Constitutional Law 2

CONSTITUTIONAL LAW 2
POLITICAL LAW REVIEWER

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Constitutional Law 2
POLITICAL LAW
Law on Public Officers
Administrative Law
Election Law
Local Governments
Public International Law
A. Fundamental Powers of the State
B. Private Acts and the Bill of Rights
C. Due Process
D. Equal Protection
E. Searches and Seizures
F. 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. Fundamental Powers of the
State
1. Concept and Application
2. Requisites for Valid Exercise
3. Similarities and Differences
4. 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. [Ermita-
Malate 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
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

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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

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
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

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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)]

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].

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]

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]


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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]

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

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(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.
(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]

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

Delegated tax legislation: Congress may delegate
law-making authority when the constitution itself
specifically authorizes it.

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
Police
Power
Eminent
Domain
Taxation
Compensat
ion
None
(The
altruistic
feeling
that one
has
contribute
d to the
public
good
[NACHURA
])
Just
compensat
ion
(Full and
fair
equivalent
of the
property
taken)
required.
None
(The
protection
given and
public
improveme
nts
instituted
by the
State
because of
these taxes
[NACHURA]
)
Use of
Property
Not
appropria
ted for
public use
Appropriat
ed for
public use
Use taxing
power as
an
implement
for the
attainment
of a
legitimate
police
objective
to regulate
a business
or trade
Objective To
destroy
noxious
property
or to
restrain
the
noxious
use of
property
Property
taken for
public use;
it is not
necessarily
noxious
Earn
revenue
for the
governmen
t
Coverage Liberty
and
Property
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

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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 non-
useful occupation, such as the practice of hygienic
and aesthetic massage in Physical Therapy
Organization v. Municipal Board of Manila (1957)].

4. Delegation

Police Power

a. Legislature

Police power is lodged primarily in the national
legislature.

b. Executive

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]


73
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
AS EXERCISED BY
DELEGATES
Extent of
Power
Pervasive and all-
encompassing
Can only be as
broad as the
enabling law and
the conferring
authorities want it
to be
Question
of
Necessity
Political question 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
Re:
Private
Property
Delegate cannot
expropriate
private property
already devoted
to public use

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]

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

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]


74
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)]

C. Due Process
1. Relativity of Due Process
2. Procedural and Substantive Due Process
3. Constitutional and Statutory Due Process
4. Hierarchy of Rights
5. Judicial Standards of Review
6. 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
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

75
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.

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

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)]

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 be given an
opportunity to be heard

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.

76
(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)]

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)]

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
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)]

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]


77
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.

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.)

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
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)]

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)]

2. Requisites for Valid Classification

(1) It must rest on substantial distinctions
which make real differences;

78
(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)

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)]

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

79
investigations against them. [Almonte vs. Vasquez
(1995)]

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)]

E. Searches and Seizures
1. Concept
2. Warrant Requirement
3. Warrantless Searches
4. Warrantless Arrests
5. Administrative Arrests
6. Drug, Alcohol and Blood Tests

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.

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]

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.

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.

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

80
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)]

3. Warrantless Searches

GENERAL RULE
Areas within the reach and control of the accused
are the permissible areas of search for both stop-
and-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)]

81

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 and
saturation drive
i. Exigent and Emergency Circumstances

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)]

Test for validity
Item to be searched was within the arresters
custody;
Search was contemporaneous with the arrest

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)]

b. Search of Moving Vehicles

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)]

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]

d. Stop and Frisk Searches

82

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]

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]

f. Customs Search

Searches of vessel and aircraft for violation of
immigration and smuggling laws [Papa vs. Mago
(1968)]

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]

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]

Properties Subject to Seizure

GENERAL RULE: Only the articles particularly
described in the warrant may be seized.

Property subject of an offense

83
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

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.

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)]

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

84
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;

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
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).

85
(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]]

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
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]

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)]

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:


86
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]

Forms of Correspondence Covered

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

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

2. Writ of Habeas Data

See Annex A.

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

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.

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

87
(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

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


88
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.


89
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)]

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.


90
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)]

Freedom of Association and Self-Organization

SEC. 17. Human Security Act
Proscription of Terrorist Organizations, Association,
or Group of Persons. Any organization, association,
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 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.

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.

91
(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)]

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.

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
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)]

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.

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,

92
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.

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]

Television Censorship

P.D. 1986 gives the petitioner the power to screen,
review and examine all television programs.

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)]

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


93
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)]

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]

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.

H. Freedom of Religion
1. Non-Establishment Clause
2. Free Exercise Clause

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.

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)]

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 schools
[Lemon vs. Kurtzman (1971)]

(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

94
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)]

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

95
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.

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
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)]

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)]

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. Limitations
2. Publication of Laws and Regulations
3. Access to Court Records
4. 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.


96
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.

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)]

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)]

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)]

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.


97
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)]

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
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]

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

98
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)]

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)]

2. Communist and Similar
Organizations

This is a question of the constitutionality of the Anti-
Subversion 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
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)]

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]

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

99
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.

