o
Political Law, Bar 2011
Glenn Tuazon
TABLE OF CONTENTS:
1.
2.
3.
4.
5.
6.
7.
8.
9.
CONSTITUTIONAL LAW (BRANCHES)
BILL OF RIGHTS
CITIZENSHIP
PUBLIC OFFICERS
ADMINISTRATIVE LAW
ELECTION LAW
LOCAL GOVERNMENTS
NATIONAL ECONOMY AND PATRIMONY AND SOCIAL JUSTICE, ETC.
PUBLIC INTERNATIONAL LAW


CONSTITUTIONAL LAW
The Constitution



What is a Constitution?
o Written instrument where the fundamental powers of
government are established, limited, defined, and by which
these powers are distributed among several departments, for
their more safe and usual exercise, for the benefit of the body
politic.
o “The Constitution is a living testament and memorial of the
sovereign will of the people from whom all government
authority emanates…” – Estrada v. Arroyo
Was there ever a time when there was no Philippine Constitution?
o There was a time there was no Phil. constitution (Feb to Mar
1987)
o But protections existed under the ICCPR and UDHR
o One cannot invoke protections under the BOR during this
period, because there was no BOR
What is the nature of the preamble?
o It does not give rights and obligations; just identifies author of
the Constitution (“we the sovereign Filipino people”)
1
It is also the source of clarification on disputed matters, for
instance, it has been used in litigation between Church and
State (“imploring the aid of almighty God” – proof that there is
no hostility to religion)
o It sets the tone by establishing:

1. A healthy civil society

2. And a democratic republican government
What is the rule on amendments and revisions?
o Amendment – small change

Can be proposed either by Congress, Con.
Convention, initiative and referendum
o Revision – changes the structure of government

Only by Congress or Con. Convention

NOT by initiative or referendum
Procedure in proposal of amendments and revisions –
o Congress –

¾ vote of all its members

Doesn’t say whether jointly or separately:

Because this provision was approved when
the Con. Comm. thought we would still have
unicameral assembly

Must be voted on separately, because this is
the default rule

What happens after?

Plebiscite where there is majority vote
needed by the electorate
o Constitutional convention –

How is a constitutional convention called?

1. By a 2/3 vote of all members of congress
OR

2. If not obtained, by a majority vote of all
members of Congress, with question of w/n
to call for a convention resolved by the
people in plebiscite

What happens after?

Plebiscite where there is majority vote
needed by the electorate
o Initiative –


o
There is no valid initiative law yet, based on an SC
decision (Defensor-Santiago v. COMELEC)

Is this still correct?

The minute resolution on the MR in
Lambino v. COMELEC held the initiative
law (RA 6735) to be valid.

What are the required votes for an initiative on the
Constitution?

12% of total number of registered voter AND
3% of the voters of each district

Viz. For national initiative, just 10% and 3%

What is the scope of people’s initiative?

It only applies to amendment, not to
revisions of the Constitution. So it cannot
apply to sweeping changes like changing
from presidential to parliamentary.

Takes effect on the day it was ratified

How is it ratified?
o Through a plebiscite, where a
majority of votes is needed

Period for ratification?
o 60-90 days from sufficiency of
petition for initiative
o What is the subject of amendment or revision?

ANYTHING, except those violating jus cogens.
Which provisions self-execute? Which don’t?
o Almost all provisions on policy are NON-self-executory
o 1. There is one provision where the SC recognizes an
enforceable right: right of people to balanced and healthful
ecology

(MMDA v. Concerned citizens, Oposa v. Factoran,
LLDA v. CA)

N.B. that A.M. No. 09-6-8-SC puts this right into
further fruition)
o “Protect and promote a right to health”  Sec. 15 is also
recognized as executory

Because it is worded almost similarly as Sec. 16

Whereas the other provisions are worded differently
“The State affirms…”
Tondo Medical Center v. CA  appeal was made using
several provisions in Art. II, but the SC disclaimed these,
saying these are not self-executory provisions
General considerations


2
What is the scope of national territory?
o Components of territory:

A) archipelago (aerial, terrestrial, fluvial)

B) all other territories outside archipelago
o Last year: we finally passed a law defining baselines

Straight baselines for the archipelago

Imaginary straight lines joining outermost
points of the outermost islands, without
appreciable departure from the general
configuration of the archipelago

But for territories outside the archipelago, the law
considered those as “regime of islands” – each would
have their own baselines, and not included in one
baseline along with the rest of the archipelago
o What is the archipelagic doctrine?

Archipelagic principle: all waters are considered
internal waters
State immunity –
o Par in parem non habet imperium
o Extends to:

1. Diplomatic agents

2. UN and its organs

3. Other IOs, if provided
o What is the test to determine if suit is against the State?

Whether it requires an affirmative act from the State, if
a decision is rendered against it
o When can there be suit against the State?

1. Waiver
o When is there consent to be sued?

Express provision of law, or special
law

Implied: commencing suit or
entering into business contract

o


What is the extent of waiver?

Waiver does not extend to
execution of judgment, just
immunity from suit. There has to be
a subsequent waiver from
execution. But the aggrieved party
can sue for mandamus in case the
State unjustly refuses to pay.

2. Performance of proprietary acts

3. Equity

The State may be sued if the doctrine of
immunity is used to perpetuate an injustice

Ex. does not pay just compensation in
expropriation

What about suits against government agencies
which are incorporated?

Check if the charter allows suit (this is a
waiver).

Otherwise, the general rule is to check if it is
performing governmental or proprietary acts.

N.B. so for these entities, the general
exceptions hold true
Forms of government and relevant definitions:
o “Democratic and republican”

Republican  representative of the people

Democratic  gesture of appreciation for EDSA I
o Differentiate State from government from administration:

State people, territory, government, sovereignty

Government  system remains the same

Administration  changes from election to election
o State:

De facto or de jure
o Democracy:

We have really not had a parliamentary form of
government. Initially, 1973 constitution provided for
such, but Marcos never relinquished his supremacy
from the rest of the government
What are the relevant principles?
o 1. The Philippines renounces war as State policy
o
o
o
o
We renounce only aggressive war; we allow
defensive war
2. As to applicability of International Law

See International Law notes
3. Civilian authority is at all times supreme over the military

N.B. Civilian authority, not officials.

Symbolized by President being Commander-in-chief
of the military
4. Compulsory military service by civilians if needed
5. Maintenance of peace and order

This is a constituent function, which the State is dutybound to perform

voluntarily done, and when needed
What is the subsidiary principle?

What civilians can do, the government will
not do
o 6. Separation of Church and State (discussed in Bill of Rights)
o Differentiate principles from policies:

A. Principles: things the country is supposed to live by
(first 6 provisions – as laid down here)

B. Policies: guidelines for action – everything else
Delegation of power
o What delegating law must possess:

1. Completeness

2. Sufficient standards
o When rules and regulations can have the force of penal
law:

1. Delegating statute itself must authorize
promulgation of penal regulations

2. Penalty provided by the statute itself

3. Publication in OG or newspaper of GC
Valid delegation:
o Abakada v. Executive Sec.: The President’s power in the
VAT law to increase the VAT according to the existence of
certain conditions is a valid contingent legislation.
o Gerochi v. DENR: the power delegated to the ERB to impose
universal charge on electricity end-users is not undue
delegation of power to tax, because its purpose is actually not



3
As opposed to ministrant functions which are



revenue generation by regulation – thus, police power.
Moreover, the delegating law was complete and has sufficient
standards.
“Sufficient standards”
o Eastern Shipping v. POEA: “fair and equitable employment
practices” is a sufficient standard in POEA requiring MC No. 2
(standard contracts for Philippine seamen)
o Tablarin v. Gutierrez: “standardization and regulation of
medical education” is sufficient standard to allow the BME to
create standardized medical entrance tests.
o RA 9335 (Attrition Act): Deemed valid, even if it allows the
BIR and BOC to give awards to those who surpass BIR targets
and sanction those who fall short. Is the setting of the targets
unduly delegated to the President?

HELD: No. Because the targets set are based on
estimated revenue collection as approved by the
DCBB and stated in the BESF submitted by President
to Congress – so the President alone does not set the
targets.
Outside scope of delegating law:
o Cebu Oxygen v. Drilon: RA 6640 decreed a wage increase
higher than the agreed-upon CBA. The DOLE however issued
a regulation that the salary increase in the CBA will not be
counted in assessing compliance with RA 6640.

HELD: Invalid; added a provision/limitation when none
existed in the law.
o Tatad v. Sec. of Energy: The Executive considered other
factors outside of the two provided in RA 8180 in deregulating
oil prices.

HELD: Invalid.
Undue delegation:
o People v. Dacuycuy: RA 4670 provides the penalty of
“imprisonment, in the discretion of the court.”

HELD: Unconstitutional – undue delegation of
legislative power.
o Contra Employers Confederation v. NWPC: Can delegate
wage-fixing power to executive, provided there are sufficient
standards.
Legislative Department
Subdivisions:
Legislative power (1)
Houses of Congress (2-7)
Elections (8-9)
Limitations and privileges (10-14)
Sessions, officers, internal bodies (15-20)
Powers of inquiry (21-22)
Matters of competence (23-25)
Legislative power




4
Where is legislative power vested?
o Vested in the Congress: composed of Senate and HOR
o Except: to extent reserved to the people by the provision on
initiative and referendum
What are the kinds of legislative power?
o Original: possessed by the sovereign people
o Derivative: delegated to the legislative bodies
o Constituent: power to amend or revise the Constitution
o Ordinary: power to pass ordinary laws
What is the nature of legislative power?
o Plenary in nature
o What are the limitations?

1. Substantive (as re: content of laws)

2. Procedural (as to how they are passed)

3. No irrepealable laws
General rule: Cannot be delegated.
o What are the exceptions?

1: delegation to local governments

2: delegation to administrative bodies

BUT NOTE: what is delegated to admin
agencies is not legislative power but “rulemaking power” which is executory in nature
o 1. Filling-up details or
o 2. Contingent legislation

3. Tariff powers to the President




4. Emergency powers to the President, as given by
Congress
What are the post-legislation powers of Congress?
o Only scrutiny and investigation, to check compliance with law –
otherwise, there will be violation of separation of powers
What is the difference in power of legislative and executive as re:
abolition of offices?
o Legislative in general holds the power to abolish public offices
o As an exception, the President may inactivate functions of
bureaus, departments, and offices in the executive department
only (as part of broad authority to reorganize)

Houses of Congress
Senate




24 members
o 1. Natural born citizen
o 2. On day of election, at least 35 years old
o 3. Able to read and write
o 4. Registered voter
o 5. On the day preceding election day, resident of Philippines
for at least 2 years
Social Justice Society v. Dangerous Drugs Board: Cannot add or
subtract from these qualifications. (apply to HOR too – see Maquera v.
Borra, where a property bond was disallowed)
Six year term, beginning June 30
Two consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o What about involuntary severance?

It is considered an interruption, because it is by
operation of law and not voluntary renunciation

HOR



Not more than 250 members unless provided by law
o Now, there are more than 250 members, obviously
o 1. Natural born citizen of the Philippines
o 2. On the day of the election, at least 25 years old
5
For youth party-list representative, at least 25 and not
more than 30 on the day of election
o 3. Able to read and write
o 4. Registered voter in the district in which he shall be elected
o 5. On the day immediately preceding election day, resident for
at least 1 year in the district in which he shall be elected

* Obviously for PLs, there is no district requirement 
just Philippines in general is required
o Special requirement for PL representatives?

Must be a bona fide member of the PL he seeks to
represent at least 90 days before the election
What does “residence” mean?
o Residence requirement actually means domicile.
o Requisites of domicile?

1. Animus manendi

2. Animus non-revertendi.
o Actual physical presence is not enough, as there must be proof
of permanence. Merely leasing a lot in the supposed new
domicile and registering as a voter in another place fails to
establish this.
Citizenship:
o Co v. HRET: Those born of Filipino mothers before Jan. 17,
1973 who elect Filipino citizenship upon age of majority are
considered natural born citizens.
o Bengzon v. Cruz: One who lost Filipino citizenship (in this
case, joined US army) and then reacquired Filipino citizenship
is still natural-born. But there is a dissenting opinion here.
o Valles v. COMELEC: Mere possession of alien passport or
alien certificate of registration is not automatically a
renunciation of Filipino citizenship, which must be express. It
is just dual citizenship. Filing of certificate of candidacy is an
act of choosing Filipino citizenship. (See section on citizenship
for more on dual citizenship)
Three year term, beginning June 30
Three consecutive terms, maximum
o Voluntary renunciation of office not considered an interruption
o QUINTO v. COMELEC:

Filing for candidacy is ipso facto resignation for
appointive official, but not elective official





Two types:
o District representatives
o Party-list representatives
o (No more sectoral representatives after 1998)
Apportionment of districts:
o From provinces, cities, and MM area  contiguous, compact,
and adjacent (CCA) territory

“As far as practicable”  so there can be exceptions
for island provinces

Gerrymandering is prohibited.
o According to population – uniform and progressive ratio
o At least one representative for:

1. Each city with population of at least 250K

2. Each province

Aquino III v. COMELEC: ONLY cities have to comply
with the minimum 250K. In this case, however,
proportionate representation was ignored (sadly).
o Reapportionment of districts within 3 years after every census
return
On creation of new districts:
o When a municipality is converted into a city large enough
to entitle it to one district, the incidental effect is splitting
the district into two. Does this need census?

No. The splitting of districts is by law.

No need for plebiscite under Art. X of the Constitution
when one district is split into two, because you are not
creating new juridical personalities or dividing the
territory per se. There is only a need for plebiscite if
you are creating a new Local Government Unit.
o When the increase of districts creates an imbalance, can
COMELEC correct the imbalance by transferring districts?

No. The COMELEC must wait for legislative
enactment.
o Sema v. COMELEC: Only law can create new legislative
districts. So RA 9054, in so far as it grants ARMM the
authority to create provinces and cities which could result in
the creation of new legislative districts, is unconstitutional.
Party-list representatives:
o 20% of total number of representatives


6
Banat v. COMELEC: The 2% vote provision to fill in the remaining
seats as provided in RA No. 7941 is unconstitutional, as an obstacle to
broad representation. The next higher vote getters, regardless of the
number of votes, will fill-in the remaining seats.
o What about the three-seat cap?

It’s constitutional. It prevents a party from dominating
the party-list system. The constitution does not
require absolute proportionality.
Guidelines for PLs in RA 7941:
o 1. Must represent marginalized or underrepresented
2. DQ’ed:

Religious

N.B.: religious leaders may be
representatives; the probation is against
religious groups

Advocates violence or unlawful means to seek goal

Receiving support from foreign government or
organization for partisan election purposes

Violates election laws

Untruthful statements in petition

Ceases to exist for at least 1 year

Failed to participate in last 2 preceding elections (or
fails to obtain at least 2% of votes cast in 2 prior
elections  CHANGED to failure to obtained a seat in
the prior 2 elections
o 3. Must not be indirectly funded or assisted by government
o VC Cadangen v. COMELEC: COMELEC has jurisdiction to
determine whether an organization applying for the party list
system represents marginalized sector. It cannot be
challenged by certiorari because the decision is based on facts
and the SC does not try facts.
Guidelines for PL representatives:
o 1. Must not have lost for an elective office in the immediately
preceding election
o 2. Five are nominated
o 3. No change in the names or order unless when (as approved
by COMELEC):

A. A nominee dies

B. He withdraws his nomination in writing
o



C. Incapacitated
4. Must be bona fide member of the PL he seeks to represent
at least 90 days before election
Elections





When are elections?
o 2nd Monday of May unless otherwise provided by law
What if there is a vacancy in either house?
o Can call special elections:
o But elected Senator or representative only serves the
unexpired term
Tolentino v. COMELEC: Congress enacted law declaring that the 13th
highest vote getter in the next general elections for Senator will fill-in
Guingona’s unexpired term (since he was appointed as VP). This is
valid practice, and there need not be any separate call, since the statute
filled that purpose and charges voters with information already.
What does RA 6645 (Special Election Law) provide?
o There will be a special election if the vacancy happens:

A) at least 1.5 years before the next regular election
for Senators

B) at least 1 year before the next regular election for
members of HOR
o What must be passed:

A) if Congress is in session – Resolution by the
concerned house

B) if not in session – Certification by the Speaker or
Senate President (depending where vacancy occurs)
o What it must contain

1. Declaration of vacancy

2. Calling for special election 45-90 days from date of
resolution or certification



(B) Arrest


Limitations and privileges

Determined by law
No increase in compensation takes effect until after the expiration of the
full term of all the Senators and HOR representatives approving the
increase
What about a decrease?
o Not covered by the prohibition because it only covers
increases
Is a new Senator or representative elected through special election
entitled to the new salary rate?
o No. The new members are serving the terms of those who
approved the increase and are thus not entitled to the
increase.
Are emoluments allowed?
o Open question, because the prohibition seems to allow indirect
increase in salary (not as strict as 1935 Constitution). But one
may appeal to the spirit of the provision to avoid increases.
Are allowances allowed?
o Yes since these do not constitute salary. The only limit is
moral.
There are five: a) salaries, b) arrest, c) financial and business interest,
d) other positions, e) prohibited involvements
(A) Salaries
7
1. Senators and reps privileged from arrest for all offenses punishable
by not more than six years
o When does this privilege apply?

While Congress is in session – thus, not during
recess

Whether regular or special, whether legislator is
actually attending it or not
2. No member can be questioned or held liable in any other place for
any speech/debate in Congress or any committee
o This is protection from other forums apart from Congress itself.
o Protects against libel suits, BUT NOT against disciplinary
authority of Congress.
o What does “Speech or debate” cover?

Includes utterances made in performance of official
functions (speeches, statements, votes cast, bills
introduced, etc.)
o When does this privilege apply?

o
o

Congress need not actually be in session. (So
compare with Arrest, where there is need for session)
What is the extent of protection?

Extends even to agents of assemblymen, provided
the agency consists of assisting the legislator.
Pobre v. Defensor Santiago: Miriam Defensor Santiago was
berating the SC as idiots, but she was held to have been
protected by parliamentary immunity, although the SC said she
crossed the limits of decency and good conduct.
o
(E) Prohibited involvements

(C) Financial and business interests connected with bill



When does this limitation apply?
o All Senators and representatives, upon assumption of office
What must they do?
o 1. Make full disclosure of financial and business interests
o 2. Notify the house concerned of potential conflict of interest

From filing proposed legislation

Wherein they are authors
N.B. THEREFORE, they are not prohibited from introducing bills that
have conflicts with their interest, as long as they disclose



(D) Other positions


2. Office whose emoluments were increased during
term elected
This is an absolute prohibition, unlike the first prohibition,
where he can accept the other office, but has to just forfeit his
seat.
1. First prohibition:
o No senator or HOR rep may hold any other office or
employment in:

Gov, any subdivision, agency, instrumentality,
including GOCCs and subsidiaries

During term
o Or else, forfeit his seat
o Liban v. Gordon: Gordon, upon assuming position as Phil.
National Red Cross chair, did not forfeit his seat because
PNRC is a private corporation, albeit performing public
functions. It is not among the prohibited positions.
2. Second prohibition:
o Cannot be appointed to:

1. Office created during term elected
May not personally appear as counsel before:
o 1. Any court of justice
o 2. Electoral tribunals
o 3. QJ bodies
o 4. Admin bodies
Cannot be involved in any, if granted by Gov, any sub, agency,
instrumentality, GOCC, subsidiary:
o 1. Contract
o 2. Franchise
o 3. special privilege
Cannot intervene in any matter, before any office of government for
pecuniary benefit or where he may be called upon to on account of his
office
Puyat v. De Guzman: A congressman cannot buy nominal amount of
shares in a corporation in a suit before the SEC and appear in
“intervention.” This is a circumvention of the constitutional policy.
Sessions, officers, and other internal bodies
Session


8
Regular session:
o Once a year, on fourth Monday of July

Unless other time fixed by law
o Continues to be in session for such number of days as it may
determine
o UNTIL 30 days before opening of its next regular session
o (Exclude: Saturday, Sunday, legal holiday)
Special session:
o Can be called by the President at any time
o When the legislature is in recess

Officers




Constitutional officers – elected by majority of its members:
o 1. Senate President
o 2. Speaker of the House
Each house chooses other officers as deemed necessary
Santiago v. Guingona: Tatad, the loser in the election for Senate
President wanted to assume minority leader position. But Guingona
assumed it. Filed Quo Warranto case.
o HELD: The Senate has prerogative to choose how to elect
other officers apart from the SP and SotH. So the Court
cannot de-proclaim Guingona.
Arroyo v. De Venecia: If what was violated was a mere internal rule of
the house, the SC cannot take jurisdiction. The house can waive
compliance with its own rules.
o Exceptions:

1. When what was violated is a Constitutional
provision OR

2. Persons other than members of the legislature are
affected.

Internal order



Majority of each house  quorum to do business
o Don’t count those outside the country because they are
beyond the coercive jurisdiction of each House
Smaller number:
o 1. May adjourn from day to day
o 2. May compel attendance of absent members according to
house rules
Disciplinary provisions:
o Each house may determine rules of proceedings

Osmena v. Pendatun: The disciplinary action taken
by Congress against a member is not subject to
judicial review because each House is the sole judge
of what disorderly conduct is.
o Punish members for disorderly behavior
o How does a house suspend or expel a member?

1. Need 2/3 concurrence of all members


2. Suspension cannot exceed 60 days

Paredes v. Sandiganbayan: The
suspension here is different from that under
RA 3019, the latter of which is preventive
while in this provision, it is punitive (and
internal).
Journal rules:
o 1. Published from time to time

Except parts affecting national security
o 2. Yeas and nays recorded at request of 1/5th of members
present
o What if there is conflict between extraneous evidence and
the journal?

The journal is conclusive upon the courts.
o What if there is conflict between the journal and an
enrolled bill?

The enrolled bill prevails, due to respect given to a coequal branch of government.
o What is the exception to the above matter?

When the Senate President withdraws his signature
from the enrolled bill, then the journal prevails.
o What if an enrolled bill conflicts with the journal on a
matter required by the Constitution to be placed in the
journal?

Open matter
There will also be a record of proceedings
During sessions, cannot do the ff without the consent of the other
house:
o 1. Adjourn for more than 3 days
o 2. Hold session in any other place than that in which the two
houses are sitting
Electoral tribunals


9
Two ETs:
o 1. SET
o 2. HRET
What is their Jurisdiction?

o






Sole judge of all contests relating to election, returns, and
qualifications of members (ERQ)
Composition?
o 9 members each
o 3 of whom: Justices of SC (designated by CJ)

Senior justice is chairman
o 6 members from the Senate or HOR, respectively

Based on proportional representation of political
parties and party-list organizations
What is an election contest?
o The defeated candidate challenges the qualification and claims
the seat of a proclaimed winner.
o There must be an election contest for the ET to have
jurisdiction.
When does a case pass from COMELEC to ET?
o When a winning candidate has been proclaimed, taken his
oath, and assumed office.
o Lazatin: After this point, COMELEC rules do not apply
anymore, but the ET rules.
What is the Supreme Court jurisdiction over ET?
o When there is GADALEJ.
o Bondoc v. Pineda: When a party expelled a member who
disclosed that he was not voting for the party candidate in an
election contest, the SC invalidated the expulsion, saying that it
impaired the ET’s prerogative to be the sole judge of election
contests.
o Garcia v. HRET: There is no GADALEJ when the ET
dismisses a case for failure to pay cash deposit required by the
HRET rules. Since the nature of the case is sensitive, it
follows that there must be strict compliance with internal rules.
Is the ET’s jurisdiction limited only to Constitutional
qualifications?
o No.
o It includes even statutory qualifications. This is the
consequence of being the “sole judge.”
Abbas v. Senate: Contest sought DQ of Senators sitting in SET. But
even if there are replaced, the replacements would face the same
challenge. No other body can replace the SET’s function. So they have
to nonetheless discharge their functions.

Limkaichong v. COMELEC: Alleged irregularity in proclamation will
not divest HRET of its jurisdiction. The ET would have to decide as well
whether the proclamation was valid or not.
Abayon v. COMELEC: The COMELEC decides whether the party-list
organization is qualified to join the party-list system. But it is the HRET
that can decide whether the party-list representative is qualified.
Commission on Appointments (CONA)




10
Function of the CONA?
o Function: to check and balance presidential appointments
o The CONA acts on all appointments submitted to it within 30
session days of Congress, from submission
o For positions required to be confirmed by the CONA
Composition (25):
o 1. Senate President (ex-officio chairman)
o 2. 12 Senators
o 3. 12 HOR representatives
Representation chosen based on proportional representation of the
parties (and party-list system)
o Daza v. Singson: The party need not be registered. If there
are changes in the party alignment, then the CONA must
always reflect these changes.
o Coseteng v. Mitra: Mere endorsement by eight other
members cannot count in favor of Coseteng, the only member
of KAIBA who won that election (0.4%). There must be at least
8.4% representation to win a seat in the CONA (for the HOR),
under that election.
o Guingona v. Gonzales: No need to complete all 12 seats for a
house. So in this case where one party only had 1
representative in the Senate, this would entitle the party to 0.5
seats. There is no such thing as a half seat.
o Drilon v. Speaker: The two houses have primary jurisdiction
on who should sit in the CONA. This includes determination of
party affiliation and number of party members for purpose of
determining proportional representation.
Rules on voting:
o Majority vote
o Chairman does not vote, except if there is a tie
On ETs and CONA



When constituted?
o Constituted within 30 days after Senate and HOR have been
organized
o When are the Senate and HOR organized?

Upon election of the SP or SOH
When does the CONA meet?
o Only when Congress is in session
o At call of chairman or majority of members
o What if the Congress is not in session?

Then this is when there are ad interim appointments
Records and books of account

What is required for these books?
o 1. Preserved and open to the public

In accordance with law
o 2. Audited by the COA

Publishes annually an itemized list of amounts paid to
and expenses incurred for each member


Inquiry powers
Sec 21: inquiries in aid of legislation




What is the purpose of Sec. 21?
o To obtain information for legislation
o EO creating the PCGG included a proviso that none of its
members may be compelled to provide information or act
as witness before any of the government bodies. Is this
valid?

No. It is repugnant to this power. It was repealed by
the 1987 constitution.
Can Congress punish for contempt?
o Yes. This power to do so exists until the legislature’s final
adjournment, because this power is for the preservation of the
legislative body
Can courts prohibit Congress from requiring respondents to
appear before it?


11
o No.
What is “in aid of legislation”?
o Easy to comply with this in Phils. since our legislature
possesses plenary powers
o Each question separately need not be material to proposed
legislation – it is the totality of information gathered that is
pertinent
o BUT SEE Bengzon v. Senate Blue Ribbon: The court rules
that the investigation was not in aid of legislation because
Enrile’s speech did not suggest any contemplated legislation.

 COMMENT: this seems to be an overstepping of
the Court’s bounds, because it cannot second-guess
the intent of Congress based on a single speech.

 The main principle here: it must be in aid of
legislation, not in aid of prosecution
Who may be summoned?
o Anyone, except:

1. President

2. SC Justice
o Even a department head who is an alter ego of the President
may be summoned.
The rights of persons appearing in or affected by inquiries shall be
respected  apply the Bill of Rights
o Ex. Right against self-incrimination
Does the filing of a criminal case divest the legislative of power to
conduct the inquiry?
o No. The inquiry is not in the nature of a criminal prosecution.
Also, cannot invoke in general right against self-incrimination
because the process is not to impute liability per se (although
they may invoke this right for specific questions).
Garcillano v. HOR: The rules of the Congress in inquiries in aid of
legislation must be published according to the Civil Code provisions on
publication. The requirement of publication is expressly stated in Art.
VI, Sec 21.
De la Paz v. Senate: Violation of internal procedures of Senate cannot
be, as a general rule, subject to judicial supervision since “Each house
shall determine the rules of its proceedings.” The exceptions are when
there is arbitrary and improvident use of power, which ultimately denies
due process.
Sec 22: executive privilege/oversight function (“question hour”)
State of war






Heads of departments may appear on any matter pertaining to their
departments
o But with due deference to separation of powers, Department
Heads, who are alter egos of the President, may not appear
without permission of the President.
o This provision does not apply to any one else with Cabinet
rank, if not Department Heads.
o N.B. Quick and dirty rule: just Department Heads
Who initiates?
o 1. Upon own initiative of the department head, with consent of
President OR
o 2. Upon request of either house

What does “request” imply?

That Sec. 22 is NOT mandatory and
compulsory
Written questions submitted to SP/SOH 3 days before scheduled
appearance
o Interpellations not limited to written questions
o But may cover matters related thereto
What if security of State or public interest is affected?
o The President must state it in writing, and
o Appearance can be in executive session
Executive privilege  really applies to Sec. 21 (because this is the
mandatory provision, whereas Sec. 22 is merely optional – more on this
in Art. VII)
o Only the President may invoke this. If it is invoked by some
other person, there must be proof that he or she has
Presidential authority.
o Coverage:

1. State secrets

2. Informer’s privilege

3. Generic privilege for internal deliberations
o SC has final say to determine if privilege covers the matter.
o Puno’s dissent  the SC seemed to have guessed Neri’s
intent through guesswork.


Requirements to declare a State of war:
o 1. Joint session but
o 2. Separate vote
o 3. 2/3 vote of both houses
Emergency powers to President:
o In times of war or other national emergency:
o Congress may by law authorize President to exercise powers
necessary to carry out declared national policy
o For limited period and subject to restrictions
o When it ends:

1. By resolution of Congress

2. Upon next adjournment
N.B.: “existence of state of war” means that we renounce aggressive
war as national policy
o But the executive may lodge war even without a declaration of
the state of war. The power to make war is with executive.
Origination clause




What bills must originate from the HOR?
o 1. Appropriation, revenue, or tariff bills
o 2. Bills authorizing increase of public debt
o 3. Bills of local application
o 4. Private bills
But Senate may propose or concur with amendments
N.B. HOR just initiates, but the senate may completely replace it. As
long as the idea comes from HOR. The bill is the only one that must be
originated, but not the law.
The Senate can even “anticipate” the house bill, provided the HOR bill
was filed prior to the Senate version.
Appropriations

Matters of legislature’s competence
12
Is a bill that creates an office and appropriates money for it an
appropriations bill?
o No. The primary and specific aim must be the allocation of
sum of money, and not just incidental.







Congress may not increase appropriations recommended by President
for executive branch
No provision or enactment embraced in general appropriations bill
unless it relates specifically to some appropriation therein
o Provision or enactment  limited to the appropriation to which
it relates
o Garcia v. Mata: An example of a rider is the Appropriations
Act of 1956-7, which contained a prohibition for reserve officers
called for tour of active duty for more than 2 years in a 5 year
period.
Procedure for approving appropriations for Congress: same procedure
as for other departments and agencies
Requirements for Special appropriations bills:
o 1. Must specify purpose for which it is intended
o 2. Supported by funds actually available (certified by National
Treasurer) OR raised by revenue proposal
Transfer of appropriations:
o General rule: no law passed authorizing any transfer of
appropriations
o Exception: The following may (by law) be authorized to
augment any item in the general appropriations law for their
respective offices from savings in other items in their
appropriations:

1. President

2. Senate President

3. SOH

4. CJ

5. Heads of Con-Comm.
o Demetria v. Alba: A law allowing the President to transfer
funds was declared unconstitutional because it did not state
that these must be savings from other items in his respective
appropriations
o This list is exclusive.
Discretionary funds:
o Appropriated for particular officials
o Must only be disbursed for public purpose
o And supported by vouchers and subject to guidelines under
law
Automatic renewal of prior year’s appropriation bill if at the end of a
fiscal year, Congress fails to pass the GAB
o Remains in effect until the GAB is passed
Passage of laws


13
What is the “one subject rule”?
o Every bill must only embrace one subject which shall be
expressed in the title.
o This is a mandatory requirement.
o Purposes of this rule?

1. To prevent hodge-podge or log-rolling legislation

2. To prevent surprise or fraud

3. Fair appraisal to the people
o How is the rule interpreted?

Liberally – allow if title is general and all provisions
are germane to this general subject
o Tio v. Videogram Regulaory Board: Act Creating Videogram
Regulatory Board included 30% tax on gross receipts on video
transactions.

HELD: Valid, not a rider. Taxation is sufficiently
related to regulation of video industry.
o Phil. Judges Association v. Prado: Act creating Phil. Postal
Corp., defining powers, functions, responsibilities, regulation of
industry, other purposes included removal of judges’ franking
privileges.

HELD: Valid, not a rider. Sufficiently related (but
violated EPC).
o Tobias v. Abalos: Act converting Mandaluyong to HUC of
Mandaluyong included resulting conversion of city into
congressional district.

HELD: Valid.
o Banat v. COMELEC: RA 9369, which speaks of poll
automation, contains substantial provisions dealing with
manual canvassing of election returns.

HELD: Valid.
How does a bill become law?
o 3 readings on separate days

When can there be 3 readings on one day only?



Public calamity or emergency as certified by
President

Printed copies given to members 3 days before its
passage
o First reading:

Read the title

Pass to Bicameral Conference Committee
o Second reading:

Entire text read,

Debates held,

Amendments introduced
o Third reading:

No amendment allowed

Take vote immediately thereafter

Yeas and nays entered in journal
Presentation of bill to President
o How does the president signify approval?

1. Signing the bill

2. No action in 30 days. Thus, there is enactment by
inaction on the President’s end. No such thing on
legislative side.
o What happens if it is rejected?

Vetoed, return to originating house, with objections.
Objections are entered in house journal.

What is the process of reconsideration, where the
legislation can override a Presidential veto?

2/3 approval on originating house, then sent
along with objections to the other house.

2/3 approval of other house  becomes law

Must yeas and nays be recorded?

Yes.
o Must the President veto the entire bill?

Yes.

What is the exception?

Appropriation, revenue, or tariff bills. The
President can exercise “item veto.”

What are the exceptions to the exception?

1. Doctrine of inappropriate provisions

2. Executive impoundment


Three cases when the Constitution requires yeas and nays to be
recorded:
o 1. Last and third readings of a bill
o 2. Upon 1/5 members’ request
o 3. Re-passing a bill over Presidential veto
What is a Bicameral Conference Committee?
o Extra-constitutional creation
o Intended to resolve conflicts between house and Senate
versions of bills
o Tolentino v. Sec. of Finance: the Conference Committee may
draft a bill which contains provisions not found on either bill
Vetoes:
o General rule: no item veto (only for ART bills)
o Invalid veto: deemed without effect
o Can an “item veto” be done within a section?

Yes. “Item veto” does not mean the President can
only veto an entire section. He can veto within a
section, as long as there is a subject and a tax rate
(that is an item).
o What is the doctrine of “inappropriate provisions”?

The President may veto riders in an appropriation bill,
even if it is not an appropriation or a revenue item.
o What is “executive impoundement”?

Refusal of the President to spend funds allocated by
Congress for a purpose. The court did not pass upon
this question, but simply relied on the inappropriate
provisions doctrine.
Taxes


14
Characteristics of taxation:
o 1. Uniform and equitable.

Not intrinsic, but geographical uniformity; also, EPC
o 2. Progressive system of taxation.

Tax rate increases as tax base increases
Congress may authorize President to fix within specified limits:
o 1. Tariff rates
o 2. Export and export quotas
o 3. Tonnage and wharfage dues
o
o




4. Other duties or imposts within framework of national
development program of government
Can the power to tax be delegated to the executive?
o Yes. Power to tax is legislative, but Sec. 28(2) allows Congress
to delegate it to the President. The President is bound by
conditions set by Congress. This is an exception to the rule of
non-delegability.
What are specially exempt from property taxation?
o Land, buildings, and improvements that are actually, directly,
and exclusively used for religious, charitable, or educational
purposes.

Ex. Charitable institutions, churches and
appurtenances, mosques, non-profit cemeteries
o NOTE: These are only property tax exemptions
No law granting tax exemption can be passed without concurrence of
majority of all members of Congress
General limit to power to tax: must be for public purpose
o Planters v. Fertiphil: LOI 1465, a piece of martial law
legislation, imposed a P10 capital contribution for each sale of
a bag of fertilizer until adequate capital is present to make PPI,
a private company, viable. HELD: invalid, because it was not
for a public purpose.



Misc


Money



What if they are not used or the purpose is fulfilled or
abandoned?

Transferred to general funds of the government
o Is the OPSF a special fund?

No, because it was not pursuant to the power to tax.
It was pursuant to police power.
Is a law requiring automatic reappropriation for foreign debts
invalid because there is no fixed amount?
o No. It is valid. The amount can be fixed by the simple act of
looking into Treasury books.
Is a continuing appropriation law valid?
o Yes. The law does not require yearly or annual appropriation.
Philconsa v. Enriquez: CDF/Pork barrel was approved by SC, stating
that the Congress already specified uses of the power, and power given
to the executive officials was merely recommendatory, subject to
President’s approval. (Fr. B doesn’t like this.)
No money paid out of treasury except pursuant to appropriation made
by law
Limitations on appropriations?
o 1. Must be for public purpose.
o 2. No public money/property appropriated, applied, paid,
employed to religious sects or religious personnel

EXCEPT when such person is assigned to:

1.Armed forces

2. Penal institution

3. Government orphanage

4. Government leprosarium
What is the rule on special funds?
o Money collected on tax levied for special purpose must be paid
for that purpose only
Can the Congress increase appellate jurisdiction of the SC?
o No, unless there is SC advice and concurrence.

Ex. OMB Act directly allowed appeals from OMB to
SC was unconstitutional.
Can the law grant title of nobility or royalty?
o No.
Initiative and Referendum:


15
What can the people do pursuant to this power?
o 1. Directly propose and enact laws
o 2. Approve and reject any act or law or part thereof passed by
Congress or local legislative body
What are the types of initiative?
o 1. Initiative on the Constitution

12%-3%
o 2. Initiative on Statutes (national legislation)

10%-3%
o 3. Initiative on Local Legislation

See local government





Requires for petition for national initiative?
o 1. Signed by at least 10% of total number of registered voters
o 2. Represented by at least 3% of registered voters of each leg.
District
o 3. Petition must be registered with COMELEC
What if it’s an initiative on the Constitution?
o 1. It must be 12% of all registered voters
o 2. Represented by at least 3% of registered voters of each leg.
District
o 3. And only once every 5 years
And then?
o All registered voters vote on the proposition forwarded
What cannot be the subject of initiative?
o 1. Petition embracing more than 1 subject
o 2. Statutes involving emergency powers specially vested in
Congress by the Constitution cannot be subject of referendum
until 90 days after effectivity
RA 6735  Initiative and Referendum Law
of State of
war (joint
session, but
separate
vote)
Overriding
Presidential
veto
(originating
house, then
the other)
2/3 vote
Majority vote
1/3 vote
Proposing
amendme
nts or
revisions
to the
Constitutio
n (one
house,
then the
other, all
members)
Suspension
of a member
by his
respective
house (all
members)
Election of SP and
SOH, by their
respective houses (all
smembers)
Passing
articles of
impeachm
ent
(House of
Represent
atives
alone)
Calling a
Constitution
al
convention
Constitutional
convention, if 2/3 vote is
not met (all members),
and thereafter the
question re: calling is
resolved in a plebiscite
Commission on
Declaration
Law granting tax
exemption (all
members, not just those
present)
Revoking proclamation
of President of martial
law or suspension of
privilege of WHC (joint
vote)
Extension of period of
martial law or
suspension of privilege
of WHC (joint vote)
Granting amnesty
President declares that
he can discharge
duties, but the Cabinet
says otherwise
Validating a treaty (only
Senate)
Deciding to impeach an
officer (Senate)
Confirming the
appointee as new VP is
the present one dies
(each house votes
separately)
Summary of Congressional voting requirements:
3/4 vote
appointments, both
voting and to convene
(if the Chairman doesn’t
call for meeting)
1/5
vote
To
record
yeas
and
nays
(mem
bers
prese
nt)
Executive Department
Presidency, Vice-presidency

16
Executive power: vested in President
o Head of State
o Chief Executive – he is the Executive and no one else
o
o
o

Marcos v. Manglapus: The Constitution’s list of powers of the
executive are not exclusive. He possesses residual unstated
powers. The Constitution just deems it best to limit certain
aspects of the President’s power to avoid abuse.

Laurel v. Garcia: But the President may not convey
valuable real property of the government on his sole
will. It must be pursuant to a law by Congress.
The president is also immune from suit and criminal
prosecution while in office.
Executive Privilege

Senate v. Ermita: What topics are covered by
privilege:

1. Conversations and correspondence
between President and official covered by
EO 464

2. Military, diplomatic, other national security
matters

3. Information between inter-government
agencies prior to conclusion of treaties and
executive agreements

4. Discussion in close-door Cabinet
meetings

5. Matters affecting national security and
public order

Two requisites for executive privilege to apply:

1. It must fall within one of these matters
covered

2. Claim of privilege must be stated with
sufficient particularity so the Congress or
court can determine whether it is legitimate

How can communications be privileged?

1. It must related to a “quintessential and
non-delegable power” of the President
o Ex. Power to enter into executive
agreements with other countries

2. Communications are received by close
advisor of the President
o Test: “operational proximity”




17
3. No compelling need (or unavailability of
information elsewhere) that would justify
limitation of privilege
o From among the Executive branch officials, only the President
is exempt from Art VI, Sec 21: the President. The executive
branch, while co-equal to the legislative, must not frustrate
power of Congress to legislate.
o Neri v. Senate: Applied privilege #1: “presidential
communication privilege.” It is presumed to be privileged. In
this case, Senate was not able to overcome the presumption.
But if the decision reached in the communication is criminal, it
cannot be privileged.

