (3) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries, (4) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

(5) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests, or (6) by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Sec. 1, RA 7080) Section 2 of Republic Act No. 7080 punishes the crime of plunder. It provides that any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other person, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts in the aggregate amount or total value of at least seventy-five million pesos (P75,000,000.00), shall be guilty of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with the said officer in the commission of plunder shall likewise be punished. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (Agpalo, 2005)
14 6
N. Term Limits
All elective local officials, except barangay officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC) Term of office: 3 years from noon of June 30, 1992 or the date provided by law All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992; No official shall serve for more than 3 consecutive terms for the same position; Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Sec. 2. Term of Office Term of office of barangay and sangguniang kabataan officials: 3 years No barangay elective official shall serve for more than 3 consecutive terms in the same position o Reckoned from the 1994 barangay elections o Voluntary renunciation of office for any length of time shall not be considered as an interruption
2012
POLITICAL
LAW
Administrative Law
ADMINISTRATIVE LAW

Philippine Patent Office, Games and Amusement Board, Board of Energy, and Insurance Commission) 3) Executive Orders/ Authorities of law (E.g. Fact-finding Agencies)
Administrative Law
A. B. C. D.
POLITICAL LAW General Principles Administrative Agencies Powers of Administrative Agencies Judicial Recourse and Review
14 8
II. When is an agency administrative?

Where its function is primarily regulatory EVEN IF it conducts hearings and determines controversies to carry out its regulatory duty. On its rule-making authority, it is administrative when it does not have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law.
A. General Principles
I. Definitions
Administrative Law is that branch of modern law under which the executive department of the government, acting in a quasi-legislative or quasijudicial capacity, interferes with the conduct of the individual for the purpose of promoting the wellbeing of the community (DEAN ROSCOE POUND) Administrative Agencies are the organs of government, other than a court and other than the legislature, which affect the rights of private parties either through adjudication or through rule-making.
III. Types of Administrative Agencies

(1) Government grant or gratuity, special privilege (e.g. Bureau of Lands, Phil. Veterans Admin., GSIS, SSS, PAO); (2) Carrying out the actual business of government (e.g. BIR, Customs, Immigration, Land Registration Authority); (3) Service for public benefit (e.g. Philpost, PNR, MWSS, NFA, NHA); (4) Regulation of businesses affected with public interest (e.g. Insurance Commission, LTFRB, NTC, HLURB); (5) Regulation of private businesses and individuals (e.g. SEC); (6) Adjustment of individual controversies because of a strong social policy involved (e.g. ECC, NLRC, SEC, DAR, COA).
II. Historical Considerations

Why did administrative agencies come about? (1) Growing complexities of modern life (2) Multiplication of number of subjects needing government regulation; and (3) Increased difficulty of administering laws [Pangasinan Transportation vs Public Service Commission (1940)] Why are administrative agencies needed? Because the government lacks: (1) Time (2) Expertise and (3) Organizational aptitude for effective and continuing regulation of new developments in society (STONE)
C. Powers of Administrative Agencies

I. Quasi-Legislative (Rule-Making) Power II. Quasi-Judicial (Adjudicatory) Power III. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers The powers of administrative agencies are: (1) Quasi-legislative (Rule-making) (2) Quasi-judicial (Adjudicatory) and (3) Determinative powers
B. Administrative Agencies
I. Modes of Creation of Administrative Agencies II. When is an agency administrative? III. Type of Administrative Agencies
I. Modes of Creation of Administrative Agencies

1) 1987 Constitution (E.g. CSC, COMELEC, COA, CHR, Commission on Appointments, Judicial and Bar Council and NEDA) 2) Legislative Enactments (E.g. NLRC, SEC, PRC, Social Security Commission, Commission on Immigration and Deportation,
I. Quasi-Legislative (Rule Making) Power

(Asked 5 times in the Bar) Definition The authority delegated by the law-making body to the administrative agency to adopt rules and regulations intended to carry out the provisions of a law and implement a legislative policy. Non-delegation doctrine
ADMINISTRATIVE LAW
Potestas delegata non delegare potest. What has been delegated cannot be delegated. Legislative Delegation Requisites for a valid delegation (1) The law must be complete in itself and must set forth the policy to be executed (2) The law must fix a standard, the limits of which are sufficiently determinate or determinable, to which the delegate must conform What is a sufficient standard: (1) Defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it; and (2) Indicates the circumstances under which the legislative command is to be effected. [Santiago v COMELEC (1997); ABAKADA Guro List vs Ermita (2005)] Forms of the sufficient standard: (1) Express (2) Implied [Edu vs Ericta (1970)] (3) Embodied in other statutes on the same matter and not necessarily in the same law being challenged. [Chiongbian vs Orbos (1995)] Legislative Rules Due process involves whether the parties were afforded the opportunity to be notified and heard before the issuance of the ruling.

Interpretative Rules interpretation or give its own set of rules. Due process means that the body observed the proper procedure in passing rules.
14 9
Restrictions on interpretative regulations: (a) does not change the character of a ministerial duty, (b) does not involve unlawful use of legislative or judicial power. Administrative interpretations: may eliminate construction and uncertainty in doubtful cases. When laws are susceptible of two or more interpretations, the administrative agency should make known its official position. Administrative construction/ interpretation not controlling as to the proper construction of a statute, but generally it is given great weight, has a very persuasive influence and may actually be regarded by the courts as the controlling factor. Administrative interpretation is merely advisory; Courts finally determine what the law means.
(1) Kinds of Administrative Rules and Regulations

a. Supplementary legislation Pertains to rules and regulations to fix details in the execution of a policy in the law. e.g. IRRs of the Labor Code. b. Interpretative legislation Pertains to rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed, i.e. BIR Circulars. GENERAL DISTINCTIONS Legislative Rules Promulgated pursuant to its quasi-legislative / rule-making functions. Create a new law, a new policy, with the force and effect of law. Need publication. So long as the court finds that the legislative rules are within the power of the administrative agency to pass, as seen in the primary law, then the rules bind the court. The court cannot question the wisdom or correctness of the policy contained in the rules. FROM LEGISLATIVE RULES Interpretative Rules Passed pursuant to its quasi-judicial capacity. Merely clarify the meaning of a pre-existing law by inferring its implications. Need not be published. The court may review their correctness of the interpretation of the law given by the administrative body, and substitute its own view of what is correct to the administrative body. If it is not within the scope of the administrative agency, court can only invalidate the same but not substitute its decision or
c. Contingent legislation Pertains to rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends.
(2) Requisites for Validity

Requisites of a valid administrative rule (WRAP) (1) Within the scope or authority of law (2) Authorized by law (3) Reasonableness (4) Promulgated in accordance with prescribed Procedure Publication Rules (1) Administrative rules and regulations are subject to the publication and effectivity rules of the Admin Code in relation to the Civil Code. (2) EO 200 requires publication of laws in the Official Gazette or in a newspaper of general circulation. Publication is indispensable, especially if the rule is general. EXCEPTIONS: (a) Interpretative rules (b) Internal regulations (i.e. regulating personnel) (c) Letters of instructions issued by administrative superior to subordinates (3) Effectivity: 15 days after publication, not 15 days from date of filing with the UP Law Center.
ADMINISTRATIVE LAW
EXCEPTIONS: (a) Different date is fixed by law or specified in the rule. (b) In case of imminent danger to public health, safety and welfare. Penal Rules Sec. 6, 1987 Administrative Code. Omission of Some Rules. (2) Every rule establishing an offense or defining an act which, pursuant to law is punishable as a crime or subject to a penalty shall in all cases be published in full text. (1) The law itself must declare the act as punishable and must also define or fix the penalty for the violation. (2) Can administrative bodies make penal rules? NO. Penal statutes are exclusive to the legislature and cannot be delegated. Administrative rules and regulations must not include, prohibit or punish acts which the law does not even define as a criminal act. [People vs Maceren (1977)] (3) If a rule is penal, it must be published before it takes effect. [People vs Que Po Lay (1954)]

General Rule A tribunal, board or officer exercising judicial functions acts without jurisdiction if no authority has been conferred to it by law to hear and decide cases (1) Jurisdiction to hear is explicitly or by necessary implication, conferred through the terms of the enabling statute. (2) Effect of administrative acts outside jurisdictionVOID.
15 0
(1) Administrative Due Process

1. Due Process Findings of facts by administrative bodies which observed procedural safeguards (e.g. notice and hearing parties, and a full consideration of evidence) are accorded the greatest respect by courts Cardinal Primary Rights: Ang Tibay v CIR (1950) lays down the cardinal primary rights: (1) Right to a hearing (Includes the right of a party to present his own case and submit evidence in support thereof) (2) The tribunal must consider the evidence presented (3) Decision must be supported by evidence. (4) Evidence must be substantial. Substantial Evidence: such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise (5) Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected (6) Independent consideration of judge (Must not simply accept the views of a subordinate) (7) Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered. Due process does not always entail notice and hearing prior to the deprivation of a right. Hearing may occur after deprivation, as in emergency cases, in which case, there must be a chance to seek reconsideration. [UP Board of Regents vs CA (1999)] Presence of a party at a trial is not always the essence of due process. All that the law requires is the element of fairness; that the parties be given notice of trial and (a) an opportunity to be heard (b) in administrative proceedings, an opportunity to seek reconsideration (c) an opportunity to explain ones side The law, in prescribing a process of appeal to a higher level, contemplates that the reviewing officer is a person different from the one who issued the appealed decision. Otherwise, the
II. Quasi-Judicial (Adjudicatory) Power

(Asked 4 times in the Bar) Definition The power of the administrative agency to determine questions of fact to which the legislative policy is to apply, in accordance with the standards laid down by the law itself Source Incidental to the power of regulation but is often expressly conferred by the legislature through specific provisions in the charter of the agency DISTINCTIONS FROM JUDICIAL PROCEEDINGS Kind of Administrative Judicial Proceedings Nature of Inquisitorial Adversarial Proceedings Rules of Liberally Follow technical Procedure applied rules in the Rules of Court Nature and Decision Decision Extent of limited to includes Decision matters of matters brought general as issue by the concern parties Parties The agency The parties are itself may be a only the private party to the litigants proceedings before it Requisites for a Valid Exercise (1) Jurisdiction (2) Due process
ADMINISTRATIVE LAW
review becomes a farce; it is rendered meaningless. [Rivera vs CSC (1995)] (2) Is a trial necessary? NO. WON to hold an adversarial trial is discretionary. Parties cannot demand it as a matter of right. [Vinta Maritime v NLRC (1978)]. The right of a party to confront and cross-examine opposing witness is a fundamental right which is part of due process. If without his fault, this right is violated, he is entitled to have the direct examination stricken off the record. [Bachrach Motors vs CIR (1978)] Evidence on record must be fully disclosed to the parties. [American InterFashion vs Office of the President (1991)] BUT respondents in administrative cases are not entitled to be informed of findings of investigative committees but only of the decision of the administrative body. [Pefianco v Moral (2000)] (3)

subordinate where determinations are made at lower levels of the same administrative system; That embraced in statutes which provides for a determination to be made by a particular officer of body subject to appeal, review, or redetermination by another officer of body in the same agency or in the same administrative system; That in which the statute attempts to make a court a part of the administrative scheme by providing in terms or effect that the court, on review of the action of an administrative agency, shall exercise powers of such extent that they differ from ordinary judicial functions and involve a trial de novo of matters of fact or discretion and application of the independent judgment of the court; That in which the statute provides that an order made by a division of a Commission or Board has the same force and effect as if made by the Commission subject to a rehearing by the full Commission, for the rehearing is practically an appeal to another administrative tribunal; That in which the statute provides for an appeal to an officer on an intermediate level with subsequent appeal to the head of the department or agency; and That embraced in statutes which provide for appeal at the highest level, namely, the President
15 1
(4)
(5)
Due process is violated when: (1) There is failure to sufficiently explain the reason for the decision rendered; or (2) If not supported by substantial evidence; (3) And imputation of a violation and imposition of a fine despite absence of due notice and hearing. [Globe Telecom v NTC (2004)]. Self-incrimination The right against self-incrimination may be invoked by the respondent at the time he is called by the complainant as a witness. However, if he voluntarily takes the witness stand, he can be cross examined; but he may still invoke the right when the question calls for an answer which incriminates him for an offense other than that charged. [People vs Ayson (1989)] 2. Notice and Hearing
(6)
A party must prove that it has been affected or aggrieved by an administrative agency in order to entitle it to a review by an appellate administrative body or another administrative body.
(3) Administrative Res Judicata

The doctrines of forum shopping, litis pendentia and res judicata also apply to administrative agencies. When it applies The doctrine of res judicata applies only to judicial or quasi-judicial proceedings and not to the exercise of purely administrative functions. Administrative proceedings are non-litigious and summary in nature; hence, res judicata does not apply. [Nasipit Lumber Co. vs NLRC (1989)] Requisites (1) The former judgment must be final; (2) It must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) It must be a judgment on the merits; and (4) There must be identity of parties, subject matter and cause of action [Ipekdijan Merchandising vs CTA (1963), Firestone Ceramics vs CA (1999), DBP vs CA (2001)] Effect Decisions and orders of administrative bodies rendered pursuant to their quasi-judicial authority have, upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata, which forbids the reopening of matters
When required: (1) When the law specifically requires it. (2) When it affects a persons status and liberty. When not required: (1) Urgent reasons. (2) Discretion is exercised by an officer vested with it upon an undisputed fact. (3) If it involves the exercise of discretion and there is no grave abuse. (4) When rules to govern future conduct of persons or enterprises, unless law provides otherwise. (5) In the valid exercise of police power.
(2) Administrative Appeal and Review

Different kinds of administrative appeal and review: (De Leon) (1) That which inheres in the relation of administrative superior to administrative
ADMINISTRATIVE LAW
once judicially authorities. determined by competent

withdrawal, limitation, amendment, modification or conditioning or a license. When are notice and hearing required in licensing? Only if it is a contested case. Otherwise, it can be dispensed with.(e.g. drivers licenses). No expiry date does not mean the license is perpetual. A license permit is a special privilege, a permission or authority to do what is within its terms. It is always revocable. [Gonzalo Sy Trading vs Central bank (1976)]
III. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

1. Ascertainment of Fact A statute may give to non-judicial officers: (1) the power to declare the existence of facts which call into operation the statutes provisions and (2) may grant them and their subordinate officers the power to ascertain and determine appropriate facts as a basis of procedure in the enforcement of laws. (3) Such functions are merely incidental to the exercise of power granted by law to clear navigable streams of unauthorized obstructions. They can be conferred upon executive officials provided the party affected is given the opportunity to be heard. [Lovina vs. Moreno(1963)] 2. Investigative powers Administrative agencies power to conduct investigations and hearings, and make findings and recommendations thereon is inherent in their functions as administrative agencies Findings of facts by administrative bodies which observed procedural safeguards (e.g. notice and hearing parties, and a full consideration of evidence) are accorded the greatest respect by courts 3. Licensing Function Sec. 17, 1987 Administrative Code. Licensing Procedure. (1) When the grant, renewal, denial or cancellation of a license is required to be preceded by notice and hearing, the provisions concerning contested cases shall apply insofar as practicable. (2) Except in cases of willful violation of pertinent laws, rules and regulations or when public security, health, or safety requires otherwise, no license may be withdrawn, suspended, revoked or annulled without notice and hearing. Sec. 18, 1987 Administrative Code. Non-expiration of License. Where the licensee has made timely and sufficient application for the renewal of a license with reference to any activity of a continuing nature, the existing license shall not expire until the application shall have been finally determined by the agency. Sec. 2(10), 1987 Administrative Code. License includes the whole or any part of any agency permit, certificate, passport, clearance, approval, registration, charter, membership, statutory exemption or other form of permission, or regulation of the exercise of a right or privilege. Sec. 2(11), 1987 Administrative Code. Licensing includes agency process involving the grant, renewal, denial, revocation, suspension, annulment,
15 2
4. Fixing of rates, wages, prices Sec. 2(3), 1987 Administrative Code. Rate means any charge to the public for a service open to all and upon the same terms, including individual or joint rates, tolls, classification or schedules thereof, as well as communication, mileage, kilometrage and other special rates which shall be imposed by law of regulation to be observed and followed by any person. Sec. 9, 1987 Administrative Code. Public Participation. (2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least 2 weeks before the first hearing thereon. Generally, the power to fix rates is a quasilegislative function. However, it becomes judicial when the rate is applicable only to an individual. Can the power to fix rates be delegated to a common carrier or other public service? NO. The latter may propose new rates, but these will not be effective without the approval of the administrative agency. [KMU vs Garcia (1994)] What are considered in the fixing of rates? (1) the present valuation of all the property of a public utility, and (2) the fixed assets. The property is deemed taken and condemned by the public at the time of filing the petition, and the rate should go up and down with the physical valuation of the property. [Ynchausti vs Public Utility Commissioner (1922)]
D. Judicial Recourse and Review

I. Doctrine of Primary Administrative Jurisdiction II. Doctrine of Exhaustion of Administrative Remedies III. Doctrine of Finality of Administrative Action
I. Doctrine of Primary Administrative Jurisdiction

GENERAL RULE Courts will not intervene if the question to be resolved is one which requires the expertise of
ADMINISTRATIVE LAW
administrative agencies and the legislative intent on the matter is to have uniformity in the rulings. It can only occur where there is a concurrence of jurisdiction between the court and the administrative agency. It is a question of the court yielding to the agency because of the latters expertise, and does not amount to ouster of the court. [Texas & Pacific Railway v Abilene (1907)] It is the recent jurisprudential trend to apply the doctrine of primary jurisdiction in many cases that demand the special competence of administrative agencies. It may occur that the Court has jurisdiction to take cognizance of a particular case, which means that the matter involved is also judicial in character. However, if the determination of the case requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. [Industrial Enterprises v CA (1990)] Well-entrenched is the rule that courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence [(Quiambao vs CA (2005)] The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view. And, in such cases, the court cannot arrogate into itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. [Sherwill vs Sitio Sto Nino (2005)]
Requisites: (1) Administrative body and the regular court have concurrent and original jurisdiction (2) Question to be resolved requires expertise of administrative agency (3) Legislative intent on the matter is to have uniformity in rulings (4) Administrative agency is performing a quasijudicial or adjudicatory function (not rulemaking or quasi-legislative function [Smart vs NTC (2003)] Rationale: It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, would decide the same correctly, or correct any previous error committed in its forum [Caballes v Sison (2004)] When the Doctrine is Inapplicable: (1) If the agency has exclusive jurisdiction (2) When the issue is not within the competence of the administrative body to act on. (3) When the issue involved is clearly a factual question that does not require specialized skills and knowledge for resolution to justify the exercise of primary jurisdiction. Effect The case is not dismissed, but merely suspended until after the matters within the competence of the administrative agency are threshed out and determined. [Vidad vs RTC (1993)]
15 3
II. Doctrine of Exhaustion of Administrative Remedies

GENERAL RULE Where the law has delineated the procedure by which administrative appeal or remedy could be effected, the same should be followed before recourse to judicial action can be initiated. [Pascual vs Provincial Board (1959)] Requisites: (1) The administrative agency is performing a quasijudicial function. (2) Judicial review is available. (3) The court acts in its appellate jurisdiction. Rationale: (1) Legal reason: The law prescribes a procedure. (2) Practical reason: To give the agency a chance to correct its own errors [and prevent unnecessary and premature resort to the courts (3) Reasons of comity: Expedience, courtesy, convenience. EXCEPTIONS to the Doctrine of Exhaustion of Remedies: (1) Purely legal questions. [Castro vs Secretary (2001)] (2) Steps to be taken are merely matters of form. [Pascual vs Provincial Board (1959)]
Rationale: In this era of clogged docket courts, the need for specialized administrative boards with the special knowledge and capability to hear and determine promptly disputes on technical matters has become well nigh indispensable. Between the power lodged in an administrative body and a court, the unmistakable trend has been to refer it to the former. [GMA vs ABS CBN (2005)]
ADMINISTRATIVE LAW
(3) Administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy. [Pascual vs Provincial Board (1959)] (4) Validity and urgency of judicial action or intervention. [Paat vs CA (1997)] (5) No other plain, speedy, adequate remedy in the ordinary course of the law. [Paat v CA (1997)t; Information Technology Foundn v COMELEC (2004)] (6) Resort to exhaustion will only be oppressive and patently unreasonable. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] (7) Where the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings. [Corpuz vs Cuaderno (1962)] (8) Application of the doctrine will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action. [Paat vs CA (1997); Cipriano vs Marcelino (1972)] (9) When it involves the rule-making or quasilegislative functions of an administrative agency. [Smart vs NTC (2003)] (10) Administrative agency is in estoppel. [Republic vs Sandiganbayan (1996)] (11) Doctrine of qualified political agency (12) Subject of controversy is private land in land case proceedings. [Paat vs CA (1997)] (13) Blatant violation of due process. [Paat vs CA (1997); Pagara vs CA] (14) Where there is unreasonable delay or official inaction. [Republic vs Sandiganbayan (1996)] (15) Administrative action is patently illegal amounting to lack or excess of jurisdiction. [Paat vs CA (1997)] (16) Resort to administrative remedy will amount to a nullification of a claim. [DAR vs Apex Investment (2003); Paat vs CA (1997)] (17) No administrative review provided for by law. [Estrada vs CA (2004)] (18) Issue of non-exhaustion of administrative remedies rendered moot. [Estrada vs CA (2004)] (19) In quo warranto proceedings. [Corpus vs Cuaderno (1962)] (20) Law expressly provides for a different review procedure. [Samahang Magbubukid vs CA (1999)] Effect of Remedies: Failure to Exhaust Administrative

It does not affect jurisdiction of the court. The only effect of non-compliance is it that will deprive complainant of a cause of action, which is a ground for a motion to dismiss. But if not invoked at the proper time, this ground is deemed waived. [Republic vs Sandiganbayan (1996)]
15 4
III. Doctrine of Finality of Administrative Action

No resort to the courts will be allowed unless the administrative action has been completed and there is nothing left to be done in the administrative structure. The Doctrine of Finality of Administrative Action is a broader doctrine which encompasses the Doctrine of Exhaustion of Administrative Remedies. It is a prerequisite for judicial review.
2012
Election Law
BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor
POLITICAL
LAW
COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages
ELECTION LAW
Election Law
POLITICAL LAW A. Suffrage B. Qualification and Disqualification of Voters C. Registration of Voters D. Inclusion and Exclusion Proceedings E. Political Parties F. Candidacy G. Campaign H. Board of Canvassers I. Remedies and Jurisdiction in Election Law J. Prosecution of Election Offenses
The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed. R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Note: Section 2 of Art. XVII Constitution is limited to proposals to AMEND not to REVISE the Constitution. [Santiago v. COMELEC (1997)] Recall: the termination of official relationship of a local elective official for loss of confidence prior to the expiration of his term through the will of the electorate.
15 6
A. Suffrage
The right to vote in the election of officers chosen by the people and in determination of questions submitted to the people.
II. Election Period

Unless otherwise fixed by the COMELEC in special cases, the election period shall commence 90 days before the day of the election and shall end 30 days thereafter. [Art. IX-C, Sec. 9, Const.]
I. Scope
Election: the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government.
B. Qualification and Disqualification of Voters

I. Qualifications II. Overseas Absentee Voter
I. Qualifications
[Art. V, Sec. 1, 1987 Const.] Citizenship: Filipino citizen by birth or naturalization Age: at least 18 at the time of the election Residency: (3) Resident of the Philippines for at least 1 year and (4) Resident of the place wherein they propose to vote for at least 6 months immediately preceding the election Note: Any person who temporarily resides in another city, municipality or country solely by reason of his: (1) employment in private or public service (2) educational activities (3) work in the military or naval reservations within the Philippines (4) service in the AFP, PNP or (5) confinement or detention in government institutions in accordance with law shall not be deemed to have lost his original residence [Sec. 9, R.A. 8189, Voters Registration Act of 1996] It is not necessary that a person should have a house in order to establish his residence or domicile in a municipality. It is enough that he should live there, provided that his stay is accompanied by his intention to reside therein permanently. [Marcos v. COMELEC (1995)] Not otherwise disqualified by law: These are the 3 grounds for disqualification to register as a voter under Sec. 11, R.A. 8189, Voters Registration Act of 1996:
Kinds
Regular: one provided by law for the election of officers either nation-wide or in certain subdivisions thereof, after the expiration of the full term of the former officers. Special: one held to fill a vacancy in office before the expiration of the full term for which the incumbent was elected. Plebiscite: election at which any proposed amendment to, or revision of, the Constitution is submitted to the people for their ratification. Referendum: submission of a law pass by the national or local legislative body to the registered voters at an election called for the purpose for their ratification or rejection. Initiative: the power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. [Sec. 3a, R.A. 6735, The Initiative and Referendum Act] 3 systems of initiative: (1) Initiative on the Constitution: petition proposing amendments to the Constitution. (2) Initiative on statutes: petition proposing to enact a national legislation. (3) Initiative on local legislation: petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance.
ELECTION LAW
(1) Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty) shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence. (2) Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law) shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence (3) Insane or incompetent persons as declared by competent authority Registered voter: In order that a qualified elector may vote in any election, plebiscite or referendum, he must be registered in the Permanent List of Voters for the city or municipality in which he resides. [Sec. 115, B.P. 881, Omnibus Election Code] Note: No literacy, property or other substantive requirement shall be imposed on the exercise of suffrage

Effect of failure to return: cause for the removal of his/her name from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. (5) Previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign eservice establishments concerned. [Sec. 5, R.A. 9189]
15 7
C. Registration of Voters
I. Definition II. System of Continuing Registration of Voters III. Illiterate or disabled voters IV. Election Registration Board V. Change of residence or address VI. Challenges to right to register VII. Deactivation of Registration VIII. Reactivation of Registration IX. Certified List of Voters X. Annulment of Book of Voters XI. Overseas Absentee Voter
I. Definition
Act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board. [Sec. 3a, R.A. 8189]
II. Overseas Absentee Voter

1. Qualifications (1) All Filipino citizens abroad (2) Not otherwise disqualified by law (3) At least 18 years of age on the day of elections [Sec. 3f, R.A. 9189] 2. Disqualifications (1) have lost their Filipino citizenship in accordance with Philippine laws (2) have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country (3) have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the RPC (4) immigrant or a permanent resident who is recognized as such in the host country unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that: (a) he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of his/her registration and (b) he/she has not applied for citizenship in another country
II. System of Continuing Registration of Voters

The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. Period of registration: No registration shall be conducted within (1) 120 days before a regular election (2) 90 days before a special election [Sec. 8, R.A. 8189] PALATINO VS COMELEC G.R. No. 189868, December 15. 2009 Facts: COMELEC Resolution 8585 set the deadline for voter registration to 31 October 2009. Petitioners asked the SC to declare the resolution null and void, and to require COMELEC to extend the voter registration until 9 January 2010, the day before the 120-day period prior to the 10 May 2010 regular elections. COMELEC argued that it is authorize under the law to fix other dates for pre-election acts which include voter registration and in Akbayan-Youth vs. COMELEC, the SC denied a similar prayer for extension of deadline for voter registration for the 14 May 2001 elections.
ELECTION LAW
Issue: WON COMELEC Resolution 8585 should be declared void. Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself has determined that the period of 120 days before a regular election and 90 days before a special election is enough time for the COMELEC to make ALL the necessary preparations with respect to the coming elections. COMELEC is granted the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. There is no ground to hold that the mandate of continuing voter registration cannot be reasonably held within the period provided by Sec. 8 of R.A. 8189. The case is different from Akbayan-Youth vs. COMELEC, wherein the petitioners filed their petition with the Court and sought the conduct of a two-day registration all within the 120-day prohibitive period. In this case, both the dates of filing of the petition and the extension sought are prior to the 120-day prohibitive period.