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]

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

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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]

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
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]

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)]


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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
use" is strictly limited to clear cases of "use by the
public" has been discarded.

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 land-
sharing.

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

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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.

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)]

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 lesser-
known or poorer candidates, on the other, by
preventing undue advantage in exposure and
publicity on account of their resources and

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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)]

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
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 self-
supporting 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]

O. Rights of Suspects
1. Availability
2. Requisites
3. Waiver


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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 self-
incriminating 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.

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

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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)]

2. Requisites

People vs. Agustin (1995): This carries the
correlative obligation on the part of the investigator
to explain, and contemplates effective
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.

b. Right against Self-Incrimination under
Art. III, Sec. 12
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
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 pre-
interrogation 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

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6
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)]

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.

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.

Rule on Waiver
SEC. 12, ART. III:
(1) Must be in writing
(2) Made in the presence of counsel

Investigation; Section 2. Rights of Persons Arrested,
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.

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.

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


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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.

1. Criminal Due Process

Requisites [People vs. Vera (1937)]
(1) Accused is heard by a court of competent
jurisdiction;
(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)

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

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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)]

Bail as a Matter of Right vs. Matter of
Discretion

Matter of right Matter of Discretion
Bail is a matter of right
in all cases not
punishable by reclusion
perpetua.
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)]

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).

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]

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

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under bond for appearance at trial in other cases."
[Villaseor vs. Abano (1967)]

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)]

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]

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.
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]

5. Assistance of Counsel

RA 7438. Rights of Persons under Custodial
Investigation. SEC. 2. Rights of Persons Arrested,
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.

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)]


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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]

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

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]

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 Anti-
Subversion 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

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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)]

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 twenty-
four hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.

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

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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)]

R. Writ of Amparo

Definition
The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty

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3
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]
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 Enforceability Returnable
RTC of the
place where
the threat, act
or omission was
committed or
any of its
elements
occurred
Anywhere in
the Philippines
Before the
issuing court or
judge
Sandiganbayan
or any of its
(1) Before the
issuing court or
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
Court of
Appeals or any
of its justices
SC or any of its
justices
(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

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

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(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)]

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


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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 self-
incrimination. 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)]

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 self-
incrimination 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)]

3. Immunity Statutes

Transactional Immunity

ART. XIII. SEC. 18. 1987 CONSTITUTION.
The Commission on Human Rights shall have the
following powers and functions: xxx
(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;

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.

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)]

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6

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)]

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

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

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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]

V. Non-Imprisonment for Debts

ART. III. SEC. 20. 1987 CONSTITUTION
No person shall be imprisoned for debt or non-
payment 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
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)]

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

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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.

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]

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.

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.

X. Ex Post Facto and Bills of
Attainder

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)]

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

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the writ of habeas corpus. [Montenegro v. Castaeda
(1952)]

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
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)]

Annex A
QUERY HABEAS DATA
What is the writ of
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.
What rule governs
petitions for and the
issuance of a writ of
habeas data?
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.
What is the Supreme
Courts basis in issuing
the Rule?
(Constitution, Art. VIII, Sec. 5[5]).
When does the Rule take
effect?
The Rule takes effect on 2 February 2008, following its publication in three (3)
newspapers of general circulation.
Who may file a petition
for the issuance of a writ
of habeas data?
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.

Where can the petition
be filed?
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.
How much is the docket
or filing fees for the
petition?
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.
Instead of having the
hearing in open court,
can it be done in
chambers?
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

P
PPO
OOL
LLI
IIT
TTI
IIC
CCA
AAL
LL
LAW
BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
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COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales|Acads
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UP LAW BAR OPERATIONS COMMISSION
BAR REVIEWER
UP LAW
2012
POLITICAL LAW TEAM 2012
Faculty Editor | Florin T. Hilbay
Subject Heads| Rogelio
Benjamin Redoble Moises
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Layout Head| Graciello Timothy
Reyes

LAW ON PUBLIC OFFICERS

12
1
POLITICAL LAW
Administrative Law
Election Law
Local Governments
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

I. Concept and Application
II. Public Officer
III. Classification of Public Officers and Public
Officers

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
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)]

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.

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

Defined as unhindered performance.

v. 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

12
2
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

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.

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
Public Office Public Contract
How
Created
Incident of
sovereignty.
Sovereignty is
omnipresent.
Originates from will
of contracting
parties.
Object To carry out the
sovereign as well as
governmental
functions affecting
even persons not
bound by the
contract.
Obligations
imposed only upon
the persons who
entered into the
contract.
Subject
Matter
A public office
embraces the idea
of tenure,
duration,
continuity, and the
duties connected
therewith are
generally
continuing and
permanent.
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.
Scope Duties that are
generally
continuing and
permanent.
Duties are very
specific to the
contract.

1
ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE
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)]

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

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;

12
3
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]

10. Methods of Organizing Public Offices
Method Composition Efficiency
Single-
head
one head assisted
by subordinates
Swifter decision and
action
but may sometimes
be hastily made
Board
System
collegial body for
formulating polices
and implementing
programs
Mature studies and
deliberations but
may be slow in
responding to issues
and problems

11. Modification and Abolition of Public
Office

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.
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. 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)

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.