CJ Puno, in his dissent, said that instead of relying on
this privilege, the court could have held an in-camera
session to determine whether the claim really is
privileged.
Estrada v. Disierto: A president is immune from prosecution during
tenure. But once out of office, the immunity for non-official acts is lost.
Qualifications of President:
o 1. NBC

Tecson v. COMELEC: An illegitimate child of a
Filipino father is a natural born citizen nonetheless.
o 2. At least 40 years on the day of the election
o 3. Registered voter
o 4. Can read and write
o 5. On the day immediately preceding elections, at least 10 year
residency in the Philippines
Vice President
o Same qualification as President
o Elected with, and in same manner
o Removed from office in same manner
o May be appointed as member of cabinet with no need for
CONA confirmation.
Term:
o Six years, beginning 30 June, 12 noon

Elected second Monday of May
o President: Not eligible for any reelection

o
o
o

Erap situation: he was allowed to run because this
was interpreted as to apply only to the incumbent

No person who has succeeded as President and has
served more than 4 years qualified for reelection
VP: No more than 2 successive terms

Voluntary renunciation does not interrupt
Canvassing:

By Board of Canvassers in each province/city

Certificates of Canvass transmitted to Congress  to
Senate President

Not later than 30 days from E-Day: open all
certificates in presence of both houses in joint public
session

Congress determines authenticity and due
execution  not just ministerial

Then canvasses

Lopez v. Senate and House: Congress
may delegate preliminary count to a
committee, as long as it approves it
afterwards as a body

Macalintal v. COMELEC: Proclamation of P
and VP winners is function of Congress, not
COMELEC

Pimentel v. Joint Canvassing Committee:
Final adjournment of Congress only
terminates legislative functions, but not nonlegislative functions such as canvassing.

In case of tie between two or more for highest number
of votes:

Senate and HOR both vote separately 
majority vote of ALL
Presidential Electoral Tribunal (PET):

Supreme Court en banc

Poe Jr. v. Arroyo: Under PET rules, only the 2nd and
3rd placers may contest the election. The widow of
the 2nd placer may not substitute or intervene for him.

Legarda v. De Castro: PET may correct manifest
errors in the statement of votes and certificates of
canvass.
Defensor-Santiago v. Ramos: When the 2nd placer
who lodged a protest ran and won for Senate, she
was deemed to have abandoned the protest
Vacancy, sickness
18
Vacancy problem AT THE
BEGINNING OF THE TERM OF
PRESIDENCY
P-elect fails to qualify
P-elect not chosen when term is
supposed to start
P-elect dies or is permanently
incapacitated before term of office
Both P and VP not chosen or failed
to qualify
Both P and VP died or became
permanently incapacitated before
start of term
P, VP, SP, and Speaker all have
died, become permanently
incapacitated, or cannot assume
office
Solution
Vacancy problem AFTER THE
OFFICE HAS INITIALLY BEEN
FILLED
Incumbent P dies, is permanently
disabled, is removed, resigns
Both P and VP die, are permanently
disabled, are removed, resign
Solution
VP is acting P until P-elect qualifies
VP is acting P until P is chosen and
qualified
VP becomes P
SP, (or Speaker, in that order),
becomes acting P
SP, (or Speaker, in that order),
becomes acting P
Congress decides by law who acts
as P (not becomes) until P and VP
elected and qualified
VP becomes P
Acting P dies, is permanently
incapacitated, is removed, resigns
Vacancy in office of VP
SP, or speaker, in that order,
becomes acting P until P or VP have
been elected or qualified
Congress provides by law who will
act as P until new P or VP qualify
P nominates VP from either house of
Congress  assumes VP position
from majority vote of all members of
Congress, vote separately
Inability to discharge issue
President transmits to SP and SOTH
Result
VP is acting P, until President gives
written declaration that he cannot
discharge powers and duties
Majority of cabinet transmits to SP
and SOTH written declaration to
same effect
President transmits to SP and SOTH
written declaration that no inability
exists BUT within 5 days, majority of
cabinet transmits otherwise
VP is acting P, until President gives
contrary written declaration


Serious illness of the P




o
contrary written declaration
Congress convenes within 48
hours with no need for call to
decide, within 10 days from
receipt of last written declaration
(or 12 days if Congress is not in
session)
Can decide, through 2/3 vote of
both houses, voting separately,
either: a) for VP to be acting P,
b) or P to discharge duties
Public informed about state of
health
Who cannot be denied access
to P:
o 1. National security
adviser
o 2. Secretary of Foreign
Affairs
o 3. AFP chief of staff
Cannot:

Suspend convening of Congress

Postpone special election
Privileges, benefits, limitations




P has official residence
P and VP salaries:
o Determined by law
o Cannot be decreased during their tenure
o Salary increases: only take effect after expiration of the term of
the incumbent when the increase happened
o NO OTHER emolument from the government or any other
source
Estrada v. Desierto:
o President is immune from suit during his tenure
o After tenure, he can be made liable for non-official acts
o Crimes and misconducts are not official acts of the State
Soliven v. Makasiar:
o Only President may invoke immunity from suit
o President may waive this immunity, by filing suit
Limits on positions and appointments
Estrada v. Arroyo: GMA’s assumption of Presidency: based on finding
that Erap resigned, based on statements before he left Malacanang and
Angara diaries
Procedure when vacancy occurs in P AND VP office:
o Congress convenes at 10 a.m. of third day after vacancy
occurs

No need for call
o Within 7 days, enact law calling for special election

Except for vacancies within 18 months from next
Pres. election

Held 45-60 days from time of call

Automatically deemed certified (since there is no P to
certify)

Becomes law upon 3rd reading

Appropriations: from current appropriations (any)

No need for special appropriations bill


19
Applies to P, VP, cabinet members, deputies and assistants:
1. Cannot hold any other office or employment
o What are the exceptions?

1. Provided in Constitution (ex. SOJ sitting in JBC)

2. Positions are ex-officio and no salary or other
emoluments (ex. SOF is head of Monetary Board)
o N.B. (Compare with legislative, where they just have to give up
their position)
o Public Interest Group v. Elma: Chief Presidential Legal
Counsel (CPLC) has duty to give independent legal advice on
actions of heads of the executive departments and investigate
matters on presidential appointees. So the CPLC cannot
simultaneously occupy a position he has to review (ex. CPLC
and PCGG chair at the same time)






2. Cannot directly or indirectly (profession, business, government
contract):
o A. practice profession
o B. participate in business
o C. be financially interested in any K, franchise, special privilege
granted by Government, S, A, I, GOCCs and subs
3. Strictly avoid any conflict of interest
Spouse and relatives by consanguinity or affinity of President until fourth
civil degree cannot be appointed to or as:
o 1. Con Commissions
o 2. OMB
o 3. Sec, U-Sec
o 4. Chairmen or heads of bureaus or offices (including GOCCs
and subsidiaries)
What if the spouse/relative was already in position?
o Then he/she can continue. What is prohibited is appointment
and reappointment, not continuation in office.
To which positions can they be appointed?
o Judiciary, ambassadors, consuls
o N.B. (I guess because the appointment is subject to JBC for
the former and competitive exams for the latter)

Three-fold limitations on appointments:


1. Appointments by Acting President – effective unless revoked by
President within 90 days of assumption or resumption of office
2. Midnight appointments – two months before next P election, and until
end of term:
o P or Acting P cannot appoint
o Except temporary appointments to executive positions, the
vacancy of which prejudice public service or safety
o De Castro v. JBC: Midnight ban does not apply to
appointments in the SC. Art VIII Sec 9 requires vacancies in
the SC to be filled in within 90 days from occurrence of
vacancy, and this prevails. The existence of the JBC also
prevents possible abuses in appointment


20
3. CONA approval needed for: (basis: Sarmiento v. Mison, which limits
CONA approval to the first sentence of Art. VII, Sec 16)
o 1. Heads of executive departments
o 2. Ambassadors
o 3. Other public ministers and consuls
o 4. AFP officers from colonel or naval captain

Soriano v. Lista: The Philippine Coast Guard is a
non-military agency and does not fall under this
provision.
o 5. Other positions, as provided by Constitution, such as:

A. Chair and members of Con Commissions

B. Regular members of JBC

C. Sectoral representatives in Congress (prior to
1998)
When CONA approval not needed:
o 1. Other officers whose appointments not provided by law
o 2. Those he is authorized by law to appoint
o 3. Those vested upon him by Congress

Though Congress may vest appointment of other
officers lower in rank upon:

President alone

Courts

Heads of agencies, boards, commissions,
departments

Rufino v. Endriga: When authority is given to head
of collegial bodies, it is to the chairman that the
authority is given, and not to the entire body. But he
can only appoint “other officers lower in rank”; thus,
this does not include equal-ranking officers.
o Can Congress increase the number of positions that need
CONA approval?

No. It cannot unduly expand the Constitutional
enumeration.
What about appointments to the SC and judges of lower courts?
o By the President, but no CONA approval needed because the
JBC is there
Ad interim appointments:
o Appointments made during recess of Congress
o Effective only until:



Disapproval by Congress

Or until next adjournment
o Ad interim appointments are considered permanent, not
temporary. Matibag v. Benipayo
o Ad interim appointments only apply to positions needing CONA
approval. This is different from appointments in acting capacity
which:

1. Can apply even to other positions

2. Can be done even when Congress is in session
Bermudez v. Secretary: Absence of recommendation of Secretary to
the President prior to appointment is not fatal because power to appoint
is lodged with the president.
Pimentel v. Ermita:
o Alter ego positions  President can appoint acting appointees
temporarily in these positions. These need no appointment.
The permanent appointee would need confirmation by the
CONA. Reason: expediency and need for president to have
an alter ego he can trust. Senate cannot impose upon him to
have the undersecretary be the acting secretary.
o Senators not in the CONA do not have standing to act on
behalf of the CONA.

Powers of the President

Power of control:
o “Control of all executive departments, bureaus, offices”
o President can alter, modify, nullify, or set aside acts of ANY
executive officer, up to the lowliest clerk
o “Qualified political agency”: acts of executive officials, unless
disapproved or reprobated by the President, are presumptively
the acts of the latter. (Villena v. Sec. of Interior) Another
exception is when the President is required to act in person by
law (ex. Pardons).

Thus, the decision of a dept. secretary, when not
reprobated by the Chief Exec., is the last step in
exhaustion of admin remedies. (Demaisip v. CTA)

Asst. Executive Sec., acting for the President, may
reverse a decision of the Sec. of Agriculture and
Resources (Roque v. Director)

Disciplinary power by the President does not flow
from the power of control, but power to appoint.

Disciplinary power  limited by legislature
(who can provide for security of tenure). So
distinguish between control over discretion
(executive) and person (legislature)

Orosa v. Roa: The Sec. of Justice may reverse the
act of a prosecutor and order him to withdraw an
information already filed, since the Secretary here is
acting on the President’s behalf. This action is not
directly reviewable by courts. One may appeal to the
Office of the President to exhaust admin remedies.

Malaria Employees v. Executive Sec: The power of
control includes power to reorganize an executive
office, even if it involves reduction of personnel,
consolidation or abolition of offices.

N.B. This is not a situation involving removal
of officers or employees (power to appoint)
because removal is only incidental to
reorganization

Philips Seafood v. BOI: Executive control may be
limited by the SC, in its rule making power, by making
certain admin agency decisions (such as the BOI’s)
subject to appeal to courts and not appealable to the
President.
Power of supervision:
o “Ensure that laws are faithfully executed”  does not include
power of control (whereas power of control necessarily
includes power of supervision)
o Ex. to Local Governments
Military/Extraordinary powers

21
Stems from being the ceremonial, legal, and administrative head of the
armed forces.
o Gudani v. Senga: President has power over the military, and
can demand obedience. The President may prevent a
member of the AFP from testifying before legislative inquiry,
and may punish violators by court martial. REMEDY OF

CONGRESS? May ask court to compel the President by
judicial order to allow the AFP officer to attend. The President
must comply with this.
1.
2.
3.
Calling out powers  armed forces, to prevent or suppress lawless
violence, invasion, or rebellion
a. Standard: “whenever necessary”
b. NOT reviewable by the courts (unlike martial law or suspension
of privilege of WHC)
c. Sanlakas v. Exec Sec.: State of rebellion = calling out powers.
Factual necessity of declaring a state of rebellion is highly
dependent on President.
d. Does not include power to take over media, cause warrantless
arrests, to legislate from the executive, etc.
Suspend privilege of writ of HC
a. Rebellion or invasion + requirements of public safety
b. Only applies to:
i. Persons judicially charged for rebellion
ii. Offenses inherent in or directly connected to invasion
c. Safeguard: must charge anyone arrested during suspension
of the writ within 3 days, or else he should be released
Declare martial law
a. Rebellion or invasion
b. For the whole Philippines or a part of it
c. Martial law does not:
i. Suspend the Constitution
ii. Supplant civil courts or legislative assemblies
iii. Authorize military courts to have J over civilians
where civil courts can function
iv. Suspend privilege of writ


Executive clemency

Procedure for suspension of writ or martial law:


3. Congress may revoke the proclamation, through a joint majority vote
o The President cannot set aside revocation
o N.B.it is joint to make it easier to override
o N.B. Congress cannot extend the period motu propio
How is an extension granted?
o 1. President takes initiative and requests Congress to approve
the extension
o 2. Congress votes jointly by majority vote
o 3. Congress may extend proclamation for a period to be
determined, if cause persists and public safety requires
How does the SC review the declaration?
o 1. Any citizen may file appropriate proceeding
o 2. SC may review factual basis of proclamation or the
extension
o 3. SC must issue decision within 30 days
1. President makes a declaration, the period of which will cover up to 60
days
2. Within 48 hours from declaration, the President submits report to
Congress
o If Congress not in session: Congress convenes without need
for call within 24 hours of proclamation/declaration

22
A. President may grant – after conviction by final judgment:
o 1. Reprieve
o 2. Commutation
o 3. Pardon

Absolute pardon: complete even without acceptance

Conditional: must be accepted

President determines whether condition
violated. Torres v. Gonzales

Monsanto v. Factoran: pardon removes penalties
and legal disabilities. BUT it does not include
reinstatement and back wages.

Garcia v. COA: If pardon given because he was
found to not commit the crime  reinstatement back
wages are due

Must withdraw appeal first, before one can be granted
clemency (must be final)
o 4. Remission of fines and forfeitures
B. Amnesty:
o Must have concurrence of all members of Congress
o General pardon for those suspected of high political offenses
o No need for final judgment


o Cannot grant tax amnesty without concurrence of Congress.
Llamas v. Orbos: Includes administrative penalties
Limits:
o 1. Not in impeachment or otherwise provided in the
Constitution
o 2. Amnesty needs Congress approval
o 3. COMELEC  must give favorable recommendation prior to
clemency for violation of election offenses
Amnesty
Political offenses
To a class of persons
Concurrence of majority of Congress
Public act; subject to judicial notice
Extinguishes offense
Granted before or after conviction
o
Pardon
Ordinary offenses
To individuals
No need for Congress to act
Private act of president; must be
proved
Extinguishes penalties only
May or may not restore political
rights
Civil Indemnities not extinguished
Granted after final judgment
Diplomatic power


A. Contracting or guaranteeing foreign loans
o P may contract or guarantee foreign loans on behalf of the RP

What are the safeguards?

1. Need prior concurrence of Monetary
Board

2. Subject to limitations under law

No specific loan or kind of debt instrument prescribed
in the Constitution
o Monetary Board:

Within 30 days from end of each quarter of every
calendar year, must submit to Congress decisions on
applications on loans or guarantees that would have
effect of increasing foreign debt

And on other matters provided by law
B. Entering into treaties


23
No treaty shall be valid and effective unless concurred by at
least 2/3 of the members of the Senate

USAFFE v. Veterans Association: Less formal
types of international agreements may be entered into
by P and become binding without concurrence of
Senate

Guidelines:

Permanent and original: need Senate
concurrence

Temporary and mere implementations: no
need

What if Senate conditionally approves it, with
suggested amendments?

If re-negotiated and the Senate’s
suggestions are incorporated, the treaty
goes into effect without need for further
Senate approval.
o Foreign relations power of P:

1. Negotiate treaties and international agreements

2. Appoint ambassadors, public ministers, consuls

3. Receive ambassadors and other public ministers

4. Contract and guarantee foreign loans for RP

5. Deport aliens
o Sec. of Justice v. Judge Lantion: Since extradition is not a
criminal prosecution, the subject of extradition is not covered
by the usual guarantees in a criminal proceeding, such as
being furnished with a copy of the extradition papers.
o Pimentel v. Ermita: The President cannot be compelled to
submit a treaty for ratification by Senate, since it is the sole
prerogative of the President whether or not to enter into treaty.
This happened to the Rome Statute (on the ICC).
What the rule for conflicts between treaty and municipal law?
o If in Philippine courts, the latter enactment prevails, whether
treaty or law
o If in International tribunals, the treaty always wins
o Except:

If the constitutional violation was manifest and it
concerns an internal law of fundamental importance
What is the nature of an exchange of notes?
o
o

It consists of exchange of two documents, with each of the
parties possessing the other one signed by the representative
of the other.
It is a form of executive agreement which needs no Senate
concurrence.
Basis of Gen. Appropriations Bill

President submits to Congress:
o 1. Budget of receipts and expenditures
o 2. Sources of financing

Including receipts from existing and proposed
revenue measures
o When?

Within 30 days from opening of regular session
SONA


President appears before Congress:
o 1. Opening of regular session
o 2. At any other time

Judicial Department




What is judicial power?
o 1. Power to settle actual controversies involving rights which
are legally demandable and enforceable,
o 2. Power to determine whether there has been GADALEJ of
any branch/instrumentality of government.
Where is it vested?
o Supreme Court and lower courts
What is jurisdiction?
o Power to hear and decide a case
What is the role of legislature in judicial process?
o 1. Defining enforceable and demandable rights, and providing
remedies
o 2. Determining court with jurisdiction
o But what is the limit to this power vis-à-vis the Supreme
Court?


24
1. Congress cannot deprive SC of jurisdiction over
Sec. 5 matters

2. Congress cannot increase the SC’s appellate
jurisdiction without its concurrence
o May congress abolish courts?

Yes. Even if the judge loses his position, the rule is
simple the same as abolition of office. As long as not
done for political reasons  there must be good
reason to do so (efficient delivery of justice, etc.).
o Can a law be passed prohibiting courts from issuing
injunctions in infrastructure projects of government?

Yes, but only to factual and technical matters, not
legal matters.
o Can the Congress amend the Rules of Court?

Only if it involves substantive rights. Otherwise, it
falls in the exclusive competence of courts.
How do you reconcile Civil code provision on judges must make
decision even without law (Art 9) to the two cases where the SC
did not adjudge beauty contests or honor rolls?
o If there is no statutory provision, the judge must look at
customary law or whatever is applicable
Can the SC pardon?
o No. But it retains jurisdiction over a case as long as the
penalty has not yet been meted out. This was seen in the
Echegaray case where the SC refused to mete out the penalty.
What is judicial review?
o Power to declare a law, treaty IA or EA, or issuance
unconstitutional
What are the essential requisites of judicial review?
o 1. Actual case ripe for adjudication

What is the exception?

If lack of clarity detriments public order
o 2. Locus Standi (standing of person)

Elements of standing:

1. Personal and substantial interest

2. Injury is fairly traceable to challenged
action

3. Injury likely redressed by favorable action

What is the exception to standing?




Transcendental interest
o 1. Character of funds or assets
involved
o 2. Presence of a clear case of
disregard for law by government
o 3. Lack of another party with more
direct/specific interest

What must be the character of interest?

Material, not just incidental or inchoate

What are the requisites of third party standing?

1. Litigant suffered “injury in fact” giving
sufficiently concrete interest

2. Litigant has close relation to the third party

3. There is some hindrance to the third
party’s ability to protect his own interests
What are the Auxiliary requisites?
o 3. Raised at earliest opportunity

If the case was originally in the ombudsman,
when is the earliest opportunity?

At the CA because the OMB cannot decide
on question of constitutionality of laws.

N.B. but in criminal cases, usually it can be initially
raised at any stage of the proceedings
o 4. It must be the lis mota

What is lis mota?

Determinative of the case itself. Meaning, the court
must be unable to decide the case without touching
on the question of constitutionality
What are the requisites of a taxpayer suit?
o 1. Case involving expenditure of public funds

Does this include augmentation powers of the
President?

No. It has to be exercise by Congress of
taxing/spending powers.
o 2. Sufficient interest in preventing illegal expenditure of money
raised by taxation
o 3. Direct injury from enforcement of statute
What is the effect of declaration of unconstitutionality of statute?




25
o “Operative fact”: can be a source of rights and duties
Can lower courts conduct judicial review?
o Lower courts may conduct judicial review. But declaration
binds only the parties to that case and doesn’t set precedents.
What are political questions?
o Questions under the Constitution that are to be decided by the
people in their sovereign capacity or where there is full
discretionary authority given to the legislative or executive
o Is the determination of what constitutes an impeachable
offense a purely political question?

Yes. It is up to the legislature.
When can the court decide on moot cases?
o 1. Grave violation of the Constitution
o 2. Exceptional situation and paramount public interest
o 3. Constitutional issue raised requires formulation of controlling
principles to guide the bench, bar, and public
o 4. The case is capable of repetition evading review
o N.B. Because Erap wasn’t elected into office, the question re:
his possible re-election was deemed moot
What are the safeguards to guarantee independence of the
judiciary?
o 1. SC cannot be abolished by law
o 2. SC justices only removable by impeachment
o 3. SC jurisdiction cannot be changed by law without its advice
or concurrence
o 4. SC has administrative supervision over all lower courts and
personnel
o 5. SC has exclusive power to discipline lower court judges or
justices
o 6. Security of tenure cannot be deprived by Congress
o 7. May not be designated to any agency performing quasijudicial/administrative functions

Cannot be required to act as board of arbitrations

Cannot be charged with admin functions unless
reasonably incidental to fulfilment of judicial duties.

Not its job to give advisory opinions.
o 8. Salaries may not be reduced. Judiciary enjoys fiscal
autonomy.


o
o
o
Appropriations for judiciary may not be reduced by
legislature below amount for previous year

After approval: automatically and regularly released

Can Congress give exemptions to legal fees to
GOCCs and LGUs?

No. This will reduce the judiciary
development fund and special allowances,
which is an impairment of the Court’s fiscal
autonomy.
9. SC alone may change Rules of Court (except – when
substantive laws are involved)
10. SC alone may order temporary detail of judges
11. SC can appoint all officials/employees of judiciary

Judicial and Bar Council

What are the issues re: Appointments to judiciary?
Qualifications
SC
NBC
40 years of age
15 years or more a
lower court judge
or in practice of law
in Phils.
Proven CIPI
(competence,
integrity, probity,
independence)

Lower
collegiate court
NBC
Other
qualifications
provided by
Congress
Member of Phil.
bar
Non-collegiate
lower court
Phil. citizen
Other
qualifications
provided by
Congress
Member of Phil.
bar




Proven CIPI
Kilosbayan v. Ermita: Before one offered an appointment to the SC
can accept it, he must correct the entry in his birth certificate saying he
is an alien.
Topacio v. Ong: Proper remedy for those contesting a person’s
enjoyment of public position is Quo Warranto. May be commenced by
Sol-Gen, public prosecutor, or in some cases, the person claiming to be
entitled to the office. But that person must show a clear right to the
contested office.
Proven CIPI
What is the composition of the JBC?
o 1. CJ as ex-officio chair
o 2. SOJ
o 3. Rep. of Congress
o 4. Rep. of IBP
o 5. Professor of law
o 6. Retired member of SC
o 7. Rep. of private sector
o SC clerk as ex-officio secretary
What is the term of the regular members (last four)?
o Four year terms, staggered
How are the regular members appointed?
o With CONA consent
Receive emoluments as determined by SC
o In yearly appropriations
Functions:
o Primary – recommending appointees to judiciary
o Secondary – other functions and duties assigned by SC
Procedure for appointment:

JBC v. Judge Quitain: Every prospective appointee to the judiciary
must apprise the appointing authority of every matter bearing on his
fitness for judicial office. Here, he failed to disclose a previous admin
charge – and this was taken against him, even if the case was moot and
he resigned from office previously.


26
1. President appoints members of SC and judges of lower courts from
list given by JBC of at least 3 nominees per vacancy
2. No CONA confirmation is needed for appointments to the judiciary
Contrast the rules on when vacancies must be filled:
o Vacancies in SC filled within 90 days from occurrence of
vacancy
o
o

Vacancies in lower courts filled within 90 days from submission
to the President of the JBC list
How is the 90 day appointment rule resolved vis-a-vis the 60 day
midnight appointment ban?
o The President may appoint an SC Justice within the 60 day
ban. The midnight appointments ban only pertains to the
executive branch. The JBC is sufficient safeguard re: the
judiciary.

The Supreme Court



CJ + 14 AJs
o En banc or divisions of 3, 5, or 7
What must be heard en banc:
o  Decided with majority of members who actually took part in
deliberations and voted
o [constitutionality]
o 1. Constitutionality of a treaty, international or executive
agreement, or law
o 2. Constitutionality, application, operation of:

PDs, PPs, EOs, instructions, ordinances, other
regulations
o [re: decisions]
o 3. Those required by ROC to be heard en banc
o 4. When a division cannot reach majority decision
o 5. to modify or reverse a principle or doctrine laid down en
banc
o [special powers]
o 6. Administrative cases involving discipline or dismissal or
judges of lower courts

You cannot go directly after a judge, without going
through the SC first.
o 7. Election contests for P or VP (as PET)
o 8. Appeals from SB or Constitutional Commissions

(N.B. take note of this  not in the Constitution)
Division  must have at least three concurring votes. Or else, en banc
o But decisions by divisions not appealable to en banc.
o N.B. you always need at least 3 votes to get a favorable
decision from the SC

Fortich v. Corona:

Cases which are not decided upon by a division  en
banc

Matters which are not decided upon by a division 
action is lost (ex. MR is defeated)
Over which cases does the SC have original jurisdiction over?
o 1. Cases involving ambassadors, other public ministers,
consuls
o 2. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus
Over which cases does the SC have appellate jurisdiction over?
o 1. On constitutionality or validity of treaty, international
agreement or executive agreement, law, PD, PP, EO,
instruction, ordinance, regulation
o 2. Legality of tax, impost, assessment, toll, penalty thereto
o 3. Jurisdiction of lower court in issue

i.e. GADALEJ
o 4. Criminal cases where penalty is RP or higher

P v. Mateo: Does not proscribe intermediate review.
So the CA can review still before the SC.

P v. Rocha: But while SC has jurisdiction to review
them, it is not mandatory. Review may be waived and
appeal, withdrawn.
o 5. Cases where only questions of law are involved

i.e. Rule 45
What are the auxiliary admin-related powers of the SC court?
1.
2.
3.
27
Temporarily assign lower court judges to other stations
a. As public interest requires
b. May not exceed 6 months, without consent of judge concerned
Order change of venue or place of trial
a. To avoid miscarriage of justice
Promulgate rules
a. Matters:
i. Protection and enforcement of constitutional rights
1. Ex. Amparo, Writ of Kalikasan, etc.
ii. Pleading, practice, procedure in all courts
4.
5.

iii. Admission to practice of law
1. Garrido v. Garrdio: Even when the
complainant desists, this does not strip the
court from having jurisdiction over members
of the Bar. This is an aspect of the authority
to admit to the Bar.
iv. Integrated Bar
1. SC has plenary powers here. Upon passing
the Bar, you become a member of the IBP.
2. Payment of IBP is necessary consequence
of membership in the IBP.
v. Legal assistance to underprivileged
1. Ex. Student practice rule, indigent litigants
b. Principles:
i. Simplified and inexpensive procedure for speedy
disposition
ii. Uniform for all courts of same grade
iii. Not diminish, increase, modify substantive rights
c. Procedure in Q-J bodies and special courts remain effective
unless changed by SC
d. Baguio Market Vendors v. Judge: Congress has no power to
repeal, alter, or supplement Rules of Court. Lim v. CA:
However, rule making power also includes inherent power to
suspend its own rules in particular cases to do justice.
e. Republic v. Gingoyon: Rule 67 in expropriation – says
expropriation may be done even before payment of full
amount, by paying deposit to court. But RA 8974 creates an
exception in expropriation cases involving public works
projects. HELD: Congress may amend ROC here because
expropriation involves not just procedural elements but also
substantive matters, which is subject to Congress’ legislation.
f. Can the SC create a special division in the SB or other
courts?
i. Yes, this is part of the rule-making power of the SC.
(The issue here was the Estrada trial)
Appoint officials and employees of judiciary (according to CSL)
Administrative supervision over courts and personnel

Procedure on decision-making by the SC:
28
Decisions of SC en banc or in division:
o 1. Reach conclusion first in consultation
o 2. Then assign case to a member for writing of opinion
o 3. Certification to this effect signed by CJ

Issued and copy attached to record of case

Served upon parties

Consing v. CA: But absence of certification does not
mean that there was no consultation prior to
assignment of the case to a member. Presumption of
regularity prevails. The erring officer is liable
administratively though.
o 4. Member must state why:

He took no part

Dissented

Or abstained
o Same requirements above – followed by lower collegiate
courts (not administrative bodies)
What must be stated:
o 1. For decisions  must expressly clearly and distinctly facts
and law on which they are based
o 2. Petition for review or MR  cannot be refused due course or
denied without stating legal basis

Borromeo v. CA: Resolutions disposing of petitions
fall under this paragraph, not the first. So merely
stating that there is no factual or reversible error in a
court decision sufficiently complies with paragraph 2.

Borromeo v. CA: Minute resolutions need not follow
the same procedure outlined above (signing by all
members who deliberated, certification by CJ, etc.)
o Memorandum Decisions:

These must be used sparingly and only where facts
are accepted by both parties, and in simple litigations
only.

Must have the decision adopted by reference
attached, for easy reference.

Otherwise, a full decision is still preferred because:

1. It assures parties that the judge studied
the case



2. Gives losing party opportunity to analyze
the decision and either appeal or accept the
loss
3. Enrich case law

Tenure, salary, other stuff






A. Salary of CJ and AJs and lower court judges fixed by law
o Salary cannot be decreased during continuance in office
o Nitafan v. CIR: but salary subject to income tax
B. Tenure of judges:
o Hold office during good behavior, until 70 years old
o Or incapacitated
C. SC en banc has power to discipline judges of lower courts or order
dismissal by majority vote of members who took part and deliberated
o P v. Gacott: But SC only has to be en banc when the case is
for dismissal, suspension for more than 1 year, fine exceeding
10K, or disbarment. (Basis: conversation of Justice Regalado
with former CJ Concepcion.)
How judges are removed:
o 1. SC justices: ONLY by impeachment
o 2. Justices and judges of lower courts inferior to SC:
removable ONLY by SC sitting en banc
Vistan v. Nicolas: A judge sitting on the Bench may not present himself
as a congressional candidate – this constitutes misconduct.
Judges cannot be designated to any agency performing quasi-judicial or
admin functions.
o Ex. A judge was assigned to the Provincial Committee on
Justice of Ilocos Norte, which receives complaints and makes
recommendations on how to speedily dispose of cases.
HELD: Invalid, because these are admin functions, which the
above provision disallows appointment of judges into.
Constitutional Commissions
General provisions


Periods to make decisions:


All other lower courts – 3 months
o In re: delays before the Sandiganbayan: the Sandiganbayan
falls under the 3 month rule because it is a trial court, not a
collegiate court.
Duties upon expiration of given period:
o 1. Certification issued to parties signed by the judge or CJ,
explaining why there is no decision yet
o 2. Court must decide or resolve the case without further delay

Sesbreno v. CA: There is no automatic affirmation of
the appealed decision. The duty is simply to decide
ASAP. This rule differs from the 1973 Constitution.
SC – 24 months from date of submission
o When deemed submitted for decision: upon filing of last
pleading, brief, or memorandum required by ROC or the court
Lower collegiate courts – 12 months
29
“Independence” – means independence from private and public powers
What are the safeguards ensuring independence of the
Commissions?
o 1. May not be abolished or have powers reduced by statute
o 2. Expressly described as independent
o 3. Chair and members can only be removed by impeachment
o 4. Term of 7 years (this is fairly long)

7 years, without reappointment

What are the prohibitions on appointment?

In no case can there be a temporary or
acting member

Contra: in alter-ego positions, the President
may appoint temporary officials

What if there is a vacancy?

Any vacancy may be filled, but the filler only
serves the unexpired portion

Starting point for all terms is Feb. 2, 1987

Of those first appointed,
o Chairman  7 years (term ended
Feb. 2, 1994)
Commissioner A  5 years (Feb. 2,
1992)
o Commissioner B  3 years (Feb. 2,
1990)

After this, ALWAYS 7 years to keep it staggered

Ex. Commissioner A dies and replacement is
appointed April 2, 1994. When will his term
end?
o Feb. 2, 1999. You must always
keep the staggering.

Term starting point is always Feb. 2, even if
tenure began later. (Matibag v. Benipayo)
5. Chair and members may not be appointed or reappointed in
a mere acting capacity

Is an ad interim appointment valid?

Yes, it’s not an acting capacity

If an ad interim appointment is not confirmed?

Then the appointee can be given another ad
interim appointment
6. Salaries may not be decreased during term

But may be increased
7. Fiscal autonomy

Differentiate from fiscal autonomy for judiciary:

Judiciary:
o 1. Appropriation may not be less
than previous year
o 2. Automatically and regularly
released

Commissions:
o 1. Automatically and regularly
released only

CSC v. Dept. of Budget: Reason given by Dept. of
Budget: “there are no funds”; SC said it’s sure they
can get funds. The “no report, no release” rule is
invalid.
9. Commissions en banc may develop rules

But not increase, diminish, modify substantive rights

If there is conflict between ROC and rules of
commission – what prevails?
o
o
o
o
o


If case is before commission, their rules win.

If before court, ROC wins.

Can the SC or Congress review rules by the CCs?

No. The SC power to review rules of QJAs
does not apply to CCs.
o 10. Appoint employees based on CSL
What are the prohibitions?
o 1. Hold any other office or employment
o 2. Engage in practice of any profession
o 3. No active management and control of business directly
affected by office
o 4. No financial interest in any contract/privilege, franchise
granted by government or its subdivisions
Decision making


30
Decide by majority vote of all its members, within 60 days from
submission for resolution
o Can a CC provide that decision of divisions must be
unanimous?

No. This is unconstitutional.
o Compare with the judiciary:

In the judiciary, one only needs majority of all those
who deliberated

In CCs, majority of all its members
o Do you need to wait for the submission of a dissenting
opinion to deem the decision rendered and complete?

No. Resolution or decision is complete when there is
concurrence of required majority.
o Can individual commissioners, subordinates, or legal
counsel make a decision on behalf of the CC?

No. The commissions are collegial bodies.
o There were 6 COMELEC commissioners, but 2 retired
before the decision was promulgated. They casted their
vote, though. Are their votes counted?

No. As there were 4 left, there must be 3 votes to
have majority of the total membership.
How are decisions reviewed?
o
o
o



Civil Service Commission (CSC)




No, it’s not an instrumentality of government nor
covered by Civil Service. Follow Labor Code, not CS
Law.
What is the basis of appointments?
o 1. Merit
o 2. Fitness
How are merit and fitness determined, by default?
o Determined by competitive examinations
o Is merit and fitness as a requirement for appointment
applicable to all kinds of appointees?

Yes

N.B. this is a trick question. See next
o Are competitive examinations to determine merit and
fitness applicable to all positions?

No. Can use other means for:

1. Policy determining

2. Primarily confidential

3. Highly technical
What is the role of CSC in appointment process?
o Only to determine if a person has qualifications under CS law
o Cannot make recommendations on who is more qualified
o Does the CSC have power to revoke certificate of
eligibility?

Yes, as long as the process only involves rechecking
of papers and re-evaluation of documents.
o Can CSC hear and decide complaints for cheating in CS
examinations?

Yes, it’s part of its duty to determine qualifications
o Does the RTC have jurisdiction over personnel actions?

No.

How are decisions of lower level officials on
personnel matters appealed?

1. Appeal to agency head

2. And then to CSC
Cannot be removed or suspended except for cause provided by
law:
o 1. Cause provided by substantive law germane to position
o 2. According to procedural due process

Rule 65 to SC, for GADALEJ and matters where functions
exercised is QJ

30 days from receipt of decision

N.B. just 30 instead of 60 because Rule 64 is actually
what is applied
What if it’s the CSC?

Rule 43 to CA, within 15 days

And then Rule 45 to SC
What is the rule for COMELEC?

For decisions by divisions, can still have COMELEC
en banc review the decision

Only decisions of the COMELEC en banc can go up
through certiorari

Exception?

When the division decides an MR, violating
the rule that COMELEC en banc has to
decide an MR. The SC may take
cognizance by virtue of certiorari.
What is the composition of the CSC?
o 1 Chairman and 2 Commissioners
Qualifications:
o 1. NBC
o 2. At least 35 y.o. upon appointment
o 3. Proven capacity for public administration
o 4. Not lame ducks
How are they appointed?
o Appointed by President with consent of CONA
Who are covered by civil service?
o All branches, subdivisions, instrumentalities, agencies of
government, including GOCCs with original charters
o Norm: how was it created – by special charter or under the
general Corp law?

There has to be a special charter.

Ex. UP, Morong Water District, EIIB
o Does this cover the National Housing Corporation?

31

o






May a career CSO occupying position of local assessment
operations officer III be assigned as security guard?

No. Failure to report to duty as security guard is not
ground to dismiss him, because the new assignment
reducing rank is void.
Do HT, PD, and PC positions enjoy security of tenure?
o Yes.
o However, it is limited to specific period, coterminous with
appointing authority, or subject to appointing power’s pleasure
(this is expiration of term and not removal)
Does transfer of permanent employee to another permanent
position without his consent violate security of tenure?
o Yes.
o Is a temporary transfer valid?

Yes

But it cannot be done as just a preliminary step
towards removal, a scheme to lure him away from
permanent position, or an indirect termination of
service, or a means to force resignation.
There can be no security of tenure, when:
o 1. There was no valid appointment in the first place
o 2. The appointee did not possess qualifications required
Do temporary appointees enjoy security of tenure?
o No. They may be removed anytime even without cause.
Partisan Election activity:
o Does signing and filing certification of nomination within a
political party or organization violate ban on partisan
election activity?

No. These are only internal acts that are not deemed
to enable/ensure victory of a candidate in elections.
o Can they express views on political problems and issues,
or mention names of candidates they support?

Yes. This is not active engagement in partisan
political activity
Can right to self-organization be denied to government
employees?
o No. But the right to strike can be denied to some
organizations, like public school teachers.


32
Is there a prohibition against government officials issuing a “mass
appointment” before their terms expire?
o No. This is not covered by the midnight appointment ban,
which prohibits appointments two months before Presidential
elections. HOWEVER, the CSC may review these
appointments, in keeping with goals of efficiency and
professionalism in civil service.
Other classifications under the CSL:
o 1. Career positions
o 2. Non career positions
What are the main characteristics of career positions?
o 1. Security of tenure

To which does security of tenure apply?

To the CES rank, not to the particular
position. So they may be transferred but not
have their rank diminished
o 2. Position levels

E.O. 883 provided that lawyers occupying certain
positions in civil service automatically obtain a
certain rank in Career civil service. E.O. 2
declared all midnight appointments invalid. If you
were career civil service 2, and then due to EO
883, you obtained level 3, and you took your oath
during election ban, do you lose your entire CS
position, or do you only lose the promotion?

The palace seems to treat acceptance of
promotion during midnight period as ground
to lose the entire position in CS.

This is a case sub judice
o What are the positions in Career Service?

1. Closed career positions

Ex. HT positions

2. Open career positions

Examinations

3. Career Executive Service

Ex. U-Secretaries, bureau directors, etc.

What is the rule under Memorandum
Circular 21?
o
o
o
Those already holding positions
once these were declared CES
remain under permanent status
But if promoted or transferred, they
are temporary until they qualify for
that higher position




4. Career Officers

Ex. Those in foreign office and not belonging
to CES

5. AFP – governed by separate merit system

6. GOCC personnel

7. Permanent labourers

Skilled, semi-skilled, unskilled
What is the characteristic of non-career positions?
o Minimal security of tenure
o Who are examples of those in non-career positions?

1. Elective officials and their confidential staff,

2. Holding positions at the pleasure of superior

3. With fixed terms of office (ex. CCs)

4. Contractual personnel and emergency/seasonal
personnel
What is the nature of the oath/affirmation?
o Oath and affirmation to promote and defend this Constitution
What are the disqualifications?
o 1. Lame duck provision

No losing candidate in election, within 1 year of loss

What if they are qualified otherwise?

They are not allowed to be appointed
nonetheless.
o 2. Elective official: NOT eligible for appointment or designation
in any capacity to any public office or position

Ex. Gordon had to resign from being mayor before
being SBMA chair

Exception to this rule:

1. The VP may be appointed as member of
the Cabinet.

2. Member of Congress sits in the JBC.
o
33
3. Appointive officials: If otherwise allowed by law or primary
functions, may hold another office or employment in
government

Ex. Sec of Finance is ex officio chairman of Monetary
Board

What is the exception?

There must be no incompatibility between
the positions (ex. PCGG Chair and Chief
Presidential Legal Council, because the
latter reviews the PCGG chair’s acts)
4. No additional, double, or indirect compensation unless
specifically authorized by law

Double – compensated for two positions

Addition – one position, then given addition

Is this absolute?

No. It can be authorized by law.

Must there be a specific authorization?

No need. There can be a general
authorization.

Ex. SC justice who becomes examiner for
the Bar  provided in general law

May an officer paid per diem be given bonuses?

No, because this is additional compensation.

A law authorizes money generated by a school to
be used for other programs or projects. Can this
include double or additional compensation?

No.

Can a retiree be given both separation pay and
retirement benefits?

No, unless a law allows this.

Does the prohibition cover pensions and
gratuities?

No. These are allowed.

Judge retired from judiciary, he was
getting his pension. And then given
position in City of Manila and given
compensation. Must he give up his
pension?

o
o
No. The pension was already
earned.
o Then he can still get compensation
from the city position.