Change of residence to another city or municipality the registered voter may apply with the Election Officer of his new residence for the transfer of his registration records. [Sec. 12, R.A. 8189] Change of address in the same municipality or city voter shall immediately notify the Election Officer in writing. [Sec. 13, R.A. 8189]
15 8
VI. Challenges to right to register

Who may challenge application for registration: Any voter, candidate or representative of a registered political party Form: (1) (2) (3) (4) In writing State the grounds therefor Under oath and Attached to the application, together with the proof of notice of hearing to the challenger and the applicant
III. Illiterate or disabled voters

Illiterate person - may register with the assistance of the Election Officer or any member of an accredited citizens arms Physically disabled person application for registration may be prepared by: (1) any relative within the 4th civil degree of consanguinity or affinity or (2) by the Election Officer or (3) any member of an accredited citizens arm [Sec. 14, R.A. 8189] R.A. 9369 The Poll Automation Law now defines a disabled voter as a person with impaired capacity to use the Automated Election System (AES) (Sec. 2, Par. 11)
When: must be filed not later than the 2nd Monday of the month in which the same is scheduled to be heard or processed by the ERB [Sec. 18, R.A. 8189]
VII. Deactivation of Registration

(1) The board shall remove the registration records of the following persons from the corresponding precinct book of voters and place the same in the inactive file: (2) Sentenced by final judgment to suffer imprisonment for not less than 1 year (unless granted a plenary pardon or an amnesty) (3) shall automatically reacquire right to vote upon the expiration of 5 years after the service of sentence as certified by clerks of courts (4) Adjudged by final judgment for having committed any crime involving disloyalty to the duly constituted government (e.g. rebellion, sedition, violation of the firearms law) or any crime against national security (unless restored to full civil and political rights in accordance with law) shall automatically reacquire the right to vote upon the expiration of 5 years after the service of sentence (5) Insane or incompetent persons as declared by competent authority (6) Did not vote in the 2 successive preceding regular elections (excluding SK elections) (7) Registration has been ordered excluded by the Court and (8) Lost his Filipino citizenship. [Sec. 27, R.A. 8189]
IV. Election Registration Board

Composition: (1) Chairman: Election Officer If disqualified, COMELEC shall designate an acting Election Officer (2) Members: (a) Public school official most senior in rank (b) Local civil registrar, or in his absence, the city or municipal treasurer. If neither are available, any other appointive civil service official from the same locality as designated by the COMELEC. Disqualification: relation to each other or to any incumbent city or municipal elective official within the 4th civil degree of consanguinity or affinity. [Sec. 15, R.A. 8189]
VIII. Reactivation of Registration

Any voter whose registration has been deactivated may file with the Election Officer a sworn
V. Change of residence or address
ELECTION LAW
application for reactivation of his registration in the form of an affidavit stating that the grounds for the deactivation no longer exist. When: Any time not later than 120 days before a regular election and 90 days before a special election. [Sec. 28, R.A. 8189]

Grounds for cancellation/amendment of entries therein: (1) When the overseas absentee voter files a letter under oath addressed to the Comelec that he/she wishes to be removed from the Registry of Overseas Absentee Voters, or that his/her name be transferred to the regular registry of voters. (2) When an overseas absentee voters name was ordered removed by the Comelec from the Registry of Overseas Absentee Voters for his/her failure to exercise his/her right to vote under R.A. 9189 for 2 consecutive national elections. [Sec. 9, R.A. 9189]
15 9
IX. Certified List of Voters

The ERB shall prepare and post a certified list of voters 90 before a regular election and 60 days before a special election. [Sec. 30, R.A. 8189]
X. Annulment of Book of Voters

The COMELEC shall, upon verified petition of any voter or election officer or duly registered political party, and after notice and hearing, annul any book of voters that is: (1) not prepared in accordance with R.A. 8189 or the Voters Registration Act of 1996 (2) prepared through fraud, bribery, forgery, impersonation, intimidation, force, or any similar irregularity (3) contains data that are statistically improbable No order, ruling or decision annulling a book of voters shall be executed within 90 days before an election. [Sec. 39, R.A. 8189]
D. Inclusion and Exclusion Proceedings

Exclusion Proceedings Jurisdiction in inclusion and exclusion case: The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. [Sec. 33, R.A. 8189] Appeal: Decisions of the MTC or MeTC may be appealed by the aggrieved party to the RTC within 5 days from receipt of notice thereof. No motion for reconsideration shall be entertained. [Sec. 33, R.A. 8189] Petition for Inclusion of Voters in the List: When: any time except 105 days prior to a regular election or 75 days prior to a special election. Who may file: (1) One whose application for registration has been disapproved by the Board of Election Inspectors or (2) One whose name has been stricken out from the list [Sec. 34, R.A. 8189] Petition for Exclusion of Voters in the List: When: any time except 100 days prior to a regular election or 65 days prior to a special election. Who may file: (1) Any registered voter; (2) Any representative of a political party; (3) the Election Officer Overseas Absentee Voter Petition for Inclusion of Voters in the List: When: within 5 days from receipt of the notice of disapproval Who may file: applicant or his authorized representative [Sec. 6.7, R.A. 9189] Petition for Exclusion:
XI. Overseas Absentee Voter

a. Definitions
Absentee Voting: process by which qualified citizens of the Philippines abroad exercise their right to vote. [Sec. 3a, R.A. 9189, The Overseas Absentee Voting Act] Overseas Absentee Voter: citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. [Sec. 3f, R.A. 9189] b. Coverage Elections for president, vice-president, senators and party-list representatives [Sec. 3f, R.A. 9189] c. Personal Overseas Absentee Registration Registration as an overseas absentee voter shall be done in person. [Sec.5, R.A. 9189] d. National Registry of Overseas Absentee Voters Definition: the consolidated list prepared, approved and maintained by the COMELEC, of overseas absentee voters whose applications for registration as absentee voters, including those registered voters who have applied to be certified as absentee voters, have been approved by the Election Registered Board. [Sec. 3e, R.A. 9189]
ELECTION LAW
When: any time not later than 210 days before the day of the elections Who may file: any interested person [Sec. 6.7, R.A. 9189]
Coalition: an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. [Sec. 3, R.A. 7941, Party-List System Act]
16 0
E. Political Parties
I. Party System II. Definitions III. Purpose IV. Procedure for Registration V. Who May Not be Registered VI. Grounds for refusal and/or cancellation of registration VII. Parameters in Allocation of Seats for PartyList Representatives VIII. Effect of Change of Affiliation
III. Purpose
To enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. [Sec. 2, R.A. 7941]
I. Party System
A free and open party system shall be allowed to evolve according to the free choice of the people. [Art. IX-C, Sec. 6, Const.] No votes cast in favor of a political party, organization, coalition shall be valid, except for those registered under the party-list system. [Art. IX-C, Sec. 7, Const.]
IV. Procedure for Registration

(1) File with the COMELEC not later than 90 days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require (2) COMELEC shall publish the petition in at least 2 national newspapers of general circulation (3) COMELEC shall, after due notice and hearing, resolve the petition within 15 days from the date it was submitted for decision but in no case not later than 60 days before election [Sec. 5, R.A. 7941]
II. Definitions
Party-List System: Mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions registered with the COMELEC. Political party: An organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates certain of its leaders and members as candidates for public office. 3 kinds of Parties: (1) National party - constituency is spread over the geographical territory of at least a majority of the regions. (2) Regional party - constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (3) Sectoral party organized group of citizens belonging to any of the following sectors: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals whose principal advocacy pertains to the special interests and concerns of their sector. Sectoral organization: group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns.
V. Who May Not be Registered

(1) Religious denominations and sects (2) Those which seek to achieve their goals through violence or unlawful means (3) Those which refuse to uphold and adhere to the Constitution (4) Those supported by foreign governments [Art. IX-C, Sec. 2 (5), Constitution]
VI. Grounds for refusal and/or cancellation of registration

(1) The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (2) Religious sect or denomination, organization or association, organized for religious purposes (3) Advocates violence or unlawful means to seek its goal
ELECTION LAW
(4) Foreign party or organization (5) Receives support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes (6) Violates or fails to comply with laws, rules or regulations relating to elections (7) Declares untruthful statements in its petition (8) Ceased to exist for at least 1 year (9) Fails to participate in the last 2 preceding elections or (10) Fails to obtain at least 2% of the votes cast under the party-list system in the 2 preceding elections for the constituency in which it has registered [Sec. 6, R.A. 7941]

There are 2 steps in the second round of seat allocation: 1) The percentage of votes garnered by each partylist candidate is multiplied by the remaining available seats. The whole integer of the product corresponds to a partys share in the remaining available seats Formula for remaining available seats = No. of seats available to x Guaranteed seats party-list representatives of the twopercenters Formula for percentage of votes garnered by each party-list candidate = No. of votes garnered by Total no. of each party votes cast for party-list candidates
16 1
VII. Parameters in Allocation of Seats for Party-List Representatives

20% allocation the combined number of all partylist congressmen shall not exceed 20% of the total membership of the House of Representatives, including those elected under the party-list. Number available to party-list representatives actually obtained, is entitled to a maximum of 3 seats; one qualifying and of seats available to legislative districts .80 x 20 = Number of seats available to party-list representatives
2) Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed.
VIII. Effect of Change of Affiliation

Any elected party-list representative who changes his political party or sectoral affiliation: during his term of office shall forfeit his seat within 6 months before an election shall not be eligible for nomination as party-list representative under his new party or organization [Sec. 15, R.A. 7941]
2% threshold only those parties garnering a minimum of 2% of the total votes cast for the partylist system shall be entitled to one guaranteed seat each. Proportional representation the additional seats shall be computed in proportion to their total number of votes. 3-seat limit each party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats; one qualifying and 2 additional seats. BANAT VS. COMELEC GR NO. 179271, July 8. 2009 Held: In computing the allocation of additional seats, the continued operation of the 2% threshold for the distribution of the additional seats as found in the second clause of Sec. 11(b) of R.A. 7941 which provides that those garnering more than 2% of the votes shall be entitled to additional seats in proportion to their total number of votes is unconstitutional. The 2% threshold frustrates the attainment of the permissive ceiling that 20% of the members of the HR shall consist of party-list representatives.
IX. Nomination of Party-List Representative

Each registered party, organization or coalition shall submit to the COMELEC not later 45 days before the election a list of at least 5 names from which partylist representatives shall be chosen in case it obtains the required number of votes. A person may be nominated: (1) in 1 list only (2) if he/she has given their consent in writing (3) is not a candidate for any elective office or (4) has not lost his bid for an elective office in the immediately preceding election No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except where the nominee: (1) dies (2) withdraws in writing his nomination or (3) becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list Incumbent sectoral representatives in the HR who are nominated in the party-list system shall not be considered resigned. [Sec. 8, R.A. 7941]
ELECTION LAW

(Sec. 86) (12) Coerced, intimidated, compelled, or influenced any of his subordinates, members, or employees to aid, campaign or vote for or against any candidate or aspirant for the nomination or selection of candidates (Sec. 261.d) (13) Threatened, intimidated, caused, inflicted or produced any violence, injury, punishment, damage, loss or disadvantage upon any person or of the immediate members of his family, his honor or property, or used fraud to compel, induce or prevent the registration of any voter, or the participation in any campaign, or the casting of any vote, or any promise of such registration, campaign, vote, or omission therefrom (Sec. 261.e) (14) Unlawful electioneering (Sec. 261.k) (15) Violated the prohibition against release, disbursement or expenditure of public funds 45 days before a regular election or 30 days before a special election (Sec. 261.v) (16) Solicited votes or undertook propaganda on election day for or against any candidate or any political party within the polling place or within a 30m radius (Sec. 261.cc.6) Under Section 40 of the LGC (1) Sentenced by final judgment for an offense punishable by at least 1 year imprisonment within 2 years after serving sentence (2) Removed from office as a result of an administrative case (3) Convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines (4) Dual citizenship Dual citizenship as a disqualification must refer to citizens with dual allegiance. [Mercado v. Manzano, (1999)] Under R.A. 9225 Citizenship Retention and Re-acquisition Act of 2003, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizens foreign citizenship. Dual citizenship is not a ground for disqualification from running for elective position. Like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to (1) file his certificate of candidacy and (2) swear to the Oath of Allegiance contained therein. [Cordora vs. COMELEC, (February 2009)] With respect to a person with dual allegiance, the Court held that candidates oath of allegiance to the Republic of the Philippines and his Certificate of Candidacy do not substantially comply with the
F. Candidacy
I. Qualifications of Candidates II. Filing of Certificates of Candidacy
I. Qualifications of Candidates
1. Candidate, Definition
16 2
Any person who files his certificate of candidacy within prescribed period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. [Sec. 15, R.A. 9369, Poll Automation Law] Unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. [Sec. 15, R.A. 9369] Any registered national, regional, or sectoral party, organization or coalition thereof that has filed a manifestation to participate under the party-list system which has not withdrawn or which has not been disqualified before the start of the campaign period. [Comelec Res. 8758, Feb. 4, 2010] 2. Qualifications Qualifications prescribed by law are continuing requirements and must be possessed for the duration of the officer's active tenure [Frivaldo v. COMELEC (1989); Labo v. COMELEC (1989)]. 3. Disqualifications
Under the Omnibus Election Code (1) Declared incompetent or insane by competent authority (Sec. 12) (2) Permanent resident of or an immigrant to a foreign country unless he has waived such status (Sec. 68) (3) Sentenced by final judgment for: (a) Subversion, insurrection, rebellion (b) Any offense for which he has been sentenced to a penalty of more than 18 months imprisonment (c) A crime involving moral turpitude (Sec. 12) (4) Given money or other material consideration to influence, induce or corrupt voters or public officials performing electoral functions (Sec. 68) (5) Committed acts of terrorism to enhance his candidacy (Sec. 68) (6) Spent in his election campaign an amount in excess of that allowed (Sec. 68) (7) Solicited, received or made prohibited contributions (Sec. 68) (8) Engaged in election campaign or partisan political activity outside the campaign period and not pursuant to a political party nomination (Sec. 80) (9) Removed, destroyed, defaced lawful election propaganda (Sec. 83) (10) Engaged in prohibited forms of election propaganda (Sec. 85) (11) Violated election rules and regulations on election propaganda through mass media
ELECTION LAW
requirement of a personal and sworn renunciation of foreign citizenship. Section 5(2) of R.A. No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. [Jacot vs. Dal, (November 2008)] (5) Fugitive from justice in criminal and nonpolitical cases here and abroad (6) Insane or feeble-minded

Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. [Sec. 4, Comelec Resolution No. 8678 Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections] NOTE: Sec. 67 B.P. 811 which deemed elective officials automatically resigned from office upon filing of their certificate of candidacy was repealed by Sec. 14 R.A 9006, Fair Election Act. QUINTO VS COMELEC (MR Ruling) GR 189698, February 22. 2010 Held: The SC reversed its earlier ruling (1 Dec. 2009) and upheld the constitutionality of 3 provisions in election laws Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881 and Sec. 4(a) COMELEC Resolution 8678 - that deemed appointive officials automatically resigned once they filed their certificates of candidacy. Ratio: By repealing Section 67 but retaining Section 66 of B.P. 881, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. It is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of R.A. 9006 is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.
16 3
II. Filing of Certificates of Candidacy

No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. [Sec. 73, B.P. 881] The certificate of candidacy shall be filed by the candidate personally or by his duly authorized representative. When: any day from the commencement of the election period but not later than the day before the beginning of the campaign period. In cases of postponement or failure of election, no additional certificate of candidacy shall be accepted except in cases of substitution of candidates. [Sec. 75, B.P. 881] Filing of 2 certificates of candidacy: (1) No person shall be eligible for more than one office to be filled in the same election. (2) If he files a certificate of candidacy for more than one office he shall not be eligible for either. (3) Before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy, may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office/s [Sec. 73, B.P. 881]
(2) Substitution of Candidates

If after the last day for filing of the certificates of candidacy, an official candidate of a registered political party dies, withdraws or is disqualified for any cause: (1) He may be substituted by a candidate belonging to and nominated by the same political party. (2) No substitute shall be allowed for any independent candidate. (3) The substitute must file his certificate of candidacy not later than mid-day of the election day If the death, withdrawal or disqualification should happen between the day before the election and mid-day of the election day, certificate may be filed with: (1) any Board of Election Inspectors in the political subdivision where he is a candidate or (2) with the COMELEC if it is a national position [Sec. 77, B.P. 881] Duty of COMELEC [Sec. 76, B.P. 881] GENERAL RULE: The COMELEC shall have the
(1) Effect of Filing

Any person holding a public appointive office or position including active members of the AFP, and other officers and employees in GOCCs, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. [Sec. 66(1), B.P. 881]
ELECTION LAW
ministerial duty to receive and acknowledge receipt of the certificates of candidacy provided said certificates are: under oath and contain all the required data and in the form prescribed by the Commission. EXCEPTION: COMELEC may go beyond the face of the certificate of candidacy (1) Nuisance candidates (2) Petition to deny due course or to cancel a certificate of candidacy The COMELEC has no discretion to give or not to give due course to a certificate of candidacy filed in due form. While the COMELEC may look into patent defects in the certificate, it may not go into matters not appearing on their face. [Abcede v. Imperial, (1958)]
SALIC MARUHOM VS COMELEC GR NO. 179430, July 27. 2009 Held: The false representation must pertain to a material fact that affects the right of the candidate to run for the election for which he filed his COC. Such material fact refers to a candidates eligibility or qualification for elective office like citizenship, residence or status as a registered voter. Aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render a candidate ineligible. In other words, it must be made with the intention to deceive the electorate as to the would-be candidates qualifications for public office.
16 4
(5) Effect of Disqualification

Procedure (1) Who may file: Any citizen of voting age, or any duly registered political party, organization or coalition of political parties (2) Where: Law Department of the COMELEC (3) When: Any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation Effect (asked in 1990, 1992, 1996, 2003) Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected, does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. Any candidate who has been declared by final judgment to be disqualified (1) shall not be voted for and (2) the votes cast for him shall not be counted (3) If a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election The Court or COMELEC shall continue with the trial and hearing of the action, inquiry, or protest and Upon motion of the complainant or any intervenor, may during the pendency thereof, order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. [Sec. 6, R.A. 6646, The Electoral Reforms Law of 1987] Where a similar complaint/petition is filed: (1) before the election and proclamation of the respondent and the case is not resolved before the election - the trial and hearing of the case shall continue and referred to the Law Department for preliminary investigation
(3) Nuisance Candidates

Petition to declare a duly registered candidate as a nuisance candidate [Sec. 5, R.A. 6646, The Electoral Reforms Law of 1987] Who may file: any registered candidate for the same office When: within 5 days from the last day for the filing of certificates of candidacy How: personally or through representative with the COMELEC duly authorized
Grounds: certificate of candidacy has been filed (1) To put the election process in mockery or disrepute or (2) To cause confusion among the voters by the similarity of the names of the registered candidates or (3) Clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate [Sec. 69, B.P. 881] Proceeding: summary in nature
(4) Petition to Deny or Certificates of Candidacy

Who may file: Any person
Cancel
When: Any time not later than 25 days from the time of the filing of the certificate of candidacy Exclusive ground: any material representation contained in the certificate of candidacy is false. Decision: Shall be decided, after due notice and hearing, not later than 15 days before the election. [Sec. 78, B.P. 881]
ELECTION LAW
(2) after the election and before the proclamation of the respondent - the trial and hearing of the case shall be suspended and referred to the Law Department for preliminary investigation NOTE: In either case, if the evidence of guilt is strong, the COMELEC may order the suspension of the proclamation of respondent, and if proclaimed, to suspend the effects of proclamation. [Sec. 4, Resolution No. 8678]

Issue: WON Peneras disqualification for engaging in premature campaigning should be reconsidered. Held: At the time the supposed premature campaigning took place, Penera was not officially a candidate albeit she already filed her certificate of candidacy. Under Section 15 of R.A. 9369, a person who files his certificate of candidacy is considered a candidate only at the start of the campaign period, and unlawful acts applicable to such candidate take effect only at the start of such campaign period. Thus, a candidate is liable for an election offense only for acts done during the campaign period, not before. Before the start of the campaign period, such election offenses cannot be committed and any partisan political activity is lawful.
16 5
(6) Withdrawal of Candidates

A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. Effect of filing or withdrawal of a certificate of candidacy: shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred.
1. Election Campaign or Partisan Political Activity

An act designed to promote the election or defeat of a particular candidate or candidates to a public office. [Sec. 79, B.P. 881] Exclusions: (1) Acts performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties. (2) Public expressions of opinions or discussions of probable issues in a forthcoming election or on attributes or criticisms of probable candidates proposed to be nominated in a forthcoming political party convention. [Sec. 79, B.P. 881] Persons Prohibited from Campaigning: (1) Members of the board of election inspections [Sec. 173, B.P. 881] (2) Civil service officers or employees [Art. IXB, Sec. 2 (4), Const.] (3) Members of the military [Art. XVI, Sec. 5 (3), Const.] (4) Foreigners, whether juridical or natural persons.
G. Campaign
I. Premature Campaigning II. Prohibited Contributions
I. Premature Campaigning
GENERAL RULE: Any election campaign or partisan political activity for or against any candidate outside of the campaign period is prohibited and shall be considered as an election offense. [Sec. 80, B.P. 881] EXCEPTION: Political parties may hold political conventions to nominate their official candidates within 30 days before the start of the period for filing a certificate of candidacy. [Sec. 15, R.A. 9369, Poll Automation Law] Prohibited campaigning days: It is unlawful for any person to engage in an election campaign or partisan political activity on: (1) Maundy Thursday (2) Good Friday (3) eve of Election Day and (4) Election Day [Sec. 3, COMELEC Resolution 8758] PENERA VS COMELEC G.R. No. 181613, November 25. 2009 Facts: On 11 September 2009, the SC affirmed the COMELECs decision to disqualify Penera as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in election campaign outside the campaign period, in violation of Sec. 80 of B.P. 881. Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed premature campaigning, since under Sec. 15 of R.A. 9369 one is not officially a candidate until the start of the campaign period.
2. Campaign Period
For President, Vice-President and Senators - 90 days before the day of the election. For Members of the HR and elective provincial, city and municipal officials - 45 days before the day of the election. [Sec. 5, R.A. 7166]
3. Lawful Election Propaganda

(1) Pamphlets, leaflets, cards, decals, stickers, or other written or printed materials not larger than 8.5x14 inches (2) Handwritten or printed letters urging voters to vote for or against any political party or candidate (3) Cloth, paper or cardboard posters, framed or
ELECTION LAW
posted, not larger than 2x3 feet (4) Streamers not larger than 3x8 feet are allowed at a public meeting or rally or in announcing the holding of such. May be displayed 5 days before the meeting or rally and shall be removed within 24 hours after such (5) Paid advertisements in print or broadcast media Bear and be identified by the reasonably legible or audible words political advertisement paid for followed by the true and correct name and address of the candidate or party for whose benefit the election propaganda was printed or aired. [Sec. 4.1, R.A. 9006] If the broadcast is given free of charge by the radio or TV station, identified by the words "airtime for this broadcast was provided free of charge by" followed by the true and correct name and address of the broadcast entity. [Sec. 4.2, R.A. 9006] Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published, broadcast or exhibited without the written acceptance by said candidate or political party. Written acceptance must be attached to the advertising contract and submitted to the COMELEC within 5 days after its signing. [Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006] (6) All other forms of election propaganda not prohibited by the Omnibus Election Code or the Fair Election Act of 2001. [Sec. 3, R.A. 9006, The Fair Election Act]
Note: Sec. 85 Prohibited election propaganda of B.P. 881 was repealed by Sec. 14 R.A. 9006.
5. Equal Access to Media Time and Space

Print advertisements shall not exceed 1/4 page, in broad sheet and 1/2 page in tabloids thrice a week per newspaper, magazine or other publications. Bona fide candidates and registered political parties running for nationally elective office are entitled to not more than 120 mins of TV advertisement and 180 mins of radio advertisement whether by purchase or by donation. Bona fide candidates and registered political parties running for locally elective office are entitled to not more than 60 mins of TV advertisement and 90 mins of radio advertisement whether by purchase or by donation. Broadcast stations or entities are required to submit copies of their broadcast logs and certificates of performance to the COMELEC for the review and verification of the frequency, date, time and duration of advertisement broadcast for any candidate or political party. All mass media entities are required to furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political party or the candidacy of any person for public office within 5 days after its signing. No franchise or permit to operate a radio or TV station shall be granted or issued, suspended or cancelled during the election period. Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall: (1) be deemed resigned, if so required by their employer or (2) take a leave of absence from his/her work as such during the campaign period No movie, cinematograph or documentary shall be publicly exhibited in a theater, television station or any public forum during the campaign period which: (1) portrays the life or biography of a candidate (2) is portrayed by an actor or media personality who is himself a candidate. [Sec. 6, R.A. 9006]
16 6
4. Prohibited Acts
For any foreigner to: (1) Aid any candidate or political party, directly or indirectly (2) Take part or influence in any manner any election (3) Contribute or make any expenditure in connection with any election campaign or partisan political activity [Sec. 81, B.P. 881] For any person during the campaign period to: (1) Remove, destroy, obliterate or in any manner deface or tamper with lawful election propaganda (2) Prevent the distribution of lawful election propaganda [Sec. 83, B.P.881] For any candidate, political party, organization or any person to: (1) Give or accept, directly or indirectly, free of charge, transportation, food or drinks or things of value during the five hours before and after a public meeting, on the day preceding the election, and on the day of the election; (2) Give or contribute, directly or indirectly, money or things of value for such purpose (Sec. 89, B.P. 881)
6. Election Surveys
The measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period. Surveys affecting national candidates shall not be
ELECTION LAW
published 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election. Exit polls may only be taken subject to the following requirements: (1) Pollsters shall not conduct their surveys within 50m from the polling place, whether said survey is taken in a home, dwelling place and other places (2) Pollsters shall wear distinctive clothing (3) Pollsters shall inform the voters that they may refuse to answer and (4) The result of the exit polls may be announced after the closing of the polls on election day and must clearly identify the total number of respondents, and the places where they were taken. Said announcement shall state that the same is unofficial and does not represent a trend. [Sec. 5, R.A. 9006]

which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881]
2. Prohibited Contributions
(1) From Public or private financial institutions. Unless: (a) the financial institutions are legally in the business of lending money (b) the loan is made in accordance with laws and regulations AND (c) the loan is made in the ordinary course of business (2) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation (3) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works (4) Grantees of franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including GOCCs (5) Grantees, within 1 year prior to the date of the election, of loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including GOCCs (6) Educational institutions which have received grants of public funds amounting to no less than P100,000 (7) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines (8) Foreigners and foreign corporations, including foreign governments. [Sec. 95 and 96, B.P. 881]
16 7
7. Application for Rallies, Meetings and Other Political Activity

(a) All applications for permits must immediately be posted in a conspicuous place in the city or municipal building, and the receipt thereof acknowledged in writing. (b) Applications must be acted upon in writing by local authorities concerned within 3 days after their filing. If not acted upon within said period, deemed approved. (c) The only justifiable ground for denial of the application is when a prior written application by any candidate or political party for the same purpose has been approved. (d) Denial of any application for said permit is appealable to the provincial election supervisor or to the COMELEC whose decision shall be made within 48 hours and which shall be final and executory. [Sec. 87, B.P. 881]
3. Prohibited Fund-raising Activities

The following are prohibited if held for raising campaign funds or for the support of any candidate from the start of the election period up to and including election day: (1) Dances (2) Lotteries (3) Cockfights (4) Games (5) Boxing bouts (6) Bingo (7) Beauty contests (8) Entertainments, or cinematographic, theatrical or other performances For any person or organization, civic or religious, directly or indirectly, to solicit and/or accept from any candidate or from his campaign manager, agent or representative, or any person acting in their behalf, any gift, food, transportation, contribution or donation in cash or in kind from the start of the election period up to and including election day EXCEPT: normal and customary religious stipends, tithes, or collections on Sundays and/or other designated collection days [Sec.
II. Prohibited Contributions

1. Definitions
Contribution: gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute WON legally enforceable made for influencing the results of the elections excludes services rendered without compensation by individuals volunteering their time in behalf of a candidate or political party includes the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. [Sec. 94, B.P. 881] Expenditures: payment of money or anything of value or a contract, promise or agreement to make an expenditure for the purpose of influencing the results of the election includes the use of facilities personally owned by the candidate, the money value of the use of
ELECTION LAW
97, B.P. 881]
H. Board of Canvassers
I. Composition of Board of Canvassers II. Prohibitions on BOC III. Canvass by the BOC IV. Certificate of Canvass and Statement of Votes V. Proclamation
4. Limitations on Expenses
For Candidates (1) President and VP: P10 for every voter currently registered (2) Other candidates: P3 for every voter currently registered in the constituency where he filed his certificate of candidacy Candidates Without a Political Party: voter P5 for every
16 8
I. Composition of Board of Canvassers

[Sec. 20, R.A. 6646] Province Provincial election supervisor or lawyer in the COMELEC regional office City City election registrar or a lawyer of COMELEC; In cities with more than 1 election registrar, COMELEC shall designate City fiscal City superinten dent of schools Municipality Election registrar or COMELEC representa tive
Chairman
For Political Parties: P5 for every voter currently registered in the constituency or constituencies where it has official candidates [Sec. 13, R.A. 7166, Act Providing for Synchronized National and Local Elections and Electoral Reforms]
5. Statement of Contributions and Expenses

Every candidate and treasurer of the political party shall file: (1) in duplicate with the COMELEC (2) the full, true and itemized statement of all contributions and expenditures in connection with the election (3) within 30 days after the day of the election Effect of failure to file statement: No person elected to any public offices shall enter upon the duties of his office until he has filed the statement of contributions and expenditures The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statements
Vice Chairman Member
Provincial fiscal Provincial superinten dent of schools
6. Requisites of a Prohibited Donation

Who: By candidate, spouse, relative within 2nd civil degree of consanguinity or affinity, campaign manager, agent or representative; treasurers, agents or representatives of political party When: During campaign period, day before and day of the election Directly or indirectly: (1) donation, contribution or gift in cash or in kind (2) undertake or contribute to the construction or repair of roads, bridges, school buses, puericulture centers, medical clinics and hospitals, churches or chapels cement pavements, or any structure for public use or for the use of any religious or civic organization. Exceptions: (1) Normal and customary religious dues or contributions (2) Periodic payments for legitimate scholarships established and school contributions habitually made before the prohibited period [Sec. 104, B.P. 881]
Municipal treasurer Most senior district school supervisor or in his absence, a principal of the school district or elementary school
In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of any of the members, COMELEC may appoint the following as substitutes, in the order named: Chairman Province Ranking lawyer of the COMELEC -Provincial auditor -Registrar of Deeds -Clerk of Court nominated by the Executive Judge of the RTC; -Any other available appointive provincial official City Ranking lawyer of the COMELEC -City auditor or equivalent; -Registrar of Deeds; -Clerk of Court nominated by the Executive Judge of the RTC; -Any other available appointive city official Municipality Ranking lawyer of the COMELEC -Municipal Administrat or; -Municipal Assessor; -Clerk of Court nominated by the Executive Judge of the MTC; -Any other available appointive municipal
Vice Chairman
ELECTION LAW
Member Same as for ViceChairman Same as for ViceChairman official Same as for ViceChairman