12
4
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)]

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.

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
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)]

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

B. Modes of Acquiring Title to
Public Office

Modes of Commencing Official Relation
1. Election
2. Appointment
3. Others:
a. Succession by operation of law;
b. Direct provision of law, e.g. ex-officio officers

1. Election
Selection or designation by popular vote

2. Appointment

(a) Definition
Designation Appointment
Definition Imposition of
additional duties
upon existing
office
Appointing
authority selects
an individual
who will occupy
a certain public
office
Extent of
Powers
Limited Comprehensive
Security of
tenure?
No. Yes.
Is prior/1st
office
abandoned
when
a 2nd
designated
position is
assumed?
NO
a 2nd
appointive
position is
assumed?
Usually YES

Political. Appointment is generally a political
question so long as the appointee fulfills the

12
5
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)]

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

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.

2) Temporary:
an acting appointment;
the temporary appointee NEED NOT be
qualified or eligible;
(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.

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.
4. Commission on Appointments confirms.

For Appointments Not Requiring Confirmation
(AIA)
1. Appointing authority appoints.

Note: If a person is appointed to the career
service of the Civil Service, the Civil Service
Commission must bestow attestation.

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;

12
6
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).

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
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.

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

12
7
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.

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.

D. Eligibility and Qualification
Requirements
I. Definition
II. Power to Prescribe Qualifications
III. Time of Possession of Qualifications
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

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)]

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

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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)]

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)]
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)]

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

2. For Senator (Sec. 3, Art. VI, Constitution)
able to read and write
registered voter
resident of the Philippines for not less than
two years immediately preceding election
day

3. For Congressmen (Sec. 6, Art. VI,
Constitution)
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

4. 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.)

5. Civil Service Commissioners (Sec. 1 [1], Art.
IXB. Constitution)

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35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position in
election immediately preceding
appointment

6. COMELEC Commissioners (Sec. 1[1], Art. IXC)
college degree holder
not a candidate for elective position in
appointment
chairman and majority should be members of
the bar who have been engaged in the
practice of law for at least 10 years

7. COA Commissioners
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
appointment.

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)]

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.

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)

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

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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 non-
commission of the imputed crime. [Garcia v.
Chairman, COA (1993)]

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)]

Specific Constitutional Disqualifications
Public Officer Disqualifications
The President, Vice
President, the Members
of the Cabinet and their
deputies or assistants
shall not hold any other
office or employment
during their tenure,
UNLESS otherwise
provided in the
Constitution, (Art. VII,
Sec. 13)
Senator or Member of
the House of
Representatives
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)
Members of the
Supreme Court and
other courts established
by law
shall not be designated to
any agency performing
quasi-judicial or
administrative functions.
(Art. VIII, Sec. 12)
Members of the
Constitutional
Commission

Ombudsman and his
Deputies
shall not hold any other
office or employment
[during their tenure].
(Art. IX-A, Sec. 2)
(Art. XI, Sec. 8)
Members of
Constitutional
Commissions, the
Ombudsman and his
Deputies
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)
Members of
Constitutional
Commissions, the
Ombudsman and his
Deputies
are appointed to 7-year
term, without
reappointment (Sec. 1(2)
of Arts. IX-B, C, D; Art.
XI, Sec. 11)
The Presidents spouse
and relatives by
consanguinity or affinity
within the fourth civil
degree
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 government-
owned-or -controlled

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corporations. (Art. VIII,
Sec. 13)

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 high-
ranking officials of the Executive branch.
However, public officials holding positions
without additional compensation in ex-
officio 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,
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

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.

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[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 non-
political 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.

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 quasi-
judicial.
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.

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.

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

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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)]

III. Duties of Public Officers
(De Leon, 2008)

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.

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
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

2. Duty to make public disclosure of
statements of assets and liabilities
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.

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)

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.

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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)]

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)]

III. Other Rights
(De Leon, 2008)

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

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

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

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

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.

4. Personnel Actions


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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

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
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.

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.

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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

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

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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)
b. 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.

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)]

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,
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.

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. De Facto Doctrine


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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.

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)]

a. Officer De Jure v. Officer De Facto (Asked
in 2000, 2004)

De Jure De Facto
Requisites 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.
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.

Basis of
Authority
Right:
He has the lawful
right / title to
the office
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
How
ousted
Cannot be
ousted.
In a direct
proceeding (quo
warranto);
(collaterally)
Validity of
official
acts
Valid, subject to
exceptions (e.g.,
acting beyond his
scope of
authority, etc.)
Valid as to the
public until his
title to the office
is adjudged
insufficient.
Rule on
Compen-
sation
Rightfully
entitled to
compensation;

The principle "No
work, no pay" is
inapplicable to
him.
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 Intruder
Nature

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

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De Facto Intruder
office.
Validity of
"official"
acts

Valid as to the
public until his
title to the office
is adjudged
insufficient
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)
Rule on
compen-
sation
Entitled to
receive
compensation
only when no de
jure officer is
declared and only
for actual
services
rendered.
Not entitled to
compensation at
all.