If he retires from the city position, in
calculating his retirement pay, do you
count his judiciary position?
o No. He has already been
compensated for that.
What about presents, emoluments, titles, or office of any
kind from a foreign government?

May accept but only with the Consent of Congress
COMELEC
Composition




What is the composition?
o Chairman, 6 commissioners
Qualifications:
o 1. NBC
o 2. 35 y.o. upon appointment
o 3. College degree

Majority are members of Phil. Bar, practicing for at
least ten years

Contrast: CSC provides “proven capacity for
administration” and COA requires CPA or Bar
member
o 4. Not lame duck
What must be decided in division:
o 1. Election cases and pre-proclamation contests
o 2. Petition to cancel certificate of candidacy
o 3. Appellate power over election cases coming from RTC or
MTC
What must be decided en banc:
o 1. MRs of decisions

So MRs of resolutions (non-substantive) can be
decided in division

Can the COMELEC en banc decide election
cases?

No. COMELEC en banc cannot decide
election cases. Otherwise, null and void. It
must be by division.

What if a case that must be filed to the COMELEC
en banc was erroneously filed to a division?

It may automatically be elevated to en banc,
under COMELEC Rules of Procedure.

Is there simply re-consultation en banc or should
there be a rehearing?

There must be a rehearing, as required by
the COMELEC Rules of Procedure. Failure
to comply with this leads to GADALEJ
o 2. Other matters/admin functions

Who has jurisdiction on prosecution of election
law violators?

It’s an administrative function, so it falls
within the jurisdiction of COMELEC en banc,
not division

Others: failure of elections, postponement of
elections, annulment of book of voters
o 3. Mere clerical correction of manifest errors in tabulation

Why can COMELEC en banc act upon these?

Because these are mere administrative
matters and not election cases
o 4. Promulgation of rules concerning pleadings and practice
before it
What can be raised to the Supreme Court?
o Only decisions of the COMELEC en banc, on certiorari AND
COMELEC must have exercised quasi-judicial or adjudicatory
powers.
o What if it’s exercising mere administrative powers?

Appeal is to the RTC (or the CSC, as the case may
be for personnel actions)
Constitutional Powers and Functions
Re: contests
34






When COMELEC exercises jurisdiction over election contests,
what power is it exercising?
o Quasi-judicial power.
COMELEC exercises powers over popular elections. What are
thus excluded?
o 1. Barangay federation
o 2. SK (under DILG)
o Are plebiscites popular elections?

Yes.
When does it have original jurisdiction?
o E,R,Q of all elective regional, provincial, city (“R, P, C”) officials
When does it have appellate jurisdiction?
o 1. Elective municipal officials decided by RTC
o 2. Elective barangay officials decided by MTC
o Do you have to go up to the RTC from the MTC?

No, you can go straight to the COMELEC from the
MTC
o What questions may be resolved by the COMELEC in its
appellate jurisdiction?

Questions of fact only.

For questions of law, go to the SC.
o Who decides these appeals, the division or en banc?

Division. There can be an MR thereafter to reach
COMELEC en banc.
o What is the special power of the COMELEC only when it
exercises appellate jurisdiction?

It has the power to issue writs of certiorari,
mandamus, quo warranto, and habeas corpus.
o What is the period to appeal from court to COMELEC?

5 days (1993 COMELEC rules)
What is the status of COMELEC decisions on contests for elective
municipal and barangay offices?
o Final, executory, and not appealable
o But can be subject to certiorari (Rule 65)
What are the two kinds of jurisdiction the COMELEC may
exercise?
o 1. Pre-proclamation controversies: administrative/quasi-judicial
o 2. Contests: judicial

Original in R,P,C





35

Appellate in M,B
Is there jurisdiction over intra-party disputes of political parties?
o Yes.
o May the COMELEC decide on questions of party
leadership?

Yes, since it involves COMELEC’s performance of
functions under Art IX-C, Sec. 2 (ascertainment of
party’s identity and its legitimate officers)

BUT it cannot decide on the internal party matters
such as the change of its officers.
o How does the COMELEC ascertain identity of the party
and its legitimate officers?

COMELEC need only turn to the Party Constitution.
Can the COMELEC issue writs?
o Yes. Can issue writs of prohibiton, certiorari, etc. Under BP
697
May the COMELEC deputize the AFP or police?
o Yes, with concurrence of president
What is the prohibited period for registration of voters?
o 120 days before regular elections and 90 days before special
elections.
o What if the COMELEC proves that registration cannot be
reasonably held within this period?

It may fix other periods or dates for registration.
What is the extent of the COMELEC’s power to prosecute election
offenses?
o 1. Conduct preliminary investigations and file information in
court

Investigation and prosecution does not involve
physical searching and gathering of proof

What if a public prosecutor acts?

It must be by delegation of the COMELEC
because prosecution of election offenses is
solely by the COMELEC

Can Congress limit COMELEC’s power to
prosecute?




Yes, because the phrase “where
appropriate” precedes the power to
prosecute election offenses
o 2. Helps judges determine in preliminary inquiry whether there
should be a warrant issued
o 3. Can deputize prosecutors from DOJ

When officers of DOJ are deputized by COMELEC,
what is the power of the COMELEC over them?

COMELEC has final say

If these deputized officials become guilty of
violation of law, COMELEC cannot discipline
them, but may only recommend to proper
authorities
When does the jurisdiction of COMELEC end, and when does the
jurisdiction of the Electoral Tribunal begin?
o COMELEC has exclusive jurisdiction over pre-proclamation
cases.
o After proclamation, and after assumption of office, ET obtains
jurisdiction
How about party list representatives?
o If one party list nominee is challenged by another, it is a
CONTEST within the jurisdiction of the ET
o But what is a contest?

SC retained its definition as essentially a quo
warranto case. If the one challenging the winner is
not seeking the place of the winner, then there is no
contest.



Registration of parties




Broad powers


Can COMELEC reapportion legislative districts?
o No. This is Congress’s power.
Can COMELEC declare failure of elections?
o Yes.
No pardon, amnesty, parole, suspension of sentence for violation of
election law can be granted by the President without favorable
recommendation of the COMELEC
o Relate this with Art. VII. This is where you first encountered
this.
Cannot compel media to give free time or print space; there must be
some compensation.

Can the COMELEC determine questions on the right to vote?
o No, it DOES NOT have this power. Congress has the power to
determine who can vote. Inclusion and exclusion cases are
also filed in the MTC, appealable to the RTC.
Over whom does the COMELEC have power over in the media?
o Over holders of franchises only. There can be no resolution
against individual reporters from voicing out opinions on
election issues. Power is over media, and not practitioners of
media.

Which political parties may not be registered?
o 1. Religious denominations
o 2. Seek to achieve goals through violent means
o 3. Refuse to uphold Constitution
o 4. Supported by foreign governments
Free and open party system
o Two party system before  only top two parties has special
rights in election process. But there can be more than two.
What is the extent of participation of political parties in the election
board?
o Political parties can’t be represented in election board,
registration boards, or inspectors.
o But they can appoint observers.
Election period  determines when some laws take effect
o For instance, COMELEC at this time has power over media
and military during this period.
When is election period?
o 90 days before Election Day and 30 days after.
N.B. Fiscal autonomy provision applies as well.
COA


36
What is the composition of the COA?
o 1 chairman, 2 commissioners
Qualifications:



A government truck bumps X’s car and X sues for
damages. Can the COA settle the account?

No. it is not liquidated yet.
Compare post-audit and pre-audit powers of COA:
o Pre-audit – funds cannot be released without auditing
o Post-audit – audit done only after funds are released
What positions are subjected only to post-audit?
o 1. Constitutional bodies, commissions, offices given fiscal
autonomy
o 2. Autonomous state colleges and universities
o 3. Other GOCCs and subsidiaries

Whether there is original charter or none
o 4. Non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the government, required
by law for the granting institution to submit such audit as
condition of subsidy or equity (this takes place of the pre-audit)
Distinguish between non-exclusive and exclusive powers:
o 1. Power to examine and audit is non-exclusive

Thus, there can be private auditors hired. But the
COA audit prevails.
o 2. Power to define the scope of its audit and establish
techniques is exclusive
Can COA decide money claims?
o Yes; it must decide based on law. But if a money claim is
denied by a law, the COA has no authority to pass judgment
on the constitutionality of a law.
Can a law be passed exempting entities of Government or a GOCC
from jurisdiction of COA?
o No.
o
o
o
o
1. NBC
2. at least 35 y.o. on day of appointment
3. Either CPA with ten years auditing experience, or members
of Phil. Bar practicing law at least 10 years

Not same profession for all members

Compare: college degree and majority Bar members
for COMELEC, proven capacity for public admin for
CSC
o 4. Not lame ducks
Important powers:
o 1. Examine and audit all government revenues
o 2. Examine and audit all government expenditures
o 3. Settle government accounts
o 4. Promulgate accounting and auditing rules

COA Circular 89-296 provides that there is failure
of bidding when there is only one offeror or all the
offers do not comply with what is required. In a
bid, there were 3, but 2 were disqualified. Valid?

Yes. The “more than one bidder”
requirement does not distinguish w/n they
are qualified.
o 5. Decide admin cases involving expenditures of funds
What does COA determine re: expenditures (#2)?
o Whether these expenditures are unnecessary, irregular,
extravagant, or unconscionable
o Can the COA overrule an entity’s general counsel re: w/n
expenditures are irregular, unnecessary, unconscionable,
etc?

Yes
o Can the COA invalidate a valid compromise agreement
over a civil suit entered into by a city?

No. It’s a valid transaction. The COA committed
GADALEJ.
When may the COA settle government accounts (#3)?
o When there controversy as to what is due and how much is
due
o What kind of accounts may be settled?

Liquidated accounts only. This means that the sum
total can be determined by arithmetical calculations





BILL OF RIGHTS
Private acts and the Bill of Rights

37
Only regulates government action – no application against acts of
private citizens (can resort to NCC)

Due Process




What is due process?
o 1. No person deprived of life, liberty, or property without due
process of law.
o 2. No person denied of EPC.
What is life?
o Good life, health also protected
o Includes life of the unborn, upon conception
What is liberty?
o Freedom from outside constraint
o Is there a right to contact visits for detainees?

No, since there is a reasonable security concern
against escapes or smuggling.
o Is there a right to bear arms?

No, except only for those authorized by law. Even the
US provision only refers to right of militia to bear arms
o Does the limitation on police officers through monitoring
of movement, escorting when they leave camp, and
logging in the time of departure and arrival violate this
provision?

No, there is no deprivation of liberty.
What is property?
o All property enumerated in NCC, including employment

Thus, cancellation of employment licenses of harbor
pilots, for instance, requires notice and hearing

The State, however, may regulate professions,
callings, or businesses
o What is the nature of business licenses?

They are mere privileges that may be withdrawn when
public interest requires.

But when licenses have been enjoyed for so long and
been the subject of substantial investment and has
become the source of employment of thousands, it
can be deemed a property right

Likewise, franchises are property, but these are
subject to police power.
o What about pension plans?




38
Pension plans where employee participation is
mandatory ripens into a vested property right that is
protected by DP clause
o Is public office property?

No, but it’s a protected right if one is a de jure officer
What is the hierarchy of rights?
o Human rights enjoy primacy over property rights.
A person may be deprived of life, liberty, or property provided
there is due process. What is due process?
o Substantive DP – against arbitrary laws
o Procedural DP – for procedural fairness

Must publish not only laws but also EOs and PDs and
R&Rs issued pursuant to delegation by legislative
Due process affects inherent powers of government (PP, ED, tax)
Who exercises PP?
o 1. Police power is exercised by the Legislative dept.

Can be delegated to local governments

Local governments may regulate
businesses, but it may not affect licensing
and regulation of professions such as the
optical profession, which is conferred to
professional boards

Ex. Municipalities may provide burial
assistance to indigents as exercise of PP
(police power)

A law may close commercial blood banks or
prohibit gambling

Can there be a policy against a company’s
employees getting romantically involved with
employees of a competitor?

Valid if based on right to guard trade secrets,
etc. but illegal when there is no necessity

EO requiring closure of bus terminals in the city: void
due to unreasonable means to carry out purpose
o 2. Police power is carried out by the Executive
o Does the MMDA have power to exercise police power?

No. It is not a political subdivision, merely an
executive authority without police power. Police
power is exercised in MM by cities and municipalities.
o
Procedural Due Process







What are the types of procedural due process?
o 1. Civil cases
o 2. Criminal cases
o 3. Administrative cases
o 4. Disciplinary cases in schools
Procedural DP in courts (whether civil or criminal):
o 1. Court has jurisdiction
o 2. Jurisdiction over the person or property
o 3. Defendant must be given opportunity to be heard

Either oral or written pleadings
o 4. Judgment based on evidence presented
What is the difference in quantum of proof required?
o Criminal: Proof beyond reasonable doubt
o Civil: Preponderance of evidence
o Administrative: Substantial evidence
Does an extradited person have right to evidence presented
against him?
o 1. During executive phase, no

Is there right to bail here?

No, because he is not yet entitled to know
proceedings or be arrested, even
o 2. During judicial, yes

Judge determines w/n to dismiss petition or issue
warrant of arrest

Is there right to bail here?

Yes, there is deprivation of liberty.

Judge must assess through clear and
convincing evidence if he is flight risk or
there are humanitarian considerations
Does a student in a disciplinary case in school have right to
counsel?
o Yes, but no right to appear in the proceeding itself
In cases involving teachers where dismissal is involved, is the
teacher entitled to counsel?
o Yes.
A vague law is an invalid law. When is a law vague enough to be
invalid?



It must be so vague that it cannot be understood. No amount
of interpretation can make sense of it.
o Is the plunder law void for vagueness?

No. In the Estrada case, SC held that the Plunder law
is not vague at all (“series” and “combination” can be
understood in their ordinary meaning)
o The law must be so vague that it cannot be clarified by a
saving clause or construction
Procedural DP in Administrative cases (Ang Tibay):
o 1. Right to hearing and submit evidence
o 2. Tribunal must consider the evidence
o 3. Need for evidence to support the decision
o 4. Substantial evidence
o 5. Decision rendered on evidence presented
o 6. Must act independently and not simply accept the views of a
subordinate
o 7. Explicate reasons behind the decision
What about Criminal cases?
o Infra Sec. 14 of Bill or Rights
o What is the nature of deportation proceedings?

Although deportation proceedings are not criminal in
nature, the consequences can be as serious as
criminal prosecution. Thus, criminal case provisions
in the ROC apply (Lao Gi v. CA)

Only entitled to evidence presented in trial, but not
during investigation.
Are notice and hearing always required in administrative
proceedings?
o No. If it’s quasi-judicial, it’s required. If quasi-legislative, no.
o Ex. The NTC requiring PHILCOMSAT to reduce its existing
rates is a Q-J function that requires notice and hearing
(PHILCOMSAT v. Alcuaz); but there can be temporary setting
of rates provided there are hearings within 30 days (Radio
Comm. v. NTC)
Substantive Due Process

39
When is a law valid substantively?
o 1. It must be for a valid purpose






o 2. The means employed must be reasonable
City of Manila v. Judge Laguio:
o There was an ordinance prohibiting videoke bars. SC said this
was unreasonable because it encompassed night clubs,
discos, dance halls, motels, inns, etc. which are not per se
offensive to morality
White Light v. City of Manila vis-à-vis Ermita-Malate:
o Ermita-Malate  Hotel operators cannot challenge law
regulating motel short time on ground of privacy, because their
right of privacy is not being violated
o White Light  Third party standing: if the client is not in the
position to challenge based on privacy, then the motel
operators can
Banning those reviewing for board exams from attending review classes
to avoid leakage is unreasonable and arbitrary (Lupangco v. CA)
A City Ordinance requiring movie houses to charge children from 7-12
half prices has no discernible relation to public health, safety, morals,
etc. (Balacuit v. CFI)
There can be no law banning sodomy inside the house. This intrudes
into private conduct (Lawrence v. Texas)





Equal Protection


EPC does not prohibit classification. But it must satisfy four
grounds:
o 1. Substantial distinction
o 2. Germane to the purpose of the law
o 3. Not limited to existing conditions
o 4. Apply equally to all members of the same class
Is there substantial distinction between male and female?
o Yes.
o But you have to check whether it is germane to the purpose of
the law.
o N.B.: before there was reasonable classification between male
and female as to being bartenders. But now, it might not be
germane anymore.
o ISA v. Quisumbing – cannot make distinction between local
and foreign hire teachers as far as salary, but can make
distinction for benefits


40
Is there a valid distinction between appointed and elective
officials? (Ex. Appointive officials deemed resigned upon filing
COC while elective officials are not)
o Yes, you can make a distinction, because the elective officials
were chosen by the people. (Latest decision: Quinto v.
COMELEC – Dec 2009)
There can be a distinction between businesses within the “fenced in”
area of the old American base and those outside, because the purpose
of RA 7227 is to facilitate conversion of the former bases into an
economic zone (Tiu v. CA)
Parreno v. COA: Law ordering discontinuance of pension of retired
military officer if he becomes a citizen of another country upholds EPC.
Serrano v. Gallant Maritime Service: Law that distinguishes between
separation pay of overseas employees and other employees: invalid for
violating EPC.
British American Tobacco v. Camacho: distinctions made between
old cigarette manufacturers and new entrants
o In making distinctions on economic grounds, all that is required
is that there must be a reasonable basis
o Here, the reasonable basis is ease in implementation of
collection of taxes
Can a law initially valid, become invalid based on EPC?
o Yes, based on developments of the law. This is the principle of
“Relative unconstitutionality.”
o For instance, employees of GOCCs.
o Central Bank Employees v. Bangko Sentral –

There were laws amending charters of various
GOCCs. Only Central Bank Employees were still
given some restraints, but others were not.
Does the EPC prohibit the state from passing discriminatory laws?
o No.
Can make valid distinctions between City and Municipal Election
Officers of the COMELEC, who are not allowed to hold office in the
same city/municipality for more than 4 years, and other officials,
because the purpose is to avoid fomenting familiarity between
COMELEC officials and the people of the place of assignment (De
Guzman v. COMELEC)

o
A law provides that police officers being investigated may be
preventively suspended beyond the usual 90 days – valid because
police officers carry guns which may be used to intimidate witnesses
(Himagan v. P)
Writ of amparo, habeas data




What is protected?
o 1) life, 2) liberty, 3) security
o Does not involve protection from threatened demolition of
dwelling?

No. See that property is not the third item in the
enumeration, but “security”
o Reyes v. CA: Does not cover right to travel.
“Security” is defined as “freedom from fear/threat”
Does WOA or WHD require proof beyond reasonable doubt?
o No. Petition must be supported by substantial evidence:

This is taken from totality of circumstances

And depending on evidence available to petitioner at
the time

Searches and Seizures



What is covered by this right?
o Right of persons to be secure against unreasonable search or
seizure
o What is just prohibited is unreasonable search or seizure
o Purpose: protect privacy of individuals
When is it unreasonable?
o In general, when without a warrant
o Except when under the three exceptions
o Is there presumption of regularity in search and seizure
cases?

There is NO presumption of regularity in search and
seizure cases (Sony Music v. Judge)

N.B. in warrantless arrests under Environment Cases,
there is presumption of regularity (see Rem Law
notes)
Are checkpoints illegal?
41
Not illegal per se, especially when there is grave peril or public
security is on the line. Routine inspection and a few questions
are fine.
o BUT for thorough search to be justified there must be probable
cause. (In any case, there can be warrantless search of a
moving vehicle)
Does the BOR prohibit the violation of search and seizure clause
by private individuals?
o No. Bound by Art. 32 of the Civil Code, if private individuals
Essential requisites of valid warrant:
o 1. Must be issued upon probable cause

Not proof BRD

Need evidence to produce “probable cause,” and not
mere conclusions of law

Proof of probable cause must point to a specific
offender for warrants of arrest, but no need if for
search warrants
o 2. Determined personally by a judge

Doesn’t mean the judge must personally examine
witnesses (the word “personally” modifies determine,
not examine)

The judge may rely on report of investigating
authority, and if he is satisfied, then he can issue the
warrant. But he must decide, not the investigating
officer

If he’s not satisfied, may ask for additional supporting
documents.

Who cannot issue warrants of arrest?

1. The Commissioner on Immigration
CANNOT issue warrants of arrest, since he
is not a judge.
o But he many order the arrest of an
alien for the purpose of carrying out
a deportation order that has
become final.
o Cannot, however, issue a warrant
of arrest purely for investigative
purposes


o
2. Neither may the PCGG issue search
warrants.
o 3. Examination under oath of the complainant and the
witnesses he may produce

What is required is personal DETERMINATION, not
examination by the judge. Usually, it is the
investigating officer that does the examination

If the judge chooses to examine under oath the
complainant and witnesses, the affidavits of the
complainant and witnesses are insufficient to fulfill this
purpose. He must take the depositions in writing, so
the judge may properly determine probable cause

Tabujara v. P: There is GADALEJ when a
judge issues a warrant based merely on an
unsworn statement.

NOTE: for search warrants, the judge must personally
ask searching questions to the witnesses/applicant
o 4. Warrant must particularly describe the place to be searched
or person to be arrested

What is the standard?

“As specific as the circumstances will
ordinarily allow”

“An undetermined amount of marijuana” is
sufficiently particular, because technical
precision is not required; otherwise, no
warrant would issue (P v. Tee)

Is a John Doe warrant valid?

Yes, if there is description of person to be
arrested (descriptio personae)

A mere typographical error is excusable, especially
when the executing officer is the same affiant who
had prior knowledge of the place intended to be
searched (Burgos v. Chief of Staff)

Mistake in identification of the owner of the place is
excusable if the place is properly described
Where to apply for warrant?
o Where there is a case already pending, with that court
o Where there is none, in the court with jurisdiction over the
territory






But for compelling reasons, it can be with any other court, but
there must be justifying reasons
What is the rule on examination of bank deposits?
o Usually these are protected. (See Commercial Law notes)
o But the bank deposits may be examined:

1. If depositor assents in writing

2. Needed in impeachment cases

3. When the subject matter is subject to litigation
Are drug tests allowed?
o American jurisprudence – allowable in public schools
o In private schools: same reasoning may be used
o Requisites:

1. Not for criminal purposes

2. Under parens patriae duty of State

3. Need for it is established
o What about public employees in government offices?

Yes, same reasoning for public schools
o For candidates for national office?

NO. Because this is equivalent to adding to
constitutional qualifications.
o For candidates of local office?

NO. Unreasonable violation of privacy.
Search or seizure without warrant or invalid warrant – effects?
o Evidence obtained is inadmissible for any purpose, and in any
proceeding
o Goods seized must be returned, unless possession is
prohibited by law
Can third parties object on behalf of a person whose constitutional
right against unlawful search or seizure has been violated?
o No. Objection to an unlawful search or seizure is a purely
personal right and cannot be availed by third parties
Does an application for bail have effect of waiver of right to
challenge the validity of warrant?
o No.
Is ownership essential for right against unreasonable searches?
o No. The person to be searched need not own the place to be
searched. Control or possession is enough.
Warrantless searches
42




1. Search incidental to lawful arrest
o Requisites?

1. Contemporaneous to arrest

2. Only within vicinity, reach, control of the person
arresting (vicinity test)
o Ex. So if the arrest is in the sala, you cannot enter the rooms
o What is the test for vicinity?

“Within immediate control” of the person
2. Seizure in plain view
o When the officer enters the place accidentally and there is no
prior intent to get something.
o Requisites?

1. Prior valid intrusion into the place

2. Evidence inadvertently discovered

3. Illegality of evidence immediately apparent

4. No further search needed
3. Search of moving vehicle
o What is the reason?

When you get a warrant, the vehicle would be gone
o Prior requirement?

The must be probable cause to believe that the
vehicle is involved in illegal activity

The police officer decides this
4. Waiver (consented warrantless search)
o Ex. “Feel free, look into my house”
o Who must give consent?

The person giving consent must have authority over
the house
o Requisites?

1. Right over property exists

2. Actual or constructive knowledge of the right

3. Intent to relinquish the right
o Vergara v. P: Even when petitioner opens his bag when the
police asks to see its contents, it does not necessarily follow
that he waived his rights. It might have been mere passive
conformity out of fear.
o In Lopez v. Commissioner, the consent to search was given by
a mere manicurist. I don’t think this case is doctrinal, because
the officers thought that the manicurist was the wife. Had they





known she was a mere manicurist, I don’t think they would ask
her to give consent to search.
5. Customs search or seizure
o This happens in airports, etc.
o Situations where you do not have expectation of privacy
o Exception: cannot search domicile, pursuant to customs
search
6. Exigent circumstances or emergency situations
o Ex. Coup attempt, where rebels go in and out of buildings
7. “Stop and frisk” rule
o Terry v. Ohio – If a police officer of experience sees a person
behaving in a manner which he thinks might be harmful, he
can approach the person, identify himself, and frisk the person
o Generally, this rule is for weapons. But if he finds something
else like illegal drugs, this is still valid.
o A mere suspicion or hunch will not validate a stop and frisk. A
genuine reason must exist based on the experience of the
police officer.
o What is special about this exception?

This is the only exception where probable cause need
not exist (P v. Aruta)
Compare Aminudin from Lo Ho Wing:
o Aminudin case – here, the police officers had every opportunity
to get a search warrant, but didn’t.
o Lo Ho Wing case – The police also knew in advance (2 days)
about the arrival of suspects with shabu but did not get a
warrant. They alighted from an airplane and passed through
customs, then allowed to get into a taxi. The vehicle was
stopped and searched. Moving vehicle exception applied.
May a Fishing vessel violating fishery law be seized without a
warrant?
o (1) it is usually equipped with powerful motors – moving vehicle
o (2) it is incidental to valid arrest
Warrantless arrest

43
1. In flagrante delicto
o Distinguish between entrapment (allowed) vs. inducement (not)
o Continuing offenses – can be arrested without warrant




o
2. An offense has been committed and he has personal knowledge that
the person indeed committed the offense
o The offense IN FACT must have been committed, not just
reasonable belief on the part of the officer
o The officer must have personal knowledge of the commission
of the crime
o Passage of 19 hours will militate against the crime being “just
committed” (People v. Manlulu)
3. Escaping from place where he is serving final judgment or temporary
confinement, or during transfer from one place of confinement to
another place
[4. Waiver – can be considered as #4 exception]
o NOTE: posting bail is not a waiver to question validity of arrest
When must objection to the arrest be made?
o Any objection to the arrest must be interposed before one
enters his plea in arraignment – otherwise, the objection is
deemed waived
Freedom of Expression




Privacy of Communication and Correspondence




N.B. these are mostly crimes against law of nations and
crimes against public order + kidnapping
Privacy of communication and correspondence: generally inviolable
Exception:
o 1. Lawful order of court
o 2. When public safety or order requires otherwise (as
prescribed by law)

This is without judicial order. So there can be
discretion by executive officers.

But they need prior authorization from the president.

This power is subject to judicial review.
What if there is violation of this right?
o Renders the evidence inadmissible
RA 4200 – Anti-Wiretapping Law
o Crimes where there can be court-authorized taps –

Treason, espionage, provoking war and disloyalty in
case of war, piracy, mutiny, rebellion, conspiracy and
proposal to commit rebellion, inciting rebellion,
sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping
What are protected in this right?
o 1. Freedom of speech or expression
o 2. Freedom to peaceably assemble to demand redress from
government
What is “speech”?
o Any form of communication
Distinguish:
o 1. Content-neutral regulation

Merely concerns time, place, manner of speech
without reference to what the speech contains

This is more easily allowed
o 2. Regulation that aims at the content of the speech
If the speech is directed towards content, apply two main rules:
o 1. No prior restraint

Where a person is prevented from speaking or
communicating if without authorization from
government

Usual examples: censorship, licensing administered
by executive officer, movie censorship, judicial prior
restraint (injunction), license taxes measured by gross
receipts for privilege of engaging in advertising
business, or flat license fees to sell religious books
o 2. No subsequent punishment
Prior restraint

44
Constitution allows COMELEC to regulate speech during election period
o Even if there is prior restraint exercised by COMELEC in
election period, there is no presumption of unconstitutionality

Basis: Art. IX(C)(4) of Constitution giving COMELEC
power to regulate election-related speech
o But prohibiting placing of campaign decals on private cars is
overbroad, and thus invalid prohibition (Adiong v. COMELEC)

o





Banning the publishing of survey results is also overbroad
because it does not meet the O’Brien test, since it suppresses
one type of expression while allowing others like editorials
(SWS v. COMELEC)
o Cannot prohibit columnists from using their columns or
programs to campaign against or for a plebiscite choice, since
the authority given by the Constitution is over holders of
franchises and to give candidates equal opportunity and equal
access to media – not restrain free discussion. (Sanidad v.
COMELEC)
Can exit polls and surveys be prevented?
o No. Prevention of this is prior restraint
o Cannot ban exit polls because the evils envisioned are merely
speculative (ABS CBN v. COMELEC)
Is movie censorship allowed?
o US jurisprudence: an administrative officer cannot prevent the
showing of a movie. He has to go to court
o Phil. jurisprudence: we don’t follow this rule. The censorship
board may restrain the showing of a movie
o MTRCB has power to review both religious shows like the INC
program, as well as public affairs and documentary programs
like The Inside Story (MTRCB v. ABS-CBN)
May live TV coverage of a criminal trial be prohibited?
o Yes. Reason: to maintain the fairness of the proceedings
Are there situations where prior restraint may be allowed?
o Yes. For exigent circumstances.

Ex. Attempted coup – radio stations may be
prevented from broadcasting the movements

Ex. Recent hostage taking – could have restrained
broadcast
What is the rule for Commercial speech?
o Definition: speech that proposes commercial transaction.
o Speech that has greatest protection is “core” speech: political
and religious speech. Commercial speech does not enjoy
same protection.
o Is commercial speech protected?

Yes.
o Conditions for regulation: (Central Hudson Gas v. PSC)
o
1. Speech must be truthful and should not propose an
illegal transaction

2. Government has a substantial interest to protect

3. Regulation directly advances the interest

4. Not more extensive than necessary
Best example – advertisement of artificial milk. There was a
total prohibition. While this fulfilled the first three requisites,
this was deemed too broad, thus failing requisite #4.
Subsequent punishment


45
What are three tests to determine whether speech may be
punished?
o 1. Dangerous tendency test

Here, all that was required was a logical relation
between the prohibition and the object of the
prohibition. This is the early accepted standard.

Ex. “Cut of G.G. Wood’s head!” or “Tuloy ang welga
hanggang sa magkagulo na!”
o 2. Clear and present danger

Immediately resulting into danger

Speech may still be punished even if the evil that is
contemplated does not happen
o 3. Balancing of interests

Ex. Electoral process v. freedom of speech

Ex. RA 4880 prohibiting too early nomination of
candidates and limiting period of political activity.
This promotes the preservation of the political process
and prevents its debasement.
o So what applies?

For sedition cases, it seems dangerous tendency is
still applicable

But with the restoration of democracy, CPD is coming
into favor
When can non-verbal or symbolic speech be regulated? (O’Brien
test)
o 1. Within constitutional power of government
o 2. Furthers government interest unrelated to suppression of
speech




o
o 3. No greater than what is needed
When can there be a facial challenge?
o Over-breadth of a prohibition is a constantly recurring test.
o Over-breadth, leading to a facial challenge, only applies to
freedom of expression cases
Not every form of speech is protected. There are two forms not
protected:
o 1. Libel
o 2. Obscenity
A. Libel
o A) Allegation of a defect
o B) Publication

There is publication when it has been written, and
then made known to someone other than the person
to whom it has been written
o C) Identity of the person
o D) Malice

If there is no malice, there is no libel

But every defamatory imputation is PRESUMED to be
malicious, even if it is true

Exceptions:

i. Private communication to someone with a
right to know

ii. When the object of the defamatory
imputation is a public officer.
o The person suing for libel must
prove actual malice: one must know
it was false or with reckless
disregard to veracity
o How far down do you go?

Barangay official

Iii. Fair commentary on public matters
B. Obscenity
o It’s very difficult to find something obscene
o Miller v. California test:

1. Average person’s perspective

2. Take the work as a whole

3. Appeals to prurient interest

4. Lacks serious political, literary, or artistic value

Do you use national standard or local standard to
determine what an average person is?

In Philippines, there seems to be no difference
anyway.
o Stricter rules on television, radio, and speech in schools
o What is “Relative obscenity”?

Ang Dating Daan case –obscene to certain people.

Basis: there are still children watching when the show
is on
o May sex on the internet be banned?

No law banning sex on the internet has ever been
upheld.

You can protect children another way and adults have
a right to look at sex
What is the heckler’s veto?
o When speech by an acting party is banned not because of
what they are saying but due to the potential reaction of the
reacting party
o Is this ground to ban speech?

No, unless there is CPD
Right to assemble in order to petition



46
What standards are used?
o Use the same standards in freedom of speech and press for
assembly and petition, since the right to assembly and petition
is equally important
o Assembly and petition may be punished when it presents CPD
of a substantive evil
JBL Reyes v. Bagatsing and BP 880:
o 1. To rally, you need a permit. The application must be early
enough to give authorities chance to decide.
o 2. The authorities must decide whether to allow or not.
Decision must be based on CPD.
o 3. It must be made early enough so you have time to go to
court to question it.
What is the extent of discretion of authorities?
o



Authorities have reasonable discretion to determine or specify
streets or public places to be used, to secure convenient use
by others and maintain public safety/order
When is there no need for a permit?
o No need for a permit if in a freedom park.
Is Calibrated preemptive response (CPR) valid?
o No. It cannot replace maximum tolerance.
Strikers’ placards are protected by guarantee of free speech. Words
used cannot be expected to be polite. (PCIB v. Philnabank)

Freedom of Religion


N.B. The first sentence of the provision is complete already
What are the two prohibitions?
o 1. Establishment of religion

Ex. Making an official religion of a State
o 2. Violation of free exercise of religion

Non-establishment of religion



What the State cannot do:
o Set up a church, pass laws that aid one religion or all religions,
or prefer one religion over another
o It cannot participate in affairs of religious organizations
Does this mean the State cannot do anything that would have the
effect of favoring a particular religion?
o No. If the primary purpose is not religious but there is
incidental effect of benefiting a particular religion, it is allowed.
What are required for it to be valid?
o 1. It must have secular purpose;

State sponsored Bible readings are invalid (School
District v. Schempp)
o 2. Primary effect neither advances or inhibits religion;

Aglipay church objected to stamps that advertised the
Eucharistic congress. HELD: The stamps were valid.
It was for tourism. Benefit to Catholic Church is
incidental.

Money used to purchase religious statute. HELD: it
was valid since private funds of the municipality were

used. Also, a fiesta is not a religious affair but a
socio-religious affair which is an ingrained tradition in
rural communities.
o 3. No excessive entanglement with recipient institutions

Lending secular textbooks to parochial school kids is
allowed (Board of Education v. Allen) but not when
there is close government supervision since there is
excessive entanglement (Lemon v. Kurtzman)
State has no business intervening in purely ecclesiastical affairs.
o Matter can be decided by internal rules of the church
o A case involving a minister who failed to account for funds and
was dismissed is not an ecclesiastical affair since it did not
involve doctrines or religious teachings (Austria v. NLRC)
o Excommunication is a purely ecclesiastical affair
o Certifying food as halal – can the government do this?

No. It’s just the religion that can do this.
Other Consti provisions expressing non-establishment:
o 1. Art VI, Sec 29 – no public money/property given to religious
sect or minister/religious personnel (except for those assigned
to Army, penal institution, government orphanage or
leprosarium)
o 2. Art II, Sec6 – Separation of church and State is inviolable
o 3. Art IX(C), Sec 2(5) – No religious sects can be registered as
political parties
Constitutional exceptions to non-establishment clause:
o 1. Art VI, Sec. 28(3) – charitable institutions, churches, etc and
all lands, buildings, improvements A,D,E used for religious,
charitable, or educational purposes exempt from taxation
o 2. Art VI, Sec. 1(2) – [Cited above: the Armed Forces, penal
institution, government orphanage or leprosarium]
o 3. Arv XIV, Sec 3(3) – At the option in writing of parents or
guardians, religion can be taught in public elementary and HS
within regular class hours
o 4. Art XIV, Sec 4(2) – usually there is citizenship requirement
for ownership of educational institutions (60%), but not for
those established by religious groups and mission boards
Free exercise of religion
47






Differentiate right to believe from right to externalize one’s belief:
o Right to believe – this is absolute
o Right to externalize one’s belief is not.
Will it be proper for public officers to make derogatory remarks
towards religion?
o No.
Is requiring permit for selling religious items valid?
o It depends.
o Ex. Selling books for profit  may require permit
o Ex. Selling books without profit and only for apostolic work 
may not require permit

Ex. American Bible Society – selling bibles not for
profit. Cannot be taxed (else this is a prevention of
dissemination)
o But a general administrative fee like registration fees for the
VAT are allowed, since it is not imposed on the exercise of a
privilege, but a mere operation fee and it is so incidental to the
exercise of religious freedom that it’s impossible to differentiate
it from other economic impositions (Tolentino v. Sec of
Finance)
o Likewise, a State may impose regulations on solicitations for
religious purposes to protect the public
Ang Ladlad case – you cannot use belief as basis to disqualify
homosexuals
Estrada v. Escritor (2003, reaffirmed 2006) – “benevolent neutrality”
o Lady clerk of court living with someone else without marriage.
There was an effort to dismiss her as clerk. Court found that
her belief was sincere that it was fine, she had blessing of
pastor. Court did not disturb the relationship, because there
was no harm.
o What is “benevolent neutrality”?

Morality based on religion can be accommodated as
long as it does not offend compelling State interest

Must prove sincerity of belief
Examples of religion as basis to exempt person from compliance
with certain laws:
o Exempted from compliance with the Flag Law (Ebralinag v.
Division Superintendent)
o
o
Exemption from compulsory education based on religious
grounds, since their sect has a system of informal education
(Wisconsin v. Yoder)
But religion cannot be an excuse to violate narcotics laws,
such as in the case of those who ingested sacramental peyote
(Employment Division v. Smith)
Liberty of Abode and Freedom of Movement


What is Liberty of abode?
o Freedom to choose where you want to live
o It cannot be impaired except upon lawful order of court
What about right to travel?
o Can be impaired even without lawful order of court
o For what reasons?

1. National interest

2. Public security

3. Public health
o And how is it impaired?

As provided by law.

But it can also be impaired through lawful order of
court
Right to Information




48
Two rights:
o 1. Right to information on matters of public concern
o 2. The corollary right of access to official records and
documents
To whom does the right belong to?
o ALL citizens of the Philippines
o Everyone has right and standing to challenge any violation of
this right
As a corollary, who may invoke the right to privacy?
o Right to privacy may only be invoked by the individual involved
and not the government agency compelled, because there is
no injury to the feelings, etc of a juridical entity.
What does this right cover?
o “Matters of public concern”

o






Jurisprudence lacks very precise definition. It embraces broad
spectrum of subject
What is the remedy when a government agency or court refuses to
disclose records?
o If you are seeking information, and government refuses to give
it to you, the remedy is mandamus

Ex. Refusal of COMELEC to reveal names of Partylist seat nominees
Contract negotiations: May PCGG be compelled to reveal contents
of a compromise agreement?
o It depends. Distinguish between soft proposals and firm
proposals:
o A. If there is no firm proposal yet, there is no right to be
informed
o B. If there is a firm proposal, even when there is no contract
yet, you have a right to know
What about information regarding negotiations for treaties and
executive agreements prior to conclusion of the agreement?
o These is privileged information according to Senate v. Ermita.
What is this right’s relationship to publication of laws and
regulations?
o Laws and regulations affecting the public are non-binding
unless published, intended to make full disclosure and proper
notice to people.
Is there a right to access court records?
o It depends. Distinguish between decisions and opinions of the
court vis-à-vis pleadings filed by parties.
o Decisions and opinions are public concern.
o W/N pleadings may be accessed is left to the court’s discretion

Because these need not be of public concern
o What is the limitation in access to court records?

When the purpose of the examination is unlawful or
sheer, idle curiosity
What does the right to information not cover?
o 1. National security info
o 2. Trade secrets
o 3. Information with respect to criminal prosecution that may
jeopardize criminal process
o 4. Privileged information
Does this include a right over a summary of the information?
o No. An office who gave you information has no obligation to
give a summary of this information (Valmonte v. Belmonte)
Right to association





What is the limit to the right to associate?
o The group must not be contrary to law – really means “for
purposes not contrary to due process”
o So this right may be abridged but in accordance to due
process
What is the test for w/n the rights of the union may be abridged?
o Depends on the kind of union or association
o Apply “hierarchy of rights”:

If a union/organization is for the purpose of
propagating preferred rights (freedom of religion or
speech)  apply CPD test

If for property rights  apply reasonableness test only
What is the rule for government employees?
o Government employees – have right to form unions but right to
strike may be limited
Is a closed-shop agreement legal?
o Yes, since it is a valid form of union security. (Villar v. Inciong)
Prohibiting managerial employees from forming unions is valid because
the legal prohibition has a valid purpose (ensuring freedom of unions)
(United Pepsi Cola v. Laguesma)
Eminent domain



49
What is the concept of eminent domain?
o Private property shall not be taken for public use without just
compensation
Can the government take public property?
o No need. It already owns these.
Who possesses power of eminent domain?
o Inherently possessed by the State. Exercised by the National
Government.
o By delegation, it can be possessed by local governments,
other public entities, and public utilities.
o


o
By implication, can the executive limit the right of eminent
domain?

No. The power of eminent domain cannot be limited
by an EO. The guidelines provided by an EO cannot
be considered as conditions precedent for eminent
domain. (Republic v. Juan)
Elements of exercise of power of eminent domain?
o 1) taking of private property
o 2) for public use
o 3) just compensation
What court has jurisdiction?
o Always the RTC (because value of the property is only
incidental for just compensation, not jurisdictional)


Requiring cemeteries to give 6% of land area to paupers:
expropriation because there is taking of private property for
public use. (Government v. Ericta)
When municipal property is taken by the State, when is there
compensation?
o Compensation needed if it is patrimonial property of the
municipality, acquired with private funds in its corporate or
private capacity.
o No compensation needed for public buildings or legua
communal held by the municipality in trust for inhabitants.
What can be taken?
o Anything except money and choses in action.
Public use
Taking





When is there taking?
o 1. Expropriator must enter or take possession of the property
o 2. Entry must not be for a momentary period; must be
permanent
o 3. Entry must be under warrant or color of legal authority
o 4. The owner is deprived of ownership or permanent use of the
property.
Is a right of way taking?
o Yes, it is equivalent to taking, when it has effect of depriving
owner of his property.
o Ex. Right of way through installation of transmission lines over
the property is expropriation through easement.
What if entry is with permission given by the owners?
o If entry is with permission by the owners, this is not yet taking.
Usually, expropriation would have to follow. (Garcia v. CA)
Distinguish taking in eminent domain from police power?
o Police power – regulate or destroy property
o Eminent domain – transfer of ownership
o Thus, when government decides to destroy noxious property
like trees infested by pests with communicable diseases. The
government may destroy these trees, and there is no “taking.”




What is public use?
o 1. Something that is open to the public.
o 2. Something for public benefit, then it is already taking.
o Similar to “public welfare” in PP.
o Ex. Socialized housing is public use.
What if the expropriating authority instead sells the property to a
private person?
o Violation of property right.
What are the rules upon abandonment of real property condemned
for public purpose:
o 1. Owner has right to recover it.
o 2. Recovery is through payment of value by which he was paid
by the government. (Repurchase)
Public use also requires that the expropriator use it for purposes
specified in the petition. If used for another purpose, then it is violation
of the constitutional right.
Cases on w/n there is public purpose:
o Tourism is a public purpose (Ardona v. Reyes)
o Expropriation of the birth place of Felix Manalo, founder of INC,
to make it into a historical landmark is also public use
(Manosca v. CA)
Just compensation
50






o
What is just compensation?
o Remedying the loss suffered by the owner
What is the measure?
o Measure is the LOSS of the owner, not the GAIN of the
expropriator
o Usually means “market value.” This means the value of the
property will command in the free market, if the owner is not
bound to sell and the expropriator is not bound to buy.
o Generally: market value + consequential damages –
consequential benefits = just compensation
If there is failure to pay just compensation, can the owner file a
case to recover possession?
o No, he can just demand payment of just compensation
because the first stage of the hearing (taking) is already over
and settled.
o What is the exception?

When government fails to pay just compensation
within 5 years of finality of judgment of expropriation,
the owner can file for recovery of possession. (RP v.
Lim)
When is there right to repurchase or re-acquire property?
o Owner’s right to repurchase the property depends on the title
acquired by the expropriator. For example, if there is a
condition that when the purpose is ended, the property shall
revert to the owner, then the owner can re-acquire the
property.
When eminent domain is exercised, who is entitled to
compensation?
o 1. The owner
o 2. Those whose property rights may have been violated

Ex. Upon taking, the lessee of a property can also be
compensated for loss of value

This other person who is not an owner but has an
interest in the property may intervene in the action to
get his just share (De Knecht v. CA)
Can the Executive provide for laws that establish formulae in
determining just compensation?






51
No. PDs issued that provide for a formula in determining just
compensation are all void for encroaching on judicial
prerogatives (EPZA v. Dulay)
Construction of NAIA 3 was already complete when it was deemed
contrary to law and PP. When government took it from the contractor, it
still needed to pay just compensation (Republic v., Judge Gingoyon)
o In this case, the SC said that there must be direct payment of
the compensation to the contractor, instead of deposit under
Rule 67. Puno and Carpio dissented, saying that this is an
undue amendment of the ROC.
In terms of time, when is the value of the property to be
calculated?
o General rule: what determines just compensation is the value
of the property at the time of the filing of the petition

But this is normally because the filing of the petition
and the taking has a short interval
o But what if property is entered into prior to filing the petition?

If the increase of the value of the property is due to
the expropriation by government (ex. It was
developed), just compensation is value of property at
the time of the taking + legal interest

If the increase of the value of the property went up
independently of the expropriation, just compensation
is based on the time of the filing of the petition
o What if it’s a Local Government Unit (RA 7160) taking?

Value at the time of actual taking
Does it earn interest?
o Yes, at 6% because it’s not a forebearance or loan
o But it’s 12% if it is interest due to delays, which is tantamount
to damages – forebearance of money
The concept of just compensation includes promptness in the payment.
If there is long delay in the payment, then what is due to the owner may
be more.
How is the value of the property measured?
o Commissioners are appointed by court to determine.
X, a landowner, challenges the valuation of his property. Can he
withdraw the money deposited as just compensation in the
meantime?
o





o
Yes. Otherwise, he would be unjustly deprived of property for
a long time without compensation.
Must compensation be in money?
o No. Can be in government bonds, as long as equivalent to the
value of the property.
o Can be, for instance, in the form of Land Bank notes.
(Maddumba v. GSIS)
Is power of eminent domain subject to judicial review?
o Yes.
o Courts may review:

1. Adequacy of compensation

2. Whether taking was for public use

3. Necessity of the taking (new)

This is where the controversial De Knecht
ruling comes in, where the Court substituted
its judgment for the legislative’s, by stating
that path #1 would only affect motels and
path #2 would displace a lot of residences.
o What property is subject to be taken is not subject to judicial
review.
What about res judicata? Ex. Government went to court to expropriate
a property and it was rejected because the use was not for public use.
Can the government attempt to expropriate it again?
o Yes. The public use may change.
o Government is not precluded from attempting to expropriate
again property that it failed to successfully expropriate before.
But res judicata applies in so far as it cannot raise the same
issues in a prior infirm expropriation in another court
proceeding. It should just correct the infirmity. (Paranaque v.
VM Realty)
Government entered into contract to buy property. The price turned out
to be too high. Can the government expropriate the property
instead?
o No. You cannot substitute expropriation for a valid contract.
Who possesses power of eminent domain?
o National government, through legislature.
o But executive carries it out.




52
It may be delegated to local government or public corporations.
But what they possess is not eminent domain but their power is
inferior domain.

What is needed is not a mere resolution but an
ordinance.
Eminent domain by local government:
o REQUISITES:

1. Ordinance enacted by local legislative council
authorizing local chief executive to exercise eminent
domain

2. Exercised for public use, purpose or welfare

3. Just compensation

4. Valid and definite offer previously made to the
owner of property, but it was not accepted
o Cannot expropriate on the strength of a sanggunian resolution
alone (Suguitan v. Mandaluyong). It must be an ordinance.
o LIMITS on local government power of expropriation:

1. Must follow order of priority in acquiring land for
socialized housing. Private lands rank last in the order
of priority.

Also, for socialized housing, cannot
expropriate small property owners’ lands

2. Resort to expropriation: Can only be done after
OTHER modes of acquisition exhausted
When is there immediate entry allowed for expropriation under
Rule 67?
o 1. Filing of complaint + due notice to defendant and
o 2. Deposit with authorized government depositary an amount
equivalent to the assessed value of the property
When is there immediate entry allowed for expropriation under the
LGC?
o 1. Filing of complaint for expropriation sufficient in form and
substance and
o 2. Deposit of amount equivalent to 15% of FMV of the property
to be expropriated, based on latest tax declaration
When is there immediate entry allowed for expropriation under RA
8974 (acquisition of property for right of way or for government
infrastructure projects)?
o
o
Sold to private owner. The government’s contracts do not bind
the new owner.
May a license be impaired or changed?
o Yes. It is a mere privilege.
o This same principle applies to timber licenses and franchises.
o
1. Filing of complaint + immediate payment of 100% assessed
value of the property and the improvements (same rule as Rule
67)
2. If there is no zonal valuation AND the expropriation is of
utmost importance: Filing of complaint + payment of proffered
value of the property

Legal assistance and free access to courts
Contract clause (non-impairment)










What is the contract clause?
o No law shall be passed that impairs contracts
Who is limited by this right?
o This is a limitation to the legislative department, not the
judiciary
When is there impairment?
o There is impairment when the terms of the contract are
changed as between the parties to the contract
La Insular v. Machuca: A and B had a contract of sale of cigars. A law
is passed imposing sales tax on the seller. Was there impairment?
o HELD: No impairment because it does not change the
obligations of seller to buyer; it just establishes a new
obligation to a new party (i.e. the government)
Co v. PNB: Imposing stricter redemption rules on foreclosed property.
Was there impairment?
o Yes, this would impair contracts.
Manila Trading v. Reyes: Mere change in procedural remedies does
not impair.
The sanctity of contracts and franchises are subject to police power.
o Chavez v. COMELEC: Ex. Removal of billboard of a
commercial endorser who ran for public office. The police
power exercised by government is to protect the sanctity of
elections. No impairment.
A corporation owes money to a lot of people. It applies for a
rehabilitation plan. The rehabilitation plan is submitted to court.
o If the plan only results to postponement of payment, there is no
violation of obligation of contracts
o If the plan changes relationship between company and its
creditors, there is violation of obligation of contracts
Kuwait Airways v. PAL
Free access to courts, QJ bodies, and adequate legal assistance shall
not be denied to a person due to poverty
Rights of Suspects







53
In sum: “Miranda Rights”
Who has rights under this section?
o 1. Those under criminal investigation, not administrative
o 2. And they must be under the custody of the law

This has been modified by statute: If a person has
been “invited” by the police, even if not under the
custody – they are already protected by this section/
What are his rights?
o 1. Right to be silent
o 2. Right to counsel, preferably of own choice

If he cannot afford counsel, he will be given one
o 3. Right to be informed of his rights
o 4. No torture, CIDT, incommunicado, or other similar detention
conditions
Can these rights be waived?
o These rights cannot be waived, except in writing and in
presence of counsel
o What if the person in custody said that he did not need a
lawyer and he will tell the truth?

There can still be no waiver without counsel.
P v. Gamboa: Constitutional protections only apply to testimonial
compulsion, but not object evidence, such as paraffin tests.
What about re-enactments?
o These rights cover re-enactments of crimes, which are
communicative in nature.
Who and what are not covered by this protection?
o











Competent – member of Bar
Independent – free from government pressure
P v. Mojello: If counsel is assigned by the investigators and
the person under custody did not raise any objection, it is
deemed to be “of his own choice.”
What are examples of non-independent counsels?
o Municipal attorney
o Barangay captain
o Counsel of police
o Test: is the interest of the lawyer serving the government?

If yes, then he is not independent.

The interest of the lawyer must be to protect the
person under investigation.
What is the legal effect of violation?
o Inadmissible as confession against the person
o Also inadmissible against others

Exception: “interlocking confession”
o P v. Lucero: Counsel must be there from first moment and all
throughout.
o P v. Marcos: But statement in open court that a confession
given without counsel was voluntarily signed CURES the
infirmity.
o Aballe v. P: A knife with blood was found due to an
uncounseled EJ confession. This knife, even if it is object
evidence, is inadmissible because it is the fruit of an invalid
interrogation.
Difference between admission and confession?
o Confession – acknowledging that you have committed a crime
o Admission – admitted having performed some act; not
necessarily criminal, but may be connected
Requisites of a valid EJ confession?
o 1. Voluntary
o 2. Made with assistance of independent and competent
counsel
o 3. Confession is express
o 4. Confession is in writing
o 5. Signed or thumb marked by confessant
Tantamount to confessions without counsel:
o P v. Galit: Signing receipt of seized property
o
o
o
1. One who voluntarily presented himself to the police to
surrender
o 2. One who made spontaneous admissions without
questioning or coercion
When did these rights take effect in the Philippines?
o Jan. 17, 1973 – when the 1973 Constitution took effect,
inspired by the Miranda case
Can officers invoke presumption of regularity?
o No. There is no presumption of regularity in the performance of
official functions here.
Is a person in a police line-up entitled to counsel?
o No, he is not yet under investigation. He must be singled out
first.
When do Sec. 12 rights begin to apply?
o When investigation is not anymore a general inquiry into crime,
but has begun to focus on a particular suspect, and he has
been taken into police custody
When do Sec. 12 rights end?
o Upon filing of criminal case in court or in prosecutor’s office,
because custodial investigation has ended. Upon this time,
Sec. 14 will start to apply.
A person talks to a mayor. Is he entitled to these rights?
o It depends. If he approached the mayor as “spiritual
counsellor” then this is not covered. If he approached the
mayor as an official, then covered.
o Similarly, making an admission during procedure where a
person is pleading to be a state witness: admissible
A suspect signed booking sheets. Is this a confession?
o No, it’s just a record of the fact of arrest and its circumstances,
and not a confession that he committed the suspected offense.
What about a person interviewed on television?
o Admissible, since it is not an investigation.
An admission to a bantay-bayan?
o He is considered a public official and this provision applies.
Right to be informed of his rights – how must a person be
informed?
o In a manner understandable to him.
Who is a competent and independent counsel:





54
o
o
P v. Bagano: Asked to affix signature on marijuana bags
Rights of the accused
Bail








Who are entitled to bail
o All persons
o Except those charged with offenses punishable by RP when
evidence of guilt is strong, are entitled to bail
o N.B. You only lose right to bail if the evidence of guilt is strong
(for life and RP). Thus, loss of right to bail is NOT automatic.
What if you are charged with crime punishable by life
imprisonment?
o Right to bail is withheld as well (as established by
jurisprudence)
What are the duties of trial judge upon application of bail (by one
not automatically entitled to it)?
o 1. He must notify the prosecution
o 2. He must decide whether evidence of guilt is strong

Tolentino v. Camanao: When the prosecutor refuses
to adduce evidence in opposition of application for
bail, the court may ask questions to the prosecution to
ascertain strength of the evidence.
o 3. If the evidence of guilt is not strong, the accused has right to
bail. If evidence of guilt is strong, judge has discretion to give
bail still.
When is there right to bail?
o You need to be in custody to have right to bail
Is there bail in Extradition cases?
o Extradition cases are not criminal cases, so there is no right to
bail because it is under discretion of executive.
o BUT later decisions recognize the right to bail even in
extradition cases, when the risk of flight is not likely.
What is the rule on amount of bail?
o Cannot require excessive bail – this is practically denying bail
When is bail a matter of right?
o 1. Before or after conviction in MTC


2. Before conviction in RTC, when offense not punishable by
RP/life
o 3. Before conviction in RTC, when offense is punishable by
RP/life but evidence of guilt is not strong
When is it discretionary?
o 1. After conviction in RTC of an offense not punishable by
RP/life/death
When must bail be denied?
o 1. Capital offense
o 2. Before conviction in RTC, when offense is punishable by
RP/life and evidence of guilt is strong
o 3. After conviction in RTC, when offense is punishable by
RP/life/death
Does the suspension of the privilege of WHC prevent a person
from filing bail?
o No. It is not suspended.
Criminal due process


Refers to substantive and procedural due process
Military tribunals: usually not reviewed by SC
Presumption of innocence




55
What is the effect of this presumption?
o No one can be convicted unless there is proof of guilt BRD
It is possible for the state to shift burden of proof to defendant, when
there is prima facie evidence of guilt.
o E.g. when one is in possession of a stolen carabao, there is a
logical conclusion that he stole the carabao
o E.g. Accountable public officer unable to account for money
assigned to him
When does presumption of innocence end?
o It ends when acquittal is already final.
o When the case is on appeal, does the accused still enjoy
presumption of innocence?

Yes
What is the equipoise rule?
o

When there is even balance in the evidence adduced by both
sides, the presumption tilts decision in favour of the accused
Can circumstantial evidence prevail over presumption of
innocence?
o Yes, if: a) there is more than one circumstance, b) the facts
from which the inferences are drawn are proven, c) the
combination can produce a conviction beyond reasonable
doubt




Right to be heard

Right to be heard – involves several components:
o 1. Right to be present at trial
o 2. To counsel
o 3. To impartial judge
o 4. Confrontation
o 5. Compulsory process

Right to be present at trial:




Is the right to be present in trial waivable?
o Yes, you may waive this right. But the waiver must be very
precise so that there is no doubt that whatever happens has
reference to the accused
What are the requisites before one may be tried in absentia?
o 1. Must have been arraigned
o 2. Must have been notified of the trial
o 3. No justifiable reason for absence
Can bail still be forfeited?
o Bail has condition that when needed, you may be summoned
Right to impartial judge

Right to counsel


o Then judge appoints a counsel de officio.
Can the accused waive his right to counsel?
o No, never.
The counsel de officio must also actively represent his client, not merely
act pro forma
If a person has his own lawyer but the lawyer is always absent, can
he demand that a counsel de officio be appointed?
o No.
Question: during Martial Law, right to counsel may be generally
waived?
o No.
Accused had Counsel de parte X. X was absent. Court appointed
Counsel de officio Y. Accused claimed violation of right to choose
counsel. Valid objection?
o No. The right to choose counsel more properly pertains to
custodial investigation, and what is inviolable during trial is
right to counsel and not an absolute right to choose. Here, in
the interest of finishing the trial, the court properly appointed
the counsel de officio.
Is the mistake of the counsel the mistake of the party?
o Yes. Except when it is so gross as to have prejudiced the
constitutional right of the accused.
When is judge partial?
o E.g. Judge already received judicial confession, but the trial is
not yet ended.
o Study circumstances, then establish reasons to show judge is
against one’s interest
Right of confrontation
What is required for counsel?
o Counsel must be qualified: member of the Bar
o If after one’s conviction, you find out that the counsel is not a
member of the Bar, that nullifies the conviction
What is the duty of the judge if a person appears without counsel?
o Judge must ask you if you want counsel. (“Yes.”) Then if you
can afford one. (“No sir.”)


56
What is the “right to confrontation”?
o The right to confront the witness face-to-face
What is the reason for this?
o To enable you to test the testimony of the witness by crossexamination



To enable the judge to observe the demeanor of the witnesses, face-toface with person he/she is accusing
Are there exceptions?
o 1. Dying declaration
o 2. Trial in absentia

Right to compulsory process



Two things:
o 1. Compel attendance of witnesses
o 2. Right to have evidence in one’s favor produced
1935 Constitution spoke of right to secure attendance of witnesses in
one’s behalf
1973 and 1987 added “compulsory process” to secure not just
witnesses but also other kinds of evidence
Right to public trial




There are exceptions:
o When evidence is offensive to decency and public morals
When there Is publicity, they behave properly
Waiver of rights


Right to be informed

What is the remedy for violation of right to speedy trial?
o Ask for dismissal of the case. The dismissal is equivalent to an
acquittal, and thus bars second prosecution for same offense
Are you entitled to a speedy decision?
o Not under this section, but there is another section (speedy
disposition of cases) where you have the right to expedite
disposition of all cases against you
What must one be informed about?
o 1. Nature of the accusation

Ex. Murder, theft, homicide
o 2. Cause of the accusation

These are the facts alleged against you
Which is more important?
o Cause
o Because even if the nature of allegation is erroneous but the
facts are there, you are sufficiently informed
Reasons:
o 1. To prepare for defense
o 2. Protection against double jeopardy
o 3. To inform the judge to see if the facts alleged constituted a
crime
The presumption is always against waiver
Prosecution must prove:
o 1. Fact of waiver
o 2. Voluntariness of waiver
Speedy disposition of cases



Applies to judicial, Q-J, and admin bodies
Guerrero v. CA: 10 years trial, and no decision yet, without
explanation. The case was transferred to a second court. When the
new judge ordered a re-hearing, the accused filed for dismissal based
on violation of speedy trial. Valid?
o No. Because the delay was not the fault of the prosecution.
Roque v. OMB: Remedy is mandamus to dismiss.
Writ of Habeas Corpus
Right to speedy trial




N.B. Speed is relative
When is there a violation of the right to speedy trial?
o 1. Delays were unreasonable
o 2. Caused by the prosecution

57
When is the WHC suspended?
o Only in cases of invasion or rebellion, when public safety
requires it
What is the “Privilege of writ of HC”?
o The right to have immediate determination of legality of
deprivation of physical liberty
Who suspends this?

o The President. See Article VII.
Dizon v. Eduardo: Respondents’ defense against petition for HC is that
they have released the person detained. But there is still no sign of him.
Did the burden shift?
o No. The burden is on the respondents’, by interposing an
affirmative defense, to establish the fact of release.
o

Self-incrimination clause







What is the purpose of this provision?
o 1. to prevent witness from having to lie
o 2. to prevent extorting confession by duress
What is covered?
o Questions that have tendency to incriminate: for instance,
establishing an element of the crime charged
o Only TESTIMONIAL COMPULSION
What about object evidence or physical examination?
o Right does not cover physical examination or object evidence
o Ex. Examining body of witness, putting on pair of pants, taking
of pictures of accused
What about handwriting?
o Handwriting is protected against self-incrimination, because it
is not just a mechanical act but one that requires intelligence
o Marcelo v. Sandiganbayan: But merely affixing handwriting
on envelopes to authenticate the envelopes as the ones that
were seized from accused is not a violation of this provision
Can one compel accused to produce private books and papers?
o No.
o Exception?

When the state has the right to inspect books or
documents such as in police or taxing power
Who are protected by this right?
o Only natural persons are protected by this right
o May a corporate officer refuse to produce books on the
ground of self-incrimination?

No. Because he is not incriminating himself, but it is
the corporation incriminating him
When can you raise the defense of self-incrimination, and in what
situations?


In any situation where one is being examined or asked officially
– may be admin, civil, or criminal
The right against self-incrimination of a person accused differs
from one not accused:
o 1. The accused can absolutely refuse to go to the witness
stand

(This same principle can apply to respondents in an
administrative proceeding where he may be subjected
to sanctions of a penal character such as cancellation
of license to practice medicine)
o 2. The non-accused cannot refuse to take the stand; but he
can raise the defense only when an incriminating question is
asked
Differentiate transactional immunity from “use and fruit” immunity:
o 1. Transactional – witness is immune from criminal prosecution
for an offense to which his compelled testimony relates
o 2. Use and fruit – cannot use testimony and its fruits in any
manner in connection with criminal prosecution of the witness
Can this right be waived?
o Yes.
Involuntary servitude and Political Prisoners



What is the rule on political prisoners?
o No person may be detained solely due to his political beliefs
o For political prisoners: “solely” is key word
What is involuntary servitude?
o Covers forceful service against one’s wish
Exceptions:
o 1. To punish a crime
o 2. In interest of national defense (ex. Military or civilian service)
o 3. Return to work order

This does not violate involuntary servitude because
you do not have to follow it, with consequences
o 4. Posse comitatus (peace officer can have able bodied
persons assist him)
o 5. Patria potestas (parent over children)
Excessive Fines and Cruel and Inhuman Punishments
58









Double Jeopardy
What kind of fines cannot be imposed?
o Excessive fines shall not be imposed.
When is a fine excessive?
o The fine must be excessive in relation to the offense, not in
relation to the person
o So one can be a millionaire, and then you are fined P100K for
jaywalking. This may be nothing for the person, but this is still
excessive as to jaywalking
Death penalty shall not be imposed except with compelling reasons for
heinous crimes
o It may (and was) restored, but it was suspended again
o It may be revived again
What determines whether a crime is heinous? If congress passes
a bill saying “rape is a heinous crime,” does this settle the matter?
o No. Whether or not a crime is heinous is a question of fact.
o Legislative fact – just enough fact enough to justify passing a
law
o Judicial fact – enough fact to convict (this is a higher bar)
When is a punishment cruel and degrading?
o Ex. Covering a person in honey and placing him on an anthill
What if death penalty is imposed under law right now?
o Death Penalty imposed is reduced to RP
o But we are not a party to the treaty that prohibits the Death
Penalty
Is death by injection cruel and unusual?
o No.
Does the death penalty violate equal protection because it is
usually imposed only on the poor who cannot defend themselves?
o SC: No, that is too sweeping
What is duty of judge when accused pleads guilty to capital
offense?
o The judge cannot impose the penalty immediately. Look into
facts to check if death indeed is the proper penalty







Non-imprisonment for Debts



This covers contractual debts
This does not cover debts imposed by law like a criminal fine, where
imprisonment may be a substitute
59
If an act is punished by a law and an ordinance, does conviction
under one bar conviction under another?
o Yes.
Two types of DJ:
o 1. Second jeopardy for same offense
o 2. Second jeopardy for same act

This is the law-ordinance type
Elements:
o 1. There was a first jeopardy (put in situation where one could
be punished)
o 2. The first jeopardy terminated by conviction, acquittal, or
dismissal without consent of accused
o 3. The second jeopardy must be for the same offense as the
first
When can you say that you have been placed in jeopardy?
o 1. Valid information
o 2. Court has jurisdiction

Ex. If you are a civilian tried before a military court,
there is no 2nd element
o 3. Valid arraignment
Termination of jeopardy – when does it end?
o 1. Acquittal

Includes violation of right to speedy trial

Includes demurrer to evidence
o 2. Final conviction
o 3. Dismissal without express consent of accused
You raised a defense of lack of jurisdiction of the court. The court
dismissed, although it turned out that it had jurisdiction. What is
this:
o Dismissal without express consent of the accused. This is
considered “waiver or estoppel”
Dismissal for undue delay/lack of speedy trial:
o This is already a judgment on the merits
Dismissal, however, must be in writing and signed by the judge.
Without this, there is no dismissal yet.





You are convicted of attempted homicide. You are acquitted. You
are charged with physical injuries instead for the same act. Is this
double jeopardy?
o Yes. Same offense.
You are charged with frustrated homicide. You are convicted. The
victim then dies. You are charged with homicide. Is this DJ?
o No, because the homicide did not yet exist when you are
convicted of frustrated homicide.
What are supervening events?
o 1. When the second offense is not yet in existence during first
prosecution
o 2. Facts constituting graver offense only were discovered after
filing of complaint/information
o 3. The plea of guilty to a lesser offense was without consent of
the fiscal and offended party, or either
When the defendant appeals, the case is opened again, and you may
get a higher penalty than the first one.
Is there a situation where the prosecution may ask for a review of
an acquittal?
o Yes, if the prosecution can show GADALEJ

CITIZENSHIP

Ex post facto laws and Bills of Attainder





o A law or statute that imposes a penalty without a trial.
Ex. A law is passed saying that all those who served the government
under the Japanese occupation are not qualified to run for office:
o This is a bill of attainder. It imposed the penalty of
disqualification without trial.
What is an ex-post facto law?
o Criminal law that is retroactive
o But if the criminal law is in favor of the accused, it is not an expost facto law
Examples of ex-post facto law:
o A substantive law that changes penalty to a higher one or a
procedural law that lessens defenses available to the accused
What are its characteristics?
o 1. Refers to criminal matters
o 2. Retroactive in application
o 3. Prejudices accused
If a law is passed transferring jurisdiction over one case from the
RTC to the Sandiganbayan, is it an ex post facto law?
o This is not ex-post facto because rights of the accused are not
changed.
What is a bill of attainder?


60
Who are the citizens of the Philippines?
o 1. Citizens upon adoption of the 1987 Constitution
o 2. Fathers or mothers are citizens of the Philippines
o 3. Born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching age of majority

To which constitution does this apply to?

1935 constitution, because under the 1973
constitution, those born of Filipino mothers
are already Filipino citizens

When must the mother be a Filipino citizen?

At the time of her marriage

N.B. so if a Filipina married an alien under
the 1935 constitution, her child can still elect
Filipino citizenship upon reaching age of
majority

N.B. because the Filipina becomes an alien
too upon marrying the alien spouse. In any
case, because of the “time of marriage rule,”
the child can still elect Filipino citizenship.

When must election be made?

Within reasonable period after reaching age
of majority
o 4. Naturalized according to law
What is the rule for an illegitimate child of a foreign mother
(Tecson a.k.a. FPJ case)?
o If the father is unknown, follow the mother’s citizenship
o If the father is known and is Filipino, he is a Filipino. Prove the
paternity.
What are the modes of acquiring citizenship?

1. Jus soli – according to place of birth

Not followed by Philippines
o 2. Jus sanguinis – according to blood relationship
o 3. Naturalization – adopting an alien and giving him citizenship

Either for original acquisition (CA 473)

Or reacquisition (CA 63)

What is the effect of naturalization?

1. The minor legitimate children become
Filipinos as well

2. The spouse, if not disqualified, becomes
naturalized too
Who are natural born citizens?
o 1. Citizens of the Philippines from birth who do not need to
perform any act to acquire Philippine citizenship
o 2. Those who elect Philippine citizenship under #3 above
o 3. Repatriated (see Cruz case below)
How is there loss of citizenship?
o 1. Naturalization in foreign country
o 2. Cancellation of certificate of naturalization
o 3. Serving in armed forces of enemy country
o 4. Being a deserter in the armed forces
o 5. Taking oath of allegiance to laws/constitution of foreign
country
o 6. Express renunciation of citizenship
o Is marriage with an alien a ground to lose Philippine
citizenship?

No, unless there is renunciation
How is citizenship reacquired?
o 1. Direct act of Congress
o 2. Naturalization
o 3. Repatriation
What is RA 9225’s policy on dual citizenship?
o (Since Aug. 29, 2003)
o 1. A Filipino who previously renounced Filipino citizenship can
reacquire it without renouncing the foreign citizenship

How?

Repatriation
o 2. A Filipino who acquires foreign citizenship after RA 9225
retains his Filipino citizenship
o





61
What is repatriation?
o Natural-born Filipinos who are deemed to have lost citizenship
may re-acquire it through repatriation proceedings

Do they regain Natural born citizenship?

Yes. (Cruz)
o What does it involve?

1. Oath of allegiance

2. Filing the oath with the civil registry

No need to file in court
o What is the nature of repatriation?

It is a privilege, and not a right. The State has
ultimate discretion.
o What is its difference with naturalization?

It’s speedier than naturalization, because the ones
who are entitled to repatriation used to be natural
born citizens.
o Who may be repatriated?

1. Women who lost citizenship by marriage

2. Natural born citizens and their minor children who
lost citizenship due to political or economic necessity
o Who may not be repatriated?

1. Those who oppose organized government or
belong to groups that oppose organized government

2. Those who support the necessity or associate for
propriety of violence, personal assault

3. Convicted of crimes involving moral turpitude

4. Suffering from mental alienation or incurable
contagious diseases
o What is “derivative citizenship”?

The unmarried child below 18 of those who
reacquired their citizenship by repatriation are
deemed citizens too
Distinguish dual citizenship from dual allegiance:
o Dual citizenship is concurrent application of laws of two or
more states, where a person is simultaneously considered a
citizen of both States
o Dual allegiance is where a person simultaneously owes, by
some positive act, loyalty to two or more States




What if a person possessing dual citizenship wants to run for
public office?
o They simply have to elect Philippine citizenship to terminate
dual citizenship status upon filing certificate of candidacy
What happens to the right to vote of those who retain or reacquire
Filipino citizenship?
o Must still comply with Overseas Absentee Voting Act
Does reacquisition of Philippine citizenship automatically translate
to reacquisition of domicile?
o No. You need to establish animus mandendi and non
revertendi

PUBLIC OFFICERS
Article XI of the Constitution





What is the nature of public office?
o Public office is not proprietary
Who are impeachable officers?
o 1. President
o 2. VP
o 3. Members of SC
o 4. Members of Constitutional Commissions
o 5. OMB
What are the grounds for impeachment?
o 1. Culpable violation of Constitution,
o 2. Treason
o 3. Bribery
o 4. Graft & Corruption
o 5. Other high crimes
o 6. Betrayal of public trust
Can the list of impeachable officers or impeachable offenses be
changed by Congress?
o No.
Can impeachment be stymied by condonation?
o No. It is beyond power of executive clemency.


62
What is the effect of impeachment?
o 1. Only removes from office
o 2. Disqualifies to hold any office
o 3. Not criminal
o What if the officer resigns?

He can still be impeached
o What about other public officers?

They may be removed through provision of law, but
not impeachment
Procedure for impeachment:
o 1. Filing of verified complaint

Only house can initiate

Started by member of congress or citizen with
endorsement by congressman
o 2. Submitted to committee

After the complaint is included in order of business
within 10 session days

It is referred to the committee within 3 session days
after the inclusion
o 3. Submitted to house: can reject or recommend

1/3 vote (if passed, these become the articles of
impeachment)

Vote is within 60 days from referral from committee

What if the committee rejects the impeachment?

The 1/3 vote can still pass the articles of
impeachment
o 4. Senate decides with 2/3 vote (16 seats)
How is impeachment deemed initiated and what is is the value of
knowing this?
o Impeachment initiated upon filing of complaint and referral to
committee
o Material, because an officer can only be impeached once a
year
What are the roles of the different officers?
o Senate has sole power to try and decide cases of
impeachment
o If the President is on trial, the CJ presides but does not vote
o The Supreme Court can determine if Congress committed
GADALEJ (ex. Recognizing two impeachment complaints)






o
What is the jurisdiction of the Sandiganbayan?
o Over offenses of public officers, done in connection with their
functions
o Private individuals may be tried if charged as co-principals,
accomplices, or accessories

Azarcon v. SB: So if a private individual is deemed a
custodian of public funds, he is still not a public officer
over which the SB can take jurisdiction over
o It is a statutory court; its existence is only confirmed by the
Constitution
o Can SC judges be prosecuted before the SB?

Yes
Who is the Tanodbayan? Who is the Special Prosecutor?
o OMB is the Tanodbayan.
o The Tanodbayan before became the Special Prosecutor
o SP may not exercise powers conferred to OMB under the
Constitution. Since power to investigate is given to the OMB,
the SP may only investigate and file cases when authorized by
the OMB
What is the jurisdiction of the OMB?
o Can investigate any illegal act of public officials, even if not
related to public functions
Qualifications of OMB and deputies:
o 1. NBC
o 2. At least 40 upon appointment
o 3. Of recognized probity and independence
o 4. Member of Phil. Bar

At least 10 years practice of law or judge in practice of
law
o 5. Not lame ducks
Composition?
o 1 OMB
o 1 over-all deputy
o 1 deputy each for Luzon, Visayas, Mindanao
o Can have 1 deputy for military establishment
Q: how long should the OMB appointee serve? The remaining term
of the predecessor or 7 years?
o Depends on the nature of the appointment. If it says that he
will just fill in the remaining years, then do so. Else, 7 years.




63
See the prohibition in running for elections immediately after
cessation office, mentioned below
Is there need for CONA appointment for the OMB?
o No. No need for CONA appointment
o Appointed by President from list of 3 nominees given by JBC
(first appointment: 6 people)
When must vacancies be filled?
o All vacancies filled within 3 months after they occur
What are the disqualifications?
o 1. Cannot hold any other office or employment
o 2. Cannot engage in practice of profession or active
management of business which may be affected by functions
of office
o 3. Cannot be financially interested in contracts, franchises, or
privileges granted by government, GOCCs, or subdivisions
o 4. Cannot run for elective office in the election succeeding
cessation from office
What are the functions of the OMB?
o 1. Investigate

On whose initiative?

On its own or on complaint in any form

It may be delegated

What penalties can it impose?

A. OMB can suspend local officials

B. Can dismiss only local officials but not
elective officials (only the court can do this)

C. Can impose administrative penalties on
public officers and employees (except
impeachable officers + members of
Congress)

Can the OMB deputize public prosecutors to
investigate or prosecute?

Yes.

Which GOCC officers can the OMB investigate?

Only GOCCs with original charter

Ex. PAL, while owned by government, has
no special charter

Can OMB investigate public school teachers?



Non-administrative cases  Rule 65 to SC
Administrative cases  Rule 43 to CA
Does appeal stop the execution of the decision being
challenged?

No, or it would render the punishment toothless
When can the government recover ill-gotten wealth?
o Recovery of ill-gotten wealth does not prescribe
o But the crime can prescribe
What are prohibited financial transactions?
o Cannot obtain for business purposes:

Loans

Guarantees

Other financial accommodations
o What if the loan is for personal purposes, and not
business?

Valid.

Ex. Housing loan
o Who are covered by the prohibition?

1. P, VP

2. Members of Cabinet

3. Members of Congress

4. Members of SC

5. Members of CCs

6. Other Constitutional Offices

8. Officers of AFP with general or flag rank
When is a public officer required to submit a declaration under
oath of assets, liabilities, and net worth –
o Upon assumption of office
o And as often as required by law
o What is the character of the SALN?

It is sworn

And made accessible to public
o
o
o
Yes. The Magna Carta, which confers
jurisdiction to the DECS was enacted 1966,
which was modified by both the Constitution
and the OMB Act.
o 2. Direct any public officer or employee to perform any act
required by law or stop, prevent, and correct any impropriety
o 3. Direct officer to take appropriate action against
employee/official at fault, and recommend removal,
suspension, demotion, fine, censure, or prosecution

Can the OMB use mandamus to compel a fiscal to
prosecute?

Yes

What is the nature of the “recommendation”?

It’s actually mandatory, not just
recommendatory
o 4. Direct officer concerned to furnish it with documents relating
to contracts and transactions involving use of public funds and
report irregularities to COA
o 5. Request any government agency for assistance and
information necessary to discharge duties
o 6. Publicize matters covered by investigation if circumstances
so warrant, and with due process
o 7. Determine cause of mismanagement, red tape, inefficiency,
fraud and corruption and make recommendations for
elimination and observance of ethics/efficiency
o 8. Promulgate rules of procedure and exercise other functions
or duties provided by law

Can Congress add to duties of OMB?

Yes

Who determines the qualifications, etc. of other
officials and employees apart from the OMB
deputies – the OMB or CS?

OMB, because the OMB must be an
independent office. The CSC has no power
to do so.
Does it enjoy fiscal autonomy?
o Yes. The appropriations must be automatically and regularly
released.
What are the judicial review remedies?



General Principles

64
What are the elements of public office?
o 1. Created by law or by authority of law
o 2. Possess a delegation of portion of sovereign powers of
government, for benefit of the public
o


3. Powers conferred and duties imposed defined by
Constitution, legislature, or by its authority
o 4. Duties performed independently and only controlled by law

Unless placed under general control of superior office
or body
o 5. Permanent or continuous
How are public offices created?
o 1. Constitution
o 2. Law (statutory enactments)
o 3. By authority of law
Distinguish from a clerk or employee:
o Officers’ duties involve exercise of discretion
o When used in reference to a person having authority to do an
act or perform a particular function, the officer is the one who
has authority to do the act or exercise
o What is the most important distinction?

Officer is delegated some sovereign function of
government, to be exercised for the public’s benefit
Modes of Acquiring Title to Public Office/Appointments



How are official relations commenced?
o 1. Appointment
o 2. Election
What is the difference between appointment, commission, and
designation?
o 1. Appointment is selection, by authority vested with the power,
of an individual who is to perform the functions of a given office
o 2. Commission is the written evidence of appointment
o 3. Designation is the imposition of additional duties of a person
already in public service, usually through law
What are the kinds of appointments?
o 1. Permanent

To a person who meets all the requirements

Enjoys security of tenure
o 2. Temporary/Acting appointments

Issued in the absence of eligible candidates, when in
the necessity of public interest, the position must be


65
filled by someone who meets all the requirements
save for the CS eligibility

No security of tenure

What are the implications of temporary
appointments?

No definite tenure and is dependent on the
pleasure of the appointing authority

Cannot exceed 12 months

Can be replaced sooner if there is an eligible
replacement

If the temporary appointee gains eligibility,
there is no automatic conversion; he needs a
new appointment

What if the position appointed to is a career civil
service position?

Still a temporary appointment if not qualified

Does designation confer security of tenure?

No. The person only occupies the position in
an acting capacity.
o 3. Provisional

Not qualified in an appropriate examination but
otherwise meets the requirements for appointment to
a regular position in competitive service

Whenever there is vacancy and filling of position is
needed for public interest

And there are no eligible candidates at the time
X was appointed to a higher position, but did not possess the
requisites needed. What is the nature of the appointment?
o Temporary.
o Is X deemed ipso facto resigned from his old position?

Yes.
o If X is terminated from his temporary appointment, can he
demand reinstatement to his old position?

No. There is no cause to demand reinstatement.
X is appointed to a position, and the appointment says “unless
terminated sooner.” What is the nature of the appointment?
o It is coterminous with the project and thus the employee serves
at the pleasure of the appointing authority.


X is given a temporary appointment with a fixed period. How can X
be terminated?
o For any cause, upon expiration of the period
o For just cause, before expiration of the period
o X is given temporary appointment with a fixed period but it
also says “unless terminated sooner.” Can X be
terminated at will?

No. If before the end of the period, it must be with
just cause.
Differentiate regular appointment from ad-interim appointment:
o N.B. this distinction applies to positions confirmable by the
CONA
Regular
Made by the President when
Congress is in session
Confirmed by the CONA
Continues until end of the term

Ad-interim
Made by the President when
Congress is not in session, with no
CONA confirmation yet
Immediately effective
Still a permanent appointment

Valid, until:
1. Disapproved by CONA, or
2. Bypassed by CONA until next
adjournment of Congress
Steps for appointment:
Regular
Ad-interim
Nomination
Confirmation by CONA
Appointment
Issuance of
commission
Acceptance by
appointee
Confirmation by the
CONA
Issuance of
commission
Acceptance by
appointee

No confirmation
needed
Appointment
Issuance of
commission
Acceptance by
appointee
N.B. the President may
revoke the appointment
prior to CONA
confirmation
66
When is attestation of the CSC regularly required?
o N.B. confirmation by the CSC is called “attestation”
o When the appointment is to career service position.
Attestation leads to security of tenure.
o When must the appointment be submitted to the CSC for
attestation?

Within 30 days of appointment
o What is the effect of lack of certification of the CSC?

There is no permanent appointment yet, and thus it
can be revoked/withdrawn
o What is the CSC tasked to do here?

Just check if the appointee possesses the needed
qualifications
o What is the implication when the appointment is not yet
complete because not all the acts required have been
performed?

No security of tenure vests yet.
What if the position to which the appointment is being made is not
vacant?
o The appointment is invalid.
o This contemplates situations, for instance, where the original
holder of the position is being transferred without his consent,
and thus the position is not yet empty when the replacement is
being appointed.
Who has ultimate discretion in who will be appointed?
o The appointing authority.
o What is the CSC role?

The CSC is just there to determine minimum
qualifications, but cannot substitute judgment for the
appointing authority.
o Can the appointing authority disregard the next-in-rank
rule?

Yes. It is not bound by such, although this is
generally considered.
o Is the President bound by the recommendations for
appointment by his cabinet secretaries, or can he appoint
someone else?


Can appoint someone else. The appointing authority
has ultimate discretion.
o Does discretion include type of appointment (permanent
or temporary)?

Yes.

Can the CSC convert a temporary appointment
into a permanent one?

No.

Can the CSC convert a permanent appointment
into a temporary one?

Yes, if the appointee does not possess the
needed qualifications.
What is the scope of judicial review of appointments?
o Only political questions, and cannot go into discretion.
o Who can file a case for usurpation of office?

Only one who claims valid title to office

Eligibility and qualification requirements



Differentiate:
o Eligibility – state of being legally fit to be chosen
o Qualification – acts which a person is required to do before
entering upon position (ex. Taking oath, giving bond, etc.)
o Who gives bonds?

1. Accountable public officers or those entrusted with
collection and custody of public money

2. Ministerial officers whose acts may affect rights and
interest of individuals
What are the two meanings of “qualification”?
o 1. Endowments, qualities, or attributes that make an individual
eligible for public office
o 2. Act of entering into performance of public office
When must an individual possess the qualifications for public
office (understood in first sense)?
o During appointment or election and continuously as long as the
official relationship continues
o The LGC does not mention when the candidate must
possess Filipino citizenship. X was elected to a public
position requiring Filipino citizenship. When he ran, he


67
was still an alien. But when he took his oath, he was
already naturalized. Was X qualified?

Yes, because an official only begins to govern upon
proclamation and on the day his term begins.

The LGC after all speaks of qualifications of elected
officials, not candidates.
o Are property qualifications for public office allowed?

No.
o What happens when a person loses these qualifications
during incumbency?

Loss of office.
Understanding qualification in the second sense, what acts or
failures can affect the officer’s title?
o 1. Prolonged failure or refusal to take oath of office could result
to forfeiture of office

BP 881: Failure to take oath within 6 months of
proclamation – leads to vacancy in office, unless
failure is for a cause beyond his control
o 2. Until the officer has taken his oath, he has no right to enter
into the position

What is the effect of taking an oath before a
person without authority to administer it?

No effect

What happens as long as the proclaimed winner
has not taken his oath yet?

The incumbent is still a hold-over.

X was proclaimed and duly sworn into office. Y
filed an election protest. Can X assume office?

Yes.
Can Congress add to qualifications of officials?
o If Constitutional office, no.
o If statutorily created, yes, as long as:

Germane to the office

Not too specific as to fit a particular, identifiable
person, depriving the appointing authority of
discretion
Can Congress provide for disqualifications?
o Same rule as above – distinguish between Constitutional and
statutory offices.

o


The disqualifications, however, must not violate the
Constitution
What are the general DQs under the Constitution?
o 1. Lame duck bar
o 2. No elective official is eligible for appointment or designation
to any public office or position
o 3. No appointive official can hold any other position in
government UNLESS allowed by law or primary functions of
his position
o Can an appointive official hold an ex officio position
without violating this provision?

Yes. An ex officio position is actually not any other
position but is a part of the principal office. Thus he
cannot be paid additional for the ex officio position,
because it is compensated for in the main position.
What are the specific DQs under the Constitution?
o 1. P, VP, cabinet, deputies and assistants cannot hold any
other office or employment during tenure

Unless provided in the Constitution

An EO provided that Cabinet secretaries can hold
two other offices. Valid?

No.

An EO provided that Cabinet secretaries hold
other positions in an ex officio capacity. Valid?

Yes.
o 2. Congress: may not hold any other office or employment in
government, subdivision, agency, or instrumentality, including
GOCCs without forfeiting his seat

When is the prohibition absolute?

Appointed to an office which was created
during his term, or which emoluments have
been increased during his term
o 3. Members of SC and other courts cannot be designated to
any agency performing QJA or administrative functions
o 4. Member of Con-Com, OMB, deputies –

Cannot hold any other office or employment

Term is 7 years, without reappointment
o 5. OMB and deputies –


68
Cannot run for office in the election immediately
succeeding cessation of office

Cannot be candidates for elective position in the
elections immediately preceding appointment
o 6. Spouse and relatives by consanguinity or affinity within 4th
civil degree of the President, during his tenure, cannot
appointed as:

Members of Constitutional Commission

OMB

Cabinet (sec, u-sec, head, chairmen)

GOCC
o Compare this with the nepotism provision in the Civil
Service Law:

It’s just 3rd degree of consanguinity or affinity

Covers appointment of relatives of the appointing
authority, the chief or head of the bureau, or persons
exercising immediate supervision over him

Covers all branches, GOCCs, LGUs, etc.
o What if they marry each other after being appointed?

This is fine. Not covered by the nepotism provision.
o Who are exempted from the rules on nepotism?

1. Persons employed in confidential capacity

2. Teachers

3. Physicians

4. Members of AFP
o Does this rule cover subsequent political actions (such as
promotion, etc.)?

Yes, otherwise, the rule can be circumvented
What is the rule on divestment?
o Any person who has conflict of interest must resign from
position in private business within 30 days or divest of all
shareholdings of interest within 60 days
Distinguish the spoils system from the lame duck bar:
o Spoils system –

No elective official can be appointed or designated
during his tenure

Exceptions:

1. VP can become cabinet member

2. Congress may be member of JBC


o
3. Elected official must first resign from office
o But for Congressmen, cannot be
appointed to an office created
during his term
Political lame duck –

Candidates who ran in the prior elections cannot be,
within 1 year of elections:

Appointed to government office

Or GOCCs/subsidiaries

Member of CSC

Exception  losing candidates in barangay elections

Powers and duties of public officers




What powers does the authority of public officers comprise?
o 1. Expressly conferred by act appointing him
o 2. Expressly annexed to the office by law
o 3. Powers under doctrine of necessary implication
When does an officer have authority to exercise powers?
o Only when he is holding that office
o N.B. there are cases where judges have resigned but still
promulgated decisions. These decisions are invalid.
Differentiate ministerial from discretionary powers:
o Ministerial powers are those whose discharge requires neither
judgment nor discretion
o Discretionary powers are those whose discharge involves
judgment by the officer as to how and when the duty shall be
performed
o For which power does mandamus apply?

Only to ministerial powers
o What is the exception laid down in Lopez v. OMB?

Where there is GADALEJ, equivalent to a denial of a
settled right to which the petitioner is entitled, and
there is no other plain, speedy, or adequate remedy,
writ of mandamus will issue
o In general, for discretionary acts, what is the extent to
which mandamus, if ever, would apply?

Only to compel the exercise of discretion, but not the
discretion itself.
What are the general duties of public officers?
o 1. To be accountable to the people, to serve them with utmost
responsibility, integrity, loyalty, and efficiency; to act with
patriotism and justice; and to lead modest lives
o 2. Submit a declaration under oath of assets, liabilities, and net
worth upon assumption of officer and thereafter as may be
required
o 3. Owe the State and Constitution allegiance at all times
What is the nature of the Sol-General’s duty to represent the
government?
o It’s mandatory. While he can exercise discretion w/n to
prosecute a case or withdraw, it must be exercised pursuant to
the best interest of the State.
Is the government estopped from questioning the acts of its
officials?
o No.
Prohibitions against officials:

69
1. Partisan political activity
o What is the extent allowed?

To exercise right to vote

Cannot use authority or influence to coerce political
activity
o Does this prohibition cover expression of views on current
affairs or mentioning the names of candidates they
support?

No. This is allowed.
o Who are covered?

Officers or employees in the civil service

Who are not covered?

Those holding political offices
o Ex. cabinet members

Active members of the armed forces, not
those in the reserve force
o What is prohibited for these exempted officials?

Cannot solicit contributions from subordinates or
subject them to any act that would violate this
prohibition
o





o
Distinguish from the prohibition in BP 881?

Under BP 881, it is unlawful for any person or political
party to engage in election campaign or partisan
political activity except during campaign period.
2. Additional or double compensation
o What is the prohibition?

1. Cannot receive additional, double, or indirect
compensation unless authorized by law

2. Cannot accept present, emolument, office, or title
from a foreign government without the consent of the
Congress
o Are pensions and gratuities covered by this?

No.

Can a person receiving pension for a government
position subsequently take a different
government position?

Yes. But he cannot credit the years of
service in the first position because this is
adequately covered by the pension.
3. Loans
o See above discussion (under Constitutional provisions, where
loans for business purpose are disallowed)
4. Laborers
o Cannot be assigned to perform clerical duties
5. Detail or reassignment
o When is detail or reassignment prohibited?

Within 3 months before any election
o What is the exception?

If approved by COMELEC
6. Nepotism
o See above discussion in disqualifications (the 3rd degree rule,
as opposed to the 4th degree rule for the President)



What are examples of this?

Reputation or acquiescence: the public, without
inquiry, relies on the supposition that he is the public
officer he purports to be

Failure to conform to requirement imposed by law,
although there is a known and valid election or
appointment

If unknown to the public that: the office is not eligible,
there is want of authority in electing or appointing
authority, irregularity in appointment or election

Under a known appointment or election under an
unconstitutional law before it was declared as
unconstitutional
What is the effect of his acts?
o They are valid, binding, and have full legal effect
o This is intended to protect the public and individuals who get
involved in the apparently official acts of the de facto officer
Can the rightful incumbent recover from the de facto officer the
salaries received?
o As a general rule, yes he may, even if the de facto officer took
the office in GF and under color of title.
o What if there is no de jure public officer?

Then the de facto officer acting in GF who has
discharged duties of the office is legally entitled to
emoluments for actual services rendered.

Can he file appropriate action to recover salary,
fees, and other compensations?

Yes.
o N.B. this is the latest ruling + exception based on Gen.
Manager v. Monserate G.R. 129616
What is the remedy?
o Quo warranto, by the Solicitor General in the name of the RP
or a person claiming title to the office
De Facto Officers
Liability of Public Officers

What are the elements of a de facto officer?
o 1. Validly existing public office
o 2. Actual physical possession of said office
o 3. Color of title to the office.

70
What is the general rule on liability?
o A public officer is not liable for injuries sustained by another
due to official acts done within the scope of his authority

o





What are the exceptions?

1. Bad faith

2. Malice

3. Negligence

4. Death or injury to persons or damage to property
What are the liabilities of public officers under statute?
o 1. Art 27, NCC: injury caused by failure without just cause to
perform official duty
o 2. Art 32, NCC: violation of constitutional rights of individuals
o 3. Art 34, NCC: peace officers who fail to respond to persons in
danger of injury to life or property
o 4. Sec 38(2), Ch. 9, Book 1, Admin Code: public officer who
without just cause neglects to perform a duty within a period
fixed or within reasonable period – liable for damages
What is the liability under contracts?
o Public officer only personally liable for contracts entered into
without or in excess of authority
What are their liabilities under tort?
o Only if he exceeds scope of authority or powers conferred by
law (ultra vires)
o What if during execution of judgment X is no longer a
public officer?

Still personally liable
o When would a public officer act ultra vires but not be
liable?

If there is no malice or if the acts are presumptively
valid and enforced as such by the officer
When is the President immune from suit?
o Only during his tenure – this is absolute
o Can he invoke immunity after his tenure?

No, he cannot invoke immunity for damages arising
from ultra vires acts done by him while holding the
Presidency.
o Can the President institute a lawsuit?

Yes (Soliven v. Makasiar)
What is the 3-fold liability rule?
o The wrongful acts or omissions of a public officer may give rise
to criminal, civil, and administrative liability
o Dismissal of one type of action does not extinguish the others.

What are the types of liability of ministerial officers?
o 1. Nonfeasance

Neglect or refusal to perform act which is his legal
duty to perform
o 2. Misfeasance

Failure to use degree of care, skill, or diligence
required
o 3. Malfeasance

With ignorance, inattention, or malice
When can a head be responsible for the wrongful acts or
omissions of his subordinates?
o He should have actually authorized by written order the act or
misconduct
Rights of Public Officers


71
1. Right to Office
o Just and legal claim to exercise powers and responsibilities of
public office
2. Right to wages
o Basis for this right?

1. Legal title to the office, and

2. the law attaches compensation to the office
o X was appointed to office by one without authority to do
so. Can he claim salaries?

No. No legal title, no compensation.
o What is the right of a de facto officer to salary?

If he in good faith had possession of the office and
discharged duties thereof.

See notes on de facto officers when there can be and
can be no salary
o Can a public officer’s salary be garnished or unearned
salaries assigned?

No, this is contrary to public policy.
o There was reorganization and X’s position was abolished.
X requested retention and was appointed to a lower
position. Can X claim salaries of the higher office?

No. X is in estoppel.
o
o
o
o
o
o

What if compensation, allowances, and benefits of an
officer are not approved by the Dept. of Budget and
Management?

These are void. DBM approval is needed.
Can the COA withhold an officer’s salary to the extent of
alleged shortage?

Yes. But the withheld amount cannot be applied to
liabilities that are still being litigated.
What are the Constitutional provisions re: salaries?

1. No increase in salaries of members of Congress
take effect until expiration of full term of members who
approved the increase

2. Salaries of P and VP may not be decreased during
their tenure. No increase takes effect until full term is
served.

3. Salaries of judiciary members cannot be decreased
during service.

4. Additional, double, indirect compensation
prohibited unless authorized by law

5. Salaries are standardized

Recall the Central Bank Employees case
(relative constitutionality and EPC)
LWUA officials and employees were given rice subsidy. Is
this a violation of RA 6758 (Salary Standardization law)?

No, because it was shown that: a) these benefits
existed before effectivity of RA 6758, and grant is
limited to incumbents by a certain period (as to not
result in diminution of pay)
When is separation pay given?

If reason for separation is not for cause but for
reorganization.
What are the types of preventive suspension?

1. Preventive suspension pending investigation under
the Admin Code

2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal, and after review, respondent
is exonerated




72
Is there right to salary for period of preventive
suspension?

As a rule, no, even if he is exonerated.

When is there payment of salary?

The employee is exonerated AND the
suspension was unjustified.

For the second situation, what is the remedy if the
employee is exonerated?

1. Reinstatement

2. AND back salaries for period of
suspension pending appeal
o Is an illegally dismissed employee entitled to back
salaries?

Yes.

When is there no entitlement to back salaries?

When the exoneration is not due to finding of
illegal dismissal but an act of liberality of the
Court.
3. Right to preference in promotion
o N.B. this however does not prevail over discretion of the
appointing authority
4. Right to vacation and sick leave
o Do elective officials enjoy vacation and sick leave?

Initially the SC held that they do not, because they do
not have official hours of work. But under the LGC
(RA 7160), elective officials are entitled to the same
leave privileges as those enjoyed by appointive
officials.
o Can an official be declared absent on Saturdays, Sundays,
or holidays?

No, they are not required by law to work then. Thus,
they cannot be deprived of salary accruing on these
days even if they did not report to work on the day
prior to or after these days. Otherwise, there would
be unjust deprivation of property without due process
of law.
5. Right to maternity leave
6. Right to retirement pay

o

What is the general principle?

Retirement laws are construed liberally in favor of the
retiree.
o Is the period of work where an officer is paid on a per diem
basis, and not on fixed salary, creditable for purposes of
retirement?

Yes.
o X worked at a certain position in public office. When the
secretary of finance was indisposed, X was appointed as
acting secretary of finance, and thereafter was returned to
his original position. X retired. What is the basis of the
money value of his terminal leave computed on? His
regular position of his higher, albeit temporary position?

The terminal leave pay is calculated based on the
highest monthly salary received by an official. Thus, it
must be based on his salary as acting secretary.
o CSC MC No. 27 only allows extension of up to 1 year of
service to complete the required 15-year service period for
retirement purposes. However, PD 1146 allows extension
to complete the 15-year requirement. Which wins out?

Initially, the SC held that PD 1146 should prevail. But
then it considered the general principle why
compulsory retirement at 65 is imposed. So CSC Mc.
No. 27 prevails, although officials in their discretion
may still allow an extension over 1 year to meet the
required 15 year service period.

What is the rule in the judiciary?

Extension is allowed if the court is satisfied
that the career of the retiree is marked by
competence, integrity, and dedication to
public service.
o When is totalization of service credits allowed (that is, to
tack service term in one position onto another completely
different position – ex. DOH service and GOCC service)?

ONLY when the retiree does not qualify for benefits in
either or both of the systems.
7. Other rights
o Right to reimbursement for expenses incurred in due
performance of duty
o
o
Does this include transportation allowance for
those using government vehicles?

No.
Right to be indemnified against liabilities they may incur in
bona fide discharge of duties
Right to longetivity pay
Termination of Official Relationship

73
1. Expiration of term or tenure
o When a public officer holding office at the pleasure of the
appointing authority gets replaced, what is the legal
effect?

Expiration of term, not removal
o Can the Congress call for delayed elections?

No, this effectively reduces the term of the new
officials, lower than what the Constitution requires
o When does a term begin?

If a statute fixes the period by which the officer may
arrange his affairs and qualify for the office – his term
begins upon qualification

Where no time is fixed by law – upon appointment or
election

Where the law fixing the term is ambiguous – the one
that fixes the term at a shorter period prevails

Where the duration of the term and commencement
and termination are fixed by constitutional or statutory
provisions (ex. staggered) – term is only the
unexpired portion of such

Where only the duration is fixed – then the term will
be served in full, and not the balance

When an office is created or an officer is appointed for
the performance of a particular act – term expired
upon accomplishment of such
o What is the hold-over principle?

In the absence of an express prohibition, the public
officer is entitled to hold office until a successor is
qualified, to prevent hiatus in public service

What is the status of the officer?

Still de jure
What if the law fixes a specific date for the end of
the term?

No hold-over is allowed
2. Reaching the Age Limit
o What is the compulsory retirement age?

70 for members of the judiciary

65 for other government officers and employees
(GSIS charter)

If there is a special retirement law fixing optional
retirement upon reaching a certain number of
years of service, and the officer avails of this,
what is the legal effect?

Tantamount to termination by reaching the
age limit
o See above discussion on the principles of retirement and what
happens when there is a conflict between statutes and
circulars providing for minimum years of service (“right to
retirement pay”)
3. Resignation
o What is this?

Act of giving up the office and renunciation of further
right to it

And the acceptance of the competent and lawful
authority
o What is the first essential element of resignation?

Voluntariness. If it is not voluntary; i.e. procured by
fraud or duress, the resignation may be repudiated.

What about a courtesy resignation?

It lacks element of voluntariness and is not
valid, therefore

But in Collantes v. CA the courtesy
resignation was treated just like any other
resignation, and any promise thereafter of
another position was rendered ineffectual,
because public office is a public trust – it is
not subject to personal promises

What is the legal justification behind the Estrada
removal?




o
o
Resignation, because in his final press
release he acknowledged GMA’s
presidency, that he left the palace for the
sake of healing, that he was thankful for the
opportunity to serve, and called his
supporters to join him in promotion of
national reconciliation
What is the second essential element of resignation?

Acceptance by the competent authority, expressly or
impliedly

What is the relevant RPC provision?

An officer who abandons his position prior to
acceptance of the resignation is criminally
liable

What if the officer is mandated by law to holdover?

The resignation is only effective upon
appointment or election of a successor
Who are authorized to accept resignations?
Rank
President and Vice President
Member of congress
Governor and Vice Governor; Mayor
and Vice Mayor of HUC or ICC
Mayor and Vice Mayor of
municipality or CC
Sanggunian member
Barangay officials
o
o
74
Who accepts resignation
Congress
Respective house
President
Governor
Sanggunian concerned
City or municipal mayor
When is a resignation deemed accepted?

When not acted upon within 15 working days from
receipt thereof
What if the law is silent as to who should accept the
resignation?

If the public officer is appointive, then to the
appointing authority

If elective, then to the officers authorized by law to call
an election order to fill the vacancy
o


What is the effective date of resignation?

The date specified in the tender

What if no date is specified?

Date when the public officer receives the
notice of acceptance of his resignation
4. Recall
o What is this?

Termination of an elective official for loss of
confidence prior to expiration of his term, through the
will of the electorate
o Who exercises recall?

Registered voters of a LGU to which the official
belongs to
o Who can initiate recall?

Registered voters of the LGU

Can the Preparatory Recall Assembly initiate
recall?

Not anymore. The LGC allowed it, but it was
amended by RA 9244
o How is it initiated?

Petition by at least 25% of the registered voters in the
LGU – based on the election under which the official
was elected (if not more than 20K voters; 20% if 20K75K; 15% if 75k-300k [but never less than 15k]; 10%
if 300k+ [but never less than 45k])

What is the requirement for the petition?

1. Signed before the election registrar (or his
representative)

2. In the presence of the representative of
the petitioner and representative of the
official sought to be recalled

3. Signed in a public place in the LGU

4. Filed with the COMELEC through its LGU
office

What is the notice requirement?

Posting in a public and conspicuous place
for 10-20 days, to verify authenticity of
petition and signatures

What happens after?

75
The COMELEC announces acceptance of
candidates to the position, and it shall
include the officer sought to be recalled
o When is recall held?

COMELEC representative shall set the date which is
not later than 30 days after filing of resolution/petition
for barangay, city, or municipal officers

Not later than 45 days for provincial officials
o Can the local official resign during recall process?

No.
o What are the limitations on recall?

1. An elective local official may be subject of a recall
only once during his term of office

2. No recall shall take place within 1 year from date of
official’s assumption to office, or 1 year immediately
preceding a local election

What does “regular local election” mean?

An election where the position of the officer
shall actually be contested, not just any other
election (ex. as to a mayor, the barangay
elections is not a bar)
5. Removal
o What are the grounds for removal or disciplinary action
under the CSL?

1. Discourtesy in course of official duties

2. Refusal to perform official duty or render OT
service

3. Falsification of official documents

4. Habitual drunkenness

5. Inefficiency and incompetence in performance of
official duties

6. Wilful refusal to pay just debts or taxes due

7. Oppression or Grave Misconduct

What is grave offense?
o Conduct prejudicial to the best
interests of the service

When is there dismissal?
o It is a penalty for a second offense

8. Dishonesty

o
o
o
What is dishonesty?
o Concealment or distortion of truth in
a matter of fact relevant to one’s
office or connected to the
performance of one’s duty
o Ex, using spurious Civil Service
Eligibility

9. Misconduct

What is misconduct?
o Unlawful behavior and gross
negligence
o Not a mere error in judgment, but a
wrongful intention
o Ex. Concealment in Personal Data
Sheet of information such as prior
conviction

10. Disgraceful and immoral conduct

11. Neglect of duty

12. Physical or mental incapacity due to immoral or
vicious habits

13. Conviction of crime of moral turpitude

14. Notoriously undesirable

15. Gambling
What is the general principle for removal?

It can only be for just cause and following procedure

What if there is removal not for just cause or noncompliance with procedure?

The official is deemed to have never been
removed

What is he entitled to?
o 1. Reinstatement
o 2. Back salaries
o 3. Non-loss of seniority
What is the legal effect of demotion without cause?

It is invalid too, tantamount to removal without just
cause

What about unconsented transfer resulting in
demotion in rank or salary?

Same.
o
o
o
o
o
76
X is a public school teacher for Grade 6, and was
transferred to Grade 4. Is there violation of security of
tenure?

No. The choice of grade, subject area, level, school,
or district is a question of pure policy and in the
absence of arbitrariness, is best left to the
administrators.
What are the two grounds in the Admin Code of 1987 to
remove an officer or employee from service?

1. Unsatisfactory conduct

Ex. Inefficiency, incompetence in official
duties (poor performance)

2. Want of capacity
X filed an affidavit of complaint against Y, a public official.
Investigation ensued. The X filed an affidavit of
desistance. Is the case dismissed?

No. The investigation is impressed with public
interest and is not a purely private matter.
What is the standard of proof in disciplinary cases?

Substantial proof, not clear and convincing evidence,
and not proof beyond reasonable doubt.
Who has original jurisdiction in disciplinary cases?

Head of the ministry/agency/instrumentality, province,
city, or municipality

When is the decision final?

If the penalty is suspension of not more than
30 days or fine not exceeding 1 month salary

When is it appealable?

For other cases, where it can be appealed to
the department head, and then to the CSC
Who has appellate jurisdiction?

The Civil Service Commission

Is the penalty executory during appeal?

Yes.

Exception?

For removal. It needs prior confirmation by
the Department head.

Does the CSC only exercise appellate
jurisdiction?

o
o
o
o
o
o
o
Yes, because removal from office is within the court’s
power (ex. in RA 3019), then preventive suspension is
necessarily included in its powers.
Is the public officer entitled to backwages during
preventive suspension (type 1)?

NO.

What is the exception?

Not just that the public officer was
exonerated, but that the preventive
suspension was not justified.
What about preventive suspension pending appeal (type
2)?

There can be back salaries if eventually found
innocent, and thereby reinstated.

The maximum amount is 5 years pay
What is the time period to file an appeal (or prior to that, a
petition for reconsideration)?

15 days
What are the grounds for a petition for reconsideration?

1. Newly discovered evidence

2. Decision not supported by evidence

3. Errors of law or irregularities
How are CSC decisions appealed?

Within 15 days, to the Court of Appeals, under Rule
43

Within 15 days, Rule 45 Certiorari to the SC
Can the CSC or the agency/ministry/instrumentality appeal
a decision exonerating a public officer to the CA?

YES. Before the rule was no, but this was overturned
by CSC v. Dacoycoy.
Is summary dismissal (Sec. 40 of CSL) for cases where the
guilt is strong, recidivism, or notorious undesirability still
in effect?

No. It was repealed by RA No. 6654.
Can the president remove administrative penalties or
disabilities?

Yes, of course, subject to terms and conditions he
may impose hinged on the commutation or removal of
penalties.

No. While it usually does, the case can be
filed directly with the CSC and the latter may
decide the case or deputize a
department/agency to hear it.
What is the special rule on discipline cases for public
school teachers?

There must be a representative of the teachers’
organization in the committee. The Dep. Ed. cannot
be the one to appoint, because it must be a
representative acting in behalf of the teacher.
What are the types of preventive suspension?

1. Preventive suspension pending investigation under
the Admin Code

2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal, and after review, respondent
is exonerated
What are the grounds for preventive suspension?

1. Dishonesty

2. Oppression or grave misconduct

3. Neglect in performance of duty

4. Reasons to believe that the respondent of charges
which would warrant removal from service
What is the nature of preventive suspension?

It is not a penalty per se; it is a measure intended to
enable the disciplining authority to investigate charges
against the respondent, and prevent him from
jeopardizing the investigation (ex. intimidation, etc).

Thus, there can be preventive suspension even
without hearing.
When is the preventive suspension lifted?

1. Lapse of 90 days without decision

2. Respondent is found innocent of charges
Can the OMB preventively suspend?

Yes, the OMB possesses concurrent authority to
preventively suspend.

The period is a maximum of 6 months.
Can the RTC preventively suspend?
o
o
o
o
o
o
o
o
77




NOTE: if the pardon was based on the ground that
the person did not really commit the offense, he is
entitled to his office ipso facto and back wages.
6. Abandonment
o What is abandonment?

Voluntary relinquishment of office with intent to
terminate possession and control thereof
o Distinguish from resignation:

Resignation is formal relinquishment

Abandonment is relinquishment through non-user
o What is the most important element?

Intent to abandon. So if he leaves due to incapacity,
or through compliance with an order, there is no
abandonment.
o Is delay in qualifying for office abandonment?

No. But see BP 881 where failure to qualify within 6
months in an elective office renders it vacant.
o When is an officer or employee automatically deemed to
have abandoned his office?

Failure to return to service after 1 year LOA without
pay

What does the CSL Omnibus Rules provide?

Absence for at least 30 days without
approved leave is considered AWOL and is
ground to drop the officer from service, after
due notice
7. Acceptance of incompatible office
o What is the test of incompatibility of offices?

When by nature and relation of the two offices, there
is contrariety in the attempt by one person to faithfully
and impartially discharge the duties of one, toward the
incumbent of the other.
o Distinguish from forbidden office:

This is expressly prohibited by Constitution or law.
o What is the effect of accepting incompatible office?

It ipso facto vacates the other.
o What is the exception?

When the officer is authorized by law to accept the
other office. Ex. SOJ is also a member of the JBC.





78
8. Abolition of office
o Who has the power to abolish an office?

In general, the Congress.

What are the exceptions?

1. Constitutional offices cannot be abolished
by Congress

2. No law shall be passed reorganizing the
judiciary when it undermines the security of
tenure of its members
o Valid abolition of office does not constitute removal.
o What are the requisites of a valid abolition of office?

1. In good faith

2. With clear intent to do away with the office

3. Not for personal or political reasons

4. Must be implemented in manner consistent with
law
o What is the nature of the President’s power to reorganize
government offices?

He has continuing authority to reorganize the national
government, including the power to group,
consolidate, abolish, transfer, and create offices.
9. Prescription of the right to office
o What is the prescriptive period to ask for reinstatement?

Within 1 year of ouster or dismissal

Raison d’etre?

To not subject public office to continued
uncertainty

Does an administrative proceeding or MR
suspend this period?

No. Must file quo warranto within this period.
10. Impeachment
o See Constitutional Law I discussion
11. Death
12. Failure to assume office
o N.B. this is the 6 month rule stated above: failure to qualify and
take oath within 6 months of proclamation
13. Conviction of crime
o When does conviction terminate public office?


o
o
When one of the accessory penalties is
disqualification
What is the nature of a plenary pardon?

It extinguishes the accessory penalty of
disqualification BUT in order to restore public office,
there must be another appointment.
Is filing a COC a ground to deem an officer ipso facto
resigned from office?

If elective official, not resigned. If appointive,
resigned. (Quinto v. COMELEC, overturning
Farinas)
The CSC and personnel actions




What cases are within the exclusive jurisdiction of the CSC?
o 1. Disciplinary cases
o 2. Personnel action affecting CS employees

Ex. appointment through certification, promotion,
transfer, reinstatement, reemployment, detail,
demotion, separation, etc.
o 3. Employment status and qualification standards
o Can the CSC recall an appointment which was initially
approved, when it finds out that it actually disregarded CS
laws?

Yes
o Can the CSC terminate employment or drop members
from rolls?

No. It is only allowed to approve, review
appointments to determine compliance with CS Law.

It cannot terminate on its own.
What is the scope of civil service?
o Embraces all branches, subdivisions, instrumentalities,
agencies of government, including GOCCs with original
charters
Does the NLRC or RTC have jurisdiction over cases involving
these employees/officers?
o No. The CSC has exclusive jurisdiction.
What are the other personnel actions?
o 1. Promotion
o
o
79
Does the next-in-rank rule bind?

No, it doesn’t bind the appointing authority,
although he must specify the reasons for not
appointing the next-in-rank officer.

When does the automatic reversion rule apply?

If there is a series of promotions, and all
promotional appointments are
simultaneously submitted for approval to the
CSC, and the commission disapproves the
appointment of a person to a higher.

What is the effect?
o 1. They are all automatically
restored to their old positions
o 2. But they get paid for higher
salary for services actually
rendered for the higher position
2. Transfer

What is transfer?

Movement from one position to another
which is of equivalent rank, level, or salary
without break in service

May it be imposed as an administrative penalty?

Yes.

When is employee consent required?

When the transfer results in
promotion/demotion, advancement or
reduction, or a transfer that lures him away
from his permanent position

X was transferred from Pampanga to Cagayan
after the BIR commissioner issued an RR
redefining jurisdictions and re-number RDOs of
the BIR. Is this invalid transfer?

No, the respondent was unable to show the
patent illegality of the CIR’s action.

Can those in CES be shifted from one office to
another without violating security of tenure?

Yes. Because security of tenure attaches to
rank, not office.
3. Reinstatement





o
o
What is reinstatement?

A person permanently appointed in career
service who was separated without just
cause may be reinstated to a position in the
same level for which he is qualified.
X was temporarily appointed to a position. He
was then terminated. He subsequently obtained
eligibility and qualification. Can he compel
reinstatement by mandamus?

No. Appointment is still discretionary and
other factors are taken into account through
this process. He was temporarily appointed
when he was terminated.
What is the nature of reinstatement?

It is actually the issuance of a new
appointment. The courts cannot interfere
with such exercise of discretionary authority.
Can one convicted but subsequently given
plenary pardon by the President demand
reinstatement?

No.
But what if a person was pardoned because he
did not truly commit the offense?

His name is cleansed and he need not apply
for reinstatement – he is restored ipso facto
upon issuance of the clemency and is
entitled to back wages.

No.
What is the limitation?

Like detail, it must have a definite date or
duration.

The lack of specific duration is tantamount to
a floating assignment, and is thus a
diminution of status/rank

Note – distinguish if the reassignment is actually a
transfer without consent, which is invalid.
6. Reemployment

What is the procedure?

If a permanently appointed employee was
separated due to reduction in force or
reorganization, then his name will be placed
in a list.

This list is from whence reemployment can
be taken from.

What is the right of those separated from position
due to the 1986 reorganization or those who
tendered their resignations pursuant thereto?

1. Separation pay, retirement and other
benefits

2. In lieu of this, they can be reemployed in
government

o
ADMINISTRATIVE LAW
4. Detail

What is the nature of detail?

Movement of an employee from one agency
to another without appointment

Allowed only for temporary period
5. Reassignment

What is this?

Transfer from one organizational unit to
another in the same agency, without
reduction in rank, status, or salary

Does this violate security of tenure?
General Principles


80
What is administrative law?
o Branch of public law which fixes organization and determines
competence of administrative authorities and indicates
individual remedies for violation of rights
What is an administrative body or agency?
o Organ of government other than a court or legislature that
affects rights of private parties either through rule-making or
adjudication
o



o
o
How do you determine if they are administrative bodies?

Even when it conducts hearings and determines
controversies, its function is primarily regulatory

Even when it quasi-legislates, it just provides details
to enforce the law, not determine what the law is
How are they created?
o 1. Constitution
o 2. Law
o 3. Authority of law
What are the function-types of administrative agencies?
o 1. Where the government is offering gratuity

Ex. Bureau of Lands
o 2. Where the government is seeking to carry on actual
government business

Ex. BIR
o 3. Where the government is performing business service for
public

Ex. MWSS
o 4. Where the government is regulating businesses affected by
public interest

Ex. LTFRB
o 5. Where the government regulates private businesses and
individuals through police power

Ex. SEC
o 6. Where the government is adjusting individual controversies
because of strong social policy involved

Ex. ECC
o 7. Where the government is a private party

Ex. GSIS
What is the nature of the MMDA?
o It lays down policies and coordinates with various agencies,
organizations, and private sector. It may enforce, but not enact
ordinances.
o It does not exercise police power, just administrative power.
Quasi-legislative


Powers of administrative bodies

2. Quasi-judicial (adjudicatory)
3. Determinative powers (fact finding, investigative, licensing,
rate-fixing)
What are the powers of administrative bodies?
o 1. Quasi-legislative (rule making)
81
What is the nature of QL power?
o Fixing details as to what the law should be
o Within the confines of the delegating statute and the rules on
delegation of powers
o AO 308 issued by the President imposes a national
computerized ID system. Can the President claim to have
been merely implementing the Administrative Code of
1987?

No. The National ID System requires adjustment of
state policies, national security, privacy rules, and
choice of policies. It’s not merely an implementing
order.
o What is the effect of rules set out by the administrative
bodies?

If within the power delegated to them, it has the force
of law
o Can the administrative body determine w/n it should
implement a law?

No. Its duty is to enforce it.
What are the kinds of administrative rules and regulations?
o 1. Supplementary or detailed legislation

Detail-fixing

Expressly or impliedly granted

Must be published
o 2. Interpretative legislation

Construing provisions of statute

Binding on all until they are changed.

Have effect of law and enjoy presumption of legality

What is the effect of erroneous application of the
law by public officers?

Does not bar subsequent correct application
of law

Expressly or impliedly granted


Need not be published
3. Contingent legislation

Rules made by an administrative authority on the
existence of certain facts upon which enforcement
depends

Must be expressly granted

Must be published
o 4. Procedural

Method by which the agency carries out its functions

Expressly or impliedly granted

Must be published
o 5. Internal

Issued by a superior administrative or executive
officer to his subordinates to carry out the law

Expressly or impliedly granted

Need not be published
o 6. Penal

See below
What are the requisites for validity of these issuances?
o 1. Under authority of law
o 2. Within scope and purview of law

What is required for “filling in” legislation?

It must be germane to objectives of law and
it does not contradict standards in the law
(Recall legislative delegation)

Ex. RA 6657 provides that just compensation for
property must be cash or land bank bonds. So DAR
Circular 9 which allows opening of trust account is
beyond the scope of law.

RA 8171 (Lethal Injection law) requires that rules and
regulations must be issued by Sec of Justice and
Director of Bureau of Corrections. The rules,
however, allowed Director to prepare the manual
without approval of Sec of Justice. This is abdication
of responsibility and is against the law, which grants
rule-making power to the Sec of Justice.
o 3. Reasonable, uniform in operation, not unfair/discriminatory
o 4. Publication in OG or newspaper of GC

When is just posting allowed?
o





82
For interpretative rules and regulations or
those merely internal in nature

A DBM circular prevents payment of allowances
and additional compensation to government
employees. Is this merely internal?

No. It must be published.

Same with POEA MC No. 2 which sets
schedule of placement and documentation
fees – must be published.
What are requirements for rules with penal sanctions?
o 1. Act punishable under the law itself
o 2. Law must define or fix penalty for the violation
o 3. Rules and regulations published in OG, newspaper of GC,
AND archived at the UP Law Center
What is the test of a valid delegation?
o 1. Completeness
o 2. Sufficient Standards
o When are standards not required?

1. Handling of state property and funds

2. Law does not involve personal or property rights

3. Matters of internal administration

4. Power of the board to make a recommendation

5. Matters involving privileges (use of property,
engaging in profession, etc.)

6. Regulation or exercise or police power
Is notice and hearing necessary?
o No requirement of hearing for promulgation of general
regulation of administrative body.
o No notice required for:

1. Procedural rules

2. Mere legal opinions

3. Substantive rules where the class affected is so
large and the questions to be resolved involve use of
discretion by the rule-making authority
What about rate-fixing? What is its nature?
o Quasi-legislative if the rates are meant to apply to all
enterprises of a given kind or character  no need for notice
and hearing
o

Quasi-judicial if they apply exclusively to a particular party
based on finding of fact  need notice and hearing
o But can there be provisional increases?

Yes, but subject to final determination in the main
case.
Does a writ of prohibition apply to exercise of QL functions?
o No. Since the party must be exercising judicial, quasi-judicial,
or ministerial functions and with GADALEJ, it only applies to
the exercise of QJ functions.
Quasi-judicial


Determinative powers





1. Enabling –
o Permit or allow something which the law regulates
o Ex. Licenses for business
2. Directing –
o Ex. Assessment by BIR or BOC
3. Dispensing –
o To exempt from general prohibition or relieve an individual or
corporation from affirmative duty
o Ex. Zoning boards can vary zoning ordinances
4. Examining –
o Investigatory power; requiring production of books, records,
etc.
o Includes attendance of witnesses and having them testify
o Can administrative bodies compel attendance of
witnesses, by default?

No. It’s not an inherent power.

But an administrative officer authorized to take
testimony can administer oath, summon witnesses,
require production of documents, etc.
o Can the admin body punish for contempt?

No, unless expressly granted.

If granted, only applicable to QJ functions.
5. Summary –
o To apply compulsion or force against persons/property to
effectuate a legal purpose without a judicial warrant to
authorize the action
o Ex. Abatement of nuisance, health inspections, etc.


83
What is this power?
o To make determinations of facts in the performance of official
duties and apply the law as they construe it, to the grounds so
found
What is the concept of jurisdiction in QJ proceedings?
o Two elements –

Over subject matter

Over person
o 1. If without J, the acts are void and open to collateral attack
o 2. Admin bodies have limited J, so the validity is entirely
dependent on the statutes granting power
o Can the admin body or the parties confer J over the admin
body itself?

No, the body cannot enlarge its own jurisdiction

Neither can the parties dictate w/n the body has
jurisdiction

The admin body’s determination as to its own
jurisdiction is not conclusive upon the courts
o What if the statute expires?

It does not deprive the admin body of jurisdiction over
acts committed while the statute was in effect, where
a general saving statute continues the liabilities
o Can lack of previous notice be cured?

Yes. It may be cured by subsequently giving the
party an opportunity to be heard.

It can be through an MR too, because there, a party
has the chance to be heard.
What is the doctrine of primary jurisdiction?
o Where the determination requires the expertise, specialized
skills, and knowledge of admin bodies because technical
matters are involved, the relief must first be obtained in an
admin proceeding before remedy will be supplied by the courts
(discussed further below as “doctrine of prior resort”)
Can the admin body promulgate its own rules of procedure for QJ
proceedings?
o Yes.
o





As long as these do not diminish, increase, or modify
substantive rights.
What is admin due process (review of BOR – Ang Tibay)?
o 1. Right to hearing
o 2. Tribunal must consider evidence presented
o 3. Decision has basis
o 4. Substantial evidence
o 5. Decision based on evidence adduced at the hearing or
contained in the record
o 6. Board/judges act on independent consideration, and not just
views of subordinate
o 7. Decision rendered in manner where parties know the issues
and basis for decision
On who conducts hearing and issues decisions –
o If the law requires an admin officer to exercise judgment and
discretion  there can be delegation to subordinates for
hearing and receipt of evidence (but the superior officer has
control)
o If the admin agency acts as a collegiate body  powers cannot
be exercised by one officer alone
Is a formal or trial-type hearing required?
o Not at all times; the essence of due process is being given the
opportunity to explain one’s side or seek reconsideration
o Does it have to be oral proceedings?

No. It can be based purely on written pleadings.
o Must there be a cross-examination?

No need.
o When are actual adversarial proceedings in termination
cases or other admin cases needed?

When there is need for clarification or propounding of
searching questions to witnesses with vague
testimonies

But the party must ask for it because it’s not an
inherent part of the summary proceedings that attend
admin cases
Is there right to notice where the owner of a property subject to
forfeiture is known?
o Yes. Mere posting is not enough.
Is there right to counsel?




84
o Not necessarily.
When is notice and hearing not required?
o [temporary actions]
o 1. Granting provisional authority for increased rates
o 2. Preventive suspension of public officer/employee
o 3. Padlocking of filthy restaurants or theatres showing obscene
movies (or “lock-up” campaign of BIR)
o [summary actions]
o 4. Summary proceedings of distraint and levy upon delinquent
taxpayer’s property
o 5. Summary abatement of nuisance
o 6. Cancellation of passport for criminal prosecution
o 7. Replacement of a temporary or acting appointee
o [equity]
o 8. Urgency of immediate action
o 9. Right was previously offered but not claimed
What is the coverage of the right against self-incrimination in
admin proceedings?
o Respondent can refuse to take witness stand if the penalty
involves a penal-like sanction.

Ex. Testimony may result in forfeiture of property
under RA 3019.

Ex. Medical practitioner may lose his privilege to
practice medicine.
o What if he ends up taking the witness stand voluntarily?

He can still invoke the right against self-incrimination
against particular questions which call for an answer
that incriminates him of an offense other than that
which is charged.
Who has the power to punish for contempt?
o When the admin body is engaged in performance of QJ
powers
When can there be right of appeal?
o Where provided by law.
o Can the appellate admin agency conduct additional
hearings?

Yes, if necessary.
o What is the implication of the President’s power of
control?





The President by himself, or through an alter ego, can
affirm, modify, alter, or reverse admin decisions of
subordinate officials and employees.
Does res judicata apply?
o Yes, decisions and orders of admin bodies have force and
binding effect of final judgment, akin to RJ.
o What is the special rule re: citizenship?

RJ only applies when the following conditions apply:

1. Question of citizenship is resolved by a court or
admin body as a material issue after a full-blown
hearing

2. There was active participation of the Solicitor
General

3. The finding by the admin body is affirmed by the
SC
o When else does RJ not apply?

When the admin decision of the ECSIF awards the
employee less than what the law provides.

(I guess, to extrapolate a general rule, when the
decision is clearly contrary to law.)
Specific cases:
o 1. The Laguna Lake Dev’t Authority (LLDA), as regards
pollution and fishing cases can issue a cease-and-desist order.
Its charter (special law) gives it power to issue permits for fish
pens and enclosures in the Laguna de Bay. It trumps the LGC.
o 2. The DECS Regional Director has authority to issue RTWO
for striking public school teachers and to investigate
o 3. The HLURB hears cases of unsound real estate business
practices and specific performance and has exclusive
jurisdiction over disputes of homeowners associations
o 4. The Prosecution and Enforcement Division is the
adjudicatory arm of the SEC
o 5. It is the DOE, not the ERB, that has jurisdiction over
disputes re: direct connection of electrical power
Does the Presidential Electoral Tribunal exercise QJ powers?
o No. The PET exercises judicial powers.
What is the rule for controversies among government offices and
corporations under the Administrative Code?
o Questions of law:
o
o

Submitted to Sec. Of Justice as Attorney-General

His ruling binds the parties concerned
Questions of fact and law:

1. Sol-Gen if the dispute involves only departments,
bureaus, offices, agencies of the National
Government and GOCCs

2. SOJ in all other cases not mentioned above
What is the exception where the findings of the Sol-Gen or
SOJ are not final and binding?

When the claim involves at least 1M pesos, wherein it
can be appealed to the Office of the President
Judicial Recourse and Review


85
What are the primary doctrines you must know?
o 1. Finality of administrative action –

Decision of tribunal must be final first before courts
can review it
o 2. Primary jurisdiction –

Initial action must be taken by an admin agency when
it concerns matters of technical expertise
o 3. Exhaustion of admin remedies –

Applicable to QJ powers; judicial relief can only be
had after completing all available administrative
recourse
o 4, Ripeness for review –

Same principle as exhaustion, but as for rule-making
and administrative powers

There must be a real and problem, and not one which
is future, imaginary, or remote
What is the general rule on where appeal is made?
o Rule 43
o When is the remedy Rule 65, instead of Rule 43?

1. DOJ Sec.  CA

2. OMB (non-admin cases)  SC

Whereas OMB admin cases go to the CA by
Rule 43

3. COA/COMELEC  SC

Whereas CSC cases go to CA by Rule 43
o



o
When is the remedy Rule 45, instead of Rule 43?

1. CTA en banc (from CTA div.)  SC

2. NLRC (from LA)  CA via rule 65, then SC via rule
45
What are the exceptions to finality of admin action (meaning,
courts interfering even before finality of admin action)?
o 1. Relief is to preserve status quo pending further admin action
o 2. Essential to protect rights
o 3. Allowed by law
o 4. Order is not reviewable and the complainant will suffer great
and obvious damage if order is carried out
o 5. Interlocutory order affecting merits of controversy
o 6. Admin officer acts in violation of constitution/law
o 7. Order made in excess of power
o N.B. So most of these are really just: 1. GADALEJ, and 2.
Urgency depending on facts of case, and 3. TRO/injunction
(preserve status quo)
What are the exceptions to primary jurisdiction/prior resort?
o 1. Congress does not intend that the issues be left solely to the
admin agency for initial determination
o 2. Issues involve questions of law
o 3. Concurrent jurisdiction of courts and admin agencies
o Can the courts determine the Manny Villar double
insertion case even before the Senate Committee decides
in it?

Yes, because the issues do not require expertise,
specialized skills, and knowledge of respondent for
resolution. What are involved are purely legal
questions.
o Even when the case is already pending with the SC, if there
are supervening events that change the factual backdrop of the
case, within the competence and expertise of an admin
agency, it can refer the back to them.
Can the court raise the issue of primary jurisdiction motu propio?
Can the parties waive it?
o Yes, the courts can raise it motu propio. No the parties cannot
waive it.
o The rule is not for the convenience of the parties, but for proper
distribution of power.


86
What can the court do in such a case?

1. Suspend judicial process pending referral to the
admin body

2. Dismiss the case without prejudice if the parties
would not be unfairly disadvantaged
What is the implication of exhaustion of admin remedies?
o Premature invocation of the court’s intervention is fatal to one’s
cause of action.
o It is a ground for motion to dismiss.
o What are the reasons for exhaustion?

1. Enable admin superiors the chance to correct
errors of subordinates

2. Separation of powers

3. To not saddle dockets with admin cases

4. Usually, the remedy is an SCA which requires no
other plain, speedy, available remedy

5. Less expenses and faster to resort to admin
remedies
What are the exceptions to exhaustion of admin remedies?
o [where there is already a reviewable act]
o 1. Doctrine of qualified political agency

Meaning the officer was acting as the President’s alter
ego already, so there has been exhaustion

EXCEPT when the law expressly provides
that you have to go up to the President

But if an appeal has been filed to the President
already, and then it is withdrawn to go to the courts,
there is failure to exhaust because the petitioner has
already recognized the OP as an available remedy.

EXCEPT when the OP hasn’t acted for a
long time (in a case, 2 months)
o 2. Purely legal questions

Legal question  which law applies to a particular set
of facts

(Rule 45)
o 3. Law does not make exhaustion a condition precedent
o 4. Admin action is patently illegal/GADALEJ
o 5. When there is denial of due process

Ex. No notice and hearing


(Actually a form of GADALEJ)
6. Rule does not provide a PSA remedy

(under GADALEJ, this is a ground)
o
[equity]
o 7. Admin remedy is fruitless

Ex. Suit to recover title to office must be within 1 year
of legal ouster or else it prescribes.
o 8. Estoppel on part of the admin agency
o 9. Unreasonable delay or official inaction
o 10. Irreparable injury or threat thereof unless judicial recourse
is had

Ex. Petitioner’s security agency contract has been
terminated and the replacements were already hired –
appeal to the Board of Trustees of the NFA and then
the Secretary of Agriculture was not a PSA remedy.
They have to go to courts already.
o 11. Observance of doctrine will result in nullification of the
claim
o
[based on subject matter]
o 12. Land cases, where the subject matter is private land
o 13. Special reasons or circumstances (ex. Matters of strong
public interest)

Ex. PARO did not immediately take action on protest
of petitioner. It only forwarded protest to DAR in one
year. DAR then kept asking petitioner to submit
documents that were already attached to the protest.
In the meantime, the PARO had already cancelled the
petitioner’s title and issued a new one to the farmerbeneficiary. (Poor petitioner.)
o 14. Amount is relatively small to make rule impractical
What are the powers of the courts vis-a-vis reviewable questions?
o 1. Of fact  general rule is that the courts will not disturb the
findings of admin bodies

Except if not supported by substantial evidence
o 2. Of law  can be appealed because judiciary has inherent
power to review all questions of law
o 3. Mixed  if the questions of law and fact are so intertwined
and inseparable, the default treatment by the courts is to deem
it a question of fact (same rule as #1)
o

What are the grounds for reversal of admin findings? (NOTE: this
is almost the same as Rule 45 grounds where findings of facts can
be overturned))
o [abuse]
o 1. GADALEJ
o 2. Prejudice to rights of party because findings violated
constitution or law, or was vitiated
o 3. Irregular procedures or violations of DP
o 4. Agency went beyond issues of case
o [shoddy fact-finding]
o 5. Inferences made are manifestly mistaken or impossible
o 6. Misapprehension of facts
o 7. Findings grounded on speculations/conjectures
o 8. Findings not supported by substantial evidence
ELECTION LAW
General Principles




What are covered by the right to suffrage?
o 1. Election
o 2. Plebiscite
o 3. Initiative and referendum
What are the theories re: election?
o It is a privilege and a right
o Follow strict secrecy
What is the election period?
o 90 days before election and until 30 days after elections
N.B. Please read the COMELEC part of CCs again to review regarding
jurisdiction of the COMELEC, COMELEC en banc, and lower courts
Voters – qualification and registration

87
Qualifications for suffrage?
o 1. At least 18 years old
o 2. Resided in the Philippines for at least 1 year

What is the exception in Sec 5(d) of RA 9189
(Overseas Absentee Voting Act)?

o
Even a Filipino immigrant or resident in a
foreign country is entitled to vote if:

1. He/she executes an affidavit declaring that
he/she shall resume actual physical
permanent residence in the Philippines not
later than 3 years from approval of
registration as an absentee voter

2. He/she hasn’t applied for citizenship
abroad

N.B. this replaces the residence
requirements in the enumeration

What is the consequence of failure to return?

Removal of names from registry of absentee
voters and permanent DQ from absentee
voting

What are the two types of absentee voting?

1. Domestic absentee voting – public officials
like policemen and public school teachers
stationed in places other than where they are
registered can vote in this place of work

2. Overseas absentee voting – qualified
Filipinos abroad

What is the meaning of “residence” here?

It means domicile: 1) physical presence, 2)
animus manendi, 3) animus non revertendi,
4) voluntary

For dual citizens, what act must they perform to
vote?

They must swear oath of allegiance

Contrast with running for public office – must
renounce foreign citizenship

Contrast with being appointed to public office
– must renounce AND swear oath of
allegiance
3. Resided in the place where they intend to vote at least six
months preceding the election

What if a person transfers residence due to
occupation?

Not deemed to have lost original residence
What is the meaning of “residence” here?

At least temporary residence, but can also
be domicile obviously
o 4. Not disqualified

What are the disqualifications?

1. Person sentenced by final judgment of
imprisonment for not less than 1 year
o When is the right reacquired?

Upon expiration of 5 years
after service of sentence

2. Person adjudged by final judgment of
having committed a crime involving disloyalty
to the government or crime against national
security
o When is the right reacquired?

Upon expiration of 5 years
of service

3. Insane or incompetent persons declared
by competent authority
o 5. Philippine citizen
What cannot be imposed as requirement for suffrage?
o Literacy, property, substantive requirement


Registration

88
What is the nature of registration?
o It does not confer the right to vote; it is just a condition
precedent to the exercise of the right
o What is the prevailing system of registration?

It is general and continuing
o When is the only period when registration is not allowed?

120 days before regular election

90 days before special election

N.B. compare with election period (90 for regular)
o Who are not disqualified to register and instead are
assisted in their registration by election officer, member of
citizen’s arms?

1. Illiterate person



o
2. Disabled person

May be assisted by relative within 4th degree
of consanguinity or affinity
What is the composition of Election Registration Boards?
o 1. Election Officer (chairman)

N.B. as many ERBs in a city/municipality as there are
Election Officers
o 2. Most senior public school official
o 3. LCR or city/municipal treasurer
Differentiate challenge of registration from inclusion/exclusion and
annulment of book of voters?
o Challenge of registration is pre-approval remedy
o Inclusion, exclusion, and annulment are post-approval
remedies


Submit a sworn application for reactivation with the Election
Officer
o N.B. this must also respect the registration ban period (120/90)
When must the voter’s list be posted?
o 90 days before regular election, 60 days before special
election
o Posted alongside deactivated voters’ list
o Where posted?

Office of the Election Officer

Bulletin board of the municipal or city hall
What are the post-approval remedies?
o 1. Petition for inclusion
o 2. Petition for exclusion
o 3. Annulment of book of voters
Challenge of registration
Inclusion and exclusion proceedings






Who may challenge registration?
o Any voter, candidate, representative of a registered PP
Where is the challenge posed?
o Election Registration Board
What must be included in the challenge?
o 1. Statement of grounds for challenge, either:

Not qualified

Fictitious
o 2. Under oath, attached the application
o 3. Proof of notice of hearing to the challenger and applicant
What is the time table of challenges?
o Before second Monday of the month – Oppositions
o Third Monday of the month – hearing
o Before end of the month – decision
Whose registration can be deactivated by the ERB?
o See above disqualifications #1-3 (imprisonment of at least
one year, disloyalty, insane/incompetent)
o 4. Person who did not vote in two successive preceding regular
elections (regular elections do not include SK elections)
o 5. Court order of exclusion
o 6. Person who has lost Filipino citizenship
When is a registration reactivated?




89
What court has jurisdiction over inclusion and exclusion cases?
o ALWAYS the MTC – has original and exclusive jurisdiction
o Appealable to the RTC within 5 days of receipt of decision
(RTC must decide within 10 days of receipt of appeal)
o Is an MR allowed?

No MRs are allowed
What is the period to file petition for inclusion?
o Anytime after registration is denied or name is excluded except
105 days before regular election/75 days before special
election
o Decided within 15 days of filing
o N.B. 105/75 the registration ban minus 15 days
What is the period to file petition for exclusion?
o Anytime except 100 days prior to regular elections or 65 days
before special elections
o Decided within 10 days of filing
Rules on the petition:
o 1. Notice of place, date, time of hearing served upon ERB
members and challenged voter upon filing
o 2. Petition must refer to one precinct only
o 3. Implead the ERB as respondents




Are costs awarded?
o Usually none, against either party. The exception is when the
application was filed solely to harass.
Who may intervene?
o Any voter, candidate, political party affected by the
proceedings
What is the basis of the decision?
o Must be based on evidence presented and NEVER on
stipulation of facts. If the question is w/n the voter is real or
fictitious, non-appearance in hearing is prima facie evidence of
non-existence
Time tables?
o Heard and decided within 10 days after filing
o ALL cases, decision must come out not later than 15 days
before the election
105
days
100
days
90 days
Last day
to
release
decision
on book
75 days
65 days
Election
day
30 days
after
Political parties
Annulment of book of voters






When can a book of voters be annulled?
o 1. Not prepared according to law
o 2. Prepared through irregularity/vitiation
o 3. Found to contain statistically improbable data
Who files?
o A voter, election officer, or PP may file a verified petition
To whom is this petition filed?
o COMELEC en banc (since it’s an admin procedure)
When is the last day for release of ruling/decision annulling a book
of voters?
o Within 90 days before an election
Is annulment of book of voters a ground for pre-proclamation
contest?
o No.


Table of periods
Election
period
Rego
ban
(regular)
Rego
ban
(special)
Incl.
ban
(reg)
Incl.
ban
(sp)
Excl.
ban
(reg)

Excl.
ban
(sp)

120
days
90
What are the types of political parties?
o 1. Non-registered parties
o 2. Registered parties

Dominant majority and majority – entitled to ER copy

Top 3 – can appoint principal watcher; get COC copy

Bottom 3 – can appoint principal watcher
o National party

Constituency spread across majority of regions
o Regional party

Constituency spread over geographical territory of
majority of cities and provinces in a region
o Sectoral party
When are votes in favor of political parties valid?
o Only for those registered under Party List (PL) system.
What are the rights of parties registered under the PL system?
o 1. Appoint poll watchers
o 2. Occupy 20% of seats in the HOR
When must registration of a political party be done?
o Not later than 90 days before the election
What cannot be political parties?
o 1. Religious denominations/sects
o 2. Those advocating violence or unlawful means


o 3. Refuse to uphold and adhere to the Constitution
o 4. Supported by foreign governments
What are the grounds to cancel registration of political parties?
o 4 mentioned above, plus:
o 5. Violation of election laws
o 6. Declaration of untruthful statements in its petition
o 7. Ceased to exist for at least 1 year
o 8. Fails to participate in the last two preceding elections [or
fails to obtain at least 2% of votes cast under PL system in two
preceding elections]  declared unconstitutional
What is the power of the COMELEC?
o To ascertain the identity of the political party and its legitimate
officers
Candidates/certificate of candidacy


When must qualifications be possessed?
o From the start (proclamation and oath) of his term, until the
end of the term
What are the grounds for substitution of candidate?
o 1. Death
o 2. Withdrawal

N.B. no candidate who has withdrawn his
COC can be eligible as substitute candidate
for any other position
o 3. Disqualification

But if the COC is illegally filed from the beginning, he
cannot be substituted. He was deemed to never have
filed the COC at all (from Atty. Agra)

Contra, from Nachura: X filed his COC for vicemayor, but withdrew it after the last day of filing of
COC. Y, from the same party, filed application as
substitute for X. X was found to have been
unqualified to run in the first place (too young).
Should Y be DQ?

No. The duty to accept substitution is
ministerial if the substitute is found to have
complied with all requirements,

notwithstanding DQ of the person the
substitute is replacing.
o What is the general rule?

No substitution for independent candidates. Only
those with political parties and are nominated by such
can be substituted.

Who are independent candidates?

Not members of political party, members of
unregistered PPs

Even if member, not validly nominated by PP

Nominated by party in excess of what is
allowed; or candidate accepts more than 1
nomination
o Exception?

Candidate for elective barangay office can be
substituted by spouse.
o For substitution, do votes cast for substituted candidate
count for the replacement?

No, these are considered stray. Unless same
surname.
o Up until can there be substitution?

Up to mid-day of Election Day.
What are the two aspects of DQ cases?
o 1. Electoral

Summary

Disqualified upon preponderance of evidence
o 2. Criminal

Prosecuted by the COMELEC

Filed with court, and subject to full blown hearing

Penalties include criminal conviction and possible DQ
from future public office
Disqualifications:
Omnibus Election Code
Declared insane or incompetent
Sentenced by final judgment for
rebellion, subversion, insurrection or
any offense where penalty is more
than 18 months; or by final
91
Local Government Code
Insane or feeble-minded
Sentenced by FJ for offense
punishable by one year or more of
imprisonment, within 2 years after
serving sentence
judgment for crime involving moral
turpitude
Permanent resident or immigrant of
foreign country
Election offenses (vote buying, acts
of terrorism, unlawful expenditure,
solicited or made prohibited
contributions, prohibition against
release of public funds, unlawful
campaign)
N.B. if other election offenses not
enumerated are committed, file with
RTC as election offense, but not
ground for DQ
Nuisance candidate
Material misrepresentation
No valid certificate of candidacy

N.B. One under probation may run
because the probation suspends the
accessory penalty of DQ as well
Permanent resident or immigrant of
foreign country
Dual citizenship (actually, dual
allegiance)

For natural dual citizens, mere filing
of COC is enough.
For repatriated persons, filing of
COC and renunciation of foreign
citizenship must concur.
Convicted by FJ for violating oath of
allegiance to the Philippines
Fugitive from justice
Removed from office due to
administrative case

Filing two COCs for different offices
(DQ from both)


What are prohibited campaign contributions and expenditures that
may be a ground to DQ?
o Transportation, food, drinks
o Form public/private financial institutions, public
utilities/exploitation of natural resources, public contractors,
franchise holders from government, educational institutions
with government grants, officials of civil service or AFP,
foreigners or foreign corporations
o Raise funds through lotteries, cockfights, bingo, boxing, beauty
contests, etc.
o Cannot contribute to churches, school buildings, roads,
bridges, clinics, etc.
Who is a nuisance candidate?
o One with no bona fide intent to run and would thus prevent a
faithful determination of the will of people
o Factors to consider?


92
Political  capacity to wage nationwide campaign,
slate, organization/machinery, PP support

Track record  performance in prior elections,
platform, political exposure

Background  Popularity, properties, education,
profession, income, qualifications

Intent  bona fide intent to run, similarity in name
What are the requisites for a false and material representation?
o 1. False
o 2. Material
o 3. Deliberate
o The following are not material and false representation:

1. Stating false job or using surname of common law
spouse

2. Candidate is actually qualified even if the COC
shows he’s not

3. No intent to deceive; candidate believed in GF that
he is qualified
Who is a candidate?
o 1. Filed COC
o 2. Is seeking public office
o 3. Campaign period has started

N.B. this is important, because he is not liable for
unlawful acts and omissions before becoming a
candidate
How must a COC be filed?
o Personally or through representative. Cannot be by mail or
fax.
What is the effect of a formal defect in the COC?
o Not enough to annul the election of a candidate

Ex. Improperly sworn COC, defective notarization,
etc. – not sufficient to DQ a candidate
o What is the effect of withdrawal of COC?

DQ of the one who filed the COC.

When must withdrawal of a withdrawal be made?

Within period for filing COC. (NOTE:
withdrawal of withdrawal)
o What is the effect of filing two COCs for different offices?



DQ for both offices, unless he withdraws one before
the end of the period for filing COC.
o What is the effect of DQ?

1. Cannot be voted for in the election

2. If there is no FJ yet before election, and he
receives highest votes, the COMELEC will still retain
jurisdiction and hear the trial. If the evidence of guilt
is strong there can be suspension of proclamation
ordered by COMELEC.
What is the scope of powers of the COMELEC as to filing of COC?
o It is ministerial. Can only deny upon matters appearing upon
the face of the COC. See exceptions below
When can the COMELEC go beyond the face of the COC?
o 1. Nuisance candidates
o 2. Material misrepresentation
o 3. DQ under BP 881

What is the power of the COMELEC to suspend
proclamation?

When there is no final judgment in the DQ
case yet, and the challenged candidate
receives the highest number of votes.

The evidence of guilt must be strong,
justifying the COMELEC to suspend
proclamation of the candidate.

This power is merely permissive, not
obligatory.

Should the votes casted in favor of the
disqualified candidate be rendered null and void?

No, because this disenfranchises the voters.

What is the exception?

When the electorate knows in fact and law
that the candidate was disqualified, but still
voted for him – this is tantamount to
notoriously misapplying or throwing away
votes. These must not be counted.
Ground
Where filed
When filed
Lacking
qualifications or
with DQ
Election offenses
COMELEC
division
Before
proclamation
COMELEC
division
Before
proclamation
Nuisance
candidate
COMELEC
division
Material
misrepresentation
COMELEC
division
Within 5 days of
last day of filing
COC
Within 25 days
from filing COC
not availed of
Quo warranto
Election protest or
charge with
election offense
None
None
N.B. this can
never be
motu propio;
must be from
petition
Campaign, propaganda, contributions, expenses



Secondary
remedy, if
primary remedy
93
When is the campaign period?
o Under Sec. 3 of the OEC: 90 days for P/VP, 45 days for
Congress and local officials, 15 days for barangay
What is election campaign or partisan political activity?
o Act designed to promote the election or defeat of a particular
candidate to public office
o What if it is done for the purpose of enhancing the
chances of aspirants for candidacy to be nominated?

It is not election campaign.
o What is the prohibition on election campaign?

It cannot be done except during campaign period

Note that early campaigning can only be done when a
person is already deemed a candidate for office (there
are cases of this, when a candidate hasn’t filed his
COC yet when he prematurely campaigned; this is not
early campaigning because he is not yet a candidate)
What is the rule on public rallies?
o 1. The candidate or party must notify election registrar that
they intend to organize and hold within the city/municipality

o




2. Submit to election registrar a statement of expenses in
connection therewith
What justifies the COMELECs power to determine prohibited
election propaganda?
o Police power, to avoid perversion of electoral apparatus
o Does this apply to plebiscites?

No, because the electorate is voting for issues, not
candidates
o What happens to print advertisements, media campaigns,
or other propaganda existing before the candidate filed his
COC (ex. Lucy Torres has a Bench billboard and she ran
for Congress)?

They may be removed when the person becomes a
candidate, because otherwise, it is premature
campaigning.
What is the limit on expenses?
o P and VP – P10 per voter
o Other candidates – P3 per voter

But if no political party – P5 per voter
o Political parties – P5 per voter
What is a statement of contributions and expenses?
o That statement submitted by candidates and treasurers of
parties within 30 days from election itemizing all contributions
and expenses

Filed in duplicate with the offices of the COMELEC
o What is the consequence of non-filing?

1. Cannot enter upon duties of the office until it has
been filed

2. Administrative offense involving fines and perpetual
disqualification to hold office

Does not apply to barangay officials
o Does this cover those who withdrew candidacies after
filing COC?

Yes, because the law does not distinguish
What is rule on contributions and gifts?
o No person or organization may solicit or accept gifts,
contributions, food, transportation, or donation (cash/kind) from
election period until election day
o What is the exception?



94
Normal and customary religious stipends, tithes,
collections
What are prohibited means of raising funds?
o Cinema or theatre performances, boxing, beauty contests,
dances
o Cockfights, lotteries, bingo, entertainment and games
What invalid forms of campaigning?
o 1. Display of materials outside authorized common poster
areas or in private areas without consent of owner
o 2. Non-removal of premature campaign materials within 3 days
from notice
o 3. Print, publish, or broadcast election propaganda donated to
candidate without written acceptance of candidate
o 4. Foreign intervention
o 5. Campaigning outside campaign periods
o 6. Removal or destruction of lawful election propaganda
o 7. Removal, confiscation, or destruction of prohibited
propaganda other than by COMELEC or its officers
o 8. Written or broadcast materials that do not bear inscription
“political advertisement paid for” and the name/address of
benefiting candidate or party
o 9. Advertisements beyond allowed time/space
o 10. Transportation, food, drinks during and 5 hours before and
after public meetings
o 11. Movie or video on candidate
o 12. Cinematography or documentary portraying life or
biography of candidate
o What about media personalities?

Will be deemed resigned or LOA, as required by
employer, during campaign period
Who are prohibited contributors?
o [Public officers or entities]
o 1. Public utilities or those exploiting natural resources of nation
o 2. Public or private financial institutions

Except loans to parties or candidates
o 3. Members of AFP
o 4. Officials/employees of civil service
o [foreigners]
o 5. Foreigners, foreign corporations
o
o
o
o
o

[grantees of government privileges or loans]
6. Grantees of franchises, incentives, exemptions, or
allocations by government
7. Persons who have been granted loans of more than 100K
by the government within 1 year prior to election day
8. Persons with contracts to supply government with goods or
service, or perform construction
9. Educational institutions which have received grant of public
funds of at least 100K by government
Canvassing

What is the composition of the Board of Canvassers?
Provincial BOC
Provincial election
supervisor or
COMELEC regional
office lawyer
Provincial fiscal
City BOC
City election
supervisor or
COMELEC
lawyer
City fiscal
Member
Provincial
superintendent of
schools
City
superintendent
of schools
Substitute
members,
in order
1. Provincial auditor
2. Registrar of deeds
3. Clerk of court
nominated by executive
judge
4. Other available
appointive provincial
officer
1. City auditor
2. Registrar of
deeds
3. Clerk of court
nominated by
executive judge
4. Other
available
appointive city
officer
Chair
Vice
Municipal BOC
Election registrar
or COMELEC
representative
Municipal
treasurer
Most senior
district school
supervisor (or
school principal,
if absent)
1. Municipal
administrator
2. Municipal
assessor
3. Clerk of court
nominated by
executive judge
4. Other available
appointive
municipal officer




Who is the Board of Canvassers for President and Vice President?
o Congress

Will determine authenticity and due execution of
certificates of canvass for P and VP
95
Must prove:

1. Each certificate of canvass was executed,
signed, thumb-marked by the Chair and
transmitted to Congress

2. Each certificate contains the names of all
candidates and votes in words and figures

3. No discrepancy in authentic copies
o What if incomplete?

The Senate President must require the Board of
Canvassers (local) to transmit by personal delivery
the missing election returns
o What if there appears to be alterations or erasures which
cast doubt in veracity of number of votes and may affect
result of election?

Upon request of the P/VP candidate or his party,
Congress shall count the votes as appearing just to
verify the actual number of votes cast for P/VP
o Can Congress delegate preliminary determination of
authenticity and due execution of the certificates to a Joint
Congressional Committee?

Yes.
o What if Congress had adjourned its regular session?

It may continue canvassing even without call for a
special session
Who is the Board of Canvassers for Senatorial Elections?
o The COMELEC en banc
o Not the provincial board
What is the duty of a Board of Canvassers?
o Purely ministerial: to compile and add results as appearing in
the results transmitted to it
o Does the COMELEC have direct control and supervision
over the Board of Canvassers?

No.
What is the nature of proceedings?
o Administrative and summary in nature
o What vote is needed to render a decision?

Majority vote of all its members (it is a collegial body)
o What if there are written objections to the returns?



It can only be filed during this stage. It is only at this
time that inclusion or exclusion of any return is in
issue
o Who can be there and who cannot?

Parties or coalition can have a representative, or the
candidate himself can be present

But cannot touch canvass

Can file challenges

Military or police officers, or special forces, etc.
cannot enter the canvassing room or within 50 meters
from such room
o Can the COMELEC order annulment of certificates of
canvass by only examining copies of the return of the
municipal judge and COMELEC, and not the Municipal
Board of Canvassers?

Yes, because all copies are original copies
Proclamation
o When does proclamation occur?

After canvass of election returns, in the absence of a
perfected appeal to COMELEC, the Board of
Canvassers declares winning candidates

Is the petition to restrain canvass and
proclamation or suspend proclamation the appeal
contemplated here?

No.
o Is an incomplete canvass of votes valid?

No. A canvass must include all returns. Any
proclamation stemming from this is null and void. So
the remedy is not election protest because there was
no valid proclamation in the first place. The
COMELEC still has jurisdiction.
o What is the reglementary period to file petition to annul
election when there is no proclamation yet?

None.






What is the period?
o 25 days from filing COC
Can the COMELEC decide motu propio?
o No: Sec. 78 of BP 881 provides that it must be upon a verified
petition of any interested party.
What is the remedy sought in this action?
o To refuse to give due course to or cancel a COC.
o N.B. notice that the grounds indicate this is how you declare
someone a nuisance
What are the grounds?
o 1. COC filed to put election in mockery or disrepute
o 2. Causes confusion among voters due to similarity of names
o 3. Other circumstances showing that candidate has no bona
fide intention to run for office
Compare with petition for DQ?
o There is substitution in petition for DQ (the candidate officially
became one, but violation OEC/LGC)
o There is no substitution in petition to deny due course
(because the candidate materially misrepresented and was not
deemed to have been a candidate)
Compare with petition for quo warranto?
o In petition for QW, it is based on 1) ineligibility or 2) disloyalty
to RP.

Within 10 days after proclamation of results
o It petition to deny due course, the qualifications are
misrepresented in the COC.

Before elections
What if the one who filed the COC and was denied due course filed
an MR?
o The COMELEC decision is not yet final. He can still be voted
for and proclaimed. In this case, the jurisdiction transfers to
the ETs.
Postponement or Failure of Elections
Remedies and Jurisdiction under Election Law
Where
Initiation
Petition to Deny Due Course to COC
96
Postponement of
elections
COMELEC en banc
Petition or motu propio
Failure of elections
COMELEC en banc
Petition only
Common
grounds
Unique
grounds
Condition
When
Force majeure, violence,
terrorism, analogous cases
Loss or destruction of
election paraphernalia
Serious and impossible to
have free and orderly
elections
Grounds must exist before
voting
Force majeure, violence,
terrorism, analogous cases
Fraud

Failure to elect and it affects
results of election
Illegality must affect more
than 50% of votes cast
Election not held or
suspended, after voting,
during preparations or
transmission of returns, or
canvassing
At this point, it must be noted that with the automated election system, most
of the grounds for pre-proclamation cases have been rendered moot. The
two usual grounds are (1) questioning proceedings and composition of BOC,
and (2) questioning election returns. Obviously, ground 1 is still available,
but ground 2 is barely applicable.
Pre-proclamation controversy



Regular election protest
Who has jurisdiction over ALL pre-proclamation cases?
o The COMELEC
o But I thought that the COMELEC only has appellate
jurisdiction over election contests for municipal offices?

Yes, but that’s for election contests.

For pre-proclamation cases, the COMELEC always
has original jurisdiction.
Grounds still available in light of automation:
What is a pre-proclamation controversy?
o Any question pertaining to or affecting the proceedings of the
Board of Canvassers which may be raised by any candidate or
registered political party, or coalition
o To whom may it be raised?

To the BOC or the COMELEC itself
o On what matters?

Relating to preparation, transmission, receipt,
custody, and appreciation of election returns
What is the difference between pre-proclamation case from an
action for annulment of election results or declaration of failure of
elections?
o For pre-proclamation cases: COMELEC is restricted to
examination of election returns on their face
o For action for annulment of election results or declaration of
failure of elections, the COMELEC can go beyond returns
o What is the exception to the general rule that the
COMELEC cannot go beyond and behind the face of the
election returns?

When the returns do not appear to be authentic and
duly accomplished on their face
o What if the returns appear authentic and duly
accomplished, on their face, what is the remedy?
During voting
and couting
Objections allowed
1. Proceedings and
composition of Board of
Inspectors
Objections not allowed
Rules on appreciation of
ballots
2. Voters related
3. Poll watchers related
During
canvassing
4. Marked ballots
1. Proceedings and
composition of Board of
Canvassers (N.B. BOC
and COMELEC have
concurrent jurisdiction)
2. Poll watchers related
1. Material defects,
material errors under
automated system
2. Rules of appreciation,
violence, voting
procedure, eligibility of
voters
3. Data storage delayed,
destroyed, falsified
For academic purposes, here is the discussion under manual counting:

97
Do pre-proclamation controversies apply to national officials?

o

No. No pre-proclamation controversies apply to elections for
President, VP, Senator, and HOR
o What are the two exceptions? I.E. WHAT ARE THE ONLY
GROUNDS FOR PPC FOR NATIONAL OFFICIALS?

1. Manifest errors in the certificate of canvass or
election returns before it

Canvassing body may act motu propio or
upon written complaint of interested person

Those appearing on the face of the
certificate of canvass or the election returns

The objections must be made before the
Board of Canvassers and specifically noted
in the minutes

2. Questions affecting the composition or proceedings
of the Board

What is the period for questions
pertaining to illegal composition or wrong
proceedings of the Board?
o Within 3 days from ruling thereon

Filed either with BOC or directly to
COMELEC
What issues may be raised (GROUNDS FOR PPC for non-national
positions)?
o 1. Illegal composition or proceedings before the Board of
Canvassers

When must it be filed?

As soon as the Board begins to act

Petition filed beyond five days from
proclamation of the Board is out of time

What if the petitioner has participated in the
proceedings?

Deemed to have acquiesced to the
composition of the Board

N.B. also applies to national positions
o 2. Canvassed returns are incomplete, contain material defects

A. ERs are delayed, lost, destroyed

In this case, the Board can use any of the
authentic copies



98
Or terminate canvass if the missing returns
will not affect the results anyway

B. Missing requisites

Board calls for members of the BEI to
complete or correct the return. DON’T
EXCLUDE, if correctable

C. ERs are tampered, falsified, altered after these left
the hands of BEI, not authentic, prepared under
duress, force, intimidation, etc.

Resort to other ERs

If all are tampered, can have ballot boxes
reopened and counted

D. Discrepancies in other authentic copies of the
returns or discrepancies in the votes of any candidate
in words/figures – and these would affect results of
the election

Order opening of ballot boxes for recount
o 3. ERs prepared under duress, threats, coercion, intimidation,
obviously manufactured

When is it “obviously manufactured”?

According to the SC, when it follows the
doctrine of statistical improbabilities

“Statistically improbable data”
o 4. Substitute or fraudulent returns in controverted polling
places are canvassed, and the results materially affect the
standing of candidates
Where do you raise a pre-proclamation question?
o 1. If it involves contested composition/proceedings of the
Board To the COMELEC
o 2. For the contested ERs (the four under #2 above)  To the
BOC at first instances
What is the nature of these proceedings?
o Summary – decide within 7 days, and final and executory
within 7 days
How do dispute contested ERs?
o “Two objection rule”



A. Candidate, PP, or coalition raises oral objections
during presentation of the ER, and the Board of
Canvassers logs it in the minutes

The Board will defer canvass of the return
and proceed to other ERs

B. Then submit written objections + evidence within
24 hours of objection

Board summarily rules upon it. The losing
party can inform the Board if it intends to
appeal the decision
o What is the period and to whom must appeal be made?

After all the uncontested ERs have been canvassed,
within 48 hours, the losing party files a written and
verified notice of appeal to the BOC

And then the notice will be elevated to the
COMELEC, along with records
o Can there be a proclamation in the interim?

No. No proclamation can be made from incomplete
canvass
o Exception to this?

Partial proclamation of candidates not affected by the
pre-proclamation controversy
Usually, in cases what has been held as not a proper subject to
raise in pre-proclamation controversies?
o Misappreciation of ballots, which is not a ground included
What is the effect on the reglementary period to file an election
protest when a candidate, party, or coalition files a petition to
suspend or annul a proclamation?
o It gets suspended
Senator
Congressman
Regional, provincial, or
Barangay official
MTC (10 days)

COMELEC (5 day
period, MR does not
toll)  SC, rule 65
COMELEC (5 day
period, MR does not
toll)  SC, rule 65
What are the two actions that may be filed?
o 1. Election protest
o 2. Quo warranto
N.B. Both must be filed within 10 days from proclamation of results
(except for actions before the PET, which allows 30 days)
Election Protest

Jurisdiction over election contests:
Original jurisdiction
SC as PET (30 days
from proc)
SET (10 days)
HRET (10 days)
COMELEC (10 days)
RTC (10 days)

Election Contests
Position elected
President, VP
city official
Municipal official
Appellate jurisdiction
SC, rule 65
SC, rule 65
SC, rule 65
SC, rule 65
99
What are the requisites for an Election Protest?
o 1. Filed by candidate who has filed a COC and has been voted
upon for the same office

What is the special rule for PET?

Only the 2nd or 3rd placer may file the protest
o 2. Filed within 10 days from proclamation of results

Except P/VP, which is 30 days

Period to file EP is suspended during pendency of
PPC

A counter-protest must also comply with the
reglementary period
o 3. On grounds of: 1) election fraud/terrorism, and 2)
irregularities or illegal acts before, during, or after casting and
counting of votes

So the usual prayer is a setting aside of count based
on returns in favour of a revision and recount of
ballots

What can be considered:

Ballots, ERs, COCs, data-storage devices

When an election protest is filed, it abandons a prior
pre-proclamation controversy filed with the
COMELEC and bars subsequent ones. Once the





o
o
o
tribunal has acquired J over an election, the
COMELEC loses its jurisdiction.
What are the exceptions to the rule that when the ET obtains
jurisdiction, it precludes the COMELEC from exercising powers
over PPC?
o [Grounds where there was no valid proclamation]
o 1. BOC was improperly constituted
o 2. Proclamation was null and void
o [Wrong remedy]
o 3. Quo warranto is not the proper remedy
o 4. What was filed was a petition to annul a proclamation, and
not QW or Election Protest
o [Express]
o 5. Election contest expressly made without prejudice to PPC or
it was made ad cautelam (cautionary)
o When can there be simultaneous adjudication of PPC and
Election protests?

Elective provincial offices, because it is both the
COMELEC that exercises PPC and EP powers.
Note, however, that the case that upheld this doctrine
involved facts that similarly treaded both the PPC and
EP.
What is the effect of a successful election protest?
o Not only is the proclaimed winner unseated, but the challenger
is installed into the office (but sometimes, even a non
protestant [a third candidate] wins)
o (Whereas in quo warranto, the petition may or may not be
claiming the office for himself)
What are the additional requirements for election protest?
o 1. Payment of docket fee

Failure to pay is ground to dismiss the case

Exception  estoppel by the other party, by raising it
too late
o 2. CNFS
What if the protestant dies?
o Unlike ordinary civil actions, this does not terminate the action.
o The successor becomes the real party in interest for the
continuation of the proceedings.
How does the role of the COMELEC shift from PPC to ECs?
In PPC it is exercising admin/QJ powers
After proclamation and EC is filed, it exercises QJ powers
(This is for provincial, city, and regional officials where both
PPC and EC is lodged with COMELEC)
Quo Warranto


What are the requisites of Quo Warranto?
o 1. Filed by any registered voter in the constituency
o 2. Grounds:

a) Ineligibility

b) Disloyalty to the RP (ex. Having a greencard)
o 3. Within 10 days from proclamation of results
When a proclaimed officer was DQ by Quo Warranto, can the
second placer be declared the winner?
o No. He has no mandate.
o What is the exception?

When the one who got highest votes has been DQ
and the electorate is fully aware of this fact – but they
still voted for him (meaning, they threw away their
votes)
o What is the rule for an appointive office?

The court can determine who among the parties has
legal title to the office.
Common provisions for EP, QW

100
Is execution pending appeal allowed?
o Yes, the court may grant a motion to that effect. But it must be
for urgent reasons.
o What are some allowable reasons?

1. Public interest involved

2. Shortness of remaining term

3. Length of time that the contest is pending
o A combination of any 2 will grant the petition, but not shortness
of remaining term alone as reason
o This is to prevent abuses through the “grab the proclamation,
prolong the contest” tactic.
o When is motion for execution pending appeal filed?


During period to file the appeal.
Can damages be awarded in QW or EP cases?
o Yes.
o When can there be indemnification for expenses for the
election case as spent by the winner?

When there is a wrongful act or omission clearly
attributable to the losing party
o What if the election case has become moot (ex. The right
to office no longer exists because it has taken so long)?

There can still be award of damages

In this case, can there be indemnity for damage
suffered by the other party due to the execution
pending appeal?

No. It is damnum absque injuria.
o


Election offenses


When are election offenses committed?
o Only as soon as campaign period starts. Any supposed
premature campaigning cannot be prosecuted before start of
campaign period.
What are some of the prohibited acts?
o 1. Vote-buying or vote-selling
o 2. Wagering upon result of the election
o 3. Threats, intimidation, terrorism, use of fraudulent devise,
forms of coercion
o 4. Appointment of new employee

Except when there is urgent need

What is required?

Notice given to COMELEC within 3 days
from appointment, creation of new positions,
promotion, or granting salary increase
o 5. Carrying deadly weapon within radius of 100 meters from
precinct

Must the weapon be seized within the prohibited
radius?

No, as long as he entered the prohibited
radius anytime during the period



101
6. Transfer or detail of government official or employee without
COMELEC approval

When will it not be penalized?

If done to promote efficiency in government
service

What are the elements of the violation?

1. Fact of transfer or detail within election
period

2. Transfer or detail made without prior
approval of COMELEC
Is good faith a defense?
o No. Offenses are mala prohibita.
Who has jurisdiction over election offenses?
o 1. COMELEC has exclusive jurisdiction to investigate and
prosecute cases involving violation of election laws.

It may validly delegate to the Provincial Prosecutor.
o 2. Trial and decision – the RTC has exclusive original
jurisdiction to try and decide election laws

What is the exception?

MTC  over offenses relating to failure to
register or to vote
What is the prescriptive period for election offenses?
o 5 years from date of commission
o What if the offense is discovered during an election
contest proceeding, when does prescription start?

From the date the judgment becomes final and
executory
What is the rule on preferential disposition?
o 1. Investigation and prosecution given priority by the
COMELEC
o 2. Courts also give preference to disposition of election cases

Except over habeas corpus
What is the full list of election offenses under Sec. 68 of the OEC
(N.B. these are grounds for DQ too)?
o 1. Vote-buying
o 2. Acts of terrorism
o 3. Spending in excess of allowable limit
o 4. Soliciting, receiving, or making prohibited contributions
o
o
o
o

o
5. Campaigning outside period
6. Tamper with election propaganda
7. Prohibited election propaganda
8. Coercing subordinates to aid, campaign, or vote for a
candidate
o 9. Using threat, intimidation, terrorism, fraudulent, devises
o 10. Soliciting votes or electioneering during registration day
and election day within polling place or within 30 m radius
o 11. Public official or employee who releases, disburses, or
expends public funds 45 days before election or 30 days
before special election
o 12. PP holds political conventions or meetings to nominate
official candidates earlier than allowed period
o 13. Destroying or cancelling a COC which has not been
cancelled
o 14. Misleading BEI by submitting false or spurious COC to
detriment of a candidate
o 15. Receiving COC out of allowed time and making it appear it
was filed on time; or coercing the officer to perform this act
o 16. Interference with radio or TV broadcast of lawful political
program
o 17. Soliciting votes on election day
What are other offenses laid out in RA 6646?
o 1. Causing printing of official ballots and ERs by printing
establishments not on contract with COMELEC or undertaking
unauthorized printing
o 2. Tampering, increasing, decreasing votes received by
candidate (or refusing to correct the votes even after proper
verification and hearing)
o 3. Refusing to issue certificate of voters to accredited watchers
(committed by BEI member)
o 4. Prohibited forms of election propaganda
o 5. Failure to give notice of meetings to other members of the
board, candidate, or PP (by chairman of board of canvassers)
o 6. Person declared as nuisance candidate continues to
misrepresent himself as a candidate and public officers who
induce or abet such misrepresentation
7. Chairman of BEI fails to affix his signature at the back of the
official ballot, in the presence of the voter, before giving the
ballot to the voter
LOCAL GOVERNMENT
Constitutional provisions




102
What are the territorial and political subdivisions?
o Provinces, cities, municipalities, barangays
o Autonomous regions: Cordillera, Muslim Mindanao
o What if you want to change the subdivisions?

There must be a constitutional amendment

Ex. Adding a third autonomous region
Autonomy versus decentralization:
o Decentralization – there is a hierarchy only
o Autonomy – can make decisions without going up
o What is given to LGUs?

Administrative autonomy/decentralization of
government authority
o What is given to autonomous regions?

Political autonomy
o Congress can change government structure; except what is
provided by the Constitution
What does the LGC provide?
o Initiative and referendum  can cover both ordinances and
resolutions
o Recall  juridical entities may also initiate recall elections
under the LGC. It is not an exclusive prerogative for the
people to initiate recall elections

N.B. but RA 9244 removed the power of the
Preparatory Recall Assembly in the LGC to initiate
recall elections
What is the supervisory power of the President?
o 1. General supervision over all LGUs

Can only interfere if the LGU acted against law



Power of general supervision includes power to
suspend and remove
o 2. But in particular, President exercises direct supervision over:

Provinces

Autonomous regions

Independent cities
o 3. Provinces exercise direct supervision over:

Component cities

Municipalities
o 4. Cities and municipalities exercise direct supervision over:

Barangays
o Can the Secretary of Justice pass judgment over
constitutionality of local tax measures?

Yes. This is NOT power of control, but supervision
because he is checking compliance with laws.
o What is the power over the MMDA?

Also of general supervision, since it is part of local
governments

Council of MMDA consists of mayors, although some
members are department secretaries, they do not
have voting power – merely advisory
What is the nature of taxing power of local governments?
o Now constitutional; before, it was statutory
o What can limit taxing power of local governments?

Only statutes. So it cannot be limited by EOs or AOs.
o This provision removed tax immunities of certain companies.
Local governments could tax them. If the charter is changed to
exempt them again, then they are exempt.
o How is the power of LGUs to tax interpreted?

Liberally interpreted in its favor as against the State

Strictly interpreted against it as against taxpayers
o QC v. ABS-CBN: ABS-CBN pays franchise tax equivalent to
3% of all gross receipts “in lieu of all taxes.” This exemption
does not clarify against which the exemption applies. Settled:
ABS-CBN pays income tax and franchise tax. But whether this
exemption applies to local tax: unclear. ABS-CBN has burden
to prove this. They did not.

Smart v. Davao: “In lieu of all taxes” must expressly
mention local taxes for the exemption to extent to this.

103
LGUs have share in national taxes (IRA – Internal Revenue
Allotment):
o But national government has no share in local taxes
o Share is national taxes is automatically and fully released
o Cannot place conditions or provide that release is gradual
o What is required in appropriation of its annual IRA?

At least 20% must be spent according to local
development plan – development or infrastructure
projects
o President can make adjustments in IRA upon
recommendation of:

1. DOF Secretary

2. DILG Secretary

3. DBM Secretary
o Is the IRA included in considering whether an LGU has
complied with the income requirement for conversion into
another political subdivision (ex. Municipality to city)?

Yes.

NOTE, however, that RA 9009 expressly excludes
IRA form counting w/n a municipality is qualified to be
a city

League of Cities v. COMELEC: “Cityhood Laws”
were first deemed violative of EPC, because 16
municipalities were allowed to convert into cities in
spite not meeting the requisite income requirement.
But it was REVERSED on MR. The 16 municipalities
had pending cityhood bills prior to the passage of RA
9009 which increased the income requirement from
20M to 100M. The 16 were the only ones left among
the more than 50 who had simultaneously pending
cityhood bills, and were unfairly left behind.
What is the right of LGUs over the national government utilizing
and developing national wealth in their areas?
o 1. Equitable share in the proceeds of such; or
o 2. Direct benefits to inhabitants
o What is the particular LGC provision?

LGUs get 40% share of collection within territory
derived by national government from mining taxes,
royalties, forestry and fishery chares, other taxes,



fees, and charges, and share in co-production, JV, or
production-sharing agreement
In sum, what are the sources of income of an LGU?
o 1. Local taxes, fees, charges
o 2. IRA
o 3. Share in proceeds of utilization of local natural resources
o 4. Other sources of revenue in its public or proprietary capacity
What is the term of elective local officials?
o No elective official shall serve for more than 3 consecutive
terms
o TWO requisites:

1. Must be elected three consecutive terms

2. Must have fully served three consecutive terms
o What is not an interruption:

1. Voluntary renunciation

2. Suspension
o X served 3 terms fully then ran in recall election. The
interruption was just 2 months. Valid?

The interruption was sufficient.
o Does changing of municipality to city constitute
interruption?

No, because there is no change in the constituency or
territory
o X, a municipal councillor was by operation of law elevated
to vice-mayor. Was there interruption?

Yes, there was interruption in his term as councillor.
o What is the rule for barangays?

The Congress determines the length of their term. It
can also be 3 years (and it is)
LGU creation, division, merger, abolition, substantial alteration of
boundary:
o 1. Must be according to criteria in LGC

Ex. RA 9009 increased requirement of income from
P20M to P100M (which was the root of the cityhood
laws controversy)
o 2. By act of congress
o 3. And subject to approval by majority of votes in plebiscite in
directly affected political units

Municipality to city  in city





104

Province split into two  in whole province

Province included in another  in both
o What doesn’t require a plebiscite?

Reapportioning of districts (ex. splitting one electoral
district into two), because you are not creating a new
LGU per se. However, conversion of a municipality
into a city requires a plebiscite because you are
creating a new LGU.
Special Metropolitan political subdivision:
o Retain basic autonomy
o Have own local executives and legislative assemblies
o Jurisdiction limited to basic services needing cooperation
o What is needed to form this?

Assembly and plebiscite
o Does the MMDA fall under this provision?

No. MMDA is not under the above section. It was not
subject to plebiscite

MMDA is not a local government entity. Thus it has
no police power, power to expropriate, or tax
What are the three kinds of cities?
o 1. Highly Urbanized city (HUC)

As determined by law
o 2. Independent component cities

Non-HUC but charters prohibit voters from voting in
provincial elections
o 3. Component cities

Still under provincial control
Which do not vote in provincial elections?
o HUCs and independent component cities
o Neither can their residents run for provincial office
Local governments may group themselves voluntarily; no need for
legislation
What are regional development councils?
o Composed of:

1. LG officials

2. Regional heads of departments and other
government offices

3. Representatives of NGOs within region
o Purposes:




1. Administrative decentralization
2. Strengthen local autonomy
3. Accelerate economic and social growth
Autonomous regions








Only two allowed (Cordillera, MM)
o Anymore and you amend the Constitution
Creation of organic act does not create the autonomous region; there
must be a voting
o Those who voted against may still join in the future, but there
must be another plebiscite involving all
o What if only 1 province approved the law in a plebiscite?

It fails. There has to be at least 2 provinces.
President has general supervision over autonomous regions
Powers of A.R. are enumerated. Those not enumerated remain with
national government
What powers remain with national government?
o 1. National defense and security remains with national
government
o 2. Foreign relations
o 3. Monetary affairs
Pandi v. CA: Ordinary statute cannot amend an organic act. It must be
by plebiscite.
Sema v. COMELEC: Only Congress can create provinces and cities,
because creation of such will lead to creation of legislative districts too.
So ARMM Regional Assembly cannot create provinces and cities.
What does the organic act contain?
o 1. Basic structure of government – must have elective and
representative legislative assembly and executive department
o 2. Special courts with jurisdiction over personal law, family law,
and property law





Public corporations

What are the two types of public corporations?
o 1. Quasi-corporation – created by the State for a narrow
purpose
o 2. Municipal corporation – body politic and corporation
constituted by the incorporation of the inhabitants for the
purpose of local government
What are the elements of municipal corporations?
o 1. Legal creation or incorporation by law
o 2. Corporate name
o 3. Inhabitants
o 4. Territory
What is the dual nature of municipal corporations?
o 1. Political subdivision
o 2. Corporate entity representing inhabitants
What is their dual function?
o 1. Public/governmental

Agent of the State to govern territory and inhabitants
o 2. Private/proprietary

Agent of community in administration of local affairs
Who may create municipal corporations?
o Congress.
o It may also abolish, merge, create, and divide them by law.
o Can Congress delegate to the ARMM the power to create
provinces, cities, barangays, and municipalities?

There is no provision that prevents delegation of
power to create municipalities and barangays

But the power to create provinces and cities may not
be delegated because it necessarily entails the
creation of legislative districts which only congress
can do.
What are the rules for creation/conversion?
o See discussion above (re: plebiscite, etc.)
What are the current indicators to meet?
Classify corporations according to purpose:
o Public –for the government of a portion of the State
o Private –for some private purpose or aim
o Quasi-public – private corporation that renders public service
Barangay
Barangay (in
MM or HUC)
105
Income
N/A
N/A
Population
2k
5k
Land area
N/A
N/A
Municipality
City
HUC
Province






2.5 M
100 M (amended
by RA 9009)
50 M
20 M
25k
15k
50 sq. km
100 sq. km
200k
250k
N/A
2000 sq. km

What is rule for division/merger?
o Same, but the new units must not go below the minimums set
above
When can there be abolition?
o When the income, population, or land has been reduced to an
irreversible extent.
o Must provide which LGU it will be incorporated with.
When is the beginning of its corporate existence?
o Upon election and qualification of chief executive and majority
of sangguinian members
o Unless provided otherwise by the law/ordinance making it
Requisites for a de facto municipal corporation?
o 1. Valid law authorizing incorporation

If the basis is an E.O., there is no valid law
o 2. Attempt in GF to organize
o 3. Colourable compliance with law
o 4. Assumption of corporate powers
How must an attack against validity of incorporation be
undertaken?
o It must be direct, through quo warranto or any other direct
proceeding
o What if the challenge was raised too late (ex. 30 years, 16
years)?

The corporation can be treated as de jure, due to
estoppel
Distinguish between municipal corporation by prescription from de
facto municipal corporation:
o De facto needs valid law
o For prescription, just passage of time

N.B. So there can be municipal corporations without
charters (prescription)



What is devolution?
o Transfer of power from National government agencies to local
government, to perform specific functions and responsibilities

It is power-specific and expressly mentioned. If not
devolved, then it still belongs to the national
government.
o Covers people, assets, services, regulatory powers
o “Political decentralization”
What is de-concentration/decentralization?
o Transfer of powers from National Government Agencies to
their respective regional offices

Need not be expressly provided in the LGC
o Covers just powers/functions
o “Administrative decentralization”
Is power to expropriate a devolved power?
o No. It is a delegated power.
o Example of devolved powers:

Approval of subdivision plans

Franchising tricycles

Regulating cockfighting

Primary health care
In case of doubt, how is a law interpreted if it can be resolved in
favor of higher or lower LGU?
o The lower LGU, in case there is doubt (favouring devolution)
General Welfare Clause


Powers of LGUs

106
What is the General Welfare Clause?
o It is the statutory grant of police power to LGUs
o So it’s not inherent; it’s granted by law.
What are the branches of the GWC?
o 1. General legislative power –

To enact ordinances and regulations necessary to
carry out duties
o 2. Police power proper –

To enact ordinances as necessary and proper to
provide for health, safety, prosperity, improvement of
morals, peace, good order, etc.
What are the limitations to exercise of GWC?
o


o
1. Only within territorial limits of the LGU

Except: for protection of water supply
o 2. EPC
o 3. Due process clause
o 4. Must not be contrary to Constitution and the laws
Authority over police units is provided by law.
Which of the following does not fall under general legislative
branch of the general welfare clause?
o Imposition of curfew on minors. This is actually PP.
o Which fall under the general legislative branch of the
GWC?

Power to zone

Abatement of nuisance per se

Power to issue business permits
 Curbing vagrancy

Eminent Domain


Basic Services and Facilities




Where are these basic service and facilities found?
o LGC, Sec. 17
Can the LGU use funds to widen and improve sidewalks in
subdivisions?
o No. Subdivision streets are private until donated to the
government or expropriated
What about public works and infrastructures funded by the
national government?
o Not covered by Sec. 17, except when the LGU is tasked to
implement such projects



Power to generate and apply resources


4. Revenue must solely inure to the benefit of the LGU, unless
provided in the LGC
o 5. Progressive system of taxation, as far as practicable
What is the relationship of LGU power to tax vis-a-vis Congress?
o Congress can limit this power of LGCs, but cannot take away
the power to tax

This is discussed above (sources of LGU revenue)
What are the principles in LGU taxation?
o 1. Taxation must be uniform
o 2. Taxes, fees, charges are equitable and based as far as
practicable on ability to pay; levied and collected for public
purposes; not unjust, excessive, oppressive or confiscatory,
not contrary to law, PP
o 3. Collection must not be let to any private person

107
Check the general provisions on eminent domain
What are the additional limitations?
o 1. Exercised by local chief executive, acting pursuant to valid
ordinance
o 2. For public use/purpose/welfare, for benefit of poor or
landless
o 3. Only after a valid and definite offer is made to and not
accepted by the owner
Can expropriation be through resolution?
o No, it must be an ordinance.
Differentiate procedure between local expropriation and national
expropriation (for immediate entry):
o Local  1) file complaint, 2) deposit amount equivalent to 15%
of FMV of property based on tax declaration
o National  1) file complaint, 2) deposit amount equivalent to
assessed value of the property
When do you have to follow the Urban Development and Housing
Act?
o Only if private land is expropriated for socialized housing
Can the RTC determine the existence of genuine public necessity?
o Yes.
In the exercise of local eminent domain over agricultural land, a
city must:
o Show the genuine necessity of the exercise of power
o No need to secure approval of the DAR
Can the Provincial Government disapprove the municipality’s act
of expropriating a parcel of land for government use?
o No. The power of eminent domain belongs to the municipality,
under the LGC.


The province, in reviewing a municipal expropriation ordinance,
has the power to:
o ONLY to declare the ordinance ultra vires for non-compliance
with requirements in the 1991 LGC.
o Again, supervision, not control. Cannot:

Choose another property

Set just compensation, etc.

Reclassification of lands



Done by a city or municipality through ordinance passed after
conducting public hearings
When can agricultural lands be reclassified and their utilization
and disposition be provided for?
o 1. When the land ceases to be economically feasible and
sound for agricultural purposes (determined by DOA)
o 2. Land has substantially greater economic value for
residential, commercial, or industrial purposes

Limited by percentages of allowable agricultural land
to be reclassified

Even DAR has to comply with these percentages
What is the limitation on percentages of reclassified agricultural
land:


How is this done?
o Through ordinance, approved by at least 2/3 of the members of
the sanggunian
o And when necessary, an adequate substitute is provided
Can be temporary or permanent
o What cannot be permanently closed?

National road

Public plaza

Freedom park  unless there is a substitute
o A national road can be temporarily closed for a local fiesta,
public rally, agricultural or industrial fair, or undertaking of
public works and highways
o A national road cannot be temporarily closed for athletic,
cultural, or civic activities not officially sponsored, recognized,
or approved by the LGU
Additional limitations?
o 1. Adequate provisions for public safety
o 2. Property may be used or conveyed for any purpose for
which other real property may be lawfully used and conveyed

EXCEPT freedom parks, which must be transferred or
relocated elsewhere
Includes parks, markets, etc.
Legislative power
HUC and ICC
CC and 1st to 3rd class
municipalities
4th to 6th municipalities



15%
10%

5%

What cannot be reclassified?
o Those distributed through CARL
What is the power of the President?
o With NEDA recommendation, can authorize a city or
municipality to exceed the limits set here
What if there is need for approval by a national agency for
reclassification?
o Failure to act on a proper and complete application within 3
months from receipt is deemed as approval


Closure and Opening of Roads
108
Distinguish ordinance from resolution:
o Ordinance – permanent rule of conduct
o Resolution – temporary character or expresses sentiment
What are the requisites for validity?
o 1. Not contravene Constitution or law
o 2. Not unfair or oppressive
o 3. Not partial or discriminatory
o 4. Not prohibit, but may regulate trade
o 5. Not unreasonable
o 6. General in application and consistent with PP
Who exercises the power to veto?
o The LCE. It is intra-LGU
What about power of supervision?
o It is inter-LGU





Note: there is a veto (local CE) and 2/3 veto-override (sanggunian)
system here too, between the local chief executive and the members of
sanggunian. This is akin to the national legislative process.
o What is the exeception?

The punong barangay has no veto power. He has no
choice but to sign the ordinances enacted by the
sanggunian Barangay
o Remember: there are two kinds of “veto” – first, within the
sanggunian itself, exercised by the local CE; second, by a
higher sanggunian (power of supervision)
What is the review system of the provincial government over
ordinances/resolutions of the municipal or component city
governments?
o 1. Within 3 days of approval, the secretary forwards the
approved ordinance or resolution to the sanggunian
panlalawigan.
o 2. It has 30 days to disapprove it, if it is beyond the power
conferred upon the component city or municipality.

N.B. The rule on consistency between higher and
lower LGUs does not apply to provinces and
municipalities, just municipalities and barangays.
o 3. If there is no action within 30 days, it is deemed approved.
o N.B. Since this is pursuant to the power of supervision, it can
only check the legality of the subordinate legislation
What is the review system of the municipal or component city
governments over ordinances/resolutions of the barangay?
o Same as above, except there is no veto. The higher
sanggunian can only recommend revisions and the barangay
ordinance will be suspended until the revision is made.
What if the subordinate local government unit still enforces the
ordinance/resolution notwithstanding veto by the province or
suspension by the municipality or component city?
o It is a ground for disciplinary action
When do ordinances/resolutions take effect?
o 10 days after posting in entrance of the LGU capitol + in 2
conspicuous public places
o What about publication?

Publish main features in a newspaper of GC in the
province of that local legislative body. If there is

109
none, post ordinance in all the municipalities/cities in
the province.

For HUC and Independent Component Cities, main
features published in a newspaper of GC within the
city. If none, then any newspaper of GC.
What is the procedure for local initiative?
o 1. File petition with local legislative body to enact, adopt,
repeal, or amend any law, ordinance, or resolution

At least 2000 for autonomous regions, 1000 for
provinces and cities, 100 for municipalities, 50 for
barangays
o 2. If the body takes no action within 30 days, then the people
can give notice to the body that they are invoking their power
of initiative
o 3. Proponents attempt to get required number of signatures:

120 days for autonomous regions

90 days for provinces and cities

60 days for municipalities

30 days for barangays

How many signatures are needed?

Province or city: at least 10% of registered
voters, including 3% for each legislative
district
o If there is only one legislative
district, the 3% requirement applies
to municipalities (for province) or
barangays (for city)

Municipality: at least 10% of registered
voters, including 3% for each barangay
therein

Barangay: at least 10% of registered voters

Where is it signed?

Before the election registrar, and in the
presence of a representative of the
proponent and representative of the
legislative body concerned in a public place
in the LGU
o 4. After period, the COMELEC certifies whether the required
number of signatures were met

o




5. After certification, COMELEC sets initiative date where
registered voters approve/reject the proposition:

Within 90 days for autonomous regions

Within 60 days for provinces and cities

Within 45 days for municipalities

Within 30 days for barangays
o 6. Initiative itself, on the date set, where results are certified
and proclaimed by the COMELEC
When do local propositions become effective?
o 15 days after certification of the COMELEC of its passing
What are limitations on local initiative?
o Power of local initiative only exercisable once a year
o Only on matters within legal powers of the local bodies
concerned
o If any time before the initiative is held, the local body adopts
the proposition in toto, the initiative is cancelled
What are the limitations on local bodies?
o 1. Cannot repeal, modify, or amend ordinance or resolution
passed through initiative within 6 months from date thereof
(absolute prohibition)
o 2. Can only repeal, modify, or amend it within 3 years by a vote
of 3/4 of all its members (stricter repeal in certain period)

N.B. for barangays within 1 year from expiration of
first 6 months
What is the procedure for local referendum?
o Any local body can submit to the registered voters the question
of whether to approve or reject any ordinance or resolution
o When is the referendum held?

Within 60 days for provinces and cities

Within 45 days for municipalities

Within 30 days for barangay
o Certified by the COMELEC


Corporate Powers


1. Continuous succession
2. To sue and be sued
o Who can sue?

110
In general, local executive with authority of
Sanggunian

Except when City Councillors bring action to prevent
unlawful disbursement of city funds
o Who must represent the municipality?

The provincial fiscal or municipal attorney.

Can only employ a private attorney if the two above
are disqualified and the reasons for such are
provided. There are several cases on this.
o When is Sanggunian prior approval required?

If the LCE enters into a contract, but NOT if he files a
suit (except if there is ratification of a contract initially
ultra vires)
3. To have and use a corporate seal
4. To acquire and convey real or personal property
o Through any manner provided by law.
o What can it alienate?

Only patrimonial property
o What is the presumption on character of property?

If there is no proof that it was acquired through
corporate or private funds, it is presumed to have
come from the State upon creation of the municipality.

Thus, it is governmental/public property.
o What is the character of public plazas?

Public, and is beyond commerce of man. It cannot be
leased or subjected to contractual undertakings.

Same with public streets.
o What is the rule on open spaces in a subdivision?

They should be donated to LGU where the
subdivision is found.

The donation can be subject to conditions, which
must be legal.
o What is the rule on procurement of supplies?

Must be by public bidding.

If the amount is minimal, then it can be by personal
canvass of at least three responsible merchants.
5. To enter into contracts
o What are the requisites?

A. LGU has the power to enter into that contract

o
o
o
o
o
B. It must be entered into by the proper department,
board, committee, officer, or agent.

Local chief executive must have sanggunian
concurrence

C. Contract complies with certain substantive
requirements:

Ex. Actual appropriation and availability of
funds

D. Comply with formal requisites of contracts
What if there is non-compliance with #1 or 3?

Ultra vires and void. Cannot be ratified, because they
are acting beyond jurisdiction.
What if there is non-compliance with #2 or 4?

Can be ratified. (Only formal or procedural matters)
When can a contract be impaired?

Exercise of police power.
Can the local chief executive negotiate and secure grants?

Yes, with authority from the sanggunian, from local
and foreign assistance agencies.

No need to secure clearance from national
government, unless there are national security
implications.




Municipal liability


What is the general rule?
o LGUs and officials are not exempt from liability for death or
injury to persons or damage to property.
o But see qualifications below.
What are the specific provisions of law in the NCC?
o 1. LGU is liable in damages for death or injury due to defective
condition of streets, public buildings, or other public works

Does the city have to own that road?

No. As long as it exercises control or
supervision over the road.

So even if it enters into managing contract
with a private entity, it can be held liable
o 2. State is responsible when it acts through a special agent
111
3. LGU liable in damages for injuries suffered due to failure or
refusal of police force to render aid and protection in case of
danger to life or property.
When is the LGU liable for tort?
o 1. If the LGU is engaged in governmental function, it is not
liable for tort.

Ex. Prosecution of crimes

Ex. Public works, like usage of dump truck
o 2. If the LGU is engaged in proprietary function, it is liable.

Ex. Granting of proprietary ferry service franchise to
another, notwithstanding prior grant to an entity

Ex. Town fiestas

Ex. Operation of public cemetery
o Is the municipality liable for illegal dismissal of its
employees?

Yes.
When is a local official personally liable?
o When they act in a malicious and wanton manner and injure
individuals rather than discharge a public function
Can an LGU be held liable for violation of law?
o Yes. Ex.: failing to indemnify persons in expropriation, failure
to pay minimum wage, failure to abide by TRO
What is the LGU’s liability for contracts?
o Like an ordinary person, liable for contracts, if intra vires. If
ultra vires, it is not.
o What is the expectation from private individuals who deal
with municipal corporations?

The private person knows the extent of power or
authority of the municipal corporation as re: contracts.
o Does estoppel apply to municipal corporations?

Ordinarily, no.

Estoppel cannot make an ultra vires contract valid,
because that effectively would make the municipal
corporation do what it cannot do.
o But what is the doctrine of implied municipal liability?

The LGU is obligated to pay reasonable value of the
benefits accepted or appropriated by it as to which it
has the general power to contract. This is an “implied
contract.”
o
o
Illustrate:

The LGU cannot set up the plea that the contract was
ultra vires and still retain benefits under it.
Local Officials


What are the prohibited interests of both elective officials and
appointive officials?
o 1. Business transactions with his own LGU and where money
or anything of value is given
o 2. Hold interests in cockpit or other games licensed by LGU
o 3. Purchase other property forfeited in favour of LGU
o 4. Be a surety for a person doing business with LGU when one
is required
o 5. Can’t possess or use public property for private purposes
o 6. Prohibitions in RA 6713:

A. Financial or material interest with office transaction

B. Outside employment and other related activities
like recommending persons to positions in private
enterprises transacting with him

C. Disclosure or misuse of confidential information

D. Solicitation or acceptance of gifts
What is the rule on practice of profession by elective and
appointive officials?
o Governors, mayors (whether city or municipality)  cannot
practice profession or any other occupation
o Sanggunian members:

May practice occupation except during session hours

For those who are lawyers –

1. Cannot appear as counsel in civil case
where adverse party is the LGU
o N.B. so they can defend the LGU

2. Cannot appear as counsel in criminal case
where any public officer, national or local, is
accused of offense related to office
o N.B. this is any public officer

3. Cannot collect any fee for appearance in
administrative proceedings involving LGU
where he is an official

N.B. so they can appear in admin
proceedings, but not charge

4. Cannot use property and personnel of
government, except when the sanggunian
member is defending interest of the
government

For doctors of medicine –

May practice even during official hours of
work for emergencies

But they should not derive monetary
compensation from it
What are the two prohibitions re: appointment applicable to
elective and appointive officials?
o 1. Cannot be appointed or designated in any public office

Except for positions that are allowed by law or primary
functions of office
o 2. Lame duck provision applies

Except for losers in barangay elections
Elective officials

What are the qualifications of elective officials?
o 1. Citizen of Philippines

When must one be a citizen?

Upon proclamation

X filed his certificate of candidacy. After, his
application for repatriation was granted. And
then, he won and took his oath. Is this allowed?

Yes, because you only need to possess
qualifications upon proclamation

And repatriation retroacts
o 2. Registered voter in the LGU (or for sanggunian member, in
the district) where he intends to be elected
o 3. Resident therein for at least 1 year immediately preceding
election
o 4. Can read and write Filipino or local language
o 5. On election day, must be at least:
23 years old
112
21 years old
18 years old
15 years old
Governor
Mayor of ICC
City sanggunian
(non-HUC)
Vice Governor
Vice Mayor of
ICC
Mayor of CC
Municipality
sanggunian
Punong
Barangay
Barangay
sanggunian
Provincial
sanggunian
Mayor of HUC
Vice Mayor of
HUC
City sanggunian
of HUC
Vice Mayor of
CC
Mayor of
municipalities
Vice Mayor of
municipalities
Sangguniang
Kabataan
(until 21 years
old)
Governor
Mayor
Vice Governor or Vice Mayor
Barangay captain
Sanggunian member in province,
HUC, or ICC
Sanggunian member in CC or
municipality
Sanggunian member in barangay
SK member

Guide: all sanggunians are 18 (except HUC). All mayors and vice mayors
are 21 (except HUC). HUCs are always 23. Province, Gov, Vice Gov are
23.


Who are disqualified from running for office?
o 1. Sentenced by FJ for offense involving moral turpitude or
offense punishable by one year or more of imprisonment

Within two years of serving sentence
o 2. Removed from office as result of administrative case
o 3. Convicted by FJ for violating oath of allegiance to RP
o 4. Dual citizens (in fact, dual allegiance. See citizenship
section)
o 5. Permanent residents in foreign country with desire to
continue staying abroad
o 6. Fugitives from justice in criminal or non-political cases here
or abroad

No need to have actually been convicted

Note that political offenses are excluded
o 7. Insane or feeble-minded
When are elections?
o 2nd Monday of May every 3 years
Appointed by Governor
Appointed by city or municipal mayor
Official next in rank
What are the two rules that must be complied with for appointed
replacements?
o 1. There must be recommendation by the sanggunian
concerned
o 2. The replacement must be from the same political party of
the one replaced, if there is one
Rules on succession for temporary vacancies:
Rank
Governor
Mayor
Barangay Captain


Rules on succession for permanent vacancies:
Rank
Vice Governor
Vice Mayor
Highest ranking sanggunian
member, in order (according to
number of votes in elections)
Highest ranking sanggunian member
Appointed by President
Replacement
113
Temporary official in charge
Vice Governor
Vice Mayor
Highest ranking sanggunian member
For which positions does this provision apply?
o Local Chief Executives (Governor, city or municipal mayor, or
punong barangay)
o For what situations?

LOA, travel abroad, suspension, etc.
What powers can they not exercise?
o Appoint, suspend, terminate, or dismiss
o What is the exception?

When temporary incapacity lasts for more than 30
working days
o What is the rule for travel within the country but outside
LGU jurisdiction for period up to 3 days?


Rank
Governor, Vice Governor; Mayor and
Vice Mayor of HUC or ICC
Mayor and Vice Mayor of CC or
municipality
Barangay official
Sanggunian member

o
o
The LCE appoints an officer-in-charge, and specifies
powers, which does not cover appointment,
suspension, termination, dismissal

What if the LCE fails to appoint an OIC?

The Vice (governor/mayor) or highest
ranking sanggunian member (brgy. Capt.)
can take over from the fourth day.
How is resignation effected?
o Only upon the acceptance by the following authorities:

Who accepts resignation
President
Governor
City or municipal mayor
Sanggunian concerned
When is it deemed accepted?
o If not acted upon within 15 working days
o For sanggunian members, if presented before an open session
and entered into records
Discipline of Local Officials

What are grounds for disciplinary action against elective officials?
o [disloyalty provisions]
o 1. Disloyalty to RP
o 2. Application for or acquisition of foreign citizenship or
residence/status as immigrant
o 3. Culpable violation of Constitution
o [violating acts]
o 4. Dishonesty, oppression, misconduct in office, gross
negligence, dereliction of duty

Case: Acts of lasciviousness – not a ground to
suspend per se; the official must be convicted in
criminal action
o 5. Commission of any offense involving moral turpitude or
offense punishable by at least prision mayor
114
6. Abuse of authority
7. Unauthorized absence for 15 consecutive working days

Except for members of sanggunians
o [catch basin]
o 8. Other grounds in the LGC and laws
Who has jurisdiction over the complaint?
o 1. Elective officials of provinces, HUCs, or ICCs  President

How does the Constitution and the LGC divide
powers among branches as re: discipline?

The Constitution gives the President power
to supervise LGUs

The Constitution gives Congress power to
specify provisions for removal of officials
o In the LGC  Congress effectively
delegates this to the President

The President thereafter validly delegated in
AO 23 to the DILG Secretary the
investigation (just investigation, not power to
discipline per se).

The elective official has a right to a formal
investigation (confront witness, right to appear and
defend self in person, to counsel, etc.)
o 2. Elective municipal or CC officials  Sanggunian
panlalawigan

How is appeal done?

To the Office of the President

Does appeal suspend execution of the decision?

Generally, no

But it can be suspended by the President
(AO 18)
o 3. Elective barangay officials  Sanggunian panlungsod or
Sangguniang bayan (municipality)

What is the nature of the decision?

Immediately final and executory

But this does not mean it cannot be
appealed

Where is appeal made?

To sanggunian panglalawigan concerned





o
o
Due process:
o There must be a formal hearing. While submission of position
papers is allowed after formal hearing, the investigating
authority cannot rely solely on these.
o Can an official file a motion to dismiss?

Yes, this is not prohibited.
Preventive suspension –
o Grounds:

1. evidence of guilt is strong

2. given gravity of offense, continuance in office could
influence witnesses or pose threat to safety/integrity
of evidence or records
o Who can suspend?

President, governor, or mayor
o How long?

60 days maximum per suspension

And no more than 90 days in a single year
for the same ground

After which, automatically reinstated
o What about the OMB?

The OMB can concurrently exercise power of
preventive suspension, but under RA 6770 – it can be
up to 6 months
Who may remove an elected LG official from office?
o ONLY THE COURTS. The sanggunians, and other officials
have no power to impose removal from office.
o What is the nature of suspension as penalty?

1. It may not exceed 6 months or the remaining period
of his term

2. It is not a bar to subsequent re-election
What is the effect of re-election into office as regards an
administrative case that is pending?
o It is tantamount to a condonation by the people of the past
offense. It bars the continuation of the investigation. (Doctrine
of condonation)
o What if there is a decision already but an MR was filed?

It’s not yet final so re-election condones the offense.

In accordance with CS law and rules.
Is there preventive suspension too?

Yes, for period of not more than 60 days.

What are the grounds?

1. Charge involves dishonesty, oppression,
grave misconduct

2. There is reason to believe he is guilty of
charges, that would warrant removal from
office
What is disciplinary jurisdiction over acts of appointive officials?
o Local Chief Executive may impose penalty of:

Removal from service

Demotion of rank

Suspension of at most 1 year without pay

Fine in amount not exceeding 6 months’ salary

Reprimand

N.B. Note that for appointive officials, the LCE is the
one that exercises jurisdiction, and then appeal is to
the CSC. Meanwhile, elective officials it’s usually the
higher legislative body (except Congress, which
delegated to the President punishment of officials in
Provinces, ICCs, and HUCs)
o When is the decision final?

When the suspension without pay is not more than 30
days
o What if the penalty is heavier?

It is appealable to the Civil Service Commission
o What is the special rule for City Revenue Officers?

It is the City Treasurer, not the City Mayor that has
jurisdiction over them
Recall

See public officers part
Settlement of boundary disputes

How are appointive local officials and employees disciplined?
115
What is the first principle for boundary disputes among LGUs?
o It must be settled amicably as much as possible

o
Where must disputes be referred to:
First disputant
Barangay
Municipality
Municipality or
component city
Second disputant
Barangay in same city
of municipality
Municipality in same
province
Municipality or
component city in
different province
Municipality or
component city
HUC
HUC
HUC
Municipality
ICC in the same
province
Where referred to
Sanggunian
panglungsod or
Sanggunian
pangbayan
Sanggunian
panlalawigan
Jointly referred to
respective Sanggunian
panlalawigans of both
provinces
Jointly referred to
Sanggunian
Panlalawigan and
Sanggunian
panlungsod
Jointly referred to
Sanggunian
panlungsod of both
cities
RTC of the province
NATIONAL ECONOMY AND PATRIMONY AND OTHER PROVISIONS
National Economy and Patrimony




What is the three-fold goal of national economy?
o 1. Equitable distribution of wealth
o 2. Increase of wealth
o 3. Increased productivity
What is the relationship between agriculture and industrialization?
o There is synergy between the two
Regalian doctrine

Why: because the LGC
missed this particular
situation, so the default
rule that cases are filed
in the RTC applies
(Kananga v. Madrona)

To the RTC, within 15 days (because it says “within time
prescribed in ROC”)
What is the power of the sanggunian panlalawigan in boundary
disputes?
o Not just amicable settlement but hearing and deciding the case
according to law.
o N.B. it cannot alter boundaries – must base decision on law
How long does the sanggunian have to decide the case?
o 60 days from referral  try to arrive at amicable settlement
o If it cannot, it issues certification to this effect, and decides
within 60 days of certification
Which has appellate jurisdiction?


116
What is the Regalian doctrine?
o Everything belongs to the State; anyone claiming must go
through the State
o What is imperium? Dominium?

Imperium – government authority possessed by the
State which is appropriately embraced in sovereignty

Dominium – capacity of State to own and acquire
property. Refers to lands held in proprietary character
o What are State-owned?

Lands of PD, waters

Minerals, coals, petroleum, sources of potential
energy

Fisheries and forests/timber

Wildlife, flora, fauna, natural resources
Does the Regalian Doctrine imply that when colonizers arrived,
they took away properties from Filipinos?
o No. There is recognition of native title. Original Filipinos have
this. (Carino v. Insular Government)
Can natural resources be alienated?
o Generally, no. With the exception of agricultural lands, all
other natural resources cannot be alienated.

o



Unclassified forested area cannot be acquired by acquisitive
prescription, because it is inalienable.
What is the special provision on marine wealth?
o State protects marine wealth in archipelagic waters, territorial
seas, and EEZ
o Reserve use and enjoyment exclusively to Filipino citizens
What is the nature of timber licenses, permits, and other such
privileges?
o They yield to police power. They are not contracts under the
due process clause. They can be modified according to
ecological needs.
Can public land become private land?
o Yes. But only agricultural land can become private land, when
ownership transferred to private individual.
o Forest lands – until reclassified into alienable lands, they are
public lands
o Can the PEA dispose reclaimed lands?

Yes, but only after they have been made alienable.
(Chavez v. PEA)




Exploration, development, utilization of natural resources

What is the manner of development and exploitation of natural
resources now?
o 1. Developed and exploited directly by the State, OR
o 2. Co-production, JV, or production sharing with Filipinos or
Filipino Corporations (60% owned)

N.B. they do not become agents of the State; they are
co-contracting parties
o Basic principle: always under full control and supervision of
the State
o May the State enter into service contracts with foreign
owned corporations?

Yes, but only for financial and technical agreements
with respect to large scale development of minerals,
petroleum, and other mineral resources
o When service contract is entered into by the State with a
completely foreign corporation, can there be management
powers given to the latter?
Yes, but only to the extent necessary to carry out the
technical and financial agreement
o What is the period on all such arrangements?

Period cannot exceed 25 years, renewable up to 25
more years
What is the limit on water rights, water supply, fisheries, and
industrial uses of water?
o Beneficial use of such is the measure and limit of grant.
o N.B. Limitation not applicable to development of water power
La Bugal:
o Constitution still allows service contracts
o Financial and technical assistance allowed  but only for the
A) provided resources, and it must be B) LARGE SCALE
Can a foreign corporation buy shares in excess of 40% of a
corporation?
o Yes. But when this happens, the corporation is no longer
Filipino.
What is the rule on aliens?
o 1. Aliens are excluded from acquiring private land.

See exceptions below (ex. intestate succession)
o 2. But an alien may buy a house or a condominium unit (so
they may own real property, just not lands)
Classification of lands



117
How are lands of public domain classified?
o 1. Agricultural

Further sub-qualified into various types, depending on
purpose
o 2. Forest or timber
o 3. Mineral
o 4. National parks
o What determines classification?

Legal nature, and not actual nature
Where are we now (referring to Ateneo Rockwell)?
o Constitutionally, agricultural land
o Statutorily, public commercial land
May a private corporation acquire alienable public lands?
o No. May NOT acquire land from public domain



But may a private corporation lease alienable public lands?
o Yes, it MAY lease lands of public domain
o What is the period for lease?

Not exceeding 25 years, renewable for 25 years
o Area: only up to 1,000 hectares
May a private corporation acquire private lands?
o Yes, because they are qualified to hold lands of the public
domain (by lease), as required by the Constitution
o So the corporation must wait for the land to become private
What is the limitation for acquisition or lease of alienable public
lands by Filipino citizens?
o Can lease up to 500 hectares only
o Can acquire up to 12 hectares only (by purchase, homestead,
or grant)
Private corporation
Filipino individuals
Aliens

Alienable public land
Lease only (1000 ha)
Lease (500 ha) or
acquire (12 ha)
N/A

Private land
Lease or acquire
Lease or acquire
reclamation and distribution as housing. If it were not impliedly
reclassified, then there can be no distribution.
o Apex Mining v. Southeast Mindanao Gold: Reclassification
from forest reserves into non-forest reserves – now exclusively
a DENR prerogative; no need to wait for Congressional
concurrence.
How does land of public domain become private land?
o 1. Acquired from government by purchase or grant
o 2. Uninterrupted possession by occupant and his
predecessors-in-interest since time immemorial

The presumption is that the land was never part of the
public domain
o 3. Open, exclusive, undisputed possession of alienable public
land for period of 30 years (imperfect title)

After lapse of period, the land becomes private
property ipso jure without need for judicial sanction

Count from when it was converted into public
alienable land, not when it was still forest land
Generally, N/A
Rights of indigenous cultural communities
But, alien individuals
may acquire only
through: 1) intestate
succession or 2) if
former NBC



Who classifies land into agricultural, mineral, etc.?
o The President. It is an executive power.

But this power is already delegated. Strictly speaking,
it is Congress that must do it; but Congress delegated
it to the President.
o Except that once the Congress has set the limits on forest
lands and national parks, the limits may be changed only by
Congress as well, not by the President.
o Chavez v. NHA: There can be implied classification of land to
alienable and disposable. For instance, when the President
issued MO 415 conveying Smokey Mountain to NHA for



Ancestral domain and ancestral lands
o Ancestral domain – refers to lands which are considered as
pertaining to a cultural region
o Includes lands not actually occupied like deep forests
Both are considered PRIVATE land
Ancestral domain
o Larger area, that is generally assigned to the community
o Not owned by anybody, but considered PRIVATE land
Ancestral land
o Those which are actually owned by individuals
IPRA
o Declared as constitutional by the SC
o Because the voting was 7-7 – err in favor of constitutionality
Use of property bears social function: must be for common good
Private lands

118
To whom can private lands be conveyed to?

o
o






1. Filipino citizens
2. Domestic corporations with at least 60% Filipino capital

Both incorporation and control test
What are the exceptions to these two?
o 1. Aliens may only acquire private land through intestate
succession

Thus, it is not correct to say aliens may not OWN
private land. Many own private lands before the
Constitutional prohibition. But new acquisitions are
hereby prohibited.

Prior to 1935 Constitution, aliens could acquire land.
o 2. NBC who has lost Philippine citizenship may be a transferee
of private land

AS LONG AS it is just used for residential purposes
(derivative title)
o 3. Foreign states, but embassy and staff residence only

NOT for Non-Filipino religious institutions
No conveyance or transfer of land except to those qualified to hold
lands of public domain
o An alien gave money to his Filipino wife to purchase land, with
the understanding that they become co-owners. The
relationship soured. HELD: Not co-owned because there is
prohibition on alien acquisition of land.
What is the “curing provision”
o Transfer to a Filipino of land illegally held by an alien before
cures the prior illegality. Same if the alien becomes Filipino.
What are the limitations on the capacity to acquire private lands?
o Depends if the land is urban or rural land.
o If it is urban land, the limit is 3000 sqm
o If it is rural land, 3 hectares
o RA 8179  the limit now is only on the size, nothing else
What if the Filipino citizen lost his citizenship after acquiring the
land?
o No adverse effect; he can still hold the land
Aliens cannot acquire private land, in general. What rights can
they have?
o 1. Usufruct or lease
o 2. Mortgagee (but cannot acquire possession or bid in
foreclosure)
What are remedies to recover private lands from disqualified
aliens?
o 1. Escheat proceedings
o 2. Action for reversion under Public Land Act

N.B. only the State can file action for reversion
o 3. Action by former Filipino owner to recover land
Ownership and Investment restrictions




Congress may establish independent economic planning agency
headed by the President
o Now, this is the NEDA
When national interest dictates, may limit ownership of certain
enterprises to 60% Filipino owned corporations or Filipino citizens
o Upon recommendation of NEDA
o But Congress MAY impose such limit even without NEDA
recommendation
In the grant of rights, privileges, concessions covering national
patrimony: State gives preferential right to qualified Filipinos
o Manila Prince case – Manila Hotel was selling some of its
shares. The Malaysian bidder gave a higher bid, but the SC
held that it must go to the Filipino, because of this provision
o This decision is oft-criticized. The SC has been retreating from
Manila Prince. Tanada v. Angara case: we respect
preferences in the GATT, notwithstanding this provision
Exercise authority over foreign investments over national jurisdiction
Sec 11 – Filipinization of public utility franchise



119
What are public utilities?
o Corporations rendering service to the public in general, for
compensation

If only for certain select segments or areas, it is not a
public utility corporation
o No franchise granted except to citizens of the Philippines
May a foreigner own the ASSETS of a public utility corporation?
o Yes. What is not allowed is the grant of the franchise.
What are the caveats?
o Up to 50 years only




o NOT exclusive in character
Franchise subject to modification, amendment, repeal by Congress
when public need dictates
o Exception to the general non-impairment of contracts rule
State should encourage equity participation
May foreigners participate in the governing body of public utility
corporations?
o Yes, to the extent of their participation in the ownership
o So maximum is 40% participation
o What is the absolute prohibition?

From being appointed as executive and managing
officers because these positions are only for Filipino
citizens
Can the Congress delegate power to grant franchises?
o Yes, such as Congress empowerment of the Toll Regulatory
Board to issue road toll projects
o But subject to Constitutional grants, such as the 50 year
maximum
Exploitation of natural resources
Operation of public utilities
Practice of all professions
Mass media
Advertising
Educational institution
Other economic activities




Filipino citizens
60% Filipino corporations
Filipino citizens
60% Filipino corporations
Filipino citizens only
(Congress may prescribe otherwise)
Filipino citizens
100% Filipino corporations
Filipino citizens
70% Filipino corporations
Filipino citizens
60% Filipino corporations


Exception? Schools established by
religious groups/mission boards.
(Congress may increase
requirements for all education
institutions)
Congress may by law prescribe to
Filipinos or Filipino corporations
(60% or more investment as
requirement)

120
Practice of professions limited to Filipinos
o But this can be opened up by law to foreigners
Congress cannot by law create private corporations
o Must incorporate under the general Corporation law.
o Cannot be created by special law.
o But public corporations may be created by special law
National emergency
o When public interest requires, under reasonable terms, the
State may temporarily take over the operation of:

any privately owned public utility

or those with public interest
o When it says “the State” may take over private
businesses, what branch is acting?

Congress
If for instance, Aquino declares State of Emergency due to flood.
Can he take over the operation of transportation facilities?
o No. Apply by analogy, David v. Ermita. This power to take
over operation of public utilities can only occur if Congress
gives to the President emergency powers.
Contrast with expropriation:
o Just compensation is required

Ex. As in transfer to public ownership of vital
industries the government seeks to nationalize
o But for temporary takeover, there is no such requirement of
just compensation
State shall regulate or prohibit monopolies when public interest requires.
o So in general, monopolies are NOT prohibited. But they may
be prohibited when public interest requires.
o So what is actually prohibited?

1. Unfair competition

2. Restraint of trade
o Avon v. Luna: Exclusivity contracts per se are not void. They
must be viewed vis-à-vis all circumstances surrounding the
agreement to see whether there will be unfair competition.
Independent Central Monetary Authority:
o Monetary Board of BSP.


Foreign loans may only be incurred according to law and with
concurrence of monetary authority
Social justice and Human Rights
Social Justice








What is social justice in a nutshell?
o “Those who have less in life should have more than law”
Are these immediately executory provisions?
o No. These provisions have to be implemented by Congress
What is the provision on treatment of OFWs?
o Rights of OFWs cannot be less than those working in the
Philippines
Can selected sectors of labor be prohibited from striking?
o Yes, ex. Policemen, firemen, public school teachers
Do laborers have right to participate in policy making of
corporation?
o Yes, but only to matters affecting the workers and their welfare.
o But not for example, with respect to how the business must be
run.
Agrarian reform
o What are the aims of agrarian reform?

1. Efficient production

2. Equitable distribution of land recognizing right of
farmers and landless

3. Just share of other or seasonal farm workers in
fruits of the land
o Two types of agrarian workers:

Regular (tenants)

Others (seasonal)

N.B. Only regulars can be beneficiaries in land
reform; others, only shares
o Agricultural lands  those used for agricultural production can
be subject to land reforms
What is the nature of agrarian reform powers?
o 1. Police power – prescribing retention limits for landowners
o 2. Eminent domain – depriving owners of excess land and
giving just compensation








Luisita issue:
o Farmers get share in the corporation instead
o 1/3 of agricultural land of Luisita  equivalent value given in
form of stock shares
o So 7000 farmers own 1/3 of shares of Luisita corp. 2/3 still
belongs to Cojuangco family
What is required is just compensation to compensate for transfer of land
o Just compensation involves not just value of loss to the owner,
but prompt payment
o But a lot of owners have not yet been paid
Size of land to be given: determined by Congress
May agricultural land held by the Church in trust be subject to land
reform?
o Yes. Archbishop v. Secretary. The land reform law does not
make a distinction between the various forms of ownership,
whether in trust or absolute title.
When does ownership transfer?
o Upon full payment
Must compensation be in cash?
o No need.
What is the right of urban or rural poor dwellers?
o Cannot be evicted except according to laws
o Who can be evicted: (DIC)

1. Persons occupying dangerous areas

2. When government infrastructure projects with
allocated funding are going to be implemented

3. When there is court order for eviction and
demolition
Maglakas v. NHA: NHA has authority to order relocation of persons
and demolition of their property as part of its mandate to improve
blighted areas.
People’s organizations:
o Covered by right to form associations not contrary to law
Roma Drug v. RTC: Third person private parties now can import drugs,
and these will not be considered counterfeit under the Cheaper Meds
Act.
Human rights
121









o
Commission on Human Rights (CHR)
What is the status of the CHR?
o Not on the same level as the 3 independent commissions
What is the composition?
o 1 Chair, 4 members
o Qualifications?

NBC

Members of Bar
Provision on budget?
o Automatically and regularly released
Is appointment subject to CONA?
o No need for confirmation
What are the powers of the CHR?
o A. Just investigatory and recommendatory

What can it investigate?

1. Violations committed by public officers,
civilians, or rebels

2. Violations of civil or political rights
o Not social rights
o Not situations where no rights are
violated (Ex. There is no right to
squat)

N.B. Cannot adjudicate cases involving HR violations
(only investigation and recommendation)
o B. Adopt guidelines, procedures
o C. Cite for contempt violations of rules according to ROC
What can the CHR do?
o 1. Initiate court proceedings on behalf of HR violation victims
o 2. Recommend prosecution of HR violators,
o 3. Grant immunity from prosecution to person whose testimony
or documents are necessary or convenient to determine the
truth in an HR issue
What can the CHR not do?
o 1. Prosecute the cases by itself
o 2. Issue TROs or injunctions against HR violators. Regular
courts must issue these
Hodgepodge of powers:
o 1. Visit, research, monitor government compliance;

2. Recommend to Congress, request assistance from branch
or institution of government;
o 3. Appoint officers and employees,
o 4. Other functions and duties
What is its jurisdiction?
o Only over human rights, not economic rights
o This can be expanded by law
Education, Family, Other Provisions






122
What is the duty of the State as regards education?
o Duty to provide education accessible to all
o While private schools do so voluntarily
What are the twin values to be obtained for public education?
o 1. Quality
o 2. Accessibility
What is the rule on standards in school?
o Students must meet standards set by school
o As long as reasonable and not arbitrary
Due process rules for disciplinary action by schools:
o 1. Students informed of charge in writing and nature and cause
o 2. Allowed to answer charges
o 3. Informed of evidence against them
o 4. Allowed to adduce evidence on their behalf
o 5. Evidence must be considered
What is the power to dismiss students?
o Schools may dismiss students, after due process, for
disciplinary reasons
o Acts committed outside the school may be ground for
disciplinary action if:

1. Involves violations of school policies connected
with school-sponsored activities

2. Misconduct affects the student’s status, or the good
name/reputation of the school
Integrated system of education:
o Free movement from one school to another; or public to private
and back. So this means there is the same program
o Elementary education is compulsory







N.B. but cannot be subject to penal sanction; it is a
moral, not legal compulsion
o Free education:

1. Elementary

2. HS
All educational institutions must include study of Constitution in its
curriculum (this obviously failed, according to Fr. Bernas)
What are the requirements for the teaching of religion during class
hours of public schools?
o 1. At option expressed in writing by parents or guardians
o 2. Taught within regular class hours
o 3. Instructors designated and approved by the proper religious
authorities
o 4. No additional cost to government (else it would violate nonestablishment)
Filipinization:
o Educational schools must be owned solely by citizens of
Philippines or at least 60% Filipino corporations

Congress may increase this
o What is the exception?

Schools established by religious groups or mission
boards
o Control and administration vested in Philippine citizens

This covers “line positions” like the President and
Dean

But the faculty members may be foreigners
o No school established exclusively for aliens and aliens cannot
constitute more than 1/3 of enrolment in any school

1. EXCEPT for schools for foreign diplomats and their
dependents

2. And other foreign temporary residents
What is the special exemption for NSNP educational institutions?
o All revenues and assets of non-stock, non-profit educational
institutions used actually, directly, and exclusively for
education: EXEMPT FROM taxes and duties
N.B.: in Article 6, buildings dedicated exclusively to education are
exempt from property tax
o Here, all. But there are requirements:





1) it must be non-stock, non-profit; so no dividends
distributed

2) Must be a school

Note: YMCA is not.
o Basis for exemption is USE and not the source. So the income
can be from cafeteria, etc. but if used for education, it is
exempt.
What about proprietary schools?
o They are exempted under Article 6, but only for buildings. May
be granted exemption by statutes
Academic freedom
o Enjoyed by institutions
o What does this freedom mean?

1. Who may teach

2. What may be taught

3. How it shall be taught

4. Who may be admitted to study
o Professors also enjoy academic freedom
o Students also enjoy academic freedom:

You may choose your own course, but that’s just
about it
o What are the limitations?

1. Dominant police power of State

2. Social interest of the community
“Highest budgetary priority” does not mean education always gets the
biggest slice of the pie. It just must be considered and given priority.
Freedom of expression is not absolute within school grounds. So one
may be dismissed for sexually explicit material in school newspaper.
What is the national and official language?
o National language must be expressive of Filipino soul.
National language is Filipino.
o Official language is used for official communication. Official
languages are Filipino and English

Common though: English version will prevail in case
of conflict
o N.B. Spanish and Arabic on voluntary optional basis
Transitory Provisions
123





Sec. 3 – important
o All existing laws, EOs, proclamations, etc. not inconsistent with
the Constitutional remain effective
o UNLESS repealed, amended, or declared unconstitutional

So Marcos and Aquino’s legislations when they still
had legislative power are effective

Aquino had until July 27, 1987
o Any treaty – either renewal or completely new

Needs concurrence of 2/3 of senate
Metropolitan Authority:
o Not as a political subdivision
o But as an administrative agency
Private armies:
o Dismantled
o Must be under Dept. of Defense or Military to be legitimate
Visiting Forces Agreement:
o In effect, affirmed, and is valid
o Argument: it should be seen as invalid because it is not
recognized as domestic law in the US

Solution: it is irrelevant because the VFA is being
implemented here.
o Only Americans are allowed, under this provision. It’s not in
the text, but that is the intent of the Constitution.



Dualist:
o Two different spheres of law
o International law has no role in domestic conflicts
Monist:
o Belong to only one system
o International law is superior to domestic law
How international law becomes municipal law for dualists:
o 1. Transformation
o 2. Incorporation

Law of nations adopted as part of the law of the land

Followed by the Philippines, in light of dualist theory
Conflicts:
o International rule: cannot invoke domestic provisions, unless
violation was manifest and concerned rule of internal law of
fundamental importance
o Municipal law (when before domestic court):

Usually given construction consistent with
international law

If there conflict between law and treaty:

The one passed on a later date prevails,
since they are of same rank

But the SC can declare a treaty
unconstitutional – but this only applies to
domestic matters. It is still good international
law
PUBLIC INTERNATIONAL LAW
Sources of PIL
Concepts




Obligation erga omnes:
o Obligation owed to the community of all States as a whole. All
States thus have a legal interest in the protection of that right.
Jus cogens:
o Peremptory norm of International Law from which no
derogation is allowed
Ex aequo et bono:
o Decide according to equity

International Law and National Law
124
Article 38, ICJ Statute:
o 1. International conventions, whether general or particular,
establishing rules expressly recognized by contesting states
o 2. International custom, as evidence of a general practice
accepted as law
o 3. General principles of law recognized by civilized nations
o 4. Judicial decisions and teachings of most highly qualified
publicists (subsidiary means)
Custom:
o Basic elements:

1. State practice




A. Duration
o Exception: instant custom

B. Consistency

C. Generality
o But possible to bind only several
states or even just two countries

2. Opinio juris sive necessitates

Belief that certain behavior is obligatory

UN Resolutions are not sources of
International Law per se but may evince
opinio juris
o What is the rule on dissenting States?

Still bound by custom except if they were persistent
objectors since formation of the rule (AngloNorwegian Fisheries)

A State joining the system after the practice has
become law: bound
o Martens Clause: “laws of humanity” and “dictates of public
conscience” placed on same level as “usages of States” – thus
no need for thousands of civilians to be killed before ban
becomes effective
Treaties:
o Pacta sunt servanda – obligation to honor agreement

Party may not invoke provisions of internal law

Except: violated laws of fundamental importance
o Conflict between treaties and custom:

Whichever is later should prevail

Although there must be effort to reconcile
them to comply with pacta sunt servanda
(esp. If the treaty is earlier)

But if treaty contradicts jus cogens – custom prevail
General principles of Law:
o Principles of municipal law common to legal system
o Equity may either fall under this source or ex aequo
o Different kinds of equity:

1. Intra legem – within law

2. Praeter legem – beyond law

3. Contra legem – against law
Judicial decisions and teachings of highly qualified publicists:
o There is no stare decisis in PIL (ICJ, Art 59) but highly
persuasive
Subjects of PIL

Differentiate:
o Subjects: entities endowed with rights and obligations and
capacity to take certain actions
o Objects: indirectly have rights, or beneficiaries
States



125
Elements of a State: (Montevideo)
o 1. Permanent population
o 2. Defined territory

Even if boundaries not finally settled
o 3. Government

Temporary absence of government does not
terminate existence of the State
o 4. Capacity to enter into relations with other States
(sovereignty)

Independence from outside control

Dependent on recognition (an entity may possess all
elements but if some States do not recognize it, it
cannot establish relations)
Recognition of States:
o A. Declaratory view – recognition is merely declaratory of the
possession of required elements
o B. Constitutive theory – recognition is what confers legal
personality to a State
o
As long as State meets requirements of State – it cannot be
“derecognized”
Recognition of government:
o If ordinary constitutional procedure – recognition of new
government is just a matter of course
o If recognition is withheld not because of inquiry into its de facto
sovereignty and government control but because of its irregular
origin – non-recognition loses weight (Tinoco)

Just because a State doesn’t recognize the existence of a
government, a de facto government still exits and can create
private rights (Upright v Mercury Business Machines)
o Mere recognition of a government does not mean approval
o Recognition of de facto governments:

1. Control government

2. Not confronted with active resistance

3. Live up to international obligation
State Succession
o Methods:

1. Decolonization

2. Dismemberment

3. Secession

4. Annexation

5. Merger
o Territory: rights, capacities, duties of predecessor as to that
territory – assumed and continued
o State property: successor gets property in the territory it
receives
o Public debts: remain with predecessor, except:

rights and obligations under the contract are part of
succeeded territory
o Treaties:

Clean slate rule

Except territorial boundaries (uti possidetis juris)
Fundamental rights of States:
o 1. Independence
o 2. Equality – legal equality (one state, one vote)
o 3. Peaceful co-existence (non-interference, non-aggression)
State may not be sued without its consent (par in parem non habet
imperium) based on equality of States
o Immunity only for acts jure imperii (governmental acts)
Act of State doctrine:
o Courts of one country will not sit in judgment on the acts of
government of another, done within its own territory
o But does not apply for purely commercial transactions
o








Created through treaty among two or more states (constituent
document)
o Only states are members of IOs
IOs can bring forth claims against governments – established by
necessary implication from Charter (Reparations case)
BUT powers are not unlimited
o Limited by constituent document
Immunities:
o To extent of exercise of functions
o Immunities come from constituent document (ex. IRRI and
ADB)
United Nations:
o Enjoined from intervening in matters essentially within
domestic jurisdiction (Art 2(7) of UN Charter)
o International Constitutional Supremacy Clause: conflicts
between obligations under UN Charter and other IOs – UN
Charter prevails
o General Assembly:

Plenary powers: can discuss any matter w/n scope of
charter

Important questions – decided by 2/3rds majority

Other questions – majority
o Security Council:

15 member states

5 permanent (US, UK, Russia, China,
France

Others – elected for 2 year terms

Vote for non-procedural matters: 9 affirmative
votes, plus no veto from permanent 5
o Secretariat:

Sec-Gen – 5 year term

Elected by GA, recommended by SC, subject to veto

Chief administrator
Individuals

International organizations
126
Before, mere object; but now, can have individual criminal responsibility
o Under ICC:

1. Genocide,


2. CAH,

3. War crimes,

4. Aggression
Still rely on states for diplomatic protection, but now can petition to
international bodies in light of violations


Diplomatic and Consular Law
Diplomats



Purpose of diplomatic immunity: functional – so they can perform duties
properly
Actions that give or remove authority to send/accept envoys:
o 1. Agrement (not “agreement” ha): official approval by a
government of a proposed envoy from a foreign government
o 2. Persona non grata
What are the diplomatic immunities?
o 1. Premises of mission:

Premises inviolable from search, requisition,
execution, taxes

Archives and documents, official correspondence,
diplomatic bag, couriers also protected
o 2. Diplomatic agent’s person: inviolable

Cannot be arrested or detained

Immunity from criminal action

Immunity from civil and administrative action, except:

1. Real action re: personally-owned private
immovable property in receiving State’s
territory

2. Hereditary or testamentary succession

3. Private professional/commercial activity

Cannot be obliged to give evidence as witness
o 3. Private residence of diplomatic agent also inviolable
o 4. Agent exempt from social security of receiving States

Extends to private servants, as long as not
nationals/residents of receiving State and covered by
SS of sending State
o 5. Agent exempt from all taxes, except:


VAT, private immovable property taxes, transfer
taxes, taxes from private commercial activity
o 6. Exempt from customs:

Official articles

Personal items and articles of agent
Who may waive the immunity?
o Sending State
o Nature of waiver:

Must be express

Waiver from immunity from proceedings separate
from waiver from execution of judgment
To whom else does the immunity extend to?
o 1. Family members of agent forming part of household
o 2. Administrative and technical staff for acts in course of duties,
and their family
o 3. Service staff, for acts in course of duties
o 4. Private servants, from taxes and dues on emoluments
o Which family members are not exempt?

Those who are nationals of the receiving State
When immunities begin and end:
o From entry into territory of receiving State or upon receipt of
notice of appointment of receiving State until he leaves the
country or expiration of reasonable period
Consuls


127
What is the equivalent of the agrement for consuls?
o Exequatur by receiving State
o Also, persona non grata rule applies
What are the freedoms and immunities of consuls?
o 1. Freedom of movement
o 2. Freedom of communication, protection of official
correspondence and consular bag
o 3. Communication and contact with nationals of sending state

Receiving state informs consul of sending state if
national of latter state is arrested or imprisoned or in
custody pending trial

Consular officers must be able to visit the detainee
without delay

o

4. Immune from arrest or detention

EXCEPT for grave crimes (not complete, like
diplomats)
o 5. Immunity from jurisdiction

For acts done in exercise of official consular functions

EXCEPT:

1. Contracts entered into privately

2. By third party, for damage from accident in
receiving State by vehicle, vessel, aircraft
o 6. Liability to give evidence

May be called upon to attend as witnesses in course
of judicial/admin proceedings

Cannot decline to give evidence; but if they decline,
no penalty/coercive measure allowed
Who may waive the privileges and immunities?
o Sending State
Treaties



Elements of treaty:
o 1. International agreement between States
o 2. Written
o 3. Governed by PIL
o 4. Single instrument/two or more related instruments
No particular form prescribed, so the following are “treaties” too:
o Exchange of notes between heads of State (Qatar v Bahrain)
o Unilateral declaration concerning legal or factual situations
(Nuclear Test cases)
Making a treaty:
o 1. Negotiation

Who can negotiate with full powers?

1. He who produces appropriate full powers

2. Practice of State: consider that person as
representing the State for such purpose

Who represent the State w/o having to produce
full powers:

1. Heads of State, Heads of Government,
Ministers for Foreign Affairs

128
2. Heads of diplomatic missions for States
their duties pertain too

3. Representatives to IO or conference
o 2. Authentication of text

Signing of document authenticates it

Adoption: 2/3rds vote of States present and voting
o 3. Expressing consent to be bound

How to express consent to treaty:

1. Signature

2. Exchange of instruments

3. Ratification, acceptance, approval, or
accession

What the RP follows: ratification

What is the obligation between the time when the
State signs and ratifies a treaty?

State required not to engage in acts which
can defeat treaty’s purpose

What follows ratification?

Bilateral: exchange of ratification

Multilateral: deposit of ratification
o 4. Accession (for States which did not participate in initial
negotiation)
What are reservations?
o Unilateral statement made by State excluding or modifying
certain provisions of treaty in application to itself
o N.B. only applies to multilateral treaties. If bilateral, there must
be renegotiation.
o When there can be no reservation?

1. Prohibited by treaty

2. Treaty only allows specified reservations

3. Reservation incompatible with object and purpose
of treaty
o Who must consent to reservation?

1. Reservation allowed by treaty: none needed from
other States

2. Reservation defeats object and purpose of treaty:
consent of all parties required






3. Reservation to treaty which s constituent
instrument of IO: requires IO’s organ’s consent

N.B. Reservation deemed accepted if no rejection in
period of 12 months
o When does the reservation take effect?

As soon as one other contracting States accepts

Effect: Modifies application of the treaty to another
party, as mentioned, but it doesn’t affect relations with
other parties
When treaties enter into force:
o 1. On date agreed upon
o 2. If none, when consent is given
o 3. Usually, multilateral treaties provide specific number of
States for it to come into effect
Priority of rules on interpreting treaties:
o 1. Objective: ordinary meaning, in light of object and purpose
o 2. Teleological: context

Instruments/agreements relating to its conclusion

Preamble and annexes
o 3. Subjective (subsequent agreement, subsequent practice,
PIL rules)
o 4. Special meaning given to terms

Supplementary sources – only for ambiguities

Different languages of text – particular text prevails as
agreed upon
When are treaties invalid?
o 1. Error of fact
o 2. Fraud (induced)
o 3. Corruption of State representative
o 4. Coercion of State representative
o 5. Coercion by State through threat/force
o 6. Violates jus cogens
What is the difference between amendment and modification of
treaty?
o Amendment is in negotiation stage of the treaty and binds all
parties to it
o Modification is after treaty has come to effect, involving only
some of the parties and only if not disallowed by the treaty and
won’t defeat the others’ rights.

How do treaties terminate?
o 1. Consent of parties
o 2. Treaty has period
o 3. Purpose has been achieved
o 4. Material breach

If bilateral, it entitles the other to terminate

If multilateral, other parties by unanimous agreement
may be terminated by:

All, as to the breaching party

Specially affected party, who may suspend

Any party, if it radically changed everyone’s
position as regards obligations
o 5. Impossibility
o 6. Rebus sic stantibus
How is a treaty terminated?
o 1. Notify other parties in writing
o 2. If no one objects in 3 months, party may carry out action
o 3. If there is objection, settle dispute through peaceful means
Nationality and Statelessness





129
States have jurisdiction over its nationals, even those outside the State
o Ex. can tax citizens or subpoena them abroad
Nationality gained by:
o 1. Jus sanguinis
o 2. Jus soli
o 3. Naturalization
BUT there must be a reasonable connection or “effective link” between
the State and the national – consent alone is not enough for him to be
recognized by other States as a national (Nottebohm)
o To determine which of two states has right to give diplomatic
protection of person of dual nationality
Maritime vessels – State has jurisdiction over vessels flying its flag
o
“Flags of convenience”: may be challenged for lack of
sufficient link (where nationality of owner is different from
country of registration)
Stateless persons:
o De jure stateless – lost their nationality and have not acquired
a new one
o
o

De facto stateless – those with nationality but protection denied
by their state when they are out of it
Still covered by protections of IHRL (UDHR, etc.)

Treatment of aliens






When are States obliged to admit aliens?
o 1. There is treaty requiring it
o 2. Treaty imposes legal standards for admission
How are aliens protected by their own States?
o Through diplomatic protection, under the theory that injury to a
national abroad is injury to his State. This power is
discretionary.
o Recall: effective link doctrine
Two standards for protection of aliens:
o 1. National treatment/equality of treatment

Treat aliens in same manner as nationals
o 2. Minimum international standard (more widely accepted)

Imposes certain minimum standards of humane
protection

Neer Claim: This standard applies if the treatment of
the alien constitutes an outrage readily recognizable
by every reasonable/impartial person
What is denial of justice?
o When there is unwarranted delay, obstruction of access to
courts, gross deficiency in processes, failure to provide
indispensable guarantees, or manifestly unjust judgment
o N.B. mere error w/o manifest injustice is not denial of justice
What is extradition?
o Surrender of an individual by the State within whose territory
he is found and under whose laws he is alleged to have
committed a crime/where he was convicted of crime
o Unlike deportation, which need not be pursuant to a request by
another State
Principles of extradition:
o 1. No State is obliged to extradite unless in a treaty
o 2. Differences in legal system can be an obstacle in
interpreting treaties (double criminality requirement)
o 3. Religious and political offenses are non-extraditable
An extradition treaty does not prohibit all means of gaining presence of
an individual outside of its terms (US v Alvarez-Machain)
Due process:
o No need for notice and hearing, because he might flee when
given notice,
o Not a criminal proceeding but an executive process
o Just prima facie – not beyond reasonable doubt
o Bail is now available in extradition cases (HK v Olalia)
International Human Rights Law




130
What is IHRL?
o Inalienable and fundamental rights essential for life as human
beings
o The way nations treat people is no longer a domestic concern
but one that calls for attention of international community
Remember: non-intervention clause in Art. 2 Sec 7 of the UN Charter
(cannot intervene in matters essentially within domestic jurisdiction of
member nations)
o Although human rights are now not within exclusive domestic
sphere of nations
What is the nature of the UDHR?
o Not a law but a common standard (moral and political)
o Moral rules which are not self-executory
o Contra: covenant – imposes specific duties and obligations,
and places parties on position to bring laws and practices
according to these obligations
What does the ICCPR cover?
o 1. Protection of life, liberty, and property

Bias for abolition of the death penalty; but it allows its
imposition but only for the most serious crimes

Although nothing in the article can be used
to delay or prevent abolition of death penalty

No DP for minors and pregnant women

Second additional protocol requires
abolition of death penalty, but RP is not a
party




o
o
o
o
o
No publicity of criminal proceedings where there is
interest of juvenile persons, matrimonial disputes, or
guardianship of children

Anyone unlawfully arrested or detained must have
enforceable right to compensation and victim of
miscarriage of justice shall be compensated
o 2. No torture, ill-treatment, and prison conditions must be good
o 3. Freedom of movement

Limit: public health, safety, morals, order, etc.

Right to return – cannot be deprived arbitrarily

Exile is now prohibited by customary law

Right of aliens not be expelled without due process
o 4. Legal personality guaranteed but capacity to act may be
limited
o 5. Thought, conscience, religion, expression, political freedoms

Limit: public safety, order, health, morals,
fundamental rights of others
o 6. No war propaganda
o 7. Associations and unions

But silent on right of govt employees to form unions
o 8. Minorities can enjoy own culture, own religion, own
language
What are the two aspects of self determination?
o Internal SD: Right to freely determine political status and ecosocio-cultural development, and to freely dispose of natural
wealth and resources for own ends
o External SD for those under colonial domination or racist
government

Generally: no right to secede – because this disrupts
territorial integrity – except for those here
What is the optional protocol to the ICCPR?
o Enables private parties who are victims of HR violations to file
complaints against States that have ratified the Protocol to the
Human Rights Commission
o RP is a party to this
What rights does the ICESCR cover?
o 1. To work and favorable conditions of work
o 2. To form free trade unions
o 3. To social security and insurance




4. Special assistance for families
5. To adequate standard of living
6. To highest standard of physical and mental health
7. To education including compulsory primary education
8. Enjoyment of cultural and scientific benefits and international
contacts
What is the duty to implement ICESCR rights?
o 1. Bring laws and practices into accord
o 2. Not to introduce new laws or practices contrary to these
o 3. Provide remedies to enforce these
Contrast rules of implementation of ICCPR and ICESCR:
o ICCPR: immediate implementation
o ICESCR: implemented gradually and dependent on
development conditions (“progressive realization”)
What are the two different procedures under the Human Rights
Commission?
o 1. Confidential consideration

Working group of not more than 5 members meet in
private to consider all reports which revolve patterns
of gross and reliably attested violations of HR

CHR submits report/recommendation to ECOSOC
o 2. Public debate

Annual public debates where governments and NGOs
can identify situations that deserve attention
Methods of implementation:
o 1. Name and shame
o 2. Pressure on governments
o 3. Appointment of Special Rapporteur to examine/report
o 4. Request to Security Council to take up issue
IHL and neutrality

131
Distinguish:
o Jus ad bellum – law governing use of force outside of armed
conflict

Ex. self-defense, counter-measures, etc.

N.B. Self defense is usually just against States that
engage in unlawful armed attack, and is attended by
proportionality and necessity. However, the ICJ in the




Palestinian Wall advisory opinion (Sep. Op., Higgins)
recognized that there can be self-defense against
non-State actors (some say this is instant custom)
o Jus in bello – law governing conduct of armed conflict (laws of
war)
What is IHL?
o Law that governs hostilities of war
o Results in cutting of all normal relations, except treaties of
humanitarian character (so IHRL can still apply subsidiarily)
Who are protected under the Geneva Conventions?
o 1. Wounded and sick in the field
o 2. Wounded, sick, and shipwrecked at sea
o 3. Prisoners of War (POWs)
o 4. Civilians
What are categories of armed conflict?
o 1. International armed conflict

Between States

Apply GCs (and Common Article 3) and Additional
Protocol I (AP I)

Grants combatant status to those participating
o 2. Internal or non-international armed conflict

Between States and non-state armed groups or
insurgents engaged in protracted armed violence (not
mere internal disturbance)

Apply Common Article 3 and Additional Protocol II
(AP II) if applicable

To which groups does AP II apply (insurgent
groups)?

1. With responsible command, and

2. Control over territory, and

Insurgent groups have treaty making capacity
o 3. Wars of national liberation

Between States and those fighting against colonial
domination or racist regimes

Apply rules on international armed conflict
What is guaranteed by Common Article 3?
o No violence to life and person
o No taking of hostages
o No outrages against personal dignity

o No passing of sentences/executions without prior judgment
What is the law on neutrality?
o Belligerents must respect rights of neutral parties
o Neutrals must not interfere with belligerents
o In civil wars, governments can ask for help from other States,
but States generally can’t aid rebels
o But for insurgent groups governed by AP II, other States must
maintain neutrality
Law of the Sea



o


132
What is the nature of the sea, in general?
o Res communis (open to all)
Sovereignty of State extends to:
o 1. Internal waters
o 2. Archipelagic waters
o 3. Territorial sea
What is the territorial sea?
o Maritime belt by littoral states, as indivisible part of their
domain
What is the extent of the territorial sea?

Baseline until 12 nautical miles

If there is overlap with adjacent State: dividing line is median
equidistant from opposite baselines
Differentiate baselines:
o Normal – follows curvature of coast
o Straight – collecting selected points on coast without
appreciable departure from general shape

Length must not exceed 100 n.m. (except 3% of total
baselines may go up to125 n.m.)

Cannot cut off high seas or EEZ of another State

Give due publicity
o From where do you count the baseline?

Count from low-water-mark
o What does the RP follow?

Straight baselines
What is the sovereign right over territorial sea?
o Same as sovereignty over land, but subject to right of innocent
passage in territorial sea and straits (Corfu Channel)

o





What is NOT innocent passage:

1. Threat/use of force, exercising defense/security
functions

2. Load/unload commodity contrary to customs, fiscal,
immigration, sanity laws

3. Fishing activities

4. Research/survey
What are internal waters?
o These are all waters landward from the baseline. There is no
right of innocent passage.
o Bays are considered internal waters.

Merely an indentation if it is NOT larger than the semicircle whose diameter is a line drawn across the
mouth of the indentation

If distance between low water marks between natural
entrance points of bay X exceed 24 nautical miles:
may enclose and treat as internal

If more than 24 – straight baseline of 24 n.m. may be
drawn to enclose maximum area of water

Exception to the “24” rule: historic bays, which are
treated as internal waters based on historic rights
What is the rule on archipelagic waters?
o When straight baselines enclose as internal waters those not
previously considered internal waters – right of innocent
passage remains
o But the RP considers archipelagic waters as internal waters,
contrary to 1982 Convention on Law of the Sea

N.B. Although since we did this in 1973, it preceded
1982 Convention, which only talked about waters “not
previously considered internal”
What is the extent of the contiguous zone?
o 12-24 n.m. from baseline
o N.B. contiguous zone is already part of the high seas
Authority of coastal State within contiguous zone?
o To prevent and punish infringement of customs, fiscal,
immigration, or sanitation (CFIS) laws
What is the extent of the Exclusive Economic Zone (EEZ) or
patrimonial Sea?
o 24-200 n.m from baseline







133
What is the right over the EEZ?
o 1. Right over economic resources in the sea, seabed, subsoil
o 2. Not affect right of navigation and over-flight of other states
o What is the reciprocal obligation?

Must ensure proper conservation and management,
and optimum utilization of living resources (must
maximize allowable catch, or else, grant other States
this right
What are the areas covered by the continental/archipelagic shelf?
o 1. Seabed and subsoil adjacent to coastal state but outside
territorial sea
o 2. Seabed and subsoil adjacent to islands
Rights over the shelf:
o 1. Explore and exploit natural resources
o 2. Erect installations
o 3. Erect safety zone
What about the deep seabed?
o It is beyond any national jurisdiction and cannot be
appropriated
What is the rule on islands?
o It must be naturally formed (not artificial). Follow usual
provisions.
o For rocks which cannot sustain human habitation or economic
life, it just has a territorial sea and not CZ or EEZ.
What is covered by the high seas?
o All parts of the sea not included in the territorial sea or internal
waters. Includes CZ and EEZ.
What are the freedoms in the high seas?
o 1. Navigation
o 2. Over-flight
o 3. Fishing
o 4. Laying submarine cables/pipelines
o 5. Constructing artificial islands/structures
o 6. Scientific research
What is the rule on hot pursuit?
o A ship which has violated law or regulations of the coastal
State (or CFIS, if in the contiguous zone, or EEZ rights if the
EEZ) can be pursued to the high seas.
o Stopped when the ship enters another State’s territorial sea.

o The pursuing State cannot sink the ship.
How are disputes settled?
o Compulsory peaceful settlement
o If it fails, submit to tribunal clothed with jurisdiction (choose):

1. International Tribunal for Law of the Sea

2. ICJ

3. Arbitral tribunal constituted under convention
International Environmental Law

What is Principle 21 of the Stockholm Declaration?
o 1. States have sovereign right to exploit their own resources
pursuant to their own environmental policies, and
o 2. The responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment
of other States or of areas beyond the limits of national
jurisdiction.
134