(3) 30 copies shall be distributed in accordance to Sec. 21, R.A. 9369. National BOC for president and vice-president Composition: The Senate and the Representatives in joint public session. House of
II. Prohibitions on BOC

(1) Chairman and members shall not be related within the 4th civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any member of the said board. [Sec. 222, B.P. 881] (2) No member or substitute member shall be transferred, assigned or detailed outside of his official station, nor shall he leave said station without prior authority of the COMELEC during the period beginning election day until the proclamation of the winning candidates. [Sec. 223, B.P. 881] (3) No member shall feign illness to be substituted on election day until the proclamation of the winning candidates. Feigning of illness constitutes an election offense. [Sec. 224, B.P. 881]
16 9
Functions: (1) Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session. (2) Congress upon determination of the authenticity and the due execution thereof in the manner provided by law shall: (3) canvass all the results for president and vicepresident and (4) proclaim the winning candidates. [Sec. 22, R.A. 9369] National BOC for Representatives Senators and Party-List
III. Canvass by the BOC

Canvass - the process by which the results in the election returns are tallied and totalled. Certificates of canvass - official tabulations of votes accomplished by district, municipal, city and provincial canvassers based on the election returns, which are the results of the ballot count at the precinct level. The BOC shall canvass the votes by consolidating the electronically transmitted results or the results contained in the data storage devices used in the printing of the election returns. [Sec. 20, R.A. 9369]
Composition: The chairman and members of the COMELEC sitting en banc Function: It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives. [Sec. 23, R.A. 9369]
V. Proclamation
Proclamation shall be after the canvass of election returns, in the absence of a perfected appeal to the COMELEC, proclaim the candidates who obtained the highest number of votes cast in the province, city, municipality or barangay, on the basis of the certificates of canvass. Failure to comply with this duty constitutes an election offense. [Sec. 231, B.P. 881] When proclamation void: (1) When it is based on incomplete returns [Castromayor v. Comelec (1995)] or (2) When there is yet no complete canvass. [Jamil v. Comelec (1997)] (3) A void proclamation is no proclamation at all, and the proclaimed candidates assumption into office cannot deprive the COMELEC of its power to annul the proclamation. Partial proclamation: Notwithstanding pendency of any pre-proclamation controversy, COMELEC may summarily order proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. [Sec. 21, R.A. 7166] Election resulting in a tie: BOC, by resolution, upon 5 days notice to all tied candidates, shall hold a
IV. Certificate of Canvass and Statement of Votes

(1) Within one hour after the canvassing, the Chairman of the district or provincial BOC or the city BOC of those cities which comprise one or more legislative districts shall electronically transmit the certificates of canvass to: (a) COMELEC sitting as the National BOC for senators and party-list representatives and (b) Congress as the National BOC for the president and vice president, directed to the President of the Senate. [Sec. 20, R.A. 9369] (2) The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate. [Sec. 20, R.A. 9369]
ELECTION LAW
special public meeting at which the board shall proceed to the drawing of lots of tied candidates and shall proclaim as elected the candidates who may be favored by luck. [Sec. 240, B.P. 881] There is a tie when: (1) 2 or more candidates receive an equal and highest number of votes; or (2) 2 or more candidates are to be elected for the same position and 2 or more candidates received the same number of votes for the LAST PLACE in the number to be elected. Proclamation of a lone candidate: Upon the expiration of the deadline for the filing of certificates of candidacy in a special election called to fill a vacancy in an elective position other than for President and VP, when there is only 1 qualified candidate, he shall be proclaimed elected without holding the special election upon certification by the COMELEC that he is the only candidate for the office and is therefore deemed elected. [Sec. 2, R.A. 8295, Law on Proclamation of Solo Candidates]
POLITICAL LAW REVIEWER 1. What Constitutes an Election

Plurality of votes sufficient for: (1) a choice conditioned on the plurality of valid votes or (2) a valid constituency regardless of the actual number of votes cast.
17 0
2. Failure of Elections
Grounds: in any of such cases the failure or suspension of election must affect the result of the election (1) Election in any polling place has not been held on the date fixed due to force majeure, violence, terrorism, fraud, or other analogous causes. (2) Election in any polling place had been suspended before the hour fixed for the closing of the voting due to force majeure, violence, terrorism, fraud, or other analogous causes. (3) After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect due to force majeure, violence, terrorism, fraud or other analogous causes. [Sec. 6, B.P. 881] Causes for the declaration of failure of election may occur before or after the casting of votes or on the day of the election. [Sec. 4, R.A. 7166] The postponement, declaration of failure of election and the calling of special elections shall be decided by the COMELEC sitting en banc by a majority vote of its members. [Sec. 4, R.A. 7166] The COMELEC shall call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect: (1) upon a verified petition by any interested party and (2) after due notice and hearing [Sec. 6, B.P. 881] When: on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect BUT not later than 30 days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Sec. 6, B.P. 881]
I. Remedies and Jurisdiction in Election Law

I. Petition Not to Give Due Course to Certificate of Candidacy II. Petition to Declare Failure of Elections III. Pre-Proclamation Controversy IV. Election Protest V. Quo Warranto
I. Petition Not to Give Due Course to Certificate of Candidacy

Cancellation of Certificate of Candidacy
1. Grounds (1) False material representation in the certificate of candidacy; (2) If the certificate filed is a substitute Certificate of Candidacy, when it is not a proper case of substitution under Sec. 77 of BP 881.
2. Nature of Proceedings - Summary

3. Procedure
Who may file: any citizen of voting age, or a duly registered political party, organization, or coalition of political parties When filed: Within 5 days from the last day for the filing of certificates of candidacy Where filed: With the Law Department of the COMELEC
3. Declaration of Failure of Election

It is neither an election protest nor a preproclamation controversy. [Borja v. Comelec, (1998)] Jurisdiction: COMELEC, sitting en banc, may declare a failure of election by a majority vote of its members. Requisites: The following conditions must concur: (1) No voting has taken place in the precincts concerned on the date fixed by law, or even if
II. Petition to Declare Failure of Elections
ELECTION LAW
there was voting, the election nonetheless resulted in a failure to elect; and (2) The votes cast would affect the results of the election. Procedure: (1) Petitioner files verified petition with the Law Department of the COMELEC. (2) Unless a shorter period is deemed necessary by circumstances, within 24 hours, the Clerk of Court concerned serves notices to all interested parties, indicating therein the date of hearing, through the fastest means available. (3) Unless a shorter period is deemed necessary by the circumstances, within 2 days from receipt of the notice of hearing, any interested party may file an opposition with the Law Department of the COMELEC. (4) The COMELEC proceeds to hear the petition. The COMELEC may delegate the hearing of the case and the reception of evidence to any of its officials who are members of the Philippine Bar. (5) The COMELEC then decides whether to grant or deny the petition. This lies within the exclusive prerogative of the COMELEC. (a) (b) (c) (d)

Incompelte Contain material defects; Appear to be tampered with or falsified; Contain discrepancies in the same returns or in other authentic copies; (3) The election returns were: (a) Prepared under duress, threats, coercion, intimidation or (b) Obviously manufactured or not authentic (4) Substituted or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate(s). (6) Manifest errors in the Certificates of Canvass or Election Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]
17 1
5. Issues That Cannot Be Raised

(1) Appreciation of ballots, as this is performed by the BEI at the precinct level and is not part of the proceedings of the BOC [Sanchez v. Comelec, (1987)] (2) Technical examination of the signatures and thumb marks of voters [Matalam v. Comelec (1997)] (3) Prayer for re-opening of ballot boxes [Alfonso v. Comelec, (1997)] (4) Padding of the Registry List of Voters of a municipality, massive fraud and terrorism [Ututalum v. Comelec (1990)] (5) Challenges directed against the Board of Election Inspectors [Ututalum v. Comele (supra)] (6) Fraud, terrorism and other illegal electoral practices. These are properly within the office of election contests over which electoral tribunals have sole, exclusive jurisdiction. [Loong v. Comelec, (1992)]
III. Pre-Proclamation Controversy

(asked in 1987, 1988, 1996) Any question or matter pertaining to or affecting: (1) the proceedings of the board of canvassers, or (2) any matter raised under Sec. 233-236 of BP 881 (see below) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. [Sec. 241, BP 881]
1. Jurisdiction
COMELEC has exclusive jurisdiction over preproclamation cases. It may order, motu proprio or upon written petition, the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. [Sec. 242, BP 881]
6. Procedure
a. Questions involving the composition or proceedings of the board of canvassers, or correction of manifest errors Where: Either in the Board of Canvassers or directly with the COMELEC. [Sec. 17, R.A. 7166] When: (1) a petition involves the illegal composition or proceedings of the board, must be filed immediately when the board begins to act as such [Laodeno v. Comelec], or at the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or immediately at the point where the proceedings are or begin to be illegal. Otherwise, by participating in the proceedings, the petitioner is deemed to have acquiesced in the composition of the BOC. (2) If the petition is for correction, it must be filed not later than 5 days following the date of proclamation, and must implead all candidates who may be adversely affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of Procedure]
2. When Not Allowed

For the positions of President, VP, Senator, and Member of the House of Representatives [Sec. 15, R.A. 7166]
3. Nature of Proceedings
Heard summarily by the COMELEC after due notice and hearing. This is because canvass and proclamation should be delayed as little as possible.
4. Issues That May Be Raised

This enumeration is restrictive and exclusive: (1) Illegal composition or proceedings of the board of election canvassers; (2) Canvassed election returns are either:
ELECTION LAW
b. Matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns and certificates of canvass Where: Only with the Board of Canvassers When: At the time the questioned return is presented for inclusion in the canvass. Who: Any candidate, political party or coalition of political parties Note: Non-compliance with any of the steps above is fatal to the pre-proclamation petition.
IV. Election Protest

Election protest - is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. [Samad v. Comelec, (1993)] An election contest consists of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view: to dislodge the winning candidate from office. In an election protest, the protestee may be ousted and the protestant seated in the office vacated. GENERAL RULE: As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a preproclamation controversy, or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason is that once the competent tribunal has acquired jurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding. This procedure will prevent confusion and conflict of authority. Conformably, we have ruled in a number of cases that after a proclamation has been made, a pre-proclamation case before the COMELEC is no longer viable. [Samad v. Comelec, (1993)] EXCEPTIONS: The rule admits of exceptions, however, as where: (1) the board of canvassers was improperly constituted; (2) quo warranto was not the proper remedy; (3) what was filed was not really a petition for quo warranto or an election protest but a petition to annul a proclamation; (4) the filing of a quo warranto petition or an election protest was expressly made without prejudice to the pre-proclamation controversy or was made ad cautelam; and (5) the proclamation was null and void. [Samad v. Comelec, (1993)] Who may file: A candidate who has duly filed a certificate of candidacy and has been voted for. When: within ten days after the proclamation of the results of the election. Who has jurisdiction: (1) Comelec over all contests relating to the elections, returns and qualifications of all elective regional, provincial and city officials [Sec. 250. BP 881] (2) RTC - over contests involving municipal officials [Sec. 251. BP 881]
17 2
7. Effect of Filing of Pre-Proclamation Controversy

(1) The period to file an election contest shall be suspended during the pendency of the preproclamation contest in the COMELEC or the Supreme Court. (2) The right of the prevailing party in the preproclamation contest to the execution of COMELECs decision does not bar the losing party from filing an election contest. (3) Despite the pendency of a pre-proclamation contest, the COMELEC may order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.
8. Effect of Proclamation of Winning Candidate

GENERAL RULE: A pre-proclamation controversy shall no longer be viable after the proclamation and assumption into office by the candidate whose election is contested. The remedy is an election protest before the proper forum. EXCEPTIONS: The prevailing candidate may still be unseated even though he has been proclaimed and installed in office if: (1) The opponent is adjudged the true winner of the election by final judgment of court in an election contest; (2) The prevailing party is declared ineligible or disqualified by final judgment of a court in a quo warranto case; or (3) The incumbent is removed from office for cause.
9. Petition to Annul or Suspend Proclamation

The filing of the petition suspends the running of the period to file an election protest. [Alangdeo v. Comelec, (1989)] No law provides for a reglementary period within which to file a petition for the annulment of an election if there is as yet no proclamation. [Loong v. Comelec (supra)]
ELECTION LAW
(3) MeTC or MTC over election contests involving barangay officials [Sec. 252. BP 881] Effect of filing petition to annual or to suspend the proclamation. - The filing with the Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings. [Sec. 248. BP 881]

complainant may file the complaint with the fiscal or the Department of Justice, if warranted. [Sec. 265, B.P. 881]
I. Jurisdiction over Election Offenses

RTCs have exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws. [Sec. 268, B.P. 881]
17 3
V. Quo Warranto
A petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. [Samad v. Comelec, (1993)] In a quo warranto proceeding, the petitioner is not occupying the position in dispute. Moreover, under the Omnibus Election Code, quo warranto is proper only for the purpose of questioning the election of a candidate on the ground of disloyalty or ineligibility. [Samad v. Comelec, (1993)] It is a proceeding to unseat the ineligible person from office but not to install the protestant in his place. In this sense, it is strictly speaking, not a contest where the parties strive for supremacy. While the respondent may be unseated, the petitioner will not be seated. Who may file: Any voter When: within ten days after the proclamation of the results of the election. Who has jurisdiction: (1) Comelec over petitions for quo warranto involving regional, provincial and city officials [Sec. 253. BP 881] (2) RTC - over petitions for quo warranto involving municipal officials [Sec. 253. BP 881] (3) MeTC or MTC over petitions for quo warranto involving barangay officials [Sec. 253. BP 881]
II. Preferential Disposition of Election Offenses

(1) The investigating officer shall resolve the case within 5 days from submission. (2) The courts shall give preference to election cases over all other cases except petitions for writ of habeas corpus.
III. Election Offenses

1. Registration
(1) Failure of the Board of Election Inspectors to post the list of voters in each precinct. [Sec. 9, R.A. 7166]; (2) Change or alteration or transfer of a voter's precinct assignment in the permanent list of voters without the express written consent of the voter [Sec. 4, R.A. 8189]
2. Certificate of Candidacy
(1) Continued misrepresentation or holding out as a candidate of a disqualified candidate or one declared by final and executory judgment to be a nuisance candidate [Sec. 27f, R.A. 6646] (2) Knowingly inducing or abetting such misrepresentation of a disqualified or nuisance candidate [Sec. 27f, R.A. 6646]; (3) Coercing, bribing, threatening, harassing, intimidating, terrorizing, or actually causing, inflicting or producing violence, injury, punishment, torture, damage, loss or disadvantage to discourage any other person or persons from filing a certificate of candidacy in order to eliminate all other potential candidates from running in a special election [Sec. 5, R.A. 8295]
J. Prosecution of Election Offenses

I. Jurisdiction over Election Offenses II. Preferential Disposition of Election Offenses III. Election Offenses IV. Arrests in Connection with Election Campaign V. Prescription VI. Prohibited Acts under RA 9369 The COMELEC has the exclusive power to investigate and prosecute cases involving violations of election laws. [Sec. 2 (6), Art. IX-C, 1987 Const] However, it may validly delegate the power to the Provincial Prosecutor or to the Ombudsman. In the event that the COMELEC fails to act on any complaint within 4 months from its filing, the
3. Election Campaign
(1) Appointment or use of special policemen, special agents or the like during the campaign period [Sec. 261m, B.P. 881] (2) Use of armored land, water or aircraft during the campaign period [Sec. 261r, B.P. 881] (3) Unlawful electioneering [Sec. 261k, B.P. 881]
ELECTION LAW
(4) Acting as bodyguards or security in the case of policemen and provincial guards during the campaign period [Sec. 261t, B.P. 881] (5) Removal, destruction, obliteration, or tampering of lawful election propaganda, or preventing the distribution thereof [Sec. 83, B.P. 881 vis--vis Sec. 262, B.P. 881]

service within the election period without the prior approval of the COMELEC [Sec. 261h, B.P. 881] (3) Intervening of public officers and employees in the civil service in any partisan political activity [Sec. 261i, B.P. 881] (4) Use of public funds for an election campaign [Sec. 261o, B.P. 881] (5) Illegal release of prisoners before and after election [Sec. 261n, B.P. 881] (6) Release, disbursement or expenditure of public funds during the prohibited period [Sec. 261v, B.P. 881] (7) Construction of public works, etc. during the prohibited period [Sec. 261w, B.P. 881] (8) Suspension of elective local officials during the election period without prior approval of the COMELEC [Sec. 261x, B.P. 881]
17 4
4. Voting
(1) Vote-buying and vote-selling [Sec. 261a, B.P. 881] (2) Conspiracy to bribe voters [Sec. 261b, B.P. 881]: A disputable presumption of a conspiracy to bribe voters is created when there is proof that at least 1 voter in different precincts representing at least 20% of the total precincts in any municipality, city or province has been offered, promised or given money, valuable consideration or other expenditure by a candidate's relatives, leaders and/or sympathizers for the purpose of promoting the election of such candidate. [Sec. 28, R.A. 6646] (3) Coercion of subordinates to vote for or against any candidate [Sec. 261d, B.P. 881] (4) Dismissal of employees, laborers, or tenants for refusing or failing to vote for any candidate [Sec. 261d(2), B.P. 881] (5) Being a flying voter [Sec. 261z (2), B.P. 881]
8. Coercion, Intimidation, Violence

(1) Coercion of election officials and employees (2) Threats, intimidation, terrorism, use of fraudulent devices or other forms of coercion [Sec. 261e, B.P. 881] (3) Use of undue influence [Sec. 261j, B.P. 881] (4) Carrying deadly weapons within the prohibited area [Sec. 261p, B.P. 881] (5) Carrying firearms outside residence or place of business [Sec. 261q, B.P. 881] (6) Organization or maintenance of reaction forces, strike forces, or similar forces during the election period [Sec. 261u, B.P. 881]
5. Counting of Votes
(1) Tampering, increasing, decreasing votes, or refusal to correct tampered votes after proper verification and hearing by any member of the board of election inspectors [Sec. 27b, R.A. 6646] A special election offense to be known as electoral sabotage and the penalty to be imposed shall be life imprisonment. [Sec. 42, RA 9369] (2) Refusal to issue to duly accredited watchers the certificate of votes cast and the announcement of the election, by any member of the board of election inspectors [Sec. 27c, R.A. 6646]
9. Other Prohibitions
(1) Unauthorized printing of official ballots and election returns with printing establishments that are not under contract with the COMELEC [Sec. 27a, R.A. 6646 ] (2) Wagering upon the results of elections [Sec. 261c, B.P. 881] (3) Sale, etc. of intoxicating liquor on the day fixed by law for the registration of voters in the polling place, or the day before the election or on election day [Sec. 261dd (1), B.P. 881] (4) Opening booths or stalls within 30 meters of any polling place [Sec, 261dd (2), B.P. 881] (5) Holding fairs, cockfights, etc. on election day [Sec. 261dd (3), B.P. 881] (6) Refusal to carry election mail during the
6. Canvassing
Any chairperson of the board of canvassers who fails to give notice of meeting to other members of the board, candidate or political party as required [Sec. 27e, R.A. 6646]
7. Acts of Government or Public Officers

(1) Appointment of new employees, creation of new positions, promotion, or giving salary increases within the election period [Sec. 261g, B.P. 881] (2) Transfer of officers and employees in the civil
ELECTION LAW
election period [Sec. 261dd (4), B.P. 881]. In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of certificate of public convenience or franchise. (7) Discrimination in the sale of air time [Sec. 261dd (5), B.P. 881] In addition to the prescribed penalty, such refusal constitutes a ground for cancellation or revocation of the franchise. NOTE: Good faith is not a defense, as election offenses are generally mala prohibita.

such as counting machine, memory pack/diskette, memory pack receiver and computer set (2) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information (3) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified (4) Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers (5) Presentation by the citizens' arm of tampered or spurious election returns (6) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns and (7) The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part the election officer concerned." PENALTY (1) imprisonment of 8 years and one day to 12 years without possibility of parole (2) perpetual disqualification to hold public and any non-elective public office and (3) deprivation of the right of suffrage. Exception: Those convicted of the crime of electoral sabotage, which includes acts or offenses committed in any of the following instances: National elective office: When the tampering, increase and/or decrease of votes perpetrated or the refusal to credit the correct votes or to deduct tampered votes is/are committed in the election of a national elective office which is voted upon nationwide and the tampering, increase and/ or decrease votes refusal to credit the correct votes or to deduct tampered votes, shall adversely affect the results of the election to the said national office to the extent that losing candidate/s is /are made to appear the winner/s; Regardless of the elective office involved, when the tampering, increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated
17 5
10. Penalties
For individuals (1) Imprisonment of not less than 1 year but not more than 6 years, without probation [Sec. 264, B.P. 881] (2) Disqualification to hold public office (3) Deprivation of the right of suffrage For a Foreigner (1) Imprisonment of not less than 1 year but not more than 6 years (without probation); (2) Deportation after service of sentence For a Political Party Payment of a fine not less than P10,000 after a criminal conviction Persons Required by Law to Keep Prisoners in their Custody: For prisoners illegally released from any penitentiary or jail during the prohibited period, where such prisoners commit any act of intimidation, terrorism or interference in the election, prison mayor in its maximum period. [Sec. 264, B.P. 881]
IV. Arrests in Connection with Election Campaign

Only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution have been strictly complied with
V. Prescription
5 years from the date of their commission. If the discovery of the offense be made in an election contest proceeding, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. [Sec. 267, B.P. 881]
VI. Prohibited Acts Under R.A. 9369

(1) Utilizing without authorization, tampering with, damaging, destroying or stealing: (a) Official ballots, election returns, and certificates of canvass of votes used in the system; and (b) Electronic devices or their components, peripherals or supplies used in the AES
ELECTION LAW
is accomplished in a single election document or in the transposition of the figure / results from one election document to another and involved in the said tampering increase and/or decrease or refusal to credit correct votes or deduct tampered votes exceed 5,000 votes, and that the same adversely affects the true results of the election
17 6
Any and all other forms or tampering increase/s and/ or decrease/s of votes perpetuated or in cases of refusal to credit the correct votes or deduct the tampered votes, where the total votes involved exceed 10,000 votes PENALTY - Any and all other persons or individuals determined to be in conspiracy or in connivance with the members of the BEIs or BOCs involved, shall be meted the same penalty of life imprisonment.
2012
POLITICAL
LAW
Local Governments
LOCAL GOVERNMENTS

transactions of the corporation. Unlike the Government, the corporation may be sued without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government. [Bacani v. National Coconut Corporation (1956)] Nature and Status Definition A Local Government Unit (LGU) is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. Remaining to be an intra sovereign subdivision of a sovereign nation, but not intended to be an imperium in imperio, the LGU is autonomous in the sense that it is given more powers, authority, responsibilities and resources. [Alvarez vs Guingona (1996)] Local government is municipal corporation interchangeable with
Local Governments
A. B. C. D.
POLITICAL LAW Public Corporations Municipal Corporations Principles of Local Autonomy Powers of Local Government Units (LGUs)
178
A. Public Corporations
1. Concept 2. Classifications
1. Concept
Distinguished from Government-Owned or Controlled Corporations (GOCCs)
As to purpose A municipal corporation in its strict sense is the body politic constituted by the inhabitants of a city or town for the purpose of local government thereof. It is the body politic established by law particularly as an agency of the State to assist in the civil government of the country chiefly to regulate the local and internal affairs of the city or town that is incorporated. Non-municipal corporations, on the other hand, are public corporations created as agencies of the State for limited purposes to take charge merely of some public or state work other than community government. [National Waterworks & Sewerage Authority v. NWSA Consolidated Unions (1964)] As to personality (The National Coconut Corporation) was given a corporate power separate and distinct from our government, for it was made subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned. [Bacani v. National Coconut Corporation (1956)] It is an independent agency of the government although it is placed, for administrative purposes, under the Department of Public Works and Communications. It has continuous succession under its corporate name and may sue and be sued in court. It has corporate powers to be exercised by its board of directors; it has its own assets and liabilities; and it may charge rates for its services. [National Waterworks & Sewerage Authority v. NWSA Consolidated Unions (1964)] The mere fact that the Government happens to be a majority stockholder does not make it a public corporation. [Bacani v. National Coconut Corporation (1956)] By becoming a stockholder in the National Coal Company, the Government divested itself of its sovereign character so far as respects the
2. Classifications
Municipal Corporation vs. Quasi-municipal corporation A municipal corporation exists by virtue of, and is governed by, its charter. A quasi-municipal corporation operates directly as an agency of the state to help in the administration of public functions. [Singco (1955)]
B. Municipal Corporations
1. Elements 2. Nature and Functions 3. Requisites for Creation, Conversion, Division, Merger or Dissolution LGC Sec. 14. Beginning of Corporate Existence The election and qualification of (1) chief executive AND (2) majority of the members of the Sanggunian UNLESS some other time is fixed therefore by the law or ordinance creating it. Note: Art.14 applies when the law creating it is SILENT as to the beginning of its corporate existence.
1. Elements
Elements of a Municipal Corporation (1) A LEGAL creation or incorporation (2) A CORPORATE NAME by which the artificial or legal entity is known and in which all corporate acts are done (3) INHABITANTS constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents (4) A place or TERRITORY within which the local civil government and corporate functions are exercised.
LOCAL GOVERNMENTS

Political/Governmental Examples: (1) Regulations against fire, disease (2) Preservation of public peace (3) Maintenance of municipal plaza (4) Establishment of schools, post offices, etc. Corporate/Municipal Examples: (1) Municipal waterworks (2) Slaughterhouses (3) Markets (4) Stables (5) Bathing establishments (6) Wharves (7) Fisheries (8) Maintenance of parks, golf courses, cemeteries, airports
2. Nature and Functions

Dual Nature Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. [Sec. 15, LGC] The obligations of the old City of Manila survives the cession of the Philippines to the U.S. because of the corporate nature of the city. [Villas vs Manila (1921)] As a body politic with governmental functions, the LGU has the duty to ensure the quality of the environment (Sec. 16, LGC). It cannot claim exemption from PD 158 which imposes the same duty. [Republic vs Davao (2002)] Sec. 15. Political and Corporate Nature of LGUs Local government unit created or recognized under this Code is a (1) Body politic AND (2) Corporate endowed with powers to be exercised by it in conformity with law Exercise of power (as a): (1) Political subdivision of the national government AND (2) Corporate entity representing the inhabitants of its territory Implications A municipal corporation performs twin functions. Firstly, it serves as an instrumentality of the State in carrying out the functions of a government. Secondly, it acts as an agency of the community in the administration of local affairs. It is in the latter character that it is a separate entity acting for its own purposes and not a subdivision of the state. [Lidasan v COMELEC (1967)] The holding of a town fiesta is a proprietary function, though not for profit, for which a municipality is liable for damages to 3rd persons ex contractu or ex delicto. [Torio v Fontanilla (1978)] Difference Between the Political Nature and Corporate Nature of LGUs Political/Governmental Corporate/Municipal Political subdivision of Corporate entity national government representing inhabitants of its territory Includes the legislative, Includes those which are judicial, public and ministerial, private and political corporate LGU cannot be held Can be held liable ex liable except: contractu or ex delicto (1) If statute provides otherwise (2) Art. 2189, Civil Code
179
3. Requisites for Creation, Conversion, Division, Merger or Dissolution