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
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)]

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.

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).

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

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

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)]

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
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

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.


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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
.
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.

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.

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)

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)]

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.

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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.

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.

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)]
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)]

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

III. Personnel Actions

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

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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-in-
rank.
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.

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

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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)]

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. Dozo-
Dadole, (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)

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
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.

(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

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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.

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
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 co-
principals, 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.

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;

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(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)

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

P
PPO
OOL
LLI
IIT
TTI
IIC
CCA
AAL
LL
LAW

EXECUTIVE COMMITTEE

COMMITTEE HEADS

OPERATIONS HEADS

Administrative Law

BAR REVIEWER
UP LAW
2012
Ronette Colobong

LAYOUT TEAM 2012
Cris Bernardino
Reyes

ADMINISTRATIVE LAW

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Administrative Law
POLITICAL LAW
Administrative Law
Election Law
Local Governments
B. Administrative Agencies
C. Powers of Administrative Agencies
D. Judicial Recourse and Review


I. Definitions

Administrative Law is that branch of modern law
under which the executive department of the
government, acting in a quasi-legislative or quasi-
judicial capacity, interferes with the conduct of the
individual for the purpose of promoting the well-
being 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.

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)

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,
Philippine Patent Office, Games and Amusement
Board, Board of Energy, and Insurance Commission)

3) Executive Orders/ Authorities of law
(E.g. Fact-finding Agencies)

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.

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).

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

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

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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)]

(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 FROM LEGISLATIVE RULES
Legislative Rules Interpretative Rules
Promulgated pursuant
to its quasi-legislative
/ rule-making
functions.
Passed pursuant to its
quasi-judicial capacity.
Create a new law, a
new policy, with the
force and effect of
law.
Merely clarify the meaning
of a pre-existing law by
inferring its implications.
Need publication. Need not be published.
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.
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
Legislative Rules Interpretative Rules
interpretation or give its
own set of rules.
Due process involves
whether the parties
were afforded the
opportunity to be
notified and heard
before the issuance of
the ruling.
Due process means that
the body observed the
proper procedure in
passing rules.

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.

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

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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)]

II. Quasi-Judicial (Adjudicatory) Power

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
Proceedings
Administrative Judicial
Nature of
Proceedings
Inquisitorial Adversarial
Rules of
Procedure
Liberally
applied
Follow technical
rules in the
Rules of Court
Nature and
Extent of
Decision
Decision
limited to
matters of
general
concern
Decision
includes
matters brought
as issue by the
parties
Parties The agency
itself may be a
party to the
proceedings
before it
The parties are
only the private
litigants

Requisites for a Valid Exercise
(1) Jurisdiction
(2) Due process

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.

(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
ADMINISTRATIVE LAW

15
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review becomes a farce; it is rendered
meaningless. [Rivera vs CSC (1995)]

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 Inter-
Fashion 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)]

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

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
subordinate where determinations are made at
lower levels of the same administrative system;
(2) 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;
(3) 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;
(4) 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;
(5) 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
(6) That embraced in statutes which provide for
appeal at the highest level, namely, the
President

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
ADMINISTRATIVE LAW

15
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once judicially determined by competent
authorities.

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,
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)]

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 quasi-
legislative 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

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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)]

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)]

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 quasi-
judicial or adjudicatory function (not rule-
making 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)]

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 quasi-
judicial 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)]

ADMINISTRATIVE LAW

15
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(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 quasi-
legislative 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 Failure to Exhaust Administrative
Remedies:
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)]

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.

P
PPO
OOL
LLI
IIT
TTI
IIC
CCA
AAL
LL
LAW

EXECUTIVE COMMITTEE

COMMITTEE HEADS

OPERATIONS HEADS

Election Law

BAR REVIEWER
UP LAW
2012
Ronette Colobong

LAYOUT TEAM 2012
Cris Bernardino
Reyes

ELECTION LAW

15
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Election Law
POLITICAL LAW
Administrative Law
Election Law
Local Governments
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

A. Suffrage

The right to vote in the election of officers chosen
by the people and in determination of questions
submitted to the people.

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.

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.

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.

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.]

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:
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(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

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
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]

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. 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

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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.

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)

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 4
th
civil degree of consanguinity or affinity. [Sec.
15, R.A. 8189]

V. Change of residence or address

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]

VI. Challenges to right to register

Who may challenge application for registration:
Any voter, candidate or representative of a
registered political party

Form:
(1) In writing
(2) State the grounds therefor
(3) Under oath and
(4) Attached to the application, together with
the proof of notice of hearing to the
challenger and the applicant

When: must be filed not later than the 2
nd
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]

VIII. Reactivation of Registration

Any voter whose registration has been deactivated
may file with the Election Officer a sworn
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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]

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]

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]

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]

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:
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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]

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 Party-
List Representatives
VIII. Effect of Change of Affiliation

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.]