Creation/Conversion
[Art. X, 1987 Consti] a. General Provisions No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except: in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. [Sec. 10, LGC] Local government units may: (1) group themselves, (2) consolidate or coordinate their efforts, services, and resources for purposes: (1) commonly beneficial to them (2) in accordance with law. [Sec. 13, LGC] The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions: (1) for purposes of administrative decentralization (2) to strengthen the autonomy of the units therein and (3) to accelerate the economic and social growth and development of the units in the region. [Sec. 14, LGC] b.
Specific Requirements
Metropolitan Political Subdivisions The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall: (1) retain their basic autonomy and (2) be entitled to their own local executive and legislative assemblies.
LOCAL GOVERNMENTS
The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. [Sec. 11, LGC] Highly Urbanized Cities and Independent Component Cities Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. [Sec.12, LGC] Autonomous Regions There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. [Sec. 15, LGC] The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. [Sec. 16, LGC] All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. [Sec. 17, LGC] The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. [Sec.18, LGC]

within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. [Sec. 6, LGC] The authority to create municipal corporations is essentially legislative in nature. [Pelaez v. Auditor General (1965)] The enactment of a LGC is not a condition sine qua non for the creation of a municipality, and before the enactment of such code, the power remains plenary except that the creation should be approved by the people concerned in a plebiscite called for the purpose. [Torralba v. Sibagat (1987)] The SC held that sec. 19 of RA 9054 insofar as it grants ARMM Regional Assembly the power to create provinces and cities is void. (Constitution allows delegation of creating municipalities and barangays only.) [Bai Sema v. COMELEC (2008)] Creations under Sec. 68, Admin Code The alleged power of the President to create municipalities under Sec. 68 of the Admin Code amounts to an undue delegation of legislative power. The authority to create municipal corporations is essentially legislative in nature. The power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. It does not include the authority either to abolish or create such. [Pelaez v. Auditor General (1965)] Effect if created under Sec 68, Admin Code: The municipality is non-existent. It cannot be a party to any civil action [Mun. of Kapalong v. Moya (1988)] De Facto Corporations De facto municipal corporation: There is defect in creation; legal existence has been recognized and acquiesced publicly and officially. Requisites: (LACA) (1) valid law authorizing incorporation; (2) attempt in good faith to organize it; (3) colorable compliance with law; and (4) assumption of corporate powers. There can be no color of authority in an unconstitutional statute. An unconstitutional act confers no rights, imposes no duties, affords no protection, and creates no office. However, even if the EO was invalid, it does not mean that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity. This is because the existence of the EO is an operative fact which cannot justly be ignored. [Malabanan v Benito (1969)] The Municipality of Sinacban2 possesses legal personality. Where a municipality created as such by
2
180
Authority to Create Local Government Units

c. A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either - by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, OR - by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located
Sinacban was created by EO 258 of then President Elpidio Quirino, pursuant to Sec. 68 of the Revised Administrative Code of 1917.
LOCAL GOVERNMENTS
executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. Sinacban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacban part of the Second District of Misamis Occidental. Above all, Sec. 442(d) of the LGC of 1991 must be deemed to have cured any defect in the creation of Sinacban. Since Sinacban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution. Attack Against Validity of Incorporation When the inquiry is focused on the legal existence of a body politic, the action is reversed to the state in a proceeding for quo warranto or any other direct proceeding. Collateral attacks shall not lie. Proceeding must be: (RST) (1) Brought in the name of the Republic of the Philippines (2) Commenced by the Sol Gen or the fiscal when directed by the president (3) Timely raised [Municipality of San Narciso v Mendez (1994)] The municipality can still be considered to have attained at least a status closely approximating that of a de facto corporation despite the invalidity of the EO creating it. This is because the State itself recognized the continued existence of San Andres when it classified it as a 5th class municipality. And, more importantly, Sec. 442(d) of the LGC cured whatever defect there was in its creation. [Municipality of San Narciso v. Mendez] Municipal Corporation by Prescription Existence is presumed where the community has claimed and exercised corporate functions with the knowledge and acquiescence of the legislature, and without interruption or objection for a period long enough to afford title by prescription. [Martin, Public Corporations (1977)] The municipality was created under a void law (Sec. 68, Admin Code). But it should be considered a de jure personality because it existed 1 year before the Pelaez case, and various governmental acts indicate the States recognition of its existence. [Mun. of Candijay v. CA (1995)]
3
d.
Requirements
(1) In accordance with the criteria established in the LGC (2) Majority of the votes cast in a plebiscite in the political units directly affected.
181
Purpose of plebiscite: to prevent gerrymandering (i.e. the practice of creating legislative districts to favor a particular candidate or party) and creation or abolition of units for purely political purposes. Criteria [Sec. 7, LGC] As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: (IPL) (1) Income. - must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population. (2) Population. - total number of inhabitants within the territorial jurisdiction of the local government unit concerned. (3) Land Area. - must be: Contiguous, unless it comprises two or more islands OR is separated by a LGU independent of the others; Properly identified by metes and bounds with technical descriptions; and Sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance attested to by: (1) Department of Finance (DOF) (2) National Statistics Office (NSO) (3) Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). Illustrations The requirement on metes and bounds was meant merely as a tool in the establishment of LGUs. So long as the territorial jurisdiction of a city may be reasonably ascertained, the intent behind the law (i.e., the determination of the territorial jurisdiction over which governmental powers may be exercised) has been sufficiently served. A cadastral type description is not necessary. [Mariano v. COMELEC (1995)] NOTES: The ruling in Mariano is an exception to the general rule of proper identification because of its peculiar facts: (1) the legislature deliberately omitted the description in metes and bounds because of the pending litigation between Makati and Taguig over Fort Bonifacio; (2) RA 7854 provided that the territory of the City of Makati will be the same as that of the Municipality of Makati, thus making the territorial jurisdiction of Makati ascertainable (subject, of course, to the result of the unsettled boundary dispute).
De jure: by virtue of the ordinance appended to the 1987 Constitution; Sec. 442 (d), LGC curative. Sec. 442(d), LGC: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.
LOCAL GOVERNMENTS
Compliance with population OR land area, in addition to income, is sufficient to satisfy the requirements in the creation of a city. [Samson v. Aguirre (1999)] Internal Revenue Allocations (IRAs) form part of the income of LGUs. The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue to the general fund of the LGU and are used to finance its operations subject to specified modes of spending the same as provided for in the LGC and its implementing rules and regulations. As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the LGU, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. [Alvarez v. Guingona (1996)] NOTES: For provinces and cities, the income requirement must be satisfied; and EITHER population OR territory. In the creation of barangays, there is no minimum requirement for area and income. As to the income requirement, average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

necessary. There is material change in the political and economic rights of the LGUs directly affected as well as the budget preparation, which budget should reflect the estimates of people therein. It is therefore but reasonable to require the consent of the people to be affected. Effects of downgrading: (ART) (1) the city mayor will be placed under the Administrative supervision of the governor; (2) resolutions and ordinances will have to be Reviewed by the provincial board; (3) Taxes will have to be shared with the province. [Miranda v. Aguirre (1999)] The creation of a separate congressional district of Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highlyurbanized city but is a natural and logical consequence of its conversionThe Court found no need for the people of San Juan to participate in the plebiscite. They had nothing to do with the change of status of neighboring Madaluyong. [Tobias v. Abalos (1994)]
182
Beginning of Corporate Existence

When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chief executive and a majority of the members of its sanggunian, unless some other time is fixed therefor by the law or ordinance creating it. [Sec. 14, LGC]
Plebiscite
No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless there is: (1) Law or ordinance (2) Approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. (3) Said plebiscite shall be conducted by the commission on elections (COMELEC) within 120 days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. [Sec. 10, LGC] Illustrations When the law states that the plebiscite shall be conducted in the political units directly affected, it means that the residents of the political entity who would be economically dislocated by the separation of a portion thereof have the right to vote in said plebiscite. What is contemplated by the phrase political units directly affected is the plurality of political units which would participate in the plebiscite. [Padilla v. COMELEC (1992)] The downgrading of Santiago City from an independent component city to a component city falls within the meaning of creation, division, merger, abolition, or substantial alteration of boundaries; hence, ratification in a plebiscite is
Summary: Creation of Specific LGUs 4

See Annex A.
Division and Merger; Abolition Division and Merger

Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein. [Sec. 8, LGC] Effects of Merger (1) Legal existence of LGU to be annexed is dissolved
4
For creation of specific LGUs, please check LGC 385386, 441442, 449450, 460461
LOCAL GOVERNMENTS
(2) Laws and ordinance of the annexing LGU prevails (3) The right of office in the annexed LGU is terminated (4) Title to property is acquired by the annexing LGU (5) Debts are assumed by the annexing LGU [Martin, supra] Effects of division (1) The legal existence of the original municipality is extinguished (2) Property, rights and powers are acquired by the dividing LGUs [Martin, supra]

(4) and all other matters relating to the organization and operation of the local units. [Sec. 3, LGC] The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. [Sec. 4, LGC] Each LGU shall have the power to create its own sources of revenues and to levy taxes, fees and charges, (1) subject to such guidelines and limitations as the Congress may provide, (2) consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. [Sec. 5, LGC] Local Government Code (RA 7160) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with: (1) appropriate local government units, (2) nongovernmental and people's organizations, (3) and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. [Sec. 2(c), LGC]
183
Abolition
A local government unit may be abolished: when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. [Sec. 9, LGC] When there is no dissolution (1) Non-user or surrender of charter (2) Failure to elect municipal officers (3) Change of sovereignty (4) Change of name
2. Local Autonomy
The principle of local autonomy under the 1987 Constitution simply means decentralization (discussed below). [Basco vs PAGCOR (1991)] Illustrations The CSC cannot declare the provision upon recommendation of the local chief executive concerned as merely directory. Such provision is in consonance with local autonomy. [San Juan vs CSC (1991)] An A.O. may not compel LGUs to reduce their total expenditures. Supervising officials may not lay down or modify the rules. These rules were made in furtherance of local autonomy. [Pimentel vs Aguirre (2000)] HOWEVER, the Constitution did not intend, for the sake of local autonomy, to deprive the legislature of all authority over LGUs, in particular, concerning discipline. [Ganzon vs CA (1991)]
C. Principles of Local Autonomy

1. 2. 3. 4. State Policy, Principles of Decentralization Local Autonomy Decentralization Devolution
1. State Policy, Principles of Decentralization

Art. X, 1987 Constitution Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. The Congress shall enact a local government code which shall (1) provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, (2) allocate among the different local government units their powers, responsibilities, and resources, (3) and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials,
3. Decentralization
NOTE: Decentralization is a means to achieve local autonomy. Autonomy is either (1) decentralization administration or (2) decentralization of power. of
LOCAL GOVERNMENTS
There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power. Purpose: to relieve the central government of the burden of managing local affairs and enable it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. [Limbona v. Mangelin (1989)] Cf. Decentralization of power is the abdication of political power in favor of LGUs declared to be autonomous. There is self-immolation where autonomous government is accountable, not to the central government, but to its constituents. (Note: not allowed by our Constitution.) Sec. 1 of AO 372 (Adoption of Economy Measures in Government for FY 1998), insofar as it directs LGUs to reduce expenditures by at least 25%, is a valid exercise of the Presidents power of general supervision over LGUs as it is advisory only. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. [Pimentel v. Aguirre, supra]

(4) Doctrine of the right of self-government, but applies only in States which adhere to the doctrine Classification of Powers of LGUs (1) Express, Implied, Inherent (2) Public or Governmental, Proprietary (3) Intramural, Extramural (4) Mandatory, Directory; Discretionary
184
Private
or
Ministerial,
Execution of Powers Where statute prescribes the manner of exercise, the procedure must be followed. Where statute is silent, LGUs have discretion to select reasonable means and methods of exercise. Power to generate and apply resources Local government units shall have the power and authority to: (1) Generate and apply resources (2) Establish an organization responsible for implementation of development plans, program objectives, and priorities (3) Own sources of revenues (Sec.5, Art. X, Constitution; Sec.18 LGC) which include: (a) Power to create own sources (b) Levy taxes, fees and charges Shall accrue exclusively for their own use and disposition Limitation: guidelines Congress may provide (c) Just share in national taxes (Sec.6, Art. X, Constitution; Sec.18 LGC) Determined by law Automatically and directly released (d) Equitable share in utilization and development of national wealth (Sec.7, Art. X, Constitution; Sec.18 LGC) Within respective territorial jurisdictions In the manner provided by law Sharing with inhabitants by way of direct benefits (e) Acquire, develop, lease, encumber, alienate, or otherwise dispose of property (Sec.18 LGC) Real or personal property Made in a proprietary capacity (f) Apply resources and assets (Sec.18 LGC) Purpose: productive, development, or welfare purposes In the exercise of their governmental or proprietary powers and functions [Sec.18, LGC]
4. Devolution (asked in 1999)

Refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities [Sec. 17, LGC]; the transfer of power and authority from the National Government to LGUs to enable them to perform specific functions and responsibilities. [Art. 24, IRR of the LGC]
D. Powers of Local Government Units (LGUs)

1. Police Power (General Welfare Clause) 2. Eminent Domain 3. Taxing Power 4. Closure and Opening of Roads 5. Legislative Power 6. Corporate Powers 7. Liability of LGUs 8. Settlement of Boundary Disputes 9. Succession of Elective Officials 10. Discipline of Local Officials 11. Recall Powers in General Sources of Powers of LGUs (1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art. X (2) Statutes, e.g. LGC (3) Charter (particularly of cities)
1. Police Power (General Welfare Clause)

Preservation of peace and order within respective regions [Sec.21, Art. X, Constitution]
LOCAL GOVERNMENTS
(1) Responsibilities of local police agencies (2) Local police shall be organized, maintained, supervised and utilized in accordance with applicable laws. Defense and security of regions [Sec.21, Art. X, Constitution] (1) Responsibility of National Government General (1) (2) (3) Welfare Clause [Sec.16 LGC] Powers expressly granted Powers necessarily implied Powers necessary, appropriate or incidental for efficient and effective governance (4) Powers essential to the promotion of general welfare (5) Shall ensure and support: (a) Preservation and enrichment of culture (b) Promotion of health and safety (c) Enhancement of the right of the people to a balance ecology (d) Development of self reliant scientific and technological capabilities (e) Improvement of public morals (f) Economic prosperity and social justice (g) Promotion of full employment among residents (h) Maintenance of peace and order (i) Preservation of the comfort and convenience of inhabitants
Ordinances imposing the licenses and permits for any business establishments, for purposes of regulation enacted by the municipal council of Makati, falls under the 1st branch. [Rural Bank of Makati, Inc v Municipality of Makati (2004)] Limitations (1) The General Welfare Clause cannot be used to justify an act that is not specifically authorized by law. (2) Powers of the LGUs under the general welfare clause [Sec.16, LGC] (a) Powers expressly granted to the LGU (b) Power necessarily implied therefrom (c) Powers necessary, appropriate, or incidental for its efficient and effective governance (3) For ordinance to be valid exercise of police power [Tatel v. Mun. of Virac (1992)]: (a) Not contrary to the Constitution and/or statute (b) Not unfair or oppressive (c) Must not be partial or discriminatory (d) Not prohibit but may regulate trade (e) General and consistent with public policy (f) Not unreasonable Illustrations: Police Power Applies A municipal ordinance prescribing the zonification and classification of merchandise and foodstuff sold in the public market [Eboa v Municipality of Daet (1950)] A proclamation reserving parcels of the public domain for street widening and parking space purposes [Republic v Gonzales] Condemnation and demolition of buildings found to be in a dangerous or ruinous condition within the authority provided for by municipal ordinances [Chua Huat vs CA (1991)] Regulation and operation of tricycles-for-hire and to grant franchises for the operation thereof. However, this power is still subject to the guidelines prescribed by the DOTC. Moreover, the newly delegated powers pertain to the franchising and regulatory powers therefore exercised by the LTFRB. [LTO vs City of Butuan (2000)] The declaration of an area as a commercial zone through a municipal ordinance. Corollary thereto, the state may interfere with personal liberty with property, business, and occupations. [Patalinhug vs CA (1994)] Demolition of stalls causing traffic and deteriorated sanitation [Villanueva vs Castaneda (1987)]
185
Nature The police power of a municipal corporation extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. The drift is towards social welfare legislation geared towards state policies to provide adequate social services, the promotion of general welfare and social justice [Binay v Domingo (1991)] To constitute public use: The public in general should have equal or common rights to use the land or facility involved on the same terms The number of users is not the yardstick in determining whether property is properly reserved for public use or public benefit [Republic v. Gonzales] 2 Branches of the GWC The General Welfare Clause has 2 branches: (1) the general legislative power which authorizes municipal councils to enact ordinances and make regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law; (2) The police power, which authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitants, and for the protection of their property.
LOCAL GOVERNMENTS
Deny an application for permit or avoid the injury to the health of residents. [Technology Developers vs CA (1991)] Provide for burial assistance to the poor. [Binay vs Domingo, supra] Abatement of a public nuisance because stored inflammable materials created a danger to the people within the neighbourhood [Tatel vs Mun. of Virac (1992)] Rescind contracts [Tamin vs CA (1994)] Enforcement of fishery laws in municipal waters including the conservation of mangroves. [Tano vs Socrates (1997)] Illustrations: Police Power Does Not Apply The LGU has no power to prohibit the operation of night clubs, a lawful trade or pursuit of occupation. It may only regulate. [De La Cruz vs Paras (1983)] Anxiety, uncertainty and restiveness among stallholders and traders cannot be a ground to revoke the mayors permit. The General Welfare claim is too amorphous. [Greater Balanga vs Mun. of Balanga (1994)] Butuan city board passes an ordinance requiring that the sale of tickets to movies, exhibitions or other performances to children between 7-12 years of age should be at half price. The said ordinance was declared void. The theater operators are merely conducting their legitimate business. There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. [Balacuit v CFI (1988)] The power of the municipal government to issue fishing privileges is only for revenue purposes. BUT the power of the LLDA to grant permits is for the purpose of effectively regulating and monitoring activities in the lake region and is in the nature of police power. [Laguna Lake Development Authority v. CA (1995)]

Public use or welfare For the benefit or the poor and the landless (4) Payment of just compensation Amount determined by proper court Based on fair market value at the time of the taking (5) Valid and definite offer made Right by the State to immediately take possession: (1) Upon filing of expropriation proceedings (2) Upon deposit with proper court of at least 15% of the fair market value of the property Offer to buy private property for public use or purpose shall be in WRITING. It shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered. If the owners accept the offer in its entirety, a contract of sale shall be executed and payment made. If the owner/s are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price. The chairman of the appropriation or finance committee of the Sanggunian, or in his absence, any member of the Sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. The contract of sale shall be supported by the following documents: (1) Resolution of the Sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract. (2) Ordinance appropriating the amount specified in the contract, and (3) Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disturbed or spent for any purpose other than to pay for the purchase of the property involved. [Article 35 IRR of LGC] Illustrations of Eminent Domain There is no need to get DAR approval before expropriation [Camarines Sur vs CA (1993)] There must be genuine necessity of a public character. There is no genuine necessity if another road more ideal is available. [Meycauyan vs IAC (1988)] The ordinance which requires cemeteries to set aside a portion of their lots to paupers is not an exercise of police power, but a taking without compensation. [QC vs Ericta (1983)]
186
2. Eminent Domain [Sec. 19, LGC]

Eminent Domain -- It is the ultimate right of the sovereign power to appropriate not only public but private property of citizens within the territorial sovereignty to public purpose [Charles River Bridge vs. Warren Bridge, (1837)] Requisites for a Valid Exercise of Eminent Domain (COP-JO) (1) Through the Chief Executive of LGU (2) Acting pursuant to an ordinance (3) For the purposes of:
LOCAL GOVERNMENTS
Eminent domain may be exercised over easements (property rights), not just lands or personal property. [NPC vs Jocson (1992)] Necessity does not contemplate the economic relief of a few families devoid of any other public advantage [Manila vs Arellano (1950)] Eminent domain requires an ordinance, not just a resolution. Res judicata does not apply to expropriation cases [Paranaque vs VM Realty (1998)] Just compensation shall be determined at the time of taking, NOT at the time of filing complaint Although the general rule in determining just compensation in eminent domain is the value of the property as of the date of filing of the complaint, the rule admits of an exception: where the SC fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings. Finally, while sec.4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of the filing of the complaint for expropriation, such law cannot prevail over the Local Government Code, which is substantive law. [Cebu vs Apolonio (2002)] It is possible that the purpose for expropriation is changed after such is granted. [Republic vs CA (2002)]

Jurisprudence Under the Urban Land and Housing Act, there is a priority in expropriation of which the properties of the government or any of its subdivision rank number one and privately owned properties ranked last. Also, the said act provides that expropriation should be the last alternative, giving way to other modes of acquisition like community mortgage and swapping. Otherwise it would be deprivation of property. [Filstream International Inc v CA (1998)] The UDHA introduced a limitation on the size of the land sought to be expropriated for socialized housing. It exempted small property owners. The elements of small property owners are: (1) Those owners of real property which consists of residential lands with an area of not more than 300 sq. meters in highly urbanized cities (800 in other urban cities); and (2) They do not own real property other than the same. [City of Mandaluyong v Aguilar (2001)]
187
3. Taxing Power [Sec. 18, LGC]

Sources of LGU funds: (O-TIU) (1) Own sources of revenues (2) Taxes, fees and charges: which shall accrue exclusively for their use and disposition and which shall be retained by them (3) Just share in national taxes which shall be automatically and directly released to them without need for any further action (Internal Revenue Allotments) (4) Equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits Fundamental principles governing the exercise of the taxing and other revenue-raising powers of LGUs [Sec. 130, LGC] (PE-PUB) (1) Taxation shall be uniform in each LGU; (2) Taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayers ability to pay; levied and collected only for public purposes; not unjust, excessive, oppressive, or confiscatory; not contrary to law, public policy, national economic policy, or in restraint of trade; (3) The collection of local taxes, fees, charges and other imposition shall in no case be left to any private person; (4) The revenue shall inure solely to the benefit of, and be subject to disposition by, the LGU, unless otherwise specifically provided herein; and (5) Each LGU shall, as far as practicable, evolve a progressive system of taxation. Common Limitations on the Taxing Powers of LGUs [Sec. 133, LGC]
Immediate Entry by the LGU Requisites: (1) Filing of complaint for expropriation sufficient in form and substance (2) The deposit of the amount equivalent to 15% of the fair market value of the property to be expropriated based on the current tax declaration [Bardilion v Masili (2003)] Upon compliance with the requirements for immediate entry, the issuance of a writ of possession becomes ministerial. No hearing is required for the issuance of the writ. The LGC did not put a time limit as to when a LGU may immediately take possession of the property. As long as the expropriation proceedings have been commenced and the deposit made, the LGU cannot be barred from praying for the issuance of writ of possession. [City of Iloilo v Legaspi (2004)] Socialized Housing The UDHA and the Expropriation by the LGUs i.e. Sec.9 of the Urban Land and Housing Act, which speaks of PRIORITIES in acquisition) should be read in connection with Sec.10 (MODES of acquisition). If the land sought to be expropriated is located in urban areas and fall under the UDHA, the LGU must allege compliance with Secs. 9 and 10 for their suit to prosper. Otherwise, it would be premature.
LOCAL GOVERNMENTS
(1) Income tax (except when levied on banks and financial institutions) (2) Documentary stamp tax (3) Estate tax (4) Customs duties, registration fees of vessels and all other kinds of customs fees and charges (5) Taxes, fees and charges and other impositions upon goods carried in or out of, or passing through, the territorial jurisdiction of local government units in the guise of charges for wharfage, tolls for bridges or otherwise, or other taxes, fees or charges in any form whatsoever upon such goods or merchandise (6) Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen (7) Taxes on business enterprises certified by the BOI as pioneer or non-pioneer for a period of 6 and 4 years, respectively, from date of registration (8) Excise taxes (9) Percentage taxes or VAT (10) Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight, and common carriers (11) Taxes on premiums paid by way of reinsurance or retrocession (12) Taxes, fees, charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles (13) Taxes, fees, or other charges in Phil. products actually exported, except as otherwise provided therein (14) Taxes, fees or charges, on Countryside and Barangay Enterprises and cooperatives duly registered under RA 6810 and the Cooperative Code (15) Taxes, fees, or charges of any kind on the National Government, its agencies and instrumentalities Fundamental principles governing the financial affairs, transactions and operations of LGUs [Sec. 305, LGC] (1) No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; (2) Local government funds and monies shall be spent solely for public purposes; (3) Local revenue is generated only from sources expressly authorized by law or ordinance, and collection thereof shall at all times be acknowledged properly; (4) All monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; (5) Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received; (6) Every officer of the LGU whose duties permit or require the possession or custody

of local funds shall be properly bonded, and such officer shall be accountable and responsible for said funds and for the safekeeping thereof in conformity with the provisions of law; (7) Local governments shall formulate sound financial plans, and the local budgets shall be based on functions, activities, and projects, in terms of expected results; (8) Local budgets shall operationalize approved local development plans; (9) LGUs shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units; (10) National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices; (11) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units; and (12) The LGU shall endeavor to have a balanced budget in each fiscal year of operation Jurisprudence Sec. 234 withdrew all exemptions from real property taxes, even GOCCs when the beneficial use of the property has been granted to a taxable person for consideration or otherwise. MCIAA is a GOCC and an instrumentality, therefore, RPT exemption granted under its charter is withdrawn [MCIAA vs Marcos (1997)] Tax exemption of property owned by the Republic refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). The properties of NDC belong to the Government. [NDC vs Cebu, (1992)] LGUs, in addition to administrative autonomy, also enjoy fiscal autonomy. LGUs have the power to create their own sources and revenue, in addition to their equitable share in the national taxes as well as the power to allocate resources in accordance with their own priorities. A basic feature of local fiscal autonomy is the automatic release of the shares of the LGUs in the national internal revenue. This is mandated by no less than the constitution. Any retention is prohibited. [Pimentel v Aguirre (2000)]
188
4. Closure and Opening of Roads [Sec. 21, LGC]

What roads are subject, those within jurisdiction of LGU (1) Local road (2) Alley (3) Park (4) Square
LOCAL GOVERNMENTS
Permanently close or open (1) Ordinance: Vote of at least 2/3 of all members of the Sanggunian (2) When necessary, an adequate substitute for the public facility should be provided (3) Make provision for public safety (4) If permanently withdrawn from public use (5) May be used or conveyed for any purpose for which other real property belonging in LGU may be lawfully used or conveyed (6) Freedom park: must have provision for relocation to new site Temporary close or open (1) Ordinance (2) May be done: During actual emergency Fiesta celebrations Public rallies Agricultural or industrial fairs Undertaking of public works and highways, telecommunications, and waterworks projects (3) Duration specified in written order by local chief executive (4) If for athletic, cultural, or civic activities: must be officially sponsored, recognized, or approved by LGU. Temporary closure and regulation of any local street, road, thoroughfare, or any other public place By any city, municipality, or barangay Where shopping malls, Sunday, flea or night markets, or shopping areas may be established Where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold Illustrations A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. The right of the public to use the city street may not be bargained away through contract. The authorization given for the use of the city street as a vending area for stallholders who were granted licenses by the City Government contravenes the general law that reserves city streets and roads for public use. It may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve. [Dacanay vs Asistio (1992)] The provincial council has the authority to determine whether or not a certain property (in this case a provincial road) is still necessary for public use [Cabrera vs CA (1991)] The power of the LGU to enact zoning ordinances for the general welfare prevails over the deed of restrictions. [Sangalang vs IAC(1989)]

The closure of roads under police power is not eminent domain. No grant of damages is awarded. [Cabrera vs CA (1991)] Effect: The determination of the location of the camino vecinal through an ordinance will defeat the testimonies of witnesses as to the location of said passageway. [Pilapil vs CA (1992)] The MMDA does not have police power, but the LGUs do. There should have been an ordinance by the LGU to effect an opening of roads. [MMDA vs Bel Air (2000)]
189
5. Legislative Power [Secs. 48-59, LGC]

Exercised by: (1) Sangguniang panlalawigan for the province (2) Sangguniang panlungsod for the city (3) Sangguniang bayan for the municipality (4) Sangguniang barangay for the barangay [Sec. 48, LGC] Presided by: (1) Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because he is not a member of the Sanggunian. [Perez vs Dela Cruz (1969)] (2) The incumbent local chief executive acting as the chief executive may not preside over the sessions of the Sanggunian. Why? To ensure better delivery of public services and provide a system of checks and balances between the executive and legislative. [Gamboa vs Aguirre, supra] In case of inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer who shall certify within 10 days from the passage of the ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided [Sec. 49, LGC] Internal Rules of Procedure Adopted/update on the 1st regular session following election of its members- within 90 days Provides for: Organization of the Sanggunian and the election of its officers Standing Committees Creation (Including the committees on appropriations, women and family, human rights, youth and sports development, environmental protection, and cooperatives; the general jurisdiction of each committee Election of the chairman and members of each committee Order and calendar of business for each session Legislative process
LOCAL GOVERNMENTS
Parliamentary procedures (including the conduct of members during sessions) Discipline of members for disorderly behavior and absences (without justifiable cause for 4 consecutive sessions) Penalty: censure, reprimand, or exclusion from the session, suspension for not more than 60 days or expulsion Suspension or expulsion: requires concurrence of at least 2/3 vote of all Sanggunian members A member convicted by final judgment to imprisonment of at least 1 year for any crime involving moral turpitude shall be automatically expelled from the Sanggunian Other rules as the Sanggunian may adopt [Sec. 50, LGC]

(2) In the public interest or for reasons of secrecy, decency or morality No 2 sessions may be held in a single day. Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the Sanggunian concerned [Sec. 52, LGC] How many votes required GENERAL RULE: Majority constituting a quorum of the members
190
Exception: When the enactment itself specifies the number of votes required, such requirement will govern over the general rule specified in the charter or the LGC, when such enactment is to be amended. Why? Because the municipal authorities are in a better position to determine the votes required. [Casino vs CA (1991)] Approval, Veto and Review of Ordinances Every ordinance shall be presented to the governor or mayor, as the case may be Approves: affix his signature on each and every page Disapproves: veto it and return the same with his objections to the Sanggunian Override: 2/3 vote of all its members making the ordinance effective even without the approval of the local chief executive concerned Veto communicated to the Sanggunian within 15 days in the case of a province, and 10 days in the case of a city or a municipality; otherwise, the ordinance shall be deemed approved Veto power: The local chief executive may veto any ordinance on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons for writing Right to veto may be exercised only once Local chief executive (except the punong barangay) has the power to veto any particular item or items of an Appropriations ordinance Ordinance or resolution adopting a local development plan and public investment program Ordinance directing the payment of money or creating liability In such a case, the veto shall not affect the item/s which are not objected to. The vetoed item/s shall not take effect unless the sanggunian overrides the veto; otherwise, the item/s in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted. Review of Ordinances (Component) City or Municipal
Quorum Majority of all members of the Sanggunian who have been elected and qualified If a question of quorum is raised: the presiding officer shall immediately proceed to call the roll of the members and announce the results. If there is NO quorum: (1) The presiding officer may declare a recess until such time as a quorum is constituted OR a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by arresting the absent member and present him at the session (2) No business shall be transacted [Sec. 53, LGC] Sessions Regular sessions: fixed by resolution on 1st day of the session immediately following the election of its members Minimum numbers of regular sessions: once a week (panlalawigan, panlungsod, bayan) and twice a month for the Sangguniang Barangay Special session: may be called by the local chief executive or by a majority of the members of the Sanggunian-cause: when public interest demands Written notice: served personally at the members usual place of residence at least 24 hours before the session Unless otherwise concurred in by 2/3 vote of the Sangguniang members present, there being a quorum, no other matters may be considered except those stated in the notice Sessions are open to the public, UNLESS a closeddoor session is ordered by: (1) an affirmative vote of a majority of the members present (there being a quorum)
Within 3 days after approval, the secretary shall forward to the Sangguniang Panlalawigan for review,
LOCAL GOVERNMENTS
copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils Within 30 days after the receipt of copies, the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for examination. The provincial attorney or prosecutor shall, within 10 days from receipt, inform the Sanggunian in writing of his comments or recommendations. If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken. If no action has been taken by the sangguniang panlalawigan within 30 days after submission, the ordinance or resolution shall be presumed consistent with the law and therefore valid. Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval, shall be sufficient ground for the suspension or dismissal of the official or employee. [Sec. 58, LGC] Review of Barangay Ordinances by Sangguniang Panlungsod or Bayan [Sec. 57, LGC] Ordinance enacted by the Sangguniang barangay shall upon approval by the majority of all its members, be signed by the punong barangay. Within 10 days after its enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan concerned for review. No action for 30 days from receipt: ordinance shall be deemed approved If the sangguniang panlungsod or sangguniang bayan finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within 30 days from receipt, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment, or modification Effectivity: suspended until such time as the revision called for is effected

Effectivity of Ordinances or Resolutions GENERAL RULE: the same shall take effect after 10 days from the date a copy is posted EXCEPTION: unless otherwise stated in the ordinance or the resolution approving the local development and public investment program Ordinances with penal sanctions: gist shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs Absence of any newspaper: posting shall be made in all municipalities and cities of the province where the sanggunian of origin is situated. Highly urbanized and independent component cities: the main features of the ordinance or resolution in addition to being posted, shall be published in a local newspaper of general circulation within the city Absence of local newspaper: any newspaper of general circulation [Sec. 59, LGC] Full disclosure of Financial and Business Interests of Sanggunian Members Every sanggunian member shall, upon assumption of office, make a full disclosure of: (1) His business and financial interests (2) Professional relationship or any relation by affinity or consanguinity within the fourth civil degree which he may have with any person, firm, or entity affected by any ordinance or resolution which relationship may result in conflict of interest including: (a) Ownership of stock or capital, or investment, in the entity or firm to which the ordinance or resolution may apply (b) Contracts or agreements with any person or entity which the ordinance or resolution under consideration may affect conflict of interest. [Sec. 51, LGC] Conflict of interest: One where it may be reasonably deduced that a member of a sanggunian may not act in the public interest due to some private, pecuniary, or other personal considerations that may tend to affect his judgment to the prejudice of the service or the public Jurisprudence The LGC does not mandate that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that on the 1st regular session, the sanggunian concerned shall adopt or update its existing rules or procedures. Until the completion of the adopted or updated rules, the rules of the previous year may be used. [Malonzo v Zamora (1999)] Disclosure shall: Be made in writing and submitted to the secretary of the sanggunian
191
Summary of review of ordinances

See Annex B.
LOCAL GOVERNMENTS
Form part of the record of the proceedings and shall be made in the following manner: Made before the member participates in the deliberations on the ordinance or resolution under consideration If the member did not participate during the deliberations, the disclosure shall be made before voting on the ordinance or resolution on second and third readings Made when a member takes a position or makes a privilege speech on a matter that may affect the business interest, financial connections, or professional relationship Updated rules, the rules of the previous year may be used. The signature of the mayor is not a mere ministerial act, but involves the exercise of discretion on the part of the local chief executive. [Delos Reyes v Sandiganbayan (1997)] Incidents of Law-Making (Legislative) Power Posting and Publication of: (1) Tax ordinances and Revenue measures Within 10 days after approval Certified true copies of all provincial, city, or municipal tax ordinances or revenue measures Published in full for 3 consecutive days In a newspaper of local circulation Where no such newspaper: posted in at least 2 conspicuous and publicly accessible places [Sec. 188, LGC] (2) Ordinance with penal sanctions At prominent places in the provincial capitol, city, municipal or barangay hall Minimum period: 3 consecutive weeks Publication in a newspaper of a general circulation w/in territorial jurisdiction, except barangay ordinances Effectivity: unless otherwise provided on the day following its publication or at the end of period of posting, whichever is later Violation by public officer or employee May be meted administrative disciplinary action Without prejudice to filing of appropriate civil or criminal action Duty of Secretary of Sanggunian: Shall transmit official copies to the chief executive of Official Gazette Within 7 days following approval of ordinance Purpose for publication If with penal sanction: for archival and reference purposes [Sec. 511, LGC] Judicial Intervention Actions involving the validity of a local government ordinance:

Prosecutor or attorney of the LGU involved shall be notified and entitled to be heard; Alleged to be unconstitutional: Solicitor General shall also be notified and entitled to be heard. [Sec. 4, Rule 63] The failure of the SolGen to appear in the lower court to defend the constitutionality of an ordinance is not fatal to the case. The determination of the question of WON the SolGen should be required to appear in any action involving the validity of any treaty, law, executive order, rule or regulation is a matter left to the discretion of the Court. Inasmuch as the said requirement is not mandatory, but discretionary, noncompliance therewith affected neither the jurisdiction of the trial court nor the validity of the proceedings. [Homeowners Association of the Phil. Inc. v Municipal Board of Manila (1968)]
192
Requisites for Valid Ordinance

For an ordinance to be valid exercise of police power, it must: (1) Not be contrary to the Constitution and/or statute (2) Not be unfair or oppressive (3) Must not be partial or discriminatory (4) Not prohibit but may regulate trade (5) Be General and consistent with public policy (6) Not be unreasonable [Tatel v. Mun. of Virac (1992)]
Local Initiative and Referendum Definition

NOTE: Both a resolution and an ordinance may be the proper subjects of an initiative or a referendum. [Garcia v COMELEC (1994)] (Based on LGC Sec. 120-127 and RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM) Initiative: legalprocess whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance. Referendum: legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian. Who may exercise all registered voters of the provinces, cities, municipalities and barangays
Requirements
Referendum or initiative affecting a resolution or ordinance passed by the legislative assembly of a province or city: (1) petition must be signed by at least 10% of the registered voters in the province or city, (2) of which every legislative district must be represented by at least 3% of the registered voters therein;
LOCAL GOVERNMENTS
(3) Provided, however, that if the province or city is composed only of 1 legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein. Referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3% of the registered voters therein Referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay

(2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. (3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. [Sec. 124, LGC]
193
Limitations Upon Local Legislative Bodies

Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall: (1) not be repealed, modified or amended, by the local legislative body concerned within 6 months from the date therefrom, and (2) may be amended, modified or repealed by the local legislative body within 3 years by a vote of 3/4 of all its members: Provided, however, that in case of barangays, the period shall be 18 months after the approval. [Sec. 125, LGC] Local Referendum Any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. A local referendum shall be held under the control and direction of the COMELEC within 60 days in case of provinces and cities, 45 days in case of municipalities and 30 days in case of barangays. The COMELEC shall certify and proclaim the results of the said referendum [Sec. 126, LGC] Courts are not precluded from declaring null and void any proposition approved for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. [Sec. 127, LGC] Jurisprudence
Procedure
Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution If no favorable action thereon is made by local legislative body within 30 days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned 2 or more propositions may be submitted in an initiative Proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice to collect the required number of signatures The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the LGU If the required number of signatures is obtained, the COMELEC shall then set a date for the initiative for approval of the proposition within 60 days from the date of certification by the COMELEC in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays [Sec. 122, LGC]
Effectivity of Local Propositions

If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC. [Sec. 123, LGC]
Limitations on Initiatives
(1) The power of local initiative shall not be exercised more than once a year.
LOCAL GOVERNMENTS
A resolution may be the subject of an initiative or referendum. [Garcia vs COMELEC (1994)] Initiative: power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly. Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become law. These law-making powers belong to the people and the COMELEC only exercises administration and supervision of the process. Hence, COMELEC cannot control or change the substance or the content of the legislation. COMELEC should have prepared for an initiative, not a referendum. [SBMA v. COMELEC (1996)]

justified from its inherent power to administer what it owns privately. [NAWASA v Dator (1967)] If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it; if the property is owned in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control. In which case, the municipality cannot be deprived of it without due process and payment of just compensation. [Province of Zamboanga v City of Zamboanga (1968)] Authority to Negotiate and Secure Grants Who may negotiate: Local Chief Executive (upon authority of Sanggunian) What are negotiated (1) Financial grants or donations in kind in support of basic services or facilities (2) From local and foreign assistance agencies Approval by national agency concerned General rule: No necessity of securing clearance from national agency Exception: IF with national security implications Shall be approved by national agency concerned Failure to act on request for approval within 30 days from receipt: deemed approved Reporting duty: local chief executive shall report to both Houses of Congress and the President (1) Nature (2) Amount (3) Terms (4) Within 30 days upon signing of grant agreement or deed of donation [Sec. 23, LGC]
194
6. Corporate Powers
Every LGU, as a corporation has the following powers: (SC-PCSO) (1) To have continuous succession in its corporate name (2) To sue and be sued (3) To have and use a corporate seal (4) To acquire and convey real or personal property (5) To enter into contracts (6) To exercise such other powers as are granted to corporations [Sec. 22, LGC] Limitations: as provided in LGC and other laws Corporate Seal LGUs may continue using, modify, or change their existing corporate seals. Newly established LGUs or those without corporate seals (1) May create own corporate seals (2) Registered with the DILG Change of corporate seal shall be registered with the DILG.
Ultra Vires Contracts

A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. [Dacanay vs Asistio (1992)]
7. Liability of LGUs
Specific Provisions making LGUs Liable
LGUs and their officials are not exempt from liability for death or injury to persons or damage to property. [Sec. 24, LGC] When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. [Art. 34, CC] The obligation imposed by Article 2176 is demandable not only for ones own acts or
Requisites
Requisites of Contracts entered into by local chief executive on behalf of LGU (1) Prior authorization by Sanggunian (2) Legible copy of contract posted at a conspicuous place in the Provincial capitol or City, municipal or barangay hall Jurisprudence The authority of a municipality to fix and collect rents for water supplied by its waterworks system is expressly granted by law. However, even without these provisions the authority of the municipality to fix and collect fees from its waterworks would be
LOCAL GOVERNMENTS
omissions, but also for those of persons for whom one is responsible. X X X The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. [Art. 2180(6), CC] Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. [Art. 2189, CC] -

The prosecution of crimes, even if injury occurs [Palafox vs Ilocos Norte (1958)]
195
If in the performance of a proprietary function, the LGU is liable The improper grant of a ferry service franchise [Mendoza vs de Leon (1916)] NOTE: Municipal corporations liability to private persons for the wrongful exercise of the corporate powers is the same as that of a private corporation or individual [Mendoza vs de Leon (1916)] Deaths caused by a collapsed stage in a town fiesta [Torio vs Fontanilla (1978)] Back pay or wages of employees illegally dismissed, including those involving primary governmental functions (e.g. policemen) [Guillergan v Ganzon (1966)] By Express Provision of Law (1) Article 2189, CC When a person falls in an open manhole in the city streets. [Manila vs Teotico (198)] When a person steps on a rusted nail in a flooded public market. [Jimenez vs Manila, 150 SCRA 510] When accidents are caused by defective roads even if the road does not belong to the LGU as long as it exercises control or supervision over said road. [Guilatco vs Dagupan, 171 SCRA 382] Damages suffered through accidents in national roads under the control and supervision of an LGU (cause is unsafe road conditions, especially when there is gross negligence). [Municipality of San Juan v. CA (2005)] Also exemplary damages may be granted when public officials acted with gross negligence. [Quezon City v Dacara (2005)] (2) Article 2180, CC When the State acts through a special agent [Merritt vs Government, 34 Phil 311] On Violation of Law When the Mayor refused to abide by a TRO issued by the court, he may be held in contempt. [Moday v CA (1997)] When the LGU does not pay the statutory minimum wage (mandated by law) even if there is lack of funds. [Racho vs Ilagan, Isabela (198)]
Liability for Torts, Violation of the Law and Contracts

WHEN LGU CASE If LGU fails to perform a governmental function (e.g., maintenance of roads under Art. 2189, CC or rendering aid and protection under Art. 34, CC) If engaged in proprietary functions, IS LIABLE DEFENSE Exercise of due diligence in the selection and supervision is not a defense.
Defense of due diligence in the selection and supervision available only if the function involved is a corporate function.
RATIO: because this defense is available only to private employers. WHEN LGU IS NOT LIABLE If damage resulted from an act of LGU in the performance of governmental functions Illustrations On Contract RULE: The LGU is liable only for contracts that are intra vires. The Doctrine of Implied Municipal Liability provides that an LGU may become obligated upon an implied contract to pay reasonable value of the benefits accepted by it as to which it has the general power to contract [Cebu vs IAC, 147 SCRA 447] BUT the LGU may not be estopped in order to validate a contract which the LGU is not authorized to make EVEN IF it has accepted the benefits thereunder [San Diego vs Mun. Of Naujan, 107 Phil 112] A private individual who deals with a LGU is imputed with constructive knowledge of the extent of the power or authority of the LGU to enter into contracts. Thus, ordinarily, the doctrine of estoppel does not lie against the LGU. On Tort If in the performance of a governmental function, the LGU is NOT liable
Personal Liability of Public Official

RULE: The public official is personally liable if he acts beyond the scope of his powers OR if he acts with bad faith Illustrations
LOCAL GOVERNMENTS
Mayor exceeding authority in vetoing a resolution passed by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol (1984)] - [Note that under CC27, a public servant is personally liable for damages for his refusal or neglect to perform his official duty] When the officials incorrectly ordered the construction of a drug rehabilitation center [Angeles vs CA, 21 SCRA 90] When officials illegally dismiss an employee [Rama vs CA, 148 SCRA 49] When the official defies an order of reinstatement of an illegally dismissed employee [Correa vs CFI, 92 SCRA 312] The Mayor pays for the back salaries of an illegally dismissed employee [Nemenzo vs Sabillano, 25 SCRA 1] The Governor pays for moral damages for refusing the reinstatement of an employee [San Luis vs CA (1989] A public officer, whether judicial, quasi-judicial or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in line of his official duty. [Tuzon v. CA (1992)] The holding of a town fiesta is a proprietary function, though not for profit, for which a municipality is liable for damages to 3rd persons ex contractu or ex delicto; that under the principle of respondeat superior the principal is liable for the negligence of its agents acting within the scope of their assigned tasks; and that the municipal councilors have a personality distinct and separate from the municipality [Torio v. Fontanilla (1978)] Hence, as a rule they are not co-responsible in an action for damages for tort or negligence unless they acted in bad faith or have directly participated in the commission of the wrongful act.

municipality two or more municipalities within the same province municipalities or component cities of different provinces a component city or municipality on the one hand and a highly urbanized city on the other; or two or more highly urbanized cities, concerned. sangguniang panlalawigan concerned. jointly referred to the sanggunians of the provinces concerned. jointly referred for settlement to the respective sanggunians of the parties.
196
In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.
Appeal
Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes. [Sec. 119, LGC]
Maintenance of the Status Quo

Pending final resolution of the dispute: status of the affected area prior to the dispute shall be maintained and continued for all purposes. [Sec. 18, IRR of the LGC] The power of provincial boards to settle boundary disputes is limited to implementing the law creating a municipality. Thus, provincial boards do not have the authority to approve agreements which in effect amend the boundary stated in the creating statute [Municipality of Jimenez v. Baz (1996)] The conduct of plebiscites, to determine whether or not a barangay is to be created, should be suspended or cancelled in view of a pending boundary dispute between two local governments. Precisely because territorial jurisdiction is an issue raised in the pending boundary dispute, until and unless such issue is resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. [City of Pasig v. COMELEC (1999)]
8. Settlement of Boundary Disputes

(Asked in 2005) Boundary disputewhen a portion or the whole of the territorial area of an LGU is claimed by two or more LGUs. Policy: Boundary disputes between or among LGUs shall, as much as possible, be settled amicably. [Sec. 118-119, LGC]
Jurisdictional Responsibility for Settlement of Boundary Dispute

If the LGUs involved are: two or more barangays in the same city or Boundary disputes shall be referred for settlement to: sangguniang panlungsod or sangguniang bayan
9. Succession of Elective Officials
LOCAL GOVERNMENTS Rules on Succession

a. Successors in permanent vacancies in office of local chief executive Permanent vacancy entails that an elective local official: (DR VaReReQI) (1) fills a higher vacant office; (2) refuses to assume office; (3) fails to qualify; (4) dies; (5) is removed from office; (6) voluntarily resigns; or (7) is otherwise permanently incapacitated to discharge the functions of his office. [Sec. 44, LGC: (Asked in 1995, 1996, 2002, 2008)] Office where Permanent Vacancy Occurs Governor Mayor Office of the governor or [and] vice-governor, mayor or [and] vicemayor Who Succeeds into Office Vice-governor Vice-mayor Highest ranking sanggunian member; In case of his permanent inability, the 2nd highest ranking sanggunian member; Subsequent vacancies are filled automatically by the other sanggunian members according to their ranking. Highest ranking sanggunian barangay member; In case of his permanent inability, the 2nd highest ranking sanggunian member. Office where Permanent Vacancy Occurs Member of Sangguniang Panlungsod of component cities and the Sangguniang Bayan Member of the Sangguniang Barangay

Who Succeeds into Office Person appointed by the governor Person appointed by the mayor, upon recommendation of the Sangguniang Barangay concerned Official next in rank of the organization concerned [Sec. 45, LGC (Asked in 1996, 2002)]
197
Representation of the youth and the barangay in the sanggunian
GENERAL RULE: The appointee under Sec. 45 must be a nominee of the political party under which the sanggunian member (whose elevation to the position next higher in rank created the vacancy) had been elected. Conditions sine qua non: There must be a nomination and certificate of membership from the highest official of the political party or else the appointment is: (1) null and void ab initio; and (2) a ground for administrative action against the responsible official. If sanggunian member who caused vacancy does not belong to any political party, the local chief executive shall appoint a qualified person, upon recommendation of the sanggunian. The appointee under Sec. 45 serves the unexpired term of the vacant office. Exception: Sangguniang barangay. If the vacancy pertains to barangay or youth representation in the sanggunian, the vacancy is automatically filled by the official next in rank of the organization concerned. c. Temporary vacancy in the office of the local chief executive. Examples of local chief executives temporary incapacity to perform duties for physical/legal reasons: (1) leave of absence; (2) travel abroad; (3) suspension from office. [Sec. 46, LGC] (Asked in 2002) GENERAL RULE: Vice-governor, city/ municipal vicemayor, or the highest ranking sangguniang barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive. EXCEPTION: The power to appoint/suspend/dismiss employees can be exercised only if the period of temporary incapacity exceeds 30 working days.
Office of the Punong Barangay
A tie between/among the highest ranking sanggunian members is resolved by drawing of lots. Successors under Sec. 44, LGC serve only for the unexpired terms of their predecessors. The ranking in the sanggunian is based on the immediately preceding local election: Votes obtained by the winning candidate Total number of registered voters in each district b. Permanent vacancies in the sanggunian
If automatic succession as provided in Sec. 44 does not apply, vacancy is to be filled in by appointment made as follows: Office where Permanent Vacancy Occurs Member of Sanggunian Panlalawigan or Sangguniang Panlungsod of highly urbanized cities and ICCs Who Succeeds into Office Person appointed by the President, through the Executive Secretary
LOCAL GOVERNMENTS
If the local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days, he may designate in writing the officer-in-charge. GENERAL RULE: The local chief executive cannot authorize any local official to assume the powers/duties/functions of his office, other than the vice-governor, city/municipal vice-mayor, or highest ranking sangguniang barangay member. The authorization shall specify the powers and functions that the officer-in-charge shall exercise. EXCEPTION: The power to appoint, suspend and dismiss employees. GENERAL RULE: If the local chief executive fails/refuses to issue the authorization, the vicegovernor, city/municipal vice-mayor, or highest ranking sangguniang barangay member has right to assume the powers, duties, and functions of the office on the 4th day of absence. EXCEPTION: The power to appoint/ suspend/dismiss employees. Office where Temporary Vacancy Occurs Governor Mayor Punong barangay Local chief executive traveling within the country but outside his territorial jurisdiction for a period not exceeding three consecutive days Who Temporarily Succeeds into Office Vice-governor (automatically) Vice-mayor (automatically) Highest ranking sanggunian member (automatically) 1) Person designated in writing by the said local chief executive Authorization shall specify the powers and functions that the designate will exercise, except the power to appoint, suspend, or dismiss employees 2) Vice-governor, vicemayor or highest Sangguniang Barangay member, if the local chief executive fails or refuses to designate In this case, assumption into office shall be on the 4th day of absence of the local chief executive (automatically) Jurisprudence The LGC is silent on the mode of succession when there is a temporary vacancy in the office of the vice-governor. In this case, there was a vacancy when the vice-governor automatically assumed the governorship pending the determination of who is the local chief executive. Because of such circumstances, the President, through the Secretary

of Local Government, may make the temporary appointment. [Menzon v. Petilla (1991)] A vice-governor who is concurrently an acting governor is actually a quasi-governor. Being the acting governor, the vice-governor can no longer continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the governor hinders him from discharging his duties for such office. Hence, there is an inability on t he part of the regular presiding officer, the vicegovernor, to preside during the sanggunian sessions, which calls for the election of a temporary presiding officer. [Gamboa v. Aguirre (1999)] The governor has the power to fill a vacancy in the Sangguniang Bayan caused by a member not belonging to any political party. It is the same manner as where the member belonged to a political party. Where there is no political party to make the nomination, the Sanggunian where the vacancy occurs must be considered authority for making the recommendation. The appointing authority is limited to the appointment of those recommended to his office. The recommendation is a condition sine qua non for the validity of the appointment. [Farias v. Barba (1996)] d. Termination of the Temporary Incapacity
198
Upon submission to the sanggunian of a written declaration that he has reported back to office If the temporary incapacity is due to legal causes, he must also submit the necessary documents showing that the legal causes no longer exist. e. Approval of Leaves of Absence. LOA APPROVED BY: The President or his duly authorized representative
LOCAL OFFICIAL governors; mayors of 1)highly urbanized cities or 2)independent component cities vice-governors; city/municipal vicemayors city/municipal mayors of component cities/municipalities sanggunian panlalawigan, panlungsod and bayan members; its employees punong barangays sangguniang barangay members
The local chief executive The governor The Vice-governor or city/municipal vicemayor The city/municipal mayor The punong barangay
If the application for LOA is not acted upon within 5 working days after receipt, the application is deemed approved. [Sec. 47, LGC]
LOCAL GOVERNMENTS

Penal Code; and all other general and special laws. applicable
10. Discipline of Local Officials

Elective Officials
Administrative Action AO 23, as amended by AO 159 (1994) and AO 66 (1999): Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Coverage: administrative disciplinary charges against: (1) the governors, and members of the sangguniang panlalawigan; (2) the mayors, vice mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent component cities, and component cities; and (3) the mayors, vice mayors, and members of the sangguniang panlungsod or bayan of cities or municipalities in Metropolitan Manila Disciplining Authority The President, who may act through the Executive Secretary May still constitute a Special Investigating Committee in lieu of the DILG Secretary; Nothing shall prevent the President from assuming jurisdiction at any stage of the proceedings over cases to be preliminarily investigated by the DILG; in such an event, the same shall immediately be forwarded to the Special Investigating Committee after it may have been constituted by the Disciplining Authority. Investigating Authority DILG Secretary (1) may constitute an Investigating Committee in the DILG for the conduct of investigation
How Initiated (1) by any private individual or any government officer or employee by filing a sworn written complaint (verified) (2) by the Office of the President or any government agency duly authorized by law to ensure that LGUs act within their prescribed powers and functions Elective Official against whom Administrative Complaint is Filed Provincial or city official Municipal official Barangay official Where to File Complaint Office of the President Sangguniang Panlalawigan Sangguniang Panlungsod or Sangguniang Bayan
199
Jurisprudence Supervision and discipline. The President is not devoid of disciplinary powers because he merely has supervisory powers under the Constitution. Supervision is not incompatible with disciplining authority. [Ganzon vs CA (1991)] Valid delegation. Under AO 23, the delegation of the power to investigate to the Sec of Interior is valid. What cannot be delegated is the power to discipline. [Joson vs Torres, 290 SCRA 279] Prejudicial question? The administrative investigation can proceed even during the pendency of an appeal of audit findings to the Commission on Audit [Salalima vs Guingona, 257 SCRA 55]
Jurisdiction
Power of Tribunals (1) The Ombudsman (Asked in 1999, 2003) The Ombudsman and the Office of the President have concurrent jurisdiction to conduct administrative investigations over local elective officials. The LGC did not withdraw the power of the Ombudsman under RA 6770. [Hagad v. Gozo-Dadole (1993)] Preventive Suspension under RA 6770 1. the evidence of guilt is strong; AND 2. that any of the ff. are present: a. the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; b. the charges should warrant removal Preventive Suspension under the LGC 1. there is reasonable ground to believe that the respondent has committed the act or acts complained of 2. the evidence of culpability is strong 3. the gravity of the offense so warrants; or 4. the continuance in office of the respondent could influence the
Grounds
Grounds for administrative action (discipline, suspension, removal): MAD-VAD-CO (1) Disloyalty to the Republic of the Philippines; (2) Culpable violation of the Constitution; (3) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (4) Commission of any offense involving moral turpitude or any offense punishable by at least prision mayor, which is from 6 years and 1 day to 12 years imprisonment; (5) Abuse of authority; (6) Unauthorized absence for 15 consecutive working days in case of local chief executives and 4 consecutive sessions in the case of members of the sanggunian; (7) Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of another country; and (8) Such other grounds as may be provided by the Local Government Code of 1991; Republic Act No. 6713; Republic Act No. 3019; Administrative Code of 1987; Revised
LOCAL GOVERNMENTS
from office; or c. the respondents continued stay in office would prejudice the case filed against him Maximum period: 6 mos. witnesses or pose a threat to the safety and integrity of the records and other evidence Maximum period: 60 days

the records and other evidence. [Ganzon v. CA, (1991)] [cf. suspension as a penalty] It may be imposed by the Disciplining Authority in cases where the respondent is an elective official: Local Elective Official of: provinces highly urbanized cities independent component cities municipalities component city barangay Who may impose: President, through the DILG Secretary Provincial Governor Mayor order of the suspend an who is under the Office of
200
It is not only the Ombudsman, but also his Deputy, who may sign an order preventively suspending officials. Also, the length of the period of suspension within the limits provided by law and the evaluation of the strength of the evidence both lie in the discretion of the Ombudsman. It is immaterial that no evidence has been adduced to prove that the official may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility. [Castillo-Co v. Barbers (1998)] (2) The Courts RA 3019: The term office in Sec. 13 of RA 3019 (pertaining to mandatory preventive suspension) applies to any office which the officer might currently be holding and not necessarily the particular office in relation to which the official is charged. The imposition of the suspension, though mandatory, is not automatic or self-operative. A precondition is the existence of a valid Information, determined at a pre-suspension hearing. [Segovia v. Sandiganbayan (1999)] (3) Sandiganbayan PD 1606, as amended by RA 8249 It is the officials grade that determines his or her salary, and not the other way around. An officials grade is not a matter of proof but a matter of law which the court must take judicial notice. Under Sec. 444(d) of the LGC, the municipal mayor shall receive a minimum monthly compensation corresponding to SG 27. Thus, the cases filed against the petitioner are within the exclusive jurisdiction of the Sandiganbayan. [Llorente v. Sandiganbayan (2000)] If the law states that a certain officer is within the jurisdiction of the Sandiganbayan, the fact that the officer's SG is below 27 does not divest jurisdiction. [Inding v. Sandiganbayan (2004)] RA 8249 provides that as long as one of the accused is an official of the executive branch occupying the position otherwise classified as SG 27 and higher, the Sandiganbayan exercises exclusive original jurisdiction. To vest Sandiganbayan with jurisdiction, public office must be an element of the crime OR that without the public office, the crime could not have been committed. [Rodriguez v. Sandiganbayan (2004)]
The governor shall, upon the direct Disciplining Authority, preventively elective official of a component city, formal administrative investigation by the President.
When imposed: May be imposed at any time after the issues are joined (after respondent has answered the complaint) BUT no preventive suspension shall be imposed within 90 days immediately prior to any local election. If the preventive suspension has been imposed prior to the 90-day period immediately preceding a local election, it shall be deemed automatically lifted upon the start of the period. Grounds for Preventive Suspension: (1) when the evidence of guilt is strong and, (2) given the gravity of the offense, there is a great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Period: Any single preventive suspension of local elective officials shall not extend beyond 60 days; Provided that, in the event that several administrative cases are filed against an elective official: he cannot be preventively suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension. Expiration: the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him [which shall be terminated within 120 days from formal notice of the case]. HOWEVER, if the delay in the proceeding of the case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. [Sec. 63 (c)] Compensation: officer shall receive no salary or compensation during such suspension; BUT, upon subsequent exoneration and reinstatement, he shall
Preventive Suspension [Sec. 63, LGC]