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.

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]

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]

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]

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
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(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]

VII. Parameters in Allocation of Seats
for Party-List Representatives

20% allocation the combined number of all party-
list 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% threshold only those parties garnering a
minimum of 2% of the total votes cast for the party-
list 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.

There are 2 steps in the second round of seat
allocation:

1) The percentage of votes garnered by each party-
list 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
party-list representatives
x Guaranteed seats
of the two-
percenters

Formula for percentage of votes garnered by each
party-list candidate =
No. of votes garnered by
each party

Total no. of
votes cast for
party-list
candidates

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]

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 party-
list 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]

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F. Candidacy
I. Qualifications of Candidates
II. Filing of Certificates of Candidacy

I. Qualifications of Candidates

1. Candidate, Definition

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
(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
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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 non-
political cases here and abroad
(6) Insane or feeble-minded

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]

(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]

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.

(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
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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)]

(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 duly authorized
representative with the COMELEC

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 Cancel
Certificates of Candidacy

Who may file: Any person

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]

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.

(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
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(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]

(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.

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.

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.

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. IX-
B, Sec. 2 (4), Const.]
(3) Members of the military [Art. XVI, Sec. 5
(3), Const.]
(4) Foreigners, whether juridical or natural
persons.

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
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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]

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)

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]

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
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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]

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]

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
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]

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.
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97, B.P. 881]

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: P5 for every
voter

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

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]

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

I. Composition of Board of Canvassers
[Sec. 20, R.A. 6646]

Province City Municipality
Chairman Provincial
election
supervisor
or lawyer
in the
COMELEC
regional
office
City
election
registrar or
a lawyer of
COMELEC;

In cities
with more
than 1
election
registrar,
COMELEC
shall
designate
Election
registrar or
COMELEC
representa
tive
Vice
Chairman
Provincial
fiscal
City fiscal Municipal
treasurer
Member Provincial
superinten
dent of
schools
City
superinten
dent of
schools
Most senior
district
school
supervisor
or in his
absence, a
principal of
the school
district or
elementary
school

In case of non-availability, absence, disqualification
due to relationship, or incapacity for any cause of
any of the members, COMELEC may appoint the
following as substitutes, in the order named:

Province City Municipality
Chairman Ranking
lawyer of
the
COMELEC
Ranking
lawyer of
the
COMELEC
Ranking
lawyer of
the
COMELEC
Vice
Chairman
-Provincial
auditor
-Registrar
of Deeds
-Clerk of
Court
nominated
by the
Executive
Judge of
the RTC;
-Any other
available
appointive
provincial
official
-City
auditor or
equivalent;
-Registrar
of Deeds;
-Clerk of
Court
nominated
by the
Executive
Judge of
the RTC;
-Any other
available
appointive
city official
-Municipal
Administrat
or;
-Municipal
Assessor;
-Clerk of
Court
nominated
by the
Executive
Judge of the
MTC;
-Any other
available
appointive
municipal
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official
Member Same as
for Vice-
Chairman
Same as for
Vice-
Chairman
Same as for
Vice-
Chairman

II. Prohibitions on BOC

(1) Chairman and members shall not be related
within the 4
th
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]

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]

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]

(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 House of
Representatives in joint public session.

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 vice-
president and
(4) proclaim the winning candidates. [Sec. 22, R.A.
9369]

National BOC for Senators and Party-List
Representatives

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
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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]

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

II. Petition to Declare Failure of
Elections

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.

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]

3. Declaration of Failure of Election

It is neither an election protest nor a pre-
proclamation 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
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17
1
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.

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 pre-
proclamation 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]

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:
(a) Incompelte
(b) Contain material defects;
(c) Appear to be tampered with or falsified;
(d) 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]

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)]

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]
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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.

7. Effect of Filing of Pre-Proclamation
Controversy

(1) The period to file an election contest shall be
suspended during the pendency of the pre-
proclamation contest in the COMELEC or the
Supreme Court.
(2) The right of the prevailing party in the pre-
proclamation 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)]

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 pre-
proclamation 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
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(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]

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
(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]

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
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]

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]

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]

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(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]

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]

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]

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
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]

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]

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
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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.

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
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
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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

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.

P
PPO
OOL
LLI
IIT
TTI
IIC
CCA
AAL
LL
LAW

EXECUTIVE COMMITTEE

COMMITTEE HEADS

OPERATIONS HEADS

Local Governments

BAR REVIEWER
UP LAW
2012
Ronette Colobong

LAYOUT TEAM 2012
Cris Bernardino
Reyes

LOCAL GOVERNMENTS

178
Local Governments
POLITICAL LAW
Administrative Law
Election Law
Local Governments
A. Public Corporations
B. Municipal Corporations
C. Principles of Local Autonomy
D. Powers of Local Government Units
(LGUs)

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
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 interchangeable with
municipal corporation

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

179
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 3
rd
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
national government
Corporate entity
representing inhabitants
of its territory
Includes the legislative,
judicial, public and
political
Includes those which are
ministerial, private and
corporate
LGU cannot be held
liable except:
(1) If statute provides
otherwise
(2) Art. 2189, Civil Code
Can be held liable ex
contractu or ex delicto
Political/Governmental Corporate/Municipal
Examples:
(1) Regulations against
fire, disease
(2) Preservation of
public peace
(3) Maintenance of
municipal plaza
(4) Establishment of
schools, post
offices, etc.
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

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.
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180
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]

c. Authority to Create Local Government
Units
A local government unit may be
created, divided, merged, abolished, or its
boundaries substantially altered either
- by law enacted by Congress in the case of a
province, city, municipality, or any other
political subdivision, OR
- by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod
concerned in the case of a barangay located
within its territorial jurisdiction,
subject to such limitations and requirements
prescribed in this Code. [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 Sinacban
2
possesses legal
personality. Where a municipality created as such by

2
Sinacban was created by EO 258 of then President Elpidio
Quirino, pursuant to Sec. 68 of the Revised Administrative
Code of 1917.
LOCAL GOVERNMENTS

181
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
3
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 5
th
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
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.

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.

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).
LOCAL GOVERNMENTS

182

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.

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
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 highly-
urbanized 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)]

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]

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

183
(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]

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

C. Principles of Local Autonomy
1. State Policy, Principles of Decentralization
2. Local Autonomy
3. Decentralization
4. 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,
(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]

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)]

3. Decentralization

NOTE: Decentralization is a means to achieve local
autonomy.

Autonomy is either (1) decentralization of
administration or (2) decentralization of power.

LOCAL GOVERNMENTS

184
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. 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)
(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, Private or
Proprietary
(3) Intramural, Extramural
(4) Mandatory, Directory; Ministerial,
Discretionary

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]

1. Police Power (General Welfare
Clause)

Preservation of peace and order within respective
regions [Sec.21, Art. X, Constitution]
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185
(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 Welfare Clause [Sec.16 LGC]
(1) Powers expressly granted
(2) Powers necessarily implied
(3) 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

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.

Ordinances imposing the licenses and permits for any
business establishments, for purposes of regulation
enacted by the municipal council of Makati, falls
under the 1
st
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)]

LOCAL GOVERNMENTS

186
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)]

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:
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)]

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187
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)]

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.

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)]

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]
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188
(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)]

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
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189

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)]

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 1
st
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
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190
- 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]

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 1
st
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 closed-
door session is ordered by:
(1) an affirmative vote of a majority of the
members present (there being a quorum)
(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 of the members
constituting a quorum

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 (Component) City or Municipal
Ordinances

Within 3 days after approval, the secretary shall
forward to the Sangguniang Panlalawigan for review,
LOCAL GOVERNMENTS

191
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

Summary of review of ordinances

See Annex B.

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 1
st
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
LOCAL GOVERNMENTS

192
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

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)]

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;
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193
(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

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.
(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]

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
LOCAL GOVERNMENTS

194
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)]

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.

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
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]

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
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195
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]

Liability for Torts, Violation of the Law and
Contracts

WHEN LGU IS LIABLE
CASE DEFENSE
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)
Exercise of due diligence
in the selection and
supervision is not a
defense.
If engaged in
proprietary functions,
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
- The prosecution of crimes, even if
injury occurs [Palafox vs Ilocos Norte
(1958)]

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)]

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
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196
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.

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:
Boundary disputes shall
be referred for
settlement to:
two or more barangays
in the same city or
sangguniang panlungsod
or sangguniang bayan
municipality concerned.
two or more
municipalities within the
same province
sangguniang
panlalawigan concerned.

municipalities or
component cities of
different provinces
jointly referred to the
sanggunians of the
provinces concerned.

a component city or
municipality on the one
hand and a highly
urbanized city on the
other; or two or more
highly urbanized cities,
jointly referred for
settlement to the
respective sanggunians
of the parties.

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)]

9. Succession of Elective Officials

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197
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

Who Succeeds into Office
Governor Vice-governor
Mayor Vice-mayor
Office of the
governor or [and]
vice-governor,
mayor or [and] 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.
Office of the Punong
Barangay
Highest ranking
sanggunian barangay
member;
In case of his permanent
inability, the 2nd highest
ranking sanggunian member.

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
Who Succeeds into
Office
Member of Sanggunian
Panlalawigan or
Sangguniang Panlungsod
of highly urbanized
cities and ICCs
Person appointed by the
President, through the
Executive Secretary
Office where
Permanent Vacancy
Occurs
Who Succeeds into
Office
Member of Sangguniang
Panlungsod of
component cities and
the Sangguniang Bayan
governor
Member of the
Sangguniang Barangay
mayor, upon
recommendation of the
concerned
Representation of the
youth and the barangay
in the sanggunian
Official next in rank of
the organization
concerned [Sec. 45, LGC
(Asked in 1996, 2002)]

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 vice-
mayor, or the highest ranking sangguniang barangay
member shall automatically exercise the powers and
perform the duties and functions of the local chief
executive.

EXCEPTION: The power to appoint/suspend/dismiss
employees can be exercised only if the period of
temporary incapacity exceeds 30 working days.

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198
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 vice-
governor, 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
Who Temporarily Succeeds
into Office
Governor Vice-governor
(automatically)
Mayor Vice-mayor (automatically)
Punong barangay Highest ranking sanggunian
member (automatically)
Local chief executive
traveling within the
country but outside
his territorial
jurisdiction for a
period not exceeding
three consecutive
days
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, vice-
mayor or highest
member, if the local chief
executive fails or refuses to
designate
In this case, assumption
into office shall be on the
4
th
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 the
part of the regular presiding officer, the vice-
governor, 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

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.

LOCAL OFFICIAL LOA APPROVED BY:
governors;
mayors of
1)highly urbanized
cities or
2)independent
component cities

The President or his duly
authorized
representative

vice-governors;
city/municipal vice-
mayors

The local chief executive

city/municipal mayors of
component
cities/municipalities

The governor

sanggunian
panlalawigan,
panlungsod and bayan
members;
its employees

The Vice-governor or
city/municipal vice-
mayor
punong barangays

The city/municipal
mayor
sangguniang barangay
members
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]

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199
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

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
Penal Code; and all other applicable
general and special laws.

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
Where to File
Complaint
Provincial or city official Office of the President
Municipal official Sangguniang
Panlalawigan
Barangay official Sangguniang Panlungsod
or Sangguniang Bayan

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
Preventive Suspension
under the LGC
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
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
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200
from office; or
c. the respondents
continued stay in
office would
prejudice the case
filed against him
witnesses or pose a
threat to the safety
and integrity of the
records and other
evidence
Maximum period: 6 mos. Maximum period: 60 days

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 pre-
condition is the existence of a valid Information,
determined at a pre-suspension hearing. [Segovia v.

(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)]

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
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: Who may impose:
provinces
highly urbanized cities
independent component
cities
President, through
the DILG Secretary
municipalities
component city
Provincial Governor
barangay Mayor

The governor shall, upon the direct order of the
Disciplining Authority, preventively suspend an
elective official of a component city, who is under
formal administrative investigation by the Office of
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
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201
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]

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

202
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)]

Administrative Appeal

Within 30 days from receipt of decisions:

Decisions of:

May be appealed
before:
Sangguniang
Panlungsod of
component cities
Sangguniang Bayan
Sangguniang
Panlalawigan
Sangguniang
Panlalawigan
Sangguniang
Panlungsod of:
- highly urbanized
cities
- independent
component cities
Office of the President
Office of the President final and executory; may
not be appealed [Sec.
67, LGC]

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)]

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)]

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.

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203
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

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
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
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204
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 1-
year 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.

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205
RA 9164: Synchronized Barangay and Sangguniang
Kabataan Elections (2002)

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
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
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-a-
vis 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 1995-
98 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)]
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206

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]
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207
Annex A
Requirements Province
LGC 460-461
City
RA 9009 (2001)
Municipality
LGC 441-442
Barangay
LGC 385-386
Income Average annual
income, as certified
by the DOF, of not
less than P20,000,000
based on 1991
constant prices
Average annual
by the DOF, of at
least P100,000,000 for
the last 2 consecutive
years based on 2000
constant prices
Average annual
by the provincial
treasurer, of at least
P2,500,000 for the
last two consecutive
years based on 1991
constant prices
No minimum
requirement for
income
Population 250,000 inhabitants 150,000 inhabitants 25,000 inhabitants 2,000 inhabitants
5,000 inhabitants, in
cities and
municipalities within
MM and other
metropolitan political
subdivisions or highly
urbanized cities
Territory contiguous territory
of at least 2,000km
2
contiguous territory
of at least 100km
2
contiguous territory
of at least 50km
2

No minimum
requirement for area
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
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
Same as CITY. 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 By an Act of Congress 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
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
Approval must be by
cast; except
law or ordinance
Approval must be by
cast; except
law or ordinance
Approval must be by
cast; plebiscite shall
be held within such
period of time as may
be determined by the
law or ordinance
creating said
barangay.
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208
Annex B
Component City or Municipality
Ordinances and Resolutions
Barangay Ordinances
Reviewed by Sangguniang panlalawigan Sangguniang panlungsod or
sangguniang bayan
Furnish copies of ordinances
or resolution within
3 days after approval of ordinance or
resolution approving the local development
plans and public investment programs
formulated by the local development
councils
10 days after enactment of ALL
ordinances
Period to examine
documents
30 days after receipt of copies, after which
the ordinance or resolution is presumed
valid if no action is taken.
30 days after receipt of copies,
after which ordinance 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
Ground to invalidate
ordinance or resolution
Ordinance or resolution is beyond the power
conferred upon the Sanggunian concerned
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

P
PPO
OOL
LLI
IIT
TTI
IIC
CCA
AAL
LL
LAW

EXECUTIVE COMMITTEE

COMMITTEE HEADS

OPERATIONS HEADS


BAR REVIEWER
UP LAW
2012
Ronette Colobong

LAYOUT TEAM 2012
Cris Bernardino
Reyes

PUBLIC INTERNATIONAL LAW

210
POLITICAL LAW
Administrative Law
Election Law
Local Governments
A. Concepts
B. International and National Law
C. Sources
D. Subjects
E. Diplomatic and Consular Law
F. Treaties
G. Nationality and Statelessness
H. Treatment of Aliens
I. International Human Rights Law
J. International Humanitarian Law
(IHL) and Neutrality
K. Law of the Sea
L. International Environment Law

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

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

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]

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.

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

211
(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]:

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)

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. Treaty as Source of Law
2. Customary International Law
3. General Principle of Law
4. Subsidiary Source: Judicial Decisions
5. Subsidiary Source: Publicists

Primary Sources

(1) International Conventions, whether general
or particular, establishing rules expressly
recognized by the contracting states
(Treaties);
(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]

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.

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.

2. Customary International Law

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

212
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.

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
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

213
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]

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 law-
creating 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]

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
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).

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).

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]

214

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.

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)]

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:

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.

215

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)


216
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]

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 View) posits that
recognition is a mere declaration or
acknowledgement of an existing state of law and
fact, legal personality having been previously
conferred by operation of law.

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
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)]

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.

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

217
(1) implicitly bestowed in their charters or
(2) necessary to effect powers expressly
granted.

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)

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
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.

The Foreign Office

The body entrusted with the conduct of actual day-
to-day foreign affairs.

It is headed by a Secretary or a Minister who, in
proper cases, may make binding declarations on
behalf of his government. [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]

218
(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]

2. Diplomatic Immunities and
Privileges

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]

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.

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.

Right of Official Communication

The envoy is entitled to fully and freely
communicate with his government.

(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]


219
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]

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

220
(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.

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.

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;
(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.

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.

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;


221
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]

F. Treaties
1. Definition
2. Requisites for Validity
3. Treaty-Making Process
4. Invalid Treaties
5. 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 Executive
Agreements

Subject
Matter
1. Political
Issues
2. Changes in
national
policy
3. Involves
international
agreements
of a
permanent
character
1. Transitory
effectivity
2. Adjusts details
to carry out
well-
established
national
policies and
traditions
3. Temporary
4. Implements
treaties,
statutes,

222
Treaty Executive
Agreements
policies

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

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.

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 the terms and
provisions of the treaty.

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.

Authentication of the Text (Article 10,
VCLOT)

It means that the stage where the definitive text of
the treaty is established as the correct and authentic
one.

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 is
authorized to sign the treaty;

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

(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]


223
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.

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
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.

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.

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.


224
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.

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

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
A state conferring honorary citizenship upon
an individual

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]

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


225
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)]

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.

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.

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.

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]

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.

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)

226

Definition of Human Rights

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.

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.

First
generation
Second
generation
Obligatory
Force under
International
Law
strictly (or
objectively)
obligatory,
whatever the
economic or
other
conditions of
the states
obligated
relatively
obligatory: States
are required to
progressively
achieve the full
realization of
these rights to
the maximum of
their available
resources
Derogation/
Restriction,
when allowed
may only be
derogated in a
public
emergency
may be restricted
for the general
welfare, with or
without an
emergency that
threatens the
independence or
security of a State
Party.

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
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.

2. International Covenant on Civil and
Political Rights (ICCPR)

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

227
(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.

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.

J. International Humanitarian Law
(IHL) and Neutrality
1. Categories of Armed Conflicts
2. Core International Obligations of States in IHL
3. Principles of IHL
4. Law on Neutrality

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).

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 non-
international 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

228
(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.

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).

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.

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])

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]


229
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]

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

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.

(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)

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


230
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.

K. Law of the Sea
1. Baselines
2. Archipelagic States
3. Internal Waters
4. Territorial Sea
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.

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 low-
water 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

231
1. Coastal situated close to a mainland and may
be considered part thereof, i.e. Norway
2. 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.)

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.

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.

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.

3. Internal Waters

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.

4. Territorial Sea

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 TRANSIT PASSAGE
Pertains to navigation of
ships only
Includes the right of
overflight
Requires submarines and
other underwater
vehicles to navigate on
the surface and show
Submarines are allowed
to navigate in normal
mode i.e. submerged

232
INNOCENT PASSAGE TRANSIT 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)
Cannot be suspended
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.
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

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
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]

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


233
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 2500-
meter isobath (or the point where the waters are
2500 meters deep).

Rights of the Coastal State over the
Continental Shelf

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.

Rights with Respect to Continental Shelf vs.
EEZ

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

*
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.
state as to
living
resources
of such living
resources

7. Tribunal of the Law of the Sea

Settlement of Disputes

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.

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.

Jurisdiction of ITLOS

*
As established under the UNCLOS.

234
Its jurisdiction covers all disputes submitted to it in
accordance with the UNCLOS. It also includes
matters submitted to it under any other agreement.

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
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.

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CONSTITUTIONAL LAW 2

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