(Asked in 1990, 1996) Sole Objective: to prevent the accused official from hampering the investigation with his influence and authority over possible witnesses and keep him off
LOCAL GOVERNMENTS
be paid his full salary or compensation, including such emoluments accruing during such suspension. [Sec. 64, LGC] The provincial governor is authorized to preventively suspend the municipal mayor any time after the issues have been joined and any of the following grounds were shown to exist: (1) When there is reasonable ground to believe that the respondent has committed the act or acts complained of (2) When the evidence of culpability is strong (3) When the gravity of the offense so warrants (4) When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. There is nothing improper in suspending an officer before the charges are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. When a local government official believes that he has been wrongfully suspended, the proper procedure is to exhaust administrative remedies, i.e. seek relief from the DILG Secretary, and not to file a case in court. [Espiritu v. Melgar (1992)] Piecemeal suspensions should not be issued. If there are several administrative cases against a public official, these cases should be consolidated for the purpose of ordering preventive suspension, instead of issuing an order of suspension for each case. Elective local officials should be given the benefit of simultaneous service of suspension. [Ganzon v. CA (1991)] NOTE: The ruling in this case as to simultaneous service of suspension is more of an exception than the rule, because of the following circumstances: Three separate orders of 60-day preventive suspension were issued against Ganzon Another order of preventive suspension was issued before the SC promulgated the decision ruling that suspension should not be issued piecemeal The simultaneous service of suspension will lessen the harsh effects of whatever ill motive may be behind the successive suspension orders issued Rights of the Respondent Official: Full opportunity to: (1) Appear and defend himself in person or by counsel

(2) Confront and cross-examine the witnesses against him (3) Require attendance of witnesses and the production of documentary evidence in his favor through subpoena or subpoena duces tecum. [Sec. 65, LGC] Due process. The petitioner has the right to a formal investigation under AO 23. Where the Sec denied the motion for a formal investigation and decided the case on the basis of position papers, the right of the petitioner was violated. [Joson vs Torres, 290 SCRA 279] Form and Notice of Decision (1) Shall be terminated within 90 days from start thereof. (2) Office of the President or Sanggunian concerned to render decision Within 30 days from end of investigation In writing Stating clearly facts and reasons (3) Furnish copies to respondent and interested parties. [Sec. 66(a), LGC] NOTE: Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. [Nachura] Penalty of Suspension Limitations: The penalty of suspension: (1) shall not exceed the unexpired term of the respondent (2) shall not exceed a period of 6 months for every administrative offense (3) shall not be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. [Sec. 66, LGC] When the respondent has been meted 2 or more penalties of suspension for 2 or more administrative offenses, such penalties shall be served successively [AO No. 159, Amending AO 23, Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials, 1994]
201
Removal
An elective local official may be removed by order of the proper court. [Sec. 60, LGC] The penalty of removal from office as a result of administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. [Sec. 66(c), LGC] [cf. effect of penalty of suspension] Proper court order Local legislative bodies and/or the Office of the President cannot validly impose the penalty of dismissal or removal from service on erring local elective officials. It is clear from Sec. 60 of LGC that an elective local official may be removed from office
LOCAL GOVERNMENTS
on the grounds enumerated above only by order of the proper court. Art. 124 (b), Rule XIX of the Rules and Regulations Implementing the LGC, which states that an elective local official may be removed from office by order of the proper court or the Disciplining Authority whichever first acquires jurisdiction to the exclusion of the other is void for being repugnant to Sec. 60, LGC. But if its appointive, the OP may remove. [Pablico v. Villapando (2002)] Petitioners contest the administrative action as being violative of Sec. 60, which mandates that an elective local official may be removed from office only by order of the court, since the duration of the suspension being 12-20 months exceeded their remaining terms. The suspension was allegedly tantamount to a removal. An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60. Assuming for the moment that the Office of the President is correct in its decisions in each of the subject four administrative cases: It committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners term of office. What is important is that the suspension imposed for each administrative offense did not exceed six months. [Salalima v. Guingona (1996)]

An appeal shall not prevent a decision from becoming final or executory. If respondent wins the appeal, he shall be considered as having been placed under preventive suspension during the pendency of the appeal. If the appeal results in an exoneration, he shall be paid his salary and other emoluments during the pendency of appeal. [Sec. 68, LGC] Sec. 68 of the LGC merely provides that an appeal shall not prevent a decision from becoming final or executory. As worded, there is room to construe the provision as giving discretion to the reviewing officials to stay the execution of the appealed decision. [Berces v. Guingona (1995)] The phrase final or executory in Secs. 67 and 68 simply means that administrative appeal will not prevent the enforcement of the decision. [Mendoza vs Lacsina (2003)] Effect of Re-election (Asked in 2000) Re-election renders the administrative complaint against the local official moot and academic. A public official cannot be removed for administrative misconduct committed during a prior term, since the re-election to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefore. But this rule is applicable only to administrative cases, not to criminal cases. [Aguinaldo v. Santos (1992)]
202
Doctrine of Condonation
When re-election considered a condonation: if the proceedings are abated due to elections. In this case, there is no final determination of misconduct [Malinao v. Reyes (1996)] Subsequent re-election cannot be deemed a condonation if there was already a final determination of his guilt before the re-election [Reyes v. COMELEC (1996)]
Administrative Appeal
Within 30 days from receipt of decisions: Decisions of: Sangguniang Panlungsod of component cities Sangguniang Bayan Sangguniang Panlalawigan Sangguniang Panlungsod of: - highly urbanized cities - independent component cities Office of the President May be appealed before: Sangguniang Panlalawigan Office of the President
Appointive Officials
The appointing authority is generally the disciplining authority. Disciplinary Jurisdiction [Sec. 87, LGC] Except as otherwise provided by law, the local chief executive may impose: (1) Removal from service (cf. elective officials) (2) Demotion in rank (3) Suspension for not more than 1 year w/o pay If not more than 30 daysnot appealable If more than 30 daysappealable to the CSC (4) Fine not exceeding 6 months salary (5) Reprimand (6) Or otherwise discipline subordinate officials and employees under his jurisdiction.
final and executory; may not be appealed [Sec. 67, LGC]
LOCAL GOVERNMENTS
No remedy of appeal if the decision of the administrative case exonerated the office or employee. Party adversely affected in PD 807 or The Philippine Civil Service Law only refers to the government employee against which the case is filed. [Mendez vs. CSC (1991)] The City Treasurer has authority to discipline his subordinates. The power to discipline is specifically granted by the Revised Administrative Code to heads of departments, agencies and instrumentalities, provinces and cities. The power to commence administrative proceedings against subordinate officers is granted by the Omnibus Rules to the secretary of department, head of office, head of LGU, chief of agency, regional director, or person with sworn written complaint. The City Treasurer may also motu proprio institute disciplinary proceedings against subordinates. These rules must be reconciled with the LGC, which gives the mayor the authority to institute administrative and judicial proceedings against any official or employee of the city. In cases involving employees of the city treasurers office, the mayor must file his complaint with the treasurers office or with the DOF. [Garcia vs. Pajaro (2002)] [Sangguniang Bayan of San Andres v. CA (1998)]: (Asked in 2000) Requisites to constitute resignation: (1) Intention to relinquish a part of the term (2) Act of relinquishment (3) Acceptance by the proper authority Essential elements of abandonment: (1) Intent to abandon (2) Overt act by which the intention is to be carried into effect

on recall. Thus, if the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office. [Sec. 72, LGC] Prohibition on resignation: An Elective local official sought to be recalled is not allowed to resign while the recall process is in progress. [Sec. 73, LGC] Expenses: The Annual General Appropriations Act contains a provision for a contingency fund at the disposal of the COMELEC. [Sec. 75, LGC] RA 9244: An Act Eliminating the Preparatory Recall Assembly as a Mode of Instituting Recall of Elective Local Government Officials, Amending for the Purpose sec. 70-71 of the LGC of 1991. Sec. 70. Initiation of the Recall Process (PCPVA) Petition of a registered voter in the LGU concerned, supported by a percentage of registered voters during the election in which the local official sought to be recalled was elected. (Percentage decreases as population of people in area increases. Also, the supporting voters must all sign the petition) Within 15 days after filing, the COMELEC must certify the sufficiency of the required number of signatures. Failure to obtain the required number automatically nullifies the petition. Within 3 days from certification of sufficiency, COMELEC provides the official with a copy of the petition and causes its publication for 3 weeks (once a week) in a national newspaper and a local newspaper of general circulation. Petition must also be posted for 10 to 20 days at conspicuous places. PROTEST SHOULD BE FILED AT THIS POINT and ruled with finality 15 days after filing. COMELEC verifies and authenticates the signatures. COMELEC announces acceptance of candidates Election on Recall COMELEC sets election within 30 days upon completion of previous section in barangay/city/municipality proceedings (45 days in case of provinces). Officials sought to be recalled are automatically candidate. [Sec. 71, LGC] Jurisprudence A petition for recall that is signed only by the petitioner but does not bear the names of the citizens who have allegedly lost confidence in the official should be dismissed. [Angobung vs Comelec (1997)] Whether or not the electorate of the municipality has lost confidence in their incumbent mayor is a
203
Removal In interpreting its own rules as it did, the CSC was acting within its constitutionally delegated power to interpret its own rules. The CSC, by ruling that the employee took an automatic leave of absence, was merely interpreting its own rule on requirement of approved leave. [City Government of Makati City v. CSC (2002)]
11. Recall
(Asked in 2002) Recall is a mode of removal of a public official by the people before the end of his term of office. [Garcia v. COMELEC, (1993)] Who has the power of recall: Power of recall for loss of confidence is exercised by the registered voters of the LGU. [Sec. 69, LGC] Effectivity: Upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election
LOCAL GOVERNMENTS
political question. Loss of confidence is the formal withdrawal by the electorate of their trust in a persons ability to discharge his office previously bestowed on him by the same electorate. [Evardone v. COMELEC (1991)] Recall is a mode of removal of a public official by the people before the end of his term of office. The peoples prerogative to remove a public official is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. [Garcia v. COMELEC (1993)] The Liga ng mga Barangay and the Preparatory Recall Assembly are entirely different entities even if they may have the same members. [Malonzo vs Comelec (1997)] NOTE: Under RA 9244, the Congress removed the Preparatory Recall Assembly as a mode of recall. A Regular local election is necessary in order to replace the local elective official who is sought to be recalled. This does not include SK elections. [Paras v. COMELEC (1996)] Limitations on the Holding of Recalls Any elective official may be the subject of a recall election only once during his term of office for loss of confidence. No recall shall take place: (1) Within 1 year from the date of assumption of office of the official concerned Rationale: to provide a reasonable basis for judging the performance of an elective local official (2) Within 1 year immediately preceding a regular local election Rationale: a recall election is potentially disruptive of the normal working of the LGU necessitating additional expenses [Sec. 74, LGC] Note: Recall, as used in par. b, sec. 74 prescribing the 1year limitation, refers to the election itself (not the process of initiating the recall proceedings). The purpose of the 1-year limitation from assumption is to prevent premature action without having sufficient time to evaluate the officials performance. As long as the election is held outside the 1-year period, the preliminary proceedings to initiate recall can be held even before the end of 1 year from assumption. The 1-year period before regular local election does not include the campaign period. [Claudio v. COMELEC (2000)]
12. Term Limits

(Asked in 1995, 2001, 2005, 2006, 2008) All elective local officials, except barangay officials [Sec. 8, Art. X; Sec. 43 LGC] Term of office: 3 years from noon of June 30, 1992 or the date provided by law All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992; No official shall serve for more than 3 consecutive terms for the same position; Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected Barangay officials and members of the Sangguniang Kabataan Term of office: 3 years After the regular election of barangay officials on the second Monday of May 1994 [Sec. 43, LGC] Existing sub-provinces converted into regular provinces New legislative districts continue to be represented in Congress by the duly-elected representatives of the original districts out of which the new provinces or districts were created until their own representatives are elected in the next regular congressional elections and qualified Vacancy in the offices occupied by incumbent elected officials or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results: by appointment of the President; appointees shall hold office until their successors are elected in the regular local elections following the plebiscite After conversion of the newly-created province, President shall appoint: (1) Governor (2) Vice-governor (3) Members of the sangguniang panlalawigan who shall hold office until their successors are elected in the next regular local elections and qualified. [Sec. 462 LGC] Qualified appointive officials and employees in the career service of the subprovinces at the time of their conversion into regular provinces shall continue in office in accordance with civil service law, rules and regulations.
204
LOCAL GOVERNMENTS
RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Term of office of barangay kabataan officials: 3 years and sangguniang

from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-avis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. [Farias v. Executive Secretary (2003)] What constitutes term of office? The Constitution contemplates service by local officials for three consecutive terms as a result of an election. The term limits for elective local officials must be taken to refer to: (1) the right to be elected and (2) the right to serve in the same elective position. Consequently, it is not enough that an individual has fully served three consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. [Borja v. COMELEC (1998)] Effect of judicial declaration that the officials proclamation is void: His assumption of office in 1995 cannot be deemed to have been by reason of a valid election. Also, he did not fully serve the 199598 mayoral term by reason of involuntary relinquishment of office as he was ordered to vacate his post before the expiration of the term. Although he served the greater portion of the said term, he should not be considered disqualified because he did not serve three full consecutive terms. [Lonzanida v. COMELEC (1999)] Effect of Recall Elections: An official has served for three consecutive terms. He was elected in the recall election for the term of his predecessor. There was no violation of the 3-term rule. The Constitution does not require that the interruption be a full term of 3 years. The clear intent of the framers of the law is that interruption for any length of time is sufficient to break an elective local officials continuity of service. [Socrates v. COMELEC (2002)]
205
No barangay elective official shall serve for more than 3 consecutive terms in the same position Reckoned from the 1994 barangay elections Voluntary renunciation of office for any length of time shall not be considered as an interruption [Sec. 2] RA 9006 Fair Election Act (2001) An elective official running for any office other than the one which he is holding in a permanent capacity, is no longer considered ipso facto resigned from his office upon the filing of his certificate of candidacy. [Sec. 14] Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP 881 or the Omnibus Election Code which states that any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 14 of RA 9006 did not repeal Section 66 of the Omnibus election Code, leaving intact Section 66 thereof which imposes a limitation to appointive officials and considers them ipso facto resigned from office upon filing of their certificate of candidacy By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited
LOCAL GOVERNMENTS
Effect of Conversion of the LGU: The mayor of a municipality held his post for three terms. During his last term, the municipality became a city and he was declared hold-over mayor by the charter. The said mayor should not be allowed to run again. If he were allowed to do so, he would have served the same people for a term more than what is allowed by law [Latasa v. COMELEC (2003)] Effect of Preventive Suspension: Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended officials continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. [Aldovino v. COMELEC, G.R. No. 182867, November 25, 2008]
206
LOCAL GOVERNMENTS
Annex A
Requirements Income Province LGC 460-461 Average annual income, as certified by the DOF, of not less than P20,000,000 based on 1991 constant prices 250,000 inhabitants City RA 9009 (2001) Average annual income, as certified by the DOF, of at least P100,000,000 for the last 2 consecutive years based on 2000 constant prices 150,000 inhabitants Municipality LGC 441-442 Average annual income, as certified by the provincial treasurer, of at least P2,500,000 for the last two consecutive years based on 1991 constant prices 25,000 inhabitants Barangay LGC 385-386 No minimum requirement for income
207
Population
Territory
contiguous territory of at least 2,000km2 territory need not be contiguous if it comprises 2 or more islands or is separated by a chartered city or cities which do not contribute to the income of the province
contiguous territory of at least 100km2 requirement on land area shall not apply where the city proposed to be created is composed of 1 or more islands; the territory need not be contiguous if it comprises 2 or more islands By an Act of Congress
contiguous territory of at least 50km2 Same as CITY.
2,000 inhabitants 5,000 inhabitants, in cities and municipalities within MM and other metropolitan political subdivisions or highly urbanized cities No minimum requirement for area Territory need not be contiguous if it comprises 2 or more islands
Manner of Creation
By an Act of Congress
By an Act of Congress
Plebiscite (in LGUs directly affected)
Approval must be by majority of the votes cast; except otherwise provided in the Act of Congress, the plebiscite shall be held within 120 days from effectivity of the law or ordinance effecting such action
By law or by an ordinance of the sangguniang panlalawigan or panlungsod; In case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary By an Act of Congress, to enhance the delivery of basic services in indigenous cultural communities Approval must be by majority of the votes cast; plebiscite shall be held within such period of time as may be determined by the law or ordinance creating said barangay.
LOCAL GOVERNMENTS
Annex B
Reviewed by Furnish copies of ordinances or resolution within Component City or Municipality Ordinances and Resolutions Sangguniang panlalawigan 3 days after approval of ordinance or resolution approving the local development plans and public investment programs formulated by the local development councils 30 days after receipt of copies, after which the ordinance or resolution is presumed valid if no action is taken. Within 30 days, it may also be transmitted to the provincial attorney or prosecutor for examination; said atty. or prosecutor shall give his written recommendations within 10 days from receipt of document Ordinance or resolution is beyond the power conferred upon the Sanggunian concerned Barangay Ordinances Sangguniang panlungsod or sangguniang bayan 10 days after enactment of ALL ordinances
208
Period to examine documents
30 days after receipt of copies, after which ordinance is presumed valid if no action is taken
Ground to invalidate ordinance or resolution
Ordinance is inconsistent with law and city or municipal ordinances In such case, the sangguniang barangay may adjust, amend or modify the ordinance within 30 days from receipt from the sangguniang panlungsod or sangguniang bayan
2012
POLITICAL
LAW

PUBLIC INTERNATIONAL LAW

directly offended, but of all states (i.e. outlawing acts of genocide or aggression).

POLITICAL LAW Concepts International and National Law Sources Subjects Diplomatic and Consular Law Treaties Nationality and Statelessness Treatment of Aliens International Human Rights Law International Humanitarian Law (IHL) and Neutrality K. Law of the Sea L. International Environment Law A. B. C. D. E. F. G. H. I. J.
2. Jus Cogens
Definition A jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement. Illustrations The prohibition against the use of force under the UN Chater [Nicaragua Case] Law on genocide Principle of self-determination Principle of racial non-discrimination Crimes against humanity Prohibition against slavery and slave trade Piracy [Brownlie; Magallona]
210
A. Concepts
1. Obligations Erga Omnes 2. Jus Cogens 3. Concept of Aeguo Et Bono Formal Sources vs. Material Sources Formal sources consist of the methods and procedures for the creation of rules of general application which are legally binding upon States. Material sources, upon the other hand, are the substantive evidence of the existence of the norms. Material sources supply the substance of the rule, while formal sources confer upon it the force of law. Lex lata vs. Lex ferenda Lex lata what the law is Lex ferenda what jurists think the law should be or will become
3. Concept of Aequo Et Bono

Ex Aequo et Bono the court may apply this standard of what is equitable and good to decide a case when the parties to the dispute so agree. Judgment will not be on the basis of the sources of international law listed in Art. 38(1), ICJ Statute, but on grounds of fairness and justice. The Court may have to rely on its understanding of the broader context of equity and outside the accepted norms of law under Art. 38(1), ICJ Statute. This may mean simply that the Court may reach fair compromise in balancing the interests of the parties.
1. Obligations Erga Omnes

Erga Omnes Norms International obligations of such character and importance that: (1) their violation by any state allows any other state to invoke the violator's liability, (2) even if only one state or only a few incurred direct material damage. It usually has to do with issues on standing. Illustrations Outlawing of acts of aggression and of genocide Principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination [Barcelona Traction Case] In the Barcelona Traction Light and Power Co. Case, the grant of standing to sue because of violations of an erga omnes obligation is premised on the idea that the maintenance of some norms are of interest to the entire world community, their violation being an injury to the interest, not only of the state
B. International and National Law

Municipal Law deals with the conduct or status of individuals, corporations, and other private entities within states. PIL may be distinguished therefrom in that it prescribes rules and processes that govern the relations of states with each other, and the rights of other entities insofar as they implicate the community of states (note: whom it governs). (vs. PIL, Asked 1 time in the Bar)
Relationship between PIL and Municipal Law

Although distinct, PIL and Municipal are interrelated: (1) The role of international law within the national legal order norms or principles of international law may be incorporated or transformed into national law and applied or enforced within the territorial jurisdiction of a State as part of the law of the land. (a) Incorporation norms of international law are deemed part of national law

(b) Transformation defines the requisite act which must be fulfilled before they become part of national law (2) The role of national law in the international legal regulation a State cannot invoke its own national law to resist an international claim or excuse itself from breach of duty under international law [Polish Nationals in Danzig Case; VICLOT] Below are the four theoretical views on how they are related [CARTER AND TRIMBLE]:

(2) International Custom, as evidence of a general custom accepted as law; (3) General Principles of Law recognized by civilized nations; [Article 38, ICJ Statute]
211
Subsidiary Sources
(1) Judicial Decisions; and (2) Teachings of the most highly qualified publicists of the various nations (Art. 38, ICJ Statute). (a) Treaties, Customs and General Principles (Primary Sources) create law, while court decisions publicists teachings constitute evidence of what is the law. (b) With respect to the three primary sources, the order the enumeration does not provide a hierarchy in all cases. Thus, although treaties are mentioned first, they are not ipso facto superior to customs and general principles.
Monist View
International and municipal legal systems are fundamentally part of one legal order. This view considers international law to be superior, with municipal law being a mere subset of international law. Thus, international norms are applicable within municipal system seven without some positive act of the State.
Dualist View
International law and municipal law are separate systems. Only those problems affecting international relations are within the scope of international law. Thus, before an international norm can have an effect within a municipal legal system, that norm must be transformed, or adopted into the municipal system through a positive act by a State organ. (Exception: Customary International Law and General Principles of International Law)
1. Treaty as Source of Law

A 'treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation" [Art.2(1), Vienna Convention on the Law of Treaties (VCLOT)] Under the VCLOT, the term treaty includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Although they are equally binding, only treaties require the concurrence of the Senate to be effective. [Sec. 21, Art. VII, 1987 Constitution] Pacta sunt servanda: A state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith. [Art.26, VCLOT] Pacta tertiis nec nocet nec prosunt: Treaty Obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented. [Art. 34, VCLOT] As a general rule, treaties do not bind non-parties to the treaty. Treaties shall be further discussed on the Chapter on the Law of Treaties.
Monist-Naturalist View
PIL is superior to municipal law, and that both systems are but a part of a higher system of natural law.
Coordinationist View
International law and municipal law operate in different spheres, but municipal law is (generally) obliged to be in conformity with international law.
C. Sources
1. 2. 3. 4. 5. Treaty as Source of Law Customary International Law General Principle of Law Subsidiary Source: Judicial Decisions Subsidiary Source: Publicists
Primary Sources
(1) International Conventions, whether general or particular, establishing rules expressly recognized by the contracting states (Treaties);
2. Customary International Law

Norms of international law are those that result from a general and consistent practice of states which

they follow under a sense of legal obligation. For custom to exist, it requires the concurrence of 2 elements: (1) State Practice and (2) Opinio juris. Unlike treaties, customary norms are legally binding upon states regardless of whether they consent, subject to the Persistent Objector rule.

Custom may be: General binding upon all or most states or Particular binding between only two or among a few states. In cases it has decided, the ICJ has indeed recognized the possibility of regional custom (Asylum Case) and of bilateral custom. [Right of Passage over Indian Territory Case] No particular length of time is required for the formation of customary norms. What becomes necessary is such length of time as to make manifest the existence of the two elements of custom. [Magallona] Norms or Principles of Customary International Law as Identified by the Philippine Supreme Court as forming part of Philippine Law (1) Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention [Kuroda v. Jalandoni (1949)] (2) Pacta sunt servanda [La Chemise Lacoste v. Fernandez (1984)] (3) Human Rights as defined under the Universal Declaration of Human Rights [Reyes v. Bagatsing (1983)] (4) The principle of restrictive sovereign immunity [Sanders v. Veridiano (1988)] (5) The principle in diplomatic law that the receiving State has the special duty to protect the premises of the diplomatic mission of the sending State [Reyes v. Bagatsing (1983)] (6) The right of a citizen to return to his own country [Marcos v. Manglapus (1989)] (7) The principle that a foreign army allowed to march through friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from criminal jurisdiction of the place. [Raquiza v. Bradford (1945)] (8) The principle that judicial acts not of a political complexion of a de facto government established by the military occupant in an enemy territory, is valid under international law. [Montebon v. Director of Prisons (1947)] (9) The principle that private property seized and used by the enemy in times of war under circumstances not constituting valid requisition does not become enemy property and its private ownership is retained, the enemy having acquired only its temporary use. [Noceda v. Escobar (1950)] (10) The principle that a State has the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas [Asaali v. Commissioner (1968)] Principle of Persistent Objector When a State has continuously objected to a new customary norm at the time when it is yet in the
212
Elements State Practice

For custom to exist, the customary practice must be both consistent and general. (1) Consistency requires substantial uniformity, and not necessarily complete uniformity in practice. (2) Generality likewise does not require universality. The absence of protest could be considered evidence of the binding nature of customary practice. [Akehurst] Acts Evidencing State Practice (1) Diplomatic correspondence (2) Policy statements (3) Press releases (4) Opinions of official legal advisers (5) Official manuals on legal decisions (executive decisions and practices; government comments on drafts by the ILC) (6) International and national judicial decisions (7) Recitals in treaties and international instruments (8) Practice of international organs [Harris] UN General Assembly Resolutions are generally just recommendations. They have no binding effect under the Charter, save in limited fields like budgetary concerns. However, such resolutions may nonetheless be an evidence of state practice that is relevant in the development of custom.
Opinio juris sive necessitatis

Refers to the belief on the part of States that a particular practice is required by law, and not because of courtesy or political expediency. It is the existence of opinio juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol. Opinio juris means that general practice embodied in a rule must have been done out of a recognition that it is a legal norm and therefore obligatory. [North Sea Continental Shelf Case, ICJ Reports, 1969] Note: It is not a maxim, it is an element required in order for custom to come into fruition. Scope

process of formation, by such persistent objection the norm will not be applicable as against that State. [Magallona] The ten-mile rule [in the delimitation of territorial waters cross bays] would appear to be inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast. [Anglo-Norwegian Fisheries Case]

questioning Annex I thereof, which showed that the Temple of Preah Vihear was within Cambodian territory [Temple of Preah Vihear Case] Procedural Rules the use of circumstantial evidence, hearsay evidence (press reports).
213
Duality of Norms
It is possible for a norm of international law to exist both as a customary norm and a conventional norm (ex. The Prohibition against the Use of Force). Such norms are said to be of dual character. Norms of dual character come into being through any of the following ways: (1) A treaty provision may simply restate a customary norm (as is true of many of the provisions in the VCLOT; (2) A treaty provision may constitute evidence of custom; (3) A treaty provision may crystallize into a customary norm. For a treaty provision to crystallize into custom, the provision must be norm-creating. The treaty must be law-making, creating legal obligations which are not dissolved by their fulfillment. The number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong lawcreating effect at least as great as the general practice considered sufficient to support a customary rule. [Brownlie] The customary norm retains a separate identity even if its content is identical with that of a treaty norm. Thus, a state that cannot hold a state responsibility for a breach of a treaty obligation can still hold the erring state responsible for the breach of the identical customary norm. [Nicaragua vs. US Case]
Press reports can be used to corroborate the existence of a fact; and, when they demonstrate matters of public knowledge which have received extensive press coverage, they can be used to prove a fact to the satisfaction of the court [Nicaragua vs. US Case, 62-63] Circumstantial evidence is admitted as indirect evidence in all systems of law and its use is recognized by international decisions. Such circumstantial evidence, however, must consist of a series of facts or events that lead to a single conclusion. [Corfu Channel Case] Substantive duty to make reparations, principle of reciprocity, pacta sunt servanda, separate corporate personality [Barcelona Traction Case]
The Standard of Full Reparations: Every breach of an engagement (international obligation) entails the obligation to make reparation. The amount of reparation required is that amount which is necessary to bring the injured party back to the situation had the wrong not occurred [Chorzow Factory Case] Jurisdictional Principles The power of a tribunal to determine the extent of its own jurisdiction (competence de la competence).
3. General Principles of Law

Refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states. [Oppenheim] Unlike custom, it does not require to be supported by state practice that is consistent and virtually uniform; it being sufficient that such principle is found in a number of legal jurisdictions. [Roque] Illustrations Principles in Roman Law estoppel, res judicata, res inter alios acta, prescription. When Thailand did not object to, and has in fact benefited from, the Treaty of 1904 for 50 years, it is deemed to have accepted said treaty. It is thereby precluded from
Note: International tribunals have not been consistent in their manner of determining whether a principle in municipal law constitutes a general principle. In some instances they have examined different legal systems; in others, they merely declared a principle in municipal law as constituting a general principle of international law.
4. Subsidiary Source: Judicial Decisions

Preliminary note: International law does not follow the rule on stare decisis. Art. 59 of the ICJ State (which Art.38(1)(d) makes reference to) expressly limits the effect of a decision only to the parties to the case. Be that as it may, decisions of international tribunals exercise considerable influence as impartial and well-considered statements of the law by (qualified) jurists made in light of actual problems. Decisions of international tribunals constitute evidence of the state of the law. [Brownlie]
5. Subsidiary Source: Publicists

Writings of highly qualified publicists likewise constitute evidence the state of the law. The problem, though, is that some publicists may be expressing not what the law is (lex lata), but what they think the law should be or will be (lex ferenda). Other Sources (1) Ex Aequo et Bono the court may apply this standard of what is equitable and good to decide a case when the parties to the dispute so agree. (2) Equity refers to the application of standards of justice that are not contained in the letter of existing law. It has often been applied in cases involving territorial disputes and maritime delimitations. (3) Unilateral Declarations declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other states is required for such declaration to take effect. Verily, unilateral declarations bind the State that makes them. Eastern Greenland case: The ICJ held that Denmark not only had a superior claim over the contested territory, but that Norway was further bound by the Ihlen Declaration not to oppose Denmarks claim. The Ihlen Declaration is a statement made by the Norwegian Foreign Minister, Nils Claus Ihlen, on the topic of Denmark's sovereignty over Greenland, which Mr. Ihlen declared verbally to the Danish Minister that the plans of the Royal [Danish] Government respecting Danish sovereignty over the whole of Greenland would be met with no difficulties on the part of Norway." Also in the Nuclear Test cases, France declared that it would cease atmospheric nuclear tests. This signaled that there had ceased to be a dispute, since it had bound itself to do what Australia and New Zealand wanted.
A State is a quintessential example of a subject of international law. By contrast, an Object of International Law is the person or thing in respect of which rights are held and obligations are assumed by the subject. It is, therefore, not directly governed by the rules of international law. Its rights may be asserted and its responsibilities imposed indirectly, through the instrumentality of an intermediate agency (the subject). For example, individuals are objects in respect of which human rights obligations are imposed upon States. When an individuals human rights is violated by another State, the aggrieved persons State of nationality may espouse his claim and invoke the erring states responsibility (see: Discussion on Diplomatic Protection in Chapter 5, Part V). Notwithstanding this distinction, both subjects and objects are considered actors in international law. They are:
214
1. States
States remain the most important actors in international law. It possesses objective or erga omnes personality, not merely by virtue of recognition on the part of particular states. Objective (general) international personality exists wherever the rights and obligations of an entity are conferred by general international law, e.g. states Special (particular) international personality exists where an entity is established by particular States for special purposes A state is defined as a group of people, more or less numerous, permanently living in a definite territory, under an independent government organized for political ends and capable of entering into legal relations with other states [Art. 1, Montevideo Convention on the Rights and Duties of States (1933)]
Requisite Elements
a. People The term people refers to an aggregate of individuals of both sexes who live together as a community despite racial or cultural differences. Although no minimum number is provided, they should be permanent, and sufficient to maintain and perpetuate themselves. b. Territory State territory is that defined portion of the surface of the globe which is subjected to the sovereignty of the State. [Oppenheim] A state must exercise control over a certain area. It need not be exactly defined by metes and bounds, so long as there exists a reasonable certainty of identifying it. No minimum land area is required.
D. Subjects
1. States 2. International Organizations 3. Individuals Subjects of International Law refer to entities: (1) capable of possessing international rights and duties; and (2) having the capacity to maintain these rights by bringing international claims [Reparations for Injuries Advisory Opinion (1949)]

Modes of acquiring territorial sovereignty (1) Occupation of a territory not subject to the sovereignty of any other state (original); this refers not to mere discovery but effective exercise of sovereignty over a territory which is terra nullius Effective occupation means continued display of authority which involves 2 elements each of which must be shown to exist: (a) the intention and will to act as sovereign, and (b) some actual exercise or display of such authority. [Eastern Greenland Case] Animus occupandi must be demonstrated and evidenced by some administrative or political acts in relation to the territory in question and such acts must be under titre de souverain (title of sovereignty). To constitute effective occupation, exercise of sovereignty must be peaceful, actual, continuous and sufficient to confer valid title to sovereignty. (2) Cession the transfer of territory from one state to another by treaty (derivative); only bilateral mode of acquisition The validity of cession depends on the valid title of the ceding state; the cessionary state cannot have more rights than what the ceding state possessed. [Magallona] (3) Prescription title is acquired by through continuous and undisturbed exercise of sovereignty over a period of time (derivative) Requisites: (a) Possession that must be exercised titre de souverain (b) Peaceful and uninterrupted (c) Public (d) Endure for a certain length of time [Johnson] (4) Accession or accretion the natural process of land formation resulting in the increase of territory (original) c. Government Government is the physical manifestation of a state. Government must be organized, exercising control over and capable of maintaining law and order within its territory. Note: Under the Rules on Succession of States, even changes of entire governments do not affect the identity and personality of the state. Once statehood is established, neither invasion nor disorder alone can remove its character as a state. [Brownlie] i. Effective Government Although an effective government is the best evidence of the existence of a State,

an effective government is not always strictly necessary (BROWLIE). The requirement of effective government is not strictly applied when the State, already long-existing, happens to undergo a period of civil strife or internal chaos due to natural disaster or invasion. Thus, with the collapse of their governments, Afghanistan and Somalia were deemed failed states, but they remained states. Further, some states were deemed states even before their governments were "very well organized" (ex. Poland, Burundi, and Rwanda). ii. Governments de facto & de jure A government de jure is a government from law, that is, one with a color of legitimacy. A government de facto is one that governs without a mandate of law. So long as it is in place, it may command obedience from the inhabitants of the occupied area. The de facto ruler may suspend laws and enact new ones. The establishment of a de facto government does not by itself abolish all laws and structures established by the deposed government. Only laws of political nature affecting political relations are suspended ipso facto; laws that enforce public order and regulate social and commercial life remain in effect unless they are changed by the de facto sovereign. Conversely, the re-establishment of the de jure government does not void the acts of the preceding de facto government. Three kinds of de facto government: Government de facto in the strict legal sense is that which usurps either by force or the will of the majority the legal government and maintains and control against it; Government by paramount force is that which results from the occupation of a state or a part thereof by invading forces in time of war; and Government established as an independent government by inhabitants of a country who rise in insurrection against the parent state. d. Independence or Sovereignty (Asked 1 time in the Bar)
215

Refers to the capacity to enter into relations with other states. A state must be free from outside control in conducting foreign and internal affairs. It has, however, been advanced that the fact that a State may be acting under the direction of another State is not of concern to international law. [Salonga] The practice of states has been to ignoreso far as the issue of statehood is concernedvarious forms of political and emotional blackmail and interference directed against the weaker members of the community." Thus, it is sufficient for a State to possess external appearance of capacity to enter into international relation. [Brownlie]

government established as a result of external aggression [US Sec. of State Henry Stimson (1932)] Estrada Doctrine (Asked 1 time in the Bar) dealing or not dealing with the government established through a political upheaval is not a judgment on the legitimacy of the said government [Mexican Minister Genaro Estrada (1930)]
216
Recognition
Act by which a state acknowledges the existence of another state, government or belligerent community and indicates willingness to deal with the entity as such under international law. As a public act of state, recognition is an optional and political act and there is no legal duty in this regard. Legal functions of recognition The typical act of recognition has 2 legal functions: (1) The determination of statehood as a question of law which may have evidential effect before a tribunal, and (2) A condition of the establishment of formal, optional, and bilateral relations, including diplomatic relations and the conclusion of treaties; also described by some jurists as constitutive Declaratory View vs. Constitutive View (Asked 1 time in the Bar). The Declaratory View (Prevailing recognition is a mere acknowledgement of an existing fact, legal personality having conferred by operation of law. View) posits that declaration or state of law and been previously
Effects of recognition: (1) Diplomatic relations (2) Right to sue in courts of recognizing state (3) Right to possession of properties of predecessor in the recognizing state (4) All acts of the recognized state or government are validated retroactively, preventing the recognizing state from passing upon their legality in its own court.
2. International Organizations
The status and powers of an IO is determined by agreement and not by general or customary international law. IOs are considered subjects of international law if their legal personality is established by their constituent instrument (charter). Further, its constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organization. Thus, legal personality in this context is a relative concept. [Magallona]
Preconditions for International Personality

(1) It must constitute a permanent association of states, with lawful objects, equipped with organs; (2) There must be a distinction, in terms of legal powers and purposes, between the organization [and] its member states; and (3) It must have legal powers that it may exercise on the international plane and not solely within the national systems of one or more states.
The Constitutive View (Minority View) posits that the political act of recognition is a precondition to the existence of legal rights of a state. In its logical extreme, this is to say that the very personality of a state depends on the political decision of other states. [Brownlie] Important Doctrines: Wilson/Tobar Doctrine (Asked 1 time in the Bar) precludes recognition of government established by revolution, civil war, coup detat or other forms of internal violence until freely elected representatives of the people have organized a constitutional government [US President Woodrow Wilson, 1913 and Ecuadorian FM, 1907] Stimson Doctrine precludes recognition of any
Capacity to Bring a Claim for Reparation

An IO such as the United Nations (UN) must be deemed to have such powers which, though not expressly granted in its Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. Thus, though the UN Charter did not expressly clothe the UN with the capacity to bring an international claim for reparations, the UN nevertheless possessed functional personality. [Reparations for Injuries Advisory Opinion, 147] IOs are deemed to have powers not expressly granted in their charters where these unstated powers are either

(1) implicitly bestowed in their charters or (2) necessary to effect powers expressly granted.

his physical safety and the preservation of his honor and reputation. Upon the principle of exterritoriality, his quarters, archives, property and means of transportation are inviolate. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions.
217
3. Individuals
While States are have traditionally been deemed to be subject of international law, individuals have likewise become in some degree subjects of that law. However, individuals may assume the status of subjects of international law only on the basis of agreement by states and in specific context, not in accordance with general or customary IL. Illustrations Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS extends to disputes between parties to contracts relating to the exploitation of the Area. Parties to such contracts may be natural or juridical persons. Claims Settlement Declaration of 1981 between US and Iran: Direct access to the Iran-US Claims Tribunal is given to individuals for the settlement of their claims involving more than $250,000 either against Iran or the US. Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of WW I: Individuals enjoyed locus standi in actions against States relating to contracts, debts, and property adversely affected by the war. London Agreement of the International Military Tribunal at Nuremberg: In crimes against peace, war crimes and crimes against humanity, international law imposes duties and liabilities upon individuals as well as upon States. Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide: Parties charged with genocide refers to individuals whose responsibility is thus under international law. (Please refer to the Chapter on Human Rights)
The Foreign Office

The body entrusted with the conduct of actual dayto-day foreign affairs. It is headed by a Secretary or a Minister who, in proper cases, may make binding declarations on behalf of his government. [Legal Status of Eastern Greenland Case]
The Diplomatic Corps

Refers to the collectivity of all diplomatic envoys accredited to a State. It is composed of: (1) Head of Mission classified into: (a) Ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; (b) Envoys, Ministers and Internuncios accredited to Heads of State; (c) Charges daffaires accredited to Ministers of Foreign Affairs. (2) Diplomatic Staff those engaged in diplomatic activities and are accorded diplomatic rank. (3) Administrative and Technical Staff those employed in the administrative and technical service of the mission. (4) Service Staff those engaged in the domestic service of the mission [Nachura] In the Philippines, the President appoints (Sec. 16, Art.VII, Constitution), sends and instructs the diplomatic and consular representatives. Functions and Duties The main functions of a diplomatic mission are the following: (1) Represent the sending State in the receiving State; (2) Protect in the receiving State the interests of the sending State and its nationals, within the limits allowed by international law; (3) Negotiate with the government of the receiving State; (4) Ascertain, by all lawful means, the conditions and developments in the receiving State and reporting the same to the sending State; (5) Promote friendly relations between the sending State and receiving State, and developing their economic, cultural and scientific relations [Art. 3(1), VCDR]
E. Diplomatic and Consular Law

1. Agents of Diplomatic Intercourse 2. Diplomatic Immunities and Privileges 3. Consular Relations Diplomatic Intercourse, also referred to as the Right of Legation, is the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse.
1. Agents of Diplomatic Intercourse

Head of State
The head of State represents the sovereignty of the State, and enjoys the right to special protection for

(6) If diplomatic relation is severed, entrust the protection of its nationals to the diplomatic mission of a third State acceptable to the receiving State [Art. 45, VCDR] (7) May protect the interest of a third State by agreement with the receiving State, if there is no diplomatic relations between the third State and the receiving State [Art. 46, VCDR]

Note: The principle of inviolability continues to apply even if diplomatic relations are broken off, or if a mission is permanently or temporarily recalled. In that case, the receiving state must respect and protect the premises of the mission, together with its property and archives. [Art. 45, VCDR] What does the premises of the mission include? In the first place, it means the buildings or parts of the buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. The mission need not be the owner of the premises The expression premises of the mission includes the buildings for the purposes of the mission, whether they are owned by the Sending state or by a third party acting for its account or are leased and are rented. [ILC Yearbook, vol II, p.95, 1958] The premises occupied by a diplomatic mission, including the private residence of the diplomatic agent, are inviolable. [Art. 30, VCDR] Such premises cannot be entered or searched, and neither can the goods, records and archives be detained by local authorities even under lawful process. The envoy must consent to such entry, except in extreme cases of necessity (ex. When there is imminent danger that a crime of violence is to be perpetrated in the premises; when the premises are on fire). The service of writs, summons, orders or processes within the premises of mission or residence of the envoy is prohibited. Even if a criminal takes refuge within the premises, the peace officers cannot break into such premises to apprehend the same. The fugitive should, however, be surrendered upon demand by local authorities, except when the right of asylum exists.
218
2. Diplomatic Immunities and Privileges

(Asked 9 times in the Bar) Theoretical basis of diplomatic privileges and immunities (1) Extraterritoriality theory the premises of the diplomatic mission represent a sort of extension of the territory of the sending State (2) Representational theory the diplomatic mission personifies the sending State (3) Functional necessity theory privileges and immunities are necessary to enable the diplomatic mission to perform its functions
Personal Inviolability
Personal inviolability consist of 2 aspects: (1) The duty of the receiving State to refrain from exercising its sovereign rights, in particular law enforcement rights against the diplomat; and (2) The duty to treat him with due respect and protect his person, freedom or dignity from physical interference by other persons. The receiving State shall treat him with due respect and take all steps to prevent any attack on his person, freedom or dignity. [Art. 29, VCDR] The diplomatic representative shall not be liable to any form of arrest or detention. In the Hostage Case, however the ICJ held the diplomatic envoy, however, may be arrested temporarily in case of urgent danger, such as when he commits an act of violence which makes it necessary to put him under restraint for the purpose of preventing similar acts [Case Concerning the US Diplomatic and Consular Staff in Tehran, ICJ Reports, 1980]
Right of Official Communication

The envoy is entitled to fully communicate with his government. and freely
Inviolability of Premises and Archives

Consist of 2 elements: (1) The duty of the receiving State to refrain from entering the premises, except with the consent of the head of the mission; and (2) The special duty of the receiving state to protect the premises against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
(1) The receiving state shall permit and protect free communication on the part of the mission for all official purposes. (2) The mission may employ all appropriate means to send and receive messages by any of the usual modes of communication or by diplomatic courier, which shall enjoy inviolability; (3) The official correspondence of the mission is inviolable; and (4) The diplomatic bag shall not be opened or detained. [Art. 27, VCDR]
PUBLIC INTERNATIONAL LAW Immunity from Local Jurisdiction

As to criminal jurisdiction - A diplomatic agent enjoys immunity from criminal jurisdiction of the receiving State. [Art. 31, VCDR] He may not be arrested, prosecuted, prosecuted or punished for any offense he may commit, unless his immunity is waived. This privilege, however, only exempts a diplomatic agent from local jurisdiction; it does not import immunity from legal liability. As to civil and administrative jurisdiction - The diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving State, even with respect to his private life. [Art. 31, VCDR] BUT there are exceptions: (1) A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it in behalf of the sending state for the purposes of the mission. (2) An action relating to succession in which the diplomatic agent involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state. (3) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. [Art. 31(1), VCDR] His properties are not subject to garnishment, seizure for debt, execution and the like. The diplomatic agent also cannot be compelled to testify, not even by deposition, before any judicial or administrative tribunal in the receiving State without the consent of his government. Who are the persons entitled to immunity from jurisdiction? (1) diplomatic agent (2) Members of the family of the diplomatic agent forming part of his household, who are not nationals of the receiving State (3) As to criminal jurisdiction, members of the administrative and technical staff of the diplomatic mission, as well as members of their families forming part of their respective households, who are not nationals of or permanent residents in the receiving state. But as to civil and administrative jurisdiction, immunity shall not extend to acts performed outside the course of their duties; and (4) Members of the service staff of the diplomatic mission, who are not nationals of or permanent residents in the receiving state, with respect to acts performed in the course of their duties. [Art. 37, VCDR]
POLITICAL LAW REVIEWER Exemption from Taxes and Customs Duties

Exemption from taxation has 2 aspects, one, pertaining to the sending state and another, pertaining to the diplomatic agent. (1) As to the sending state exemption applies to premises of the mission whether owned or leased, with respect to all national, regional or municipal dues and taxes. [Art 23, VCDR] (2) As to Diplomatic agents - are exempt from all dues and taxes, whether personal or real, national, regional or municipal. [Art. 34, VCDR] He is also exempt from all customs duties of articles for the official use of the mission and those for the personal use of the envoy or members of the family forming part of his household, including articles intended for his establishment. Baggage and effects are entitled to free entry and are usually exempt from inspection. Exception to Tax Exemption: As to sending state: Exemption does NOT include dues or taxes which represent payment for specific services rendered. [Art. 23(1), VCDR] As to diplomatic agents: (1) Indirect taxes incorporated in the price of goods purchased or services availed (2) Dues and taxes on private immovable property situated in the receiving State (3) Estate, succession or inheritance taxes levied by the receiving State (4) Dues and taxes on private income sourced within the receiving State (5) Capital taxes on investments in commercial ventures in the receiving State (6) Charges levied for specific services rendered (7) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property. [Art. 34, VCDR} Who are entitled to exemption from taxation in addition to the diplomatic agent? (1) Members of the family of the diplomatic agent forming part of his household, who are not nationals of the receiving State (2) Members of the administrative and technical staff of the diplomatic mission, as well as members of their families forming part of their respective households, who are not nationals of or permanent residents in the receiving state. (3) Members of the service staff of the diplomatic mission, who are not nationals of or permanent residents in the receiving state, with respect to emoluments they receive by reason of their employment
219

(4) Private servants of members of the mission if they are not nationals or permanent residents of the receiving state, with respect to emoluments they receive by reason of their employment. [Art. 37, VCDR] Duration of Immunities and Privileges These privileges are enjoyed by the envoy from the moment he enters the territory of the receiving State, and shall cease when he leaves the country. With respect to official acts, immunity shall continue indefinitely. Waiver of Immunities Diplomatic privileges may be waived. Such waiver may be made only by the government of the sending State if it concerns the immunities of the head of the mission. In other cases, the waiver may be made either by the government or by the chief of the mission.

(5) Issuing passports and travel documents to nationals of the sending state and visas and travel documents to persons wishing to travel to the sending state; (6) Acting as notary, civil registrar and similar administrative capacities; and (7) Exercising rights of supervision and inspection pertaining to the sending state as flag state and state of registry of aircraft.
220
Necessary Documents
The following documents are necessary for the assumption of Consular functions: (1) Letters Patent(letter de provision) the letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to serve. (2) Exequatur the authorization given to the consul by the sovereign of the receiving State, allowing him to exercise his function within the territory.
3. Consular Relations
Consuls are State agents residing abroad for various purposes but mainly (1) in the interest of commerce and navigation, (2) issuance of visa (permit to visit his country), and (3) such other functions as are designed to protect nationals of the appointing State.
Immunities and Privileges

(1) Freedom of communication; (a) The receiving state shall permit and protect freedom of information on the part of the consular post for all official purposes; (b) In communicating with the government, the diplomatic missions and other consular posts of the sending state, the consular post may employ all appropriate means, including diplomatic or consular bags and messages in code or cipher; (c) The official correspondence of the consular post shall be inviolable; (d) The consular bag shall neither be opened nor detained. BUT, may the receiving state request that the consular bag be opened? YES, if the authorities have serious reasons to believe that the bag contains something other than correspondence, documents or articles intend exclusively for official use. If the request is accepted the bag may be opened in the presence of the authorized representative of the sending state. If the request is refused the bag shall be returned to its place of origin. [Art. 35, VCCR] (2) Inviolability of archives; (a) Inviolability is unconditional. They shall be inviolable at all times and wherever they may be. [Art. 33, VCCR] (3) Inviolability of premises;
Ranks
Consul General: heads several consular districts, or one exceptionally large consular district. Consul: in charge of a small district or town or port. Vice Consul: assists the consul. Consular agent: one entrusted with the performance of certain functions by the consul.
Functions
Consular functions include the following: (1) Protecting the interests of the sending state in the territory of the receiving state; (2) Protecting and assisting the nationals of the sending state; (3) Furthering the development of commercial, economic, cultural and scientific relations between the sending state and the receiving state and promoting friendly relations between them; (4) Ascertaining by all lawful means the conditions and developments in the commercial, economic, and cultural and scientific life of the receiving state, reporting thereon to the government of the sending state, and giving information to persons interested;

What is the scope of the inviolability of consular premises? (a) Authorities of the receiving state shall not enter that part of the consular premises exclusively used for consular work, except with the consent of the head of the consular post, his designee, or the head of the diplomatic mission; but consent of the consular head may be assumed in case of fire or other disaster requiring prompt protective action; (b) The receiving state has the special duty to take all appropriate steps to protect the consular premises against intrusion or damage and to prevent any disturbance of peace of the consular post or impairment of its dignity (c) Consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. (d) In case of consular premises, their furnishings, the property of the consular post and its means of transport are expropriated for national defense or public utility, all possible steps shall be taken to avoid impending the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending state. [Art. 31, VCCR] Consular premises the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of consular post. (4) Exemption from local jurisdiction for offenses committed in the discharge of official functions, but not for other offense except for minor infractions; (5) Exemption from testifying on official communications or on matters pertaining to consular functions; (6) Exemption from taxes, customs duties, military or jury service. (7) Personal inviolability of consular officials Scope of personal inviolability of consular officials (a) They are not liable to arrest or detention pending trial, except in case of a grave crime and pursuant to a decision of a competent judicial authority. (b) They shall not be committed to prison nor be subject to any other form of restriction to personal freedom, except in the case of grave crime pursuant to a decision of competent

judicial authority, or in the execution of a final judicial decision. [Sec. 41, VCCR] Are consular officers and employees entitled to immunity from the jurisdiction of administrative and judicial authorities in the receiving state? YES, but this immunity shall not apply to a civil action either: (a) arising out of a contract by a consular officer or employee, which he did not conclude expressly or impliedly as an agent of the sending state; or (b) by a third party for damage arising from an accident caused by vehicle, vessel or aircraft in the receiving state. [Art. 43, VCCR]
221
F. Treaties
1. 2. 3. 4. 5. Definition Requisites for Validity Treaty-Making Process Invalid Treaties Grounds for Termination
1. Definition
A 'treaty' is: (1) an international agreement (2) concluded between States (3) in written form and (4) governed by international law, (5) whether embodied in a single instrument or in two or more related instruments and (6) whatever its particular designation [Art.2(1), VCLOT] Under the VCLOT, the term treaty includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective. Treaty 1. Political Issues 2. Changes in national policy 3. Involves international agreements of a permanent character Executive Agreements 1. Transitory effectivity 2. Adjusts details to carry out wellestablished national policies and traditions 3. Temporary 4. Implements treaties, statutes,
Subject Matter

Treaty Requires ratification by the 2/3 of the Senate to be valid and effective (Art. VII, Sec. 21) Executive Agreements policies Does not require concurrence by Senate to be binding

It means that the stage where the definitive text of the treaty is established as the correct and authentic one.
222
Ratification
Expression of Consent to be bound by the Treaty (Article 11, VCLOT)

Consent to be bound by the terms of a treaty may be expressed through: (1) Signature, when the negotiator authorized to sign the treaty; is
2. Requisites for Validity

a. Treaty Making Capacity
Possessed by all states as an attribute of sovereignty. International organizations also possess treaty-making capacity, although limited by the organizations purpose.
b. Competence of the Representative/Organ Making the Treaty

Generally exercised by the head of state. Full Powers refers to the authority of a person to sign a treaty or convention on behalf of a state. Plenipotentiary - Persons other than the head of state, head of government or foreign minister must produce such instrument in order to sign a treaty binding their government. Such a person is called a plenipotentiary.
Art. 12(1), VCLOT. Signature alone would be sufficient to bind the state to the obligations under the treaty if (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States agreed that signature should have that effect; or (c) if the State can be shown to have had the intention to be bound by the signature (look at full powers of its representative) (2) Ratification, the formal consent to the treaty given by the Head of State, sometimes in conjunction with the legislature; or Under international law, ratification is necessary when (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States agreed that ratification should be required; (c) the representative of the State has signed the treaty subject to ratification (Art.14(1), VCLOT), that is, when the intent was to make it subject to ratification. (3) Exchange of instruments Constituting the Treaty (4) Acceptance (5) Approval
c. Parties Must Freely Give Consent

If consent was given erroneously, or it was induced by fraud, the treaty shall be voidable.
d. Object and Subject Matter Must be Lawful e. Ratification in Accordance with the Constitutional Process of the Parties Concerned
3. The Treaty-Making Process

Negotiation
State representatives discuss provisions of the treaty. the terms and
Adoption (Article 9, VCLOT)

It means that the form and content have been settled by the negotiating States. It is preparatory to the authentication of the text of the treaty and to its signature.
(6) Accession - The method by which a State, under certain conditions, becomes a party to a treaty of which it is not a signatory and in the negotiation of which it did not take part (7) By any other means agreed by the parties Doctrine of Transformation In Philippine Law, treaties have to be transformed in order to be part of Philippine law. A treaty is transformed when a treaty is ratified after it has been concurred in by the Senate [Sec. 21, Art.VII, Constitution]
Authentication of the Text (Article 10, VCLOT)

After ratification, a treaty shall be deemed as if legislated by our Legislature. La Chemise Lacoste v. Fernandez: Lacoste, a French corporation, sued local counterfeiters before Philippine courts. When the counterfeiters challenged its legal personality to sue before Philippine courts, the Court held that the Philippines has ratified international conventions for the protection of intellectual property, and it would frustrate the object of these conventions if Lacoste is barred from filing its claims directly in Philippine courts.

prior to the representative expressing such consent; (7) If consent was given in violation of provisions of internal law regarding competence to conclude treaties that is manifest and of fundamental importance.
223
5. Grounds for Termination

(1) Expiration of the term, or withdrawal of a party in accordance with the treaty; (2) Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the successor-state; (3) Mutual agreement of parties; (4) Denunciation or desistance by a party; (5) Supervening impossibility of performance; (6) Conclusion of a subsequent inconsistent treaty; (7) Loss of subject matter; (8) Material breach or violation of treaty (9) Fundamental Change of Circumstance (Rebus sic stantibus) [Art.62, VCLOT] A contracting state may unilaterally withdraw from a treaty when a vital or fundamental change of circumstance occurs such that the foundation upon which its consent to be bound initially rested has disappeared. Requisites: (a) Change is so substantial that the foundation of the treaty has altogether disappeared (b) Change was unforeseen or unforeseeable at the time of the treatys perfection (c) Change was not caused by the party invoking the doctrine (d) Doctrine was invoked within a reasonable time (e) Treatys duration is indefinite (f) Doctrine cannot operate retroactively (it must not adversely affect provisions which have already been complied with prior to the vital change) (10) Outbreak of war between the parties, unless the treaty relates to the conduct of war (ex. The Four Geneva Conventions). (11) Severance of diplomatic relations (if such relationship is indispensable for the treatys application). (12) Jus Cogens Application: Emergence of a new peremptory norm of general international law which renders void any existing, conflicting treaty.
Registration with the UN

Philippine Law In the Philippines, the negotiation of treaties and their ratification are executive functions, subject to concurrence of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the Constitution, treaties must receive the concurrence of the Senate before they may be effective. Amendment or Modification of Treaty GENERAL RULE: Consent of all parties is required. EXCEPTION: If the treaty itself so allows, two States may modify a provision only insofar as their relationship inter se. Reservations Definition: A unilateral statement made by a state upon entering a treaty whereby it purports to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state (Art.19. VCLOT). Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty: (1) Where the treaty expressly prohibits reservations in general; (2) Where the treaty expressly prohibits that specific reservation being made; or (3) Where the reservation is incompatible with treatys object and purpose [Reservation to the Genocide Conventions Advisory Opinion]
4. Invalid Treaties
(1) If the treaty violates a jus cogens norm of international law (void); (2) If the conclusion of a treaty is procured by threat or use of force (void); (3) Error of fact, provided that such fact formed an essential basis of a states consent to be bound; (4) If the representative of a state was corrupted to consent by another negotiating state; (5) If consent was obtained through fraudulent conduct of another negotiating state; (6) If the representative consented in violation of specific restrictions on authority, provided: the restriction was notified to the other negotiating States
G. Nationality and Statelessness

1. Nationality 2. Statelessness
1. Nationality
Definition (Cruz): The tie that binds an individual to his state, from which he can claim protection and whose laws he is obliged to obey.

Membership in a political community with all its concomitant rights and obligations. Why important in international law: An individual ordinarily can participate in international relations only through the instrumentality of the state to which he belongs, as when his government asserts a claim on his behalf for injuries suffered by him in a foreign jurisdiction. This remedy would not be available to a stateless individual.

A state conferring honorary citizenship upon an individual
Acquisition
By birth (1) Jus soli nationality of the state where he is born (2) Jus sanguinis nationality of his parents By naturalization a process by which a foreigner acquires, voluntarily or by operation of law, the nationality of another state
Hague Convention of 1930 on Conflict of Nationality Laws: Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state. These laws shall be recognized by other states so long as they are consistent with international conventions, international customs and the principles of law generally recognized with regard to nationality. Principle of effective nationality within a third state, a person having more than one nationality shall be treated as if he had only one. The third state shall recognize conclusively in its territory either the nationality of the country in which he is habitually and principally present or the nationality of the country with which he appears to be in fact most closely connected. The courts of third States...seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality. [Nottebohm Case, Leichtenstein vs. Guatemala]
224
2 Types of Naturalization
(1) Direct by individual proceedings, usually judicial, under general naturalization laws by special act of legislature by collective change of nationality as a result of cession or subrogation (naturalization en masse) by adoption (in some cases) (2) Derivative usually subject to stringent restrictions and conditions on the wife of the naturalized husband on the minor children of the naturalized parent on the alien woman upon marriage to a national An alien woman married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized. [Yao vs. Commissioner of Immigration] Multiple Nationality acquired as the result of the concurrent application to an individual of the conflicting municipal laws of two or more states claiming him as their national Illustrations A child born in the United States of Filipino parents would be an American national under jus soli and a Filipino national under jus sanguinis A woman marrying a foreigner may retain her own nationality under the laws of her state while also acquiring the nationality of her husband under the laws of his state Doctrine of indelible allegiance - an individual may be compelled to retain his original nationality notwithstanding that he has already renounced or forfeited it under the laws of a second state whose nationality he has acquired
Loss of Nationality
Voluntary (1) Renunciation (express or implied) (2) Request for release Involuntary (1) Forfeiture as a result of some disqualification or prohibited act (2) Substitution of one nationality for another
2. Statelessness
Definition (Cruz): The condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. Covenant Relating to the Status of Stateless Persons: A stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment of no less favourable than that accorded to aliens.
H. Treatment of Aliens
1. Extradition GENERAL RULE: An alien cannot claim a preferred position vis-a-vis the national of the state. International standard of justice the standard of the reasonable state and calls for compliance with the ordinary norms of official conduct observed in civilized jurisdictions

Doctrine of State Responsibility: A state may be held responsible for (1) an international delinquency (2) directly or indirectly imputable to it (3) which causes injury to the national of another state Liability will attach to the state where its treatment of the alien falls below the international standard of justice or where it is remiss in according him the protection or redress that is warranted by the circumstances. Conditions for the enforcement of the doctrine of state responsibility: (1) Exhaustion of local administrative remedies (2) Must be represented in the international claim for damages by his own state Calvo clause a stipulation by virtue of which an alien waives or restricts his right to appeal to his own state in connection with any claim arising from a contract with a foreign state and limits himself to the remedies available under the laws of that state The propriety of governmental acts should be put to the test of international standards. The treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. [Neer Claim (1926)]

Any person extradited, whether he be a national of the requesting state, of the state of refuge or of another state. Political and religious offenders are generally not subject to extradition. In the absence of special agreement, the offense must have been committed within the territory or against the interests of the demanding state. Rule of double criminality: The act for which the extradition is sought must be punishable in both the requesting and requested states.
225
Procedure
If the surrender of a fugitive is sought, a request for his extradition is presented through diplomatic channels to the state of refuge, with the necessary papers for identification. Upon a receipt of the request, the state of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive according to its own laws. If there is, a warrant of surrender will be drawn and the fugitive will be delivered to the state of origin. The evaluation process partakes of the nature of a criminal investigation, having consequences which will result in deprivation of liberty of the prospective extradite. A favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus exhibiting the penal aspect of the process. The evaluation process itself is like a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent. The basic rights of notice and hearing are applicable in criminal, civil and administrative proceedings. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, may claim the right to appear therein and present their side. [Secretary of Justice vs. Lantion]
1. Extradition
Definition (Cruz): The surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. PD 1086: The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. Basis: Treaty between the state of refuge and the state of origin.
Distinguished from Deportation

Deportation is the expulsion of an alien who is considered undesirable by the local state, usually but not necessarily to his own state. It is usually a unilateral act of the local state and is made in its own interests.
Fundamental Principles
Extradition is based on the consent of the state of the state of asylum as expressed in a treaty or manifested as an act of goodwill. Principle of speciality a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the extradition.
I. International Human Rights Law

1. Universal Declaration of Human Rights 2. International Covenant on Civil and Political Rights (ICCPR) 3. International Covenant on Economic, Social and Cultural Rights (ICESCR)

binding as part of international law (Juan Carillo Salcedo, Human Rights, Universal Declaration). The UDHR embodies both first and second generation rights. The civil and political rights enumerated include: (1) The right to life, liberty, privacy and security of person; (2) Prohibition against slavery; (3) The right not to be subjected to arbitrary arrest, detention or exile; (4) The right to fair trial and presumption of innocence; (5) The right to a nationality; (6) The right to freedom of thought, conscience and religion; (7) The right to freedom of opinion and expression; (8) Right to peaceful assembly and association; (9) The right to take part in the government of his country. Economic, social and cultural rights enumerated in the UDHR include: (1) The right to social security; (2) The right to work and protection against unemployment; (3) The right to equal pay for equal work; (4) The right to form and join trade unions; (5) The right to rest and leisure.
Definition of Human Rights

(Asked 3 times in the Bar) Human rights are those fundamental and inalienable rights which are essential for life as a human being. They pertain to rights of an individual as a human being which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
226
Classification of Human Rights

First generation consists of civil and political rights; Second generation consists of economic, social and cultural rights; Third generation refers to right to development, right to peace, and right to environment.
Obligatory Force under International Law
First generation strictly (or objectively) obligatory, whatever the economic or other conditions of the states obligated may only be derogated in a public emergency
Derogation/ Restriction, when allowed
Second generation relatively obligatory: States are required to progressively achieve the full realization of these rights to the maximum of their available resources may be restricted for the general welfare, with or without an emergency that threatens the independence or security of a State Party.
2. International Covenant on Civil and Political Rights (ICCPR)

(Asked 1 time in the Bar) The ICCPR is an international covenant and is binding on the respective State Parties. It embodies the first generation of human rights, although it lists more rights than the UDHR: (1) The right to own property; (2) The right to seek in other countries asylum from prosecution; (3) The right of members of ethnic, religious or linguistic groups not to be denied to enjoy their own culture, to profess and practice their own religion, or to use their own language; (4) The right to compensation in case of unlawful arrest; (5) The right to legal assistance in criminal prosecution; (6) The right against self-incrimination; (7) Protection against double jeopardy; (8) Right to review by higher tribunal in case of criminal conviction; (9) Right of every child to nationality; (10) Right to protection of a child as required by his status as a minor; (11) Right of persons below 18 years old not to be sentenced to death for crimes; (12) Right against the carrying out of death sentence on the part of a pregnant woman. Obligations of State Parties
1. Universal Declaration of Human Rights

The UDHR is the first comprehensive catalogue of human rights proclaimed by an international organization. It must be noted, however, that the UDHR is not a treaty. It has no obligatory character because it was adopted by the UN GA as Resolution 217A (III). As a resolution, it is merely recommendatory. Despite this, the UNDHR is considered a normative instrument that creates binding obligations for all States because of the consensus evidenced by the practice of States that the Declaration is now

(1) Under the ICCPR, State Parties undertake to respect and to ensure to all individuals within their territory the rights enumerated therein, without distinction of any kind, such as race, color, sec, language, religion, political or other opinion, national or social origin, birth or other status. (2) State Parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR. (3) State Parties must ensure that any person whose rights or freedoms are violate have an effective remedy, notwithstanding that the violation has been committed by persons action in an official capacity. (4) State Parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authority, and that they shall enforce the remedy when granted.
(IHL) and Neutrality

1. 2. 3. 4. Categories of Armed Conflicts Core International Obligations of States in IHL Principles of IHL Law on Neutrality
227
IHL is the branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting those who do not or no longer participate in the hostilities. IHL has Two Branches: (1) Law of The Hague, which establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy; and the (2) Law of Geneva, which is designed to safeguard military personnel who are no longer taking par in the fighting and people not actively engaged in hostilities (i.e. civilians) (INTERNATIONAL COMMITTEE OF THE RED CROSS [ICRC]). Note: The two branches draw their names from the cities where each was initially codified. With the adoption of the Additional Protocols of 1977, which combine both branches, that distinction is now of merely historical and instructive value (ICRC).
3. International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR, like the ICCPR, is an international covenant and is binding on the respective State Parties. It embodies the second generation of human rights, although it lists more rights than the UDHR: (1) Right to health; (2) Right to strike; (3) Right to be free from hunger; (4) Rights to enjoy the benefits of scientific progress; (5) Freedom for scientific research and creativity. Obligations of State Parties State Parties are required to undertake the necessary steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights enumerated in the covenant by all appropriate means. Note unlike the ICCPR, the states under the ICESCR merely agree to take steps to the maximum of its available resources. Common Provisions in the ICCPR and the ICESCR and differences The common provisions of the two Covenants deal with collective rights, namely: (1) The right of self-determination of peoples; (2) the right of peoples to freely dispose of their natural wealth and resources; (3) the right not of peoples not to be deprived of their own means of subsistence Note these rights are not covered by the UDHR.
1. Categories of Armed Conflicts

International Armed Conflicts
Definition of Armed Conflict An Armed Conflict exists when there is resort to the use of force (1) between two states (international armed conflict), or (2) between government authorities and an organized armed group, or (3) between such groups within the same territory (non-international armed conflict) [Prosecutor vs. Tadic] Note: Wars of National Liberation have been classified as international armed conflicts (ICRC) Mere internal disturbances and tensions, or riots or isolated or sporadic acts of armed violence does not amount to an armed conflict (Tadic) Note: Cases of this type are governed by the provisions of human rights law and the relevant domestic laws.
Internal or Non-International Armed Conflict

Conventions is the only provision applicable to noninternational armed conflicts. It defines the following obligations: (1) Persons taking no active part in the hostilities, including (a) members of the armed forces who have laid down their arms and
J. International Humanitarian Law

(b) those placed hors de combat, shall in all instances be treated humanely without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. (2) With respect to the persons mentioned above, the following acts shall remain prohibited: (a) Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (3) The wounded and the sick shall be collected and cared for. The application of provisions above does not affect the legal status of the parties to the conflict. Hence, an insurgent or a rebel group does not assume belligerency status. Article 3 is indifferent to the legal character of such group. It must be noted that Article 3 is to be applied as a minimum.
POLITICAL LAW REVIEWER Control-of-Territory

The test of whether a dissident armed force has control of territory is when such armed force can (1) carry out sustained and concerted military operations, and whether it has (2) the capacity to comply with the provisions of the Protocol. In a non-international armed conflict where the dissident armed forces do not exercise such control over territory, Article 3, and not Protocol II may be applicable. The result is that this situation may give rise to two categories of non-international armed conflicts: one where only Article 3 applies, and the other where both Article 3 and Protocol II apply.
228
War of National Liberation

An armed conflict may be of such nature in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. This conflict, however, is considered an international armed conflict under Art. 1, par. 3 and 4 of Protocol I. Article 2 common to the four Geneva conventions provides that all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Hence, the Geneva conventions and Protocol I govern wars of national liberation. Wars by peoples against racist, colonial and alien domination "for the implementation of their right to self-determination and independence is legitimate and in full accord with principles of international law," and that any attempt to suppress such struggle is unlawful (Resolution 3103 [XXVIII]). When peoples subjected to alien domination resort to forcible action in order to exercise their right to self-determination, they "are entitled to seek and to receive support in accordance with the purposes and principles of the Charter (1970 Resolution 2625 [XXV])
Common Article 3 and Protocol II

Protocol II develops and supplements common Article 3 (Art. 1, Protocol II). It applies to: (1) all armed conflicts which take place in the territory of a State Party, (2) between its armed forces and dissident armed forces or other organized groups (3) which, under responsible command, exercise such control over a part of its territory (4) as to enable to carry out sustained and concerted military operations and to implement the Protocol. Application of Article 3 and Protocol II The rules in Article 3 are recognized as customary norms of international law, and therefore applicable to all States. However, Protocol II is a treaty and binding only States that are parties to it. Its rules, however, may still develop into customary norms binding on all states, by the general practice of states coupled with their acceptance of them as law (opinio juris).
2. Core International Obligations of States in IHL 3. Principles of IHL

Definition of Concepts and Phrases Combatants
Combatants are members of the armed forces of a Party to a conflict. [Art. 3(2), Protocol 1] They have the right to participate directly and indirectly in hostilities. [Art 43(2) Protocol 1]

In fact, only combatants are allowed to engage in hostilities. According to one commentator, a combatant is allowed to use force, even to kill, and will not be held personally responsible for his acts, as he would be where he to the same as a normal citizen [Gasser]

(3) Persons hors de combat are those who have been injured in the course of hostile battle action and are no longer able to directly take part in hostilities. They shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected. (4) It is prohibited to kill or injure an enemy who is hors de combat or who surrenders. (5) The wounded and the sick shall be protected and cared for by the party to the conflict which has them in its power. Protection shall also apply to medical personnel, establishments, transports and material. (6) Combatants and civilian who are captured by authority of the party to a dispute are entitled to respect for their right to life, dignity, conviction, and other personal rights. They shall be protected against acts of violence or reprisals. (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion by the ICJ)
229
Hors de combat
Under Art. 41(2) of Protocol I, a person is hors de combat if he: (1) Is in the power of an adverse party to the conflict; (2) He clearly expresses an intention to surrender; or (3) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself, provided that in any of these cases, he abstains from any hostile act and does not attempt to escape. Persons hors de combat shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected
Protected Persons
Protected persons are those who enjoy or are entitled to protection under the Geneva Conventions. Categories of protected persons include: (1) The wounded, the sick, and shipwrecked; (2) Prisoners of War (3) Civilians For purposes of protection, civilians are further classified as: (1) Civilians who are victims of conflict in countries involved (2) Civilians in territories of the enemy; (3) Civilians in occupied territories; (4) Civilians internees
Prisoners of War
Article 4, Geneva Convention: Prisoners of war are persons belonging to one of the following categories: (1) Members of the armed forces of a Party to the conflict, including militias or volunteer corps (2) Militias or volunteer corps operating in or outside their own territory, even if such territory is occupied provided: (a) They are being commanded by a person responsible for his subordinates (b) Have a fixed distinctive sign recognizable at a distance (c) Carries arms openly (d) Conducts their operations in accordance with the laws and customs of war (3) Members of regular armed forces who profess allegiance to a government or authority not recognized by the Detaining Power (4) Civilians who accompany the armed forces, provided that they have received authorization from the armed forces which they accompany (5) Members of crews of merchant marine and the crews of civil aircraft of the Parties to the conflict (6) Inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (7) Persons belonging to the armed forces of the occupied territory
Treatment of Civilians Fundamental Principles of IHL

(1) Parties to an armed conflict, together with their armed forces, do not have unlimited choice of methods or means of warfare. They are prohibited from employing weapons or means of warfare that cause unnecessary damage or excessive suffering. (2) Parties to an armed conflict shall, at all times, distinguish between civilian population and the combatants (Principle of Distinction). Civilians shall be spared from military attacks which shall be directed only against military objectives.

5. Exclusive Economic Zone 6. Continental Shelf 7. Tribunal of the Law of the Sea The Law of the Sea (LOS) is the body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. [Magallona] It is the branch of PIL which regulates the relations of states with respect to the use of the oceans. (Asked 1 time in the Bar)
4. Law on Neutrality
Neutrality is the legal status of a State in times of war, by which it adopts impartiality in relation to the belligerents with their recognition. The Hague Convention Respecting the Rights and Duties of Neutral Powers (Oct. 18, 1907) governs the status of neutrality by the following rules: (1) The territory of the neutral Power is inviolable; (2) Belligerents are forbidden to move troops or munitions of war and supplies across the territory of a neutral Power; (3) A neutral power is forbidden to allow belligerents to use its territory for moving troops, establishing communication facilities, or forming corps of combatants. (4) Troops of belligerent armies received by a neutral Power in its territory shall be interned by away from the theatre of war; (5) The neutral Power may supply them with food, clothing or relief required by humanity; (6) If the neutral Power receives escaped prisoners of war, it shall leave them at liberty. It may assign them a place of residence if it allows them to remain in its territory; (7) The neutral power may authorize the passage into its territory of the sick and wounded if the means of transport bringing them does not carry personnel or materials of war The Third Geneva Convention (Prisoners of War) allows neutral Powers to cooperate with the parties to the armed conflict in making arrangements for the accommodation in the formers territory of the sick and wounded prisoners of war. Interned persons among the civilian population, in particular the children, the pregnant women, the mothers with infants and young children, wounded and sick, may be accommodated in a neutral state in the course of hostilities, by agreement between the parties to the conflict. Protecting Power A protecting power is a State or an organization not taking part in the hostilities, which may be a neutral state, designated by one party to an armed conflict with the consent of the other to safeguard or protect its humanitarian interests in the conflict, the performance of which IHL defines specific rights and duties.
230
1. Baselines
Definition The line from which a breadth of the territorial sea and other maritime zones, such as the contiguous zone and the exclusive economic zone is measured. Its purpose is to determine the starting point to begin measuring maritime zones boundary of the coastal state. (See Appendix 1) Normal baseline the territorial sea is the lowwater line along the coast as marked on large-scale charts officially recognized by the coastal state. [Art. 5, UN Convention on the Law of the Sea, or UNCLOS] Straight baseline where the coastline is deeply indented or cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight lines joining the appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured [Art. 7, UNCLOS]
2. Archipelagic States
Definition It is a state made up of wholly one or more archipelagos. It may include other islands. An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely related that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.
Straight Archipelagic Baselines

Baselines of archipelagic states Straight baselines join the outermost points of the outermost islands and drying reefs of an archipelago, provided that within such baselines are included the main islands and an area in which the ratio of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. Such are called straight archipelagic baselines. Two Kinds of Archipelagos
K. Law of the Sea

1. 2. 3. 4. Baselines Archipelagic States Internal Waters Territorial Sea

1. 2. Coastal situated close to a mainland and may be considered part thereof, i.e. Norway Mid-ocean situated in the ocean at such distance from the coasts of firm land, i.e. Indonesia (note: The Archipelagic State provisions apply only to mid-ocean archipelagos composed of islands, and NOT to a partly continental state.)

Thus, conversion from internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine state. Remember that sovereignty over internal waters precludes the right of innocent passage and other rights pertaining to archipelagic waters under the UNCLOS.
231
Territorial sea and other maritime zones the breadth of the territorial sea, the contiguous zone, and the EEZ is measured from the straight archipelagic baselines.
3. Internal Waters
(Asked 1 time in the Bar) Definition These are waters of lakes, rivers, and bays landward of the baseline of the territorial sea. However, in case of archipelagic states, waters landward of the baseline other than those rivers, bays and lakes, are archipelagic waters. Internal waters are treated as part of a State's land territory, and is subject to the full exercise of sovereignty. Thus, the coastal state may designate which waters to open and which to close to foreign shipping.
Archipelagic Waters
Archipelagic waters these are the waters enclosed by the straight archipelagic baselines, regardless of their depth or distance from the coast. It is subject to the sovereignty of the archipelagic state, but subject to the right of innocent passage for the ships of all states.
Archipelagic Sea Lanes Passage

Other Rights with Respect to Archipelagic Waters (1) Rights under existing agreement on the part of third states should be respected by the archipelagic state. (2) Within its archipelagic waters, the archipelagic state shall recognize traditional fishing rights and other legitimate activities of immediately adjacent neighboring states. (3) The archipelagic state shall respect existing submarine cables laid by other states and passing through its waters without making a landfall. (4) Right of archipelagic sea lanes passage: It is the right of foreign ships and aircraft to have continuous, expeditious, and unobstructed passage in sea lanes and air routes through or over archipelagic waters and the adjacent territorial sea of the archipelagic state. Note: the archipelagic state designates the sea lanes as proposals to the competent international organization. It is the International Marine Organization (IMO) which adopts them through Art. 53(9) of the UNCLOS which states that the Organization may adopt only sea lanes and traffic separation schemes as may be agreed with the archipelagic state, after which such state may designate, prescribe or substitute them. Special Issue: Under Art. 1 of the 1987 Constitution, the archipelagic waters of the Philippines are characterized as forming part of the internal waters of the Philippines. However, under the UNCLOS, archipelagic waters consist mainly of the waters around, between, and connecting the islands of the archipelago, regardless of breadth or dimension.
4. Territorial Sea
(Asked 1 time in the Bar) Definition These waters stretch up to 12 miles from the baseline on the seaward direction. They are subject to the jurisdiction of the coastal state, which jurisdiction almost approximates that which is exercised over land territory. Except that the coastal state must respect the rights to (1) innocent passage and, in the case of certain straits, to (2) transit passage. (Asked 1 time in the Bar) Innocent passage navigation through the territorial sea w/o entering internal waters, going to internal waters, or coming from internal waters and making for the high seas. It must (a) involve only acts that are required by navigation or by distress, and (b) not prejudice the peace, security, or good order of the coastal state. Transit passage the right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straights used for international navigation. The right cannot be unilaterally suspended by the coastal state. INNOCENT PASSAGE Pertains to navigation of ships only Requires submarines and other underwater vehicles to navigate on the surface and show TRANSIT PASSAGE Includes the right of overflight Submarines are allowed to navigate in normal mode i.e. submerged

INNOCENT PASSAGE their flag. Can be suspended, but under the condition that it does not discriminate among foreign ships, and such suspension is essential for the protection of its security, and suspension is effective only after having been duly published (Art. 25, UNCLOS) In the designation of sea lanes and traffic separation schemes, the coastal state shall only take into account the recommendations of the competent international organization. TRANSIT PASSAGE Cannot be suspended

right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same subregion or region. Note: a coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ is not required to share its resources. The coastal state has jurisdiction over the (1) establishment and use of artificial islands, installations and structures, (2) scientific research, (3) the preservation and protection of marine environment. Under Art. 58 of the UNCLOS, all states enjoy the freedom of navigation, overflight, and laying of submarine cables and pipelines in the EEZ of coastal states. The coastal state has the right to enforce all laws and regulations enacted to conserve and manage the living resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. Note: In detention of foreign vessels, the coastal state has the duty to promptly notify the flag state of the action taken. Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. [Art. 59, UNCLOS]
232
Designation of sea lanes and traffic separation schemes is subject to adoption by competent international organization upon the proposal and agreement of states bordering the straits.
5. Exclusive Economic Zone

(Asked 1 time in the Bar) A coastal state may establish an EEZ that may stretch up to 200 miles from its baselines. Within this zone, a State may regulate nonliving and living resources, other economic resources, artificial installations, scientific research, and pollution control. Under the UNCLOS, states have the sovereign right to exploit the resources of this zone, but shall share that part of the catch that is beyond its capacity to harvest. Resources covered by sovereign rights of coastal states in the EEZ include living and non-living resources in the waters of the seabed and its subsoil. Coastal states have the primary responsibility to utilize, manage and conserve the living resources within their EEZ, i.e. ensuring that living resources are not endangered by overexploitation, and the duty to promote optimum utilization of living resources by determining allowable catch. If after determining the maximum allowable catch, the coastal state does not have the capacity to harvest the entire catch, it shall give other states access to the surplus by means of arrangements allowable under the UNCLOS. Note however that the UNLCOS does not specify the method for determining allowable catch. Hence, states may establish illusory levels. Geographically disadvantaged states (those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked states have the
6. Continental Shelf
Extended Continental Shelf
Definition It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to (1) the outer edge of the continental margin, or (2) a distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance. Continental margin the submerged prolongation of the land mass of the continental state, consisting of the continental shelf proper, the continental slope, and the continental rise
Limits of the Continental Shelf

Juridical or Legal Continental Shelf: 0-200 nautical miles from baselines

Extended Continental Shelf: 200-350 nautical miles from baselines depending on geomorphological or geological data and information When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits. At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea, or 100 nautical miles from the 2500meter isobath (or the point where the waters are 2500 meters deep). state as to living resources of such resources

living
233
Settlement of Disputes
7. Tribunal of the Law of the Sea
Peaceful Settlement of Disputes

Under par. 3, Art. 2 of the UN Charter, States have the duty to settle disputes by peaceful means. This obligation extends to State Parties of the UNCLOS, underscoring the right of the parties to resort to peaceful means of their own choice on which they can agree any time.
Rights of the Coastal Continental Shelf
State
over
the
The continental shelf does not form part of the territory of the coastal state. It only has sovereign rights with respect to the exploration and exploitation of its natural resources, including the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species.* For example, the coastal state has the exclusive right to authorize and regulate oil-drilling on its continental shelf. These rights are exclusive in the sense that when the coastal state does not explore its continental shelf or exploit its resources, no one may undertake these activities without the coastal states consent. Note: In instances where the continental margin is more than 200 nautical miles from the baselines, and hence extends beyond the EEZ, the coastal state has the exclusive right to exploit mineral and non-living resources in the excess area.
Compulsory Settlement of Disputes

Where no successful settlement can be achieved, or if the parties are unable to agree on the means of settlement of a dispute concerning the application of UNCLOS, such dispute may be governed by the principle of compulsory settlement, where procedures entail binding decisions. Compulsory Procedures that States Parties Can Choose From: (1) International Tribunal for the Law of the Sea*; (2) International Court of Justice; (3) Arbitral Tribunal*; (4) Special Arbitral Tribunal*; The choice of the State Parties must be expressed in a written declaration, which is revocable and replaceable.
Jurisdiction of Court or Tribunal

The court or Tribunal has jurisdiction over: (1) any dispute submitted to it concerning the application or interpretation of UNCLOS (2) any dispute concerning the interpretation or application of an international agreement: (a) related to the purposes of the UNCLOS (b) when such dispute is submitted to it in accordance with that agreement. Composition of the International Tribunal for the Law of the Sea (ITLOS) It is composed of 21 independent members elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. The composition shall also be representative of the worlds principal legal systems and of equitable geographical distribution.
Rights with Respect to Continental Shelf vs. EEZ

Duty to manage and conserve living resources Rights of the coastal state as to natural resources Continental Shelf No duty EEZ Coastal state is obliged to manage and conserve living resources in the EEZ Have to do with natural resources of both waters superadjacent to the seabed and those of the seabed and subsoil Do not pertain to sedentary species
Relate to mineral and other nonliving resources of the seabed and the subsoil
Rights of the coastal

*
Apply only to sedentary species
Jurisdiction of ITLOS
Sedentary species are organisms which, at the harvestable state, are either immobile on or under the seabed, or are unable to move except in constant physical contact with the seabed or subsoil.
As established under the UNCLOS.

Its jurisdiction covers all disputes submitted to it in accordance with the UNCLOS. It also includes matters submitted to it under any other agreement.

by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
234
Applicable Laws in Settlement of Disputes by the ITLOS

The Tribunal shall apply the UNLCOS and other rules of international law not incompatible with the UNCLOS. It may also decide a case ex aequo et bono (what is equitable and just) if the parties so agree.
L. International Environment Law

Definition (Magallona)
The branch of public international law comprising those substantive, procedural, and institutional rules which have as their primary objective the protection of the environment
Sustainable development development that

meets the needs of the present without compromising the ability of future generations to meet their own needs (Case Concerning the Gabcikovo-Nagymaros Project)
US vs. Canada (Trail Smelter Case): No state

has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence
Principle 21 of Stockholm Declaration

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle of Common but Differentiated Responsibility (Principle 7, Rio Declaration): States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. Precautionary Principle (Principle 15, Rio Declaration): In order to protect the environment, the precautionary approach shall be widely applied

Political Law Up 2012

Uploaded by

Copyright:

Available Formats

Political Law Up 2012

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Political Law Up 2012

Uploaded by

Copyright:

Available Formats

What are the main principles of international environmental law discussed in the document?

What are the main principles of international environmental law discussed in the document?

What is the composition and jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) according to the document?

What is the composition and jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) according to the document?

2012

UP LAW BAR OPERATIONS COMMISSION

UP LAW BAR OPERATIONS COMMISSION

2012 UP Law Bar Reviewer

UP LAW BAR OPERATIONS COMMISSION

Law on Public Officers

Public International Law

UP LAW BAR OPERATIONS COMMISSION

POLITICAL LAW REVIEWER

I. Definition, Nature and Concepts

POLITICAL LAW REVIEWER

III. Amendments and Revisions

POLITICAL LAW REVIEWER

(Prevailing view) Congress, through a law calling for plebiscite

POLITICAL LAW REVIEWER

Resolution calling for the 1971 Constitutional Convention

1971 Constitutional Convention convened

September 10, 1972 1973

Marcos declared Martial Law Plebiscite cases

POLITICAL LAW REVIEWER

Martial Law lifted. 1981 Amendments

February 2, 1987 1997

1987 Constitution ratified PIRMA case

Peoples Initiative of PGMA

POLITICAL LAW REVIEWER

IV. Self-Executing and Non-SelfExecuting Provisions

POLITICAL LAW REVIEWER

Ceding the Turtle and Mangsee Islands.

II. State Immunity

*Image taken from: http://media.photobucket.com/image/philippine%20map%20image %20international%20law/jibrael_2007/Jibrael%202008/map1_rpterri tory.jpg

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

III. Principles and Policies

POLITICAL LAW REVIEWER

IV. Separation of Powers

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

II. Houses of Congress

I. Who May Exercise Legislative Power

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

III. Legislative Privileges, Inhibitions and Disqualifications

POLITICAL LAW REVIEWER

IV. Quorum and Voting Majorities

POLITICAL LAW REVIEWER

VI. Electoral Tribunals and the Commission on Appointments

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

VII. Powers of Congress

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

I. Privileges, Inhibitions and Disqualifications

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER