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THE ATENEO LAW SCHOOL
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THE ATENEO CENTRAL BAR OPERATIONS 2020-2021
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Ad maiorem Dei gloriam.
GRACE ANN Q. BAJO
TIMOTHY JACOB J. PALAFOX
20 21 C H AI R PER S O N S
KATHLEEN KAE Z. ENDOZO
ARISTEO RAPHAEL T. MARBELLA III
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 21 AD MI NI ST RA TI V E CO M MI T TE E HE A D S
20 21 A C AD E MI C C O M MI T TEE HE AD S
CARLOS ROSAURO N. MANALO
MA. CRISTINA ASUNCION
20 21 A C AD E MI C C O M MI T TEE U N D ER ST U D I ES
DEAN SEDFREY M. CANDELARIA
ATTY. BLESSILDA B. ABAD-GAMO
ATTY. DIANNA LOUISE R. WILWAYCODELA GUERRA
ATTY. MARIA LUISA ISABEL l. ROSALES
ATTY. MARK LEINAD ENOJO
ATTY. EUGENE T. KAW
20 21 P OLI TI C AL L A W F A CU L TY A D V I S E RS
CHEY ABUEG
BAI SHARIA L. TAMBUANG
LUMINA ALINEA O. AQUINO
GRACELLE TREASURE A. SAMSON
THEA RUTH FRANCES GONZALES
HAROLD BRYANT V. PASION
MARY STEPHANIE C. CRUZ
KIM ABBYGALE C.RIBO
MARK DAVID Q. VERGARA
TIMOTHY K. ILOG
DATU AMIR E. WAGAS
BRIAN EARL LESHEN
JOHN JOSHUA R. CARILLO
20 21 P OLI TI C AL L A W SU BJE CT HE AD S
JEFFREY ABRAZALDO
CARLO ALIVIA
CAMILLE BULATAO
JOSE LORENZO ANGELES III
LORIEDEL FAJARDO
NADINE ONG
20 21 P OLI TI C AL L A W U ND E RS TU D I E S
SHAULA FLORESTA
PATRICIA JOY IGNACIO
RAYMIELLE MAGCALAS
JETHRO VERA CRUZ
ROSEANNE REALUBIN
AIMIEL MARIAN F. REYES
MIKKO RINGIA
ISABELLA SABIO
NORBERTO SARIGUMBA III
JONATHAN TORRES
VERA DE VERA
20 21 P OLI TI C AL L A W V OLU NTE ER S
JONATHAN DF. TORRES
GAEL PAULINE R. MORALES
RIA ALEXANDRA D. CASTILLO
NICOLE ANN C. PAGLICAWAN
JULIANNE BEATRICE N. ROSARIO
20 21 C R E ATI V E S
JOSEPH BILL P. QUINTOS
SAMANTHA J. MAGAOAY
FREEDOM JUSTIN B. HERNANDEZ
STEFI MONIKA S. SUERO
KATHLEEN C. ROMINA
SERMAE ANGELA G. PASCUAL
20 21 TE C H NI CA L
2 02 1 FI N AN CE
AINA RAE L. CORTEZ
LUMINA ALINEA O. AQUINO
ANNA MARIE GRACE M. ANTONIO
MARY STEPHANIE CABRERA CRUZ
CLARISSE MAE D. ZAPLAN
CHRISTIAN GIO R. SENARLO
MAEDEN M. BORCELANGO
IMI LIZA B. ESPINA
FRANCIS SABIN BELTRAN
ANTHONY JEFFERSON Y. JULIO
20 21 S PE CI AL P R OJ E C TS
20 21 LO GI STI C S
DONN MARIE ISABELLE BALINA
ALISHA BEATRICE A. VERGARA
PRISHA LEIGH D. CRUZ
ALITHEA C. SORIANO
AARON C. CHENG
MELISSA GABRIELLE P. REMULLA
GRACIELLA RACHEL D. ROBLES
DANELLA DIANE D. DIMAPILIS
REYNALDO M. REVECHE
CZAREANA JOUSCH T. PARRA
20 21 M AR K E TI N G
20 21 PU BLI C R E L A TI ON S
JUSTIN LUIGI V. HERNANDEZ
20 2 0 C HAI R P ER SO N
YVES PETER CARLO D. MEDINA
KATRINA ISABELLE G. PIMENTEL
GENICA GALE F. LAHOZ
THERESE ANNE C. ESPINOSA
HAZEL VIANCA I. ORTEGA
VINCE ZYRENCE T. BARLONGAY
20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S
HE AD S
20 2 0 HO TEL C O M MI TTEE HEA D S
EUNICE A. MALAYO
FRANCES CHRISTINE P. SAYSON
MEG V. BUENSALIDO
MARIE KAYLA C. GALIT
20 2 0 A CAD E MI C CO M MI T TEE HE AD S
2 02 0 A CA D E M I C CO M MIT T E E U ND E R S T U DI E S
DEAN SEDFREY M. CANDELARIA
DEAN MAITA CHAN-GONZAGA
ATTY. DIANNA LOUISE R. WILWAYCO-DELA GUERRA
ATTY. FRANCIS TOM TEMPROSA
20 2 0 POLI TI CA L L A W F A CU L TY A D V I S E RS
ANDREA FAUSTINE R. DE VERA
MARK DAVID Q. VERGARA
ALIJA ROWIE SCHAILEY M. PANDAPATAN
GERARD ANDRE P. BARRON
JUSTIN MARK C. CHAN
ISABELLE NICOLE VELANDRES
20 2 0 POLI TI CA L L A W SU BJE CT HE AD S
KIM ABBYGALE C.RIBO
LUMINA ALINEA O. AQUINO
TIMOTHY K. ILOG
DATU AMIR E. WAGAS
BRIAN EARL LESHEN
JOHN JOSHUA R. CARILLO
20 2 0 POLI TI CA L L A W U ND E RS TU D I E S
ANNA BEATRICE L. SALAZAR
JOSIAH M. LIM
FONSO RAMOS
VERA DE VERA
STEPHANIE A. SERAPIO
JOANNAH MARIE V. SALAMAT
RENEE DESIREE R. NAVARRA
MIA GATO
NORLENE ANDAYA
MICHELLE TIU
JONATHAN DF. TORRES
AINA RAE L. CORTEZ
MA. KATRINA RAFALLE M. ORTIZ
RANDO TORREGOSA
RAYM MAGCALAS
MA. VERONICA S. PINE
GAEL PAULINE R. MORALES
RACHEL MEGAN AGLAUA
20 2 0 POLI TI CA L L A W V OLU NTE ER S
ATENEO CENTRAL
POLITICAL LAW
BAR OPERATIONS 2020/21
TABLE OF CONTENTS
I. THE 1987 CONSTITUTION ................................................................................................................ 2
A. NATURE AND CONCEPT OF A CONSTITUTION ...................................................................... 2
B. PARTS OF A CONSTITUTION..................................................................................................... 3
C. AMENDMENTS AND REVISIONS (PHIL CONST., ART. XVII.) ................................................. 4
D. METHODS OF INTERPRETING THE CONSTITUTION .............................................................. 8
II. BASIC CONCEPTS ......................................................................................................................... 13
A. DECLARATION OF PRINCIPLES AND STATE POLICIES ...................................................... 13
B. SOVEREIGNTY ........................................................................................................................... 15
C. STATE IMMUNITY ...................................................................................................................... 15
D. SEPARATION OF POWERS ...................................................................................................... 20
E. CHECKS AND BALANCES ........................................................................................................ 20
F. DELEGATION OF POWERS ...................................................................................................... 20
G. FUNDAMENTAL POWERS OF THE STATE ............................................................................ 22
1. POLICE POWER ...................................................................................................................... 24
2. EMINENT DOMAIN .................................................................................................................. 24
3.TAXATION................................................................................................................................. 25
III. NATIONAL TERRITORY................................................................................................................ 27
IV. CITIZENSHIP ................................................................................................................................. 31
A. KINDS OF CITIZENSHIP ............................................................................................................ 31
B. WHO ARE CITIZENS .................................................................................................................. 34
C. WHO CAN BE CITIZENS ........................................................................................................... 34
D. MODES OF ACQUIRING CITIZENSHIP .................................................................................... 34
E. MODES OF LOSING & REACQUIRING CITIZENSHIP............................................................. 37
1. LOSING CITIZENSHIP ............................................................................................................ 37
2. REACQUIRING CITIZENSHIP ................................................................................................ 37
F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ....................................................................... 38
V. LEGISLATIVE DEPARTMENT ....................................................................................................... 41
A. LEGISLATIVE POWER .............................................................................................................. 41
1. SCOPE AND LIMITATIONS .................................................................................................... 41
2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ........................................................... 45
B. CHAMBERS OF CONGRESS; COMPOSITION; QUALIFICATIONS....................................... 45
1. SENATE ................................................................................................................................... 45
2. HOUSE OF REPRESENTATIVES........................................................................................... 45
A. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT .................. 46
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B. PARTY-LIST SYSTEM......................................................................................................... 49
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .............................. 55
D. QUORUM AND VOTING MAJORITIES ..................................................................................... 57
E. DISCIPLINE OF MEMBERS ....................................................................................................... 59
F. PROCESS OF LAW-MAKING .................................................................................................... 60
G. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS .......................... 63
ELECTORAL TRIBUNALS ........................................................................................................... 63
1. NATURE ................................................................................................................................... 63
2. POWERS.................................................................................................................................. 64
COMMISSION ON APPOINTMENTS .......................................................................................... 66
1. NATURE ................................................................................................................................... 66
2. POWERS.................................................................................................................................. 66
H. POWERS OF CONGRESS ......................................................................................................... 67
1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................. 67
2. NON-LEGISLATIVE ................................................................................................................. 71
A. INFORMING FUNCTION ..................................................................................................... 71
B. POWER OF IMPEACHMENT .............................................................................................. 71
I. INITIATIVE AND REFERENDUM ................................................................................................ 72
VI. EXECUTIVE DEPARTMENT ......................................................................................................... 74
A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT ........ 74
B. PRIVILEGES, INHIBITIIONS, AND DISQUALIFICATIONS ...................................................... 75
1. PRESIDENTIAL IMMUNITY .................................................................................................... 76
2. PRESIDENTIAL PRIVILEGE ................................................................................................... 77
C. POWERS OF THE PRESIDENT................................................................................................. 79
1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ................................................. 79
2. POWERS OF APPOINTMENT ................................................................................................ 79
A. IN GENERAL........................................................................................................................ 79
B. LIMITATIONS ON THE EXERCISE/POWER ...................................................................... 79
C. TYPES OF APPOINTMENT ................................................................................................ 80
3. POWER OF CONTROL AND SUPERVISION......................................................................... 83
A. DOCTRINE OF QUALIFIED POLITICAL AGENCY ............................................................ 84
B. EXECUTIVE DEPARTMENTS AND OFFICES ................................................................... 84
C. LOCAL GOVERNMENT UNITS .......................................................................................... 85
4. EMERGENCY POWERS ......................................................................................................... 85
5. COMMANDER-IN-CHIEF POWERS ....................................................................................... 85
A. CALLING OUT POWERS .................................................................................................... 86
B. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS; EXTENSION ........................................................................... 87
6. EXECUTIVE CLEMENCY ........................................................................................................ 90
A. NATURE AND LIMITATION ................................................................................................ 90
B. FORMS OF EXECUTIVE CLEMENCY ............................................................................... 90
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7. DIPLOMATIC POWER ............................................................................................................. 91
8. POWERS RELATIVE TO APPROPRIATION MEASURES .................................................... 93
9. DELEGATED POWERS........................................................................................................... 93
10. RESIDUAL POWERS ............................................................................................................ 94
11. VETO POWERS ..................................................................................................................... 94
D. RULES OF SUCCESSION ......................................................................................................... 95
VII. JUDICIAL DEPARTMENT ............................................................................................................ 99
A. CONCEPTS ................................................................................................................................. 99
1. JUDICIAL POWER ................................................................................................................... 99
2. JUDICIAL REVIEW ................................................................................................................ 100
A. REQUISITES...................................................................................................................... 100
B. OPERATIVE FACT DOCTRINE ........................................................................................ 104
C. POLITICAL QUESTION DOCTRINE ................................................................................. 104
B. JUDICIAL INDEPENDENCE AND AUTONOMY ..................................................................... 105
C. APPOINTMENTS TO THE JUDICIARY ................................................................................... 107
1. QUALIFICATIONS OF MEMBERS OF THE JUDICIARY ..................................................... 107
2. JUDICIAL AND BAR COUNCIL ............................................................................................. 108
A. COMPOSITION .................................................................................................................. 108
B. POWERS ........................................................................................................................... 109
D. THE SUPREME COURT ........................................................................................................... 110
1. COMPOSITION ...................................................................................................................... 110
2. POWERS AND FUNCTIONS ................................................................................................. 110
VIII. CONSTITUTIONAL COMMISSIONS ........................................................................................ 119
A. COMMON PROVISIONS .......................................................................................................... 119
B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS ............................................................... 120
C. POWERS AND FUNCTIONS .................................................................................................... 122
D. COMPOSITION AND QUALIFICATION OF MEMBERS ......................................................... 130
F. PROHIBITED OFFICES AND INTERESTS .............................................................................. 133
IX. BILL OF RIGHTS ......................................................................................................................... 135
A. CONCEPT OF BILL OF RIGHTS ............................................................................................. 136
1. PRIVACY AND AUTONOMY ................................................................................................. 136
2. RELATION TO HUMAN RIGHTS .......................................................................................... 137
B. DUE PROCESS OF LAW ......................................................................................................... 137
1. CONCEPT OF RIGHT TO LIFE, LIBERTY, AND PROPERTY ............................................. 138
2. KINDS OF DUE PROCESS ................................................................................................... 138
A. SUBSTANTIVE DUE PROCESS ....................................................................................... 138
B. PROCEDURAL DUE PROCESS ....................................................................................... 139
C. LEVELS OF SCRUTINY ........................................................................................................... 145
1. STRICT SCRUTINY TEST ..................................................................................................... 145
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2. HEIGHTENED OR INTERMEDIATE SCRUTINY TEST ....................................................... 146
3. RATIONAL BASIS TEST........................................................................................................ 146
C. EQUAL PROTECTION OF LAWS............................................................................................ 147
1. CONCEPT AND PURPOSE .................................................................................................. 147
2. REQUISITES FOR VALID CLASSIFICATION....................................................................... 148
3. LEVELS OF SCRUTINY ........................................................................................................ 151
A. STRICT SCRUTINY TEST ................................................................................................ 151
B. INTERMEDIATE SCRUTINY TEST .................................................................................. 151
C. RATIONAL BASIS TEST ................................................................................................... 151
D. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES ..................................... 151
1. CONCEPT OF PRIVACY ....................................................................................................... 152
2. CONCEPT OF A SEARCH .................................................................................................... 153
3. REQUISITES OF A VALID SEARCH WARRANT ................................................................. 153
A. PROBABLE CAUSE .......................................................................................................... 153
B. PERSONAL DETERMINATION BY THE JUDGE ............................................................. 154
C. PERSONAL EXAMINATION OF THE COMPLAINANT AND THE WITNESSES ............ 154
D. FACTS PERSONALLY KNOWN TO THE APPLICANT AND THE WITNESSES ............ 155
E. PARTICULARITY OF DESCRIPTION ............................................................................... 155
4. WARRANTLESS SEARCHES ............................................................................................... 158
A. WAIVER OF RIGHT ........................................................................................................... 158
B. SEARCH INCIDENTAL TO A LAWFUL ARREST ............................................................. 159
C. SEIZURE OF EVIDENCE IN PLAIN VIEW ....................................................................... 160
D. EXIGENT AND EMERGENCY CIRCUMSTANCES ......................................................... 161
E. SEARCH OF A MOVING VEHICLE .................................................................................. 162
F. STOP AND FRISK RULE (TERRY SEARCH) ................................................................... 162
G. CUSTOMS SEARCH ......................................................................................................... 163
H. AIRPORT SEARCHES ...................................................................................................... 164
I. CHECKPOINT SEARCH ..................................................................................................... 165
J. WARRANTLESS SEARCH BY A PRIVATE INDIVIDUAL ................................................. 166
5. CONCEPT OF AN ARREST .................................................................................................. 167
A. PROBABLE CAUSE .......................................................................................................... 167
B. PERSONAL DETERMINATION OF PROBABLE CAUSE ................................................ 168
C. PERSONAL EVALUATION OF THE REPORT AND THE SUPPORTING DOCUMENTS
................................................................................................................................................ 168
D. PARTICULARITY OF DESCRIPTION ............................................................................... 169
6. WARRANTLESS ARRESTS AND DETENTION ................................................................... 170
A. IN FLAGRANTE DELICTO ................................................................................................ 170
B. HOT PURSUIT ARREST ................................................................................................... 171
C. WAIVER OF RIGHT........................................................................................................... 172
7. EXCLUSIONARY RULE......................................................................................................... 173
8. EFFECTS OF UNREASONABLE SEARCHES AND SEIZURES ......................................... 174
9. EFFECTS OF ILLEGAL DETENTION ................................................................................... 174
E. PRIVACY OF COMMUNICATION AND CORRESPONDENCE .............................................. 175
1. CONCEPT OF COMMUNICATION AND CORRESPONDENCE ......................................... 175
2. INTRUSION, WHEN AND HOW ALLOWED ......................................................................... 176
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A. UPON LAWFUL ORDER OF THE COURT ....................................................................... 176
B. WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS PRESCRIBED BY
LAW ........................................................................................................................................ 177
3. EXCLUSIONARY RULE......................................................................................................... 177
F. FREEDOM OF SPEECH AND EXPRESSION.......................................................................... 179
1. CONCEPT .............................................................................................................................. 179
A. CONTINUUM OF THOUGHT, SPEECH, EXPRESSION, AND SPEECH ACTS ............. 180
B. PURPOSES OF FREE SPEECH DOCTRINES ................................................................ 180
C. BALANCE BETWEEN UNBRIDLED EXPRESSION AND LIBERTY ................................ 181
2. TYPES OF REGULATION ..................................................................................................... 181
A. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT .............................................. 181
B. CONTENT BASED AND CONTENT NEUTRAL ............................................................... 183
C. INCITEMENT AND ADVOCACY ....................................................................................... 184
D. SPECIFICITY OF REGULATION AND OVERBREADTH DOCTRINE ............................. 184
E. SPEECH REGULATION IN RELATION TO ELECTION ................................................... 186
F. SPEECH REGULATION IN RELATION TO MEDIA.......................................................... 189
3. JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY ....... 191
A. CLEAR AND PRESENT DANGER TEST.......................................................................... 192
B. DANGEROUS TENDENCY RULE .................................................................................... 192
C. BALANCING OF INTERESTS TEST ................................................................................ 193
4. SPECIAL TOPICS IN FREE EXPRESSION CASES ............................................................ 194
A. HATE SPEECH AND FIGHTING WORDS ........................................................................ 194
B. DEFAMATION AND LIBEL ................................................................................................ 195
C. SEDITION AND SPEECH IN RELATION TO REBELLION .............................................. 198
D. OBSCENITY/PORNOGRAPHY......................................................................................... 199
E. COMMERCIAL SPEECH ................................................................................................... 200
F. NATIONAL EMERGENCIES .............................................................................................. 200
G. SPEECH OF PUBLIC OFFICERS..................................................................................... 201
H. HECKLER S VETO ............................................................................................................ 202
5. COGNATE RIGHTS ............................................................................................................... 202
A. FREEDOM OF ASSEMBLY AND PETITION .................................................................... 202
B. FREEDOM OF ASSOCIATION ......................................................................................... 205
C. FREEDOM OF INFORMATION......................................................................................... 207
G. FREEDOM OF RELIGION ........................................................................................................ 210
1. BASIC PRINCIPLES .............................................................................................................. 210
A. PURPOSE .......................................................................................................................... 210
B. CONCEPT OF RELIGION ................................................................................................. 210
2. PRINCIPLE OF SEPARATION OF CHURCH AND STATE .................................................. 211
3. NON-ESTABLISHMENT CLAUSE......................................................................................... 211
4. FREE EXERCISE CLAUSE ................................................................................................... 216
H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ....................................................... 221
1. SCOPE AND LIMITATIONS .................................................................................................. 221
2. WATCH-LIST AND HOLD DEPARTURE ORDERS .............................................................. 222
I. EMINENT DOMAIN .................................................................................................................... 222
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1. CONCEPT .............................................................................................................................. 222
2. JUST COMPENSATION ........................................................................................................ 225
3. ABANDONMENT OF INTENDED USE AND RIGHT OF REPURCHASE ............................ 228
4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ........................................................ 229
J. NON-IMPAIRMENT OF CONTRACTS ..................................................................................... 231
K. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS .............................. 233
L. RIGHT AGAINST SELF INCRIMINATION ............................................................................... 233
1. SCOPE AND COVERAGE ..................................................................................................... 234
2. APPLICATION ........................................................................................................................ 237
3. IMMUNITY STATUTES .......................................................................................................... 237
M. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION .......................................... 238
1. AVAILABILITY ........................................................................................................................ 240
2. REQUISITES .......................................................................................................................... 242
3. WAIVER ................................................................................................................................. 242
N. RIGHTS OF THE ACCUSED .................................................................................................... 244
1. CRIMINAL DUE PROCESS ................................................................................................... 244
2. BAIL ........................................................................................................................................ 245
3. PRESUMPTION OF INNOCENCE ........................................................................................ 248
4. RIGHT TO BE HEARD ........................................................................................................... 249
5. ASSISTANCE OF COUNSEL ................................................................................................ 249
6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ................ 249
7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ...................................................... 250
A. RIGHT TO SPEEDY TRIAL ............................................................................................... 250
B. RIGHT TO IMPARTIAL TRIAL........................................................................................... 251
C. RIGHT TO PUBLIC TRIAL ................................................................................................ 251
8. RIGHT OF CONFRONTATION.............................................................................................. 251
9. COMPULSORY PROCESS ................................................................................................... 252
10. TRIALS IN ABSENTIA ......................................................................................................... 252
O. RIGHT TO THE SPEEDY DISPOSITION OF CASES ............................................................. 253
P. RIGHT AGAINST EXCESSIVE FINES AND CRUEL, DEGRADING, AND INHUMAN
PUNISHMENTS ............................................................................................................................. 254
Q. NON-IMPRISONMENT FOR DEBTS ....................................................................................... 256
R. RIGHT AGAINST DOUBLE JEOPARDY ................................................................................. 256
1. REQUISITES TO RAISE THE DEFENSE OF DOUBLE JEOPARDY: ................................. 256
A. A FIRST JEOPARDY ATTACHED PRIOR TO THE SECOND ......................................... 256
B. THE FIRST JEOPARDY HAS BEEN VALIDLY TERMINATED ........................................ 257
C. A SECOND JEOPARDY IS FOR THE SAME OFFENSE AS IN THE FIRST .................. 258
2. LIMITATIONS ......................................................................................................................... 259
A. MOTIONS FOR RECONSIDERATION AND APPEALS ................................................... 259
B. DISMISSAL WITH CONSENT OF ACCUSED .................................................................. 260
C. CYBERCRIME PREVENTION ACT .................................................................................. 260
S. RIGHT AGAINST INVOLUNTARY SERVITUDE ..................................................................... 261
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T. EX POST FACTO LAWS AND BILLS OF ATTAINDER .......................................................... 261
1. EX POST FACTO LAW .......................................................................................................... 261
2. BILL OF ATTAINDER............................................................................................................. 262
J. PRIVILEGE OF THE WRIT OF HABEAS CORPUS ................................................................ 263
X. LAW ON PUBLIC OFFICERS ...................................................................................................... 268
A. GENERAL PRINCIPLES .......................................................................................................... 268
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE............................................................ 270
C. MODES AND KINDS OF APPOINTMENTS ............................................................................ 273
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ......................................................... 275
E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ................................................... 278
F. POWERS AND DUTIES OF PUBLIC OFFICERS .................................................................... 283
G. RIGHTS OF PUBLIC OFFICERS ............................................................................................. 285
H. LIABILITIES OF PUBLIC OFFICERS ...................................................................................... 287
1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................... 288
2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES ..................................... 290
I. IMMUNITY OF PUBLIC OFFICERS........................................................................................... 291
J. DE FACTO V DE JURE OFFICERS ......................................................................................... 292
K. TERMINATION OF OFFICIAL RELATIONS ............................................................................ 294
L. THE CIVIL SERVICE ................................................................................................................. 299
1. SCOPE ................................................................................................................................... 299
2. APPOINTMENTS TO THE CIVIL SERVICE.......................................................................... 299
3. PERSONNEL ACTIONS ........................................................................................................ 301
M. ACCOUNTABILITY OF PUBLIC OFFICERS .......................................................................... 303
1. TYPES OF ACCOUNTABILITY ............................................................................................. 303
A. ADMINISTRATIVE LIABILITY ........................................................................................... 303
B. CRIMINAL ACCOUNTABILITY.......................................................................................... 305
2. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR ..................... 307
3. THE SANDIGANBAYAN ....................................................................................................... 315
N. TERM LIMITS ........................................................................................................................... 318
XI. ADMINISTRATIVE LAW .............................................................................................................. 323
A. GENERAL PRINCIPLES .......................................................................................................... 323
B. ADMINISTRATIVE AGENCIES ................................................................................................ 324
C. POWERS OF ADMINISTRATIVE AGENCIES ......................................................................... 327
1. QUASI-LEGISLATIVE OR RULE-MAKING POWER ............................................................ 330
A. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS .......................................... 333
B. REQUISITES OF A VALID ADMINISTRATIVE ISSUANCE, RULE, OR REGULATION . 334
2.QUASI-JUDICIAL OR ADJUDICATORY POWER ................................................................. 336
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A. ADMINISTRATIVE DUE PROCESS: (HIP DESK) ............................................................ 339
B. ADMINISTRATIVE APPEAL AND REVIEW APPEAL....................................................... 343
C. ADMINISTRATIVE RES JUDICATA ................................................................................. 344
D. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ........................................................ 345
1. DOCTRINE OF PRIMARY (ADMINISTRATIVE) JURISDICTION......................................... 346
2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES .................................... 347
3. DOCTRINE OF FINALITY OF (ADMINISTRATIVE) ACTION ............................................... 350
XII. ELECTION LAW ......................................................................................................................... 355
A. GENERAL PRINCIPLES ON SUFFRAGE ............................................................................... 355
B. COMMISSION ON ELECTIONS (COMELEC) ......................................................................... 357
C. VOTERS AND VOTING ............................................................................................................ 361
1. QUALIFICATION AND DISQUALIFICATION OF VOTERS .................................................. 361
2. REGISTRATION AND DEACTIVATION OF VOTERS .......................................................... 362
3. INCLUSION AND EXCLUSION PROCEEDINGS ................................................................. 365
4. OVERSEAS AND LOCAL ABSENTEE VOTING ................................................................... 365
D. CANDIDATES ........................................................................................................................... 368
1. DEFINITION ........................................................................................................................... 368
2. QUALIFICATIONS OF CANDIDATES ................................................................................... 369
3. FILING OF CERTIFICATES OF CANDIDACY (COC)........................................................... 371
E. CAMPAIGN ............................................................................................................................... 387
1. ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY .......................................... 387
2. ELECTION CAMPAIGN ACTS .............................................................................................. 388
3. ELECTION PROPAGANDA ................................................................................................... 388
4. CONTRIBUTIONS AND EXPENDITURES............................................................................ 392
F. ELECTION CONTROVERSIES AND REMEDIES ................................................................... 396
1. CONTROVERSIES AND REMEDIES BEFORE PROCLAMATION .................................... 396
A. POSTPONEMENT OF ELECTION .................................................................................... 396
B. FAILURE OF ELECTION ................................................................................................... 396
C. DISQUALIFICATION PETITIONS ..................................................................................... 397
D. PRE-PROCLAMATION CONTROVERSIES ..................................................................... 402
E. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS ...................... 406
2. CONTROVERSIES AND REMEDIES AFTER PROCLAMATION (ELECTION CONTESTS)
.................................................................................................................................................... 408
A. ELECTION PROTESTS ..................................................................................................... 409
B. QUO WARRANTO ............................................................................................................. 411
G. ELECTION OFFENSES ............................................................................................................ 412
XIII. PUBLIC CORPORATIONS AND LOCAL GOVERNMENT ...................................................... 415
A. GENERAL PRINCIPLES .......................................................................................................... 415
1. CORPORATION AND CLASSES OF CORPORATION ........................................................ 415
2. GOVERNMENT OWNED OR CONTROLLED CORPORATIONS (GOCC) ......................... 416
3. MUNICIPAL CORPORATIONS ............................................................................................. 419
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POLITICAL LAW
B. PRINCIPLES OF LOCAL AUTONOMY ................................................................................... 421
C. TERRITORIAL AND POLITICAL SUBDIVISIONS .................................................................. 428
1. PROVINCE, CITY, MUNICIPALITY, BARANGAY, SPECIAL METROPOLITAN POLITICAL
SUBDIVISION ............................................................................................................................ 428
2. SETTLEMENT OF BOUNDARY DISPUTES ......................................................................... 434
D. POWERS OF LOCAL GOVERNMENT UNITS ........................................................................ 434
1. POLICE POWER (GENERAL WELFARE CLAUSE)............................................................. 435
A. LOCAL LEGISLATIVE POWER......................................................................................... 438
2. POWER OF EMINENT DOMAIN (EXPROPRIATION).......................................................... 442
3. POWER OF TAXATION (POWER TO GENERATE AND APPLY RESOURCES) .............. 446
4. CORPORATE POWERS AND OTHER POWERS ................................................................ 456
A. MUNICIPAL LIABILITY ...................................................................................................... 457
B. RECLASSIFICATION OF LANDS ..................................................................................... 461
C. CLOSURE AND OPENING OF ROADS ........................................................................... 462
E. LOCAL ELECTIVE OFFICIALS................................................................................................ 463
1. QUALIFICATIONS ................................................................................................................. 463
2. DISQUALIFICATIONS ........................................................................................................... 464
3. DISCIPLINE............................................................................................................................ 464
4. RECALL.................................................................................................................................. 469
5. VACANCIES AND SUCCESSION ......................................................................................... 471
6. TERM LIMITS ......................................................................................................................... 473
XIV. NATIONAL ECONOMY AND PATRIMONY ............................................................................. 477
A. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ........ 481
B. FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR PUBLIC UTILITY ..................... 482
C. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ........ 484
D. PRACTICE OF PROFESSIONS ............................................................................................... 486
E. ORGANIZATIONS AND REGULATION OF PRIVATE AND PUBLIC CORPORATIONS ..... 486
F. MONOPOLIES, RETRAINT OF TRADE, AND UNFAIR COMPETITION ................................ 486
XV. SOCIAL JUSTICE AND HUMAN RIGHTS ................................................................................ 488
A. CONCEPT OF SOCIAL JUSTICE ............................................................................................ 488
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .................................................................. 489
1. LABOR ................................................................................................................................... 489
2. AGRARIAN AND NATURAL RESOURCES REFORM ......................................................... 490
A. COMPREHENSIVE AGRARIAN REFORM LAW .............................................................. 491
B. OTHER PROVISIONS ....................................................................................................... 492
3. URBAN LAND REFORM AND HOUSING ............................................................................. 493
4. HEALTH ................................................................................................................................. 493
5. WOMEN ................................................................................................................................. 493
6. PEOPLE S ORGANIZATION ................................................................................................. 494
C. COMMISSION ON HUMAN RIGHTS ....................................................................................... 494
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POLITICAL LAW
1. POWERS................................................................................................................................ 494
2. COMPOSITION AND QUALIFICATION OF MEMBERS ....................................................... 494
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ........................ 496
A. ACADEMIC FREEDOM ............................................................................................................ 499
XVII. PUBLIC INTERNATIONAL LAW ............................................................................................. 504
A. CONCEPTS ............................................................................................................................... 505
B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINES DOMESTIC LAW ........ 507
C. SOURCES OF OBLIGATIONS INTERNATIONAL LAW ........................................................ 510
1. ARTICLE 38. INTERNATIONAL COURT OF JUSTICE STATUTE ..................................... 510
2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS,
GENERAL ASSEMBLY RESOLUTIONS ................................................................................... 515
3. EFFECT OF ACTIONS OF ORGANS OF INTERNATIONAL ORGANIZATIONS CREATED
BY TREATY ................................................................................................................................ 515
D. SUBJECTS OF INTERNATIONAL LAW ................................................................................. 515
1. STATES.................................................................................................................................. 516
2. INTERNATIONAL ORGANIZATIONS ................................................................................... 519
3. INDIVIDUALS ......................................................................................................................... 520
4. OTHERS................................................................................................................................. 520
E. JURISDICTION OF STATES .................................................................................................... 522
1. BASIS OF JURISDICTION..................................................................................................... 522
A. WHAT IS TERRITORIALITY PRINCIPLE? ....................................................................... 522
B. WHAT IS NATIONALITY PRINCIPLE? ............................................................................. 523
C. WHAT IS THE PROTECTIVE PRINCIPLE? ..................................................................... 523
D. WHAT IS THE UNIVERSALITY PRINCIPLE? .................................................................. 523
E. WHAT IS THE PASSIVE PERSONALITY PRINCIPLE? .................................................. 523
2. EXEMPTION FROM JURISDICTION .................................................................................... 524
A. WHAT IS THE ACT OF STATE DOCTRINE? ................................................................... 524
B. WHAT ARE THE IMMUNITIES OF INTERNATIONAL ORGANIZATIONS AND ITS
OFFICERS?............................................................................................................................ 524
F. DIPLOMATIC AND CONSULAR LAW ..................................................................................... 526
G. NATIONALITY AND STATELESSNESS NATIONALITY ....................................................... 528
H. GENERAL PRINCIPLES OF TREATY LAW ........................................................................... 530
I. DOCTRINE OF STATE RESPONSIBILITY ............................................................................... 535
ELEMENTS ................................................................................................................................ 535
THERE IS AN INTERNATIONALLY WRONGFUL ACT OF A STATE WHEN CONDUCT
CONSISTING OF AN ACTION OR OMISSION:........................................................................ 535
A. IS ATTRIBUTABLE TO THE STATE UNDER INTERNATIONAL LAW; AND ................... 535
B. CONSTITUTES A BREACH OF AN INTERNATIONAL OBLIGATION OF THE STATE.
(ASR, ART. 2)............................................................................................................................. 535
J. REFUGEES................................................................................................................................ 540
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K. TREATMENT OF ALIENS ........................................................................................................ 542
1. EXTRADITION ....................................................................................................................... 542
A. FUNDAMENTAL PRINCIPLES.......................................................................................... 542
B. NOTICE AND HEARING ................................................................................................... 543
C. DISTINGUISHED FROM DEPORTATION ........................................................................ 544
2. EXPROPRIATION .................................................................................................................. 544
L. INTERNATIONAL HUMAN RIGHTS LAW ............................................................................... 545
1. UNIVERSAL DECLARATION OF HUMAN RIGHTS ( UDHR )............................................. 545
2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) ................... 546
3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
(ICESCR) .................................................................................................................................... 548
M. INTERNATIONAL HUMANITARIAN LAW .............................................................................. 548
1. CATEGORIES OF ARMED CONFLICT ................................................................................ 550
TYPES OF ARMED CONFLICT............................................................................................. 550
A. INTERNATIONAL ARMED CONFLICTS (IAC) ................................................................. 550
B. INTERNAL OR NON-INTERNATIONAL ARMED CONFLICT (NIAC) .............................. 551
C. WARS OF NATIONAL LIBERATION ................................................................................ 552
2. CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL
HUMANITARIAN LAW ............................................................................................................... 552
3. PRINCIPLES ON INTERNATIONAL HUMANITARIAN LAW ................................................ 553
4. LAW ON NEUTRALITY .......................................................................................................... 557
N. LAW OF THE SEA .................................................................................................................... 558
1. BASELINES............................................................................................................................ 558
2. ARCHIPELAGIC STATES ..................................................................................................... 559
A. STRAIGHT ARCHIPELAGIC BASELINES ........................................................................ 559
B. ARCHIPELAGIC WATERS ................................................................................................ 559
C. ARCHIPELAGIC SEA LANES PASSAGE......................................................................... 559
D. REGIME OF ISLANDS ...................................................................................................... 561
3. INTERNAL WATERS ............................................................................................................. 561
4. TERRITORIAL SEA ............................................................................................................... 562
5. CONTIGUOUS ZONE ............................................................................................................ 562
6. EXCLUSIVE ECONOMIC ZONE ........................................................................................... 562
7. CONTINENTAL SHELF ......................................................................................................... 563
8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ............................................... 565
O. INTERNATIONAL ENVIRONMENTAL LAW ........................................................................... 566
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THE 1987
CONSTITUTION
Political Law
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I. THE 1987 CONSTITUTION
TOPIC OUTLINE UNDER THE SYLLABUS:
I. THE 1987 CONSTITUTION
A. NATURE AND CONCEPT OF A
CONSTITUTION
B. PARTS OF A CONSTITUTION
C. AMENDMENTS AND REVISIONS
D. METHODS OF INTERPRETING THE
CONSTITUTION
POLITICAL LAW
A. NATURE AND CONCEPT OF A
CONSTITUTION
Political Law
Political law branch of public law which deals with
the organization and operations of the
governmental organs of the State and defines the
relations of the State with the inhabitants of its
territory. (People v. Perfecto, G.R. No. L-18463,
Oct. 4, 1922)
Subjects covered by Philippine Political Law
1. Constitutional Law - guaranties of the
constitution to individual rights and the
limitations on governmental action
2. Administrative Law - exercise of
executive power in the making of rules and
the decision of questions affecting private
rights
3. Election Law - the study of the laws, rules,
and procedures involving the conduct of
the election of all public officials who will
exercise the powers of government as
allocated to and within their functions and
responsibilities
4. Law
of
Public
Corporations
governmental
agencies
for
local
government or for other special purposes
5. Law of Public Officers - study of the
creation, modification, and dissolution of
public office as well as the eligibility of
public officers, the manner of their election
or appointment and assumption of office,
their rights, duties, powers, inhibitions and
liabilities, and the modes of terminating
official relations.
Constitutional Law
Designates the law embodied in the Constitution
and the legal principles growing out of the
interpretation and application of its provisions by
the courts in specific cases. It is the study of the
maintenance of the proper balance between the
authority as represented by the three inherent
powers of the State and liberty as guaranteed by
the Bill of Rights.
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Definition of Constitution
1. A written instrument enacted by direct
action of the people by which the
fundamental powers of government are
established, limited, and defined, and by
which these powers are distributed among
several departments, for their more safe
and useful exercise, for the benefit of the
body politic (Bernas, 1987 Philippine
Constitution, 2009).
2. The written instrument agreed upon by the
people
as the absolute rule of action
and decision for all departments and
officers of the government
and in
opposition to which any act or rule of any
department or officer of the government, or
even of the people themselves, will be
altogether void (Cooley, III Constitutional
Limitations, 1868).
3. The Constitution both creates the
structures of government and limits their
powers.
4. It is the document which serves as the
fundamental law of the state; that written
instrument enacted by the direct action of
the people by which the fundamental
powers of the government are established,
limited and defined, and by which those
powers are distributed among the several
departments for their safe and useful
exercise, for the benefit of the body politic.
(Malcolm, Phil. Constitutional Law)
Classes of Constitution
1. Written and Unwritten
a. A written constitution precepts
are embodied in one document or
set of documents.
b. An unwritten constitution consists
of rules which have not been
integrated into a single, concrete
form but are scattered in various
sources, such as statutes of
fundamental character, judicial
decisions,
commentaries
of
publicists, customs and traditions.
(Cruz, Constitutional Law 4-5;
Nachura, Outline Reviewer in
Political Law 2)
POLITICAL LAW
2. Enacted (Conventional) and Evolved
(Cumulative)
a. A conventional constitution is
enacted formally at a definite time
and place following a conscious or
deliberate effort taken by a
constituent body or ruler.
b. A cumulative body is the result of
political evolution, not inaugurated
at any specific time but changing
by accretion rather than by any
systematic method. (Cruz, id., at
5)
3. Rigid and Flexible
a. A constitution is classified as rigid
when it may not be amended
except through a special process
distinct from and more involved
than the method of changing
ordinary laws. It is supposed that
by such a special procedure, the
constitution is rendered difficult to
change and thereby acquires a
greater degree of stability.
b. A constitution is classified as
flexible when it may be changed
in the same manner and through
the same body that enacts
ordinary
legislation.
The
Constitution of the UK is flexible.
Note: The Philippine Constitution is written,
conventional and rigid.
Philippine Constitution and Effectivity Dates
1. 1935 Constitution: May 14, 1935
2. 1973 Constitution: Jan. 17, 1973
3. 1986 Freedom Constitution: Mar. 25, 1986
4. 1987 Constitution: Feb. 2, 1987
B. PARTS OF A CONSTITUTION
Essential Parts of a Written Constitution
1. Constitution of Liberty sets forth the
fundamental civil and political rights of
citizens, and imposing limitations on the
powers of government as a means of
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securing the enjoyment of those rights.
(PHIL. CONST., art. III.)
2. Constitution of Government
outlines
the
organization
of
government,
enumerating its powers, laying down rules
regarding its administration, and defining
the electorate. (PHIL. CONST., art. VI-IX.)
3. Constitution of Sovereignty the mode
or procedure with which formal changes in
the fundamental law may be made. (PHIL.
CONST., art. XVII.)
Preamble
An introduction that identifies:
the authors of the Constitution (i.e.
sovereign Filipino people)
their intentions, and
its purpose(s) of the document.
Self-Executing
and
Non-Self
Executing
Provisions
1. Self-Executing - provisions which are
complete in itself and become operative
without the aid of supplementary or
enabling legislation, or that which supplies
a sufficient rule by means of which the right
it grants may be enjoyed or protected.
(Manila Prince Hotel v GSIS, G.R. No.
122156, Feb. 3, 1997)
2. Non-Self-Executing - provisions which
lay down a general principle
General Rule: The provisions of the Constitution
are considered self-executing, and do not require
future legislation for their enforcement.
Exceptions:
1. The principles found in Article II are not
intended to be self-executing principles
ready for enforcement through the courts.
They are used by the judiciary as aids or
as guides in the exercise of its power of
judicial review, and by the legislature in its
enactment of laws (Tondo Medical v. Court
of Appeals, G.R. No. 167324, July 17,
2007).
2. The
social
and
economic
rights
guaranteed in Article XIII are also non-selfexecuting
provisions.
(Bernas,
POLITICAL LAW
Constitutional Rights and Social Demands,
1, 2010).
Exceptions to the Exceptions:
1. Article II, Sec. 16 - The right to a balanced
and healthful ecology is self-executory and
does not need an implementing legislation
(Oposa v. Factoran, G.R. No. 101083, July
30, 1993).
2. Article II, Sec. 28 The duty of full public
disclosure is self-executory (Province of
North Cotabato v. GRP, G.R. No. 183591,
Oct. 14, 2008).
3. Article II, Sec. 15 - The right to health is
also self-executing (Imbong v. Ochoa,
G.R. No. 204819, Apr. 8, 2014).
NOTE: Whether or not a provision is self-executing
depends on the language of the provision. Most of
the provisions in Article II are couched in non-selfexecuting language.
C. AMENDMENTS AND REVISIONS (PHIL
CONST., ART. XVII.)
Amendment
An alteration of one or a few specific
separable provisions of the Constitution.
The
changes
brought
about
by
amendments will not affect the other
provisions of the Constitution (Bernas,
1987
Philippine
Constitution:
A
Commentary, 1345, 2009).
An addition or change within the lines of
the original constitution as will effect an
improvement, or better carry out the
purpose for which it was framed; a change
that adds, reduces or deletes without
altering the basic principles involved;
affects only the specific provision being
amended. (Lambino v. COMELEC, G.R.
No. 174153, Oct. 25, 2006)
Examples:
a change reducing the voting age from 18
years to 15 years;
a change reducing Filipino ownership of
mass media companies from 100% to
60%; a change requiring a college degree
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as an additional qualification for election to
the Presidency (Lambino v. COMELEC,
G.R. No. 174153, Oct. 25, 2006).
Revision
A
re-examination
of
the
entire
Constitution or of provisions which have
over-all implications for the entire
Constitution to determine how and to what
extent it should be altered. A revision
implies substantive change, affecting the
Constitution as a whole (Bernas, 1987
Philippine Constitution: A Commentary,
1345, 2009).
A change that alters a basic principle in the
constitution, like altering the principle of
separation of powers or the system of
checks-and-balances;
alters
the
substantial entirety of the constitution, as
when the change affects substantial
provisions of the constitution.
re i ion (Lambino v. COMELEC, G.R. No.
174153, Oct. 25, 2006).
Necessary Steps to Give Effect to Amendments
or Revisions (PSR)
1. Proposal of amendments or revisions by
the proper constituent assembly
2. Submission of the proposed amendments
or revisions to the people
3. Ratification
Ways of Proposing Amendments (CCP)
1. Constituent Assembly (ConAss)
Acting as a Constituent Assembly, the
Congress by itself may propose
amendments by 3/4 vote of all its
members.
Notes:
The power of Congress to propose
amendments is NOT part of its ordinary
legislative power. Congress possesses
constituent power only because it has
been specifically given that power by and
under the conditions of Article XVII
(Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 544, 2011,
citing Gonzales v. COMELEC, G.R. No. L28196, Nov. 9, 1967).
Each House may separately formulate
amendments by a vote of 3/4 of all its
members, and then pass it on to the other
house for similar process. Nothing is said
about joint sessions (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 544, 2011).
Even in a joint session, they must still vote
separately
because
Congress
is
bicameral.
Examples:
altering the principle of separation of
powers or the system of checks-andbalances;
a switch from the presidential system to a
parliamentary system;
a switch from a bicameral system to a
unicameral
system
(Lambino
v.
COMELEC, G.R. No. 174153, Oct. 25,
2006).
Two-part test in determining whether a
proposal involves an amendment or revision.
1. Quantitative test
The court examines
only the number of provisions affected and
does not consider the degree of the
change. Whether the proposed change is
so extensive in its provision as to change
direc l he
b ance en ire
of he
Constitution by the deletion or alteration of
numerous provisions.
2. Qualitative test
Inquires into the
qualitative effects of the proposed change
in the Constitution. The main inquiry is
he her he change ill accompli h ch
far-reaching changes in the nature of our
basic governmental plan as to amount to a
2. Constitutional Convention (ConCon)
Congress may call a ConCon by a 2/3 vote
of all its members, or
By a majority vote of all its members,
Congress may submit to the electorate the
question of calling a ConCon.
Notes:
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The choice of either a ConAss or ConCon
for the purpose of initiating amendments or
revisions is left to the discretion of
Congress. In other words, it is a political
question.
The manner of calling a ConCon is subject
to judicial review, because the Constitution
has provided for voting requirements.
If Congress, acting as a ConAss, calls for
a ConCon but does not provide the details
for the calling of such ConCon, Congress
exercising its ordinary legislative power
may supply such details. But in so
doing, Congress (as legislature) should not
transgress the resolution of Congress
acting as a constituent assembly (Bernas,
The 1987 Philippine Constitution: A
Comprehensive
Reviewer,
544-545,
2011).
Congress, as a ConAss and the ConCon,
has no power to appropriate money for
their expenses. Money may be spent from
the treasury only pursuant to an
appropriation made by law. However, the
constitutional convention is free to dispose
the funds appropriated by Congress for the
Con en ion opera ion (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 545, 2011).
3. P
I
a
For a alid People Ini ia i e, here m
be:
1. Petition to propose such amendments
must be signed by at least 12% of all
registered voters.
2. Every legislative district must be
represented by at least 3% of the
registered voters therein.
While the substance of the proposals
made by each type of ConAss is not
subject to judicial review, the manner the
proposals were made is subject to judicial
review.
Since a ConAss owes their existence to
the Constitution, the courts may determine
whether the assembly has acted in
accordance with the Constitution, for
example:
o Whether a proposal was approved
by the required number of votes in
Congress (acting as a constituent
assembly).
o Whether the approved proposals
were properly submitted to the
people for ratification.
Notes:
The electorate can propose through
initiative ONLY amendments, since it
would be practically impossible to have an
over-all review of the Constitution through
action by the entire electoral population.
No amendmen
hro gh a People
Initiative shall be authorized within 5 years
following the ratification of the 1987
Constitution (Feb. 2, 1987) nor more often
than once every 5 years. Congress shall
provide for the implementation of the
exercise of this right. (Art. XVII, Sec.2)
Revision of the Constitution cannot be
effected through initiative and referendum.
Formulation of provisions revising the
Constitution requires both cooperation and
debate which can only be done through a
collegial body. (BERNAS)
Ways of Proposing Revisions
1. By Congress, upon a vote of 3/4 of its
members
2. By a Constitutional Convention
Doctrine of Proper Submission
A plebiscite may be held on the same day as a
regular election (Gonzales v. COMELEC, G.R. No.
L-28196, Nov. 9, 1967). The entire Constitution
must be submitted for ratification at one plebiscite
onl . The people m
ha e a proper frame of
reference . (Tolentino v. COMELEC, G.R. No. L34150, Oct. 16, 1971). No piecemeal bmi ion,
e.g. submission of age amendment ahead of other
proposed amendments. (Lambino v. COMELEC,
G.R. No.174153, Oct. 25, 2006)
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N.B. The process of revision is the same in all
respects except that it cannot be proposed via a
People Ini ia i e. [Id.]
Judicial Review of Amendments
The validity of the process of amendment is not a
political question because the Court must review if
constitutional processes were followed. [Id.]
Ratification of Proposal if made through
ConAss or ConCon
Amendments and revisions are valid when
ratified by a majority of votes cast in a
plebiscite.
Plebiscite is held not earlier than 60 days
nor later than 90 days from the approval of
such amendments or revisions.
Ratification of Proposal if made through
P
I a
Valid when ratified by a majority of votes
cast in a plebiscite.
Plebiscite is held not earlier than 60 days
nor later than 90 days after the certification
by COMELEC of the petition's sufficiency.
Requisites for Valid Ratification: (PCR)
1. Held in a Plebiscite conducted under the
election law.
2. Supervised by the COMELEC.
3. Where only franchised (Registered) voters
take part.
The Constitution does not require that
amendments and revisions be submitted to the
people in a special election. Thus, they may be
submitted for ratification simultaneously with a
general election.
POLITICAL LAW
The determination of the conditions under which
proposed amendments/revisions are submitted to
the people falls within the legislative sphere. That
Congress could have done better does not make
the steps taken invalid.
All the proposed amendments or revisions made by
the constituent assemblies must be submitted for
ratification in one single plebiscite. There cannot
be
a
piece-meal
ratification
of
amendments/revisions.
All the amendments to be proposed by the same
Convention must be submitted to the people in a
single "election" or plebiscite (Tolentino v.
COMELEC, G.R. No. L-34150, Oct. 16, 1971).
Presidential proclamation is NOT required for
effectivity of amendments/revisions.
Exception:
When
the
proposed
amendments or revisions so provide
(Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 550, 2011).
Date of Effectivity of an Amendment or
Revision
Since Section 4 of Article XVII, says that any
amendment or revision
hall be alid
hen
ra ified , the date of effectivity of any amendment or
revision should be the same as that of the date of
ratification, that is, the day on which the votes are
cast. However, the amendments themselves might
specify otherwise. (BERNAS)
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Amendments v. Revisions
AMENDMENTS
REVISIONS
Change in the Constitution
Purpose is to improve specific parts
Purpose is to examine entirety
Affects only the specific provision amended
Affects several provisions
Adds, reduces, deletes without altering basic Affects basic principles
principle
Affects substantial entirety
E.g. lowering the voting age
E.g. shift from presidential to parliamentary system
Amendments
CAN BE DONE BY:
1. Congress
(Constituent
Assembly/ConAss)
2. Constitutional
Convention (ConCon)
3. People
Revisions
Initiative
1. Congress
(Constituent
Assembly/ConAss)
2. Constitutional
Convention (ConCon)
HOW
By a vote of 3/4 of all its members
RATIFICATION
By a vote of 2/3 of all the members
of Congress; or
By a majority vote of all its
members, Congress may submit to
the electorate the question of
calling a ConCon
Petition must be signed by at least
12% of all registered voters; and
Every legislative district must be
represented by at least 3% of the
registered voters therein.
By a vote of 3/4 of all its members
Through a plebiscite,
60-90 days after
submission of the
amendments
By a vote of 2/3 of all the members
of Congress; or
By a majority vote of all its
members, Congress may submit to
the electorate the question of
calling a ConCon
D. METHODS OF INTERPRETING THE
CONSTITUTION
Basic Principles of Constitutional Construction
1. Verba legis
whenever possible, the
words used in the Constitution must be
given their ordinary meaning except where
technical terms are employed;
2. Ratio legis est anima
where there is
ambiguity, the words of the Constitution
should be interpreted in accordance with
the intent of the framers;
3. Ut magis valeat quam pereat
the
Constitution should be interpreted as a
whole
(Francisco
v.
House
of
Representatives, G.R. No. 160261, Nov.
10, 2003)
Ordinary Meaning
To the extent possible, words must be given their
ordinary meaning; this is consistent with the basic
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POLITICAL LAW
precept of verba legis. The Constitution is truly a
public document in that it was ratified and approved
by a direct act of the People exercising their right
of suffrage, they approved of it through a plebiscite.
The preeminent consideration in reading the
Constitution,
therefore,
is
the
People's
consciousness: that is, popular, rather than
technical-legal, understanding. (LEONEN - David
v. SET, G.R. No. 221538, Sept. 20, 2016)
The Philippine Flag (§ 1.)
Red, white, and blue with a sun and 3 stars
The design may be changed only by
constitutional amendment.
Ascertainment of Intent
One fundamental principle of constitutional
construction is that the intent of the framers of the
organic law and of the people adopting it should be
given effect. The primary task in constitutional
construction is to ascertain and thereafter assure
the realization of the purpose of the framers and of
the people in the adoption of the Constitution, it
may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the
explanation offered by the framers. (Nitafan v. CIR,
G.R. No. 78780, July 23, 1987)
The law takes effect upon ratification by the people
in a national referendum.
In case of doubt, the provisions should be
considered:
1. self-executing (Manila Prince Hotel v
GSIS, G.R. No. 122156, Feb. 3, 1997);
2. mandatory rather than directory (Tanada v
Cuenco, G.R. No. L-10250, Feb. 28, 1957)
and
3. prospective rather than retroactive (Peralta
v Director of Prisons, G.R. No. L-49, Nov.
12, 1945)
Doctrine of Constitutional Supremacy
If a law or a contract violates any norm of the
Constitution, that law or contract, whether
promulgated by the legislative or executive branch
of the government or entered into by private
persons for private purposes, is null and void, and
without any force and effect. Since the Constitution
is the fundamental and supreme law of the land, it
is deemed written in every statute and every
contract. (NACHURA)
GENERAL PROVISIONS
(PHIL CONST., art. XVI.)
Congress may, by law, adopt a new: (§ 2.)
Name for the country
National anthem
National seal
The Armed Forces of the Philippines (§ 4 & 5.)
Military men cannot engage, directly or
indirectly, in any partisan political activity,
except to vote.
Members of the AFP in active service
cannot be appointed to a civilian position in
the government, including GOCCs or their
subsidiaries.
The Police Force (§ 6.)
The State shall establish and maintain one police
force, national in scope and civilian in character.
The national police is now governed by R.A. No.
6975 which took effect on January 1, 1991.
Consumer Protection (§ 9.)
The State shall protect consumers from trade
malpractices and from substandard or hazardous
products. The protection is intended, not only
against traders, but also to manufacturers who
dump defective products in the market.
Mass Media and Advertising (§ 11.)
The ownership and management of mass media
shall be limited to citizens of the Philippines, or to
corporations, cooperatives or associations, whollyowned and managed by citizens.
Only Filipino citizens or corporations or
associations at least 70% of the capital of which is
owned by Filipino citizens shall be allowed to
engage in the advertising industry.
GOVERNMENT
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GOVERNMENT
An element of a state; that institution through which
the State exercises power; the aggregate of
institutions by which an independent society makes
and carries out rules of action which are necessary
to enable men and women to live in a social state,
or which are imposed upon the people forming that
society by those who possess the power or
authority of prescribing them. (Bacani v. NACOCO,
G.R. L- 9657, Nov. 29, 1956)
ADMINISTRATION
Set of people currently running the government
institution.
Unitary v. Federal Form of Government
UNITARY
FEDERAL
Powers
are The central authority
concentrated in one and
constituent
central authority and political units divide
some of which are and share the power,
merely delegated to where the central
other
units
(e.g. government is focused
delegated legislative on
more
specific
power to LGUs)
functions such as
national defense and
foreign policy. The
constituent units are
given more powers to
develop
their
territories
without
much intervention by
the
central
government
Classification According to Legitimacy of
Government
De Jure Legitimate; possessing all the
legal requisites of government.
De facto
Lacking one or more of the
legal requisites of government.
Types Of De Facto Governments: (VIP)
Government that usurps government and
maintains itself against the will of the
majority by force or by Violence.
Government
established
as
an
independent government by inhabitants
POLITICAL LAW
who rise in Insurrection against the parent
state.
Government established and maintained
by military forces which invade or occupy a
territory of the enemy in the course of war;
a government of Paramount force.
Common Forms of Democratic Government
Presidential
Government is characterized by a
separation of powers among the
Legislative, Executive, and Judiciary.
Thi
em embodie in erdependence
b epara ion and coordina ion.
The head of State is the President, who
likewise presides over the Executive
Department.
Parliamentary
Government
characterized
by
in erdependence b in egra ion. Here,
the ministers of the executive branch get
their democratic legitimacy from the
legislature and are accountable to that
body, such that the executive and
legislative branches are intertwined.
Essential Features of a Parliamentary System
of Government (SCRePS)
Members of government, or the cabinet, or
the executive are as a rule, simultaneously
members of the legislature.
The government or cabinet is in effect a
committee of the legislature.
Both government and legislature possess
control devices with which each can
demand of the other immediate political
responsibility.
The government or cabinet has a
pyramidal structure at the apex of which is
the Prime Minister or his equivalent.
Government or cabinet stays in power only
so long as it enjoys the support of the
majority of the legislature.
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LEGISLATURE po er o e erci e a o e of no
confidence (cen re) hereb go ernmen ma
be ousted.
EXECUTIVE
power to dissolve the legislature
and call for new elections.
Traditional Classification of Government
Functions
1. Constituent
Compulsory functions which
constitute the very bonds of society.
Examples:
Keeping order and providing protection to
persons and property
Fixing of legal relations between husband
and wife, parents and children
Regulation of the holding, transmission,
interchange of property; determination of
liabilities for debt or crime Determination of
contract rights between individuals
Definition and punishment of crime
Administration of justice in civil cases
Determination of political duties, privileges,
and relations of citizens
Dealings of the State with foreign powers:
preservation of the State from external
danger
or
encroachment
and
advancement of international interest
POLITICAL LAW
unrealistic, not to say obsolete. The areas which
used to be left to private enterprise and initiative
and which the government was called upon to enter
optionally, and only "because it was better
equipped to administer for the public welfare than
is any private individual or group of individuals,"
continue to lose their well-defined boundaries and
to be absorbed within activities that the government
must undertake in its sovereign capacity if it is to
meet the increasing social challenges of the times.
(ACCFA v. CUGCO, G.R. No. L-21484, Nov. 29,
1969)
- end of topic
-
2. Ministrant
Discretionary or optional functions
intended to achieve a better life for the community.
Principles to Determine Whether or Not
Government Should Exercise Ministrant
Functions:
Government should do for the public
welfare those things which private capital
would not naturally undertake.
Government should do those things which
by its nature it is better equipped to
administer for the public welfare than is
any private individual or group of
individuals.
The growing complexities of modern society,
however,
have
rendered
this
traditional
classification of the functions of government quite
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BASIC CONCEPTS
Political Law
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II. BASIC CONCEPTS
TOPIC OUTLINE UNDER THE SYLLABUS:
II. BASIC CONCEPTS
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES
POLITICAL LAW
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES
Principles
Binding rules which must be observed in the
conduct of government
Policies
Guidelines for the orientation of the state
B. SOVEREIGNTY
C. STATE IMMUNITY
D. SEPARATION OF POWERS
E. CHECKS AND BALANCES
F.
DELEGATION OF POWERS
G. FUNDAMENTAL POWERS OF THE
STATE
1. POLICE POWER
2. EMINENT DOMAIN
3. TAXATION
Generally Accepted Principles of International
Law
Principles based on natural justice common to
most national systems of law
Examples:
1. The right of an alien to be released on bail
while awaiting deportation when his failure
to leave the country is due to the fact that
no country will accept him (Mejoff v.
Director of Prisons, G.R. No. L-4254, Sept.
26, 1951).
2. The right of a country to establish military
commissions to try war criminals (Kuroda
v. Jalandoni, G.R. No. L-2662, Mar. 26,
1949).
3. The Vienna Convention on Road Signs
and Signals (Agustin v. Edu, G.R. No. L49112, Feb. 2, 1979).
4. Duty to protect the premises of embassies
and legations (Reyes v. Bagatsing, G.R.
No. L-65366, Nov. 9, 1983).
5. Pacta sunt servanda
international
agreements must be performed in good
faith (Tañada v. Angara, G.R. No. 118295,
May 2, 1997).
The Philippines renounces aggressive war as an
instrument of national policy, but allows for a
defensive war.
Civilian Authority
Article II, Section 3 of the Constitution states that
[c]i ilian a hori i , a all ime , preme o er he
military. The Armed Forces of the Philippines is the
protector of the People and the State. Its goal is to
secure the sovereignty of the State and the integrity
of he na ional erri or .
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Civilian Authority - The head of the armed forces
is a civilian president and the primary purpose of
AFP is to serve and protect the people.
Mark of Sovereignty - Positively, the military is the
guardian of the people and of the integrity of the
national territory and therefore ultimately of the
majesty of the law. Negatively, it is an expression
against military abuses.
Freedom from Nuclear Weapons
DOES NOT
PROHIBITS
PROHIBIT
Possession,
control Peaceful
use
and manufacture of nuclear energy
nuclear
weapons;
nuclear arms tests
of
Exception to policy against nuclear weapons may
be made by political departments, but must be
justified by demands of national interest.
Social Justice
The State shall promote social justice in all phases
of national development.
Social Justice has been defined as the
humanization of laws and the equalization of social
and economic forces by the State so that justice in
its rational and objectively secular conception may
at least be approximated (Calalang v. Williams,
G.R. No. 47800, Dec. 2, 1940).
Protection of the Life of the Unborn
It is not an assertion that the unborn is a legal
person. It is not an assertion that the life of the
unborn is placed exactly on the same level of the
life of the mother. Hence, when it is necessary to
save the life of the mother, the lie of the unborn may
be sacrificed.
The Roe v. Wade doctrine allowing abortion up to
the 6th month of pregnancy cannot be adopted in
the Philippines human lives are sacred from the
moment of conception, and that destroying those
new lives is never licit, no matter what the
purported good outcome would be. (Imbong vs.
Ochoa, G.R. No. 204819, April 8, 2014)
Right to a Balance and Healthful Ecology
The right to a balanced and healthful ecology is not
less important than any of the civil and political
rights enumerated in the Bill of Rights. The right to
a balanced and healthful ecology carries with it an
intergenerational responsibility to care for and
protect the environment (Oposa v. Factoran, G.R.
No. 101083, Jul. 30, 1993).
In environmental cases, the precautionary
principle is used when there is a lack of full
scientific certainty in establishing a causal link
between human activity and environmental effect.
The precautionary principle, as a principle of last
resort, shifts the burden of evidence of harm away
from those likely to suffer harm and onto those
desiring to change the status quo. (International
Service for the Acquisition of Agri-Biotech v.
Greenpeace, G.R. No. 209271, Dec. 8, 2015)
Elements for the Application of Precautionary
Principle: (UPP)
Uncertainty
Possibility of irreversible harm
Possibility of serious harm
(International Service for the Acquisition of AgriBiotech v. Greenpeace, G.R. No. 209271, Dec. 8,
2015)
Standing to file an action for violation of
environmental laws
The enactment of the Rules of Procedure for
Environmental Cases enabled litigants enforcing
environmental rights to file their cases as citizen
suits. It liberalized standing for all cases filed
enforcing environmental laws and collapses the
traditional rule on personal and direct interest,
based on the principle that humans are stewards of
nature. The need to give animals legal standing in
environmental cases has been eliminated by the
Rules since any Filipino citizen, as a steward of
nature, is allowed to bring a suit to enforce
environmental laws. (Resident Marine Mammals v.
Reyes, G.R. No. 180771, Apr. 21, 2015)
Requisites for the Issuance of Writ of Kalikasan
(CPE)
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1. There is an actual or threatened violation
of the Constitutional right to a balance and
healthful ecology;
2. The actual or threatened violation arises
from an unlawful act or omission of a
Public official or employee, or private
individual or entity;
3. The actual or threatened violation involves
or will lead to an Environmental damage of
such magnitude as to prejudice the life,
health or property of inhabitants in two or
more cities of provinces. (LNL Archipelago
Minerals Inc v. Agham Party List, GR
209165, Apr. 12, 2016)
B. SOVEREIGNTY
Elements of a State (GSPoT)
Government - institution or aggregate of
institutions by which an independent
society makes and carries out those rules
of action which are necessary to enable
men to live in a social state, or which are
imposed upon the people forming that
society by those who possess the power or
authority of prescribing them
Sovereignty - power of the State to
regulate matters within its own territory
Population - community of persons
sufficient in number and capable of
maintaining the continued existence of the
community and held together by a
common bond of law.
Territory - a definite area over which the
State exercises sovereign jurisdiction
POLITICAL LAW
Auto-Limitation
I i o be admi ed ha an
a e ma , b its
consent, express or implied, submit to a restriction
of its sovereign rights. There may thus be a
curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as
auto-limitation, which, in the succinct language of
Jellinek, "is the property of a state-force due to
which it has the exclusive capacity of legal selfdetermination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what
o her i e i illimi able compe ence. (People v.
Gozo, G.R. No. L-36409, Oct. 26, 1973)
Note: Even though the country allows a foreign
power to participate in the exercise of jurisdictional
right over certain portions of its territory, such areas
do not become impressed with alien character but
rather, it retains its status as native soil. (Id)
Limited by International Law and Treaties
B heir inheren na re, rea ie reall limi or
restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects
of their state power in exchange for greater benefits
gran ed b or deri ed from a con en ion or pac .
(Tanada v. Angara, G.R. 118295, May 2, 1997).
C. STATE IMMUNITY
BASIS: Art. XVI, Sec. 3: The state may not be
sued without its con en . This is based on the
principle of equality of states
par in parem non
habet imperium.
Definition of Sovereignty
The supreme and uncontrollable power inherent in
a State by which that State is governed. (Nachura,
Outline Reviewer in Political Law, 2015)
Doctrine of State Immunity
It refers to a principle by which a state, its agents,
and property are immune from the jurisdiction of
another state (MAGALLONA).
Two types of Sovereignty
1. Political Sovereignty - the supreme
power to make laws
2. Legal Sovereignty - the sum total of all
the influences in a state, legal and nonlegal, which determine the course of law.
(Bernas, The 1987 Constitution of the Republic of
the Philippines: A commentary, 2009 )
Principle of Equality of States
This principle is premised on the juridical equality
of states, according to which a state may not
impose its authority or extend its jurisdiction to
another state without the consent of the latter
through a waiver of immunity. Thus, domestic
courts must decline to hear cases against foreign
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sovereigns out of deference to their role as
sovereigns.
Kinds of Immunity
Absolute sovereign immunity - where a state
cannot be sued in a foreign court no matter what
the act it is sued for;
Restrictive sovereign immunity - where a state
is immune from suits involving governmental
actions (jure imperii), but not from those arising
from commercial or non-governmental activity (jure
gestionis).
Summary
General rule The State cannot be sued.
Exception The State consents to be sued.
How a State gives its consent
1. Express consent
a. General Law
b. Special Law
2. Implied consent
a. When the State commences
litigation, it becomes vulnerable to
a counterclaim; (US v. Guinto,
G.R. No. 76590, Feb. 26, 1990)
b. State enters into a business
contract
(thus
exercising
proprietary functions); (Id.)
c. When it would be inequitable for
the State to invoke immunity;
d. In eminent domain cases.
State's Business Contracts
A S a e commercial ac i i i a de cen o he
level of individuals and there is a form of tacit
consent to be sued when it enters into business
contracts with others.
However, not every contract entered into is a form
of tacit consent to be sued. It depends upon
whether the foreign state is engaged in the activity
in the regular course of business. If not, or if it is in
pursuit of a sovereign activity, it falls within the
exemption of acts jure imperii especially when not
intended for gain or profit.
POLITICAL LAW
A party who feels transgressed by anyone claiming
immunity may ask his own government to espouse
his cause through diplomatic channels.
Extent of Immunity
Immunity from jurisdiction is enjoyed by both the
head of State and by the State itself. The State's
diplomatic agents, including consuls to a certain
extent, are also exempt from the jurisdiction of local
courts and administrative tribunals.
Restrictive Application of State Immunity
This traditional rule of State immunity which
exempts a State from being sued in the courts of
another State without the former's consent or
waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts
(Jure imperii) from private, commercial and
proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity
extends only to acts jure imperii. The restrictive
application of State immunity is proper only when
the proceedings arise out of commercial
transactions of the foreign sovereign, its
commercial activities or economic affairs (Arigo v.
Swift, G.R. No. 206510, Sept. 16, 2014).
Scope of State Immunity
Jure Imperii - Immunity is granted only with
respect to their governmental acts
Jure Gestionis - Immunity is not granted with
respect to their commercial acts
Difference between Jure Gestionis and Jure
Imperii
JURE GESTIONIS
JURE IMPERII
By right of economic or By right of sovereign
business relation
power, in the exercise
of sovereign functions
May be sued
May not be sued
Two Conflicting Concepts of Sovereign
Immunity:
1. Classical or absolute theory sovereign
cannot, without its consent, be made a
respondent in the courts of another
sovereign.
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2. Newer or restrictive theory
the
immunity of the sovereign is recognized
only with regard to public acts or acts jure
imperii of a state but not with regard to
private acts or acts jure gestionis.
A certification executed by the Economic
Commercial Office of the Embassy of the People
Republic of China stating that a project is in pursuit
of a sovereign activity is not the kind of certification
that can establish entitlement to immunity from suit.
It unequivocally refers to the determination of the
Foreign Office of the state where it is used (China
National Machinery Equipment v. Santa Maria,
G.R. No. 185572, Feb. 7, 2012).
When Suit is Considered against the State:
(NUO)
The Republic is sued by Name
Suits
against
an
Unincorporated
government agency
Suit is against a government Official, but is
such that ultimate liability shall devolve on
the government
It produces adverse consequences to the public
treasury in terms of disbursement of public funds
and loss of government property.
It cannot prosper unless the State has given its
consent.
When Not against the State
It was held that the suit is not against the State:
1. When the purpose of the suit is to compel an
officer charged with the duty of making
payments pursuant to an appropriation made
by law in favor of the plaintiff to make such
payment, since the suit is intended to compel
performance of a ministerial duty (Begosa v.
PVA, G.R. No. L-25916, Apr. 30, 1970);
2. When from the allegations in the complaint, it
is clear that the respondent is a public officer
sued in a private capacity;
3. When the action is not in personam with the
government as the named defendant, but an
action in rem that does not name the
government in particular
POLITICAL LAW
Test to Determine if Suit is against the State
Will the enforcement thereof (decisions rendered
against the public officer or agency impleaded)
require an affirmative act from the State, such as
the appropriation of the needed amount to satisfy
the judgment? If so, then it is a suit against the
State. (Sanders v Verdiano, G.R. No. L-46930,
June 10, 1988)
Duration of Immunity of Head of State
Immunity of head of state for private acts lasts
while a person is still in office; for public acts, even
after office.
Consent to be Sued is Given by the State either
EXPRESSLY or IMPLIEDLY
EXPRESS
The law expressly grants the authority to sue the
State or any of its agencies.
a. General Law: Authorizes any person who
meets the conditions stated in the law to sue
the government in accordance with the
procedure in the law (e.g. money claims
arising from contract express or implied,
liability of local government units for torts)
b. Special Law: may come in the form of a
private bill authorizing a named individual to
bring a suit on a special claim.
IMPLIED (C BIP)
a. When the State Commences litigation, it
becomes vulnerable to counterclaim
b. When the State enters into a Business
contract (in jure gestionis or proprietary
functions)
c. When it would be Inequitable for the State
to invoke its immunity
d. In instances when the State takes private
property for Public use or purpose
(Eminent Domain)
Specific Rules
a. When State Commences Litigation
Exception: When the State intervenes not for
the purpose of asking for any affirmative relief,
but only for the purpose of resisting the claim
precisely because of immunity from suit (Lim
v Brownell, GR No. L-8587, Mar 24 1960)
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b. When State enters a Business Contract
Types of Capacity of the State in entering into
contracts:
1. Acta jure gestionis - by right of economic
or business relations; commercial or
proprietary acts. The State may be sued
(US v. Guinto, GR. No. 76607, Feb. 26,
1990)
2. Acta jure imperii - by right of sovereign
power and in the exercise of sovereign
functions; there is no implied consent to be
sued (US v. Ruiz, GR No. 35645, May 22,
1985)
c.
When State Executes and Enters Private
Contracts
General Rule: The State may be sued if a
private contract is entered into by the proper
office and within the scope of his authority.
Exception: When the private contract is
incidental to the performance of a
government function
Suits against Public Officers
General Rule: The doctrine of state immunity also
applies to complaints filed against officials of the
State for acts performed by them in the discharge
of their duties within the scope of their authority.
Exception: The doctrine of immunity from suit will
not apply and may not be invoked where the public
official is being sued in his:
1. private and personal capacity as an
ordinary citizen
2. for acts without authority or in excess of the
powers vested in him. (Lansang v. CA,
G.R. 102667, Feb. 23, 2000)
Rule on Liability of Public Officers (SGU)
1. Acting beyond Scope of Authority: When
a public officer acts in bad faith, or beyond
the scope of his authority, he can be held
personally liable for damages.
2. Acting in Good Faith: If a public officer
acted pursuant to his official duties, without
malice, negligence, or bad faith, he is not
personally liable, and the suit is really one
against the State
POLITICAL LAW
3. Ultra Vires Act: Where a public officer has
committed an ultra vires act, or where there
is showing of bad faith, malice, or gross
negligence, the officer can be held
personally accountable even if such acts
were claimed to have been performed in
connection with official duties (Wylie v.
Rarang, G.R. No. 74135, May 28, 1992).
Suits against Government Agencies
1. Incorporated: If the charter provides that the
agency can sue and be sued, then suit will
lie, including one for tort. The provision in the
charter constitutes express consent on the
party of the State to be sued (PNB v. CIR,
G.R. No. L-32667, Jan 31, 1978)
2. Unincorporated:
a. Performs governmental functions: Cannot
be without State consent even if
performing
proprietary
function
incidentally. Thus, even in the exercise of
proprietary functions, an unincorporated
agency still cannot be sued without its
consent
b. Performs proprietary functions: Can be
sued except when the proprietary
functions are indispensable in the
discharge of its governmental functions
(Mobil PHL Exploration v. Customs
Arrastre Service, GR No. 23139, Dec 17,
1966)
Case Law Exceptions when State/Public Officer
May Be Sued without Prior Consent (RUPJuG)
1. To compel him to do an act Required by law;
2. To restrain him from enforcing an act claimed
to be Unconstitutional
3. To compel the Payment of damages from an
already appropriated assurance fund or to
refund tax overpayments from a fund already
available for the purpose;
4. To secure a Judgement that the officer
impleaded may satisfy by himself without the
State having to do a positive act to assist
him;
5. Where the Government itself has violated its
own laws.
(Sanders v Verdiano, G.R. No. L-46930, Jun 10,
1988)
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Rules regarding Garnishment of Government
Funds
General Rule: Garnishment of government funds
is not allowed. Whether the money is deposited by
way of general or special deposit, they remain
government funds and are not subject to
garnishment.
Exceptions:
1. Where a law or ordinance has been enacted
appropriating a specific amount to pay a valid
government obligation, then the money can
be garnished
2. If the funds belong to a public corporation or
a GOCC which is clothed with a personality
of its own, then the funds are not exempt
from garnishment (NHA v. Guivelando, G.R.
No. 154411, Jun 19, 2003)
To enforce monetary decisions against the
Government, a person may file a claim with the
Commission on Audit. It is settled jurisprudence
that upon determination of State liability, the
prosecution, enforcement, or satisfaction thereof
must still be pursued in accordance with the rules
and procedures laid down in P.D. No 1445
(Government Auditing Code of the Philippines). All
money claims against the Government must first be
filed with the Commission on Audit, which must act
upon it within 60 days. Rejection of the claim will
authorize the claimant to elevate the matter to the
Supreme Court on certiorari and in effect, sue the
State thereby (Department of Agriculture v NLRC,
G.R. No 104269, Nov. 11, 1993; PD 1445, § 49-50)
Consent to be Sued is Not Equivalent to
Consent to Liability
- The fact that the State consented to being
sued does not mean that the State will
ultimately be held liable (US v. Guinto, G.R.
76607, Feb. 26, 1990)
- Even if the case is decided against the State,
an award cannot be satisfied by writs of
execution or garnishment against public
funds. No money shall be paid out of the
public treasury unless pursuant to an
appropriation made by law
POLITICAL LAW
Payment of interest by the Government in
Money Judgment Against it:
General Rule: Government cannot be made to pay
interests
Exceptions (EEG):
1. Eminent domain
2. Erroneous collection of tax
3. Government agrees to pay interest pursuant
to law
Immunity from Jurisdiction
General rule: The jurisdiction of a state within its
territory is complete and absolute
Exceptions (SDH):
1. Sovereign immunity
2. Diplomatic immunity
3. Hostis Humanis Generis - enemy of all
mankind or crimes justiciable by any state
anywhere e.g. piracy (Filartiga v. Pena-Irala,
630 F.2d 876, 1980)
Acts of State Immunity
Every state is bound to respect the independence
of every other sovereign state, and the courts of
one country will not sit in judgment on the acts of
the government of another, done within its own
territory. Redress of grievances by reason of such
acts must be obtained through the means open to
be availed of by sovereign powers as between
themselves
This immunity is for the benefit of the State. Thus,
only the state may waive it.
Nothing in the complaint would require a court to
pass judgment on any official act of the Philippine
government. Just as raising the specter of political
issues cannot sustain dismissal under the political
question doctrine, neither does a general
invocation of international law or foreign relations
mean that an act of state is an essential element of
a claim. It cannot be thought that every case
touching foreign relations lies beyond judicial
cognizance.
(Provincial
Government
of
Marinduque v. Placer Dome, Inc G.R. No. 07-1630,
2009)
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The commission of a crime by a state official, which
is an international crime against humanity and jus
cogens, is NOT an act done in an official capacity
on behalf of the state. As a matter of general
customary international law, a head of state will
PERSONALLY be liable to account if there is
sufficient evidence that he authorized or
perpetrated
serious
international
crimes.
Individuals who commit international crimes are
internationally accountable for them.
General Rule: Any person who in performing an
act of the state, commits a criminal offense is
immune from prosecution. This applies not only to
ex-heads of state and ex-ambassadors but to all
state officials who have been involved in carrying
out the functions of the state (Immunity Ratione
Materiae/Functional Immunity - Imm ni of he
official )
Exception: Functional Immunity of state officials of
the foreing state could no longer be invoked in
cases of international crimes (Regina v. Bartle and
the Commissioner of Police, “Pinochet Case”)
Exception to the Exception: When the case is
brought against the State itself for liability to
damages (e.g. civil proceedings against a state),
the rationale for the judgment in the Pinochet case
has no bearing.
Note:
A state is not deprived of immunity by reason of the
fact that it is accused of serious violations of
international human rights law or the international
law of armed conflict. The court distinguished
between immunity and substantive jus cogens
rules of international law and held that a finding of
immunity does not equal a finding that a state did
not owe reparations (Jurisdictional Immunities of
the State: Germany v. Italy, 2012).
POLITICAL LAW
preventing one from invading the domain of the
others, but the separation is not total.
The principle of separation of powers ordains that
each of the three great government branches has
exclusive cognizance of and is supreme in
concerns falling within its own constitutionally
allocated sphere; e.g., the judiciary as Justice
La rel empha icall a er ed ill nei her direc nor
re rain e ec i e [or legi la i e] ac ion (Republic
v. Bayao, G.R. No. 179492, Jun 5, 2013).
E. CHECKS AND BALANCES
A system operating between and among the three
branches of government the net effect of which is
that no one department is able to act without the
cooperation of at least one of the other
departments.
Examples:
- Legislation in the form of an enrolled bill
needs final approval from the President to
become a law;
- President must obtain the concurrence of
Congress to complete certain acts (e.g.
granting of amnesty);
- Money can be released from the Treasury
only by authority of Congress;
- Appropriation, revenue, tariff, increases in
public debt and private bills originate in House
of Representatives;
- SC can declare acts of Congress or the
Executive unconstitutional.
F. DELEGATION OF POWERS
D. SEPARATION OF POWERS
General Rule: Legislative power is vested in
Congress which consists of the Senate and the
House of Representatives by the sovereign Filipino
people. Congress cannot delegate its legislative
power under the maxim delegata potestas non
potest delegari (delegated power may not be
delegated).
An allocation of the three great powers of
government in the following manner: legislation to
Congress, execution of laws to the Executive, and
settlement of legal controversies to the Judiciary. It
is also an implicit limitation on their powers,
Exceptions: (PLATE)
1. Delegation to the People
To the extent
reserved to the people by the provision on
initiative and referendum.
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2. Delegation to Local Government Units
Local legislative bodies are allowed by our
Constitution to legislate on purely public
matters. Since what was given to local
legislative bodies are not power to make rules
and regulations but legislative power, the rules
on valid delegation do not apply. However,
when what is given to local legislative body is
executive power, the rules applicable to the
empowerment of administrative agencies also
become applicable (Rubi v. Provincial Board,
G.R. No. L-14078, March 7, 1919).
-
The BPO issued by the Punong Barangay
is not an undue delegation of legislative
power for it merely orders the perpetrator
to desist from (a) causing physical harm to
the woman or her child; and (2) threatening
to cause the woman or her child physical
harm. Such function of the Punong
Barangay is purely executive in nature, in
pursuance of his duty under the LGC to
enforce all la
and ordinance , and o
main ain p blic order in he baranga .
(Garcia v. Drilon, G.R. No. 179267, June
25, 2013)
3. Delegation of Rule-Making Power to
Administrative Bodies
power to issue
supplementing rules and regulations provided
that the delegation must be complete and must
prescribe sufficient standards. It also includes
the determination of the presence of the
conditions for the law to take effect.
- Rationale:
o Increasing complexity of the task of
government
o Lack of technical competence on the part
of Congress to provide for specific
details of implementation
o Administrative agencies may fill up
details of the statute for implementation
o Legi la re ma
pa
con ingen
legi la ion
hich lea e
o ano her
body the business of ascertaining facts
necessary to bring the law into action
(ABAKADA v. Ermita, G.R. No. 168056,
Sept 1, 2005).
-
-
-
-
If there was a valid delegation,
administrative rules and regulations are
just binding as if it was written in the law.
Administrative agencies may not issue
regulations that contravene the law
(Solicitor General v. Metro Manila
Authority, G.R. No. 102782, Dec 11, 1991)
nor may they add to the standards set by
law (Tatad v. Secretary of Energy, G.R.
No. 124360, Nov. 5, 1997).
Administrative rules and regulations may
be penal in nature provided that:
- such a violation is made a crime by
the delegating law;
- penalty of such is provided in the
statutes
- the regulation is published.
Powers of Congress which are not to be
delegated are those that are strictly or
inherently legislative. Purely legislative
power is the authority to make a complete
law - complete as to the time it shall take
effect or to whom it shall be applicable and
to determine the expediency of the
enactment
4. Tariff Powers
- Art. VI, § 28(2) authorizes Congress to
delegate to the President the power to fix
tariff rates, import and export quotas,
tonnage, wharfage dues, and other duties
and impost.
5. Emergency Powers
- Art. VI, § 23(2) authorizes Congress to give
the President the power necessary and
proper to carry out a declared national
policy in times of war or other national
emergency pursuant to law.
Test of Valid Delegation
1. Completeness Test The law must state the
policy that must be carried out or implemented
and leave no room for the delegate to legislate;
nor allow discretion on their part to say what
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the law is; there must be nothing left for the
delegate to do but to enforce the law.
2. Sufficiency of Standard
The limits are
sufficiently determinate and determinable to
which the delegate must conform in the
performance of his actions.
Examples:
i.
Public interest (People v. Rosenthal,
G.R. Nos. L-46076 and L-46077, Jun.
12, 1939).
ii.
Fair and equitable employment practices
(Eastern Shipping Lines v. POEA, supra)
iii. Justice and equity
iv. Public convenience and welfare
v. Simplicity, economy, and efficiency.
Note:
Standards may be expressed or implied from the
law taken as a whole (Edu v. Ericta, G.R. No. L32096, Oct. 24, 1970). They can even be gathered
in another statute of the same subject matter
(Chongbian v. Orbos, G.R. No. 96754, June 6,
1995).
A law allowing a judge to inflict punishment of
imprisonment in its discretion without any
designated limits is invalid. (People v. Dacuycoy,
G.R. No. L-45127, May 5, 1989).
Section 8 of PD 910 regarding the Malampaya
f nd
pro ide :
all fee , re en e
and
receip
nder he Pe role m Ac of 1949; a
ell
a he go ernmen hare
hall form par of a
special fund to be used to finance energy resource
development and exploitation programs and
projects of the government and for such other
purposes as may be hereafter provided by the
Pre iden . This is not a valid delegation of
legislative power. The provision constitutes an
undue delegation of legislative power insofar as it
does not lay down a sufficient standard to
adeq a el de ermine he limi of he Pre iden
authority (Belgica v. Ochoa, G.R. No. 208566, Nov.
19, 2013).
Congress can only delegate, usually to
administrative agencies, rule-making power or
POLITICAL LAW
law execution. This involves either of two tasks for
the administrative agencies:
- Subordinate Legislation: Filling up the
details of an otherwise complete statute; or
- Contingent Legislation: Ascertaining the
fac nece ar o bring a con ingen la
or provision into actual operation.
Any post-enactment congressional measure
should be limited to scrutiny and investigation. In
particular, congressional oversight must be
confined to the following: (SAHM)
· Scr in ba ed primaril on Congre
power of appropriation and the budget
hearings conducted in connection with it
· Its power to ask heads of departments to
Appear before and be Heard by either of its
Houses on any matter pertaining to their
departments and its power of confirmation
and investigation
· Monitoring of the implementation of laws
pursuant to the power of Congress to
conduct inquiries in aid of legislation
Any action or step beyond that will undermine the
separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class
(Abakada v. Purisima, G.R. No. 166715, Aug. 14,
2008).
Reorgani a ion
in ol e
he red c ion of
personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of
f nc ion . The general r le ha al a been that
the power to abolish a public office is lodged with
the legislature. The exception, however, is that as
far as bureaus, agencies or offices in the executive
depar men are concerned, he Pre iden po er
of control may justify him to inactivate the functions
of a particular office, or certain laws may grant him
the broad authority to carry out reorganization
measures (Malaria Employees v. Romulo, G.R.
160093, Jul 31, 2007).
G. FUNDAMENTAL POWERS OF THE
STATE
Concept, Application, and Limits
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The totality of governmental power is contained in
three great powers: police power, power of eminent
domain and power of taxation. These belong to the
very essence of government, without which no
government can exist. A constitution does not grant
such powers to government; a constitution can only
define and delimit them and allocate their exercise
among various government agencies. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
POLICE
EMINENT
TAXATION
POWER
DOMAIN
Authority which exercises the power
May be exercised only by the May
be
government or its political granted
to
subdivisions
public service
companies or
public utilities
Purpose
The use of The property The property
the property (generally in i
aken for
i reg la ed the form of public benefit,
for
the money)
is hence, it must
purpose of taken for the be
promoting
support
of compensated
the general government
.
welfare,
hence it is
not
compensabl
e
Persons affected
Usually
Operates on
operates
an entity or an
upon
a
individual as
community
the owner of a
of a class of
particular
entities
or
property
individuals
There is no
transfer
of
title. At most,
there is a
restraint on
the injurious
Effect
The
money
contributed in
the concept of
taxes
becomes part
There is a
transfer of the
right
to
property
whether it be
ownership or
use of the
property
The person
affected
receives no
direct
and
immediate
benefit but
only such as
may
arise
from
the
maintenance
of a healthy
economic
standard of
society and
is
often
referred to as
damnum
absque
injuria
i.e.
damage
without
inj r
The amount
imposed
should not
be more than
sufficient to
cover
the
cost of the
license and
the
necessary
expense of
police
surveillance
and
inspection,
examination,
or regulation
as nearly as
can
be
estimated
of the public
funds
Benefit
Person
affected
receives
the
equivalent of
the tax in the
form
of
protection,
public
improvements,
and benefits
he
receives
from
the
government as
such.
Therefore,
taxation may
be used as an
implementatio
n of police
power (Lutz v.
Araneta, 1955)
Imposition
There
is
generally no
limit to the
amount
that
may
be
imposed
to a lesser
right
(e.g.
possession)
The person
affected
receives the
full and fair
market value
of
the
property
taken
from
him
There is no
amount
imposed but
rather
the
owner is paid
the
market
value of the
property
taken
Extent
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Regulates
both liberty
and property
Affect only property rights
1. POLICE POWER
Police Power in General
- Based on public necessity and the right of the
State and of the public to self-protection. For
this reason, its scope expands and contracts
with changing needs. (Baseco v. PCGG, G.R.
No. 75885, May 27, 1987)
- It is the power of the State to enacts
regulations to promote the health, morals,
peace and order, and welfare of the society
(Ermita-Malate Hotel and Motel Operators v.
City of Manila, G.R. No. L-24693, Oct. 23,
1967). The e fall nder p blic nece i
- Police power has been properly characterized
as the most essential, insistent and the least
limitable of powers, extending as it does to all
great public needs. (Id.)
Requisites
1. Reasonable Subject - The subject of the
measure is within the scope of police, i.e.
that the activity or property sought to be
regulated affects the public welfare. The
interest of the public, generally as
compared to a particular class requires
interference by the state.
2. Reasonable Means - The means
employed are reasonably necessary for
the accomplishment of the purpose, and
not unduly oppressive on individuals. Both
the end and the means must be legitimate
(US v. Toribio, G.R. No. L-5060, Jan. 1,
1910)
Nature
Legislative but may be delegated to the following:
- President
- Administrative Bodies
- Legislative Bodies of Local Government
Units
2. EMINENT DOMAIN
The purpose of the taking must be public use. Just
compensation must be given to the private owner.
POLITICAL LAW
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
The State has a paramount interest in exercising
its power of eminent domain for the general welfare
and that the superior right of the State to
expropriate private property always takes
precedence over the interest of private owners,
provided that:
the expropriation is for public use
the exercise of the right to eminent domain
complies with the guarantees of due
process (Estate of JBL Reyes v. City of
Manila, G.R. Nos 132431 & 137146, Feb.
13, 2004).
The ma er i legi la i e, ho e er, once a hori
is given to exercise the power, the matter ceases
to be wholly legislative. The executive authorities
may then decide whether the power will be invoked
and to what extent (Republic v. Juan, G.R. No. L24740, Jul 30, 1979).
It may be delegated to LGUs, other public entities
and public utilities. The scope is narrower and may
be exercised only when authorized by Congress,
subject to its control and restraints imposed
through the law conferring the power or in other
legislations. Thus, the power of eminent domain
delegated to an LGU is in reality not eminent but
inferior. The na ional legi la re i
ill he
principal of the LGUs, the latter cannot go beyond
he principal
ill or modif he ame (Beluso v.
Municipality of Panay, G.R. 153974, Aug. 7, 2006).
Requisites
1. Public Use
It means public usefulness,
utility, or advantage or what is productive of
general benefit, so that any appropriation of
private property by the state under its right of
eminent domain, for purposes of great
advantage to the community, is a taking for
public use. (Bernas, The 1987 Constitution of
the Republic of the Philippines, 2009 citing
Gohl Realty Co. v. Hartford, 104 A.2d 365,
368-9 Conn,. 1954). What has emerged is a
concept of public use which is as broad as
public welfare. The scope of the power of
eminent domain has become as broad as the
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expansive and ever expanding scope of
police power itself (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
2. Ta
: EPAP-D
a. Expropriator must Enter the private
property
b. Entrance must not be for a momentary
period, must be Permanent
c. Entry must be under warrant or color of
legal Authority
d. Property must be devoted to a Pubic use
e. Utilization of property must Deprive owner
of all beneficial enjoyment of the property
(Republic v. Vda Castellvi, G.R. No. L20620, Aug. 15, 1974)
3. Just Compensation This includes not only
the determination of the amount to be paid
(market value) to the owner of the land but
also the payment of the and within a
reasonable period of time from its taking
(Municipality of Makati v. Court of Appeals,
G.R. No. 89898-99, Oct. 1, 1990). It also
includes interest in case of delay. (Republic v.
Court of Appeals, G.R. No. 146587, Jul 2,
2002).
General Rule: The power to tax is purely
legislative and it cannot be delegated
Exceptions:
I.
As to the President
Congress may, by
law, authorize the President to fix within
specific limits, and subject to such
limitations and restrictions as it may
impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and
other duties or imposts within the
framework of the national development
program of the Government. (PHIL.
CONST., art. VI, § 28, ¶ 2. )
II.
As to Local Government
Under the
present
Constitution,
each
local
government unit is now expressly given the
power to create its own sources of revenue
and to levy taxes, subject to such
guidelines and limitations as the Congress
may provide, consistent with the basic
policy of local autonomy (PHIL. CONST., art.
X, § 5.)
A. A municipal corporation has no
inherent right to impose taxes Its
power to tax must always yield to
a legislative act which is superior
having been passed by the State
itself which has the inherent power
to tax (Basco v. PAGCOR, G.R.
No. 91649, May 14, 1991).
3.TAXATION
The power of taxation is essentially a legislative
function. Taxation is an attribute of sovereignty. It
is the strongest of all powers of the government.
There is a presumption in favor of legislative
determination. Public policy decrees that since
upon the prompt collection of revenue depends the
very existence of government itself, whatever
determination shall be arrived at by the legislature
should not be interfered with, unless there be a
clear violation of some constitutional inhibition
(Sarasola v. Trinidad, G.R. No. 14595, Oct. 11,
1919).
The legislature is free to select the subjects of
taxation and it may determine within reasonable
bounds what is necessary for its protection and
expedients for its promotion (Lutz v. Araneta, G.R.
No. L -7859, Dec. 22, 1955).
III.
As to Administrative Agencies
When the delegation relates merely to
administrative implementation which may
call for some degree of discretionary
powers under a set of sufficient standards
expressed by law (Maceda v. Macaraig,
G.R. No. 88291, May 31, 1993)
- end of topic
-
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NATIONAL
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III. NATIONAL TERRITORY
Provision on National Territory
The National Territory comprises the Philippine
Archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between,
and connecting the islands of the archipelago,
regardless of their breadth and dimension, form
part of the internal waters of the Philippines (PHIL.
CONST., art. I, § 1)
Purpose of Article I
a)
Initially it was to prevent the US from
dismembering the Philippines, an acceptance by
the US President of the Constitution would oblige
the US to keep the integrity of the Philippine
territory.
b) Now, it is to determine the State’s jurisdiction
over which it can exercise its sovereignty. The
government can exercise its power over those
areas included in the national territory and citizens
must respect that. At the same time, citizens could
demand its rights from the government under those
areas.
Note: It is only a municipal or local law. The
constitution is not definitive to claims of other
states. But it has value, if in history, no one
questions it, we can rely on the fact that it has not
been challenged but it does not stop others from
claiming it.
Archipelagic Doctrine
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of
islands and waters together forming one integrated
unit. [N.B. Embodied in Art. II, specifically by the
mention of the “Philippine archipelago” and the
specification on “internal waters.”]
Application to the Philippines
The waters around, between, and connecting the
islands of the archipelago, regardless of their
POLITICAL LAW
breadth and dimensions, form part of the internal
waters of the Philippines. (PHIL. CONST., art. I, § 1)
Treaty limits of the Philippine archipelago
(1) Treaty of Paris of 10 December 1898:
Spain cede o he Uni ed S a e he
archipelago known as the Philippines
Islands, and comprehending the islands
l ing i hin he follo ing line Ar icle 3 of he
said treaty defines the metes and bounds of
the archipelago by longitude and latitude,
degrees
and
seconds.
Technical
descriptions are made of the scope of the
archipelago as this may be found on the
surface of the earth.
(2) Treaty of Washington of 7 November 1900
between the United States and Spain:
Ceding Cagayan, Sibuto and Sulu.
(3) Treaty of 12 January 1930 between the
United States and Great Britain: Ceding the
Turtle and Mangsee Islands. [BERNAS
(2003), cited in Justice Velasco’s
concurring opinion in Magallona v. Ermita
(2011)].
Composition of National Territory
1. Philippine Archipelago, with all the
islands and waters embraced therein;
2. Internal Waters: waters around, between
and connecting the islands of the
archipelago, regardless of breadth and
dimension; and
3. All other territories over which the
Philippines has sovereignty or jurisdiction
It consists of:
1. Territorial sea, seabed, subsoil, insular
shelves, and other submarine areas
2. Terrestrial, fluvial, and aerial domains
Concept of Innocent Passage
Passage through territorial waters which is
neither prejudicial to the interests of the
coastal state nor contrary to recognized
principles of international law. Example: Entry
into territorial waters by a cruise ship.
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Future Acquisitions
Territory
included
in
National
The clause includes any territory presently
belonging or those that might in the future belong
to the Philippines through any of the accepted
international modes of acquiring territory.
Territories belonging to Philippines by historic
right or title
The clause also includes what was referred to
under the 1973 Constitution as territories
belonging o he Philippine b hi oric righ or
legal i le, ha i , erri orie
hich, depending on
available evidence, might belong to the Philippines
(e.g., Sabah, the Marianas, Freedomland) (Bernas,
Constitutional Rights and Social Demands, 8,
2010).
Under Ar icle 3 of he UNCLOS, e er
a e ha
the right to establish the breadth of its territorial sea
up to a limit not exceeding 12 nautical miles,
measured from he ba eline
Contiguous Zone
It is an area of water which extends up to 24
nautical miles from the baseline (12 nautical miles
from the Territorial Sea). Although not part of the
territory, the coastal State may exercise jurisdiction
to prevent infringement of customs, fiscal,
immigration, or sanitary laws.
Exclusive Economic Zone
This refers to the body of water extending up to 200
nautical miles beyond the baseline, within which
the state may exercise sovereign rights to explore,
exploit, conserve, and manage the natural
resources.
Extended Continental Shelf
Portion of the continental shelf that lies beyond the
200 nautical mile limit. A coastal state may
establish a continental shelf beyond the 200
nautical miles from its coastline.
The coastal State may establish the outer limits of
its juridical continental shelf wherever the
continental margin extends beyond 200 nautical
miles by establishing the foot of the continental
slope, by meeting the requirements of Article 76,
paragraphs 4-7, of the UNCLOS.
The Philippine archipelago and all other territories
consist of the following domains: (TAFA)
1. Terrestrial
2. Aerial
3. Fluvial
4. All other territories outside archipelago over
which RP has sovereignty or jurisdiction
Normal Baseline Method
The baseline is drawn following the low-water line
along the coasts as marked on large-scale charts
officially recognized by the coastal State. This line
follows the sinuosities of the coast and therefore
would normally not consist of straight lines (Section
5, 1982 LOS; Bernas, 1987 Philippine Constitution:
A Commentary, 23, 2009).
Straight Baseline Method
Consists of drawing straight lines connecting
appropriate points on the coast without departing
to any appreciable extent from the general direction
of the coast, in order to delineate the internal
waters from the territorial waters of an archipelago.
The Baseline Law (R.A. 9522, 2009)
R.A. No. 9522 amended R.A. No. 3046, entitled
"An Act to Define the Baselines of the Territorial
Sea of the Philippines;" specified that baselines of
Kalayaan Group of Islands and Bajo de Masinloc
(Scarborough Shoal) shall be determined as
Regime of I land
nder he Rep blic of he
Philippines, consistent with the UNCLOS.
R.A. No. 9522 is constitutional:
(a) It is a statutory tool to demarcate the
maritime zone and continental shelf of the
Philippines under UNCLOS III, and does
not alter the national territory. Baselines
laws are nothing but statutory mechanisms
for UNCLOS III state parties to delimit with
precision the extent of their maritime zones
and continental shelves. The law has
nothing to do with acquisition, enlargement,
or diminution of territory, as States may
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only acquire (or lose) territory through the
following modes: (CAPO) Cession,
Accretion, Prescription, and Occupation
(Magallona v. Ermita, G.R. No. 187167,
2011).
(b) The law also does not abandon the
co n r
claim to Sabah, as it does not
expressly repeal the entirety of R.A. No.
5446. (Magallona v. Ermita, G.R. No.
187167, Jul. 16, 2011)
The law also does not convert internal waters into
archipelagic waters (which allow the right of
innocent passage). The Philippines still exercises
sovereignty over the body of water lying landward
of the baselines including the air space over it and
the submarine areas underneath. The political
branches of the Philippine government, in the
competent discharge of their constitutional powers,
may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea
lanes passage (Magallona v. Ermita, G.R. No.
187167, Jul. 16, 2011).
The Baselines Law does not abandon the
Philippine claim o er Sabah nder RA 5446. The
definition of the baselines of the territorial sea of the
Philippine Archipelago is without prejudice to the
delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North
Borneo, over which the Philippines has acquired
dominion and sovereignty (R.A. No. 556, § 2).
CONTINENTAL
SHELF
Submerged
prolongation
of the land
territory
Sovereign
rights
of
exploration
and
exploitation
of living and
non-living
resources of
the seabed
Regime of Islands
Under Article 121 of the UNCLOS III, any naturally
formed area of land surrounded by water, which is
above water at high tides, qualifies under the
ca egor of regime of i land
ho e i land
generate their own applicable maritime zones (e.g.,
Kalayaan Islands and Scarborough Shoal).
Kalayaan Islands has its own Territorial
Sea, Contiguous Zone, and Exclusive
Economic Zone.
- BUT Scarborough Shoal ONLY has a
Territorial Sea and Contiguous Zone.
- There can be a Continental Shelf without an
EEZ, but not an EEZ without a Continental
Shelf.
- end of topic
-
Maritime Zones
TERRITORIAL
SEA
12 nautical
miles
from
baselines
Absolute
Sovereignty
CONTIGUOUS
ZONE
24 nautical
miles
from
baselines
Enforcement
of customs,
fiscal,
immigration,
sanitation
laws
EXCLUSIVE
ECONOMIC
ZONE
200 nautical
miles
from
baselines
Exploitation
of living and
non-living
resources
Page 29 of 568
CITIZENSHIP
Political Law
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A. KINDS OF CITIZENSHIP
IV. CITIZENSHIP
TOPIC OUTLINE UNDER THE SYLLABUS
IV. CITIZENSHIP
A. KINDS OF CITIZENSHIP, PURPOSE OF
DISTINGUISHING
CITIZENSHIP
AND
KINDS OF CITIZENSHIP
1. Natural born citizens
2. Naturalized citizens
Who are Natural Born Citizens
1. Those who are citizens of the Philippines from
birth without having to perform any act to
acquire or perfect their Philippine citizenship
(PHIL CONST., art. IV, § 2)
B. WHO ARE CITIZENS
C. WHO CAN BE CITIZENS
D. MODES OF ACQUIRING CITIZENSHIP
E. MODES OF LOSING AND REACQUIRING
CITIZENSHIP
1. LOSING CITIZENSHIP
2. REACQUIRING CITIZENSHIP
F. DUAL
CITIZENSHIP
ALLEGIANCE
AND
DUAL
Ha ing to perform an ac means that the act
must be personally done by the citizen. (PoeLlamanzares v. COMELEC, G.R. No. 221697,
March 8, 2016)
2. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority (PHIL CONST., art.
IV, § 2)
3. Those who were repatriated and were originally
natural born citizens (Bengzon v. HRET, G.R.
No. 142840, May 7, 2001)
Who are Naturalized Citizens
Foreigners adopted into the political body of a
nation and clothed with the privileges of a citizen.
(So v. Republic, G.R. No. 170603, Jan. 29, 2007)
Natural Born Citizens v. Naturalized Citizens
In general, the law cannot treat Natural Born
Citizens and those who were naturalized differently
except in the instances where the Constitution itself
makes a distinction. Otherwise there would be a
violation of the equal protection clause. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
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Natural born citizens v. Naturalized Citizens
NATURAL BORN
NATURALIZED
CITIZENS
CITIZENS
Article IV, Section 2
One who is not
natural-born citizen
As one who is a
citizen of the
They are former aliens
Philippines "from birth or foreigners who had
without having to
to undergo a rigid
perform any act to
procedure, in which
acquire or perfect
they had to adduce
Philippine
sufficient evidence to
citizenship." (i .e., did
prove that they
not have to undergo
possessed all the
the process of
qualifications and
naturalization to
none of the
obtain Philippine
disqualifications
citizenship)
provided by law in
order to become
Filipino citizens.
Requirements:
Generally required to
file a verified petition.
He or she must
establish, among
others, that he or she
is of legal age, is of
good moral character,
and has the capacity
to adapt to Filipino
culture, tradition, and
principles, or
otherwise has resided
in the Philippines for a
significant period of
time. Further, the
applicant must show
that he or she will not
be a threat to the
state, to the public,
and to the Filipinos'
core beliefs.
Natural Born Citizens & Public Office
Under the Constitution, the following must be
natural-born citizens:
1. President (PHIL CONST., art. VII, § 2)
2. Vice-President (PHIL CONST., art. VII, § 3)
3.
4.
5.
6.
7.
8.
Members of Congress (PHIL CONST., art. VI §
3 & 6)
Justices of SC and lower collegiate courts
(PHIL CONST., art. VIII, § 7(1))
Ombudsman and his deputies (PHIL CONST.,
art. XI, § 8)
Members of Constitutional Commissions:
a. CSC (PHIL CONST., art. IX-B, §1(1))
b. COMELEC (PHIL CONST., art. IX-C, §1)
c. COA (PHIL CONST., art. IX-D, § 1(1))
Members of the central monetary authority
(PHIL CONST., art. XII, § 20)
Members of the Commission on Human
Rights (PHIL CONST., art. XIII, § 17(2))
Former Filipino Citizens Running for Public
Office
Natural-born Filipinos who have been naturalized
elsewhere and wish to run for elective public office
must comply with all of the following requirements:
1. Taking the oath of allegiance to the Republic.
This effects the retention or reacquisition of
one's status as a natural-born Filipino. This also
enables the enjoyment of full civil and political
rights, subject to all attendant liabilities and
responsibilities under existing laws, provided
the solemnities recited in Section 5 of Republic
Act No. 9225 are satisfied.
2. Making a personal and sworn renunciation of
any and all foreign citizenship before any public
officer authorized to administer an oath. This,
along with satisfying the other qualification
requirements under relevant laws, makes one
eligible for elective public office.
FOUNDLINGS
Natural Born Citizens
As a matter of law, foundlings are as a class,
natural-born citizens. While the 1935 Con i ion
enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude
foundlings either. No such intent or language
permits discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973, 1987)
guarantee the basic right to equal protection of the
laws. All exhort the State to render social justice.
(Poe-Llamanzares v. COMELEC, G.R. No.
221697, March 8, 2016)
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The Constitution provides for only two types of
citizens: (1) natural-born, and (2) naturalized.
Petitioner never had to go through the
naturalization processes and has been treated as
a Filipino citizen upon birth. A natural-born citizen
can be identified under two approaches: (1) as a
matter of constitutional interpretation that all
foundlings found in the Philippines, being
presumptively born to either a Filipino biological
father or a Filipina biological mother, are naturalborn, unless there is substantial proof to the
contrary, and (2) is the definition under Art. 6, § 1(2)
of the 1987 Constitution which requires that the
father or the mother is a Filipino citizen.
Furthermore, the Philippines has obligated itself to
defend the People against statelessness and
protect and ensure the status and nationality of
children immediately upon birth. Therefore, any
interpretation that excludes foundlings from
natural-born citizens is inconsistent with Philippine
laws and treaty obligations.
However, the circumstances of and during her birth
lead to her paren / Filipino citizenship as the most
probable inference. Aside from her being left in
front of a Catholic church in a place which was
populated mainly of Filipinos, Pe i ioner physical
features are consistent with the physical features
of many Filipinos and that the latest statistic show
that in the year she was born, Petitioner had a
99.8% chance of being born a Filipino.
The conclusion that Petitioner is a natural-born
Filipina is based on fair and reasonable reading of
constitutional
provisions,
statutes,
and
international norms having the effect of law, and on
the evidence presented before the COMELEC.
(Poe-Llamanzares v. COMELEC, G.R. No.
221697, 221698-70, March 6, 2018; Leonen, J.,
Concurring Opinion)
Treaties & Status of Foundlings
Congress has enacted statutes founded on the
premise that foundlings are Filipino citizens at birth.
It has adopted mechanisms to effect the
constitutional mandate to protect children.
Likewise, the Senate has ratified treaties that put
this mandate into effect.
POLITICAL LAW
Section 4 (b) of the Republic Act No. 9344 defines
the "best interest of the child" as the "totality of the
circumstances and conditions which are most
congenial to the survival, protection and feelings of
security of the child and most encouraging to the
child's physical, psychological and emotional
development."
Consistent with this statute is our ratification of the
United Nations Convention on the Rights of the
Child. This specifically requires the states-parties'
protection of: first, children's rights to immediate
registration and nationality after birth; second,
against statelessness; and third, against
discrimination on account of their birth status. The
Philippines likewise ratified the 1966 International
Covenant on Civil and Political Rights. As with the
Convention on the Rights of the Child, this treaty
requires that children be allowed immediate
registration after birth and to acquire a nationality.
(David v. SET, G.R. No. 221538, Sept. 20, 2016)
Presumption that Foundlings Are Natural Born
The presumption that all foundlings found in the
Philippines are born to at least either a Filipino
father or a Filipino mother (and are thus naturalborn, unless there is substantial proof otherwise)
arises when one reads the Constitution as a whole,
so as to "effectuate its whole purpose. Article II,
Section 13 and Article XV, Section 3 of the 1987
Constitution require the state to enhance children's
well-being and to protect them from conditions
prejudicial to or that may undermine their
development.
The assumption should be that foundlings are
natural-born unless there is substantial evidence to
the contrary. This is necessarily engendered by a
complete consideration of the whole Constitution,
not just its provisions on citizenship. (David v. SET,
G.R. No. 221538, Sept. 20, 2016)
Foundlings v. Natural Born Citizens
Concluding that foundlings are not natural-born
Filipino citizens is tantamount to permanently
discriminating against our foundling citizens. Art II,
Sec. 26 and Art III Sec. 1 guarantees equal
protection of the laws and equal access to
opportunities for public service, respectively. Other
than the anonymity of their biological parents, no
substantial distinction differentiates foundlings
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from children with known Filipino parents. They are
both entitled to the full extent of the state's
protection from the moment of their birth. (David v.
SET, G.R. No. 221538, Sept. 20, 2016)
B. WHO ARE CITIZENS
The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the
time of the adoption of the 1987 Constitution.
2. Those whose fathers or mothers are citizens of
the Philippines.
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority.
4. Those who are naturalized in accordance with
law. (PHIL CONST., art. IV, § 1)
Illegitimate Child of a Foreign Mother
If the father is unknown, follow the mother's
citizenship.
If the father is known and is Filipino, the
illegitimate child is considered Filipino after
proving the paternity. (Tecson v. COMELEC,
G.R. No. 161434, March 3, 2004)
Election of Philippine Citizenship
1. Prior to the 1973 Constitution - If a Filipina
married an alien, she loses her Filipino
citizenship. Hence, her child would have to elect
Filipino citizenship upon reaching the age of
majority.
2. Under the 1973 Constitution - Children born of
Filipino mothers were already considered
Filipinos.
3. Therefore, the provision on election of
citizenship under the 1987 Constitution only
applies to those persons who were born under
the 1935 Constitution.
4. In order for the children to elect Filipino
citizenship, the mother must have been
Filipinos at the time of their marriage (Cu v.
Republic, G.R. No. L-3018, July 18, 1951;
Villahermosa v. Commissioner of Immigration,
G.R. No. L-1663, Mar. 31, 1948)
5. The election must be made within a reasonable
period after reaching the age of majority. The
phrase "reasonable time" has been interpreted
to mean that the elections should be made
within three (3) years from reaching the age of
majority. (Cuenco v. Sec. of Justice, G.R. No. L-
18069, May 26, 1962; Cabiling v. Commissioner
Fernandez Jr., G.R. No. 183133, July 26, 2010,
Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
C. WHO CAN BE CITIZENS
&
D. MODES OF ACQUIRING CITIZENSHIP
1. Jus sanguinis acquisition of citizenship on
the basis of blood relationship
2. Jus soli acquisition of citizenship on the basis
of place of birth
3. Naturalization the legal act of adopting an
alien and clothing him with the privilege of a
native-born citizen
(Tecson v. COMELEC, G.R. No. 161434,
March 3, 2004; Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer,
2011)
The Philippines follows jus sanguinis and
naturalization. Naturalization is a mode for both
acquisition (governed by CA 473) and reacquisition
(governed by CA 63) of Philippine citizenship.
Principle of Jus Sanguinis in the 1987
Constitution
If a child is born under the 1973 or 1987
Constitution and either his father or mother is a
Filipino citizen at the time the child is born, the child
is a Filipino citizen no matter where he may be
born.
NATURALIZATION
What is naturalization
Naturalization signifies the act of formally adopting
a foreigner into the political body of a nation by
clothing him or her with the privileges of a citizen.
(So v. Republic, G.R. No. 170603, Jan. 29, 2007)
Three Modes of Naturalization
1. Administrative Naturalization (R.A. No. 9139)
2. Judicial Naturalization (C.A. No. 473)
3. Legislative Naturalization in the form of a law
enacted by Congress granting Philippine
citizenship to an alien
C.A. No. 473 v. R.A. No. 9139
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C.A. No. 473 and R.A. No. 9139 are separate and
distinct laws the former covers all aliens
regardless of class while the latter covers nativeborn aliens who lived here in the Philippines all
their lives, who never saw any other country and all
along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines
and affinity to the customs and traditions. (So v.
Republic, G.R. No. 170603, Jan. 29, 2007)
a. C.A. No. 473
Qualifications
1. Not less than twenty-one years of age on the
day of the hearing of the petition;
2. Resided in the Philippines for a continuous
period of 10 years or more;
3. Of good moral character; believes in the
principles
underlying
the
Philippine
Constitution; conducted himself in a proper and
irreproachable manner during the entire period
of his residence towards the government and
community
4. Must own real estate in the Philippines worth
P5,000 or more OR must have lucrative trade,
profession, or lawful occupation;
5. Able to speak or write English or Spanish or
anyone of the principal languages; and
6. Enrolled his minor children of school age in any
of the recognized schools where Philippine
history, government and civics are taught or
prescribed as part of the school curriculum,
during the entire period of the residence in the
Philippines required of him. (C.A. 473, § 2)
Special Qualifications
(ANY will result to reduction of the 10-year period
of continuous residency requirement to 5 years
under no. 2 above)
1. Having honorably held office under the
Government of the Philippines or under that of
any of the provinces, cities, municipalities, or
political subdivisions thereof;
2. Established a new industry or introduced a
useful invention in the Philippines;
3. Married to a Filipino woman;
4. Engaged as a teacher in the Philippines in a
public or recognized private school not
established for the exclusive instruction of
children of persons of a particular nationality or
POLITICAL LAW
race, in any of the branches of education or
industry for a period of 2 years or more; or
5. Born in the Philippines (C.A. 473, § 3)
Denaturalization: Cancellation of Certificate of
Naturalization
1. If it is shown that said naturalization certificate
was obtained fraudulently or illegally.
2. If the person naturalized shall, within the five
years next following the issuance of said
naturalization certificate, return to his native
country or to some foreign country and establish
his permanent residence there: Provided, That
the fact of the person naturalized remaining for
more than one year in his native country or the
country of his former nationality, or two years in
any other foreign country, shall be considered
as prima facie evidence of his intention of taking
up his permanent residence in the same.
3. If the petition was made on an invalid
declaration of intention.
4. If it is shown that the minor children of the
person naturalized failed to graduate from a
public or private high schools recognized by the
Office of Private Education of the Philippines,
where Philippine history, government and civics
are taught as part of the school curriculum,
through the fault of their parents either by
neglecting to support them or by transferring
them to another school or schools. A certified
copy of the decree cancelling the naturalization
certificate shall be forwarded by the clerk of the
Court to the Department of the Interior and the
Bureau of Justice.
5. If it is shown that the naturalized citizen has
allowed himself to be used as a dummy
requiring Philippine citizenship as a requisite for
the exercise, use or enjoyment of a right,
franchise or privilege (C.A. No. 473, § 18)
b. R.A. No. 9139
Qualifications
1. The applicant must be born in the Philippines
and residing therein since birth;
2. The applicant must not be less than eighteen
(18) years of age, at the time of filing of his/her
petition;
3. The applicant must be of good moral character
and believes in the underlying principles of the
Constitution, and must have conducted
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4.
5.
6.
7.
himself/herself in a proper and irreproachable
manner during his/her entire period of residence
in the Philippines in his relation with the duly
constituted government as well as with the
community in which he/she is living;
The applicant must have received his/her
primary and secondary education in any public
school or private educational institution dully
recognized by the Department of Education,
Culture and Sports, where Philippine history,
government and civics are taught and
prescribed as part of the school curriculum and
where enrollment is not limited to any race or
nationality: Provided, That should he/she have
minor children of school age, he/she must have
enrolled them in similar schools;
The applicant must have a known trade,
business, profession or lawful occupation, from
which he/she derives income sufficient for
his/her support and if he/she is married and/or
has dependents, also that of his/her
family: Provided, however, That this shall not
apply to applicants who are college degree
holders but are unable to practice their
profession because they are disqualified to do
so by reason of their citizenship;
The applicant must be able to read, write and
speak Filipino or any of the dialects of the
Philippines; and
The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn
and embrace the customs, traditions and ideals
of the Filipino people (R.A No. 9139, § 3)
Disqualifications
1. Those opposed to organized government or
affiliated with any association of group of
persons who uphold and teach doctrines
opposing all organized governments;
2. Those defending or teaching the necessity of or
propriety of violence, personal assault or
assassination for the success or predominance
of their ideas;
3. Polygamists or believers in the practice of
polygamy;
4. Those convicted of crimes involving moral
turpitude;
5. Those suffering from mental alienation or
incurable contagious diseases;
6. Those who, during the period of their residence
in the Philippines, have not mingled socially
POLITICAL LAW
with Filipinos, or who have not evinced a
sincere desire to learn and embrace the
customs, traditions and ideals of the Filipinos;
7. Citizens or subjects with whom the Philippines
is at war, during the period of such war; and
8. Citizens or subjects of a foreign country whose
laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof. (R.A.
No. 9139, § 4)
c. Effects of Judicial Naturalization
Effects
1. The legitimate minor children of the naturalized
father become Filipinos as well.
2. The wife also becomes a Filipino citizen,
provided that she does not have any
disqualification which would bar her from being
naturalized. (C.A. No. 473, § 15, Tuang v.
Galang, G.R. No. L-18775, Nov. 30, 1963)
Naturalization & Res Judicata
A naturalization proceeding not being a judicial
adversary proceeding, the decision rendered
therein is not res judicata as to any of the reasons
or matters which would support a judgment
cancelling the certificate of naturalization for illegal
or fraudulent procurement (Republic v. Go Bon
Lee, G.R. No. L-11499, Apr. 29, 1966)
Pursuant to P.D. No. 836 and 923, naturalization
extends to the alien wife and minor children of the
person naturalized upon the wife's showing that
she does not suffer from any of the disqualifications
under Letter of Instructions No. 270, and that she
and her minor children reside permanently in the
Philippines at the time of her husband's
naturalization. In other words, the only persons to
undergo the proceeding before the Special
Committee on Naturalization will only be the person
naturalized and his wife. The minor children, in the
words of Letter of Presidential Decree No. 836,
follow the acquired Filipino citizenship of their
mother. (Republic v. Lao, G.R. Nos. 205218 &
207075, Feb. 10, 2020)
When Res Judicata Applies
Res judicata may only be applied in cases of
citizenship when the following concur:
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1. A person's citizenship must be raised as a
material issue in a controversy where said
person is a party;
2. The Solicitor General or his authorized
representative took active part in the resolution
thereof;
3. The finding on citizenship is affirmed by the
Supreme Court. (Go v. Bureau of Immigration
and Deportation, G.R. No. 191810, June 22,
2015)
Direct Naturalization v. Derivative
Naturalization
Derivative
Direct Naturalization
Naturalization
Citizenship is acquired by Citizenship
an alien through:
conferred on:
1. Judicial naturalization
under CA 473
2. Administrative
naturalization
under
RA 9139
3. Legislative
naturalization in the
form of a law enacted
by
Congress,
bestowing Philippine
citizenship to an alien
1. Wife
of
naturalized
husband
2. Minor children
of naturalized
person
3. Alien
woman
upon marriage
to a national
E. MODES OF LOSING & REACQUIRING
CITIZENSHIP
Philippine citizenship may be lost or reacquired in
the manner provided by law (PHIL CONST., art. IV, §
3)
Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or
omission they are deemed, under the law, to have
renounced it. (PHIL CONST., art. IV, § 4)
1. LOSING CITIZENSHIP
1. Naturalization in a foreign country (C.A. 63, §
1(1))
2. Express renunciation or expatriation (CA 63,
§1(2))
3. Taking an oath of allegiance to another country
upon reaching the age of majority;
4. Marriage by a Filipino woman to an alien, if by
the laws of her h band
country, she
becomes a citizen thereof.
5. Accepting a commission and serving in the
armed forces of another country, unless there
is an offensive/defensive pact with the country,
or it maintains armed forces in RP with RP
consent;
6. Denaturalization;
7. Being found by final judgment to be a deserter
of the AFP
2. REACQUIRING CITIZENSHIP
Citizenship may be Reacquired by:
1. Repatriation
2. Naturalization
3. Legislative Act
Repatriation
Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino
who lost his citizenship will be restored to his prior
status as a naturalized Filipino citizen. On the other
hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born
Filipino. (Bengzon v. HRET, G.R. No. 142840, May
7, 2001)
Natural-born Filipinos who are deemed to have lost
their citizenship may re-acquire the same via
repatriation proceedings. This involves taking an
oath of allegiance and filing the same with the civil
registry. (C.A. No. 63, sec. 4)
Repatriation Not a Matter of Right
Repatriation is not a matter of right, but it is a
privilege granted by the State. The State has the
power to prescribe by law the qualifications,
procedure, and requirements for repatriation. It has
the power to determine if an applicant for
repatriation meets the requirements of the law for it
is an inherent power of the State to choose who will
be its citizens, and who can reacquire citizenship
once it is lost. (Tabasa v. CA, G.R. No. 125793,
Aug. 29, 2006)
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of
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the Philippines and registering said oath in the
Local Civil Registry of the place where the person
concerned resides or last resided. He would not
even need to file a petition in court. (Bengson III v.
HRET, G.R. No.142840, May 7, 2001)
Who May be Repatriated:
1. Filipino women who have lost their Philippine
citizenship by marriage to aliens
2. Natural-born Filipinos who have lost their
Philippine citizenship, including their minor
children, on account of political or economic
necessity (R.A. No. 8171, § 1)
How is Repatriation Effected
1. By taking the necessary oath of allegiance to
the Republic of the Philippines.
2. Registration in the proper civil registry and in the
Bureau of Immigration.
3. The Bureau of Immigration shall thereupon
cancel the pertinent alien certificate of
registration and issue the certificate of
identification as Filipino citizen to the repatriated
citizen (R.A. No. 8171, § 2)
Who Cannot be Repatriated (OVM2)
1. Person Opposed to organized government or
affiliated with any association or group of
persons who uphold and teach doctrines
opposing organized government;
2. Person defending or teaching the necessity or
propriety of Violence, personal assault, or
association for the predominance of their ideas;
3. Person convicted of crimes involving Moral
turpitude; or
4. Person suffering from Mental alienation or
incurable contagious diseases. (R.A. No. 8171,
§ 1)
Effective Date of Repatriation
The effective date is the date of application for
repatriation not the date when repatriation was
approved (Lee v. Commission on Elections &
Frivaldo, G.R. No. 120295, June 28, 1996)
Repatriation under R.A. No. 9225
Citizens who lost their citizenship by reason of
their naturalization as citizens of a foreign country
are deemed to have reacquired their Philippine
citizenship upon taking the oath of allegiance.
This reacquisition works to restore natural-born
status as though it was never lost at all.
Reacquisition v. Retention
Natural-born Filipinos who have lost their
citizenship by naturalization in a foreign country
shall re-acquire their Philippine citizenship upon
taking the oath of allegiance to the Republic of the
Philippines.
Natural-born Filipinos who became foreign citizens
after R.A. 9225 took effect, shall retain their
Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both
categories of natural-born Filipino citizens who
became citizens of a foreign country. (David v.
Agbay, G.R. No, 199113, March 18, 2015)
Repatriation and Domicile
To reacquire domicile he must provide proof of
intent to stay in the Philippines. After he does that,
his occasional absence from the recovered
domicile does not have the effect of removing him
from the domicile for as long as he manifests
animus manendi et revertendi.
The domicile is not established strictly from the
time that a person was repatriated under R.A. No.
9225. The Court said that other evidence may be
admitted to determine the time that domicile is
established. Also, issue of residence could be
decided particularly on the facts-of-the-case basis,
as what would a series of jurisprudence would also
dictate. Hence, domicile cannot strictly be
established only from a per on repatriation. (PoeLlamanzares v. Comelec et al., G.R. Nos. 221697
& 221698-700, March 8, 2016)
F. DUAL CITIZENSHIP AND DUAL
ALLEGIANCE
Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law. (PHIL
CONST., art. 4, § 5)
Dual Citizenship v. Dual Allegiance
DUAL CITIZENSHIP
DUAL ALLEGIANCE
Involuntary and legal
Voluntary and illegal
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As a result of the
concurrent application
of the different laws of
two or more states, a
person is
simultaneously
considered a national
by the said states. For
instance, such a
situation may arise
when a person whose
parents are citizens of
a state which adheres
to the principle of jus
sanguinis is born in a
state which follows the
doctrine of jus
soli. Such a
person, ipso facto and
without any voluntary
act on his part, is
concurrently
considered a citizen of
both states. (Mercado
v. Manzano, G.R. No.
135083, May 26,
1999)
Refers to the situation
in which a person
simultaneously owes,
by some positive act,
loyalty to two or more
states. While dual
citizenship is
involuntary, dual
allegiance is the result
of an indi id al
volition. (Mercado v.
Manzano, G.R. No.
135083, May 26,
1999)
Dual Allegiance and the Constitution
The specific target of this new provision is not dual
citizenship but dual allegiance arising from e.g.,
mixed marriages or birth in foreign soil. This was
seen as more insidious than dual citizenship
To the extent, however, that dual citizenship also
imports dual allegiance, then it must also be "dealt
with by law." In other words, the Constitution leaves
the disposition of the problem of dual citizenship
and dual allegiance to ordinary legislation.
POLITICAL LAW
R.A. 9225
R.A. 9225 provides that a Filipino who has
previously renounced his Filipino citizenship can
reacquire it without renouncing his foreign
citizenship. Likewise, a Filipino who acquires
foreign citizenship after the effectivity of R.A. 9225
retains his Filipino citizenship. R.A. 9225 is a law
about dual citizenship not dual allegiance. (AASJS
v. Datumanong, G.R. No. 160869, May 11, 2007)
R.A. 9225, however, requires that those who
acquired dual citizenship must specifically
renounce foreign citizenship upon filing of
candidacy. (R.A. 9225 § 5[2])
The continued use of foreign passport render the
renunciation of foreign citizenship nugatory. The
renunciation of foreign citizenship must be
complete and unequivocal. The requirement that
the renunciation must be made through an oath
emphasizes the solemn duty of the one making the
oath of renunciation to remain true to what he has
sworn to. Allowing the subsequent use of a foreign
passport because it is convenient for the person to
do so is rendering the oath a hollow act. It devalues
the act of taking of an oath, reducing it to a mere
ceremonial formality. (Maquiling v. COMELEC,
G.R. No. 195649, April 16, 2013)
Derivative Citizenship
The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years
of age, of those who re-acquire Philippine
citizenship upon effectivity of this Act shall be
deemed citizenship of the Philippines. (R.A. 9225
§ 4)
- end of topic
-
Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect
to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the
filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as
persons with dual citizenship considering that their
condition is the unavoidable consequence of
conflicting laws of different states. (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999)
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LEGISLATIVE
DEPARTMENT
Political Law
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POLITICAL LAW
V. LEGISLATIVE DEPARTMENT
A. LEGISLATIVE POWER
TOPIC OUTLINE UNDER THE SYLLABUS:
1. SCOPE AND LIMITATIONS
V. LEGISLATIVE DEPARTMENT
A. LEGISLATIVE POWER
1. Scope and limitations
2. Principle of non-delegability; exceptions
Nature of Legislative Power
Legislative power is the authority to make, alter and
repeal laws. (PHIL. CONST., art. VI, § 1.)
C. LEGISLATIVE PRIVILEGES;
INHIBITIONS; DISQUALIFICATIONS
Classification of Legislative Power (COrODe):
1. Constituent - the power to propose
amendments to the Constitution
2. Ordinary - the power to pass ordinary laws
3. Original - possessed by the people in their
sovereign capacity, exercised via initiative
and referendum.
4. Delegated - possessed by Congress and
other legislative bodies by virtue of the
Constitution; subordinate to the original
power of the people who delegated the
same
D. QUORUM AND VOTING MAJORITIES
Who Exercises Legislative Power (CoLoPeP)
E. DISCIPLINE OF MEMBERS
1. Congress
Legislative power is vested in Congress, which
consists of the Senate and the House of
Representatives.
B. CHAMBERS OF CONGRESS;
COMPOSITION; QUALIFICATIONS
1. Senate
2. House of Representatives
a. District representatives and
questions of apportionment
b. Party-list system
F.
PROCESS OF LAW-MAKING
G. ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
a. Nature
b. Powers
H. POWERS OF CONGRESS
1. Legislative inquiries and oversight
functions
2. Non-legislative
a. Informing function
b. Power of impeachment
I.
INITIATIVE AND REFERENDUM
General Plenary Power
The grant of legislative power to Congress is broad,
general and comprehensive. The legislative body
possesses plenary power for all purposes of civil
government. Any power, deemed to be legislative
by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it
elsewhere. Except as limited by the Constitution,
either expressly or impliedly, legislative power
embraces all subjects and extends to matters of
general concern or common interest. (Ople v.
Torres, G.R. No. 127685, July 23, 1998)
2. Local Legislative Body
Local legislative bodies are allowed by the
Constitution to legislate on purely public matters.
Since what was given to local legislative bodies is
not power to make rules and regulations but
legislative power, the rules on valid delegation do
not apply. However, when what is given to a local
legislative body is executive power, the rules
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applicable to the empowerment of administrative
agencies also becomes applicable (Rubi v.
Provincial Board, G.R. No. L-14078. March 8,
1919).
Requisites of A Valid Ordinance: (Must NOT
CUPPU, Must be GC)
1. Must not Contravene the Constitution or
any statute
2. Must not be Unfair or oppressive
3. Must not be Partial or discriminatory
4. Must not Prohibit, but may regulate trade
5. Must not be Unreasonable
6. Must be General and Consistent with
public policy (Magtajas v. Pryce
Properties, G.R. No. 111097, July 20,
1994).
3. Pe
I
a
Sa
Initiative
The power of the people to propose amendments
to the Constitution or to propose and enact
legislation called for the purpose (R.A. No. 6735, §
3(a))
Three Types of Initiative (CSL)
1. Initiative on the Constitution - A petition
proposing
amendments
to
the
Constitution.
2. Initiative on Statutes - A petition proposing
to enact a national legislation.
3. Initiative on Local Legislation - A petition
proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution
or ordinance (R.A. No. 6735, § 3(a))
Local Initiative
Registered voters within a local government unit
may file a petition with the Regional Assembly or
local legislative body, respectively, proposing the
adoption, enactment, repeal or amendment of any
law, ordinance or resolution. (R.A. No. 6735, §
13(a))
MINIMUM NUMBER OF REGISTERED
VOTERS REQUIRED PER LGU
LGU
NOT LESS THAN:
Autonomous region
2000
Province or city
1000
Municipality
100
Barangay
50
Limitations on the Power of Local Initiative
1. Should not be exercised more than once a
year;
2. Extended only to subjects or matters which
are within the legal powers of local
legislative bodies to enact;
3. If the local legislative body adopts the
proposition in toto before the initiative is
held, the initiative shall be cancelled.
Those against such action may apply for
initiative. (R.A. No. 6735, § 15)
Limitation on Local Legislative Body vis-a-vis
Local Initiative
Any proposition, ordinance, or resolution approved
through an initiative and referendum
Shall not be repealed, modified or
amended by the local legislative body
concerned within 6 months from its date of
approval
May be amended, modified, repealed
within 3 years thereafter by a vote of 3/4 of
all its members.
In case of barangays, the period
shall be 18 months after approval.
(R.A. No. 6735, § 16; Local
Government Code, § 125.)
Indirect Initiative
Exercise of initiative by the people through a
proposition sent to the Congress or the local
legislative body for action (R.A. No. 6735, § 3(b))
Referendum
The power of the electorate to approve or reject
legislation through an election called for the
purpose (R.A. No. 6735, § 3(c))
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Two Classes of Referendum (R.A. No. 6735, §
3(c); Local Government Code, § 126.)
1. Referendum on statutes - petition to
approve or reject an act or law, or part
thereof, passed by Congress
2. Referendum on local laws - legal
processes whereby the registered voters of
the local government units may approve,
amend or reject any ordinance enacted by
the Sanggunian
Required Petition
1. Petition should be registered with the
Commission on Elections
2. Should be signed by at least 10% of the
total number of registered voters
3. Every
legislative
district
must
be
represented by at least 3% of the registered
voters thereof
The petition to be signed by the people should
contain a definite proposal of the amendment of the
Constitution; not merely a general question
whether they approve of the amendment or not
(Lambino v. COMELEC, G.R. No. 174153, October
25, 2006).
Matters Which May Not Be the Subject of
Initiative or Referendum (R.A. No. 6735, § 10.)
1. A petition embracing more than one
subject.
2. Statutes involving emergency measures
Initiative v. Referendum (SBMA v. COMELEC,
G.R. No. 125416, Sept. 26, 1996)
INITIATIVE
REFERENDUM
Power of the people to
propose bills and
laws, and to enact or
reject them at the polls
independent of the
legislative assembly
Right reserved to the
people to adopt or
reject any act or
measure which has
been passed by a
legislative body and
which in most cases
would without action
on the part of electors
become a law
Entirely the work of
the electorate
Begun and consented
to by the law-making
body
A process of lawmaking by the people
themselves
without
the participation and
against the wishes of
their
elected
representatives
Consists merely of the
electorate approving
or rejecting what has
been drawn up or
enacted
by
a
legislative body
4. The President under a Martial Law Rule or in
a Revolutionary Government
Martial Law
During the period from 1972 to 1987, the laws of
the Philippines did recognize the legislative power
lodged in the presidency. Today, the 1987
Constitution has not disturbed this fact and still
recognizes the legitimate exercise of legislative
power by then President Ferdinand Marcos
(Bernas, 1987 Philippine Constitution: A
Commentary, 681, 2009).
a. Martial Law Powers and Article XVII of the
1973 Constitution
Shortly after martial law and the birth of the 1973
Constitution the legislative power in the President,
as flowing from his martial law powers and Article
XVII, Section 3(2) of the 1973 Constitution, was
recognized as extraordinary legislative power
given to the President to enable him to cope with
an extraordinary situation especially at a time when
there was no operating legislative body (Aquino, Jr.
v. COMELEC, G.R. No. L-40004, January 31,
1975).
b. Amendment No. 6
In 1976, Amendment No. 6 clarified the legislative
po er of he Pre iden : Whene er in he j dgmen
of the President (Prime Minister), there exists a
grave emergency or threat or imminence thereof,
or whenever the interim Batasang Pambansa or
the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in
his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary
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POLITICAL LAW
decrees, orders or letters of instruction, which shall
form part of he la of he land.
Limitations on Legislative Power
(A) Substantive - limitations on the content of laws
The legislative power given in Amendment no. 6 is
also concurrent with that of the regular Batasang
Pambansa (Legaspi v. Minister of Finance, G.R.
No. L-58289, July 24, 1982).
Express limitations
1. Bill of Rights
a. No law shall be passed abridging
freedom of speech, of expression,
etc.
b. No law shall be made respecting
an establishment of religion or
prohibiting the free exercise
thereof
c. No law impairing the obligation of
contracts shall be passed
d. No ex post facto law or bill of
attainder shall be enacted
2. On appropriation
a. The procedure in approving
appropriations for Congress shall
strictly follow the procedure for
approving appropriations for other
departments or agencies
b. Prohibition against use of public
money or property for a religious
purpose
c. No specific funds shall be
appropriated or paid for use or
benefit of any religion, sect, etc.,
except for priests, etc. assigned to
AFP, penal institutions, etc.
3. On taxation
a. No law granting any tax exemption
shall be passed without the
concurrence of a majority of all
Members of Congress
b. All money collected on any tax
levied for a special purpose shall
be treated as a special fund and
paid out for such purpose only
c. All revenues and assets of nonstock,
non-profit
educational
institutions
4. On he S preme Co r j ri dic ion. No
law shall be passed increasing the
appellate jurisdiction of the Supreme Court
as provided in the Constitution without its
advice and concurrence
5. On nobility. No law granting title of royalty
or nobility shall be passed
Notes:
1. The 1973 Constitution provided for two
concurrent legislative agencies:
a. Batasang Pambansa
b. President
2. The legislative power of Batasan was
ordinary, while the legislative power of the
President was extraordinary. Hence, the
President in his judgment may undo what
the legislature might have done not to his
satisfaction (Bernas, 1987 Philippine
Constitution: A Commentary, 684, 2009).
Revolutionary Government
a. Proclamation No. 3
After the 1986 revolution, President Corazon
Aquino assumed revolutionary legislative power
and, on March 25, 1986 issued Proclamation No.
3, the Provisional Freedom Constitution. Article II,
Section 1 vested legislative power in the President
until a legislature is elected and convened under a
new Constitution.
b. 1987 Constitution
Section 6 of the Transitory Provisions of the 1987
Con i ion pro ide
ha
The inc mben
President shall continue to exercise legislative
po er n il he fir Congre i con ened.
President Corazon Aquino exercised legislative
power alone while President Ferdinand Marcos
exercised legislative power concurrently first with
the interim Batasang Pamabansa and then with the
regular Batasang Pambansa (Bernas, 1987
Philippine Constitution: A Commentary, 685,
2009).
President Corazon Aquino lost her legislative
power on July 26, 1987 when Congress was
convened.
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Implied limitations
1. Prohibition against irrepealable laws
2. Non-delegation of powers
Jurisprudence
1. Power to provide holdover: Congress
cannot provide for the holdover of elective
officers if the same would go beyond their
terms fixed by the Constitution (Abas Kida
v. Senate, G.R. No. 196271, 2011)
2. Power to create new term and appoint the
occupant of the position: Congress cannot
create a new term and effectively appoint
the occupant of the position for the new
term. (Id.)
3. Power to grant franchise for public utilities:
Congress
cannot
grant
legislative
franchises for the operation of public
utilities which shall be exclusive in
character and which shall not be subject to
amendment, alteration or repeal when
common
good
requires.
(Tawang
Multipurpose v. La Trinidad Water District,
G.R. No. 166471, 2011)
(B) Procedural - limitations on the manner of
passing laws
1. There must only be one subject to be
stated in the title of the bill to prevent
hodgepodge or log-rolling legislation.
2. Three readings on separate days, printed
copies of the final bill in its final form to be
distributed to members three days before
its passage, except if the President
certifies to its immediate enactment to
meet a public calamity or emergency; upon
its last reading, no amendment is allowed
and the vote thereon taken immediately
and the yeas and nays entered into the
Journal.
3. Appropriation,
revenue,
tariff,
bills
authorizing the increase of public debts,
bills of local application, and private bills
shall originate exclusively in the House of
Representatives.
2. PRINCIPLE OF NON-DELEGABILITY;
EXCEPTIONS
POLITICAL LAW
Principle of Non-Delegability
General Rule: Congress cannot delegate its
legislative power under the principle of nondelegation (delegata potestas non potest delegari
or delegated power may not be delegated).
Exceptions: (PLATE)
1. To the extent reserved to the People by the
provision on initiative and referendum.
2. Delegation to Local government
3. Delegation of rule-making power to
Administrative bodies
4. Congress may delegate Tariff powers to
the President
5. Emergency
powers
delegated
by
Congress to the President
For an exhaustive discussion of this topic, see
page 20, II (F) [Delegation of Powers] of this
Reviewer.
B. CHAMBERS OF CONGRESS;
COMPOSITION; QUALIFICATIONS
1. SENATE
Composition
24 who are elected at large by the qualified voters
of the Philippines. (PHIL. CONST., art. VI, § 2.)
Term of Office
6 years commencing at noon on the 30th day of
June following their election (PHIL. CONST., art. VI,
§ 4.)
Term Limit
No Senator shall serve for more than 2 consecutive
terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
interruption in the continuity of his service for the
full term for which he was elected (PHIL. CONST.,
art. VI, § 4.)
2. HOUSE OF REPRESENTATIVES
Composition
Not more than 250 members, unless otherwise
fixed by law, consisting of:
1. District Representatives: elected from
legislative districts apportioned among the
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provinces, cities and the Metropolitan
Manila area
2. Party-list
Representatives:
shall
constitute 20% of the total number of the
members of the House of Representatives
including those under the party-list.
Term of Office
3 years, commencing at noon on the 30th day of
June next following their election
Term Limit
No member of the HOR shall serve for more than
3 consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in the continuity of his service for
the full term for which he was elected.
List of Qualifications for both Senators and
Members of the House
Resident
of
the
Philippines for at
least
2
years
immediately
preceding
the
election
Resident of the said
district for at least 1
year
immediately
preceding
election
(except
party-list
representative)
Term of 6 years
commencing at noon
on June 30,
next following their
election
Term of 3 years
commencing at noon
on June 30, next
following their election
Term limit: no more
than 2 consecutive
terms
Term limit: no more
than 3 consecutive
terms
a. District representatives and questions of
apportionment
The qualifications of both Senators and Members
of the House are LIMITED to those provided by the
Constitution. Congress cannot, by law, add or
subtract from these qualifications (PHIL. CONST.,
art. VI, § 3 & 6; Pimentel v. COMELEC, G.R. No.
161658, Nov. 3, 2008).
District Representative (PHIL. CONST., art. VI, §
5.)
Elected from legislative districts that are
apportioned in accordance with the number of
inhabitants in each area and on the basis of a
uniform and progressive ratio.
Qualifications for
Representatives:
Qualifications
1. Natural born citizen
2. At least 25 years of age on the day of the
election
3. Able to read and write
4. Registered voter in the district in which he
shall be elected
5. A resident of the Philippines for a period of
not less than 1 year immediately preceding
the day of the election
Senate
SENATOR
and
House
REPRESENTATIVE
Natural-born citizen of the Philippines
Able to read and write
At least 35 years old
on the DAY OF THE
ELECTION
At least 25 years old on
the DAY OF THE
ELECTION
Registered voter
Registered voter in the
district in which he shall
be elected (except
party-list
representatives)
of
Residence Requirement
The term "residence" has been understood
as synonymous with domicile not only
under the previous Constitutions but also
under the 1987 Constitution. (Co v. HRET,
G.R. Nos. 92191-92, July 30, 1991)
Domicile denotes a fixed permanent
residence to which when absent for
business or pleasure, one intends to
return.
The absence of a person from said
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permanent residence, no matter
how long, notwithstanding, it
continues to be the domicile of that
person.
In other words, domicile is
characterized
by
animus
revertendi. (Id.)
The manifest intent of the law in fixing a
residence qualification is to exclude a
stranger or newcomer, unacquainted with
the conditions and needs of a community
and not identified with the latter, from an
elective office to serve that community.
(Gallego v. Verra, G.R. No. L-48641, Nov.
24, 1941)
Domicile of origin is not easily lost. To
successfully effect a change of domicile,
the following must be proven: (AID)
an Actual removal or an actual
change of domicile
a
bona
fide
Intention
of
abandoning the former place of
residence and establishing a new
one
Definite acts which correspond
with the purpose (Aquino v.
COMELEC, G.R. No. 120265,
Sept. 18, 1995)
Therefore, in order to acquire a domicile by
choice, there must be an animus non
revertendi and an animus manendi.
(Gallego v. Verra, G.R. No. L-48641, Nov.
24, 1941)
While voting is not conclusive of residence,
it does give rise to a strong presumption of
residence. The fact that one has
continuously voted in a particular locality is
a strong factor in assisting to determine the
status of his domicile. (Domino v.
COMELEC, G.R. No. 134015, July 29,
1999)
It is the fact of residence, not a statement
in a certificate of candidacy which ought to
be decisive in determining whether or not
an
individual
has
satisfied
the
constitution's
residency
qualification
requirement. The said statement becomes
material only when there is or appears to
be a deliberate attempt to mislead,
misinform, or hide a fact which would
otherwise render a candidate ineligible.
(Romualdez-Marcos, G.R. No. 119976,
Sept. 18, 1995)
Creation of Legislative Districts
The rules on legislative apportionment or creation
of legislative districts are found in Art. VI, Section 5
(1), (3) and (4). (Bagabuyo v. COMELEC, G.R. No.
176970, Dec. 8, 2008)
LEGISLATIVE
APPORTIONMENT
REAPPORTIONMENT
The determination of
the
number
of
representatives
which a State, county
or other subdivision
may send to a
legislative body
The realignment or
change in legislative
districts brought about
by
changes
in
population
and
mandated
by
the
constitutional
requirement of equality
of representation
It is the allocation of
seats in a legislative
body in proportion to
the population; the
drawing of voting
district lines so as to
equalize population
and voting power
among the districts
Only Congress can create provinces and cities
because the creation of provinces and cities
necessarily includes the creation of legislative
districts, a power only Congress can exercise
under Section 5, Article VI of the Constitution and
Section 3 of the Ordinance appended to the
Constitution. The ARMM Regional Assembly
cannot create a province without a legislative
district because the Constitution mandates that
every province shall have a legislative district
(Sema v. COMELEC, G.R. No. 177597, July 16,
2008).
The COMELEC cannot correct the imbalance
resulting from the increase of districts by
transferring districts. The COMELEC must wait for
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a legislative enactment. (Montejo v. COMELEC,
G.R. No. 118702, March 16, 1995)
Rules on apportionment of legislative districts
Under the Constitution
1. Legislative districts shall be made in
accordance with the number of respective
inhabitants and on the basis of a uniform
and progressive ratio
2. Each district shall comprise, as far as
practicable, Contiguous, Compact and
Adjacent territory. (CCA)
3. Each city with at least 250,000 inhabitants
will be entitled to at least one
representative while each province will
have at least one representative.
4. Each province, irrespective of the number
of inhabitants, is entitled to at least 1
representative
5. Legislative districts shall be re-apportioned
by Congress within 3 years after the return
of each census.
Gerrymandering
Formation of one legislative district out of separate
territories for the purpose of favoring a candidate
or a party. This is the reason why the Constitution
requires that Legislative Districts be continuous,
compact, and adjacent.
The formation of one legislative district out of
separate territories for the purpose of favoring a
candidate or a party (Navarro v. Executive
Secretary, G.R. No. 180050, Feb. 10, 2010).
The Constitutional standards used to determine the
apportionment of legislative districts, i.e. that each
legislative district is to comprise, as far as
practicable, a contiguous, compact, and adjacent
erri or , i mean o pre en gerrymandering.
(Id.)
Jurisprudence
250,000 minimum population NOT a
requirement for provinces: There is no
specific provision in the Constitution that
fixes a 250,000 minimum population that
must compose of every legislative district.
What the Constitution provides is a
POLITICAL LAW
250,000 minimum population only for a city
to be entitled to a representative, but not
so for a province. (Aquino v. COMELEC,
G.R. No. 189793, April 7, 2010)
250,000 only to create an initial
legislative district: The requirement for
cities applies only to its initial legislative
district. The Constitution does not require
a city to increase its population by another
250,000 to be entitled to an additional
district (Id.)
Necessity of confirmation by plebiscite:
The creation of legislative districts
does not need confirmation by
plebiscite if it does not involve the
creation of a local government
unit. (Bagabuyo v. COMELEC,
G.R. No. 176970, Dec. 8, 2008)
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.
This does not need a consensus.
There is no need for plebiscite
under Art. X of the Constitution
when one district is split into two,
because there is no creation of
new juridical personalities nor
division of territory per se. There
is only a need for plebiscite if you
are creating a new Local
Government Unit. (Tobias v.
Abalos, G.R. No. L-114783, Dec.
8, 1994).
Reapportionment either through a
special law or general reapportionment
law: The reapportionment of legislative
districts may be made through a special
law, such as the charter of a new city. The
Constitution
clearly
provides
that
Congress shall be composed of not more
than two hundred fifty (250) members,
unless otherwise fixed by law. As thus
worded, the Constitution did not preclude
Congress from increasing its membership
by passing a law, other than a general
reapportionment
law.
(Mariano
v.
COMELEC, G.R. No. 118577, Mar. 7,
1995)
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Difference of Reapportionment in Sec. 5(10),
Art. VI and the Creation of LGU in Sec. 10, Art.
X.
In the former, the purpose is to ensure better
acce
o one di ric repre en a i e in Congre .
No political or corporate unit is created. Thus, there
is no need for a plebiscite in the creation,
dissolution, or any other similar action on a
legislative district.
In the latter, political and corporate units are
created or altered. These possess legal personality
and are con idered in r men ali ie of he S a e
in carr ing o he f nc ion of go ernmen . The
exercise special functions for the sole benefit of
constituents. Thus, the need for a plebiscite to
expressly secure the consent of the people
affected by the creation, division, merger, abolition
or alteration of boundaries of local government
units through a plebiscite. (Bagabuyo v.
COMELEC, G.R. No. 176970, Dec. 8, 2008).
b. Party-list system
Party-List Representatives (Sec. 5 (2))
Constitute 20% of the total number of
representatives (the total includes the party-list
representatives). The maximum number of House
of Representative members is set at 250, which
means a maximum of 50 party-list members are
allowed. But this number can be increased through
a passage of a law (Banat v. COMELEC, G.R. Nos.
179271 & 179295, July 8, 2009).
However, for 3 consecutive terms after the
ratification of the 1987 Constitution (1987-1992,
1992-1995 and 1995-1998) from February 2, 1987
until 1998, one half of the seats allocated to partylist representatives shall be filled as provided by
law, by selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such other
sectors as may be provided by law, except the
religious sector (PHIL. CONST., art. VI, § 5(2).).
Under Art. XVIII, Sec. 7, until a law is passed, the
President may fill by appointment from a list of
POLITICAL LAW
nominees by the respective sectors the seats
reserved for sectoral representation.
R.A. No. 7941, the Party-List System Act was
approved on March 3, 1995. This law put into place
the mechanics for a party-list system of
representation based on election and ended the
appointment of sectoral representatives by the
President as provided in the Transitory Provisions.
For the purposes of the May 1998 elections, the
first 5 major political parties on the basis of party
representation in the House of Representatives at
the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list
system.
Mechanics (R.A. No. 7941, § 8.)
1. Registered party-lists, organizations, or
coalitions shall submit to the COMELEC a
list of not less than five (5) nominees in
order of priority.
a. A person may be nominated in one
(1) list only.
b. Only persons who have given their
consent in writing may be named
in the list.
c. Candidates for any elective office
in the immediately preceding
election shall be disqualified from
becoming a nominee.
d. No change of names or alteration
of the order of nominees shall be
allowed after the same shall have
been submitted to the COMELEC
Exceptions:
1. when the nominee dies
2. withdraws in writing his nomination
3. becomes incapacitated in which case the
name of the substitute nominee shall be
placed last in the list.
Incumbent
sectoral
representatives in the House of
Representatives
who
are
nominated in the party-list system
shall not be considered resigned.
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2. The parties, organizations, and coalitions
shall be ranked from the highest to the
lowest based on the number of votes
garnered during elections. (R.A. No. 7941,
§ 11.)
Formula:
a) If the number of District Seats is given.
Total House Seats = District Seats / 0.8
Party-List Seats = District Seats x 0.25
b) If the total number of House Seats is given.
Party-List Seats = Total House Seats x 0.2
District Seats = Total House Seats x 0.8
c) If the total number of Party-List Seats is given.
Total House Seats = Party-List Seats / 0.2
District Seats = Party-List Seats / .25
Parameters in Party-List Elections
20% of the total number of the membership
of the House of Representatives is the
maximum number of seats available to
party-list organizations, such that there is
automatically one party-list seat for every
four existing legislative districts.
Garnering 2% of the total votes cast in the
party-list elections guarantees a party-list
organization one seat. The guaranteed
seats shall be distributed in a first round of
seat allocation to parties receiving at least
two percent of the total party-list votes.
The additional seats, i.e. the remaining
seats after allocation of the guaranteed
seats, shall be distributed to the party-list
organizations including those that received
less than 2% of the total votes. The
additional seats shall be distributed to the
parties in a second round of seat allocation
according to the two-step procedure laid
down in the BANAT Decision of 21 April
2009. The continued operation of the 2%
threshold as it applies to the allocation of
the additional seats is unconstitutional
because this threshold mathematically and
physically prevents the filling up of the
available party-list seats.
The three-seat cap is constitutional. The
three-seat cap is intended by the
Legislature to prevent any party from
dominating the party-list system. There is
POLITICAL LAW
no violation of the Constitution because the
1987 Constitution does not require
absolute proportionality for the party-list
system. The well-settled rule is that courts
will not question the wisdom of the
Legislature as long as it is not violative of
the Constitution (Banat v. COMELEC, G.
R. No. 179271, July 8, 2009).
Seat
Allocation
for
the
Party-list
Representatives
1. Determine the number of seats available to
party-list representatives through the
following formula:
(Number of seats available to
legislative districts ÷ 0.80) x 0.20
2. Rank all party-lists according to votes
received.
3. Determine the 2% qualifiers through the
formula below. These party-lists are
guaranteed one seat in the House
( g aran eed ea or he n mber of ea
allocated to the 2% qualifiers).
Number of votes received by the
party-list ÷ the total number of
votes cast for the party-list system
(divisor)
LEONEN: The divisor to be used
in interpreting the formula used in
BANAT is the total votes cast for
the party-list system. This should
not include the invalid votes.
However,
so
as
not
to
disenfranchise
a
substantial
portion of the electorate, total
votes cast for the party-list
system should mean all the
votes validly cast for all the
candidates listed in the ballot,
[even
those]
that
are
subsequently disqualified, so
long as they were presented as
a choice to the electorate. The
voter relies on the ballot when
making his or her choices.
(ARARO v. COMELEC, G.R. No.
192803, Dec. 10, 2013)
4. De ermine he addi ional ea
hro gh
the following formula:
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Maximum number of seats (result
of #1) - guaranteed seats
5. Divide the number of votes received by all
parties (2% qualifiers and non-qualifiers)
by the total number of votes cast, as in #3)
and multiply the result to the number
available seats, as in #4
6. Distribute the additional seats (rounded
down) in accordance to the ranking.
7. Take note of the three seat cap. (BANAT
v. COMELEC, G.R. No. 179271, 2009)
Qualifications of Party List Representatives
(R.A. No. 7941, § 9.)
1. Natural born citizen of the Philippines;
2. Registered voter;
3. Resident of the Philippines for a period of
not less than 1 year immediately preceding
the day of the election;
4. At least 25 years of age on the day of the
election (youth sector nominee must be at
least 25 years old but not more than 30
years old on day of election);
5. Able to read and write;
6. A bona fide member of the party or
organization he seeks to represent for at
least 90 days before the day of the
election.
7. A nominee who changes his sectoral
affiliation within the same party will only be
eligible for nomination under the new
sectoral affiliation if the change has been
effected at least six months before the
elections (Amores v. HRET, G.R. No.
189600, June 29, 2010).
Rules on Party-Lists
Principle of Social Justice: The
inspiration of the system is social justice
understood in both the economic and
political sense.
Participation not Limited to Sectoral
Groups: Participation in the system is not
limited to the sectors enumerated by the
Constitution or law. The framers of the
1987 Constitution did not intend to leave
out non-sectoral parties in the party-list
system and exclusively limit it to sectoral
groups.
POLITICAL LAW
Groups must comply with the
Constitution and other applicable laws:
The enumeration of marginalized and
under-represented
sectors
is
not
exclusive. The crucial element is not
whether
a
sector
is
specifically
enumerated, but whether a particular
organization
complies
with
the
requirements of the Constitution and RA
7941. Moral disapproval, without more, is
not a sufficient governmental interest to
justify exclusion of homosexuals from
participation in the party-list system (Ang
Ladlad v. COMELEC, G.R. No. 190582,
April 8, 2010).
Three different groups may participate in
the party-list system:
national parties or organizations,
regional parties or organizations,
and
sectoral parties or organizations.
Rule on National and Regional
Parties/Organizations: The national and
regional organizations need not be
economically marginalized and do not
need to organize along sectoral lines but
they must be politically or ideologically
disadvantaged or marginalized.
Rule on Sectoral Parties: Sectoral
parties or organizations may either be
'marginalized and underrepresented' or
lacking
in
'well-defined
political
constituencies'. It is enough that their
principal advocacy pertains to the special
interest and concerns of their sector.
Marginalized
and
Underrepresented sectors: (HI
FLOW PUV)
i.
Handicapped
ii.
Indigenous
Cultural
Communities
iii.
Fisher Folk
iv.
Labor
v.
Overseas Workers
vi.
Peasant
vii.
Urban Poor
viii.
Veterans
Sectors that lack 'well defined
poli ical con i encie (PWEY)
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i.
Professionals
ii.
Women
iii.
Elderly
iv.
Youth
Rule on Political Party Participation:
Political parties can participate in party-list
elections provided they register under the
party-list system and do not field
candidates in legislative district elections.
A political party, whether major or
not, that fields candidates in
legislative district elections can
participate in party-list elections
only through its sectoral wing that
can separately register under the
party-list system.
The sectoral wing is by itself an
independent sectoral party, and is
linked to a political party through a
coalition. (Atong Paglaum v.
COMELEC, G.R. No. 203766,
April 2, 2013)
Rules on Members of Sectoral Parties or
Organizations
A majority of the members of both types
of sectoral parties or organizations must
belong to the sector they represent, i.e.
majority must:
Be
marginalized
and
underrepresented or
Lack
well-defined
political
constituencies
Rules on Nominees of Party-Lists
The nominees of sectoral parties or
organizations
that
represent
the
"marginalized and underrepresented" or
that represent those who lack "well-defined
political constituencies," must either:
Belong to their respective sectors
or
To
belong
in
he
marginalized
and
underrepresented sector
does not mean one must
"wallow
in
poverty,
destitution or infirmity."
It is sufficient that one, or
POLITICAL LAW
his or her sector, is below
the middle class
Have a track record of advocacy
for their respective sectors
The nominees of national and regional
parties or organizations must be bonafide members of such parties or
organizations.
National, regional, and sectoral parties or
organizations shall not be disqualified if
some of their nominees are disqualified,
provided that they have at least one
nominee who remains qualified. (Atong
Paglaum v. COMELEC, G.R. No. 203766,
April 2, 2013)
The proviso does not authorize a
party-list from not complying with
the submission of at least five
nominees upon its manifestation
to participate in the party-list
elections.
(COCOFED
v.
COMELEC, G.R. No. 207026,
Aug. 6, 2013)
Disqualifications of Parties or Organizations
(R.A. No. 7941, § 6.)
1. religious sector;
2. advocates of violence or unlawful means of
seeking its goal;
3. foreign party or organization;
4. receiving support from any foreign
government, foreign political party,
foundation, organization, whether directly
or through any of its officers or
5. members or indirectly through third parties
for partisan election purposes;
6. fails to comply with laws, rules or
regulations relating to elections;
7. declares untruthful statements in its
petition;
8. ceased to exist for at least 1 year; or fails
to participate in the last 2 preceding
elections or, fails to obtain at least 2% of
the votes cast under the party-list system
in the 2 preceding elections for the
constituency in which it has registered.
Note: The ord or i a di j nc i e erm ignif ing
disassociation and independence of one thing from
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the other things enumerated; it should, as a rule,
be construed in the sense in which it ordinarily
implies, as a disjunctive word. Thus, the plain, clear
and unmistakable language of the law provides for
two (2) separate reasons for delisting. (Philippine
Guardians Brotherhood Inc. v. COMELEC, G.R.
No. 190529, Apr. 29, 2010)
Who determines whether a party represents a
marginalized sector?
COMELEC has jurisdiction to determine whether
an organization applying for the party list system
represents a marginalized sector. It cannot be
challenged by certiorari because the decision is
based on facts and the SC does not try facts (V.C.
Cadangen v. COMELEC, G.R. No. 177179, June
5, 2009).
Sectoral parties are not required to adduce
evidence showing their track record that they have
undertaken to further the cause of the sector they
represent. It is sufficient that their ideals are geared
towards the cause of the sector they represent
(Abang-Lingkod v. COMELEC, G.R. No. 206952,
Oct. 22, 2013).
Term vs. Tenure
TERM
TENURE
The period during
which the elected
officer
is
legally
authorized to assume
his office and exercise
the powers thereof
The period during
which such officer
actually holds the
position
Cannot be reduced
May be limited by law
Ways by Which Tenure of Members of
Congress May Be Shortened: (FRED)
1. Forfeiture of his seat by holding any other
office or employment in the government or
any subdivision, agency, or instrumentality
thereof, including government-owned or
controlled corporations or subsidiaries
(PHIL. CONST., art. VI, § 13.);
2. Voluntary Renunciation of office (PHIL.
CONST., art. VI, § 4, ¶ 3.).
Mere filing of a certificate of
candidac d ring one
erm i
considered voluntary renunciation
since the law deems such act as a
resignation. (Dimaporo v Mitra,
G.R. No. 96859, Oct. 15, 1991)
3. Expulsion as a disciplinary action for
disorderly behavior (PHIL. CONST., art. VI,
§ 16, ¶ 3).
4. Disqualification
as
determined
by
resolution of the electoral tribunal in an
election contest (PHIL. CONST., art. VI, §
17.).
Vacancy and Special Election
In case of vacancy in the Senate or in the House of
Representatives, a special election may be called
to fill such vacancy in the manner prescribed by
law, but the Senator or Member of the House of
Representatives thus elected shall serve only for
the unexpired term.
Special Election (R.A. No. 6645, as amended by
R.A. No. 7166)
1. Special election will be called if vacancy
occurs:
a. At least 18 months before the next
regular election for the members
of the Senate;
b. At least 1 year before the next
regular election for members of
the House of Representatives
2. The particular House of Congress where
vacancy occurs must pass either a
resolution if Congress is in session, or the
Senate President or the Speaker must
sign a certification, if Congress is not in
session
a. Declaring the existence of
vacancy
b. Calling for a special election to be
held within 45 to 90 days from the
date of the resolution or
certification
3. The Senator or representative elected
shall serve only for the unexpired term.
COMELEC R
aS ca E c
6645, as amended by R.A. No. 7166)
(R.A. No.
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In case a permanent vacancy shall occur in the
Senate or House of Representatives at least one
(1) year before the expiration of the term,
COMELEC is required:
1. to call a special election by fixing the date
of the special election:
a. House of Representatives - the
date shall not be earlier than sixty
(60) days nor later than ninety (90)
after the occurrence of the
vacancy
b. Senate - the special election shall
be held simultaneously with the
next succeeding regular election
2. to give notice to the voters of, among other
things, the office or offices to be voted for.
The calling of an election, that is, the giving notice
of the time and place of its occurrence, whether
made by the legislature directly or by the body with
the duty to give such call, is indispensable to the
c
a
.
In a special election to fill a vacancy, the
rule is that a statute that expressly
provides that an election to fill a
vacancy shall be held at the next
general elections fixes the date at which
the special election is to be held and
operates as the call for that election.
Consequently, an election held at the time
thus prescribed is not invalidated by the
fact that the body charged by law with the
duty of calling the election failed to do so.
This is because the right and duty to hold
the election emanate from the statute and
not from any call for the election by some
authority and the law thus charges voters
with knowledge of the time and place of the
election.
Conversely, where the law does not fix
the time and place for holding a special
election but empowers some authority
to fix the time and place after the
happening of a condition precedent, the
statutory provision on the giving of notice
is considered mandatory, and failure to do
so will render the election a nullity.
Thus, the failure of the COMELEC to
properly call for a special election to fill a
permanent vacancy in the Senate under
R.A. 7166 does not nullify the election held
since the statute already fixes the date.
However, the failure of the COMELEC to
do so in case of a permanent vacancy in
the House of Representatives would
produce the opposite result. (Tolentino v.
COMELEC, G.R. No. 148334, Jan. 21,
2004)
District v. Party List Representatives
DISTRICT
REPRESENTATIVE
PARTY-LIST
REPRESENTATIVE
As to election or selection
Elected according to
legislative district by
the constituents of
such district
Elected
nationally,
with
party-list
organizations
garnering at least 2%
of all the votes cast for
the party-list system
entitled to 1 seat,
which is increased
according
to
proportional
representation, but is
in no way to exceed 3
seats per organization
As to Residency Requirement
Must be a resident of
his legislative district
for at least 1 year
immediately
before
the election
No special residency
requirement
in
a
legislative district
As to manner of candidate’s election
Elected
personally
(i.e. by name of
candidate)
Voted upon by party
or organization; it is
the
party
who
designates who will sit
as its representative.
As to effect of change of affiliation during
the term
Does not lose seat if
If
she/he
changes
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he/she changed party
or affiliation
party or affiliation,
loses his seat, in
which case he/she will
be substituted by
another
qualified
person
in
the
party/organization
based on the list
submitted
to
the
COMELEC.
As to manner of filling vacancies
A special election may
be held provided that
the vacancy takes
place at least 1 year
before
the
next
election
A substitution will be
made within the party,
based on the list
submitted
to
the
COMELEC
As to effect of losing in the previous
election
A
district
representative is not
prevented
from
running again as a
district representative
if he/she lost during
the previous election.
A
party-list
representative cannot
sit if he ran and lost in
the previous election.
As to effect of change of affiliation prior to
election
A change in affiliation
within months prior to
election does not
prevent
a
district
representative from
running under his new
party.
A change in affiliation
within 6 months prior
to election prohibits
the
party-list
representative from
sitting
as
representative under
his
new
party/organization.
C. LEGISLATIVE PRIVILEGES,
INHIBITIONS, AND DISQUALIFICATIONS
Privileges (PHIL. CONST., art. VI, § 11.)
Immunity from Arrest
Legislators are
privileged from arrest while Congress is in session
only (whether regular or special) with respect to
offenses punishable by not more than 6 years of
imprisonment. The immunity does not extend to the
prosecution of criminal offenses.
Right
of
Members
to
Attend
Congressional Sessions: A Senator,
who remains in detention, cannot be
allowed to go to the Senate to attend all its
official functions. All prisoners whether
under preventive detention or serving final
sentence cannot practice their profession
nor engage in any business or occupation,
or hold office, elective or appointive, while
in detention. This is a necessary
consequence of arrest and detention. The
presumption of innocence does not carry
with it the full enjoyment of civil and
political rights (Trillanes v. Judge Pimentel,
G.R. No 179817, June 27, 2008).
Privileged Speech
No member shall be
questioned or held liable in any forum other than
his/her respective Congressional body for any
speech or debate in Congress or in any Committee
thereof.
S
c
ba
includes:
Utterances made by Congressmen in the
performance of their official functions, such
as speeches delivered, statements made,
or votes cast in the halls of Congress, while
the same is in session
Bills introduced in Congress, whether the
same is in session or not
Other acts performed by Congressmen,
either in Congress or outside the premises
housing its offices, in the official discharge
of their duties as members of Congress
and of Congressional Committees duly
authorized to perform its functions as such,
at the time of the performance of the acts
in question. (Jimenez v. Cabangbang,
G.R. No. L-15905, Aug. 3, 1966)
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The privilege arises not because the statement is
made by a lawmaker, but because it is uttered in
furtherance of legislation. It cannot be invoked
when the lawmaker's speech or utterance is
extraneous to the due functioning of the legislative
process. (Trillianes v. Castillo-Marigomen, G.R.
No. 223451, March 14, 2018)
To participate in or respond to media interviews is
not an official function of any lawmaker; it is not
demanded by his sworn duty nor is it a component
of the process of enacting laws. A lawmaker may
discharge his duties and legislate without having to
communicate with the press. A lawmaker's
participation in media interviews is not a legislative
ac , b i "poli ical in na re, o ide he ambi of
the immunity conferred under the Speech or
Debate Clause. (Trillianes v. Castillo-Marigomen,
G.R. No. 223451, March 14, 2018)
A complaint for disbarment or disciplinary action
based on disparaging remarks made by an
incumbent Senator against the Chief Justice will
not prosper because of the Speech and Debate
clause. (Pobre v. Defensor-Santiago, A.C. No.
7399, Aug. 25, 2009)
Limitations:
1. Protection is only against prosecution in
any forum other than Congress itself.
Hence, the Senate or the House may
discipline their respective members.
2. The peech or deba e m
be made in
performance of their duties as members of
Congress.
3. Congress need not be in session when the
utterance is made, as long as it forms part
of legislative action (e.g. part of the
deliberative and communicative process
used to participate in legislative
proceedings in consideration of proposed
legislation or with respect to other matters
i h Congre
j ri dic ion)
Requirements to Avail of the Privilege of
Speech and Debate Clause
1. That the remarks must be made while the
legislature or the legislative committee is
functioning, that is, in session; and
2. That they must be made in connection with
the discharge of official duties
Inhibitions (PHIL. CONST., art. VI, § 12.)
All Members of the Senate and the House of
Representatives shall, upon assumption of office,
make a full disclosure of their financial and
business interests. They shall notify the House
concerned of a potential conflict of interest that may
arise from the filing of a proposed legislation of
which they are authors.
Therefore, senators and representatives are not
prohibited from introducing bills that have conflicts
with their interest, as long as they disclose.
Disqualifications (PHIL. CONST., art. VI, § 13 &
14.)
DISQUALIFICATION
WHEN APPLICABLE
Cannot hold any other
office or employment
in the Government or
any
subdivision,
agency
or
instrumentality
thereof,
including
GOCCS
or
their
subsidiaries.
During his term. If he
does so, he forfeits his
seat in Congress.
Cannot be appointed
During the term for
to any office which which he was elected
was created or the
emoluments thereof
increased
Cannot
personally During his term of
appear as counsel office
before any court of
justice,
electoral
tribunal, quasi-judicial
and
administrative
body.
Cannot be financially During his term of
interested directly or office
indirectly
in
any
contract, franchise, or
special
privilege
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granted
by
the
Government, or any
subdivision, agency or
instrumentality
thereof, including any
GOCC
or
its
subsidiary.
Cannot intervene in During his term of
any matter before any office
office
of
the
government when it is
for
his
pecuniary
benefit or where he
may be called upon to
act on account of his
office.
A Senator who is likewise the Chairman of the
National Red Cross does not forfeit his seat in the
Senate because the National Red Cross is a
private corporation performing a public function.
(Liban v. Gordon, G.R. No. 175352, Aug. 15, 2009)
A congressman cannot buy nominal shares in a
corpora ion and appear in in er en ion before he
SEC. This is a circumvention of the constitutional
policy. (Puyat v. De Guzman, G.R. No. L-51122,
Mar. 25, 1982).
Rules on Increase in Salaries (PHIL. CONST., art.
VI, § 10.)
No increase in their salaries shall take effect until
after the expiration of the full term (not tenure) of all
the members of the Senate and the House of
Representatives approving such increase.
Since the Constitution provides for rules on
alarie and no emol men , member of he
House may appropriate for themselves other sums
of money such as travel allowances, as well as
other benefits.
A new senator or representative elected through a
special election is not entitled to the new salary rate
because the new members are serving the terms
of those who approved the increase. Thus, they
are not entitled to the increase.
POLITICAL LAW
D. QUORUM AND VOTING MAJORITIES
Sessions (PHIL. CONST., art. VI, § 15.)
Regular sessions - Congress convenes once
every year on the 4th Monday of July (unless
otherwise provided for by law). It continues in
session for as long as it may determine, until 30
days before the opening of the next regular
session, excluding Saturdays, Sundays, and legal
holidays.
Special Sessions - called by the President at any
time when Congress is not in session i.e. when the
legislature is in recess
Regular v. Special Session
Under the 1935 Constitution, the
distinction between regular and special
sessions was significant because during a
special session, the legislature could
consider only the subject matter
designated by the President.
Under the present law, which leaves
discretion to Congress as to the number of
regular session days, the distinction is no
longer significant for the purpose of
determining what the legislature may
consider. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer,
2011)
Kinds of Recess
Voluntary Recess - takes place before the
adjournment of Congress like Christmas
recess
Compulsory Recess - takes place when
the Congress adjourns
Quorum to do business - Majority of each House
shall constitute a quorum.
A smaller number may adjourn from day
to day and may compel the attendance
of absent members.
In computing a quorum, members who are
outside the country and thus outside of
each Ho e coerci e j ri dic ion are no
included.
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Majority in Senate: The basis in
determining the existence of a quorum in
the Senate is the total number of Senators
who are in the country and within the
coercive jurisdiction of the Senate (Avelino
v. Cuenco, G.R. No. L-2821, March 4,
1949).
Majority of the House: means 1/2 +1 of
the actual membership of the House who
are within the coercive jurisdiction of the
Congress (within the Philippines).
Majority of all members of Congress:
means majority of the entire composition of
Congress regardless of the number of
members present or absent during time the
question is brought to the floor as long as
there is quorum (e.g. (24/2) +1 for the
Senate and (250/2) +1 for the HOR)
Nature of
Proceeding
Required
Votes
Basis
Discipline
Members
2/3 of All
Sec. 16(3)
Election of
Officers
Majority of All
Sec. 16(1)
Declare the
Existence of a
State of War
2/3 of Both
Houses,
voting
separately
Sec. 23
Override
President's
Veto
2/3 of All in
the House of
Origin
Sec. 27(1)
Quorum to do
business
Majority w/in
Compulsive
Power of the
House
Sec. 16(2);
Avelino v.
Cuenco
Voting Majorities of Congress
SENATE
Nature of
Proceeding
Required
Votes
Basis
For the
effectivity of
treaty or
international
agreement
2/3 of All
Sec. 21, Art.
VII
Conviction in
impeachment
2/3 of All
Sec. 3(6), Art.
XI
HOUSE OF REPRESENTATIVES
Nature of
Proceeding
Required
Votes
Basis
Affirm or
Override
Resolution to
Impeach
1/3 of All
Sec. 3(3), Art.
XI
COMMON TO BOTH
Yeas
and 1/5
of Sec. 16(4)
Nays in the Members
Journal
present
of
each house
Tax
Exemption
Majority of All
Sec. 28(4)
Confirmation
of new VP
nominated by
President
Majority
of Art. VII, Sec. 9
Both Houses,
voting
separately
Determination
that
Pres.
unable
to
discharge
powers
&
duties
2/3 of Both Art. VII, Sec.
Houses,
11
voting
separately
To break a tie Majority of All, Art. VII, Sec. 4
in presidential voting
election
separately
Revocation of Majority of All, Art. VII, Sec.
Proc.
of voting jointly
18
Martial Law/
Suspension of
Priv. of Writ of
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Habeas
Corpus
Extension of Majority of All, Art. VII, Sec.
Proc.
of voting jointly
18
ML/Suspensio
n. of Priv. of
WHC
To Concur w/ Majority of All
President in
granting
amnesty
Art. VII, Sec.
19
Instances when Congress is Voting Separately
1. Determining the winning candidate for
President or Vice President in case two or
more candidates have an equal and
highest number of votes (PHIL. CONST., art.
VII, § 4.)
2. De ermine Pre iden
di abili
(PHIL.
CONST., art. VII, § 11.)
3. Declaring existence of a state of war in
joint session (PHIL. CONST., art. VI, §
23(1).)
4. Confirming he Pre iden nomina ion of a
Vice-President from Congress whenever
there is a vacancy in the Office of the Vice
President (PHIL. CONST., art. VII, § 0.)
5. Proposing Constitutional amendments
(PHIL. CONST., art. XVII, § 1.)
Instances when Congress is Voting Jointly
1. Revoking or extending proclamation
suspending the privilege of writ of habeas
corpus (PHIL. CONST., art. VII, § 18.)
2. Revoking or extending declaration of
martial law (PHIL. CONST., art. VII, § 18.)
Officers of Congress (PHIL. CONST., art. VI, § 16.)
1. Senate President
2. Speaker of the House
3. Such other officers as it may deem
necessary.
Election of Officers
By a majority vote of all respective
members
Congress has the sole prerogative in
choosing its officers and the manner by
which they are chosen. (DefensorSantiago v. Guingona, G.R. No. 134577,
Nov. 18, 1988)
While the Constitution mandates that the
President of the Senate must be elected by
a number constituting more than one half
of all the members thereof, it does not
provide that the members who will not vote
for him shall ipso facto constitute the
"minority," who could thereby elect the
minority leader. Verily, no law or regulation
states that the defeated candidate shall
automatically become the minority leader.
(Id.)
The Senate President or Speaker of the
HOR is elected through a majority vote of
all its respective Members, and such other
officers as may deem necessary. (PHIL.
CONST., art. VI, § 16.)
E. DISCIPLINE OF MEMBERS
Suspension v. Expulsion
1. SUSPENSION - shall not exceed 60 days,
with the concurrence of 2/3 of all its
members.
2. EXPULSION - concurrence of 2/3 of all its
members.
Nature of Disciplining Authority
Each House may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of 2/3 of all its
members, suspend or expel a Member. A penalty
of suspension, when imposed, shall not exceed 60
days. (PHIL. CONST., art. VI, § 16(3).)
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 (Osmeña v. Pendatun, G.R. No. L17144, Oct. 28, 1960).
The parliamentary immunity of members of
Congress is not absolute. While parliamentary
immunity guarantees the legislator complete
freedom of expression without fear of being made
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responsible before the courts or any other forum
outside of Congressional Hall, it does NOT protect
him (her) from responsibility before the legislative
body itself whenever words and conduct are
considered disorderly or unbecoming a member
thereof.
For unparliamentary
Congress can be:
conduct,
members
of
censured,
committed to prison,
suspended, and
even expelled by the votes of their
colleagues (Osmeña v. Pendatun, G.R.
No. L-17144, Oct. 28, 1960).
Is preventive suspension considered an
interruption of a term?
Preventive suspension is not considered
in err p ion of a erm nder Sec. 8, Art. X and
Sec. 43 (b) of R.A. No. 7160. A preventive
suspension cannot simply be considered an
interruption because the suspended official
continues to stay in office although barred from
exercising the functions and prerogatives of the
office within the suspension period. The best
indica or of he
pended official con in i in
office is the absence of a permanent replacement
and the lack of the authority to appoint one since
no vacancy exists (Aldovino v. COMELEC, G.R.
No. 184836, Dec. 23, 2009).
Authority of Sandiganbayan to Suspend
A Congressman can be preventively suspended by
the Sandiganbayan for violation of Anti-Graft Law
notwithstanding the exclusive power of Congress
to discipline its members.
The suspension contemplated in Article VI, Section
16(3) of the Constitution is a punishment that is
imposed by the Senate or House of
Representatives upon an erring member. It is
distinct from the suspension under Section 13 of
the Anti-Graft and Corrupt Practices Act, which is
not a penalty but a preventive measure. Since
Section 13 of the Act does not state that the public
officer must be suspended only in the office where
he is alleged to have committed the acts which he
has been charged, it applies to any office which he
may be holding (Santiago v. Sandiganbayan, G.R.
No. 128055, April 18, 2001).
F. PROCESS OF LAW-MAKING
Bills that must originate in the House (PuP-TL)
(PHIL. CONST., art. VI, § 24.) Note: While these bills
must originate from the House, the Senate may
introduce amendments and pass a completely
different bill from the original one from the house.
What is required only is that the bill originate in the
House.
1. Bills authorizing the increase of Public debt
One which creates public indebtedness
such as bills for the issuance of bonds and
other forms of obligations
2. Private bills
One affecting purely private interest, such
as one granting a franchise.
3. Tariff bills
One that specifies the rates or duties to be
imposed on imported articles
4. Bills of Local application
A bill of local application, such as one
asking for the conversion of a municipality
into a city, is deemed to have originated
from the House provided that the bill of the
House was filed prior to the filing of the bill
in the Senate; even if in the end, the
Senate approved its own version
(Tolentino v. Secretary of Finance, G.R.
No. 115455, Oct. 30, 1995).
Revenue Bills
One specifically designed to raise money or
revenue through imposition or levy.
For example, registration fees used for the
construction
and
maintenance
of
highways. (PAL vs. Edu, G.R. No. L41383, Aug. 15, 1988).
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The Videogram Regulatory Board Law
imposing a tax on video rentals does not
make the law a revenue bill because the
purpose is primarily regulation, and not to
raise revenue. (Tio v. Videogram
Regulatory Board, G.R. No. L-75697, June
18, 1987)
General Limitations (PHIL. CONST., art. VI, § 26.)
Every bill shall embrace only one (1) subject, as
expressed in the title thereof, which does not have
to be a complete catalogue of everything stated in
the bill.
An Act creating the Videogram Regulatory Board
including 30% tax on gross receipts on video
transactions was held to be valid. Taxation is
sufficiently related to regulation of the video
industry (Tio v. Videogram Regulatory Board, G.R.
No. L-75697, June 18, 1987).
It is sufficient that the title expressing the general
subject of the bill and all the provisions of the
statute are germane to such general subject
(Sumulong v. COMELEC, G.R. No. L-48609, Oct.
10, 1941).
Bills passed by either House must pass 3 readings
on separate days, and printed copies thereof in its
final form distributed to its members 3 days before
its passage.
FIRST READING - Only the title is read; the bill is
passed to the proper committee
SECOND READING - Entire text is read and
debates are held; amendments introduced.
THIRD READING - Only the title is read, no
amendments are allowed. Vote shall be taken
immediately thereafter and the yeas and nays
entered in the journal.
Exceptions:
When the President certifies to the
necessity of the bill immediate enactment
to meet a public calamity or emergency,
the three readings can be held on the
same day. (PHIL. CONST., art. VI, § 26(2).)
When the offices of the President and
Vice-President are both vacant, the bill
calling for a special election to elect a
President and Vice-President is deemed
certified. (PHIL. CONST., art. VII, § 10.)
See Part V(1) on the Substantive and Procedural
Limitations on Congress’ Law-Making Powers.
BICAMERAL CONFERENCE COMMITTEE an
extra-constitutional creation which is intended to
resolve conflicts between House and Senate
versions of bills. (Bernas, 1987 Philippine
Constitution: A Commentary, 790, 2009).
Scope
C
Of
The
Bicameral
Conference
Powers (A2R2P)
Adopt the Bill entirely; or
Amend; or
Revise; or
Reconcile the House Bill and the Senate
Bills;
Propose entirely new provisions not found
in either the House Bill or the Senate Bill.
(Amendments in the nature of a substitute)
Limitation: So long as the amendment is germane
to the subject of the bill before the Committee.
In a bicameral system, bills are independently
processed by both Houses of Congress. It is not
unusual that the final version approved by one
House differs from what has been approved by the
other. The conference commi ee, consisting of
members nominated from both Houses, is an
extra-constitutional creation of Congress whose
function is to propose to Congress ways of
reconciling conflicting provisions found in the
Senate version and in the House version of a bill.
It is within the power of a conference committee to
include in its report an entirely new provision that is
not found either in the House bill or in the Senate
bill. If the committee can propose an amendment
consisting of one or two provisions, there is no
reason why it cannot propose several provisions,
collectively considered as an "amendment in the
nature of a substitute," so long as such amendment
is germane to the subject of the bills before the
committee. After all, its report was not final but
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needed the approval of both houses of Congress
to become valid as an act of the legislative
department (Tolentino v. Secretary of Finance,
G.R. No. 115455, Aug. 25, 1994).
Presidential Veto
Every bill passed by Congress shall be presented
to the President before it becomes law. To
approve, he shall sign it. Otherwise, he shall veto
the bill. (PHIL. CONST., art. VI, § 27(1).)
Overriding a Veto
The President shall transmit to House where the bill
originated. If, after such reconsideration, 2/3 of all
the members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to
the other House by which it shall likewise be
reconsidered, and if approved by 2/3 of all the
members of that House, it shall become law.
To override the veto, at least 2/3 of all the members
of each House must agree to pass the bill. In such
case, the veto is overridden and becomes a law
without need of presidential approval. (PHIL.
CONST., art. VI, § 27(1).)
Item Veto
General Rule: As a general rule, if the President
disapproves of a provision in a bill approved by
congress, he must veto the entire bill.
Exception: As an exception, the President is
allowed to item-veto in these types of bills: (ART)
1. Appropriation
2. Revenue, and
3. Tariff (Sec. 27 (2)).
Exceptions to the Exception:
DOCTRINE OF INAPPROPRIATE PROVISIONS A provision that is constitutionally inappropriate for
an appropriation bill may be subject to veto even if
it is not an appropriation or revenue i em .
(Gonzalez v. Macaraig, Jr., G.R. No. 87636, Nov.
19, 1990).
POLITICAL LAW
EXECUTIVE IMPOUNDMENT - Refusal of the
President to spend funds already allocated by
Congress for a specific purpose. It is in effect, an
impo ndmen
of the law allocating such
expenditure of funds.
Note: There is no doctrine for or against executive
impoundment. It has not been judicially
questioned.
Type of Item Bill
TYPE OF BILL
ITEM
Revenue/tax bill
Subject of the tax, and
tax
rate
imposed
thereon
Appropriations bill
Indivisible
sum
dedicated to a stated
purpose
VETO OF RIDER - A rider is a provision that does
not relate to a particular appropriation stated in an
appropriation bill. Being an invalid provision under
Section 25 (2), the President may exercise item
veto.
Internal Rules
As part of their inherent power, each House may
determine its own rules. Hence, the courts cannot
intervene in the implementation of these rules
insofar as they affect the members of Congress.
(Arroyo v. De Venecia, G.R. No. 127255, Aug. 14,
1997)
The only limitation to the power of
Congress to promulgate its own rules is the
observance of quorum, voting, and
publication when required. As long as
these requirements are complied with, the
Court will not interfere with the right of
Congress to amend its own rules.
(Pimentel v. Senate Committee, G.R. No.
187714, March 8, 2011)
Congressional Journals and Records (PHIL.
CONST., art. VI, § 16.)
General Rule: The Journal is conclusive upon the
courts.
Exception: An enrolled bill prevails over
the contents of the Journal.
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ENROLLED BILL - The official copy of approved
legislation and bears the certifications of the
presiding officers of each House. Thus, where the
certifications are valid and are not withdrawn, the
contents of the enrolled bill are conclusive upon the
courts as regards the provision of that particular
bill.
ENROLLED BILL DOCTRINE The signing of a
bill by the Speaker of the House and the President
of the Senate and its certification by the secretaries
of both Houses of Congress that such bill was
passed are conclusive of its due enactment (Arroyo
v. De Venecia, G.R. No.127255, Aug. 14, 1997).
ENROLLED
BILL
Official copy
of approved
legislation,
with
certifications
of presiding
officers
Submitted to
the President
for signature,
indicating
approval
JOURNAL
RECORD
Abbreviated
account
of
daily
proceedings
in Congress
Word for word
transcript of
deliberations
in Congress
Provides
proof of what
transpired
during
deliberations
Provides
detailed proof
of
what
transpired
during
deliberations
Supports the
journal entry
Insures
publicity
of
legislative
proceedings
Cases When the Constitution Requires Yeas
And Nays To Be Recorded
1. Last and third readings of a bill
2. Upon 1/5 member request
3. Re-passing a bill over Presidential veto
Adjournment
Neither House during the sessions of the
Congress, shall without the consent of the other,
adjourn for more than 3 days, nor to any other
place than that in which the two Houses shall be
sitting. (PHIL. CONST., art. VI, § 16.)
Types of Adjournment
1. Day to day
2. Yearly
3. Sine die
resumption
with no appointed date for
P ac
Refers not to the building but to the political unit
where the Houses may be sitting.
G. ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
ELECTORAL TRIBUNALS
1. NATURE
The Senate and the House of Representatives
shall each have an Electoral Tribunal (SET and
HRET). (PHIL. CONST., art. VI, § 17.)
Composition Nine (9) members
1. Three (3) Supreme Court Justices to be
designated by the Chief Justice.
o The senior Justice in the Electoral
Tribunal shall be its Chairman.
2. Six (6) Members of the Senate or House,
as the case may be. They shall be chosen
on the basis of proportional representation
from the political parties and party-list
organizations.
The presence of the three Justices, as against six
members of [each House], was intended as an
additional guarantee to ensure impartiality in the
judgment of cases before it. As such, there should
always be one member of the Tribunal who is a
Justice. If all three Justice-members inhibit
themselves in a case, the Supreme Court will
designate another Justice to chair the Electoral
Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct.
16, 2018)
Nature of Tribunals
The tribunal was created to function as a
nonpartisan court although two-thirds of its
members are politicians. It is a non-political body in
a sea of politicians. As judges, the members of the
tribunal must be non-partisan. They must
discharge
their
functions
with
complete
detachment, impartiality, and independence
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even independence from the political party to which
they belong. Hence, "disloyalty to party" and
"breach of party discipline," are not valid grounds
for the expulsion of a member of the tribunal.
(Bondoc v. Pineda, G.R. No. 97710, Sept. 26,
1991)
LEONEN: An Electoral Tribunal is a quasi-judicial
body. Therefore, the degree of proof required is
only substantial evidence or that amount of
relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion. (David
v. SET, G.R. No. 221538, Sept. 20, 2016)
Security of Tenure
Membership in the HRET may not be terminated
except for a just cause, such as the expiration of
the member's congressional term of office, his
death, permanent disability, resignation from the
political party he represents in the tribunal, formal
affiliation with another political party, or removal for
other valid cause. A member may not be expelled
by the HOR for par di lo al short of proof that
he has formally affiliated with another political
group. (Bondoc v. Pineda, G.R. No. 97710, Sept.
26, 1991)
2. POWERS
Jurisdiction
Each Electoral Tribunal shall be the sole judge of
all contests relating to the (ERQ) Election,
Returns and Qualifications of their respective
members. This includes determining the validity or
invalidity of a proclamation declaring a particular
candidate as the winner.
Q alifica ion
are not limited to the
qualifications
prescribed
by
the
Constitution for a Member of Congress
under Art. VI, Sec. 6. (Guerrero v.
COMELEC, G.R. No. 137004, July 26,
2000)
The COMELEC jurisdiction over election contests
relating to election, returns, and qualifications
ends, and the HRET's own jurisdiction begins once
a winning candidate is:
1. proclaimed
2. taken his oath, and
POLITICAL LAW
3. assumed office as a Member of the House
of
Representatives.
(Aggabao
v.
COMELEC, G.R. No. 163756, Jan. 26,
2005)
Thus, in an electoral contest where the validity of
the proclamation of a winning candidate who has
taken his oath of office and assumed his post as
Congressman is raised, that issue is best
addressed to the HRET. (Guerrero v. COMELEC,
G.R. No. 137004, July 26, 2000)
Once COMELEC loses its jurisdiction, the proper
remedy is to file a petition for quo warranto
before the HRET and not a petition for certiorari
before the Supreme Court. (Señeres v.
COMELEC, G.R. No. 178678, Apr. 16, 2009)
Note: The Constitution provides that a person
assumes office a noon on the 30th day of J ne .
The Oath of Office the petitioner presented is not
valid. As far as the court is concerned, she took her
oath on 5th of June which is not the one prescribe
by the Constitution. Therefore, the COMELEC still
has jurisdiction. Before there is a valid taking of
the oath, it must be made:
1. before the Speaker of the House of
Representatives, and
2. in open session. (Reyes v. COMELEC,
G.R. No. 207264, June 25, 2013)
Does the HRET have jurisdiction over preproclaimed controversies?
No, the COMELEC has exclusive jurisdiction over
pre-proclaimed controversies. (Omnibus Election
Code, § 242)
Is jurisdiction lost upon withdrawal or protest?
No. Jurisdiction once acquired, is not lost upon the
instance of the parties, but continues until the case
is terminated. Mere filing of a motion to withdraw
protest, without any action on the part of the
tribunal, does not divest it of jurisdiction. An
election protest is impressed with public interest in
the sense that the public is interested in knowing
what happened in the elections. Thus, private
interest must yield to the common good. (Robles v
HRET, G.R. No. 86647, Feb. 5, 1990)
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Election Contest where a defeated candidate
receiving the second highest number of votes
challenges the qualifications of a winning
candidate and claims for himself the seat of a
proclaimed winner.
In the absence of an election contest, the
Electoral Tribunal is without jurisdiction.
However, each House can expel its own
members or even defer their oath taking
until their qualifications are determined.
This may be exercised even without an
election contest.
The power of the HRET to determine the
citizenship of a winning candidate does not
include looking at the grant of citizenship
to the candida e ascendant. That would
be a prohibited collateral attack (Vilando v.
HRET, G.R. Nos. 192147 & 192149, Aug.
23, 2011).
An Electoral Tribunal may annul election results if
in its determination, fraud, terrorism or other
electoral irregularities existed to warrant the
annulment. Because in doing so, it is merely
exercising its constitutional duty to ascertain who
among the candidates received the majority of the
valid votes cast. (Abayon v. HRET, G.R. No.
222236, May 3, 2016)
Since the Electoral Tribunals are independent
constitutional bodies:
Neither Congress nor the Courts may
interfere with procedural matters relating to
the functions of the Electoral Tribunals.
(Angara v. Electoral Commission, G.R. No.
L-45081, July 15, 1936)
Its members may not be arbitrarily
removed from their positions in the tribunal
by the parties that they represent. Neither
may they be removed for not voting
according to party lines, since they are
acting independently of Congress.
(Bondoc v. Pineda, G.R. No. 97710, Sept.
26, 1991)
The mere fact that the members of either
the Senate or the House sitting on the
Electoral Tribunal are themselves the ones
sought to be disqualified (due to the filing
of an election contest against them) does
POLITICAL LAW
not warrant the disqualification of all the
members of the Electoral Tribunal. (Abbas
v. SET, G.R. No. 83767, Oct. 27, 1988)
Judicial review of decisions of the Electoral
Tribunals may be had with the Supreme
Court only on the ground of grave abuse of
discretion, the decision or resolution
having been rendered without or in excess
of jurisdiction. (Pimentel v. HRET, G.R. No.
141489, Nov. 29, 2002)
o E.g. A final vote tally made by an
Electoral
Tribunal
without
supporting evidence has been
struck down by the Court. (Lerias
v. COMELEC, G.R. No. 97105,
Oct. 15, 1991)
Jurisprudence (LEONEN)
When the names of the parents of a foundling
cannot be discovered despite a diligent search, but
sufficient evidence is presented to sustain a
reasonable inference that satisfies the quantum of
proof required to conclude that at least one or both
of his or her parents is Filipino, then this should be
sufficient to establish that he or she is a naturalborn citizen. When these inferences are made by
the SET in the exercise of its sole and exclusive
prerogative to decide the qualifications of the
members of the Senate, then there is no grave
abuse of discretion. (David v. SET, G.R. No.
221538, Sept. 20, 2016)
The cardinal objective in ballot appreciation is to
discover and give effect to, rather than frustrate,
the intention of the voter. Extreme caution is
observed before any ballot is invalidated and
doubts are resolved in favor of the ballo validity.
This Court finds no grave abuse of discretion by the
HRET in its findings after its careful review of the
objected ballots and guided by existing principles,
rules and rulings on its appreciation. (Locsin v.
HRET, G.R. No. 204123, March 19,2013)
Rule Making Power
The power of the HRET, as the sole judge of all
contests relating to the election, returns and
qualifications of the Members of the House of
Representatives, to promulgate rules and
regulations relative to matters within its jurisdiction,
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including the period of filing election protests before
it, is beyond dispute. I
rule-making power
necessarily flows from the general power granted it
by the Constitution. (Lazatin v HRET, G.R. No.
84297, 1998)
COMMISSION ON APPOINTMENTS
1. NATURE
Composition
1. Senate President as ex-officio chairman
2. 12 Senators
3. 12 Members of the House
The Commission on Appointments (CA) acts as a
legislative check on the appointing authority of the
President. For the effectivity of the appointment of
certain key officials enumerated in the Constitution,
the consent of the CA is needed. (Bernas)
Manner of Constitution
Elected on the basis of proportional representation
from the political parties and party-list
organizations within 30 days after the Senate and
the House of Representatives shall have organized
with the election of the Senate President and the
Speaker of the House (PHIL. CONST., art. VI, § 19.)
The Constitution does not require that the
poli ical par ie be registered before the
COMELEC. (Daza v. Singson, G.R. No.
86344, Dec. 21, 1989)
The minimum required number of elected senators
belonging to the same political party in order for the
party to qualify for a seat in the CA is at least two
(2) elected senators for every seat in the CA.
(Guingona v. Gonzales, G.R. No. 106971, March
1, 1993).
The Constitution does not require that the full
complement of 12 senators be elected to the
membership in the CA before it can discharge its
functions and that it is not mandatory to elect 12
senators to the CA (Guingona vs. Gonzales, G.R.
No. 106791, March 1, 1993).
POLITICAL LAW
The two Houses have primary jurisdiction on who
should sit in the CA. This includes determination
of party affiliation and number of party members for
purpose of determining proportional representation
(Drilon v. De Venecia, G.R. No. 180055, July 31,
2009).
Voting
1. The Commission shall rule by a majority
vote of all the Members. (PHIL. CONST., art.
VI, § 18.)
2. The chairman shall only vote in case of a
tie. (Id.)
3. The Commission shall act on all
appointments submitted to it within 30
session days. (Id.)
4. The Commission shall meet only while
Congress is in session, at the call of its
Chairman or a majority of all its members.
(PHIL. CONST., art. VI, § 19.)
2. POWERS
Jurisdiction (PHIL. CONST., art. VII, § 16.)
The Commission on Appointments shall confirm
the appointments by the President with respect to
the following positions: (E-MA²-C)
1. Heads of the Executive Departments
o Exception: Appointment of Vice
President as a member of the
Cabinet needs no confirmation
(PHIL. CONST., art. VII, § 15.)
2. Ambassadors,
3. Other public Ministers or consuls
4. Officers of the AFP from the rank of
Colonel or Naval Captain and above; and
5. Other officers whose appointments are
vested in him by the Constitution (e.g.
COMELEC members)
o Examples:
Chairmen
and
commissioners of the CSC,
COMELEC, and COA; regular
members of the Judicial Bar
Council (JBC)
Note: The consent of Commission on
Appointments is required only in the 1st sentence
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enumeration of Art. VII, Section 16. (Sarmiento v.
Mison, G.R. No L-79974, Dec. 17, 1987)
j.
Limitations
Congress cannot by law prescribe that the
appointment of a person to an office
created by such law shall be subject to
confirmation by the CA.
Appointments extended by the President
to the enumerated positions while
Congress is not in session shall only be
effective until disapproval by the CA, or
until the next adjournment of Congress.
Since the Commission on Appointments is
an independent constitutional body, its
rules of procedure are outside the scope of
congressional powers as well as that of the
judiciary.
For further discussion on this topic, see page 79 VI
(C)(2) [Powers of the President: Power of
Appointment] of this Reviewer.
H. POWERS OF CONGRESS
General Classification
1. Legislative
a. General plenary power
b. Specific power of appropriation
c. Taxation
d. Expropriation
e. Legislative investigation
f. Question hour
2. Non-legislative
a. Canvass presidential elections
b. Declare the existence of a state of
war
c. Delegation of emergency powers
d. Call a special election for
President and Vice President
e. Concur to treaties and amnesties
f. Propose
constitutional
amendments
g. Confirm certain appointments
h. Impeach
i. Decide the disability of the
President in cases where majority
of the Cabinet dispute his
k.
assertion that he is able
discharge his duties
Revoke or extend proclamation
suspension of privilege of writ
habeas corpus or declaration
martial law
Power with regard to utilization
natural resources
to
of
of
of
of
1. LEGISLATIVE INQUIRIES AND
OVERSIGHT FUNCTIONS
LEGISLATIVE INQUIRIES (PHIL. CONST., art.
VI, § 21.)
Scope
The power of legislative investigation includes:
1. Power to issue summons and notices;
2. Power to punish or declare a person in
contempt
3. The power to determine the rules of its
proceedings
Limitations: (ADR)
1. The inquiry must be in Aid of legislation.
2. The inquiry must be conducted in
accordance with the Duly published rules
of proced re of the House conducting the
inquiry; and
3. The rights of persons appearing in or
affected by such inquiries shall be
Respected. (e.g., right to due process,
right against self- incrimination) (Bernas,
1987
Philippine
Constitution:
A
Commentary, 761, 2009).
Nature and Purpose
The power of inquiry
with process to enforce it
is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to effect or change; and
where the legislative body does not itself possess
the requisite information
which is not
infrequently true recourse must be had to others
who do possess it. (Arnault v. Nazareno, G.R. No.
L-3820, July 18, 1950)
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Legislative inquiries must be conducted in aid of
legislation which does not necessarily mean that
there is pending legislation regarding the subject of
the inquiry. Hence, the materiality of a question is
determined not by its connection to any pending
legislation, but by its connection to the general
scope of the inquiry. (Bengzon v. Senate Blue
Ribbon Committee, G.R. No. 89914, Nov. 20,
1991)
If the investigation is no longer in aid of legi la ion
but, in aid of prosecution where the stated
purpose of the investigation is, to determine the
existence of violations of the law, it is beyond the
scope of congressional powers.
Compulsory Process
The power of legislative investigation includes the
power to compel the attendance of witnesses.
Corollary to the power to compel the attendance of
witnesses is the power to ensure that said
witnesses would be available to testify in the
legislative investigation. (Standard Chartered v.
Senate, G.R. No. 167173, Dec. 27, 2007).
Duly Published Rules of Procedure
It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or
otherwise make the published rules clearly state
that the same shall be effective in subsequent
Congresses or until they are amended or repealed
to sufficiently put the public on notice. If it was the
intention of the Senate for its present rules on
legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same
language it had used in its main rules regarding
effectivity. Publication in the internet does not
satisfy the requirement of publication as provided
in the Constitution (Garcillano v. House of
Representatives, G.R. No. 170338, Dec. 23, 2008).
Right against Self-Incrimination
A subpoenaed witness cannot refuse to attend a
legislative inquiry by invoking his or her right
against self-incrimination. Such right may be
invoked only when the incriminating question is
being asked, since they have no way of knowing in
advance the nature or effect of the questions to be
POLITICAL LAW
asked of them. (Sabio v. Gordon, G.R. No. 174340,
Oct. 17, 2006).
Non-Applicability of the Sub Judice Rule to
Inquiries in Aid of Legislation
The mere filing of a criminal or an administrative
complaint before a court or a quasi-judicial body
should not automatically bar the conduct of
legislative investigation. Otherwise, it would be
extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting
a criminal or an administrative complaint. Surely,
the exercise of sovereign legislative authority, of
which the power of legislative inquiry is an essential
component, cannot be made subordinate to a
criminal or an administrative investigation.
(Standard Chartered v. Senate, G.R. No. 167173,
Dec. 27, 2007).
A legislative investigation in aid of legislation
and court proceedings have different
purposes. On one hand, courts conduct hearings
or like adjudicative procedures to settle, through
the application of a law, actual controversies
arising between adverse litigants and involving
demandable rights. On the other hand, inquiries in
aid of legislation are, inter alia, undertaken as tools
to enable the legislative body to gather information
and, thus, legislate wisely and effectively; and to
determine whether there is a need to improve
existing laws or enact new or remedial legislation,
albeit the inquiry need not result in any potential
legislation. On-going judicial proceedings do not
preclude congressional hearings in aid of
legislation. (Romero v. Estrada, G.R. No. 174105,
April 2, 2009)
Power to Punish for Contempt
The power to punish contempt must be considered
implied or incidental to the exercise of legislative
power. How could a legislative body obtain the
knowledge and information on which to base
intended legislation if it cannot require and compel
the disclosure of such knowledge and information,
if it is impotent to punish a defiance of its power and
authority? (Standard Chartered v. Senate, G.R.
No. 167173, Dec. 27, 2007).
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The exercise by Congress or by any of its
committees of its contempt power is based on the
principle of self-preservation (i.e. preserving its
authority and dignity). As the branch of the
government vested with the legislative power,
independently of the judicial branch, it can assert
its authority and punish contumacious acts against
it. Such power is sui generis, as it attaches not to
the discharge of legislative functions per se, but to
the sovereign character of the legislature as one of
the three independent and coordinate branches of
government. (Id.)
Period of Detention for Contempt (Balag v.
Senate, G.R. No. 234608, July 3, 2018)
HOUSE OF
SENATE
REPRESENTATIVES
Can last only until the Can last only until the
final adjournment of termination of the
the last session of legislative
inquiry
such Congress
(even during recess)
under which the said
power is invoked
The legislative inquiry
of
the
Senate
terminates on two
instances:
1. Upon
the
approval
or
disapproval of
the
Committee
Report
2. Upon
the
expiration of
such
Congress
Prior to Balag, the prevailing rule was that the
Senate, as a continuing body (as opposed to the
House of Representatives), can incarcerate a
witness indefinitely based on Arnault v. Nazareno.
However, the Court ruled that an indefinite and
unspecified period of detention will amount to
excessive restriction and will certainly violate any
person's right to liberty. (Id.)
If Congress decides to extend the period of
imprisonment for the contempt committed by a
witness beyond the duration of the legislative
inquiry, then it may file a criminal case under
existing statute (Art. 150 of the Revised Penal
Code penalizes the refusal of a witness to answer
any legal inquiry before Congress), amend existing
law, or enact a new law to increase the definite
period of imprisonment. Augmenting its power of
contempt and extending the period of
imprisonment shall be in the sole discretion of
Congress. This constitutes as a statutory power
of contempt, which is different from the inherent
power of contempt. (Id.)
OVERSIGHT FUNCTIONS (PHIL. CONST., art.
VI, § 22.)
Section 22 pertains to the power to conduct
a question hour, the objective of which is to obtain
information in pursuit of Congress' oversight
function.
Question Hour
Appearance of department
heads before Congress to give account of their
stewardship (Bernas, 1987 Philippine Constitution:
A Commentary, 769, 2009).
Under Section 22, department heads (members of
the Executive Department) cannot be compelled to
appear before Congress. Neither may department
heads impose their appearance upon Congress.
This is in line with the principle of separation of
powers.
Department Heads May Appear before
Congress in the Following Instances:
Upon their own initiative, with the consent
of the President (and that of the House
concerned)
Upon the request of either House
Written questions shall be submitted to the
President of the Senate or Speaker of the
House at least 3 days before the
scheduled appearance of the department
heads.
Interpellations shall not be limited to written
questions, but may cover related matters.
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The inquiry will be conducted in executive
session when:
o Required by the security of state,
or public interest, and
o When the President so states in
writing.
There is no such thing as a q e ion ho r in the
Constitution (It is a parliamentary concept and
practice). The distinction in legislative hearings is
between investigative function and oversight
function. (Senate v. Ermita, G.R. No. 169777, April
20, 2006).
Any post-enactment congressional measure
should be limited to scrutiny and investigation, in
following the principle separation of powers. An
accountability mechanism with which the proper
expenditure of public funds may be checked is the
power of congressional oversight, which may be
performed either through:
1. Scrutiny based primarily on Congre
power of appropriation and the budget
hearings conducted in connection with it,
its power to ask heads of departments to
appear before and be heard by either of its
Houses on any matter pertaining to their
departments and its power of confirmation;
2. Investigation and monitoring of the
implementation of laws pursuant to the
power of Congress to conduct inquiries in
aid of legislation. (Belgica v. Ochoa, G.R.
No. 208566, Nov. 19, 2013).
Question Hour vs. Legislative Investigation
Sections 21 and 22, while closely related and
complementary to each other, should not be
considered as pertaining to the same power of
Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of
which is to elicit information that may be used for
legislation, while the other pertains to the power to
conduct a question hour, the objective of which is
to obtain information in pursuit of Congre
oversight function. (Neri v. Senate, G.R. No.
180643, March 25, 2008)
Section 22, in keeping with the separation of
powers, states that Congress may only request
their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is "in
aid of legislation" under Section 21, the
appearance is mandatory (Senate v. Ermita, G.R.
No. 169777, April 20, 2006).
QUESTION
HOUR
(SEC. 22)
Who may
appear
Who
conducts
Subject
matter or
purpose
Nature
Exempted
persons
Exempted
informatio
n
Only
department
heads
Entire body
LEGISLATIVE
INVESTIGATIO
N
(SEC. 21)
Any person
Entire body or its
respective
committees
Any matter in aid
of legislation
Matters
related to the
department
only as an
exercise of
Congre
oversight
function
Discretionar
Compulsory
y
All heads of (1) President
departments (2) Justices of the
of
the Supreme Court
Executive
(3) Members of
Branch
of the
AFP,
if
the
prevented by the
government
President
as
shall secure Commander-inthe consent Chief (Gudani v.
of
the Senga, G.R. No.
President
170165, Aug. 15,
prior
to 2006)
appearing
before either
House
of
Congress
(EO
464,
Sec.1)
(1) Executive privilege, which
must be invoked by the President
himself or through the Executive
Secretary by authority of the
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President (Senate v. Ermita, G.R.
No. 169777, April 20, 2006)
(2) Privileged information e.g.
national defense, diplomatic,
military secrets, etc.
(3)
Right
against
selfincrimination
Invocation of Executive Privilege
Under Article VI, Section 22, the appearance of
department heads in the question hour is
discretionary on their part. However, under
Section 21, Congress is not bound to respect their
refusal to appear in inquiries in aid of legislation,
unless a valid claim of privilege is subsequently
made, either by the President herself or by the
Executive Secretary. (Senate v. Ermita, G.R. No.
169777, April 20, 2006)
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.
A claim of privilege, being a claim of exemption
from an obligation to disclose information, must,
therefore, be clearly asserted. The court itself must
determine whether the circumstances are
appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the
privilege is designed to protect. Absent then a
statement of the specific basis of a claim of
executive privilege, there is no way of determining
whether it falls under one of the traditional
privileges, or whether, given the circumstances in
which it is made, it should be respected (Senate v.
Ermita, G.R. No. 169777, April 20, 2006).
The President has constitutional authority to
prevent any member of the Armed Forces from
testifying before a legislative inquiry by virtue of her
power as commander-in- chief, and that as a
consequence a military officer who defies such
injunction is liable under military justice. The only
way to circumvent this is by judicial order because
the President may be commanded by judicial order
to compel the attendance of the military officer.
Final judicial orders have the force of the law of the
land which the President has the duty to faithfully
execute (Gudani v. Senga, G.R. No. 170165, Aug.
15, 2006).
When Congress merely seeks to be informed on
how department heads are implementing the
statutes which it has issued, its right to such
information is not as imperative as that of the
President to whom, as Chief Executive, such
department heads must give a report of their
performance as a matter of duty. In such instances,
Section 22 of Article VI, in keeping with the
separation of powers, states that Congress may
only request their appearance. Nonetheless, when
the inquiry in which Congress requires their
appearance is in aid of legi la ion under Section
21, Article VI, the appearance is mandatory
(Senate v. Ermita, G.R. No. 169777, April 20,
2006).
2. NON-LEGISLATIVE
a. Informing function
The power of Congress, when it investigates, is not
limited to oversight or in aid of legislation. Equally
important and a fundamental power and duty of
Congress is its informing function by way of
investigating for the purpose of enlightening the
electorate. The informing function of Congress
should be preferred even to its legislative function
[for] the only really self-governing people is that
people which discusses and interrogates its
admini ra ion (Akbayan v. Aquino, G.R. 170516,
July 16, 2008; J. Azcuna, Separate-Dissenting
opinion citing Schlesinger, 10, 76-77 quoting
Wilson, Congressional Government, 278, 279,
299, 301, 303).
b. Power of impeachment
(Phil. Const., art. XI.)
Exclusive Power To Initiate
The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment (PHIL. CONST., art. IX, § 3(1).)
The impeachment proceedings begin with
a complaint filed with the House of
Representatives either by a member of the
House or by any citizen supported by a
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resolution of endorsement by any member.
The complaint is referred to a Committee
which prepares a report (which can be
favorable or unfavorable). In either case,
the House by a vote of 1/3 of all its
members decides whether complaint
should be given due course. (PHIL. CONST.,
art. IX, § 3(2 & 3).)
Referral to the Committee and decision by
the House is unnecessary if the complaint
is filed by at least 1/3 of all the members of
the house (PHIL. CONST., art. IX, § 3(4).)
Exclusive Power to Try and Decide
The Senate shall have the sole power to try and
decide all cases of impeachment. No person shall
be convicted without the concurrence of 2/3 of all
the Members of the Senate (PHIL. CONST., art. IX,
§ 3(6).)
The penalty imposable shall be limited to:
removal from office and
disqualification to hold any office under the
Republic of the Philippine (PHIL. CONST.,
art. IX, § 3(7).)
Officers Subject to Impeachment (PHIL. CONST.,
art. IX, § 2.) (P-VSCO)
President
Vice President
Members of the Supreme Court
Members
of
the
Constitutional
Commissions
Ombudsman
Grounds for Impeachment (PHIL. CONST., art. IX,
§ 2.) (BGC-T2O)
Bribery
Graft and Corruption
Culpable Violation of the Constitution
Treason
Betrayal of Public Trust
Other high crimes
I. INITIATIVE AND REFERENDUM
See Part V(1) for discussion.
- end of topic
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VI. EXECUTIVE DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
VI. EXECUTIVE DEPARTMENT
A. QUALIFICATIONS,
ELECTION,
AND
TERM OF THE PRESIDENT AND VICEPRESIDENT
B. PRIVILEGES,
INHIBITIIONS,
DISQUALIFICATIONS
1. Presidential Immunity
2. Presidential Privilege
AND
C. POWERS OF THE PRESIDENT
1. General executive and administrative
powers
2. Powers of appointment
a. In General
b. Limitations
on
the
Exercise/Power
c. Types of Appointment
3. Power of control and supervision
a. Doctrine of Qualified Political
Agency
b. Executive Departments and
Offices
c. Local Government Units
4. Emergency Powers
5. Commander-in-chief Powers
a. Calling out Powers
b. Declaration of Martial Law and
Suspension of the Privilege of
the Writ of Habeas Corpus;
Extension
6. Executive Clemency
a. Nature and Limitation
b. Forms of executive Clemency
7. Diplomatic Power
8. Powers Relative to Appropriation
Measures
9. Delegated Powers
10. Residual Powers
11. Veto Powers
D. RULES OF SUCCESSION
A. QUALIFICATIONS, ELECTION, AND
TERM OF PRESIDENT AND VICEPRESIDENT
Qualifications of President and Vice-President
(Secs 3-4):
PRESIDENT
VICEPRESIDENT
1. Natural-born citizen of the Philippines
2. Registered voter
3. Able to read and write
4. At least 40 years old on the day of election
5. Resident of the Philippines for at least 10
years immediately preceding the election
6. Term of 6 years
7. Unless otherwise provided by law, term of
office commences at noon of June 30 next
following the election
Single term only; not Term limitation; 2
eligible
for
any successive terms
reelection (but can run
if no longer incumbent
president,
like
President Estrada in
May 2020)
Any person who has
succeeded
as
President, and served
as much for more than
4 years shall NOT be
qualified for election to
the same office at any
time
Voluntary renunciation of the office for any
length of time shall not be considered an
interruption in the continuity of service
Term of Office
The President and Vice President shall be elected
by direct vote of the people for a term of 6 years
(PHIL. CONST. art. VII, § 4).
The president shall not be eligible for any reelection. No person who has succeeded as
President and has served for more than 4 years
shall be qualified for election to the same office at
any time. (PHIL. CONST., art VII, § 4, ¶ 1).
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No Vice-President shall serve for more than 2
consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2).
Election
Regular: 2nd Monday of May, every 6 years
Special (Requisites)
Death, Permanent disability, removal from
office or resignation of both President and
Vice-President
Vacancies occur more than 18 months
before the next regular presidential
election; and
A law passed by Congress calling for a
special election to elect a President and
Vice President to be held not earlier than
45 days nor later than 60 days from the
time of such call (PHIL. CONST., art VII, §
10)
Congress as Canvassing Board
The proclamation of presidential and vice
presidential winners is a function of Congress and
not of the COMELEC (Macalintal v COMELEC,
G.R. No. 157013, June 10, 2003)
SC as the Presidential Electoral Tribunal (PET)
The SC, sitting en banc, shall be the sola judge of
all contests relating to the election, returns and
qualifications of the President or Vice President,
and may promulgate its rules for the purpose.
(Macalintal v. PET, G.R. No. 191618, Nov. 23,
2010)
Oath of Office
Before they enter on the execution of their office,
the President, Vice President or the Acting
President shall take the oath or affirmation (PHIL.
CONST., art. VII, § 5).
B. PRIVILEGES, INHIBITIIONS, AND
DISQUALIFICATIONS
Disqualifications
SUBJECT
President
Vice President
Cabinet
Members
Deputies
Assistants
Cabinet
members
or
of
SOURCE OF
DISQUALIFICATION
PROHIBITED FROM:
Holding
any
office
or
employment during their tenure
Exceptions:
Otherwise provided in
the Constitution (e.g.,
Vice
President
appointed
as
a
member
of
the
Cabinet, Secretary of
Justice sits as an exofficio member on
Judicial
and
Bar
Council)
The positions are exofficio and they do not
receive any salary or
other
emoluments
therefor (e.g. Sec. of
Finance is head of
Monetary Board)
Practicing, directly or
indirectly, any other
profession during their
tenure
Participating
business
in
any
Being
financially
interested
in
any
contract with, or in any
franchise, or special
privilege granted by
the government or any
subdivision, agency or
instrumentality thereof,
including GOCCs or
their
subsidiaries
(PHIL. CONST., art VII, §
13)
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Spouses and
4th
degree
relatives of the
President
(consanguinity
or affinity)
Cannot be appointed during
Pre iden
en re a :
(a) Members
of
the
Constitutional
Commissions
(b) Office of the Ombudsman
(c) Department Secretaries
(d) Department
Undersecretaries
(e) Chairman or heads of
bureaus
or
offices
including GOCCs and their
subsidiaries
If the spouse, etc., was already
in any of the above offices
before his/her spouse became
President,
he/she
may
continue in office. What is
prohibited is appointment and
reappointment,
not
continuation in office.
Spouses
etc.,
can
be
appointed to the judiciary and
as ambassadors and consuls
The Chief Presidential Legal Counsel (CPLC) has
the duty of giving independent and impartial legal
advice on the actions of the heads of various
executive departments and agencies and to review
investigations involving heads of executive
departments and agencies, as well as other
Presidential appointees.
The PCGG is charged with the responsibility, under
the President, of recovering ill-gotten wealth. The
offices of the PCGG and CPLC are incompatible.
Without question, the PCGG is an agency under
the Executive Department. Thus, the actions of the
PCGG Chairman are subject to the review of the
CPLC (Public Interest Group v. Elma, G.R. No.
138965, June 30, 2006).
Exception to the Prohibition on the President
and His/Her Official Family from Holding Any
Other Office or Employment
If 4th degree relatives are already in office when a
President assumes office, the relatives are not
POLITICAL LAW
thereby ousted from their positions. What is
prohibited is appointment or reappointment and not
uninterrupted continuance in office
Inhibitions
No increase in salaries until after the
expiration of the term of the incumbent
during which such increase was approved
(PHIL. CONST., art. VII, §6).
Shall not, during tenure, directly or
indirectly, practice any other profession,
participate in any business, or be
financially interested in any contract with,
or in any franchise, or special privilege
granted by the Government or any
subdivision, agency or instrumentality
thereof, including GOCCs or their
subsidiaries (PHIL. CONST., art. VII, § 13).
Shall not receive any other emoluments
from the government or any other source
(PHIL. CONST., art. II, § 6)
Shall avoid conflict of interest in conduct of
office (PHIL. CONST., art. VII, § 13).
1. PRESIDENTIAL IMMUNITY
Immunity from suit is personal to the President and
may be invoked by him alone. The President may
waive it impliedly, as when he himself files suit
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14,
1988).
The presidential immunity from suit remains
preserved under our system of government, albeit
not expressly reserved in the present constitution
(Rubrico, et al. v. Gloria Macapagal-Arroyo, et al.,
G.R. No. 183871, Feb. 18, 2010).
Unlawful acts of public officials are not acts of State
and the officer who acts illegally is not acting as
such but stands in the same footing as any other
trespasser. Once out of office, even before the end
of the six-year term, immunity for non-official acts
is lost (Estrada v. Desierto, G.R. No. 146710-15,
March 2, 2001).
Even if the DECS Secretary is an alter ego of the
President, the Pre iden
immunity from suit
cannot be invoked because the questioned acts
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are not the acts of the President but merely those
of a Department Secretary (Gloria v. CA, G.R. No.
119903, Aug. 15, 2000).
Duration of Presidential Immunity
After his tenure, the Chief Executive cannot invoke
immunity from suit for civil damages arising out of
acts done by him while he was President which
were not performed in the exercise of official duties.
(Estrada v. Desierto, G.R. No. 146710, March 2,
2001)
A department secretary, even if an alter ego of the
President, cannot invoke presidential immunity in a
case filed against him because the questioned acts
are not the acts of the President. (Gloria v CA, G.R.
No. 119903, Aug. 15, 2000)
2. PRESIDENTIAL PRIVILEGE
Executive Privilege is the power of the President to
withhold certain types of information from the court,
the Congress, and the public. (Neri v. Senate, G.R.
No. 180643, March 25 2008).
For the presidential communications privilege
to apply, the following must concur:
(a) Communications relate to a q in e en ial
and nondelegable po er of the President.
(e.g. the power to enter into an executive
agreement with other countries without the
concurrence of the Legislature has
traditionally been recognized in Philippine
jurisprudence)
(b) Communications are recei ed by a close
advisor of the President. Under the
opera ional pro imi test, Secretary Neri
of NEDA can be considered a close
advisor, being a member of President
Arro o cabinet.
(c) There is no adequate showing of a
compelling need that would justify the
limitation of the privilege and of the
unavailability of the information elsewhere
by an appropriate investigating authority.
Scope of Executive Privilege
Executive privilege covers all confidential or
classified information between the President and
POLITICAL LAW
the public officers covered by this executive order;
including:
(a) Conversations
and
correspondence
between the President and the public
official covered by this executive order
(Chavez v Public Estates Authority, G.R.
No. 133250, July 9, 2002)
(b) Military, diplomatic and other national
security matters which in the interest of
national security should not be divulged;
(c) Information between inter-government
agencies prior to the conclusion of treaties
and executive agreements (Chavez v.
PCGG, G.R. No. 130716, Dec. 9, 1998);
(d) Discussion in close-door Cabinet meetings
(Chavez v. PCGG, G.R. No. 130716, Dec.
9, 1998);
(e) Matters affecting national security and
public order (Chavez v. Public Estates
Authority, G.R. No. 133250, Jul. 9, 2002).
Person Covered by the Privilege
The person covered by the executive privilege is a
person in possession of information which is, in the
judgment of the head of office concerned,
privileged
Operational Proximity
Not every person who plays a role in the
development of presidential advice, no matter how
remote and removed from the President, can
qualify for the privilege. The privilege should apply
only to communications authored or solicited and
received by those members of an immediate White
House ad i or
staff who have broad and
significant responsibility for investigation and
formulating of the advice to be given the President
on the particular matter to which the
communications relate (Neri v. Senate Committee,
G.R. No. 180643, March 25, 2008 citing In re:
Sealed, No. 96-3124, 121 F.3d 729,326 U.S. App.
D.C. 276, 1997).
Presidential communications are presumptively
privileged and such presumption can be overcome
only by mere showing of public need by the branch
seeking access to conversations. The oversight
function of Congress may be facilitated by
compulsory process ONLY to the extent that it is
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performed in pursuit of legi la ion (Neri v. Senate,
G.R. No. 180643, March 25, 2008).
While the final text of the JPEPA may not be kept
perpetually confidential - since there should be
ample opportunity for discussion before a treaty is
appro ed
the offers exchanged by the parties
during the negotiations continue to be privileged
even after the JPEPA is published. Diplomatic
negotiations privilege bears a close resemblance
to the deliberative process and residential
communica ion privilege. Clearly, the privilege
accorded to diplomatic negotiations follows as a
logical consequence from the privileged character
of the deliberative process (Akbayan v. Aquino,
G.R. No. 170516, July 16, 2008).
When To Apply Executive Privilege:
(a) Must fall within one of the above.
(b) Must be stated with sufficient particularity
so the Congress or Court can determine
the legitimacy of the claim of privilege.
Exception to Executive Privilege:
The President's generalized assertion of
privilege must yield to the demonstrated,
specific need for evidence in a pending
criminal trial. (U.S. v. Nixon, 418 U.S. 683,
1974).
Executive privilege cannot be used to
conceal a crime or a possible wrongdoing.
Thus, the specific need for evidence in a
pending criminal trial outweighs the
Pre iden
generalized
interest
in
confidentiality (Neri v. Ermita, G.R. No.
169777, April 20, 2006).
Difference
between
Presidential
Communications Privilege and Deliberative
Process Privilege
Presidential
Deliberative Process
Communications
Privilege
Privilege
Pertains
to Includes
advisory
communications,
opinions,
documents or other recommendations and
materials that reflect deliberations
presidential decision- comprising part of a
making
and process by which
deliberations
governmental
decisions and policies
are formulated
Applies to decision- Applies to decisionmaking
of
the making of executive
President
officials (and judiciary)
Rooted
in
the
constitutional principle
of
separation
of
powers
Based on common law
privilege
Requisites:
Requisites:
(a) It must involve a (a) Predecisional
it
quintessential and
precedes,
in
non-delegable
temporal sequence,
power
of
the
the decision to
President
which it relates
(b) Operational
(b) Deliberative
Proximity
reflects the give and
(c) Important
and
take
of
the
compelling need to
consultative
be confidential, not
process such that
merely based on
disclosure
would
general interest
discourage candid
discussion
within
the agency (In Re:
Production of Court
Records
and
Documents,
Feb.
14, 2012)
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POLITICAL LAW
C. POWERS OF THE PRESIDENT
2. POWERS OF APPOINTMENT
1. GENERAL EXECUTIVE AND
ADMINISTRATIVE POWERS
a. In General
Executive Powers, In General
The Constitution provides that "[t]he executive
power shall be vested in the President of the
Philippine . However, it does not define what is
meant by executive power although in the same
article it touches on the exercise of certain powers
by the President, i.e., the power of control over all
executive departments, bureaus and offices, the
power to execute the laws, the appointing power,
the powers under the commander-in-chief clause,
the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into
treaties or international agreements, the power to
submit the budget to Congress, and the power to
address Congress.
The Pre iden Executive powers are not limited
to those set forth in the Constitution. The President
has residual powers as the Chief Executive of the
country, which powers include others not set forth
in the Constitution (Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989).
Power of Administrative Reorganization
The President has the continuing authority to
reorganize the national government, which
includes the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer
functions, to create and classify functions, services
and activities and to standardize salaries and
materials, if effected in good faith and for the
purpose of economy or make the bureaucracy
more efficient. (MEWAP v Executive Secretary,
G.R. No. 160093, July 31, 2007)
Faithful Execution Clause
Until and unless a law is declared unconstitutional,
the President has a duty to execute it regardless of
his doubts as to its validity.
Nature of the Power to Appoint
Executive in nature; while Congress (and the
Constitution in certain cases) may prescribe the
qualifications
for
particular
offices,
the
determination of who among those who are
qualified will be appointed is the Pre iden
prerogative.
In case of vacancy in an office occupied by an alter
ego of the President, such as the office of a
department secretary, the President must
necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee
of her choice could assume office. Congress,
through a law, cannot impose on the President the
obligation
to
appoint
automatically
the
undersecretary as her temporary alter ego. An alter
ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in
the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego
should be (Pimentel v. Ermita, G.R. No. 164978,
Oct. 13, 2005).
May the President appoint an individual as
acting Solicitor General and acting Secretary of
Justice?
The President may not appoint an individual as
acting Solicitor General and acting Secretary of
Justice in a concurrent capacity. The designation
of Alberto Agra as acting Secretary of Justice
concurrently with his position as Solicitor General
is in violation of the constitutional prohibition under
Article VII, Section 13. It is of no moment that the
designation was in a temporary capacity. The
Constitution makes no reference to the nature of
the designation (Funa v. Agra, G.R. No. 191644,
Feb. 19, 2013).
b. Limitations on the Exercise/Power
The Constitutional Limitations on the
P
appointing power
The President may not appoint his/her spouse and
relatives by consanguinity or affinity within the 4th
civil degree as members of the:
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(a)
(b)
(c)
(d)
(e)
(f)
Constitutional Commissions
Ombudsman
Department Secretaries
Undersecretaries
Chairmen and heads of Bureaus and Offices
GOCCs (PHIL. CONST., art. VII, § 13)
Appointments extended by an acting President
shall remain effective unless revoked by the
elected President within 90 days from assumption
of office (PHIL. CONST., art. VII, § 14)
Two months immediately before the next
Presidential elections and up to the end of his/her
term, a President or Acting President shall not
make
appointments
except
temporary
appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety (PHIL. CONST.,
art. VII, § 15).
The appointment of the heads of the executive
departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from
the rank of colonel or naval captain, and other
officers whose appointments are vested in him in
this Constitution require the consent of the
Commission on Appointments (PHIL. CONST., art.
VII, § 16).
c. Types of Appointment
Kinds of Presidential Appointments under Art
VII, Sec.15 of the Constitution
(a) Appointments made by an acting president
(b) Midnight appointment
appointment
made by a President after the election of
his successor and up to the end of his
term. This is prohibited by the Constitution.
(c) Appointments for Partisan Political
Consideration. Those made 2 months
before the next Presidential election. This
is prohibited by the Constitution.
(d) Regular presidential appointments, with or
without confirmation by the Commission
on Appointments, and rece
or adin erim appointments.
POLITICAL LAW
Appointment in an Acting Capacity
The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time
until the appointment of a permanent occupant to
the office. The law expressly allows the President
to make such acting appointment. EO 292 states
ha [ ]he Pre iden ma emporaril de igna e an
officer already in the government service or any
other competent person to perform the functions of
an office in he e ec i e branch.
B EO 292
also provides that acting appointments cannot
exceed one year. The law has incorporated this
safeguard to prevent abuses, like the use of acting
appointments as a way to circumvent confirmation
by the Commission on Appointments. (Pimentel v.
Ermita, G.R. No. 164978, Oct. 13, 2005)
Requisites for Valid Appointment
Authority to appoint and evidence of its exercise;
Transmittal of the appointment and proof of it;
Vacant position at the time of appointment; and
receipt of the appointment and its acceptance by
the appointee, who possesses all the qualifications
and none of the disqualifications. (Velicaria-Garafil
v. OP, G.R. No. 203372, June 16, 2015).
Exceptions
to
Midnight
Appointments
Requisites
(a) It is necessary to make such appointment
(b) Only temporary appointments can be
extended
(c) Appointments only in the Executive
Department
(PHIL. CONST., art. VII, § 15)
The Court held that the rule does not apply to
appointments made in the Supreme Court. (De
Castro v. JBC, G.R. No. 191002, April 20, 2010)
Ad-Interim Appointments (PHIL. CONST., art VII,
§ 16)
When Congress is in recess, the President
may still appoint officers to positions
subject to CA confirmation. These
appointments are effective immediately,
but are only effective until they are
disapproved by the CA or until the next
adjournment of Congress.
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Applies only to positions requiring
confirmation of CA Appointments to fill an
office in an ac ing capacity are NOT adinterim in nature and need no CA approval.
The assumption of office on the basis of
the ad interim appointments issued by the
President does not amount to a temporary
appointment which is prohibited by § 1 (2),
Art. IX-C. An ad interim appointment is a
permanent appointment because it takes
effect immediately and can no longer be
withdrawn by the President once the
appointee has qualified into office.
(Matibag v. Benipayo G.R. No. 149036,
April 2, 2002).
What is an ad interim appointment?
An ad interim appointment is a permanent
appointment unless otherwise indicated. It is an
appointment made by the President while
Congress is NOT in session or during recess.
How Ad-Interim Appointments Terminated
(a) Disapproval of the appointment by the
CA;
(b) Adjournment by the Congress without the
CA acting on the appointment
(NACHURA)
Difference between Disapproval and ByPassed Appointments
APPOINTMENTS
BY-PASSED
DISAPPROVED
APPOINTMENTS
When the Commission When an ad-interim
disapproves an ad position is by-passed
interim appointment, because of law of time
the appointee can no or failure of the
longer be extended a Commission
to
new
appointment, organize, there is no
inasmuch
as
the final decision, the
disapproval is a final President is free to
decision
in
the renew the ad-interim
exercise
of
the appointment.
Commi ion
checking power on the
appointment authority
of the President
POLITICAL LAW
Appointments By An Acting President (PHIL.
CONST., art. VII, § 14)
These shall remain effective unless revoked by the
elected President within 90 days from his
assumption or re-assumption of office.
The power of the succeeding President to revoke
appointments made by the Acting President refers
only to appointments in the Executive Department
(De Castro v. JBC, G.R. No. 191002, April 20,
2010).
Regular Appointments Requiring Consent of
Commission on Appointment (CA)
The following may be appointed by the president,
subject to approval by the Commission on
Appointments (CA):
(a) Heads of executive departments
(b) Ambassadors, consuls, and other public
ministers
(c) Officers of AFP from the rank of colonel or
naval captain
(d) Other officers whose appointment is
vested in him by the Constitution, such as:
a. Chairmen and members of the
COMELEC, COA, and CSC.
b. Regular members of the JBC.
c. The
Ombudsman
and
his
deputies.
d. Sectoral
representatives
in
Congress,
as
provided
in
Transitory Provisions (Sec. 16).
Appointments With Prior Recommendation or
Nomination By The JBC
Members of the SC and judges of the lower
courts; these appointments do not need
CA confirmation (PHIL. CONST., art. VIII, §
9).
Ombudsman and his Deputies (PHIL.
CONST., art. VIII, § 9).
Regular Appointments Without Need Of CA
Confirmation
All other officers whose appointments are not
otherwise provided for by law and those whom he
may be authorized by law to appoint do not require
CA confirmation. This includes the Chairman and
members of the Commission on Human Rights
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(CHR), whose appointments are provided for by
law, and NOT by the Constitution. (PHIL. CONST.,
Art. VII, Sec. 16)
Congress may, by law, vest in the President alone
or in the courts, or in the heads of departments,
agencies boards or commissions the appointment
of other officers lower in rank than those mentioned
above (PHIL. CONST., Art. VII, Sec 16)
However, Congress cannot, by law, require CA
confirmation of the appointment of other officers for
offices created subsequent to the 1987
Constitution e.g. NLRC Commissioners, Bangko
Sentral Governor (Calderon v. Carale, G.R. No.
91636, April 23, 1992).
(b)
(c)
PROCEDURE WHEN CA CONFIRMATION
NEEDED:
(a) Nomination by President
(b) Confirmation by CA
(c) Appointment by President
(d) Acceptance by appointee.
a. At any time before all four steps
have been complied with, the
President can withdraw the
nomination or appointment.
(d)
Procedure When No CA Confirmation Needed:
(a) Appointment
(b) Acceptance
Once appointee accepts, President can no longer
withdraw the appointment
Midnight Appointments
General Rule: Two (2) months immediately before
the next Presidential elections and up to the end of
his term, the President or Acting President shall not
make appointments. This is to prevent the practice
of making midnigh appoin men . (PHIL. CONST.,
art. VII, § 15).
Exception: Temporary appointments to executive
positions if continued vacancies will prejudice
public service or endanger public safety.
(a) Prohibition
does
not
extend
to
appointments in the Supreme Court. Had
the framers intended to extend the
(e)
prohibition to the appointment of Members
of the Supreme Court, they could have
explicitly done so. The prohibition is
confined to appointments in the Executive
Department. Existence of the JBC also
prevents possible abuses in appointment
(De Castro v JBC, G.R. No. 191002, April
20, 2010); overturned In re: Appointment of
Valenzuela, A.M. 98-5-01-SC, Nov. 9,
1998).
There is no law that prohibits local elective
officials from making appointments during
the last days of his or her tenure.
Prohibition only applies to appointments by
the President (De la Rama v. CA, G.R. No.
131136, Feb. 28, 2001).
If the President is not satisfied with the list
submitted by the JBC, he may ask for
another list. But once the appointment is
issued by the President and accepted by
the nominee, it needs no further
confirmation.
President may appoint SC Justice within
60 days prior to election. Article VII deals
entirely with the executive department
while Article VIII deals with the judiciary.
Had the framers intended to extend the 60day prohibition contained in Section 15,
Article VII to the appointment of Members
of the Supreme Court, they could have
explicitly done so. That such specification
was not done only reveals that the
prohibition against the President or Acting
President making appointments within two
months before the next presidential
elections and up to the end of the
Pre iden
or Acting Pre iden
term
does not refer to the Members of the
Supreme Court. The usage in Section 4
(1), Article VIII of the word shall
an
imperative, operating to impose a duty that
may be enforced
should not be
disregarded.
The framers did not need to extend the
prohibition against midnight appointments
to appointments in the Judiciary, because
the establishment of the JBC and
subjecting the nomination and screening of
candidates for judicial positions to the
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unhurried and deliberate prior process of
the JBC ensured that there would no
longer be midnight appointments to the
Judiciary. JBC intervention eliminates the
danger that appointments to the Judiciary
can be made for the purpose of buying
votes in a coming presidential election, or
of satisfying partisan considerations. The
creation of the JBC was precisely intended
to de-politicize the Judiciary by doing away
with the intervention of the Commission on
Appointments (De Castro v. JBC, G.R. No.
191002, April 20 2010).
Prohibition against Midnight Appointments
applicable to Presidential Appointments only
(LEONEN)
The prohibition on midnight appointments under
Article VII, Sec 15 only applies to presidential
appointments. It does not apply to appointments
made by local chief executives. Nevertheless, the
Civil Service Commission has the power to
promulgate rules and regulations to professionalize
the civil service. It may issue rules and regulations
prohibiting local chief executives from making
appointments during the last days of their tenure.
Appointments of local chief executives must
conform to these civil service rules and regulations
in order to be valid. (Provincial Government of
Aurora v Marco, G.R. No. 202331, April 22, 2015)
Power of Removal
General Rule: The express power of appointment
of the President has the corollary implied power of
removal. Hence, the President may remove
appointees.
Exception: Appointments requiring certain
methods for removal (e.g., Impeachment,
appointment of judges of inferior courts (PHIL.
CONST., art. VIII, § 11; Gonzales III vs. Office of the
President of the Philippines, G.R. No. 196231,
Sept. 4, 2012).
The succeeding President may not revoke
appointments to the Judiciary made by an Acting
President. Sec. 14, Art. VII refers only to
appointments in the Executive Department. It has
no application to appointments in the Judiciary
POLITICAL LAW
because temporary or acting appointments can
only undermine the judiciary due to their being
revocable at
ill Prior to their mandatory
retirement or resignation, judges of the first or
second level courts and the Justices of the third
level courts may only be removed for cause, but
the members of the Supreme Court may be
removed only by impeachment (De Castro v. JBC,
G.R. No. 191002, Apr. 20, 2010).
Disciplinary Powers
The power of the President to discipline officers
flows from the power to appoint the officer, and
NOT from the power of control.
While the President may remove from office those
who are not entitled to security of tenure, or those
officers with no set terms, such as Department
Heads, the officers, and employees entitled to
security of tenure cannot be summarily removed
from office.
3. POWER OF CONTROL AND
SUPERVISION
Power of Control
The power of an officer to alter, modify, or set aside
what a subordinate officer has done in the
performance of his duties, and to substitute the
judgment of the officer for that of his subordinate.
The Pre iden power of control is a self-executing
provision. The incumbent President is free to
amend, rescind and modify any political
agreements entered into by the previous
Presidents (Ocampo v. Enriquez, G.R. No.
225973, Nov. 8, 2016).
The appeal from the decision of a Department
Secretary to the President can be restricted due to
the Pre iden power of control. It may be limited
by executive order of the President, a law providing
for judicial review, and a rule of procedure
promulgated by the Supreme Court. (Angeles v.
Gaite, G.R. No. 165276, Nov. 25, 2009).
Power of Supervision
The power of a superior officer to ensure that the
laws are faithfully executed by subordinates.
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The power of supervision does not include the
power of control; but the power of control
necessarily includes the power of supervision.
The Pre iden
power over GOCCs comes not
from the Constitution but from statute. Hence, it
may similarly be taken away by statute.
For Administrative Proceedings, decisions of
Department Secretaries need not be appealed to
the President in order to comply with the
requirement of exhaustion of administrative
remedies.
The execution of laws is an OBLIGATION of the
President. He cannot suspend the operation of
laws.
a. Doctrine of Qualified Political Agency
QUALIFIED POLITICAL AGENCY - Acts of
department
heads,
etc.,
performed
and
promulgated in the regular course of business, are
presumptively acts of the President.
Exceptions:
If the acts are disapproved or reprobated by the
President. If the President is required to act in
person by law or by the Constitution (e.g. the power
to grant pardons).
Application to Cabinet Members and Executive
Secretary (LEONEN)
The doctrine of qualified political agency
acknowledges
the
multifarious
executive
responsibilities that demand a president's
attention, such that the delegation of control power
to his or her Cabinet becomes a necessity.
Unless the Constitution or law provides
otherwise, Cabinet members have the
president's imprimatur to exercise control over
the offices and departments under their
respective jurisdictions, which authority
nonetheless remains subject to the president's
disapproval or reversal. In a long line of
decisions, the Court upheld the notion that "the
power of the president to reorganize the National
Government may validly be delegated to his [or
POLITICAL LAW
her] cabinet members exercising control over a
particular executive depar men .
But the Court retains the distinction that the
doctrine remains limited to the President's
executive secretary and other Cabinet
secretaries. It does not extend to deputy executive
secretaries or assistant deputy secretaries.
Clearly, the president cannot be expected to
personally exercise his or her control powers all at
the same time. This entails the delegation of power
to his or her Cabinet members. (Philippine Institute
for Development Studies v. Commission on Audit,
GR. No. 212022, Aug. 20, 2019)
b. Executive Departments and Offices
The President may, by executive or administrative
order, direct the reorganization of government
entities under the Executive Department. Section
17, Article VII of the 1987 Constitution, clearly
states: The President shall have control of all
executive departments, bureaus and office . The
Administrative Code also grants the President the
power to reorganize the Office of the President in
recognition of the recurring need of every President
to reorganize his or her office o achieve simplicity,
economy and efficienc (Tondo Medical v. Court
of Appeals, G.R. No. 167324, July 17, 2007).
The President may transfer any agency under the
Office of the President to any other department or
agency, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and
efficiency (Anak Mindanao v. Executive Secretary,
G.R. No. 166052, Aug. 29, 2007).
The creation of the Truth Commission does not fall
within the Pre iden power to reorganize. It flows
from the faithful-execution clause of the
Constitution under Article VII, Section 17 thereof.
One of the recognized powers of the President is
the power to create ad hoc committees. This flows
from the need to ascertain facts and determine if
laws have been faithfully executed or guide the
President in performing his duties relative to the
execution and enforcement of laws. The Truth
Commission will not supplant the Ombudsman or
the Department of Justice or erode their respective
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powers. The investigative function of the
Commission will complement those of the two
offices (Biraogo v. The Philippine Truth
Commission of 2010 / Rep. Edcel C. Lagman, et.
al. v. Exec. Sec. Paquito N. Ochoa, Jr., et al., G.R.
No. 192935 & G.R. No. 193036, Dec. 7, 2010)
c. Local Government Units
The power of the president over local government
units is only of general supervision. He can
interfere with the actions of their executive heads
only if these are contrary to law.
The President exercises direct supervision over
autonomous regions, provinces, and independent
cities.
To facilitate the exercise of power of general
supervision of local government, the President may
merge administrative regions and transfer the
regional center to Koronadal City from Cotabato
City (Republic v. Bayao, G.R. No. 179492, June 5,
2013).
4. EMERGENCY POWERS
Congress is the repository of emergency powers.
But in times of war or other national emergency, it
may, by law, authorize the President, for a limited
period and subject to such restrictions as it may
prescribe, to exercise powers necessary and
proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof. (PHIL. CONST., art. VI, § 23(2);
IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000)
Conditions for the Exercise of the President of
Emergency Powers (David v. Macapagal-Arroyo,
G.R. No. 171396, May 3, 2006)
1. There must be a war or national
emergency;
2. There must be a law authorizing the
President to exercise emergency powers;
3. Exercise must be for a limited period;
4. Exercise must be necessary and proper to
carry out a declared national policy; and
5. Must be subject to restrictions that
Congress may provide.
POLITICAL LAW
The President could validly declare the existence
of a state of national emergency even in the
absence of a Congressional enactment. But the
exercise of emergency powers, such as the
taking over of privately owned public utility or
business affected with public interest, is a different
matter. This requires a delegation from Congress.
(Id.)
Article XII, Section 17 of the Constitution, which
states that, [i]n times of national emergency, when
the public interest so requires, the State may,
during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or
business affected with public in ere , is an aspect
of the emergency powers clause (i.e. PHIL. CONST.,
art. VI, § 23(2)). Whether or not the President may
exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. (Id.)
5. COMMANDER-IN-CHIEF POWERS
Extraordinary/Commander-in-Chief Powers
Differentiated
SUSPENDING THE
PRIVILEGE OF THE
CALLING OUT
WRIT OF HABEAS
POWERS
CORPUS/DECLARING
MARTIAL LAW
Grounds
May be resorted to May be exercised only
whenever it becomes when there is actual
necessary to prevent invasion or rebellion,
or suppress lawless and
public
safety
violence, invasion, or requires it
rebellion
Action by the legislative or judicial branch
The Court may nullify Congress may revoke
the exercise of such such proclamation or
power only when the suspension and the
President acts in a Court may review the
manner constituting sufficiency of the factual
grave
abuse
of basis thereof
discretion
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(Lagman v. Medialdea, G.R. No. 231658, July 4,
2017; IBP v. Zamora, G.R. No. 141284, Aug. 15,
2000)
Graduation of the Extraordinary Powers
The 1987 Constitution gives the President a
sequence of graduated power[s]. From the most to
the least benign, these are: the calling out power,
the power to suspend the privilege of the writ of
habeas corpus, and the power to declare martial
law. It must be stressed, however, that the
graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a
sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called
"graduation of powers" does not dictate or restrict
the manner by which the President decides which
power to choose.
The power to choose, initially, which among these
extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the
President.
It is thus beyond doubt that the power of judicial
review does not extend to calibrating the
President's
decision pertaining to which
extraordinary power to avail given a set of facts or
conditions. To do so would be tantamount to an
incursion into the exclusive domain of the
Executive and an infringement on the prerogative
that solely, at least initially, lies with the President.
(Lagman v. Medialdea, G.R. No. 231658, July 4,
2017)
a. Calling out Powers
As Commander-in-Chief of the Armed Forces,
whenever necessary, the President may call out
the Armed Forces to PREVENT or SUPPRESS:
(a) Lawless violence
(b) Invasion
(c) Rebellion
Among the three extraordinary powers, the calling
out power is the most benign and involves ordinary
police action. The power to call is fully discretionary
to the President; the only limitations being that he
acts within permissible constitutional boundaries or
POLITICAL LAW
in a manner not constituting grave abuse of
discretion. In fact, the actual use to which the
President puts the armed forces is not subject to
judicial review. (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)
The President's calling out power is in a different
category from the power to suspend the privilege
of the writ of habeas corpus and the power to
declare martial law. In other words, the President
may exercise the power to call out the Armed
Forces independently of the power to suspend the
privilege of the writ of habeas corpus and to
declare martial law, although, of course, it may
also be a prelude to a possible future exercise of
the latter powers. (Id.)
The factual necessity of calling out the armed
forces is something that is for the President to
decide. (IBP v. Zamora, G.R. No. 141284, Aug. 15,
2000)
Judicial inquiry can go no further than to satisfy the
Court not that the Pre iden decision is correct
but that the President did not act arbitrarily. Thus,
the standard laid down is not correctness, but
arbitrariness.
PP 1017 is constitutional insofar as it constitutes a
call by PGMA on the AFP to suppress lawless
violence, which pertains to a spectrum of conduct
that is manifestly subject to state regulation, and
not free speech.
PP 1017 is unconstitutional insofar as it grants
PGMA the authority to promulgate decree .
Legislative power is within the province of the
Legislature. She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence (David v. Gloria
Macapagal-Arroyo, G.R. No. 171396, May 3,
2006).
Gen. Order No. 5 is constitutional since it provides
a standard by which the AFP and the PNP should
implement PP 1017, that is, suppressing lawless
violence. However, considering that ac
of
errori m have not yet been defined and made
punishable by the Legislature, such portion of G.O.
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No. 5 is declared unconstitutional. (David v.
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)
Declaration of a State of Emergency
The declaration of a state of emergency is merely
a description of a situation that authorizes (the
President) to call out the Armed Forces to help the
police maintain law and order. It gives no new
power to her, or to the military, or to the police.
Certainly, it does not authorize warrantless arrests
or control of media (David v. Ermita, G.R. No.
171409, May 3, 2006).
Emergency Powers v. Calling Out Powers
The presidential proclamation of a state of
emergency is NOT sufficient to allow the President
to take over any public utility. Since it is an aspect
of emergency powers in accordance with § 23 (2),
Art. VI of the Constitution, there must be a law
delegating such power to the President (David v.
Macagapal Arroyo, G.R. No. 171396, May 3,
2006).
b. Declaration of Martial Law and
Suspension of the Privilege of the Writ of
Habeas Corpus; Extension
Besides his calling out powers, the President may
also:
(a) Suspend the privilege of the writ of habeas
corpus
(b) Proclaim a state of martial law
A state of martial law is peculiar because the
President, at such a time, exercises police power,
which is normally a function of the Legislature. In
particular, the President exercises police power,
with the mili ar
assistance, to ensure public
safety and in place of government agencies which
for the time being are unable to cope with the
condition in a locality, which remains under the
control of the State. (Lagman v. Medialdea, G.R.
No. 231658, July 4, 2017)
Grounds For The Suspension Of The Privilege
Of The Writ Of Habeas Corpus And Declaration
Of Martial Law
1. Actual rebellion or invasion (not imminent)
2. Public safety requires it
POLITICAL LAW
Checks and Balances to Limit the Exercise of
the
Martial
Law
and
Suspension
Powers/Safeguards against Abuse (Lagman v.
Pimentel III, G.R. No. 235935, Feb. 6, 2018)
1. The President may declare martial law or
suspend of the privilege of the writ of the
privilege of habeas corpus only when there
is an invasion or rebellion and public safety
requires such declaration or suspension.
2. The
President's
proclamation
or
suspension shall be for a period not
exceeding 60 days.
3. Within 48 hours from the proclamation or
suspension, the President must submit a
Report in person or in writing to Congress.
4. The Congress, voting jointly and by a vote
of at least a majority of all its Members, can
revoke the proclamation or suspension.
5. The President cannot set aside the
Congress' revocation of his proclamation
or suspension.
6. The President cannot, by himself, extend
his proclamation or suspension. He should
ask the Congress' approval.
7. Upon such initiative or request from the
President, the Congress, voting jointly and
by a vote of at least a majority of all its
Members, can extend the proclamation or
suspension for such period as it may
determine.
8. The extension of the proclamation or
suspension shall only be approved when
the invasion or rebellion persists and public
safety requires it.
9. The Supreme Court may review the
sufficiency of the factual basis of the
proclamation or suspension, or the
extension thereof, in an appropriate
proceeding filed by any citizen.
10. The Supreme Court must promulgate its
decision within 30 days from the filing of
the appropriate proceeding
11. Martial law does not suspend the operation
of the Constitution. Accordingly, the Bill of
Rights remains effective under a state of
martial law. Its implementers must adhere
to the principle that civilian authority is
supreme over the military and the armed
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forces is the protector of the people. They
must also abide by the State's policy to
value the dignity of every human person
and guarantee full respect for human
rights.
12. Martial law does not supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment
of jurisdiction on military courts and
agencies over civilians where civil courts
are able to function.
13. The suspension of the privilege of the writ
applies only to persons judicially charged
for rebellion or offenses inherent in or
directly connected with invasion.
14. Finally, during the suspension of the
privilege of the writ, any person thus
arrested or detained should be judicially
charged within three days, otherwise he
should be released.
Territorial Coverage
The Constitution grants to the President the
discretion to determine the territorial coverage of
martial law and the suspension of the privilege of
the writ of habeas corpus. He may put the entire
Philippines or only a part thereof under martial law.
(Lagman v. Medialdea, G.R. No. 231658, July 4,
2017)
Limiting the proclamation and/or suspension to the
place where there is actual rebellion would not only
defeat the purpose of declaring martial law, it will
make the exercise thereof ineffective and useless.
(e.g. martial law over Mindanao as a whole and not
merely Marawi where actual rebellion transpired)
It is difficult, if not impossible, to fix the
territorial scope of martial law in direct
proportion to the "range" of actual rebellion
and public safety simply because rebellion
and public safety have no fixed physical
dimensions.
Moreover, the President's duty to maintain
peace and public safety is not limited only
to the place where there is actual rebellion;
it extends to other areas where the present
hostilities are in danger of spilling over.
(Id.)
POLITICAL LAW
Congressional Check on the Exercise of Martial
Law and Suspension Powers
1. The power to review the President's
proclamation of martial law or suspension
of the privilege of the writ of habeas
corpus, and to revoke such proclamation
or suspension.
2. The power to approve any extension of
the proclamation or suspension, upon the
President's initiative, for such period as it
may determine, if the invasion or rebellion
persists and public safety requires it.
(Lagman v. Pimentel III, G.R. No. 235935,
Feb. 6, 2018)
Duty to Report to Congress
Section 18, Article VII, requires the President to
report his actions to Congress, in person or in
writing, within 48 hours of such proclamation or
suspension. In turn, the Congress is required to
convene without need of a call within 24 hours
following the Presidents proclamation or
suspension. Clearly, the Constitution calls for quick
action on the part of the Congress. Whatever form
that action takes, therefore, should give the Court
sufficient time to fulfill its own mandate to review
the factual basis of the proclamation or suspension
within 30 days of its issuance. (Fortun v. Arroyo,
G.R. No. 190293, March 20, 2012)
As to what facts must be stated in the proclamation
and the written Report is up to the President. As
Commander-in-Chief, he has sole discretion to
determine what to include and what not to include
in the proclamation and the written Report taking
into account the urgency of the situation as well as
national security. (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)
Supreme Court Review
(a) In an appropriate proceeding filed by any
citizen
(b) The SC may review the sufficiency of the
factual basis of the proclamation or
suspension, or the extension thereof
(c) Its decision must be promulgated within 30
days from filing
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Parameters of the Court for Determining the
Sufficiency of the Factual Basis for the
Declaration of Martial Law and/or the
Suspension of the Privilege of the Writ of
Habeas Corpus (Sufficiency of the Factual
Basis Test)
1. Actual rebellion or invasion
2. Public safety requires it
3. There is probable cause for the President
to believe that there is actual rebellion or
invasion. (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)
The scope of the Supreme Co r power to review
the declaration of Martial Law or suspension of the
writ of habeas corpus is limited to a determination
of the sufficiency (not accuracy) of the factual
basis of such declaration or suspension. (Id.)
The nature of the Supreme Co r jurisdiction to
determine the sufficiency of the factual basis for the
declaration of martial law and the suspension of the
privilege of the writ of habeas corpus by the
President is sui generis and granted by Sec. 18,
Art. VII of the Constitution. It does not stem from
Sec. 1 or 5 of Art. VIII. (Id.)
Extension of Martial Law
When approved by the Congress, the extension of
the proclamation or suspension, as described
during the deliberations on the 1987 Constitution,
becomes a "joint executive and legislative act"
or a "collective judgment" between the President
and the Congress. (Lagman v. Medialdea, G.R. No.
243522, Feb. 19, 2019)
The Court need not make an independent
determination of the factual basis for the
proclamation or extension of martial law and the
suspension of the privilege of the writ of habeas
corpus. The Court is not a fact-finding body
required to make a determination of the
correctness of the factual basis for the declaration
or extension of martial law and suspension of the
writ of habeas corpus. It would be impossible for
the Court to go on the ground to conduct an
independent investigation or factual inquiry, since
it is not equipped with resources comparable to that
POLITICAL LAW
of the Commander-in-Chief to ably and properly
assess the ground conditions. (Id.)
In determining the sufficiency of the factual basis
for the extension of martial law, the Court needs
only to assess and evaluate the written reports of
the government agencies tasked in enforcing and
implementing martial law in Mindanao. (Id.)
The test of sufficiency is not accuracy nor
preciseness but reasonableness of the factual
basis adopted by the Executive in ascertaining the
existence of rebellion and the necessity to quell it.
(Id.)
Manner of Approval by Congress of Extension
is a Political Question
The Court cannot review the rules promulgated by
Congress (in extending martial law or the
suspension of the writ of habeas corpus) in the
absence of any constitutional violation. Legislative
rules, unlike statutory laws, do not have the
imprints of permanence and obligatoriness during
their effectivity. In fact, they may be revoked,
modified or waived at the pleasure of the body
adopting them. (Lagman v. Pimentel III, G.R. No.
235935, Feb. 6, 2018; Lagman v. Medialdea, G.R.
No. 243522, Feb. 19, 2019)
Judicial Power to Review vs. Congressional
Power to Revoke Martial Law and Suspension
of the Writ of Habeas Corpus
JUDICIAL POWER
CONGRESSIONAL
TO REVIEW
POWER TO
REVOKE
Court can only refer Congress may take into
to
information consideration:
available
to
the
(a) Data available
President prior to or
to the President
at the time of the
prior to or at the
declaration
time of the
declaration and
Court is not allowed
(b) Events
to undertake an
supervening the
independent
declaration
investigation beyond
the pleadings
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Does not look into
the
absolute
correctness of the
factual basis
Can probe further and
deeper, can delve into
accuracy of facts
presented before it
Passive
Initiated by filing of a
pe i ion
in
an
appropriate
proceeding
b
a
citizen
Automatic
May be activated by
Congress itself at any
time
after
the
proclamation
or
suspension was made
(Lagman v. Medialdea, G.R. No. 231658, July 4,
2017)
The Court can simultaneously exercise its power of
review with, and independently from, the power to
revoke by Congress. Corollary, any perceived
inaction or default on the part of Congress does not
deprive or deny the Court of its power to review.
(Id.)
Ways to Lift the Proclamation of Martial Law
and/or Suspension of the Privilege:
(a) Lifting by the President himself;
(b) Revocation by Congress;
(c) Nullification by the Supreme Court; and
(d) By operation of law after 60 days (PHIL.
CONST. art. VII, § 18)
6. EXECUTIVE CLEMENCY
The matter of executive clemency is non-delegable
power and must be exercised by the President
personally (Villena v. Secretary of the Interior, G.R.
No. L-46570, April 21, 1939).
The power exists as an instrument for correcting
the infirmities in administration of justice and for
mitigating whenever a strict application of the
provisions of the law will result in undue harshness.
(Bernas, 1987 Philippine Constitution: A
Commentary, 924, 2009).
in
cases
The exercise of the pardoning power is
discretionary in the President and may not be
interfered with by Congress or the Court, except
only when it exceeds the limits provided for by the
Constitution (Risos-Vidal v. COMELEC, G.R. No.
206666, Jan. 21, 2015).
(b) For violations of election laws, rules, and
regulations
without
the
favorable
recommendation of the COMELEC in
cases of civil or legislative contempt
(c) Granted only after conviction by final
judgment. (People. v. Salle, G.R. No.
103567, Dec. 4, 1995)
As to effect:
(a) Does not absolve civil liabilities for an
offense
(b) Does not restore public offices already
forfeited, although eligibility for the same
may be restored (Monsanto v. Factoran,
G.R. No. 78239, Feb. 9, 1989).
b. Forms of executive Clemency
a. Nature and Limitation
Limitations
Cannot be granted:
(a) Before
conviction,
impeachment
The President can pardon criminal offenses after
an impeachment proceeding such as what
happened in 2007 when President Arroyo
pardoned former President Estrada after having
been convicted by the Sandiganbayan of plunder.
of
PARDON An act of grace, proceeding from the
power entrusted of the laws, which exempts the
individual on whom it is bestowed, from the
punishment the law inflicts for a crime he has
committed (United States v. Wilson, 503 U.S. 329,
1992). It is either conditional or plenary.
AMNESTY - An act of grace concurred in by
Congress, usually extended to groups of persons
who commit political offenses, which puts into
oblivion the offense itself. The President alone
cannot grant amnesty for it needs the concurrence
by a majority of all the members of Congress.
When a person applies for amnesty, he must admit
his guilt of the offense that is subject to such
amnesty. If his application is denied, he can be
convicted based on this admission of guilt.
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REPRIEVE
postpones the execution of an
offense to a day certain (People v. Vera, G.R. No.
L-45685, Dec. 22, 1937).
REMISSION OF FINES AND FORFEITURES
prevents the collection of fines or the confiscation
of forfeited property but it cannot have the effect of
returning the property which has been vested in 3rd
parties or money already in the public treasury
(Bernas, 1987 Philippine Constitution: A
Commentary, 933, 2009).
COMMUTATION
a remission of a part of the
punishment; it is a substitution of a lesser penalty
for the one originally imposed (People v. Vera, G.R.
No. L- 45685, Dec. 22, 1937).
Amnesty v. Pardon
AMNESTY
Political Offenses
To a class of persons
Need not be accepted
Requires concurrence
of majority of all
members of Congress
A public act; subject to
judicial notice
Extinguishes
offense
the
May be granted before
or after conviction
PARDON
Ordinary Offenses
To individuals
Must be accepted
No
need
for
Congressional
Concurrence
Private
act
of
President; it must be
proved
Only penalties are
extinguished; May or
may
not
restore
political
rights;
Absolute
pardon
restores; Conditional,
does not.
Civil indemnity is not
extinguished
Only granted after
conviction by final
judgment
EXECUTIVE CLEMENCY IN ADMINISTRATIVE
CASES:
The power to grant clemency includes cases
involving administrative penalties. Where a
conditional pardon is granted, the determination of
whether it has been violated rests with the
President.
The President can extend it to administrative cases
but only in the Executive Branch, not in the Judicial
or Legislative Branches of government (Llamas v.
Orbos, G.R. No. 99031, Oct. 15, 1991).
TAX AMNESTY: General pardon to impose
penalties on persons guilty of evasion or violation
of revenue or tax law (Republic v. IAC, G.R. No.
69344, Apr. 26, 1991).
7. DIPLOMATIC POWER
Power to Contract of Guarantee Foreign Loans
(PHIL. CONST., art. VII, § 20)
The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines
with the prior concurrence of the Monetary Board;
and subject to such limitations as may be provided
by law
The Monetary Board shall, within 30 days from the
end of every quarter of the calendar year, submit to
Congress a complete report on loans to be
contracted or guaranteed by the government of
GOCCs the would have the effect of increasing
foreign debts.
Principle of Transformation of International
Law (PHIL. CONST., art. VII, § 21)
No treaty or international agreement shall be valid
and effective unless concurred in by at least 2/3 of
ALL the Members of the Senate
TREATIES
International
agreements involving
political
issues
or
changes of national
policy
and
those
involving international
arrangements
of
permanent character
EXECUTIVE
AGREEMENTS
International
agreements
embodying
adjustments of detail
carrying
out
wellestablished national
policies and traditions
and those involving
arrangements of more
or less temporary
nature
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Power to enter into foreign relations includes:
(a) The power to appoint ambassadors, other
public ministers, and consuls
(b) The power to receive ambassadors and
other public ministers accredited to the
Philippines
(c) The power to contract and guarantee
foreign loans on behalf of the Republic
(d) The power to deport aliens this power is
vested in the President by virtue of his
office, subject only to restrictions as may
be provided by legislation as regards
grounds for deportation. In the absence of
any legislative restriction to authority, the
President may exercise this power
(e) The power to negotiate treaties and other
international agreements. However, such
treaty or international agreement shall be
transmitted to the Senate, with the
following options:
a. Approve it by 2/3 majority vote
b. Disapprove it outrights
c. Approve it conditionally, with
suggested amendments. If renegotiated and the Sena e
suggestions are incorporated, the
treaty goes into effect without
need of further Senate approval.
NOTE: While a treaty is re-negotiated, there is yet
no treaty
EXECUTIVE AGREEMENTS
Executive agreements are concluded:
(a) to adjust the details of a treaty, e.g., EDCA
as to VFA;
(b) pursuant to or upon confirmation by an act
of the Legislature; or
(c) in the exercise of the President's
independent
powers
under
the
Constitution.
The President may enter into an executive
agreement on foreign military bases, troops or
facilities only if the executive agreement is not the
instrument that allows the presence of foreign
military bases, troops or facilities; or merely aims to
implement an existing law or treaty. (Saguisag v.
Exec. Sec., G.R. No. 212426, Jan. 12, 2016)
POLITICAL LAW
Although municipal law makes a distinction
between international agreements and executive
agreements, with the former requiring Senate
approval and the latter not needing the same,
under international law, there is no such distinction.
The President cannot, by executive agreement,
undertake an obligation that indirectly circumvents
a legal prohibition.
The President alone without the concurrence of the
Senate abrogated a treaty. Assume that the other
country party to the treaty is agreeable to the
abrogation provided it complies with the Philippine
Constitution. If a case involving the validity of the
treaty abrogation is brought to the SC, it should
dismiss the case. The jurisdiction of the SC (other
lower courts) over a treaty is only with respect to
questions of its constitutionality of validity. It does
not pertain to the termination/abrogation of a treaty
(Gonzales v. Hechanova, G.R. No. L-21897, Oct.
22, 1963).
Treaty v. Executive Agreement
TREATY
EXECUTIVE
AGREEMENT
Involves
political Involves
details
issues, national policy carrying out national
policy
International
More
or
less
agreements
of
a temporary in character
permanent kind
Must be ratified
No need to be ratified
Rules In Case Of Conflict Between Treaty And
Municipal Law, Depending On Venue
Philippine court: Provided both are self-executing,
the later enactment will prevail, be it treaty or law,
as it is the latest expression of the will of the State.
International tribunal: Treaty will always prevail.
A State cannot plead its municipal law to justify
noncompliance with an international obligation.
Exception: Vienna Convention on Law of Treaties
Art. 46.
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Constitutional violation was:
(a) Manifest
Objectively evident to any
State conducting itself in the matter in
accordance with normal practice and in
good faith
(b) Concerned a rule of its international law of
fundamental importance
An
c a
of
is a record of a routine
agreement that has many similarities with a private
law contract. The agreement consists of the
exchange of two documents, each of the parties
being in possession of the one signed by the
representative of the other. Under the usual
procedure, the accepting State repeats the text of
the offering State to record its assent. An exchange
of notes is considered a form of an executive
agreement, which becomes binding through
executive action without the need of a vote by the
Senate or Congress (Abaya vs. Edbane, G.R. No.
167919, Feb. 14, 2007).
The Exchange of Notes between Secretary
Romulo and the US Ambassador embodying a No
Surrender Agreemen regarding citizens arrested
under the Rome Treaty is valid. An exchange of
Notes is equivalent to an executive agreement
and it is a valid form of international agreement.
The categorization of agreements in Eastern Sea
Trading, is not cast in stone. Neither a hard and fast
rule on whether Senate concurrence is needed for
executive agreements. (Bayan Muna v. Secretary
Romulo, G.R. No. 159618, Feb. 1, 2011).
8. POWERS RELATIVE TO APPROPRIATION
MEASURES
ITEM VETO POWER on the basis of:
Doctrine of Inappropriate Provisions - A
provision that is constitutionally inappropriate for
an appropriation bill may be subject to veto even if
it is not an appropriation or revenue i em.
Executive Impoundment - Refusal of the
President to spend funds already allocated by
Congress for a specific purpose. It is, in effect, an
impo ndmen
of the law allocating such
expenditure of funds.
POLITICAL LAW
Budget
The Executive Branch proposes a
budget to Congress, which the latter considers in
drafting appropriation laws.
Power to Augment
No law shall be passed authorizing any transfer of
appropriations; however, /the President, /the
President of the Senate, /the Speaker of the House
of Representatives, /the Chief Justice of the
Supreme Court, and /the heads of Constitutional
Commissions may, by law, be authorized to
augment any item in the general appropriations law
for their respective offices from savings in other
items of their respective appropriations. (PHIL.
CONST., Art. VI, § 25(5))
What are the requisites for a valid transfer of
appropriation?
There are two essential requisites in order that a
transfer of appropriation with the corresponding
funds may legally be effected. First, there must be
savings in the programmed appropriation of the
transferring agency. Second, there must be an
existing item, project or activity with an
appropriation in the receiving agency to which the
savings will be transferred. (Sanchez v. COA, 552
SCRA 471)
Actual savings is a sine qua non to a valid transfer
of funds from one government agency to
another. The ord ac al deno e ha ome hing
is real or substantial, or exists presently in fact as
opposed to something which is merely theoretical,
possible, potential or hypothetical. (Sanchez v.
COA, 552 SCRA 471)
See page 60, Part V(F) for more details on item
veto.
9. DELEGATED POWERS
General Rule: Legislative power is non-delegable.
Exceptions (pertinent to the President):
The Congress may, by law, authorize the
President to fix within specified limits, and
subject to such limitations and restrictions
as it may impose, tariff rates, import and
export quotas, tonnage and wharfage
dues, and other duties or imposts within
the framework of the national development
program of the Government. (PHIL.
CONST., art. VI, § 28(2))
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In times of war or other national
emergency, the Congress may, by law,
authorize the President, for a limited period
and subject to such restrictions as it may
prescribe, to exercise powers necessary
and proper to carry out a declared national
policy. Unless sooner withdrawn by
resolution of the Congress, such powers
shall cease upon the next adjournment
thereof. (PHIL. CONST., art. VI, § 23(2))
Malampaya and Presidential Social Fund
Violates the Non-Delegability of Legislative
Power
Malampaya fund - The phrase "and for such other
purposes as may be hereafter directed by the
President" under Section 8 of PD 910 constitutes
an undue delegation of legislative power insofar as
it does not lay down a sufficient standard to
adequately determine the limits of the Pre iden
authority with respect to the purpose for which the
Malampaya Funds may be used. (Belgica v. Hon.
Ochoa, G.R. No. 208566, Nov. 19, 2013)
Presidential Social Fund - "to finance the priority
infrastructure development projects" under Section
12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, for both failing
the sufficient standard test in violation of the
principle of non-delegability of legislative power as
it gives the President the unlimited discretion to
determine which projects are considered priori .
(Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19,
2013)
10. RESIDUAL POWERS
The President shall exercise such other powers
and functions vested in the President which are
provided for under the laws and which are not
specifically enumerated above, or which are not
delegated by the President in accordance with law.
The textual justification for this under the
Constitution is Article VII, Section 17 to ensure
that the laws are faithfully executed called the
Faithful Execution Clause.
The power involved is the President's residual
power to protect the general welfare of the people.
It is founded on the duty of the President, as
POLITICAL LAW
steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President
but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation
demand. It is a power borne by the President's duty
to preserve and defend the Constitution. It also
may be viewed as a power implicit in the
President's duty to take care that the laws are
faithfully executed (Marcos v Manglapus, G. R. No.
88211, Sept. 15, 1989).
11. VETO POWERS
The President must communicate his decision to
veto within 30 days from the date of receipt thereof.
If he fails to do so, the bill shall become law as if he
signed it. This rule eliminates the possibility of a
pocke e o whereby the President simply refuses
to act on the bill.
In exercising the veto power, the bill is rejected and
returned with his objections to the House from
which it originated. The House shall enter the
objections in the journal and proceed to reconsider
it. (See earlier comment)
Pocket Veto vs. Item Veto
POCKET VETO
ITEM VETO
When the president is Power of a president to
considered to have nullify
or
cancel
rejected
a
bull specific provisions of a
submitted to him for his bill, usually a budget
approval
when appropriations
bill,
Congress
adjourns without vetoing the
during the period given entire
legislative
to the president to package
approve or reject a bill
Congressional pork barrel violates the
P
power to item-veto
The President cannot exercise his item-veto power
because the purpose of the lump-sum
discretionary budget is still uncertain. Furthermore,
it cannot be considered an item because an item is
defined in the field of appropriations as the
particulars, details, distinct and severable parts of
the appropriation or of thevbill. (Belgica v. Hon.
Ochoa, G.R. No. 208566, Nov. 19, 2013)
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See page 60, Part V(F) for more details on item
veto.
Non-Delegable Powers of the President
Commander-in-Chief powers;
Appointment and removal power;
The power to grant pardons and reprieves;
The authority to receive ambassadors and
other public officials; and
The power to negotiate treaties. (Neri v.
Senate, G.R. No.180643, Mar. 25, 2008)
Other Powers
(a) Borrowing Power: The President may
contract or guarantee foreign loans on
behalf of the Republic with the
concurrence of the Monetary Board,
subject to such limitations as may be
provided by law.
(b) Deportation Power
(c) Power to Receive Ambassadors and
other public ministers duly accredited
to the Philippines
(d) Informing Power: The President shall
address Congress at the opening of its
regular session. He may also appear
before it at any time.
(e) Call Congress to a special session
(f) Power to Classify and Reclassify lands
D. RULES OF SUCCESSION
Manner Of Election (PHIL. CONST., art. VII, § 4)
The President and Vice-President shall be elected
by the direct vote of the people.
Election returns for President and Vice-President,
duly certified by the Board of Canvassers of each
province or city, shall be transmitted to Congress,
directed to the Senate President.
Upon receipt of the certificates of canvass, the
Senate President shall, not later than 30 days after
the day of the election, open all the certificates in
the presence of both houses of Congress,
assembled in joint public session.
POLITICAL LAW
The Congress, after determining the authenticity
and due execution of the certificates, shall canvass
the votes.
The person having the highest number of votes
shall be proclaimed elected.
In case of a tie between 2 or more candidates, one
shall be chosen by a majority of ALL the members
of both Houses, voting separately.
The Supreme Court en banc shall act as the sole
judge over all contests relating to the election,
returns, and qualifications of the President or VicePresident and may promulgate its rules for the
purpose.
Congress may delegate counting to a committee
provided it approves it as a body (considered as a
non-legislative function of Congress).
Proclamation of President-Elect & VP-Elect is the
function of Congress not the COMELEC .
Limitations
(a) Salaries and emoluments of the President
and Vice-President shall be determined by
law
(b) Shall not be decreased during the tenure
of the President and the Vice-President
(c) Increases take effect only after the
expiration of the term of the incumbent
during which the increase was approved.
(d) No other emolument from the government
or any other source during their tenure may
be received.
Succession of President-Elect and VicePresident Elect at the Start of the Term (PHIL.
CONST., art. VII, § 7)
VACANCY
SUCCESSOR
President-elect fails to VP-elect will be Acting
qualify or to be chosen President
until
a
President
is
qualified/chosen
President-elect dies or VP
becomes
permanently disabled
President
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Both President and
VP-Elect
are
not
chosen, or do not
qualify, or both die, or
both
become
permanently disabled
Death,
permanent
disability, or inability of
Senate President and
Speaker of the house
as Acting President
Senate President, or in
case of his inability,
Speaker of the House
shall act as President
until a President or a
VP shall have been
chosen and qualified.
Congress
shall
determine, by law, who
will be the Acting
President
until
a
President or VP shall
have qualified.
Succession of President and Vice-President
During Mid-Term (PHIL. CONST., art. VII, § 8)
VACANCY
SUCCESSOR
President
VP
becomes
dies/permanently
President
for
the
disabled/impeached or unexpired term
resigns
Both President and VP
die/
permanently
disabled/ impeached
or resign
Death,
permanent
disability, or inability of
Senate President and
Speaker of the house
as Acting President
Senate President, or in
case of his inability,
Speaker of the House
shall act as president
until the President or
VP shall have been
elected and qualified.
Congress
shall
determine, by law, who
will be the Acting
President
until
a
President or VP shall
have been elected and
qualified, subject to
the same restrictions
of
powers
and
disqualifications as the
Acting President
Vacancy in the Office of the Vice-President
(PHIL. CONST., art. VII, § 9)
Procedure To Fill Up Vacancy
President will nominate new VP from among the
members of either House of Congress.
POLITICAL LAW
Nominee shall assume office upon confirmation by
majority vote of ALL members of both Houses,
voting separately. (In effect, nominee forfeits his
seat in Congress.)
Election of President and Vice-President after
vacancy (PHIL. CONST., art. VII, § 10)
Procedure
Congress shall convene 3 days after the vacancy
in the offices of both the President and the VP,
without need of a call. The convening of Congress
cannot be suspended.
Within 7 days after convening, Congress shall
enact a law calling for a special election to elect a
President and a VP. The special election cannot be
postponed.
The requirement of three readings on separate
days under Sec. 26(2), Art VI shall not apply to a
bill calling for a special election. The law shall be
deemed enacted upon its approval on third
reading.
The special election shall be held within 45-60 days
from the time of the enactment of the law.
Limitation: No special election shall be called if the
vacancy occurs within 18 months before the date
of the next presidential election.
Temporary Disability of the President to
discharge his duties (PHIL. CONST. art. VII, Sec.
11) may be raised in either of two ways:
(a) By the President himself, when he sends a
written declaration to the Senate President
and the Speaker of the House. In this case,
the Vice-President will be Acting President
until the President transmits a written
declaration to the contrary.
(b) When a majority of all Cabinet members
transmit to the Senate President and the
Speaker of the House their written
declaration. The VP will immediately
assume the powers and duties of the office
as Acting President.
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Scenarios After Disability is Relayed in the
Congress:
If the President transmits a written declaration that
he is not disabled, he reassumes his position.
If within 5 days after the President re-assumes his
position, the majority of the Cabinet transmits their
written declaration to the contrary, Congress shall
decide the issue. In this event, Congress shall
convene within 48 hours if it is not in session,
without heed of a call
Within 10 days after Congress is required to
assemble, or 12 days if Congress is not in session,
a 2/3 majority of both Houses, voting separately, is
needed to find the President temporarily disabled,
in which case, the VP will be Acting President.
Presidential Illness (Sec. 12)
General Rules:
If the President is seriously ill, the public must be
informed thereof.
During such illness, the following shall not be
denied access to the President:
(a) National Security Adviser
(b) Secretary of Foreign Affairs
(c) Chief of Staff of the AFP
- end of topic
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JUDICIAL
DEPARTMENT
Political Law
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POLITICAL LAW
VII. JUDICIAL DEPARTMENT
A. CONCEPTS
TOPIC OUTLINE UNDER THE SYLLABUS:
1. JUDICIAL POWER
VII. JUDICIAL DEPARTMENT
A. CONCEPTS
1. Judicial power
2. Judicial review
a. Requisites
b. Operative fact doctrine
c. Political question doctrine
B. JUDICIAL INDEPENDENCE AND
AUTONOMY
C. APPOINTMENTS TO THE JUDICIARY
1. Qualifications of members of the
judiciary
2. Judicial and Bar council
a. Composition
b. Powers
D. THE SUPREME COURT
1. Composition
2. Powers and functions
Judicial Power
The authority to settle justiciable controversies or
disputes involving rights that are enforceable and
demandable before the courts of justice or the
redress of wrongs for violations of such rights and
to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the government. (Lopez v.
Roxas, G.R. No. L-25716, July 28, 1966).
Where Vested
Vested in the Supreme Court and such lower
courts as may be established by law. (PHIL.
CONST., art. VIII, § 1.)
Hence, they may neither attempt to assume or be
compelled to perform non-judicial functions. They
may not be charged with administrative functions,
except when reasonably incidental to the fulfillment
of their duties (Meralco v. Pasay Transportation
Co., G.R. No. L-37878, Nov. 25, 1932).
Judicial Power includes the duty of the courts:
(PHIL. CONST., art. VIII, § 1.)
To settle actual controversies involving
rights which are legally demandable and
enforceable;
To determine whether or not there has
been a grave abuse of discretion
amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality
of the government.
Necessity of Applicable Law
Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that
there be a law that give rise to some specific rights
of persons or property under which adverse claims
to such rights are made, and the controversy
ensuing therefrom is brought, in turn, before the
tribunal, board or officer clothed with power and
authority to determine what that law is and
thereupon adjudicate the respective rights of the
contending parties. (Santiago Jr. v. Bautista, G.R.
No. L-25024, March 30, 1970).
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Thus, an award of honors to a student by a board
of teachers may not be reversed by a court where
the awards are governed by no applicable law. (Id)
The court has no authority to entertain an action for
judicial declaration of citizenship because there
was no law authorizing such proceeding (Channie
Tan v. Republic, G.R. No. L-14159, April 18, 1960).
Courts cannot reverse the award of a board of
judges in an oratorical contest (Felipe v. Leuterio,
G.R. No. L-4606, May 30, 1952).
Jurisdiction
The power to hear and decide a case.
Who Defines: Congress shall have the
power to define, prescribe and apportion
the jurisdiction of the various courts, but
may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Sec.
5, Art. VIII [PHIL. CONST., art. VIII, § 2.],
No law shall be passed increasing the
appellate jurisdiction of the Supreme Court
as provided in the Constitution without its
advice and concurrence (PHIL. CONST., art.
VI, § 30.)
Scope of Jurisdiction
The power to control the execution of its decision
is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction, for out
Constitution vests the entirety of judicial power in
one Supreme Court and in such lower courts as
may be established by law. (Echegaray v. SOJ,
G.R. No. 132601, Jan. 19, 1999)
Limitations of Judicial Power
1. Political Questions: A question, the
resolution of which has been vested by the
Constitution exclusively In the people, in
the exercise of their sovereign capacity, or
In which full discretionary authority has
been delegated to a co-equal branch of the
Government (Tanada v. Cuenco, G.R. No.
L-10520, Feb. 28, 1957).
2. Separation of Powers: The Supreme
Court and its members should not and
cannot be required to exercise any power
or to perform any trust or to assume any
duty not pertaining to or connected with the
administering of judicial functions. (Manila
POLITICAL LAW
Electric Co. v Pasay Transportation, G.R.
No. 37878, Nov. 25, 1932)
3. Not the function of the judiciary to give
advisory opinion: The function of the
courts is to determine controversies
between litigants. They do not give
advisory opinions. (Director of Prisons v
Ang Cho Kio, G.R. No. 30001, June 23,
1970)
Expanded Jurisdiction and Authority of the
Supreme Court
Art. VIII, Sec.1, par. 2, of the Constitution expanded
the power, authority and jurisdiction of the courts of
justice, particularly the Supreme Court, to
determine whether any branch of the government
has committed grave abuse of discretion
amounting to lack or excess of jurisdiction.
Under this expanded jurisdiction conferred to the
Supreme Court, the political question doctrine is no
longer the insurmountable obstacle to the exercise
of judicial power or the impenetrable shield that
protects executive and legislative actions from
judicial inquiry or review (Oposa v. Factoran, Jr.
G.R. No. 101083, July 30, 1993)
2. JUDICIAL REVIEW
a. Requisites
Judicial Review
The power of the Supreme Court to
declare a law, treaty, ordinance, etc.
unconstitutional (PHIL. CONST., art. VIII, §
4(2).)
Lower courts may also exercise the power
of judicial review, subject to the appellate
jurisdiction of the SC. (PHIL. CONST., art.
VIII, § 5(2).)
Only Supreme Court decisions set
precedents. As thus, only SC decisions are
binding on all.
Requisites of Judicial Review: (EARLS)
The question of constitutionality must be
raised in the first instance, or at the Earliest
opportunity.
The question involved must be Ripe for
adjudication,
e.g.
the
challenged
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government act must have had an adverse
effect on the person challenging it.
An Actual case calling for the exercise of
judicial power.
Resolution of the issue of constitutionality
is unavoidable or is the very Lis mota of the
case.
The person challenging the governmental
act must have S anding (Locus Standi)
Exception: The Court can waive the procedural
rule on standing in cases that raise issues of
transcendental importance.
Functions of Judicial Review
1. Checking
invalidating a law or
executive act that is found to be contrary to
the Constitution
2. Legitimating
upholding the validity of
the law that results from a mere dismissal
of a case challenging the validity of the law
3. Symbolic to educate the bench and bar
as to the controlling principles and
concepts on matters of grave public
importance for the guidance of and
restraint upon the future (Salonga v. Cruz
Pa o, G.R. No. 59524, Feb. 18, 1985)
Doctrine of Judicial Supremacy
When the judiciary allocates constitutional
boundaries, it neither asserts superiority nor
nullifies an act of the Legislature. It only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of
authority under the Constitution and to establish for
the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
Justiciable Controversy
A definite and concrete dispute touching on the
legal relations of parties having adverse legal
interests, which may be resolved by a court of law
through the application of a law (Cutaran v. DENR,
G.R. No 134958, Jan. 31, 2001)
Requirements for Justiciability
1. That there be an actual controversy
between or among the parties to the
dispute;
2. That the interests of the parties be
adverse;
POLITICAL LAW
3. That the matter in controversy be capable
of being adjudicated by judicial power; and
4. That the determination of the controversy
will result in practical relief to the
complainant.
Actual Case/Controversy
An actual case or controversy involves a
conflict of legal rights, an assertion of
opposite legal claims, susceptible of
judicial resolution as distinguished from a
hypothetical or abstract difference or
dispute. (PHILCONSA v Philippine
Government, G.R. No. 218406, Nov. 29,
2016)
There must be a contrast of legal rights
that can be interpreted and enforced on the
basis of existing law and jurisprudence.
(Id.)
LEONEN: It is the parties' duty to
demonstrate actual cases or controversies
worthy of judicial resolution. Pleadings
must show a violation of an existing legal
right or a controversy that is ripe for judicial
determination. (Falcis v. Civil Registrar
General, G.R. No. 217910, Sept. 3, 2019)
Facts are the basis of an actual case or
controversy. There must be sufficient facts
to enable the Court to intelligently
adjudicate the issues. (Id.)
Advisory Opinions
Even the expanded jurisdiction of this
Court under Article VIII, Section 1 does not
provide license to provide advisory
opinions. An advisory opinion is one
where the factual setting is conjectural or
hypothetical. (LEONEN, PBOAP v. DOLE,
G.R. No. 202275, July 17, 2018)
o In such cases, the conflict will not
have sufficient concreteness or
adversariness so as to constrain
the discretion of this Court. After
all,
legal
arguments
from
concretely lived facts are chosen
narrowly by the parties. Those
who bring theoretical cases will
have no such limits. (Id.)
The Court generally declines to issue
advisory
opinions
or
to
resolve
hypothetical or feigned problems, or mere
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academic questions. The limitation of the
power of judicial review to actual cases
and controversies assures that the courts
will not intrude into areas specifically
confined to the other branches of
government. (PHILCONSA v Philippine
Government, G.R. No. 218406, Nov. 29,
2016)
o
Ripe for Adjudication
A constitutional question is ripe for
adjudication when the governmental act
being challenged has had a direct adverse
effect on the individual challenging it. It is
also necessary that there be a law that
gives rise to some specific rights of
persons or property, under which adverse
claims are made. (Santiago Jr. v. Bautista,
GR No. 25024, March 30, 1970)
For a case to be considered ripe for
adjudication, it is a prerequisite that:
o an
act
had
then
been
accomplished or performed by
either branch of government
before a court may interfere, and
o the petitioner must allege the
existence of an immediate or
threatened injury to himself as a
result of the challenged action.
(PHILCONSA
v.
Philippine
Government, G.R. No. 218406,
Nov. 29, 2016)
o
Moot Questions
An action is considered moot when it no
longer presents a justiciable controversy
because the issues involved have become
academic or dead or when the matter has
already been resolved. There is nothing for
the court to resolve as the determination
thereof has been overtaken by subsequent
events (Atty. Evillo C. Pormento v. Estrada
and COMELEC, G.R. No. 191988, Aug.
31, 2010).
However, the moo and academic
principle is not a magical formula that
automatically dissuades courts in resolving
a case. The Court may still take
cognizance of an otherwise moot case,
if it finds that:
o
o
there is a grave violation of the
Constitution;
the situation is of exceptional
character and paramount public
interest is involved;
the constitutional issue raised
requires formulation of controlling
principles to guide the bench, the
bar, and the public; and
the case is capable of repetition
yet evading review. (Narra Nickel
Mining and Development Corp. v.
Redmont Consolidation Mines
Corp., G.R. No. 195580, Jan. 28,
2015)
Locus Standi/Legal Standing
Definition: a personal and substantial
interest in the case such that the party has
sustained or will sustain direct injury as
a result of the governmental act that is
being challenged. (Francisco v. HOR, G.R.
No. 160261, Nov. 10, 2003)
The term "interest" is material interest, an
interest in issue and to be affected by the
decree, as distinguished from mere
interest in the question involved, or a mere
incidental interest. (Joya v. PCGG, G.R.
No. 96541, Aug. 24, 1993)
o Moreover, the interest of the party
plaintiff must be personal and not
one based on a desire to vindicate
the constitutional right of some
third and related party. (Id.)
Test: whether a party alleges such
personal stake in the outcome of the
controversy as to assure that concrete
adverseness
which
sharpens
the
presentation of issues upon which the
court depends for illumination of difficult
constitutional questions. (Id.)
Elements (ITR)
o The
petitioner
must
have
personally suffered some actual or
threatened Injury which can be
legal, economic, or environmental;
o The injury is fairly Traceable to the
challenged action; and
o The injury is likely to be Redressed
by a favorable action (TELEBAP v.
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COMELEC, GR No. 132922, April
21, 1998)
Requisites for Third Party Standing (jus tertii)
(IRH)
1. The litigant must have suffered an injuryin-fact, thus giving him or her a "sufficiently
concrete interest" in the outcome of the
issue in dispute;
2. The litigant must have a close Relation to
the third party; and
3. There must exist some Hindrance to the
third party's ability to protect his or her own
interests. (White Light v. City of Manila,
G.R. No. 122846, Jan. 20, 2009)
Rules on the Liberal Approach on Locus Standi
Taxpayer
Allowed to sue where there is a
claim of any of the following:
public funds are illegally
disbursed
(Information
Technology
v.
COMELEC, G.R. No.
159139, Jan. 13, 2004)
public money is being
deflected to any improper
purpose (Id.)
there is a wastage of
public funds through the
enforcement of an invalid
or unconstitutional law
(Id.)
the tax measure is
unconstitutional (David v.
Arroyo, G.R. No. 171396,
May 3, 2006)
Voters
Before he can invoke the power of
judicial
power,
he
must
specifically prove that he has
sufficient interest in preventing
the illegal expenditure of money
raised by taxation and that he
would sustain a direct injury as a
result of the enforcement of the
questioned statute or contract.
(Francisco v. HOR, G.R. No.
160261, Nov. 10, 2003)
There must be a showing of
obvious interest in the validity of
the election law in question
Concerned
citizens
Legislators
(David v. Arroyo, G.R. No.
171396, May 3, 2006)
There must be a showing that the
issues
raised
are
of
transcendental importance which
must be settled early (Id.)
There must be a claim that the
official action complained of
infringes upon their prerogatives
as
legislators
(Biraogo
v.
Philippine Truth Commission,
G.R. No. 192935, Dec. 7, 2010)
Standing in Environmental Cases
The Rules of Procedure for Environmental Cases
liberalized the requirements on standing, allowing
the filing of a citizen's suit by any Filipino citizen
in representation of others, including minors or
generations yet unborn, may file an action to
enforce rights or obligations under environmental
laws. (Resident Marine Mammals v. Reyes, G.R.
No. 180771, April 21, 2015; Segovia v. The Climate
Change Commission, G.R. No. 211010, March 7,
2017)
Guidelines in determining whether or not a
matter is of transcendental importance:
The character of the funds or other assets
involved in the case;
The presence of a clear case of disregard
of a constitutional or statutory prohibition
by the public respondent agency or
instrumentality of the government; and
The lack of any other party with a more
direct and specific interest in the questions
being raised (Chamber of Real Estate and
Builders’ Association, Inc. v. Energy
Regulatory Commission, et al., G.R. No.
174697, July 8, 2010).
Rule on Raising at the Earliest Opportunity
General Rule: The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings
before a competent court that can resolve the
same. (Matibag v. Benipayo, G.R. No. 149036,
April 2, 2002)
Exceptions:
1. In criminal cases
at any time at the
discretion of the court
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2. In civil cases
at any stage of the
proceedings if necessary for the
determination of the case itself; or
3. In every case (Except where there is
estoppel)
at any stage if it involves the
jurisdiction of the court (People v. Vera,
G.R. No. 45685, Nov. 16, 1937)
b. Operative fact doctrine
Effect of a Declaration of Unconstitutionality
An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection;
it creates no office; it is inoperative as if it has not
been passed at all. (Film Development Council of
the Philippines v. Colon Heritage Realty Corp.,
G.R. Nos. 203754 & 204418, Oct. 15, 2019)
The exception is the doctrine of operative fact,
which applies as a matter of equity and fair play.
(Id.)
This doctrine nullifies the effects of an
unconstitutional law or an executive act by
recognizing that the existence of a statute
prior
to
a
determination
of
unconstitutionality is an operative fact
and may have consequences that cannot
always be ignored. (Id.)
Hence, it legitimizes otherwise invalid acts
done pursuant thereto because of
considerations of practicality and fairness.
In this regard, certain acts done pursuant
to a legal provision which was just recently
declared as unconstitutional cannot be
anymore undone because not only would
it be highly impractical to do so, but more
so, unfair to those who have, in good faith,
relied on the said legal provision prior to
the time it was struck down. (Id.)
It applies only to cases where
extraordinary circumstances exist,
AND only when the extraordinary
circumstances have met the stringent
conditions
that
will
permit
its
application. (Araullo v. Aquino III, G.R.
No. 209287, July 1, 2014)
POLITICAL LAW
c. Political question doctrine
Political Question
A question, the resolution of which has been vested
by the Constitution exclusively:
1. In the people, in the exercise of their
sovereign capacity, or
2. In which full discretionary authority has
been delegated to a co-equal branch of the
Government (Tanada v. Cuenco, G.R. No.
L-10520, Feb. 28, 1957).
The judiciary is NOT precluded from reviewing
poli ical q e ion . Under the second clause of
Sec. 1, Art. VIII (the power to determine whether or
not there has been a grave abuse of discretion) the
Courts may now determine whether there has been
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of government.
LEONEN: A political question arises in
constitutional issues relating to the powers or
competence of different agencies and departments
of the executive or those of the legislature. The
political question doctrine is used as a defense
when the petition asks this court to nullify certain
acts that are exclusively within the domain of their
respective competencies, as provided by the
Constitution or the law. In such situation,
presumptively, this court should act with deference.
It will decline to void an act unless the exercise of
that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.
The
existence
of
constitutionally
imposed limits justifies subjecting the
official actions of the body to the scrutiny
and review of the Court.
Furthermore, the concept of a political
question never precludes judicial review
when the act of a constitutional organ
infringes upon a fundamental individual
or collective right. (The Diocese of
Bacolod v. Commission on Elections, G.R.
No. 205728, Jan. 21, 2015)
While courts can determine questions of legality
with respect to governmental action, they cannot
review government policies and the wisdom
behind such policies. These questions are
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vested by the Constitution in the Executive and
Legislative Departments.
Examples
of
political
questions
in
jurisprudence
Interpretation of the meaning of di orderl
beha ior and the legi la re power to suspend a
member (there is no procedure for the imposition
of the penalty of suspension nor did the 1935
Constitution define what di orderl behavior is).
The matter is left to the discretion of the legislature
(Osme a, Jr. v. Pendatun, G.R. No. L-17144, Oct.
28, 1960).
Whether the court could intervene in a case where
the House of Representatives was said to have
disregarded its own rule. The court was held to
have been without authority to intervene (Arroyo v.
De Venecia, G.R. No. 127255, Aug. 14, 1997).
Recognition of diplomatic immunity (ICMC v. Hon.
Calleja, G.R. No. 85750, Sept. 28, 1990).
The determination of what constitutes be ra al of
public r
or o her high crime is a political
question. A determination of what constitutes an
impeachable offense is a purely political question,
which the Constitution has left to the sound
discretion of the legislature (Gutierrez v. The
House of Representatives Committee on Justice,
et al., G.R. No. 193459, Feb. 15, 2011).
Examples of cases in jurisprudence where the
Court held that there was no political question
involved.
Apportionment of representative districts (because
there
are
constitutional
rules
governing
apportionment) (Bagabuyo v. COMELEC, G.R. No.
176970, Dec. 8, 2008).
Suspension of the privilege of the writ of habeas
corpus because the Constitution sets limits to
executive discretion on the matter (Montenegro v.
Casta eda, G.R. No. L-4221, Aug. 30, 1952).
Manner of forming the Commission on
Appointments
(Daza v. Singson, G.R. No. 86344, Dec. 21, 1989;
Coseteng v. Mitra, G.R. No. 86649, July 12, 1990;
Guingona v. Gonzales, G.R. No. 106971, Oct. 20,
1992).
B. JUDICIAL INDEPENDENCE AND
AUTONOMY
Concepts of Judicial Independence
Decisional
Institutional
Independence or
(Judicial)
Individual Judicial
Independence
Independence
Refers to a judge's Describes
the
ability
to
render separation
of
the
decisions free from judicial branch from
political or popular the executive and
influence based solely legislative branches of
on the individual facts government
and applicable law
Focuses on each
particular judge and
seeks to insure his or
her ability to decide
cases with autonomy
within the constraints
of the law
Focuses
on
the
independence of the
judiciary as a branch
of government and
protects judges as a
class
A judge has this kind
of
independence
when he can do his job
without having to hear
or at least without
having to take it
seriously if he does
hear
criticisms of
his personal morality
and fitness for judicial
office
Refers to the collective
independence of the
judiciary as a body
A truly independent judiciary is possible only when
both concepts of independence are preserved
wherein public confidence in the competence and
integrity of the judiciary is maintained, and the
public accepts the legitimacy of judicial authority.
(Re: COA Opinion on Computation of Appraised
Value of Properties Purchased by SC Justices,
A.M. No. 11-7-10-SC, July 31, 2012; In the Matter
of the Allegations Contained in the Columns of Mr.
Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug.
8, 2008)
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Constitutional Safeguards to Secure Judicial
Independence
Judiciary in General
Creation and abolition of courts
o Congre
power to create courts
implies the power to abolish and
even re-organize courts. But this
power cannot be exercised in a
manner that would undermine the
security of tenure of the judiciary.
If the abolition or re-organization is
done in good faith and not for
political or personal reasons, it
is valid. (De La Llana v. Alba, G.R.
No. L-57883, March 12 1982)
o Congress
may
enact
laws
prohibiting courts from issuing
restraining
orders
against
administrative
acts
in
controversies involving facts or the
exercise of discretion. However,
on issues involving questions of
law, courts cannot be prohibited
from exercising their power to
restrain such acts. (Malaga v.
Penachos, Jr., G.R. No. 86695,
Sept. 3, 1992)
Members of the judiciary enjoy security
of tenure. (PHIL. CONST., art. VIII, § 2.)
Members of judiciary may not be
designated to any agency performing
quasi-judicial
or
administrative
functions. (PHIL. CONST., art. VIII, § 12.)
o The Presidential Electoral Tribunal
(PET) does not exercise quasijudicial functions. When the
Supreme Court, as the PET,
resolves a presidential or vicepresidential election contest, it
performs what is essentially a
judicial power (Macalintal v. PET,
G.R. No. 191618, Nov. 23, 2010).
The salaries of Justices and judges
shall be fixed by law and cannot be
decreased during their continuance in
office. (PHIL. CONST., art. VIII, § 10.)
o However, their salaries are
properly subject to a general
income tax law applicable to all
income earners and that the
POLITICAL LAW
payment of such income tax does
not fall within the constitutional
protection against decrease of
their
salaries
during
their
continuance in office. (Nitafan v.
CIR, G.R. No. 78780, July 23,
1987).
The right to criticize the courts and judicial
officers must be balanced against the
equally primordial concern that the
independence of the Judiciary be
protected
from
due
influence
or
interference. (In re Letter of UP Law
Faculty, A.M. No. 10-10-4-C, March 8,
2011)
The
Judiciary
shall
enjoy
fiscal
autonomy.
Appropriations
for
the
Judiciary may not be reduced by the
legislature below the amount appropriated
for the previous year and, after approval,
shall be automatically and regularly
released. (PHIL. CONST., art. VIII, § 3.)
o The grant of fiscal autonomy to the
Judiciary is more extensive than
the mere automatic and regular
release of its approved annual
appropriations.
Real
fiscal
autonomy covers the grant to the
Judiciary of the authority to use
and dispose of its funds and
properties at will, free from any
outside control or interference.
(Re:
COA
Opinion
on
Computation of Appraised Value
of Properties Purchased by SC
Justices, A.M. No. 11-7-10-SC,
July 31, 2012)
o Fiscal autonomy contemplates a
guarantee on full flexibility to
allocate and utilize their resources
with the wisdom and dispatch that
the J diciar
needs require. It
recognizes
the
power
and
authority to levy, assess and
collect
fees,
fix
rates
of
compensation not exceeding the
highest rates authorized by law for
compensation and pay plans of
the government and allocate and
disburse such sums as may be
provided by law or prescribed by
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o
them in the course of the
discharge of their functions.
(Bengzon v. Drilon, G.R. No.
103524, April 15, 1992)
Legal fees constitute not only a
vital source of the Co r financial
resources but also comprise an
essential element of the Co r
fiscal
independence.
Any
exemption from the payment of
legal fees granted by Congress to
GOCCs and LGUs will necessarily
reduce the Judiciary Development
Fund (JDF) and the Special
Allowance for the Judiciary Fund
(SAJF).
Such
situation
is
constitutionally infirm for it impairs
the Co r
guaranteed fiscal
autonomy, which recognizes the
power and authority of the Court to
levy, assess and collect fees
including legal fees. (Re: In the
Matter
of
Clarification
Of
Exemption from Payment of All
Court and Sheriff's Fees of
Cooperatives, A.M. No. 12-2-03-0,
March 13, 2012)
Supreme Court in General
Being a Constitutional body, it may not
be abolished by law.
In GENERAL, its members may only be
removed through impeachment. (PHIL.
CONST., art. XI, § 2.)
o Members of the Supreme Court
may now be removed from office
through a petition for quo
warranto. Section 2, Article XI of
the Constitution allows the
institution of a quo warranto action
against an impeachable officer. A
quo warranto petition is predicated
on grounds distinct from those of
impeachment.
The
former
questions the validity of a public
officer's appointment while the
latter indicts him for the so-called
impeachable offenses without
questioning his title to the office he
holds. (Republic v. Sereno, G.R.
No. 237428, June 19, 2018)
POLITICAL LAW
Jurisdiction
o It may not be deprived of minimum
and appellate jurisdiction
o Congress may not increase the
Supreme
Co r
appellate
jurisdiction without its advice or
concurrence (PHIL. CONST., art. VI,
§ 30.)
o Congress cannot deprive the
Supreme Court of its jurisdiction
over cases provided for in the
Constitution (PHIL. CONST., art.
VIII, § 2.) and may only do the
following:
Define enforceable and
demandable
rights;
prescribing remedies for
violations of such rights
Determine the court with
jurisdiction to hear and
decide controversies or
disputes arising from legal
rights (Lopez v. Roxas,
G.R. No. L-25716,1966)
It has administrative supervision over all
inferior courts and personnel. (PHIL.
CONST., art. VIII, § 6.)
It has exclusive power to discipline or
dismiss judges/ justices of inferior courts.
(PHIL. CONST., art. VIII, § 11.)
The Court alone may initiate the Rules of
Court. (PHIL. CONST., art. VIII, § 5(5).)
The Court alone may order temporary
detail of judges. (PHIL. CONST., art. VIII, §
5(3).)
The Court can appoint all officials and
employees of the Judiciary. (PHIL.
CONST., art. VIII, § 5(6).)
C. APPOINTMENTS TO THE JUDICIARY
1. QUALIFICATIONS OF MEMBERS OF THE
JUDICIARY
Every prospective appointee to the judiciary must
apprise the appointing authority of every matter
bearing on his fitness for judicial office including
such circumstances as may reflect on his integrity
and probity (In Re: JBC v. Judge Quitain, JBC No.
013, Aug. 22, 2007).
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Until a correction of existing records on one birth
and citizenship, one cannot accept an appointment
to the judiciary, as that would be a violation of the
Constitution. For this reason, he can be prevented
by injunction from doing so (Kilosbayan v. Ermita,
G.R. No. 177721, July 3, 2007).
Qualifications for Judges and Justices (PHIL.
CONST., art. VIII, § 7.)
Lower
Collegiate
Lower NonSupreme
Courts (CA,
Collegiate
Court
CTA,
Courts
Sandiganbayan)
Natural-born citizen of the Citizen of the
Philippines
Philippines
(may
be
naturalized)
At least 40 Possesses other qualifications
years old
prescribed by Congress
At least 15 Member of the Philippine Bar
years
of
experience
as a judge
or in the
practice of
law in the
Philippines
A person of proven competence, integrity,
probity, and independence
A Supreme Court Justice, who is required under
the Constitution to be a Member of the Philippine
Bar as a qualification for the office held by him and
who may be removed from office only by
impeachment, cannot be charged with
disbarment during his incumbency. Further,
during his incumbency, he cannot be charged
criminally before the Sandiganbayan or any other
court with any offence which carries with it the
penalty of removal from office, or any penalty
service of which would amount to removal from
office. (In Re Gonzalez, A.M. No. 88-4-5433, April
15, 1988)
The Constitution requires that members of the
Judiciary must be of proven integrity. To be of
proven integrity means that the applicant must
have established steadfast adherence to moral and
ethical principles. One who chronically fails to file
his or her SALN violates the Constitution and the
laws; and one who violates the Constitution and the
laws cannot rightfully claim to be person of integrity
and may thus be removed through a quo warranto
petition. (Republic v. Sereno, G.R. No. 237428,
June 19, 2018)
Lower Non-Collegiate Courts
RTC
MTC
At least 35 years old
At least 30 years old
Engaged for at least Engaged for at least 5
10 years
in the years in the practice
practice of law in the of
law
in
the
Philippines or
Philippines or
Has held public office
in the Philippines
requiring admission to
the practice of law as a
requisite
Has held public office
in the Philippines
requiring admission to
the practice of law as a
requisite
Term (PHIL. CONST., art. VIII, § 11.)
Members of the Supreme Court and judges of the
lower courts hold office during good behavior until:
1. The age of 70 years old
2. They become incapacitated to discharge
their duties
2. JUDICIAL AND BAR COUNCIL
a. Composition
(PHIL. CONST., art. VIII, § 8.)
1. Chief Justice, as ex-officio chairman
2. Secretary of Justice, as ex-officio member
3. Representative of Congress, as ex-officio
member
4. Representative of the Integrated Bar
5. A professor of law
6. A retired member of the Supreme Court
7. Private sector representative
Regular Members of the JBC
The last four in the enumeration above are
the regular members of the JBC.
The President, with the consent of the
Commission on Appointments, appoints
regular members who serve for 4 years, in
staggered terms. (PHIL. CONST., art. VIII, §
8(2).)
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They shall receive such emoluments as
may be determined by the Supreme Court.
(PHIL. CONST., art. VIII, § 8(4).)
Clerk of the Supreme Court
serves as the
secretary ex officio of the Council and shall keep
a record of its proceedings (PHIL. CONST., art. VIII,
§ 8(3).)
The JBC is composed of 7 members coming from
different sectors. Thus, while we do not lose sight
of the bicameral nature of our legislative
department, it is beyond dispute that the
Constitution is explicit that we have only a
representative . Thus, two (2) representatives from
Congress would increase the number of JBC
members to eight (8), a number beyond what the
Constitution has contemplated. The lone
representative of Congress is entitled to one full
vote. This effectively disallows the scheme of
splitting the said vote into half between two
representatives of Congress. (Chavez v. JBC, G.R.
No. 202242, April 16, 2013)
Thus, any inclusion of another member, whether
with one whole vote or 1/2 of it, goes against that
mandate. Section 8(1), Article VIII of the
Constitution, providing Congress with an equal
voice with other members of the JBC in
recommending appointees to the Judiciary is
explicit. (Id.)
The JBC can still perform its mandated task of
submitting the list of nominees to the President
despite a vacancy in the position of Chief Justice
or the ex-officio Chairman (as a result, for
example, of impeachment). In such case, the most
Senior Justice of this Court who is not an applicant
for the position of Chief Justice should participate
in the deliberations for the selection of nominees
for the said vacant post and preside over the
proceedings. (Dulay v. JBC, G.R. No. 202143, July
3, 2012)
The Supreme Court shall provide in its annual
budget the appropriations for the Council. (PHIL.
CONST., art. VIII, § 8(4)).
b. Powers
Functions of The JBC (PHIL. CONST., art. VIII, §
8(5).)
Primary Function: Recommend appointees to the
Judiciary.
Secondary Function: It may also exercise such
other functions as the SC may assign to it.
Incidental Functions
The functions of searching, screening, and
selecting are necessary and incidental to the
JBC's principal function of choosing and
recommending nominees for vacancies in the
judiciary for appointment by the President. In
carrying out its main function, the JBC has the
authority to set the standards/criteria in
choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications
required by the Constitution and law for every
position. (Villanueva v. JBC, G.R. No. 211833, April
7, 2015)
Rules
on
Appointments/Clustering
of
Nominees
1. The President shall appoint Members of
the Supreme Court and judges of lower
courts from a list of at least three (3)
nominees for each vacancy, as prepared
by the JBC.
2. No CA confirmation is needed for
appointments to the Judiciary.
3. Vacancies in SC should be filled within 90
days from the occurrence of the vacancy.
4. Vacancies in lower courts should be filled
within 90 days from submission to the
President of the JBC list.
5. Midnight
Appointments
Explicit
prohibition against midnight appointments
is already unnecessary due to the
intervention of and screening made by
Judicial Bar Council (JBC) (De Castro v.
JBC, G.R. No. 191002, April 20, 2010)
The Supreme Court has supervision over the JBC,
and this authority covers the overseeing of the
JBC compliance with its own rules. (Jardeleza v.
Sereno, G.R. No. 213181, Aug. 19, 2014)
The primary limitation to the JBC's exercise of
discretion is that the nominee must possess the
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minimum qualifications required by the Constitution
and the laws relative to the position. While the
resolution of who to nominate as between two
candidates of equal qualification cannot be dictated
by this Court upon the JBC, such surrender of
choice presupposes that whosoever is nominated
is not otherwise disqualified. The question of
whether or not the nominee possesses the
requisite qualifications is determined based on
facts and therefore does not depend on, nor call
for, the exercise of discretion on the part of the
nominating body. Thus, the nomination by the JBC
is not accurately an exercise of policy or wisdom as
to place the JBC's actions in the same category as
political questions that the Court is barred from
resolving. (Republic v. Sereno, G.R. No. 237428,
June 19, 2018)
Mandamus will not lie to compel the JBC to select
and recommend nominees for vacant judicial
positions, which is a discretionary function. There
is no legal right to be included in the list of
nominees for judicial vacancies. Possession of the
constitutional and statutory qualifications for
appointment to the judiciary may not be used to
legally demand that one's name be included in the
list of candidates for a judicial vacancy. (Villanueva
v. JBC, G.R. No. 211833, April 7, 2015)
The clustering of nominees for the six vacancies in
the Sandiganbayan by the JBC impaired the
President's power to appoint members of the
Judiciary and to determine the seniority of the
newly-appointed
Sandiganbayan
Associate
Justices. The clustering by the JBC of nominees
for simultaneous or closely successive vacancies
in collegiate courts can actually be a device to favor
or prejudice a particular nominee. A favored
nominee can be included in a cluster with no other
strong contender to ensure his/her appointment; or
conversely, a nominee can be placed in a cluster
with many strong contenders to minimize his/her
chances of appointment. (Aguinaldo v. Aquino,
G.R. No. 224302, November 29, 2016)
D. THE SUPREME COURT
1. COMPOSITION
A Constitutional Court
The Supreme Court is the only constitutional court,
all the lower courts being of statutory creation.
POLITICAL LAW
Members (PHIL. CONST., art. VIII, § 4(1).)
Chief Justice, and
14 Associate Justices
The President cannot appoint a temporary member
of the Supreme Court. There can be no doubt that
the Chief Justice and Associate Justices required
by the Constitution to compose the Supreme Court
are regular members of the Court. A temporary
member would be a misnomer, implying a position
not contemplated by the Constitution. Thus, a law
which authorizes the President to designate any
judge of the lower court or cadastral judge to act as
member of the Supreme Court is void (Vargas vs.
Rillaroza, G.R. No. L-1612, Feb. 26, 1948).
The members of the judiciary perform judicial
functions. This function is exclusive. They cannot
perform non- judicial functions. For this reason, the
Constitution provides that the members of the
Supreme Court and of other courts shall not be
delegated to any agency performing quasi-judicial
or administrative functions. (PHIL. CONST., art. VIII,
§ 12.)
Primus Inter Pares
Literally, first among equals; the maxim indicates
that a person is the most senior of a group of
people sharing the same rank or office. The phrase
has been used to describe the status, condition or
role of the Chief Justice in many supreme courts
around the world.
Hearing Of Cases In The Supreme Court (PHIL.
CONST., art. VIII, § 4(1).)
Divisions of 3, 5, or 7 members
En Banc
Any vacancy should be filled within 90 days from
the occurrence thereof.
2. POWERS AND FUNCTIONS
Decisions in General
No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts
and the law on which it is based. (PHIL. CONST., art.
VIII, § 14.)
It is a requirement of due process that the
parties to a litigation be informed of how it
was decided, with an explanation of the
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factual and legal reasons that led to the
conclusions of the court. (NICOS Industrial
Corp. v. Court of Appeals, G.R. No. 88709,
Feb. 11, 1992)
The purpose [of this Constitutional
requirement is] to inform the person
reading the decision, and especially the
parties, of how it was reached by the court
after consideration of the pertinent facts
and examination of the applicable laws.
(Francisco v. Permskul, G.R. No. 81006,
May 12, 1989)
The [provision] does not apply to
interlocutory orders, such as one granting
a motion for postponement or quashing a
subpoena, because it refers only to
decisions on the merits and not to orders
of the trial court resolving incidental
matters. (NICOS Industrial Corp. v. Court
of Appeals, G.R. No. 88709, Feb. 11,
1992)
So long as the decision contains the
necessary facts to warrant its conclusions,
it is no error for [the court] to withhold any
specific finding of facts with respect to the
evidence for the defense. The mere failure
to specify (in the decision) the contentions
of the appellant and the reasons for
refusing to believe them is not sufficient to
hold the same contrary to the requirements
of the provisions of law and the
Constitution. (Air France v. Carrascoso,
G.R. No. L-21438, Sept. 28, 1986)
The significance of factual findings lies in
the value of the decision as a precedent.
How will the ruling be applied in the future,
if there is no point of factual comparison?
(Velarde v. Social Justice Society, G.R.
No. 159357, April 28, 2004)
No petition for review or motion for reconsideration
of a decision of the court shall be refused due
course or denied without stating the legal basis
therefor. (PHIL. CONST., art. VIII, § 14).)
Decisions by The Supreme Court (PHIL. CONST.,
art. VIII, § 13.)
The conclusions of the Court in any case
submitted to it for decision en banc or in
division shall be reached in consultation
POLITICAL LAW
before the case is assigned to a Member
for the writing of the opinion of the Court.
A certification to this effect must be signed
by the Chief Justice and attached to the
record of the case, and served upon the
parties.
o Absence of a certification does not
mean that there was no
consultation prior to assignment of
the case to a member. The
presumption of regularity prevails
but the erring officer will be liable
administratively (Consing v. CA,
G.R. No. 78272, Aug. 29, 1989).
Any Member who took no part, or
dissented, or abstained from a decision or
resolution must state the reason therefor.
The same requirements shall be observed
by all lower collegiate courts.
All lower collegiate courts shall observe the same
procedure (e.g., CA, CTA, and Sandiganbayan).
Minute Resolutions
The adjudication of a case by minute resolution is
an exercise of judicial discretion and constitutes
sound and valid judicial practice. (Agoy v. Araneta
Center, Inc., G.R. No. 196358 (Resolution), March
21, 2012)
Minute resolutions are issued for the prompt
dispatch of the actions of the Court. While they are
the results of the deliberations by the Justices of
the Court, they are promulgated by the Clerk of
Court or his assistants whose duty is to inform the
parties of the action taken on their cases by quoting
verbatim the resolutions adopted by the Court.
Neither the Clerk of Court nor his assistants take
part in the deliberations of the case. They merely
transmit the Court's action in the form prescribed
by its Internal Rules. (Id.)
When a minute resolution denies or dismisses a
petition for failure to comply with formal and
substantive requirements, the challenged decision,
together with its findings of fact and legal
conclusions, are deemed sustained. (Philippine
Health Care Providers v. CIR, G.R. No. 167330,
June 12, 2009)
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With respect to the same subject matter and the
same issues concerning the same parties, it
constitutes res judicata. However, if other parties
or another subject matter (even with the same
parties and issues) is involved, the minute
resolution is not binding precedent. (Id.)
There are substantial, not simply formal,
distinctions between a minute resolution and a
decision. The constitutional requirement that the
facts and the law on which the judgment is based
must be expressed clearly and distinctly applies
only to decisions, not to minute resolutions. A
minute resolution is signed only by the clerk of
court by authority of the justices, unlike a decision.
It does not require the certification of the Chief
Justice. Moreover, unlike decisions, minute
resolutions are not published in the Philippine
Reports. Finally, the proviso of Section 4(3) of
Article VIII speaks of a decision. Indeed, as a rule,
this Court lays down doctrines or principles of law
which constitute binding precedent in a decision
duly signed by the members of the Court and
certified by the Chief Justice. (Id.)
Memorandum Decisions
Memorandum decisions, where the appellate court
adopts the findings of fact and law of the lower
court, are allowed as long as the decision adopted
by reference is attached to the Memorandum for
easy reference. (Oil and Natural Gas Commission
v. CA, G.R. No. 114323, July 23, 1998)
Sin Perjuico Judgments
One that is rendered without a statement of the
facts in support of its conclusions, to be later
supplemented by the final judgment. The Supreme
Courted expressed its disapproval of the practice
of rendering of sin perjuico judgments.
(NACHURA)
Timeframe for Deciding (PHIL. CONST., art. VIII, §
15.)
SUPREME
COLLEGIATE
LOWER
COURT
COURTS
COURTS
24
months 12
months 3 months from
from
from
submission
submission
submission
The periods above commence from the date of
submission for decision or resolution.
POLITICAL LAW
A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
Rules of Court or by the Court itself.
Upon expiration of the period without decision or
resolution, a certification stating why no decision
or resolution has been rendered shall be issued
and signed by the Chief Justice or presiding judge.
A copy of the certification shall be attached to the
record of the case or matter, and served upon the
parties. The certification shall state why a decision
or resolution has not been rendered or issued
within said period.
The expiration of the period notwithstanding, the
court shall decide or resolve the case or matter
without further delay.
LEONEN: Being the court of last resort, the
Supreme Court should be given an ample amount
of time to deliberate on cases pending before it.
While the 24-month period provided under the
1987 Constitution is persuasive, it does not
summarily bind this Court to the disposition of
cases brought before it. It is a mere directive to
ensure this Court's prompt resolution of cases, and
should not be interpreted as an inflexible rule. (Re:
Elvira N. Enalbes, A.M. No. 18-11-09-SC
(Resolution, Jan. 22, 2019)
The Sandiganbayan falls under the 3-month rule
because it is a trial-court, not a collegiate court (Re:
Problems of Delays in Cases Before the
Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31,
2002).
A judge who fails to resolve cases within the period
prescribed may be held liable for gross inefficiency,
unless he explains his predicament and asked for
extensions of time from the Supreme Court. (OCA
v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20,
1999)
EN BANC AND DIVISION CASES
En Banc (PHIL. CONST., art. VIII, § 4(2).)
All cases involving constitutionality of
a: (LIT)
o Law
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International
or
executive
agreement
o Treaty
All
cases
involving
the
constitutionality,
application
or
operation of: (POPORI)
o Presidential decrees
o Orders
o Proclamations
o Ordinances
o Other Regulations
o Instructions
Cases required to be heard en banc
under the Rules of Court:
o Appeals from Sandiganbayan and
from
the
Constitutional
Commissions
o Cases heard by a division where
required majority of 3 was not
obtained
o Cases where SC modifies or
reverses a doctrine or principle of
law laid down by the SC en banc
or by a division
o Administrative cases to discipline
or dismiss judges of lower courts
o Election contests for President
and Vice-President
o
Cases required to be heard en banc shall be
decided with the concurrence of a majority of the
Members who:
actually took part in the deliberations on
the issues in the case and
voted thereon
No doctrine or principle of law laid down by the
court in a decision rendered en banc or in division
may be modified or reversed except by the court
sitting en banc.
Division (PHIL. CONST., art. VIII, § 4(3).)
Cases or matters heard by a division shall
be decided or resolved with:
o the concurrence of a majority of
the Members who actually took
part in the deliberations on the
issues in the case and voted
thereon and,
o in no case without the concurrence
of at least three of such Members.
POLITICAL LAW
When the required number is not obtained,
the case shall be decided en banc.
There is a distinction between cases, on the one
hand, and matters, on the other hand, such that
cases are "decided" while matters, which include
motions, are "resolved", applying the rule of
reddendo singula singulis. (Fortich v. Corona, G.R.
No. 131457, Aug. 19, 1999)
Only cases are referred to the Court en
banc for decision whenever the required
number of votes is not obtained.
Conversely, the rule does not apply where
the required three votes is not obtained in
the resolution of a
motion for
reconsideration.
Hence, hen the required number is not
obtained, the case shall be decided en
banc only speaks of ca
and not
a
.
Article VIII, Section 4(3) pertains to the
disposition of cases by a division. If there
is a tie in the voting, there is no decision.
The only way to dispose of the case then
is to refer it to the Court en banc. On the
other hand, if a case has already been
decided by the division and the losing party
files a motion for reconsideration, the
failure of the division to resolve the motion
because of a tie in the voting does not
leave the case undecided. There is still the
decision which must stand in view of the
failure of the members of the division to
muster the necessary vote for its
reconsideration. Quite plainly, if the voting
results in a tie, the motion for
reconsideration is lost.
The Supreme Court sitting en banc is not an
appellate court vis- -vis its Divisions, and it
exercises no appellate jurisdiction over the latter.
Each division of the Court is considered not a body
inferior to the Court en banc, and sits veritably as
the Court en banc itself. It bears to stress further
that a resolution of the Division denying a par
motion for referral to the Court en banc of any
Division case, shall be final and not appealable to
the Court en banc. (Apo Fruits v. CA, G.R. No.
164195, 2008)
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PROCEDURAL RULE-MAKING (PHIL. CONST.,
art. VIII, § 5(5).)
The Supreme Court has the power to
promulgate rules concerning the:
Protection
and
enforcement
of
constitutional rights
Pleading, practice and procedure in all
courts
Admission to the practice of law
The Integrated Bar
Legal assistance to the underprivileged
Limitations on Judicial Rule-Making:
1. It should provide a simplified and
inexpensive procedure for the speedy
disposition of cases.
2. It should be uniform for all courts of the
same grade.
3. It should not diminish, increase, or modify
substantive rights.
It is possible for a substantive matter to be
nonetheless embodied in a rule of procedure. Yet
the absorption of the substantive point into a
procedural rule does not prevent the substantive
right from being superseded or amended by
statute, for the creation of property rights is a
matter for the legislature to enact on, and not for
the courts to decide upon. (Republic v. Gingoyon,
G.R. No. 166429, Feb. 1, 2006).
In determining whether a rule prescribed by the
Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule
really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized
by substantive law and for justly administering
remedy and redress for a disregard or infraction of
them. If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive
matter; but if it operates as a means of
implementing an existing right then the rule deals
merely with procedure. (Estipona v. Lobrigo, G.R.
No. 226679, Aug. 15, 2017)
The rules on plea bargaining neither create a right
nor take away a vested right. Instead, it operates
as a means to implement an existing right by
POLITICAL LAW
regulating the judicial process for enforcing rights
and duties recognized by substantive law and for
justly administering remedy and redress for a
disregard or infraction of them. Sec. 23 of the
Comprehensive Dangerous Drugs Act, which
states that [a]ny person charged under any
provision of this Act regardless of the imposable
penalty shall not be allowed to avail of the provision
on plea-bargaining, is unconstitutional as it
encroaches on the constitutional rule-making
power of the Court. (Id.)
A legislative grant of exemption from the payment
of legal fees under RA 8291 was held to be
unconstitutional since the payment of legal fees is
an integral part of the rules promulgated by the
court pursuant to its rule-making power under the
Constitution. The other branches cannot trespass
upon this prerogative by enacting laws or issue
orders that effectively repeal, alter or modify any of
the procedural rules (Re: Petition for Recognition
of the GSIS from Payment of Legal Fees, A.M. No.
08-2-01-0, Feb. 11, 2010).
Rule-making power also includes the inherent
power to suspend its own rules in particular cases
in the interest of justice. (Philippine Blooming Mills
Employment v. Philippine Blooming Mills Co., G.R.
No. L-31195, June 5, 1973)
The constitutional grant to promulgate rules carries
with it the power, inter alia, to determine whether to
give the said rules prospective or retroactive effect.
(People v. Lacson, G.R. No. 149453, April 1, 2003)
ADMINISTRATIVE
SUPERVISION
OVER
LOWER COURTS (PHIL. CONST., art. VIII, § 6.)
The Supreme Court has administrative supervision
over all inferior courts and personnel.
Administrative supervision merely involves
overseeing the operations of agencies to ensure
that they are managed effectively, efficiently and
economically, but without interference with day-today activities. Thus, to effectively exercise its
power of administrative supervision over all courts
as prescribed by the Constitution, P.D. No. 828, as
amended, created the Office of the Court
Administrator. Nowhere in the functions of the
several offices in the Office of the Court
Administrator is it provided that the Supreme Court
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can assume jurisdiction over a case already
pending with another court. (Agcaoili v. Fariñas,
G.R. No. 232395, July 3, 2018)
Administrative jurisdiction over a court employee
belongs to the Supreme Court, regardless of
whether the offense was committed before or after
employment in the judiciary. (Ampong v CSC, G.R.
No. 167916, Aug. 26, 2008)
It is only the Supreme Court that can oversee the
j dge and court per onnel compliance with all
laws, and take the proper administrative action
against them if they commit any violation thereof.
No other branch of government may intrude into
this power, without running afoul of the doctrine of
separation of powers. (Maceda v. Vasquez, G.R.
No. 102781, April 22, 1993)
Thus:
The Ombudsman cannot justify its
investigation of a judge on the powers
granted to it by the Constitution. It cannot
compel the Court, as one of the three
branches of government, to submit its
records, or to allow its personnel to testify
on this matter. (Id.)
The Ombudsman cannot determine for
itself and by itself whether a criminal
complaint against a judge, or court
employee, involves an administrative
matter. The Ombudsman is duty bound to
have all cases against judges and court
personnel filed before it, referred to the
Supreme Court for determination as to
whether and administrative aspect is
involved
therein. (Caoibes,
Jr.
v.
Ombudsman, G.R. No. 132177, July 19,
2001)
The CSC must likewise bring its complaint
against a judicial employee before the
OCA. However, such employee may be
estopped from questioning the jurisdiction
of the CSC under specific circumstances.
(Ampong v CSC, G.R. No. 167916, Aug.
26, 2008)
Administrative supervision also includes:
Power to temporarily assign lower court
judges to other stations in the public
interest; such assignment shall not exceed
POLITICAL LAW
six (6) months without the consent of the
judge concerned (PHIL. CONST., art. VIII, §
5(3).)
Order a change of venue or place of trial to
avoid a miscarriage of justice (PHIL.
CONST., art. VIII, § 5(4).)
The administrative function of the Court to transfer
cases is a matter of venue, rather than jurisdiction.
The Court may transfer the trial of cases from one
court to another of equal rank in a neighboring site,
whenever the imperative of securing a fair and
impartial trial, or of preventing a miscarriage of
justice, so demands. (Agcaoili v. Fariñas, G.R. No.
232395, July 3, 2018)
POWER TO DISCIPLINE (PHIL. CONST., art. VIII, §
11.)
The Supreme Court en banc shall have the power
to discipline judges of lower courts, or order their
dismissal by a vote of a majority of the Members
who actually took part in the deliberations on the
issues in the case and voted thereon.
Decisions of the SC on disciplinary cases en banc
is needed only when the penalty imposed is
dismissal of a judge, disbarment of a lawyer,
suspension of either for more than 1 year or a fine
exceeding 10,000 pesos. Otherwise, the case may
be decided by a division. (People v. Gacott, G.R.
No. 116049, July 13, 1995)
The rule prohibiting the institution of disbarment
proceedings against an impeachable officer
applies only during his or her tenure and does not
create immunity from liability for possibly criminal
acts or for alleged violations of the Code of Judicial
Conduct or other supposed violations. Provided
that the requirements of due process are met, the
Court may penalize retired members of the
Judiciary for misconduct committed during their
incumbency. (In Re Undated Letter of Mr. Louis
C. Biraogo, A.M. No. 09-2-19-SC, Feb. 24, 2009)
POWER TO APPOINT
The Supreme Court has the power to appoint all
officials and employees of the Judiciary in
accordance with the Civil Service Law.
ORIGINAL AND APPELLATE JURISDICTION
(PHIL. CONST., art. VIII, §5(1) and (2).)
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The Supreme Court has original jurisdiction over:
1. Cases affecting:
a. Foreign ambassadors
b. Other foreign public ministers
c. Consuls
stationed
in
the
Philippines
2. Petitions for:
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo Warranto
e. Habeas Corpus
The Supreme Court has appellate jurisdiction (i.e.
review, revise, reverse, modify, or affirm on appeal
or certiorari) over final judgments and orders of
lower courts in:
1. All cases involving constitutionality or
validity of any Law, International
agreement or Treaty (LIT)
2. All cases involving the constitutionality or
validity of any Presidential decree, Order,
Proclamation, Ordinance, Regulation or
Instruction (POPORI)
3. All cases involving the legality of any: Tax,
Impost, Toll, Assessment or any Penalty
imposed in relation thereto (TITAP)
4. All cases in which the jurisdiction of any
lower court is in issue
5. Criminal cases where the penalty imposed
is reclusion perpetua or higher
6. All cases where only errors or questions of
law are involved
Judicial Privilege
Judicial privilege insulates the Judiciary from an
improper intrusion into the functions of the judicial
branch and shields justices, judges, and court
officials and employees from public scrutiny or the
pressure of public opinion that would impair a
j dge ability to render impartial decisions. (In Re:
Production of Court Records and Documents and
the Attendance of Court Officials and Employees
as Witnesses under the Subpoenas of February
10, 2012 and the Various Letters of Impeachment
Prosecution Panel dated January 19 and 25, 2012,
Notice of Resolution, February 14, 2012).
Deliberative Process Privilege (Id.)
This privilege guards against the disclosure of
information/communication involving as it does the
POLITICAL LAW
deliberative process of reaching a decision. This
enables the Members of the Court to freely discuss
the issues without fear of criticism for holding
unpopular positions or fear of humiliation for one's
comments.
To qualify for protection under the deliberative
process privilege, the agency must show that the
document is both predecisional and deliberative.
Predecisional if it precedes, in temporal
sequence, the decision to which it relates
i.e. if they were made in the attempt to
reach a final conclusion.
Deliberative if it reflects the give-andtake of the consultative process. The key
question in determining whether the
material is deliberative in nature is whether
disclosure of the information would
discourage candid discussion within the
agency.
Summary of privileged documents or
communications not subject to disclosure: (Id.)
Court actions such as the result of the
raffle of cases and the actions taken by the
Court on each case included in the agenda
of the Co r
session on acts done
material to pending cases, except where a
party litigant requests information on the
result of the raffle of the case, pursuant to
Rule 7, Section 3 of the Rules of Court of
the Supreme Court (IRSC);
Court deliberations or the deliberations of
the Members of the court sessions on
cases and matters pending before the
Court;
Court records which are pre-deci ional
and delibera i e in nature;
Confidential Information secured by
justices, judges, court officials and
employees in the course of their official
functions mentioned in the 2 preceding
enumerations, are privileged even after
their term of office;
Records of cases that are still pending for
decision are privileged materials that
cannot be disclosed, except only for
pleadings, orders and resolutions that
have been made available by court to the
general public.
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The principle of comity or interdepartmental courtesy demands that the
highest officials of each department be
exempt from the compulsory processes of
the other departments;
These privileges belong to the Supreme
Court as an institution, not to any justice or
judge in his or her individual capacity.
Since the Court is higher than the
individual justices or judges, no sitting or
retired justice or judge, not even the Chief
Justice, may claim exception without the
consent of the Court.
The Internal Rules of the Supreme Court (IRSC)
prohibits the disclosure of:
1. Result of the raffle of cases;
2. Actions taken by the Court on each case
included in the agenda of the Co r
session;
3. Deliberations of the Members in court
sessions on cases and matters pending
before it;
4. The privilege against disclosure of these
kinds of information/communication is
known as deliberative process privilege
- end of topic
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CONSTITUTIONAL
COMMISSIONS
Political Law
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VIII. CONSTITUTIONAL COMMISSIONS
TOPIC OUTLINE UNDER THE SYLLABUS:
POLITICAL LAW
A. COMMON PROVISIONS
REVIEW OF FINAL ORDERS, RESOLUTIONS,
AND DECISIONS
VIII. CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
B. INSTITUTIONAL INDEPENDENCE
SAFEGUARDS
C. POWERS AND FUNCTIONS
D. COMPOSITION AND QUALIFICATION OF
MEMBERS
E.
PROHIBITED OFFICES AND INTERESTS
How Commission decides Matters or Cases
Each commission shall decide matters or cases by
a majority vote of all its members within 60 days
from submission. The rule on majority vote shall
apply both in a division or en banc.
Who constitutes a
This provision is clear when it says that the voting
should be a majority vote of all its members and not
only of those who participated in the deliberation
and voted therein.
Effect of Resignation of a Commissioner
When a commissioner resigns, it does not
automatically invalidate the decision. So long as
the required majority of the commission is still
achieved despite the withdrawal of the vote of the
one who resigned, the decision shall stand.
Exception: COMELEC may sit en banc or
in 2 divisions.
How Election cases are decided on
Election cases, including pre-proclamation
controversies are decided in division, with motions
for reconsideration filed to the COMELEC en banc.
Majority Decision of a Division
A majority decision decided by a division of the
COMELEC is valid.
No One member can decide a case for the
Commission
As collegial bodies, each commission must act as
one, and no one member can decide a case for the
entire commission. (e.g. Chairman cannot ratify a
decision that would otherwise have been void.)
Rendered in the exercise of quasi-judicial
functions
Decisions, orders or rulings of the
COMELEC or the COA may be brought on
certiorari to the SC under Rule 64.
Decisions, orders or ruling of the CSC
should be appealed to the CA under Rule
43.
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Period for appeals is 30 days from receipt
of a copy of the decision, order, or ruling.
It is however a requirement, that a motion
for reconsideration must first be filed
before the commission en banc, before
resort to court is taken.
The certiorari jurisdiction of the court is
limited only to cases and matters rendered
by a commission in the exercise of its
adjudicatory power, or those relating to an
election dispute and not to cases and
matters purely administrative or executive
in nature.
Rendered in the Exercise of Administrative
Functions
Administrative disciplinary cases involving penalty
of suspension for more than 30 days, or fine in an
amount exceeding 30 da
salary, demotion,
transfer, removal, or dismissal from office shall be
appealable to the CSC
Decision may be executed pending appeal
Decision of CSC may be brought on appeal to the
CA under Rule 43
Decision of CA may be brought on appeal to the
SC under Rule 45.
Exoneration of officers or employees from
administrative charges does not bar appeal. The
CSC is the proper party to bring the appeal (PD
807, §37- 39); (CSC v. Dacoycoy, G.R. No.
135805, April 29, 1999).
Enforcement - It has been held that the CSC can
issue a writ of execution to enforce judgments,
which is deemed final.
B. INSTITUTIONAL INDEPENDENCE
SAFEGUARDS
Constitutional Safeguards
The commissions are constitutionally
created, and may not be abolished by law
(PHIL. CONST. art. IX-A, §1)
Each
is
expressly
described
as
independen
Each is conferred certain powers and
functions by the Constitution which cannot
POLITICAL LAW
be reduced by statute (PHIL. CONST. art. IXB, C, and D)
The Chairmen and members cannot be
removed, except by impeachment (PHIL.
CONST. art. XI, § 2)
The Chairmen and the members are given
a fairly long term of office of 7 years (PHIL.
CONST. art. IX-B, C, and D, § 1, ¶ 2)
The Chairmen and members may not be
re-appointed or appointed in an acting
capacity
The salaries of the Chairmen and
members are relatively high and may not
be decreased during continuance in office
(PHIL. CONST. art. IX, § 3; art. XVIII, § 117)
The Commissions enjoy fiscal autonomy
(PHIL. CONST. art. IX-A, § 5).
Each Commission en banc may
promulgate its own procedural rules,
provided they do not diminish, increase or
modify substantive rights (PHIL. CONST. art.
IX, § 6)
o In case of conflict between the
Rules of Court and the Rules
promulgated by the commission,
the prevailing rule will depend on
where the case is filed. If before
the commission, the rule of the
commission prevails, if before a
regular court, the Rules of Court
will prevail.
o The power of the Supreme Court
to review the rules of quasi-judicial
agencies does not apply to
Constitutional Commissions
The Chairmen and members are subject to
certain disqualifications calculated to
strengthen their integrity (PHIL. CONST. art.
IX, § 2)
The Commissions may appoint their own
officials and employees in accordance with
Civil Service Law (PHIL. CONST. art. IX, §
4).
Fiscal Autonomy
Fiscal autonomy means that there is automatic and
regular release as opposed to the fiscal autonomy
of the judiciary, which includes the rule that
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appropriation may not be less than the previous
year.
Rotational Scheme of Appointments
This scheme provides that the first appointees shall
serve terms of 7, 5 and 3 years, respectively.
There appears to be near unanimity as to the
purpose/s of the rotational system, as originally
conceived, i.e., to place in the commission a new
appointee at a fixed interval (every two years
presently),
thus
preventing
a
four-year
administration appointing more than one
permanent and regular commissioner, or to borrow
from Commissioner Monsod of the 1986
CONCOM, o prevent one person (the President of
the Philippines) from dominating the commi ion
(Funa v. Chairman of COA, G.R. No. 192791, April
24, 2012).
The 2 conditions for the workability of the
R a
a Sc
are:
The terms of the first batch of
commissioners should start on a common
date; and
Any vacancy due to the death, resignation
or disability before the expiration of the
term should be filled only for the unexpired
balance of the term (Funa v. Chairman of
COA, G.R. No. 192791, Apr. 24, 2012
citing Republic v. Imperial, G.R. No. L8684, March 31, 1955).
Where the Rotational Scheme Applies:
Civil Service Commission (CSC)
Commission on Elections (COMELEC)
Commission on Audit (COA)
Judicial and Bar Council (JBC)
Promotional Appointment of Commissioner to
Chairman
Article IX-D, Sec. 1(2) does not prohibit a
promotional appointment from commissioner to
chairman as long as:
(a) The commissioner has not served the full
term of 7 years; and
(b) The appointment to any vacancy shall be
only for the unexpired portion of the term
of the predecessor. (PHIL. CONST. art. IXD, Sec. § 1(2))
POLITICAL LAW
(c) The promotional appointment must
conform to the rotational plan or the
staggering of terms in the commission
membership.
Jurisprudence on Sec.1(2), Art.IX-D
1. Term of Appointment: The appointment of
members of any of the three constitutional
commissions, after the expiration of the
uneven terms of office of the first set of
commissioners, shall always be for a fixed
term of seven (7) years; an appointment for a
lesser period is void and unconstitutional.
The appointing authority cannot validly
shorten the full term of seven (7) years in case
of the expiration of the term as this will result
in the distortion of the rotational system
prescribed by the Constitution.
2. Rule on Appointment to Vacancies:
Appointments to vacancies resulting from
certain causes (death, resignation, disability
or impeachment) shall only be for the
unexpired portion of the term of the
predecessor; such appointments cannot be
less than the unexpired portion [as it will
disrupt the staggering].
3. Members of Commission who served Full
Term: Members of the Commission who were
appointed for a full term of seven years and
who served the entire period, are barred from
reappointment to any position in the
Commission. The first appointees in the
Commission under the Constitution are also
covered
by
the
prohibition
against
reappointment.
4. Eligibility for Appointment as Chairman of
Commissioner
who
resigns:
A
commissioner who resigns after serving in the
Commission for less than seven years is
eligible for an appointment as Chairman for
the unexpired portion of the term of the
departing chairman. Such appointment is not
covered by the ban on reappointment,
provided that the aggregate period of the
length of service will not exceed seven (7)
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years and provided further that the vacancy in
the position of Chairman resulted from death,
resignation, disability or removal by
impeachment. This is not a reappointment, but
effectively a new appointment.
5. Rule on Temporary Appointments: Any
member of the Commission cannot be
appointed or designated in a temporary or
acting capacity.
.
Term of Office of Each Commission Member
The terms of the first Chairmen and
Commissioners of the Constitutional Commissions
under the 1987 Constitution must start on a
common date, irrespective of the variations in the
dates of appointments and qualifications of the
appointees, in order that the expiration of the first
terms of seven, five and three years should lead to
the regular recurrence of the two-year interval
between the expiration of the terms. This common
appropriate starting point must be on February 02,
1987, the date of the adoption of the 1987
Constitution.
(a) Term the time during which the officer
may claim to hold office as of right, and
fixes the interval after which the several
incumbents shall succeed one another.
(b) Tenure term during which the incumbent
actually holds the office.
The term of office is not affected by the hold- over.
The tenure may be shorter than the term for
reasons within or beyond the power of the
incumbent. (Gaminde v. Commission on Audit,
G.R. No. 140335, Dec. 13, 2000)
C. POWERS AND FUNCTIONS
Civil Service Commission
The Civil Service Commission, as the central
personnel agency of the Government, shall
establish a career service and adopt measures to
promote
morale,
efficiency,
integrity,
responsiveness, progressiveness, and courtesy in
the civil service. It shall strengthen the merit and
rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive to
POLITICAL LAW
public accountability. It shall submit to the
President and the Congress an annual report on its
personnel programs. (PHIL. CONST. art. IX-B, § 3)
FUNCTIONS OF THE CSC
1. In the exercise of its powers to implement
R.A. 6850 (granting civil service eligibility
to employees under provisional or
temporary status who have rendered
seven years of efficient service), the CSC
enjoys a wide latitude of discretion, and
may not be compelled by mandamus
(Torregoza v. Civil Service Commission,
G.R. No. 101526, July 3, 1992).
2. Under the Administrative Code of 1987,
the Civil Service Commission has the
power to hear and decide administrative
cases instituted before it directly or on
appeal, including contested appointments.
3. The Commission has original jurisdiction to
hear and decide a complaint for cheating
in the Civil Service examinations
committed by government employees.
(Cruz v. CSC, G.R. No. 144464, Nov. 27,
2001)
4. It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower level
officials (in cases involving personnel
actions) be appealed to the agency head,
then to the Civil Service Commission.
(Olanda v.Bugayong G.R. No. 140917,
Oct. 10, 2003).
5. As the central personnel agency of the
government, shall establish a career
service and adopt measures to promote
morale,
efficiency,
integrity
responsiveness, progressiveness and
courtesy in the Civil Service.
a. It may revoke a certificate of
eligibility motu proprio and
consequently, the power to revoke
one that has been given.
b. Where the case simply involves
the rechecking of examination
papers and nothing more than a
re-evaluation
of
documents
already in the records of the CSC
according to a standard answer
key previously set by it, notice and
hearing is not required. Instead,
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6.
7.
8.
9.
what will apply in such a case is
the rule of res ipsa loquitur (Lazo
v. Civil Service Commission, G.R.
No. 108824, Sept. 14, 1994).
Strengthen the merit and rewards system
Integrate
all
human
resources
development programs for all levels and
ranks
Institutionalize a management climate
conducive to public accountability
Submit to the President and the Congress
an annual report of personnel programs
Scope of the Civil Service Commission (BIGAS)
1. Branches
2. Instrumentalities
3. GOCCs with original charters
4. Agencies of the government
5. Subdivisions
(PHIL. CONST. art. IX-B, § 2(1))
Classes of Service
1. Career
Service:
characterized
by
entrance (a) based on merit and fitness to
be determined, as far as practicable, by
competitive examinations; or (b) based on
highly technical qualifications; with
opportunity for advancement to higher
career positions and security of tenure.
a. Open Career Positions: where
prior qualification in an appropriate
examination is required
b. Closed career positions: scientific
or highly technical in nature;
c. Career
Executive
Service:
undersecretaries, bureau directors
d. Career Officers: other than those
belonging to the Career Executive
Service who are appointed by the
President (e.g. those in the foreign
service)
e. Positions in the AFP although
governed by a different merit
system
f. Personnel of GOCCs with original
charters
g. Permanent laborers, whether
skilled, semiskilled or unskilled
2. Non-Career Service: characterized by
entrance on bases other than those of the
usual tests utilized for the career service,
POLITICAL LAW
tenure limited to a period specific by law,
or which is co-terminus with that of the
appointing authority or subject to his
pleasure, or which is limited to the duration
a. Elective officials, and their
personal and confidential staff;
b. Department heads and officials of
Cabinet rank who hold office at the
pleasure of the President, and
their personal and confidential
staff;
c. Chairmen and members of
commissions and bureaus with
fixed terms;
d. Contractual personnel;
e. Emergency
and
seasonal
personnel
The CSC cannot disallow an appointment to a
position authorized by law but not included in
the Index of Occupational Service. Although the
CSC rules limit appointments to positions within the
Index of Occupational Service, nevertheless, it is
limited to the implementation of the laws it is tasked
to enforce. RA 8494 exempted the Trade and
Investment Corporation from conforming to the
position classification; thus, the appointment is
valid (Trade and Investment v. CSC, G.R. No.
182249, March 5, 2013).
Appointments in the Civil Service
General Rule: Made only according to merit and
fitness to be determined, as far as practicable, by
competitive examination
Exceptions:
1. Policy determining Where the officer lays
down principal or fundamental guidelines
or rules; or formulates a method of action
for government or any of its subdivisions;
e.g. department head.
2. Primarily confidential Denoting not only
confidence in the aptitude of the appointee
for the duties of the office but primarily
close intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals on
confidential matters of state (De los Santos
v. Mallare, G.R. No. L-3881, Aug. 31,
1950); OR one declared to be so by the
President of the Philippines upon the
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recommendation of the CSC (Salazar v.
Mathay, G.R. No. L-44061, Sept. 20, 1976)
3. Highly technical Requires possession of
technical skill or training in supreme
degree. (De los Santos v. Mallare, supra)
Types of Appointment
1. Permanent
Status:
A
permanent
appointment shall be issued to a person
who meets all the requirements for the
positions to which he is being appointed,
including
the
appropriate
eligibility
prescribed, in accordance with the
provisions of law, rules and standards
promulgated in pursuance thereof.
2. Temporary Status: In the absence of
appropriate eligibles and when it becomes
necessary in the public interest to fill a
vacancy, a temporary appointment shall
be issued to a person who meets all the
requirements for the position to which he is
being appointed except the appropriate
civil service eligibility; provided that such
temporary appointment shall not exceed
12 months, but the appointee may be
replaced sooner if a qualified civil service
eligible becomes available.
CSC may not terminate the employment of a
civil servant
The CSC may not terminate the employment of a
civil servant. The CSC is not a co-manager or
surrogate administrator of government offices and
agencies. Its functions and authority are limited to
approving or reviewing appointments to determine
their compliance with requirements of the Civil
Service Law. On its own, the Commission does not
have the power to terminate employment or drop
members from the rolls (UP and Torres v. CSC,
G.R. No. 132860, April 3, 2001).
Security of Tenure in Civil Service Law
The concept of security of tenure in the Civil
Service Law is embraced in Section 2(3), Article XIB. No officer or employee of the civil service shall
be removed or suspended except for cause
provided by la .
Classes of non-competitive positions
Policy determining
where the officer
lays down principal or fundamental
POLITICAL LAW
guidelines or rules or formulates a method
of action for government or any of its
subdivisions. (Nachura, p. 418)
Primarily confidential when the nature
of the office requires close intimacy
between the appointee and appointing
authority which insures freedom of
intercourse without embarrassment or
freedom from misgiving of betrayal of
personal trust on confidential matters of
state.
Highly technical
it means something
beyond the ordinary requirements of the
profession. Hence, its determination is
always a question of fact. (CSC v. Javier,
G.R. No. 173264, Feb. 22, 2008)
When Position Primarily Confidential
A position is considered primarily confidential if the
nature of the office requires close intimacy between
the appointee and appointing authority which
insures
freedom
of
intercourse
without
embarrassment or freedom from misgiving of
betrayal of personal trust on confidential matters of
state.
The Guarantee of Security of Tenure for
Primarily Confidential Positions
They are covered by the guarantee of security of
tenure but the termination of their official relation
can be justified on the ground of loss of confidence
because in that case their cessation from office
involves no removal but the expiration of the term
of office.
The CSC cannot take back-up files in the computer
of an employee to determine if he was acting as
counsel for employees with cases before the
Commission when such employee has a
reasonable expectation of privacy. In determining
such, the following factors should be considered:
(RAC)
1. The Emplo ee Relationship to the item
seized;
2. Whether the employee took Action to
maintain his privacy in the item
3. Whether the item was in the immediate
Control of the employee;
(Pollo v. Constantino-David, G.R. No. 181881, Oct.
18, 2011)
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Rule on Security of Tenure
No officer of employee of the CSC shall be
removed or suspended except for causes provided
by law (PHIL. CONST. art. IX-B, § 2, ¶ 3). Security
tenure is available even to positions which are
considered highly technical, policy-determining
and primarily confidential.
Rule on Partisan Political Activity
Joint Circular No.001 d. 2016 of the COMELEC
and CSC reiterated art. IX, § 2(4) that no officer or
employee in the civil service shall engage, directly
or indirectly, in any electioneering or partisan
political campaign. However, the prohibition of
engaging in partisan political activity does not apply
to department secretaries. (Santos v. Yatco, G.R.
No. L013932, Dec. 24, 1959)
Right to Self-Organization
The right to self-organization shall not be denied to
government employees. But employees in the civil
service may not resort to strikes, walkouts, and
other temporary work stoppages, like workers in
the private sector, to pressure the government to
accede to their demands. Thus, their right to
organize does not include the right to strike. (SSS
v. CA, G.R. No. 85279, July 28, 1989)
Prohibition against Additional and Double
Compensation
Rule: No elective or appointive public officer or
employee shall receive additional, double, or
indirect
compensation,
unless
specifically
authorized by law, nor accept without the consent
of the Congress, any present, emolument, office or
title of any kind from any foreign government.
Note that, pensions or gratuities shall not be
considered as additional, double or indirect
compensation. (PHIL. CONST. art. IX-B, § 8)
a. Additional Compensation: when for one
and the same office for which
compensation has been fixed there is
added to such fixed compensation an
extra reward in the form of bonus and the
like (BERNAS)
b. Double Compensation: refers to two sets
of compensation for two different offices
held concurrently by one officer
POLITICAL LAW
Can ex officio members receive per diems?
No, ex officio members of a board are not entitled
to per diems. (PEZA v COA, G.R. No. 189767, July
3, 2012)
Commission on Elections
Enforce and administer
All laws and regulations relative to the
conduct of an election, plebiscite, initiative,
referendum, and recall. e.g., COMELEC
can enjoin construction of public works
within 45 days of an election.
The COMELEC can take cognizance of
any question on the conduct of plebiscite
such as to correct or check what the Board
of Canvassers erroneously or fraudulently
did during the canvassing, verify or
ascertain the results of the plebiscite either
through pre-proclamation case or through
revision of ballots. The power of the
COMELEC to ascertain the results of the
plebiscite is implicit in the power to enforce
all laws relative to the conduct of plebiscite.
COMELEC can take jurisdiction over
cases involving party identity and
leadership or controversy as to leadership
in the party. Such jurisdiction is sourced
from the general power of the Commission
to administer laws and rules involving the
conduct of election.
here is no need for a special legislation for
the authorization of the conduct of recall
elections because it is deemed included in
the constitutional function of COMELEC,
hence, contemplated in its budget in the
GAA (Goh v. Bayron, G.R. No. 212584,
Nov. 25, 2014).
Exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and
qualifications of all elective regional, provincial
and city officials
Election contests in the Sangguniang Kabataan
(SK) are not under COMELEC jurisdiction but
under the jurisdiction of the DILG.
Exercise appellate jurisdiction over all contests
involving:
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1. Elective municipal officials decided by
trial courts of general jurisdiction
2. Elective barangay officials decided by
trial courts of limited jurisdiction
a. A petition for certiorari questioning
an interlocutory order of a trial
court in an electoral protest was
within the appellate jurisdiction of
the COMELEC. The Court
recognizes
the
COMELEC
appellate jurisdiction over petitions
for certiorari against all acts or
omissions of courts in election
cases (Bulilis v. Nuez, G.R. No.
195953, Aug. 9, 2011).
b. Petition for certiorari questioning
the decision of COMELEC division
is premature as there is a plain
and speedy remedy before
COMELEC En Banc (Villarosa v.
Festin, G.R. No. 212953, Aug. 5,
2014).
3. Decisions, final orders, or rulings of the
COMELEC contests involving elective
municipal and barangay offices shall be
final, executory, and not appealable.
a. Exception: May be appealed to
the SC EN BANC on questions of
law When the decision is brought
on a special civil action for
certiorari,
prohibition,
or
mandamus under Rule 64 for
grave abuse of discretion under
Article IX-A Section 7.
Issue writs of certiorari, prohibition and
mandamus in the exercise of its appellate
jurisdiction.
Contempt powers
COMELEC can exercise this power only in relation
to its adjudicatory or quasi-judicial functions. It
CANNOT exercise this in connection with its purely
executive or ministerial functions.
If it is a pre-proclamation controversy, the
COMELEC
exercises
quasi-judicial
or
administrative powers.
Its jurisdiction over con e
(after proclamation) is
in exercise of its judicial functions.
POLITICAL LAW
Decide, except those involving the right to vote, all
questions
affecting
elections,
including
determination of the number and location of polling
places, appointment of election officials and
inspectors, and registration of voters. These
petitions are cognizable by the Regular Courts
(MTC).
Deputize, with the concurrence of the President,
law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible
elections.
This power is NOT limited to the election
period.
Applies
to
both
criminal
and
administrative cases.
Register political parties, organizations, or
coalitions, accredit ci i en
arms of the
Commission on Elections.
Political parties, etc. must present their
platform or program of government.
There should be sufficient publication.
Groups that cannot be registered:
1. Religious denominations/ sects
2. Those that seek to achieve their goals
through violence or unlawful means
3. Those that refuse to uphold and
adhere to the Constitution
4. Those supported by any foreign
government e.g. receipt of financial
contributions related to elections
File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate,
prosecute cases of violations of election laws,
including acts or omissions constituting elections
frauds, offenses and malpractices.
COMELEC has exclusive jurisdiction to investigate
and prosecute cases for violations of election laws.
COMELEC can deputize prosecutors for this
purpose. The actions of the prosecutors are the
actions of the COMELEC.
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COMELEC can conduct preliminary investigation
on election cases falling within its jurisdiction.
Recommend to the Congress effective measures
to minimize election spending, including limitation
of places where propaganda materials shall be
posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and
nuisance candidacies.
Recommend to the President the removal of any
officer or employee it has deputized, or the
imposition of any other disciplinary action, for
violation or disregard of, or disobedience to its
directive, order, or decision.
Submit to the President and the Congress a
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall
(PHIL. CONST. art. IX-C, § 2).
The vote requirement for a valid COMELEC en
Banc resolution is a majority of the votes of all
members, or 4 votes. If the six members are evenly
divided, the Commission on Elections should
rehear the case (Sevilla v. COMELEC, G.R.
203833, March 19, 2013).
Powers not given to COMELEC
Decide questions involving the right to vote
(placed under jurisdiction of courts);
Transfer
municipalities
from
one
congressional district to another for the
purpose of preserving proportionality.
Cases decided by COMELEC subject to judicial
review:
Decisions or determinations by COMELEC in the
exercise of its administrative (not quasi-judicial)
power may be questioned in an ordinary civil action
before the trial court. (Filipinas Engineering &
Machine Shop v. Ferrer, G.R. No. L-31455, Feb.
28, 1985).
The Court has no power to review on
certiorari an interlocutory order or even a
final resolution issued by a DIVISION of
the COMELEC. The Court can only review
a final decision or resolution of the
COMELEC
en
banc
(Cagas
vs.
COMELEC, G.R. No. 194139, Jan. 24,
2012).
POLITICAL LAW
COMELEC has jurisdiction to determine
the presence of probable ca e in
election cases. The finding of probable
cause and the prosecution of election
offenses rests in the COMELEC sound
discretion (Baytan v. COMELEC, G.R. No.
153945, Feb. 4, 2003).
The Chief State Prosecutor, who may have
been designated by the COMELEC to
prosecute a criminal action, merely derives
his authority from the COMELEC. It is
beyond his power to oppose the appeal
made by COMELEC (Comelec v. Silva,
G.R. No. 129417, Feb. 10, 1998).
The COMELEC cannot itself, in the same
cancellation (of certificate of candidacy) case,
decide the qualification or lack thereof of the
candidate if such issues are yet undecided or
undetermined by the proper authority.
The provisions in Article IX-C, Section 2,
enumerating the powers and functions of
COMELEC does not have the same
exactitude of the provisions of Art. VI, Sec.
17, which provides for the HRET and SET,
or that of Art. VII, Sec. 4, which provides
that the SC en banc shall be the sole judge
of all contest regarding the Presidency and
Vice-Presidency. These tribunals have
jurisdiction
over
the
question
of
qualifications of the President, VP,
Senators, and the HoR.
o Not one of the enumerated powers
of the COMELEC as stated in
Article IX-C, Sec. 2 of the
Constitution
grants
the
commission
the
power
to
determine the qualifications of a
candidate.
A COMELEC rule or resolution cannot
supplant or vary the legislative enactments
that
distinguish
the
grounds
for
disqualification from those of ineligibility,
and the appropriate proceedings to raise
the said grounds. (Fermin v. COMELEC,
G.R. No. 179695, Dec. 18, 2008)
Insofar as the qualification of a candidate
is concerned, Rule 25 and Rule 23 of the
COMELEC rules do not allow authorization
and do not constitute vestment of
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jurisdiction for the COMELEC to determine
the qualification of a candidate.
The facts of qualification must first be
established in a prior proceeding before an
authority vested with jurisdiction. Prior
determination of qualification may be by
statute, by an executive order or by a
judgment of a competent court or tribunal.
Lacking this prior determination, the
certificate of candidacy cannot be
cancelled or denied due course on ground
of false representations regarding a
candida e qualifications except if there
exists self-evident facts of unquestioned or
unquestionable veracity and judicial
confessions.
In this light the COMELEC cannot cancel
Poe certificate of candidacy lacking prior
determination of her qualifications by a
competent body. (Poe-Llamanzares v.
Comelec et al, G.R. Nos. 221697 &
221698-700, March 8, 2016)
The COMELEC po er o motu proprio deny due
course to a certificate of candidacy is subject to the
candida e oppor ni o be heard. Under Ar icle
II, Sec ion 26 of he Con i ion, he a e hall
guarantee equal access to opportunities for public
ser ice. (PHIL. CONST. art. II, § 26). This, however,
does not guarantee a constitutional right to run for
or hold public office. To run for public office is a
mere privilege subject to limitations imposed by
law, such as prohibition on nuisance candidates.
To minimize logistical confusion caused by
n i ance candida e , heir COC ma be denied
due course by the COMELEC, through motu
proprio or upon verified petition of an interested
party, subject to an opportunity to be heard.
(LEONEN: Timbol v Commission on Elections,
G.R. No. 206004, Feb. 24, 2015)
Regulation of Public Utilities, Media and
Franchises
The COMELEC may, during the election period,
supervise or regulate the utilization of all franchises
or permits for the operation of transportation and
other public utilities, media, all grants, privileges
and concessions, granted by the Government.
(PHIL. CONST. art. IX-C, § 4)
POLITICAL LAW
The aim is to ensure equal opportunity, time, and
space, and the right to reply, including reasonable
equal rates for public information campaigns and
forums among candidates. (PHIL. CONST. art. IX-C,
§ 4).
Can print media be compelled to allocate free
space?
No. Print media may not be compelled to allocate
free space to the Commission. Such would amount
to a taking of property without just compensation.
(Philippine Press Institute v. COMELEC, G.R. No
119694, May 22, 1995)
Can the COMELEC regulate expressions made
by private citizens?
No. COMELEC had no legal basis to regulate
expressions made by private citizens. As such,
COMELEC order to remove the tarpaulin posted
by the Diocese of Bacolod bearing the heading
Con cience Vo e was unconstitutional. (Diocese
of Bacolod v COMELEC, G.R. No 205728, Jan. 21,
2015)
Are the functions under R.A. No. 8436
mandatory? (LEONEN)
Yes. The minimum functional capabilities
enumerated under Section 6 of R.A. No. 8436, as
amended, are mandatory. These functions
constitute the most basic safeguards to ensure the
transparency, credibility, fairness and accuracy of
the upcoming elections. The law is clear. A o erverified paper audit rail requires the following: (a)
individual voters can verify whether the machines
have been able to count their votes; and (b) that the
verification at minimum should be paper based.
There appears to be no room for further
interpretation of a o er-verified paper audit rail.
The paper audit trail cannot be considered the
physical ballot, because there may be instances
where the machine may translate the ballot
differently, or the voter inadvertently spoils his or
her ballot. (Bagumbayan-VNP Movement, Inc. vs
COMELEC, G.R. No. 222731, March 8, 2016)
Commission on Audit
Examine, audit, and settle all accounts
pertaining to:
1. Revenue and receipts of funds or property
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2. Expenditures and uses of funds or
property owned or held in trust by, or
pertain to:
a. The Government
b. Any of its subdivisions, agencies
or instrumentalities
c. GOCCs with original charters.
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary,
excessive,
extravagant
or
unconscionable
expenditures of government funds. In resolving
cases brought before it on appeal, respondent
COA is not required to limit its review only to the
grounds relied upon by a government agenc
auditor with respect to disallowing certain
disbursements of public funds. In consonance with
its general audit power, respondent COA is not
merely legally permitted, but is also duty-bound to
make its own assessment of the merits of the
disallowed disbursement and not simply restrict
itself to reviewing the validity of the ground relied
upon by the auditor of the government agency
concerned. To hold otherwise would render COA
vital constitutional power unduly limited and
thereby useless and ineffective (Yap v.
Commission on Audit, G.R. No.158562, April 23,
2010).
Funds cannot be released without auditing in preaudit while in post-audit, the auditing is done only
after the funds are released. (Maritime Industry
Authority v. Commission on Audit, G.R. No.
185812, Jan. 13, 2015)
COA is not required to limit its review only to the
grounds relied upon by the auditor with respect to
disallowing certain disbursements of public funds.
In consonance with its general audit power, COA is
not merely legally permitted but is also duty-bound
to make its own assessment of the merits of the
disallowed disbursement and not simply restrict to
reviewing the validity of the ground relied upon by
the auditor of the government agency concerned.
To settle government accounts
This means the power to settle liquidates accounts
i.e. accounts which may be adjusted simply by an
arithmetical process. It does not include the power
to fix the amount of an unfixed or undetermined
debt.
POLITICAL LAW
To define the scope and techniques for its own
auditing procedures
To promulgate accounting and auditing rules
including those for the prevention and disallowance
of irregular, unnecessary, excessive, extravagant,
or unconscionable expenditures;
Conduct post-audit with respect to the
following:
1. Constitutional bodies, commissions, and
offices granted fiscal autonomy
2. Autonomous
state
colleges
and
universities
3. GOCCs
and
their
subsidiaries
incorporated under the Corporation Code
4. Non-governmental
entities
receiving
subsidy or equity, directly or indirectly,
from or through the government, which are
required by law, through the granting
institution, to submit to such audit.
5. To decide administrative cases involving
expenditure of public funds
(PHIL. CONST. art. IX-D, § 2)
If COA finds the internal control system of audited
agencies inadequate, COA may adopt measures,
including temporary or special pre-audit, as
necessary to correct deficiencies.
Keep the general accounts of the government
Preserve vouchers and other supporting
papers pertaining thereto for such period as
may be provided by law
The functions of COA can be classified as:
1. Examining and auditing all forms of
government revenues and expenditures
2. Settling government accounts
3. Promulgating accounting and auditing
rules
4. Deciding administrative cases involving
expenditures of public funds.
COA non-exclusive power to audit
The COA does not have the exclusive power to
examine and audit government entities. As such,
public corporations under COA, jurisdiction may
employ private auditors. However, COA findings
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and conclusions necessarily prevail over those of
private auditors, at least insofar as government
agencies and officials are concerned (DBP v COA,
G.R. No. 88435, Jan. 16, 2002)
Thus, private auditors can be hired but if there is a
conflict, COA audit prevails.
Prosecutors Power to Review Accounts Settled
by COA
Prosecutors may still review accounts already
settled and approved by COA for the purpose of
determining possible criminal liability. This is
because COA interest in such accounts is merely
administrative.
Exclusive Authority to Define Scope of Audit
and Examination
Pursuant to its mandate as the guardians of public
funds, the COA has the exclusive authority to
define the scope of its audit and examination,
establish the techniques and methods for such
review and promulgate accounting and auditing
rules and regulations (Veloso v. Commission on
Audit, G.R. No. 193677, Sept. 6, 2011).
What are Considered Private Corporations
Note that not all corporations, which are not
government owned or controlled, are ipso facto to
be considered private corporations as there exists
another distinct class of corporations or chartered
institutions which are otherwise known as p blic
corpora ion . These corporations are treated by
law as agencies or instrumentalities of the
government. As presently constituted, the BSP is a
public corporation created by law for a public
purpose, and being such the funds of the BSP fall
under the jurisdiction of the Commission on Audit.
(Boy Scouts of the Philippines v. COA, G.R. No.
177131, June 7, 2011)
Complete Discretion afforded to COA
COA is generally accorded complete discretion in
the exercise of its constitutional duty and
responsibility to examine and audit expenditures of
public funds. Only in instances when COA acts
without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction shall the Court interfere. Thus, COA can
disallow TESDA from paying a healthcare
allowance to their employees. (TESDA v. COA,
G.R. No. 196418, Feb. 10, 2015)
POLITICAL LAW
Jurisdiction
1. Of the Commission in General: No law
shall be passed exempting any entity of the
Government, or any investment of public
funds, from the jurisdiction of the COA
(PHIL. CONST. art. IX-D, § 3)
2. Over GOCCs: The Constitution vests in the
COA audit jurisdiction over go ernmen owned and controlled corporations with
original charters, as well as government
owned or controlled corporations without
original char er . GOCCs with original
charters are subject to COA pre-audit,
while GOCCs without original charters are
subject
to
COA
post-audit.
The
determining factor of COA
audit
jurisdiction is government ownership or
control of the corporation.
3. Over LGUs: LGUs, through granted local
fiscal autonomy are still within the audit
jurisdiction of the COA (Veloso v.
Commission on Audit, G.R. No. 193677,
Sept. 6, 2011).
COA authority in Public Bidding
COA has the power to determine the meaning of
p blic bidding and what constitutes failure of the
same when regulations require public bidding for
the sale of government property.
D. COMPOSITION AND QUALIFICATION
OF MEMBERS
Civil Service Commission
Composition
A Chairman, and 2 Commissioners
Qualifications (PHIL. CONST., art. IX-B, § 1(1))
1. Natural-born citizens of the Philippines;
2. At the time of their appointment, at least 35
years of age
3. With
proven
capacity
for
public
administration; and
4. Must not have been candidates for any
elective
position
in
the
election
immediately preceding their appointment
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Disqualifications
1. No candidate who has lost in any election
shall, within 1 year after such election, be
appointed to any office in the Government
of any GOCC or in any of their
subsidiaries. (PHIL. CONST. Art. IX-B, §6)
2. No elective official shall be eligible for
appoint or designation in any capacity to
any public office or position during his
tenure. (PHIL. CONST. Art. IX-B, § 7, ¶ 1)
Exceptions:
a. the Vice President may be
appointed as member of the
Cabinet
b. Member of the Congress is
designated to sit in the JBC
3. Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other
office or employment in the government or
any subdivision, agency or instrumentality
thereof including GOCCs or their
subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶
2)
4. No officer or employee in the civil service
shall engage, directly or indirectly, in any
electioneering
or
partisan
political
campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4)
Appointment and Term
Appointed by the President with the consent of the
Commission on Appointments. The term is 7 years,
without reappointment. The prohibition of
reappointment applies even if the Commissioner
has served for less than 7 years. (BERNAS)
Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall
any member be appointed or designated in a
temporary or acting capacity. (PHIL. CONST., art. IXB, § 1, ¶ 2)
Commission on Elections
Composition
One Chairman and 6 Commissioners
Qualifications (NTCIM)
1. Natural-born citizen;
2. At least 35 years old at the time of
appointment;
3. College degree holder;
4. Not a candidate in any election
Immediately preceding the appointment;
and
5. Majority, including the chairman, must be
members of the Philippine Bar who have
been engaged in the practice of law for at
least 10 years
(PHIL. CONST., art. IX-C, § 1, ¶ 1).
Appointment and Term
Appointed by the President with the consent of the
commission of Appointment, for a term of 7 years,
without reappointment. (PHIL. CONST. art. IX-C, § 1,
¶ 2)
If the appointment was ad interim, a subsequent
renewal of the appointment does not violate the
prohibition on reappointment because no previous
appointment was confirmed by the Commission on
Appointment. Further, the total term of both
appointments must not exceed the 7-year limit.
(Matibag v. Benipayo, G.R. No. 149036, April 2,
2002)
Commission on Audit
Composition
1 Chairman, 2 Commissioners
Qualifications
1. Natural born citizen;
2. At least 35 years old at the time of
appointment
3. CPAs with at least 10 years auditing
experience or members of the Bar with at
least 10 years of experience in the practice
of law; at no time shall all members belong
to the same profession, and
4. Not a candidate in any election
immediately preceding appointment
(PHIL. CONST. art. IX-D, § 1, ¶ 1)
Appointment and Term
Appointed by the President with the consent of the
Commission of Appointments for a term of 7 years,
without reappointment.
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Appointment to any vacancy shall only be for the
unexpired portion of the term of the predecessor.
In no case shall any member be appointed or
designated in a temporary or acting capacity. (PHIL.
CONST. art. IX-D, § 1, ¶ 2)
Jurisdiction of each Constitutional
Commission
Civil Service Commission
Scope:
All
branches,
subdivisions,
instrumentalities, agencies of the government,
including government owned and controlled
corporations with original charters.
Wi h Original Char er means that the
GOCC was created by special law or by
Congress
If incorporated under the Corporation
Code, it does not fall within the Civil
Service and is not subject to the CSC
jurisdiction
If previously government-controlled, but is
later privatized, it ceases to fall under CSC
Jurisdiction is determined as of the time of
filing the complaint.
Commission on Elections
EXCLUSIVE ORIGINAL jurisdiction over all
contests relating to the elections, returns, and
qualifications of all elective REGIONAL,
PROVINCIAL and CITY officials
Election contests in the Sangguniang Kabataan
(SK) are not under COMELEC jurisdiction but
under the jurisdiction of the DILG.
APPELLATE jurisdiction over all contests
involving:
o ELECTIVE MUNICIPAL officials
decided by trial courts of general
jurisdiction
o ELECTIVE BARANGAY officials
decided by trial courts of limited
jurisdiction
A petition for certiorari questioning an
interlocutory order of a trial court in an
electoral protest was within the appellate
jurisdiction of the COMELEC. The Court
recognizes the COMELEC
appellate
jurisdiction over petitions for certiorari
POLITICAL LAW
against all acts or omissions of courts in
election cases (Bulilis v. Nuez, G.R. No.
195953, Aug. 9, 2011).
The COMELEC HAS jurisdiction over
intra-party disputes. The ascertainment of
the identity of a political party and its
legitimate officers is a matter that is well
within its authority. The COMELEC has the
power to enforce and administer all laws
and regulations relative to the conduct of
an election.
To resolve the issue, the COMELEC need
only refer to the Party Constitution. It need
not go as far as to resolve the root of the
conflict between the parties. It need only
resolve issues as may be necessary in the
exercise of its enforcement powers.
Commission on Audit
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary,
excessive,
extravagant
or
unconscionable
expenditures of government funds. In resolving
cases brought before it on appeal, respondent
COA is not required to limit its review only to the
grounds relied upon by a government agenc
auditor with respect to disallowing certain
disbursements of public funds. In consonance with
its general audit power, respondent COA is not
merely legally permitted, but is also duty-bound to
make its own assessment of the merits of the
disallowed disbursement and not simply restrict
itself to reviewing the validity of the ground relied
upon by the auditor of the government agency
concerned. To hold otherwise would render COA
vital constitutional power unduly limited and
thereby useless and ineffective (Yap v.
Commission on Audit, G.R. No.158562, April 23,
2010).
COA has authority not just over accountable
officers but also over other officers who perform
functions related to accounting such as verification
of evaluations and computation of fees collectible,
and the adoption of internal rules of control. COA
has the authority to define the scope of its audit and
examination, establish the techniques and
methods for such review and promulgate
accounting and auditing rules and regulations
(Veloso v. Commission on Audit, G.R. No. 193677,
Sept. 6, 2011).
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The Boy Scout of the Philippines ( BSP ) is a
government-owned and controlled corporation
under the jurisdiction of COA. The BSP Charter
(Commonwealth Act 111), entitled An Act to
Create a Public Corporation to be Known as the
Boy Scouts of the Philippines, and to Define its
Powers and P rpo e created the BSP as a
p blic corpora ion (Boy Scouts of the Philippines
v. COA, G.R. No. 177131, June 7, 2011)
POLITICAL LAW
- end of topic
-
The Manila Economic and Cultural Office
( MECO ) is subject to audit by the COA. The
MECO is sui generis. It was established when the
Philippines severed diplomatic relations with
Taiwan upon recognition of China. None of its
members are government officials. It is not a
GOCC nor an instrumentality. Its functions are of a
kind that would otherwise be performed by the
diplomatic and consular offices of the Philippines.
Nevertheless, the consular fees collected by the
MECO may be audited by the COA. (Funa v.
Manila Economic and Cultural Office, G.R. 193462,
Feb. 4, 2014)
Water districts are within the coverage of the COA.
A water district is a GOCC with a special charter
since it is created pursuant to a special law. Thus,
COA has the authority to investigate whether
directors, officials or employees of GOCCs
receiving allowances and bonuses are entitled to
such benefits under applicable laws. (Feliciano v.
Commission on Audit, G.R. 147402, Jan. 14, 2004)
F. PROHIBITED OFFICES AND INTERESTS
Prohibited Offices and Interests (BEEH)
No member of a Constitutional Commission shall,
during his tenure:
Be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by the
Government, any of its subdivisions,
agencies or instrumentalities
Engage in the Practice of any profession;
Engage in the Active management and
control of any business which in any way
may be affected by the functions of his
office; and
Hold any other Office or Employment.
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BILL OF RIGHTS
Political Law
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2. Types of Regulation
a. Prior restraint and subsequent
punishment
b. Content based and content neutral
c. Incitement and advocacy
d. Specificity
of
regulation
and
overbreadth doctrine
e. Speech regulation in relation to
election
f. Speech regulation in relation to media
3. Judicial analysis, presumptions and
levels and types of scrutiny
4. Special topics in free expression cases
a. Hate speech
b. Defamation and libel
c. Sedition and speech in relation to
rebellion
d. Obscenity/pornography
e. Commercial speech
f. National emergencies
g. Speech of public officers
5. Cognate rights
a. Freedom of assembly
b. Freedom of association
c. Freedom of information
IX. BILL OF RIGHTS
TOPIC OUTLINE UNDER THE SYLLABUS
IX. BILL OF RIGHTS
i. CONCEPT OF BILL OF RIGHTS
1. Privacy and autonomy
2. Relation to human rights
ii.
DUE PROCESS OF LAW
1. Concept to right to life, liberty and
property
2. Kinds of due process
a. Substantive
b. Procedural
i. Judicial
ii. Administrative
c. Levels of Scrutiny
iii.
EQUAL PROTECTION OF LAWS
1. Concept
2. Requisites for valid classification
3. Levels of scrutiny
iv.
RIGHT
AGAINST
UNREASONABLE
SEARCHES AND SEIZURES
1. Concept of privacy
2. Concept of a search
3. Requisites of a valid warrant
4. Warrantless searches
5. Warrantless arrests and detention
6. Exclusionary rule
7. Effects of unreasonable searches and
seizures
8. Effects of illegal detention
v.
vi.
PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE
1. Concept
of
communications,
correspondence
2. Intrusion, when and how allowed
3. Exclusionary rule
FREEDOM
OF
SPEECH
AND
EXPRESSION
1. Concept
a. Continuum of thought, speech,
expression, and speech acts
b. Purpose of free speech doctrines
c. Balance
between
unbridled
expression and liberty
vii.
FREEDOM OF RELIGION
1. Basic principles
a. Purpose
b. Concept of religion
2. Principle of separation of church and
state
3. Non-establishment clause
4. Free exercise clause
viii.
LIBERTY OF ABODE AND FREEDOM OF
MOVEMENT
1. Scope and limitations
2. Watch-list and hold departure orders
ix.
EMINENT DOMAIN
1. Concept
2. Just compensation
3. Abandonment of intended use and right of
repurchase
4. Expropriation by local government units
x.
NON-IMPAIRMENT OF CONTRACTS
xi.
ADEQUATE LEGAL ASSISTANCE AND
FREE ACCESS TO COURTS
xii.
RIGHT AGAINST SELF-INCRIMINATION
1. Scope and coverage
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2. Application
3. Immunity statutes
xiii.
xiv.
A. CONCEPT OF BILL OF RIGHTS
RIGHTS
OF
PERSONS
CUSTODIAL INVESTIGATION
1. Availability
2. Requisites
3. Waiver
UNDER
RIGTS OF THE ACCUSED
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed of the nature and
cause of accusation
7. Right to speedy, impartial, and public trial
8. Right of confrontation
9. Compulsory process
10. Trials in absentia
xv.
RIGHT TO SPEEDY DISPOSITION OF
CASES
xvi.
RIGHT AGAINST EXCESSIVE FINES AND
CRUEL, DEGRADING, AND INHUMAN
PUNSIHMENTS
xvii.
NON-IMPRISONMENT FOR DEBTS
xviii.
RIGHT AGAINST DOUBLE JEOPARDY
1. Requisites; scope
2. Limitations
xix.
xx.
RIGHT
AGAINST
SERVITUDE
INVOLUNTARY
EX POST FACTO LAWS AND BILLS OF
ATTAINDER
Concept and Purpose
The Bill of Rights governs the relationship between
the individual and the state. (People v. Marti, G.R.
No. 81561, Jan. 18, 1991)
The provisions in the Bill of Rights are selfexecuting. (Manila Prince Hotel v. GSIS, G.R. No.
122156 Feb. 3, 1997)
The Bill of Rights is designed to preserve the ideals
of liberty, equality and security against the assaults
of opportunism, the expediency of the passing
hour, the erosion of small encroachments, and the
scorn and derision of those who have no patience
with general principles. (Philippine Blooming Mills
Employment Organization v. Philippine Blooming
Mills Co., Inc., G.R. No. L-31195, June 5, 1973)
The purpose of the Bill of Rights is to withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials, and to establish them as
legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech, or
free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections.
(Philippine
Blooming
Mills
Employment
Organization, citing West Virginia State Board of
Education vs. Barnette, 319 U.S. 624, 638)
1. PRIVACY AND AUTONOMY
The Bill of Rights governs the relationship between
the individual and the state. Its concern is not the
relation between individuals, between a private
individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in
the private sphere inaccessible to any power
holder. (People v. Marti, G.R. No. 81561, Jan. 18,
1991)
In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be
invoked. Put differently, the Bill of Rights is not
meant to be invoked against acts of private
individuals. The equal protection erects no shield
against private conduct, however discriminatory or
wrongful. Private actions, no matter how
egregious, cannot violate the equal protection
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guarantee. (Yrasuegui v. PAL, G.R. No. 168081,
Oct. 17, 2008)
If the violation is by private individuals, the remedy
is found in the Civil Code, or if proper, in the
Revised Penal Code. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
2. RELATION TO HUMAN RIGHTS
While the Bill of Rights also protects property
rights, the primacy of human rights over property
rights is recognized. Because these freedoms are
delicate and vulnerable, as well as supremely
precious in our society and the threat of sanctions
may deter their exercise almost as potently as the
actual application of sanctions, they need
breathing space to survive, permitting government
regulation only with narrow specificity. (Philippine
Blooming Mills Employment Organization v.
Philippine Blooming Mills Co., Inc., G.R. No. L31195, June 5, 1973)
Property and property rights can be lost thru
prescription; but human rights are imprescriptible.
If human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of
oligarchs
political, economic or otherwise.
(Philippine
Blooming
Mills
Employment
Organization v. Philippine Blooming Mills Co., Inc.,
G.R. No. L-31195, June 5, 1973)
The superiority of human rights over property rights
is underscored by the fact that a mere reasonable
or rational relation between the means employed
by the law and its object or purpose
that the law
is neither arbitrary nor discriminatory nor
oppressive
would suffice to validate a law which
restricts or impairs property rights. On the other
hand, a constitutional or valid infringement of
human rights requires a more stringent criterion,
namely existence of a grave and immediate danger
of a substantive evil which the State has the right
to prevent. (Philippine Blooming Mills Employment
Organization v. Philippine Blooming Mills Co., Inc.,
G.R. No. L-31195, June 5, 1973)
POLITICAL LAW
B. DUE PROCESS OF LAW
No person shall be deprived of life, liberty, or
property without due process of law, nor shall any
person be denied the equal protection of the laws.
(PHIL. CONST., art. III, § 1)
Concept and Purpose
Due process of law means simply, first, that there
shall be a law prescribed in harmony with the
general powers of the legislative department of the
Government; second, that this law shall be
reasonable in its operation; third, that it shall be
enforced according to the regular methods of
procedure prescribed; and fourth, that it shall be
applicable alike to all the citizens of the state or to
all of a class. (Rubi v. Provincial Board of Mindoro,
G.R. No. L-14078, March 7, 1919)
Due process evades a precise definition. The
purpose of the guaranty is to prevent arbitrary
governmental encroachment against the life, liberty
and property of individuals. The due process
guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar
as their property is concerned. (White Light
Corporation v. City of Manila, G.R. No. 122846,
Jan. 20, 2009)
Scope
The guarantees of the Bill of Rights are universal in
their application to all persons within the territorial
jurisdiction, without regard to any differences of
race, color, or nationality. All natural persons, and
artificial persons, only in so far as their property is
concerned, are protected by the Due Process
clause. (Smith, Bell & Co. v. Natividad, G.R. No.
15574, Sept. 17, 1919)
Relativity
The concept of due process is not a static one.
What is due process of law depends on
circumstances. It varies with the subject-matter
and necessities of the situation. (Rubi v. Provincial
Board, citing Moyer vs. Peabody [1909], 212 U. S.,
82)
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1. CONCEPT OF RIGHT TO LIFE, LIBERTY,
AND PROPERTY
Life
The constitutional protection of the right to life is not
just a protection of the right to be alive or to the
security of one limb against physical harm. The
right to life is the right to a good life. The importance
of the quality of living now finds stronger emphasis
in Art. XIII on social justice, and even the life of the
unborn under Art. II. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
While the right to life guarantees essentially the
right to be alive - upon which the enjoyment of all
other rights is preconditioned - the right to security
of person is a guarantee of the secure quality of this
life. A secure quality of life pertains to a life lived
with the assurance that the government he
established and consented to, will protect the
security of his person and property. (Secretary of
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
Essentially, the right to security of person is [1]
freedom from fear; [2] a guarantee of bodily and
psychological integrity or security, and [3] a
guarantee of protection of one rights by the
government. (Secretary of Defense v. Manalo,
G.R. No. 180906, Oct. 7, 2008)
Liberty
The right to liberty guaranteed by the Constitution
includes the right to exist and the right to be free
from arbitrary personal restraint or servitude. (Rubi
v. Provincial Board of Mindoro, G.R. No. L-14078,
March 7, 1919)
Liberty includes the right of the citizens to be free
to use his faculties in all lawful ways; to live and
work where he will; to earn his livelihood by an
lawful calling; to pursue any avocations, and for
that purpose, to enter into all contracts which may
be proper, necessary, and essential to his carrying
out these purposes to a successful conclusion.
(Rubi v. Provincial Board of Mindoro, G.R. No. L14078, March 7, 1919)
The chief elements of the guaranty are:
1. The right to contract;
2. The right to choose one's employment;
POLITICAL LAW
3. The right to labor; and
4. The right of locomotion. (Rubi v. Provincial
Board of Mindoro, G.R. No. L-14078,
March 7, 1919)
Property
Protected property includes all kinds of property
found in the Civil Code. It has been deemed to
include vested rights such as a perfected mining
claim, or a perfected homestead, or a final
judgement. It also includes the right to work and the
right to earn a living. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
However, a license authorizing a person to enjoy a
certain privilege is neither a property nor property
right. A license is merely a permit or privilege to do
what otherwise would be unlawful, and is not a
contract between the authority granting it and the
person to whom it is granted; neither is it property
or a property right, nor does it create a vested right.
All licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a
property right protected by the due process clause
of the Constitution. (Chavez v. Romulo, G.R. No.
157036, June 9, 2004)
2. KINDS OF DUE PROCESS
The due process guaranty has traditionally been
interpreted as imposing two related but distinct
restrictions on government, "procedural due
process" and "substantive due process." (White
Light Corporation v. City of Manila, G.R. No.
122846, Jan. 20, 2009)
a. Substantive Due Process
If due process were confined solely to its
procedural aspects, there would arise absurd
situation of arbitrary government action, provided
the proper formalities are followed. Substantive
due process completes the protection envisioned
by the due process clause. It inquires whether the
government has sufficient justification for depriving
a person of life, liberty, or property. (White Light
Corporation v. City of Manila, G.R. No. 122846,
January 20, 2009)
Substantive due process requires that laws be [1]
grounded on reason and [2] be free from
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POLITICAL LAW
arbitrariness. The government must have sufficient
justification for depriving a person of life, liberty, or
property. Essentially, substantive due process is
satisfied if the deprivation is done in the exercise of
the police power of the State. (Provincial Bus
Operators Association of the Philippines v. DOLE,
G.R. No. 202275, July 17, 2018)
victimize
others.
Therefore,
the
license
requirement to own and operate a firearm is a valid
exercise of police power and not a violation of the
right to due process. (Acosta v. Ochoa, G.R. Nos.
211559, 211567, 212570 & 215634, Oct. 15, 2019)
Requisites
Laws which interfere with life, liberty, and property
satisfy substantive due process when there is:
1. Lawful Subject The interests of the public
generally, as distinguished from those of a
particular class, require such interference; and
2. Lawful Means
The means are reasonably
necessary for the accomplishment of the
purpose, and not unduly oppressive upon
individuals.
1. It must not contravene the constitution or any
statute;
2. It must not be unfair or oppressive;
3. It must not be partial or discriminatory;
4. It must not prohibit but may regulate trade;
5. It must not be unreasonable; and
6. It must be general and consistent with public
policy.
The legislature may not, under the guise of
protecting the public interests, arbitrarily interfere
with private business, or impose unusual and
unnecessary restrictions upon lawful occupations.
In other words, its determination as to what is a
proper exercise of its police powers is not final or
conclusive, but is subject to the supervision of the
court. (US v. Toribio, G.R. No. L-5060, Jan. 26,
1910)
License to Own and Operate Firearms
With the bearing of arms being a mere privilege,
there could not have been a deprivation of right to
due process in requiring a license for the
possession of firearms. Article III, Section 1 of the
Constitution is clear that only life, liberty, or
property is protected by the due process clause. It
is settled that the license to possess a firearm is
neither a property nor a property right.
Assuming, for the sake of argument, that the right
to possess a firearm were considered a property
right, it is doctrine that property rights are always
subject to the State's police power. Further, the
PNP Guidelines, which suspended the issuance of
permits to carry firearms outside of residence, was
a valid police power measure. The interest of the
general public was satisfied, since the Guidelines
were issued in response to the rise in high-profile
crimes. As to the means employed to retain peace
and order in society, the revocation of all permits to
carry firearms outside of residence would make it
difficult for criminals to commit gun violence and
Requisites of a Valid Ordinance (Police Power
of LGUs) (Must NOT CUPPU, Must be GC)
Publication
Due process, which is a rule of fairness, requires
that those who must obey a command must first
know the command. Thus, Art. 2 of the Civil Code
prescribes a 15-day period of publication of laws
before they take effect, unless otherwise provided.
The omission of publication of laws would offend
due process insofar as it would deny the public
knowledge of the laws that are supposed to govern
it. The term "laws" should refer to all laws and not
only to those of general application, but including
those of local application and private laws. Covered
by this rule are presidential decrees and executive
orders
promulgated
by
the
President.
Administrative rules and regulations must also be
published if their purpose is to enforce or
implement existing law pursuant also to a valid
delegation. However, no publication is required for
internal regulations issued by administrative
agencies. Publication must be in full or it is no
publication at all since its purpose is to inform the
public of the contents of the laws. (Tañada v.
Tuvera, G.R. No. L-63915, Dec. 29, 1986)
b. Procedural Due Process
Procedural due process refers to the procedures
that the government must follow before it deprives
a person of life, liberty, or property. Procedural due
process concerns itself with government action
adhering to the established process when it makes
an intrusion into the private sphere. (White Light
Corporation v. City of Manila, G.R. No. 122846,
Jan. 20, 2009)
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Essence
The essence of procedural due process is
embodied in the basic requirement of [1] notice and
[2] a real opportunity to be heard. (Vivo v.
PAGCOR, G.R. No. 187854, Nov. 12, 2013)
While it is true that the right to due process
safeguards the opportunity to be heard and to
submit any evidence one may have in support of
his claim or defense, where the opportunity to be
heard is accorded, and the party can pre en its
ide or defend its interest in due co r e , there is
no denial of due process because what the law
proscribes is the lack of opportunity to be heard.
(Oca v Custodio, GR 199825, July 26, 2017)
Publication
Every agency shall file with the Office of the
National Administrative Register (ONAR) in the
University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in
force on the date of effectivity of this Code which
are not filed within three (3) months from the date
shall not thereafter be the basis of any sanction
against any party or persons. (Section 3 of Chapter
2, Book VII of the Administrative Code of 1987)
These requirements of publication and filing were
put in place as safeguards against abuses on the
part of lawmakers and as guarantees to the
constitutional right to due process and to
information on matters of public concern and,
therefore, require strict compliance. (Republic v.
Pilipinas Shell, G.R. No. 173918, April 8, 2008)
However, not all rules and regulations adopted by
every government agency are to be filed with the
UP Law Center. Only those of general or of
permanent character are to be filed. According to
the UP Law Cen er guidelines for receiving and
publication of rules and regulations, interpretative
regulations and those merely internal in nature, that
is, regulating only the personnel of the
Administrative agency and not the public, need not
be filed with the UP Law Center. (The Board of
Trustees of the GSIS v. Velasco, G.R. No. 170463,
Feb. 2, 2011)
Late Petitions
Rules of procedure are intended to ensure the
orderly administration of justice and the protection
POLITICAL LAW
of substantive rights in judicial and extrajudicial
proceedings. It is a mistake to suppose that
substantive law and adjective law are contradictory
to each other or, as has often been suggested, that
enforcement of procedural rules should never be
permitted if it will result in prejudice to the
substantive rights of the litigants. This is not exactly
true; the concept is much misunderstood. As a
matter of fact, the policy of the courts is to give
effect to both kinds of law, as complementing each
other, in the just and speedy resolution of the
dispute between the parties. Observance of both
substantive and procedural rights is equally
guaranteed by due process, whatever the source
of such rights, be it the Constitution itself or only a
statute or a rule of court. (Tupas v. CA, G.R. No.
89571, Feb. 6, 1991)
A party having forfeited the right to appeal cannot
claim that he/she has been denied due process.
(Tupas v. CA, G.R. No. 89571, Feb. 6, 1991)
In a case of falsification of public documents, the
accused claimed that his constitutional rights were
violated when the Sandiganbayan denied his
motion for new trial and motion to allow him to
present additional witnesses. The Court ruled that
his right to due process was not violated. The
accused had 4 years to present evidence yet he
only asked for the opportunity to present additional
evidence via a motion for reconsideration after the
Sandiganbayan had already admitted all the formal
offers of evidence of the accused. Further, he failed
to present the witness through the compulsory
process of subpoena, during all the time that he
testified for his defense for a period of six (6)
months. Moreover, his motion to present additional
witness was denied due to his failure to comply with
Sections 4-5 of Rule 15. In addition, the evidence
he seeks to present is not a newly discovered
evidence since it was already presented by the
other parties. All this points out to the conclusion
that he was given ample opportunity to be heard.
(Escobar v. People. G.R. No. 205576, Nov. 20,
2017)
Motion for Reconsideration
Due process is satisfied when the parties are
afforded fair and reasonable opportunity to explain
their side of the controversy or an opportunity to
move for a reconsideration of the action or ruling
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complained of. (Elenita S. Binay v. Office of the
Ombudsman, 213957-58, Aug. 7, 2019)
A city enacted an ordinance classifying certain
areas as agricultural lands. A landowner filed an
application for exemption and an Order was issued
by the Secretary of Agrarian Reform, granting the
exemption. Farmers of lando ner landholdings
filed an MR of the Order, which was subsequently
granted by the judge, thereby revoking the first
Order. However, this Order was sent to another city
and not to the correct address of the landowner.
The Court ruled that the lando ner right to due
process was not violated. She was still able to file
her MR from the Order, albeit beyond the allowable
period to file and was still given due course. While
it may be true that she was prevented from filing a
timely MR, it would be erroneous to conclude that
she had been completely denied her opportunity to
be heard. In administrative proceedings,
procedural due process means that one is given
the opportunity to explain one side and the
opportunity to seek a reconsideration of the action
or ruling complained of, not only through verbal
arguments in court but also through pleadings.
When she filed her MR, she was able to completely
and exhaustively present her arguments. (Espiritu
v. Del Rosario, G.R. No. 204964. Oct. 15, 2014)
There is no denial of the right to due process if
there was an opportunity for the parties to defend
their interests in due course. Petitioner had been
able to file a Motion for Reconsideration Ad
Cautelam before the trial court, and later elevated
its case before the Court of Appeals. There is no
denial of due process if a party was given an
opportunity to be heard in a Motion for
Reconsideration. Petitioner did not take advantage
of the opportunities it was given to lead a
responsive pleading. It allowed the periods it was
given for the filing of pleadings to lapse. (Philippine
National Construction Corporation v. Asiavest
Merchant Bankers (M) Berhad, GR. No. 172301,
Aug. 19, 2015)
Administrative Proceeding; Dead Respondent
In administrative cases, the essence of procedural
due process is one right to given the opportunity
to be heard. This opportunity to be heard must be
present at every single stage of proceedings.
Administrative proceedings require that the
POLITICAL LAW
respondent be informed of the charges and be
given an opportunity to refute them. Even after
judgement is rendered, due process requires that
the respondent not only be informed of the
judgement but also given the opportunity to seek
reconsideration of that judgement. The opportunity
to be heard can only be exercised by those who
have resigned or retired. The reason is obvious:
They are still alive. Even if they cease to hold public
office, they can still be made aware of the
proceedings and actively submit pleadings.
However, death forecloses any opportunity to be
heard. Dead respondents will never know how the
proceedings will continue. They cannot submit
responsive pleadings or plead innocence of beg
clemency. To continue with the proceedings is a
violation of the right to due process. (FloresConcepcion v. Castañeda, A.M. No. RTJ-15-2438
(Resolution), Sept. 15, 2020)
Standard for Different Types of Proceedings
PROCEEDING
STANDARD
Judicial
(Ju3NO)
Proceedings
1. There must be a court or
tribunal
clothed
with
judicial power to hear and
determine
the
matter
before it;
2. Jurisdiction
must
be
lawfully acquired over the
person of the defendant or
over the property which is
the
subject
of
the
proceeding;
3. The defendant must be
given an opportunity to be
heard; and
4. Judgment
must
be
rendered
upon
lawful
hearing.
(El Banco Español – Filipino v.
Palanca, G.R. No. L-11390,
March 26, 1918)
Administrative/ (HESS-PIK)
Quasi-Judicial
1. The right to a Hearing,
Proceedings
which includes the right to
pre en one
ca e and
submit evidence in support
thereof;
2. The tribunal must consider
the Evidence presented;
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3. The decision must have
something to Support
itself;
4. Evidence supporting the
finding or conclusion must
be Substantial;
5. The decision must be
based on the evidence
Presented at the hearing
or at least contained in the
record and disclosed to the
parties affected;
6. The tribunal or body or any
of its judges must act on its
or his own Independent
consideration of the law
and
facts
of
the
controversy,
and
not
simply accept the views of
a subordinate in arriving at
a decision;
7. The board or body should,
in
all
controversial
questions,
render
its
decision in such a manner
that the parties to the
proceeding can Know the
various issues involved,
and the reasons for the
decision rendered.
(Ang Tibay v. CIR, G.R. No. L46496, Feb. 27, 1940)
Academic
Disciplinary
Proceedings
A lack of formal hearing in the
administrative level does not
violate
procedural
due
process. The due process
requirement
before
administrative bodies are not
as strict compared to judicial
tribunals in that it suffices that
a party is given a reasonable
opportunity to be heard.
(Saunar v. Ermita, G.R. No.
186502, Dec. 13, 2017)
(WAEEC)
1. The students must be
informed in Writing of the
nature and cause of any
accusation against them;
2. That they shall have the
right to Answer the
charges against them with
the assistance of counsel,
if desired;
3. They shall be informed of
the Evidence against
them;
4. They shall have the right to
adduce Evidence in their
own behalf; and
5. The evidence must be duly
Considered
by
the
investigating committee or
official designated by the
school authorities to hear
and decide the case.
Deportation
Proceedings
Disciplinary cases involving
students need not necessarily
include the right to cross
examination.
An
administrative
proceeding
conducted
to
investigate
students' participation in a
hazing activity need not be
clothed with the attributes of a
judicial proceeding. Thus, it is
not subject to the rigorous
requirements of criminal due
process, particularly
with
respect to the specification of
the charge involved. (ADMU v.
Capulong, G.R. No. 99327,
May 27, 1993)
(GIHO)
1. There should be a prior
determination by the Board
of Commissioners of the
existence of the Ground
as charged against the
alien;
2. The alien should be
Informed of the specific
grounds for deportation;
3. A Hearing should be
conducted pursuant to the
Rules
of
Procedure
presented
by
the
Commissioner
of
Immigration; and
4. Order
of
deportation
based
on
the
determination
of
the
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Commissioner
Immigration.
Extradition
Proceedings
(Granting
of
bail)
of
Although
a
deportation
proceeding does not partake
of the nature of a criminal
action, however, considering
that it is a harsh and
extraordinary administrative
proceeding
affecting
the
freedom and liberty of a
person, the constitutional right
of such person to due process
should not be denied. (Lao Gi
v. CA, G.R. No. 81798, Dec.
29, 1989)
If bail can be granted in
deportation cases, there is no
justification why it should not
also be allowed in extradition
cases. After all, both are
administrative
proceedings
where the innocence or guilt of
the person detained is not in
issue.
(Government
of
Hongkong v. Olalia, G.R. No.
153675, April 19, 2007)
While our extradition law does
not provide for the grant of bail
to an extraditee, however,
there
is
no
provision
prohibiting him or her from
filing a motion for bail, a right
to due process under the
Constitution. The applicable
standard of due process,
however, should not be the
same as that in criminal
proceedings. (Government of
Hongkong v. Olalia, G.R. No.
153675, April 19, 2007)
Bail may be granted to a
possible extraditee only upon
a clear and convincing
showing:
1. That he will not be a flight
risk or a danger to the
community; and
2. That there exist special,
humanitarian
and
compelling circumstances.
(Rodriguez v. Presiding
Judge of RTC Manila, G.R.
No. 157977, Feb. 27,
2006)
The grant of the bail
presupposes
that
the
extraditee
has
already
presented evidence to prove
his/her right to be on bail, that
she is no flight risk, and the
trial
court
had
already
exercised its sound discretion
and had already determined
that under the Constitution
and laws in force, the
extraditee is entitled to
provisional
release.
(Rodriguez v. Presiding Judge
of RTC Manila, G.R. No.
157977, Feb. 27, 2006)
Thus, the cancellation of an
e radi ee bail, without prior
notice and hearing, could be
considered a violation of
his/her right to due process
tantamount to grave abuse of
discretion.
(Rodriguez
v.
Presiding Judge of RTC
Manila, G.R. No. 157977, Feb.
27, 2006)
Instances when hearing is not necessary:
(a) When administrative agencies are exercising
their quasi-legislative functions.
(b) When administrative agencies are exercising
their quasi-judicial functions if temporary
pending hearing.
(c) Abatement of nuisance per se.
(d) Granting by courts of provisional remedies.
(e) Cases of preventive suspension.
(f) Removal of temporary employees in the
government.
(g) Issuance of warrants of distraint and/or levy by
the BIR Commissioner.
(h) Cancellation of the passport of a person
charged with a crime.
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(i)
Suspension of a bank operations by the
Monetary Board upon a prima facie finding of
liquidity problems in such bank.
Due Process Standards in Administrative
Proceedings
Due process in administrative proceedings does
not necessarily require a trial type of hearing.
Neither does it require an exchange of pleadings
between or among the parties. Due process is
satisfied if the party who is properly notified of
allegations against him or her is given an
opportunity to defend himself or herself against
those allegations, and such defense was
considered by the tribunal in arriving at its own
independent conclusions. (Gutierrez v COA, GR.
No. 200628, Jan. 13, 2015)
Due Process Standards in Student Disciplinary
Cases
Due process in disciplinary cases involving
students does not entail proceedings and hearings
similar to those prescribed for actions and
proceedings in courts of justice. The proceedings
may be summary. Cross-examination is not an
essential part of the investigation or hearing. The
required proof in a student disciplinary action,
which is an administrative case, is neither proof
beyond reasonable doubt nor preponderance of
evidence but only substantial evidence or such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. What
is crucial is that official action must meet minimum
standards of fairness to the individual, which
generally encompass the right of adequate notice
and a meaningful opportunity to be heard.
A cadet facing dismissal from the military academy
for misconduct has constitutionally protected
private interests (life, liberty, or property); hence,
disciplinary proceedings conducted within the
bounds of procedural due process is a must. For
that reason, the PMA is not immune from the
strictures of due process. Where a person's good
name, reputation, honor, or integrity is at stake
because of what the government is doing to him,
the minimal requirements of the due process
clause must be satisfied.
The statement that "a cadet can be compelled to
surrender some civil rights and liberties in order for
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the Code and System to be implemented" simply
pertains to what cadets have to sacrifice in order to
prove that they are men or women of integrity and
honor, such as the right to entertain vices and the
right to freely choose what they want to say or do.
In the context of disciplinary investigation, it does
not contemplate a surrender of the right to due
process but, at most, refers to the cadets' rights to
privacy and to remain silent. (Cudia v.
Superintendent of the PMA, G.R. No. 211362, Feb.
24, 2015)
Publicity and Coverage
The right of an accused to a fair trial is not
incompatible to a free press. Pervasive publicity is
not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of appellant
was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired
his impartiality. (People v. Claudio Teehankee, Jr.,
G.R. Nos., 111206-08, Oct. 6, 1995).
The peculiarity of the subject criminal cases is that
the proceedings already necessarily entail the
presence of hundreds of families. It cannot be
gainsaid that the families of the 57 victims and of
the 197 accused have as much interest, beyond
mere curiosity, to attend or monitor the
proceedings as those of the impleaded parties or
trial participants. It bears noting at this juncture that
the prosecution and the defense have listed more
than 200 witnesses each. The impossibility of
holding such judicial proceedings in a courtroom
that will accommodate all the interested parties,
whether private complainants or accused, is
unfortunate enough. What more if the right itself
commands that a reasonable number of the
general public be allowed to witness the
proceeding as it takes place inside the courtroom.
Technology tends to provide the only solution to
break the inherent limitations of the courtroom, to
satisfy the imperative of a transparent, open and
public trial. Thus, the Court partially granted pro
hac vice pe i ioner prayer for a live broadcast of
the trial court proceedings, subject to strict
guidelines. (In Re: Petition for Radio and T.V.
Coverage of The Multiple Murder Case Against
Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, June
14, 2011)
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CONSTITUTIONAL AND STATUTORY DUE
PROCESS
What is often said about statutory due process is a
procedure created by law, which upholds the
constitutional right of a person to due process.
Dismissal of Employees
To be sure, the Due Process Clause in Article III,
Sec. 1 of the Constitution embodies a system of
rights based on moral principles so deeply
imbedded in the traditions and feelings of our
people as to be deemed fundamental to a civilized
society as conceived by our entire history. Due
process is that which comports with the deepest
notions of what is fair and right and just. It is a
constitutional restraint on the legislative as well as
on the executive and judicial powers of the
government provided by the Bill of Rights.
Due process under the Labor Code, like
constitutional due process, has two aspects:
substantive, (i.e., the valid and authorized causes
of employment termination under the Labor Code)
and procedural, (i.e., the manner of dismissal).
Procedural due process requirements for dismissal
are found in the Implementing Rules of P.D. 442,
as amended, otherwise known as the Labor Code
of the Philippines in Book VI, Rule I, Sec. 2, as
amended by Department Order Nos. 9 and 10.
Breaches of these due process requirements
violate the Labor Code. Therefore, statutory due
process should be differentiated from failure to
comply with constitutional due process.
Constitutional due process protects the individual
from the government and assures him of his rights
in criminal, civil or administrative proceedings;
while statutory due process found in the Labor
Code and Implementing Rules protects employees
from being unjustly terminated without just cause
after notice and hearing.
Where the dismissal is for a just cause, the lack of
statutory due process should not nullify the
dismissal, or render it illegal, or ineffectual.
However, the employer should indemnify the
employee for the violation of his statutory rights.
(Agabon v. NLRC, G.R. No. 158693, Nov. 17,
2004)
POLITICAL LAW
Although the closure was done in good faith and for
valid reasons, we find that ITC did not comply with
the notice requirement. While an employer is under
no obligation to conduct hearings before effecting
termination of employment due to authorized
cause, however, the law requires that it must notify
the DOLE and its employees at least one month
before the intended date of closure. (Timber Co. v
Ababon, G.R. No. 164518, Jan. 25, 2006)
Preliminary Investigation
The purpose of a preliminary investigation is to
secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an
open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and
also to protect the State from useless and
expensive trials. The right to a preliminary
investigation is a statutory grant, and to withhold it
would be to transgress constitutional due process.
However, in order to satisfy the due process
clause, it is not enough that the preliminary
investigation is conducted in the sense of making
sure that a transgressor shall not escape with
impunity. A preliminary investigation serves not
only the purposes of the State. More importantly, it
is a part of the guarantees of freedom and fair play,
which are birthrights of all who live in our country.
(Salonga v. Panon, G.R. No. L-59524, Feb. 18,
1985)
C. LEVELS OF SCRUTINY
1. STRICT SCRUTINY TEST
Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial,
governmental interest and on the absence of less
restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances,
strict scrutiny refers to the standard for determining
the quality and the amount of governmental interest
brought to justify the regulation of fundamental
freedoms. Strict scrutiny is used today to test the
validity of laws dealing with the regulation of
speech, gender, or race as well as other
fundamental rights as expansion from its earlier
applications to equal protection. The United States
Supreme Court has expanded the scope of strict
scrutiny to protect fundamental rights such as
suffrage, judicial access and interstate travel.
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(White Light Corporation v. City of Manila, G.R. No.
122846, Jan. 20, 2009)
2. HEIGHTENED OR INTERMEDIATE
SCRUTINY TEST
Under intermediate review, governmental interest
is extensively examined and the availability of less
restrictive measures is considered. (White Light
Corporation v. City of Manila, G.R. No. 122846,
Jan. 20, 2009)
3. RATIONAL BASIS TEST
Using the rational basis examination, laws or
ordinances are upheld if they rationally further a
legitimate governmental interest. (White Light
Corporation v. City of Manila, G.R. No. 122846,
Jan. 20, 2009)
VOID FOR VAGUENESS DOCTRINE
Concept
A statute or act may be said to be vague when it
lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ in its application.
The test in determining whether a criminal statute
is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the
proscribed conduct when measured by common
understanding and practice. It must be stressed,
however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or
mathematical exactitude.
An act will not be held invalid merely because it
might have been more explicit in its wordings or
detailed in its provisions, especially where,
because of the nature of the act, it would be
impossible to provide all the details in advance as
in all other statutes. (Estrada v. Sandiganbayan,
G.R. No. 148560, November 19, 2001)
In determining whether the words used in a statute
are vague, words must not only be taken in
accordance with their plain meaning alone, but also
in relation to other parts of the statute. It is a rule
that every part of the statute must be interpreted
with reference to the context, that is, every part of
it must be construed together with the other parts
and kept subservient to the general intent of the
whole enactment. (Imbong v. Ochoa, G.R. No.
204819, April 8, 2014)
Purpose
A vague statute is repugnant to the Constitution in
two (2) respects:
1. It violates due process for failure to accord
persons, especially the parties targeted by
it, fair notice of what conduct to avoid; and
2. It leaves law enforcers unbridled discretion
in carrying out its provisions and becomes
an arbitrary flexing of the Government
muscle. (Estrada v. Sandiganbayan, G.R.
No. 148560, November 19, 2001)
OVERBREADTH DOCTRINE
Concept
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.
Application to Penal Statutes
General Rule: The overbreadth and vagueness
doctrines then have special application only to free
speech cases. They are inapplicable for testing the
validity of penal statutes.
Rationale: All penal laws, like the cybercrime
law, have of course an inherent chilling effect,
an in terrorem effect or the fear of possible
prosecution. But to prevent the State from
legislating criminal laws because they instill
such kind of fear is to render the state powerless
in addressing and penalizing socially harmful
conduct.
Exceptions:
1. When a penal statute is challenged as applied
2. When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded
on the overbreadth and vagueness doctrine is
acceptable. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
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AS APPLIED V. FACIAL CHALLENGE
Unconstitutional
Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a
facial invalidation is an examination of the entire
law, pinpointing its flaws and defects, not only on
the basis of its actual operation to the parties, but
also on the assumption or prediction that its very
existence may cause others not before the court to
refrain from constitutionally protected speech or
activities.
Statute or act
General Rule: In an "as applied" challenge, the
petitioner who claims a violation of his
constitutional right can raise any constitutional
ground
absence of due process, lack of fair
notice,
lack
of
ascertainable
standards,
overbreadth, or vagueness. Here, one can
challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the
statute based solely on the violation of the
rights of third persons not before the court. This
rule is also known as the prohibition against thirdparty standing.
Violates due process; Invades
creates
unbridled freedoms
discretion
Exception: A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute
even if he claims no violation of his own rights
under the assailed statute where it involves free
speech on grounds of overbreadth or
vagueness of the statute.
Rationale: To counter the "chilling effect" on
protected speech that comes from statutes
violating free speech. (Disini v. Sec. of Justice,
G.R. No. 203335, Feb. 18, 2014)
VOID FOR VAGUENESS V. OVERBREADTH
1. Vagueness and overbreadth are distinct from
each other; a vague law must lack clarity and
precision, while an overbroad law need not.
2. It is submitted that while the defect of
overbreadth as an analytical tool is applicable
only to cases involving speech, this is not so
about vagueness.
VOID FOR
VAGUENESS
OVERBREADTH
Gov't regulation of free
speech
Lacks comprehensible Means
sweep
standards
unnecessarily broadly
People guess at its Not
meaning; differ in unclear
application
necessarily
protected
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
C. EQUAL PROTECTION OF LAWS
No person shall be deprived of life, liberty, or
property without due process of law, nor shall any
person be denied the equal protection of the laws.
(PHIL. CONST., art. III, § 1)
1. CONCEPT AND PURPOSE
The equal protection of the law clause merely
requires that all persons shall be treated alike,
under like circumstances and conditions both as to
privileges conferred and liabilities enforced.
The equal protection of the law clause is against
undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
directed or by territory within which is to operate. It
does not demand absolute equality among
residents. (Ichong v. Hernandez, G.R. No. L-7995,
May 31, 1957)
Scope
The guarantees of the Bill of Rights are universal in
their application to all persons within the territorial
jurisdiction, without regard to any differences of
race, color, or nationality. All natural persons, and
artificial persons, only in so far as their property is
concerned, are protected by the Equal Protection
clause. (Smith, Bell & Co. v. Natividad, G.R. No.
15574, Sept. 17, 1919)
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Not a Guaranty of Equality in the Application of
Laws
The guaranty of equal protection of the laws is not
a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely
as such, but on persons according to the
circumstances surrounding them. (Victoriano v.
Elizalde Rope Workers’ Union, G.R. No. L-2524,
Sept. 12, 1974)
Guarantees Equality, Not Identity of Rights
The equal protection of the law guarantees
equality, not identity of rights. The Constitution
does not require that things which are different in
fact be treated in law as though they were the
same. The equal protection clause does not forbid
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the
object to which it is directed or by the territory within
which it is to operate. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. No. L-2524, Sept. 12, 1974)
2. REQUISITES FOR VALID
CLASSIFICATION
The equal protection of the laws clause of the
Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars.
All that is required of a valid classification is
that it be reasonable, which means that the
classification should be: (GEES)
1. Be Germane to the purposes of the law;
2. Not limited to Existing conditions only;
3. Applied Equally to all members of the same
class; and
4. Rest on Substantial distinctions which make
for real differences. (Victoriano v. Elizalde Rope
Worker Union, G.R. No. L-2524, Sept. 12,
1974)
POLITICAL LAW
APPLICATION
General Banking Law of 2002
The General Banking Law provides a shorter
period for redemption of three (3) months or earlier
to juridical entities compared to the one (1) year
redemption period given to natural persons.
However, this does not violate the equal protection
clause. Equal protection permits of reasonable
classification. The difference in the treatment of
juridical persons and natural persons was based on
the nature of the properties foreclosed
whether
these are used as residence, for which the more
liberal one-year redemption period is retained, or
used for industrial or commercial purposes, in
which case a shorter term is deemed necessary to
reduce the period of uncertainty in the ownership
of property and enable mortgagee banks to
dispose sooner of these acquired assets. (Zomer
Development Co. v. Special 20th Division of the
CA, G.R. No. 194461, Jan. 07, 2020)
Section 6 of the Cybercrime Prevention Act
Section 6 of the Cybercrime Prevention Act
imposing a penalty one degree higher than that
provided in the RPC for acts committed by, through
and with the use of information and
communications technologies was assailed for
violating equal protection. The Court upheld the
section and explained that Section 6 merely makes
commission of existing crimes through the internet
a qualifying circumstance. There exists a
substantial distinction between crimes committed
through
the
use
of
information
and
communications technology and similar crimes
committed using other means. In using the
technology in question, the offender often evades
identification and is able to reach far more victims
or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for
cybercrimes. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
Disbursement Acceleration Program
The DAP was challenged as nfair as it [was]
elec i e because the funds released under the
DAP was not made available to all the legislators,
with some of them refusing to avail themselves of
the DAP funds, and others being unaware of the
availability of such funds. The Court held that the
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challenge based on the contravention of the Equal
Protection Clause, which focuses on the release of
funds under the DAP to legislators, lacks factual
and legal basis. The denial of equal protection of
any law should be an issue to be raised only by
parties who supposedly suffer it, and, in these
cases, such parties would be the few legislators
claimed to have been discriminated against in the
releases of funds under the DAP. The requirement
was not met here. (Araullo v. Aquino III, G.R. No.
209287, July 1, 2014)
Classification Freeze Provision
The classification freeze provision does not violate
the equal protection and uniformity of taxation.
Even though it failed to promote fair competition
among the players in the industry, the classification
freeze provision was not precipitated by a veiled
attempt or hostile attitude on the part of Congress
to unduly favor older brands. Since the provision
was done in good faith and is germane to the
purpose of the law, the Court cannot declare it
unconstitutional nor question its wisdom. (British
American Tobacco v. Camacho, G.R. No. 163583,
Aug. 20 2009)
Cityhood Laws
The Cityhood laws were constitutional. Based on
the deliberations by Congress on R.A. 9009,
Congress intended that those with pending
cityhood bills during the 11th Congress would not
be covered by the new and higher income
requirement of P100 million imposed by RA 9009.
The exemption clauses found in the individual
Cityhood Laws are the express articulation of that
intent to exempt respondent municipalities from the
coverage of RA 9009. Such Cityhood Laws are,
therefore, also amendments to the LGC itself. In
the enactment of the Cityhood Laws, Congress
merely took the 16 municipalities covered thereby
from the disadvantaged position brought about by
the abrupt increase in the income requirement
(from 20 million to 100 million) of RA 9009,
acknowledging the pri ilege that they have
already given to those newly-converted component
cities, which prior to the enactment of RA 9009,
were undeniably in the same footing or cla
as
the respondent municipalities. But in effect, the
Cityhood Laws granted to 33 municipalities
amended RA 9009 through the exemption clauses
found therein. (League of Cities of the Phil. et al. v.
POLITICAL LAW
COMELEC, et al. G.R. Nos. 176951, 177499,
178056, April 12, 2011)
VAWC
RA 9262 (An Act Defining Violence Against
Women and Their Children - VAWC) is not violative
of the equal protection clause. There is a valid
classification. The unequal power relationship that
women are more likely to be victims of violence and
the widespread gender bias and prejudice against
women make for real differences justifying the
classification. The distinction is germane to the
purpose of the law to address violence committed
against women. The law applies to women and
children who suffer violence and abuse. (Garcia v.
Hon. Drilon, G.R. No. 179267, June 25, 2013)
RH Law
The RH Law, in providing that the poor are to be
given priority in the government's reproductive
health care program, does not violate the equal
protection clause. In fact, it is pursuant to Section
11, Article XIII of the Constitution which recognizes
the distinct necessity to address the needs of the
underprivileged by providing that they be given
priority in addressing the health development of the
people. It should be noted that Section 7 of the RH
Law prioritizes poor and marginalized couples who
are suffering from fertility issues and desire to have
children. (Imbong v. Ochoa, G.R. 204819, April 8,
2014)
Discounts to PWDs
The Supreme Court upheld the constitutionality of
R.A. No. 9442 or the Magna Carta for Persons with
Disability granting the PWDs a 20% discount on the
purchase of medicine, and a tax deduction scheme
was adopted wherein covered establishments may
deduct the discount granted from gross income
based on the net cost of goods sold or services
rendered. The equal protection clause recognizes
a valid classification, that is, a classification that
has a reasonable foundation or rational basis and
not arbitrary. With respect to R.A. No. 9442, its
expressed public policy is the rehabilitation, selfdevelopment and self-reliance of PWDs. Persons
with disability form a class separate and distinct
from the other citizens of the country. Indubitably,
such substantial distinction is germane and
intimately related to the purpose of the law. Hence,
the classification and treatment accorded to the
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PWDs fully satisfy the demands of equal
protection. Thus, Congress may pass a law
providing for a different treatment to persons with
disability apart from the other citizens of the
country. (Drugstores Association of the Philippines,
Inc. and Northern Luzon Drug Corporation v.
National Council on Disability Affairs, et al., G.R.
No. 194561, Sept. 4, 2016)
Elective and Appointive Officials
There is a substantial distinction between elective
and appointive officials. The former occupy their
office by virtue of the mandate of the electorate.
They are elected to an office for a definite term and
may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials
hold their office by virtue of their designation
thereto by an appointing authority. Some
appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing
authority. (Eleazar P. Quinto and Gerino A.
Tolentino, Jr., vs. COMELEC, G.R. No. 189698,
Feb. 22, 2010)
Tax Ordinance Specific to an Entity
When the taxing ordinance was enacted, Ormoc
Sugar Co., Inc. was the only sugar central in the
City. A reasonable classification should be in terms
applicable to future conditions as well. The taxing
ordinance should not be singular and exclusive as
to exclude any subsequently established sugar
central from the coverage of the tax. A
subsequently established sugar central cannot be
subject to tax because the ordinance expressly
points to Ormoc Sugar Company, Inc. as the entity
to be levied upon. (Ormoc Sugar Company v.
Ormoc City, G.R. No. L-23794, Feb. 17, 1968)
5 Years of Experience as a Lower Court Judge
as Requirement for RTC Judge
Consideration of experience by JBC as one factor
in choosing recommended appointees does not
constitute a violation of the equal protection clause.
The JBC does not discriminate when it employs
number of years of service to screen and
differentiate applicants from the competition. The
number of years of service provides a relevant
basis to determine proven competence which may
be measured by experience, among other factors.
The difference in treatment between lower court
judges who have served at least five years and
those who have served less than five years is
upheld in order to meet the requirements of proven
competence, experience, integrity, probity, and
independence. The foregoing shows that
substantial distinctions do exist between lower
court judges with five year experience and those
with less than five years of experience and the
classification enshrined in the assailed policy is
reasonable and relevant to its legitimate purpose.
The Court, thus, rules that the questioned policy
does not infringe on the equal protection clause as
it is based on reasonable classification intended to
gauge the proven competence of the applicants.
Therefore, the said policy is valid and
constitutional. (Villanueva v. JBC, G.R. No.
211833, April 07, 2015)
Doctrine of Relative Unconstitutionality
A statute valid at one time may become void at
another time because of altered circumstances.
Thus, if a statute in its practical operation becomes
arbitrary or confiscatory, its validity, even though
affirmed by a former adjudication, is open to inquiry
and investigation in the light of changed conditions.
This doctrine was invoked in a case to invalidate
RA 7653, which started as a valid measure of
legislative power applicable to Central Bank
employees, but, with the enactment of subsequent
laws exempting all rank and file employees of all
GFIs from the Salary Standardization Law, was
rendered void on account of a violation of the equal
protection clause. (Central Bank Employees
Association, Inc. v. Bangko Sentral ng Pilipinas,
G.R. No. 148208, Dec. 15, 2004)
Suspect Classification
A suspect classification is one where distinctions
are made based on the most invidious bases for
classification that violate the most basic human
rights, i.e., on the basis of race, national origin,
alien status, religious affiliation and, to a certain
extent, sex and sexual orientation. (Serrano v.
Gallant, G.R. No. 167614, Mar. 24, 2009)
A "suspect class" is defined as "a class saddled
with such disabilities, or subjected to such a history
of purposeful unequal treatment, or relegated to
such a position of political powerlessness as to
command extraordinary protection from the
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majoritarian political process. (Zomer Development
Co. v. Special 20th Division of the CA, G.R. No.
194461, Jan. 07, 2020)
Juridical entities cannot be considered a "suspect
class." Juridical entities enjoy certain advantages
that natural persons do not, such as limited liability.
The properties of juridical entities are also often
used for commercial purposes. In contrast, the
properties of natural persons are more often used
for residential purposes. They are also directly
responsible for the liabilities they incur and, often,
are not equipped with the same resources that
juridical entities may have. Juridical entities, thus,
cannot be considered a "suspect class." (Zomer
Development Co. v. Special 20th Division of the
CA, G.R. No. 194461, Jan. 07, 2020)
3. LEVELS OF SCRUTINY
Philippine jurisprudence has developed three (3)
tests of judicial scrutiny to determine the
reasonableness of classifications.
a. Strict Scrutiny Test
The most demanding of all the three tests. Under
the strict scrutiny test, the legislative classification
is presumed to be unconstitutional and the
government has the burden of proving that the
classification is necessary to achieve a compelling
State interest, and is the least restrictive means to
protect such interest or the means chosen is
narrowly tailored to accomplish the interest.
(Serrano v. Gallant, G.R. NO. 167614, Mar. 24,
2009)
The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental
rights, including the basic liberties guaranteed
under the Constitution, or (ii) burdens suspect
classes. (Spark v. Quezon City, G.R. No. 225442,
Aug. 08, 2017)
b. Intermediate Scrutiny Test
The intermediate scrutiny test requires the
government to show that the challenged
classification serves an important state interest and
that the classification is at least substantially
related to serving the interest. (Serrano v. Gallant,
G.R. No. 167614, Mar. 24, 2009)
POLITICAL LAW
The intermediate scrutiny test applies when a
classification does not involve suspect classes or
fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender
and legitimacy. (Spark v. Quezon City, G.R. No.
225442, Aug. 08, 2017)
c. Rational Basis Test
Under the rational basis test, a legislative
classification, to survive an equal protection
challenge, must be shown to rationally further a
legitimate state interest. (British American Tobacco
v. Camacho, G.R. No. 163583, Aug. 20 2009)
The rational basis test applies to all other subjects
not covered by the first two tests. (Spark v. Quezon
City, G.R. No. 225442, Aug. 08, 2017)
D. RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURES
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized. (PHIL. CONST., art.
III, § 2)
Does Not Prohibit Reasonable Search and
Seizure
The Constitutional guarantee does not prohibit all
forms of searches and seizures. It is only directed
against those that are unreasonable. Conversely,
reasonable searches and seizures fall outside the
scope of the prohibition and are not forbidden.
General Rule: Searches and seizures are
normally unreasonable.
Exception: Unless authorized by a validly
issued search warrant or warrant of arrest.
(Sapi v. People, G.R. No. 200370, June 7,
2017)
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To Whom Available: Natural & Juridical
Persons; Aliens
The constitutional right against unreasonable
searches and seizures is a personal right invocable
only by those whose rights have been infringed, or
threatened to be infringed. (Valmonte v. Gen. De
Villa, G.R. No. 83988, September 29, 1989)
This right equally applies to both citizens and
foreigners in this country. (Chee Gan v.
Deportation Board, G.R. No. L-10280, Sept. 30,
1963)
A corporation is entitled to immunity, under the 4th
Amendment, against unreasonable searches and
seizures. A corporation is, after all, but an
association of individuals under an assumed name
and with a distinct legal entity. In organizing itself
as a collective body it waives no constitutional
immunities appropriate to such body. Its property
cannot be taken without compensation. It can only
be proceeded against by due process of law.
(Bache & Co., v. Ruiz, G.R. No. L-32409, Feb. 27,
1971)
To Whom Directed: The State
The constitutional proscription against unlawful
searches and seizures therefore applies as a
restraint directed only against the government and
its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the
State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed. the
protection against unreasonable searches and
seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit
of alleged unlawful intrusion by the government.
(People v. Marti, G.R. No. 81561, Jan. 18, 1991)
Purely a Judicial Question
There is no hard and fast rule in determining when
a search and seizure is reasonable. In any given
situation, what constitutes a reasonable search is
purely a judicial question, the resolution of which
depends upon the unique and distinct factual
circumstances. This may involve an inquiry into the
purpose of the search or seizure, the presence or
absence of probable cause, the manner in which
the search and seizure was made, the place or
thing searched, and the character of the articles
POLITICAL LAW
procured. (Sapi v. People, G.R. No. 200370, June
7, 2017)
No Presumption of Regularity
A presumption of regularity in the performance of
official duty is made in the context of an existing
rule of law or statute authorizing the performance
of an act or duty or prescribing a procedure in the
performance thereof. The presumption applies
when nothing in the record suggests that the law
enforcers deviated from the standard conduct of
official duty required by law; where the official act
is irregular on its face, the presumption cannot
arise. (Carreon v. People, G.R. No. 214490, Jan.
13, 2016)
No presumption of regularity may be invoked in aid
of the process when the officer undertakes to justify
an encroachment of rights secured by the
Constitution. (Nala v. Barroso, G.R. No. 153087,
Aug. 7, 2003)
There is no presumption of regularity. Normally,
searches and seizures are nrea onable unless
there is a valid warrant issued. A liberal
construction in search and seizure cases is given
in favor of the individual. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
1. CONCEPT OF PRIVACY
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against
unreasonable searches and seizures. The right to
privacy exists independently of its identification
with liberty; it is in itself fully deserving of
constitutional protection.
Relevant to any discussion of the right to privacy is
the concept known as the "Zones of Privacy."
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises
not only from our conviction that the right to privacy
is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to
the Universal Declaration of Human Rights which
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mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and
"everyone has the right to the protection of the law
against such interference or attacks."
Two constitutional guarantees create these zones
of privacy:
1. The right against unreasonable searches and
seizures, which is the basis of the right to be let
alone, and
2. The right to privacy of communication and
correspondence.
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by
unreasonable government intrusion. (Disini v. Sec.
of Justice, G.R. No. 203335, Feb. 18, 2014)
2. CONCEPT OF A SEARCH
Search Warrant
A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a
judge and directed to a peace officer, commanding
him to search for personal property described
therein and bring it before the court. (ROC, Rule
126, § 1)
Validity of a Search Warrant
A search warrant shall be valid for ten (10) days
from its date. Thereafter, it shall be void. (ROC,
Rule 126, § 10)
When Any Court May Issue Search Warrant
In certain cases when no criminal action has yet
been filed, any court may issue a search warrant
even though it has no jurisdiction over the offense
allegedly committed, provided that all the
requirements for the issuance of such warrant are
present. (People v. Hon. Castillo, Sr., G.R. No.
204419, Nov. 7, 2016)
3. REQUISITES OF A VALID SEARCH
WARRANT
The requisites for the issuance of a search warrant
are: (POJEWS)
POLITICAL LAW
1. Probable cause is present (in connection with
one specific offense);
2. Such probable cause must be determined
personally by the judge;
3. The judge must examine, in writing and under
oath or affirmation, the complainant and the
witnesses he or she may produce;
4. The applicant and the witnesses testify on the
facts personally known to them; and
5. The warrant specifically describes the place to
be searched and the things to be seized.
(People v. Mamaril, G.R. No. 171980, Oct. 6,
2010)
A search warrant shall not issue except upon
probable cause in connection with one specific
offense to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the things to be seized which may be
anywhere in the Philippines. (ROC, Rule 126, § 4)
A search warrant must conform strictly to the
constitutional requirements for its issuance;
otherwise, it is void. (Diaz v. People, G.R. No.
188794, Sept. 2, 2015)
a. Probable Cause
Definition
Probable cause for a search warrant is defined as
such facts and circumstances which would lead a
reasonably discrete and prudent man to believe
that an offense has been committed and that the
objects sought in connection with the offense are in
the place sought to be searched. (Laud v. People,
G.R. No. 199032, Nov. 19, 2014)
Concept
A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a
crime has been committed and that it was
committed by the accused. Probable cause
demands more than bare suspicion; it requires less
than evidence which would justify conviction. The
existence depends to a large degree upon the
finding or opinion of the judge conducting the
examination. However, the findings of the judge
should not disregard the facts before him nor run
counter to the clear dictates of reason. (Laud v.
People, G.R. No. 199032, Nov. 19, 2014)
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Probability, Not Absolute or Moral Certainty
Probable cause is concerned with probability, not
absolute or even moral certainty. What is required
is not proof beyond reasonable doubt but merely
probable cause. (Bernas, The 1987 Constitution of
the Republic of the Philippines, 2009)
b. Personal Determination by the Judge
Trial Court Discretion
There is no exact test for the determination of
probable cause in the issuance of search warrants.
It is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial
function. They determine probable cause based on
"evidence showing that, more likely than not, a
crime has been committed and that it was
committed" by the offender. (Worldwide Web
Corporation v. People, G.R. No. 161106, Jan. 13,
2014)
Probing and Exhaustive Examination
In determining the existence of probable cause for
the issuance of a search warrant, the examining
magistrate must make probing and exhaustive, not
merely routine or pro forma examination of the
applicant and the witnesses. (Nala v. Barroso, G.R.
No. 153087, Aug. 7, 2003)
Facts and Circumstances Must Be Examined in
their Totality
Ultimately, in determining the existence of probable
cause, the facts and circumstances must be
personally examined by the judge in their totality,
together with a judicious recognition of the variable
complications and sensibilities attending a criminal
case. (Laud v. People, G.R. No. 199032, Nov. 19,
2014)
Delay in Application Does Not Negate Probable
Cause
The supposed delay in the search
arran
application does not dilute the probable cause
finding made herein. The delay may be accounted
for by a i ne
fear of reprisal and natural
reluctance to get involved in a criminal case. (Laud
v. People, G.R. No. 199032, Nov. 19, 2014)
POLITICAL LAW
Trial Judge Determination Accorded Great
Deference by the Reviewing Court
Generally, a j dge determination of probable
cause for the issuance of a search warrant is
accorded great deference by a reviewing court, so
long as there was substantial basis for that
determination. Substantial basis means that the
questions of the examining judge brought out such
facts and circumstances as would lead a
reasonably discreet and prudent man to believe
that an offense has been committed, and the
objects in connection with the offense sought to be
seized are in the place sought to be searched.
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
If the judge is satisfied of the existence of facts
upon which the application is based or that there is
probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in
the form prescribed by these Rules. (ROC, Rule
126, § 6)
c. Personal Examination of the Complainant
and the Witnesses
Purpose
The intent was to ensure that a warrant is issued
not merely on the basis of the affidavits of the
complainant and his witnesses, but only after
examination by the judge of the complainant and
his witnesses. (Diaz v. People, G.R. No. 188794,
Sept. 2, 2015)
Personal Examination v. Personal
Determination
What the Constitution requires is for the judge to
conduct an "examination under oath or affirmation
of the complainant and the witnesses he may
produce," after which he determines the existence
of probable cause for the issuance of the warrant.
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
Personal examination by the judge of the
complainant and his witnesses is necessary to
enable him to determine the existence or nonexistence of a probable cause. The determination
of whether or not a probable cause exists calls for
the exercise of judgment after a judicial appraisal
of facts and should not be allowed to be delegated
in the absence of any rule to the contrary. (Bache
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and Co. v. Ruiz, G.R. No. L-32409. February 27,
1971)
Affidavits are Insufficient
Affidavits of the complainant and his witnesses are
insufficient to establish the factual basis for
probable cause. Personal examination by the
judge of the applicant and his witnesses is
indispensable, and the examination should be
probing and exhaustive, not merely routinary or a
rehash of the affidavits. (Diaz v. People, G.R. No.
188794, Sept. 2, 2015)
The judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under oath,
the complainant and the witnesses he may produce
on facts personally known to them and attach to the
record their sworn statements, together with the
affidavits submitted. (ROC, Rule 126, § 5)
Compliance is Shown by the Depositions and
the Transcript
Ideally, compliance with the examination
requirement is shown by the depositions and the
transcript. In their absence, however, a warrant
may still be upheld if there is evidence in the
records that the requisite examination was made
and probable cause was based thereon. There
must be, in the records, particular facts and
circumstances that were considered by the judge
as sufficient to make an independent evaluation of
the existence of probable cause to justify the
issuance of the search warrant. (Diaz v. People,
G.R. No. 188794, Sept. 2, 2015)
POLITICAL LAW
d. Facts Personally Known to the Applicant
and the Witnesses
Purpose
The oath required must refer to the truth of the facts
within the personal knowledge of the applicant or
his witnesses, because the purpose thereof is to
convince the committing magistrate, not the
individual making the affidavit and seeking the
issuance of the warrant, of the existence of
probable cause. (Burgos v. Chief of Staff, G.R. No.
L-6426, Dec. 26, 1984)
Testimony Must Not be Based on Mere Hearsay
The testimony must be within the personal
knowledge of the complainant or the witnesses he
may produce and not based on mere hearsay.
(Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003)
Testimony Must Not be Based on Personal
Belief
The applicant and the witness must testify on their
personal knowledge, not personal belief. (Nala v.
Barroso, G.R. No. 153087, Aug. 7, 2003)
e. Particularity of Description
Purpose
The evident purpose and intent of the requirement
is to limit the things to be seized to those, and only
those, particularly described in the search warrant
to leave the officers of the law with no discretion
regarding what articles they should seize, to the
end that unreasonable searches and seizures may
not be made and that abuses may not be
committed. (People v. Go, G.R. No. 144639, Sept.
12, 2003)
Test of Sufficiency
A description of a place to be searched is sufficient
if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and
distinguish it from other places in the community.
Any designation or description known to the locality
that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly
to it, satisfies the constitutional requirement. (Laud
v. People, G.R. No. 199032, Nov. 19, 2014)
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Particular Description Not Required if Goods by
their Nature are Described Generally
The search warrant must contain a particular
description of the place to be searched and the
person or thing to be seized. These provisions are
mandatory and must be strictly complied with; but
where, by the nature of the goods to be seized,
their description must be rather generally, it is not
required that a technical description be given, as
this would mean that no warrant could issue.
(Alvarez v. CFI, G.R. No. L-45358, Jan. 29, 1937)
Technical Precision of Description Not
Required
Technical precision of description is not required. It
is only necessary that there be reasonable
particularity and certainty as to the identity of the
property to be searched for and seized, so that the
warrant shall not be a mere roving commission.
Indeed, the law does not require that the things to
be seized must be described in precise and minute
detail as to leave no room for doubt on the part of
the searching authorities. If this were the rule, it
would be virtually impossible for the applicants to
obtain a warrant as they would not know exactly
what kind of things to look for. Any description of
the place or thing to be searched that will enable
the officer making the search with reasonable
certainty to locate such place or thing is sufficient.
(Worldwide Web Corporation v. People, G.R. No.
161106, Jan. 13, 2014)
Required Wherever and Whenever it is Feasible
The particularity of the description of the place to
be searched and the things to be seized is required
"wherever and whenever it is feasible." A search
warrant need not describe the items to be seized in
precise and minute detail. The warrant is valid
when it enables the police officers to readily identify
the properties to be seized and leaves them with
no discretion regarding the articles to be seized.
(Worldwide Web Corporation v. People, G.R. No.
161106, Jan. 13, 2014)
Search Warrant for an Unnamed Party; John
Doe Search Warrant
A warrant for the apprehension of an unnamed
party is void, except in those cases where it
contains a descriptio personae such as will enable
the officer to identify the accused. The description
must be sufficient to indicate clearly the proper
POLITICAL LAW
person upon whom the warrant is to be served. As
the search warrant stated that John Doe had
gambling apparatus in his possession in the
building occupied by him at No. 124 Calle
Arzobispo, City of Manila, and as this John Doe
was Jose Ma. Veloso, the manager of the club, the
police could identify John Doe as Jose Ma. Veloso
without difficulty. (People v. Veloso, G.R. No. L23051, Oct. 20, 1925)
John Doe Search Warrants Exception, Not the
Rule
John Doe search warrants should be the exception
and not the rule. The police should particularly
describe the place to be searched and the person
or things to be seized, wherever and whenever it is
feasible. The police should not be hindered in the
performance of their duties, which are difficult
enough of performance under the best of
conditions, by superficial adherence to technicality
or farfetched judicial interference. (People v.
Veloso, G.R. No. L-23051, Oct. 20, 1925)
Mistake in the Name of the Person Does Not
Invalidate the Warrant
A mistake in the name of the person to be searched
does not invalidate the warrant, especially when
the authorities had personal knowledge of the drugrelated activities of the accused. In fact, a "John
Doe" warrant satisfies the requirements so long as
it contains a descriptio personae such as will
enable the officer to identify the accused. A mistake
in the identification of the owner of the place does
not invalidate the warrant provided the place to be
searched is properly described. (People v. Tiu Won
Chua, G.R. No. 149878, July 1, 2003)
General Warrants are Void
A general warrant is defined as a search or arrest
warrant that is not particular as to the person to be
arrested or the property to be seized. It is one that
allows the seizure of one thing under a warrant
describing another and gives the officer executing
the warrant the discretion over which items to take.
(Worldwide Web Corporation v. People, G.R. No.
161106, Jan. 13, 2014)
General warrants do not meet the requirement in
Art. III, Sec. 1, of the Constitution, and of Sec. 3,
Rule 126 of the Revised Rules of Court, that the
warrant should particularly describe the things to
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be seized. (Uy v. BIR, G.R. No. 129651, Oct. 20,
2000)
Laboratories v. Isip, G.R. No. 163858, June 28,
2005)
General Rule: A general warrant is null and void.
(Nolasco v. Pa o, G.R. No. L- 69803, Oct. 8, 1985).
CONDUCT OF A SEARCH
Exception: The search warrant is severable,
and those items not particularly described
may be cut off without destroying the whole
warrant. (Uy v. BIR, G.R. No. 129651, Oct. 20,
2000)
WHAT MAY BE SEARCHED
Personal Property to be Seized
A search warrant may be issued for the search and
seizure of personal property:
1. Subject of the offense;
2. Stolen or embezzled and other proceeds, or
fruits of the offense; or
3. Used or intended to be used as the means of
committing an offense. (ROC, Rule 126, § 3)
Ownership Not Required, But Control or
Possession
The above rule does not require that the property
to be seized should be owned by the person
against whom the search warrant is directed. It may
or may not be owned by him. In fact, under
subsection [2] of the above-quoted Section 2, one
of the properties that may be seized is stolen
property. Necessarily, stolen property must be
owned by one other than the person in whose
possession it may be at the time of the search and
seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person
against whom the warrant is directed has control or
possession of the property sought to be seized.
(Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26,
1984)
Only Those Things Particularly Described in
the Search Warrant
The officers of the law are to seize only those
things particularly described in the search warrant.
A search warrant is not a sweeping authority
empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds
of evidence or articles relating to a crime. The
search is limited in scope so as not to be general
or explanatory. Nothing is left to the discretion of
the officer executing the warrant. (United
Place to be Searched
What is material in determining the validity of a
search is the place stated in the warrant itself, not
what the applicants had in their thoughts, or had
represented in the proofs they submitted to the
court issuing the warrant. (People v. CA, G.R. No.
126379, June 26, 1998)
Time of Making Search
The warrant must direct that it be served in the day
time, unless the affidavit asserts that the property
is on the person or in the place ordered to be
searched, in which case a direction may be
inserted that it be served at any time of the day or
night. (ROC, Rule 126, § 9)
Search of House, Room, or Premises to Be
Made in Presence of Two Witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality.
(ROC, Rule 126, § 3)
This requirement is mandatory to ensure regularity
in the execution of the search warrant. The Rules
of Court clearly and explicitly establishes a
hierarchy among the witnesses in whose presence
the search of the premises must be conducted.
Thus, Section 8, Rule 126 provides that the search
should be witnessed by
o witnesses of sufficient
age and discretion residing in the same locali
only in the absence of either the lawful occupant of
the premises or any member of his family (People
v. Go, G.R. No. 144639, Sept. 12, 2003)
K c and A
c Principle in the Service
of a Search Warrant
Police officers are obliged to give notice, show their
authority, and demand that they be allowed entry.
They may only break open any outer or inner door
or window of a house to execute the search warrant
if, after such notice and demand, such officers are
refused entry to the place of directed search. This
is known as the knock and anno nce principle
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which is embodied in Anglo-American Law. The
method of entry of an officer into a dwelling and the
presence or absence of such notice are as
important considerations in assessing whether
subsequent entry to search and/or arrest is
constitutionally reasonable. (People v. Huang Zhen
Hua, G.R. No. 139301, Sept. 29, 2004)
Unannounced Intrusion When Permissible
Unannounced intrusion into the premises is
permissible when:
1. A party whose premises or is entitled to the
possession thereof refuses, upon demand, to
open it;
2. When such person in the premises already
knew of the identity of the officers and of their
authority and persons;
3. When the officers are justified in the honest
belief that there is an imminent peril to life or
limb; and
4. When those in the premises, aware of the
presence of someone outside (because, for
example, there has been a knock at the door),
are then engaged in activity which justifies the
officers to believe that an escape or the
destruction of evidence is being attempted.
Suspects have no constitutional right to destroy
evidence or dispose of evidence. However, the
exceptions above are not exclusive or conclusive.
At times, without the benefit of hindsight and
ordinarily on the spur of the moment, the officer
must decide whether or not to make an
unannounced intrusion into the premises. Although
a search and seizure of a dwelling might be
constitutionally defective, if the police officer entry
was without prior announcement, law enforcement
interest may also establish the reasonableness of
an unannounced entry.
Indeed, there is no formula for the determination of
reasonableness. Each case is to be decided on its
own facts and circumstances. In determining the
lawfulness of an unallowed entry and the existence
of probable cause, the courts are concerned only
with what the officers had reason to believe and the
time of the entry. (People v. Huang Zhen Hua, G.R.
No. 139301, Sept. 29, 2004)
When Forcible Entry Justified
The officer, if refused admittance to the place of
directed search after giving notice of his purpose
and authority, may break open any outer or inner
door or window of a house or any part of a house
or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him
when unlawfully detained therein. (ROC, Rule 126,
§ 7)
The police a hori ie claim that they had to use
some force in order to gain entry cannot be
doubted. The occupants of the house, especially
accused-appellant, refused to open the door
despite the fact that the searching party knocked
on the door several times. Furthermore, the agents
saw the suspicious movements of the people inside
the house. These circumstances justified the
searching party's forcible entry into the house,
founded as it is on the apprehension that the
execution of their mission would be frustrated
unless they do so. (People v. Salanguit, G.R. No.
133254-55, April 19, 2001)
4. WARRANTLESS SEARCHES
There are exceptional circumstances when
searches are reasonable even when warrantless.
There are recognized instances of permissible
warrantless searches laid down in jurisprudence.
(Sapi v. People, G.R. No. 200370, June 7, 2017)
Warrantless searches are allowable in the
following circumstances: (WIPE MS CACP)
1. Waiver of right
2. Search Incidental to a lawful arrest
3. Seizure of evidence in Plain view
4. During
exigent
and
Emergency
circumstances
5. Search of a Moving vehicle
6. Stop and frisk rule (Terry Search)
7. Customs search
8. Airport searches
9. Checkpoint Search
10. Warrantless search by a Private individual
[Note: This is found in Sec. 5, Rule 113 of the
Rules of Court where a private person may
arrest a person without a warrant, and in turn
such private individual may validly conduct a
search incidental to a lawful arrest] (People v.
Aruta, G.R. No. 120915, April 3, 1998)
a. Waiver of Right
Requisites
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There is an effective waiver of rights against
unreasonable searches and seizures if the
following requisites are present: (EKI)
1. It must appear that the rights Exist;
2. The person involved had Knowledge, actual or
constructive, of the existence of such right;
3. Said person had an actual Intention to
relinquish the right. (People v. Tudtud, G.R. No.
144037, Sept. 26, 2003)
Who May Waive
The constitutional immunity from unreasonable
searches and seizures, being personal one, cannot
be waived by anyone except:
1. The person whose rights are invaded; or
2. One who is expressly authorized to do so in his
or her behalf. (People v. Damaso, G.R. No.
93516, Aug. 12, 1992)
Prosecution Must Prove the Waiver with Clear
and Convincing Evidence
Silence or lack of resistance can hardly be
considered as consent to the warrantless search.
Although the right against unreasonable searches
and seizures may be surrendered through a valid
waiver, the prosecution must prove that the waiver
was executed with clear and convincing evidence.
Consent to a warrantless search and seizure must
be unequivocal, specific, intelligently given and
unattended by duress or coercion. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
Determined
by
the
Totality
of
the
Circumstances
The validity of a consented warrantless search is
determined by the totality of the circumstances.
This may involve an inquiry into the environment in
which the consent was given such as the presence
of coercive police procedures. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
Waiver Not Presumed
Mere passive conformity or silence to the
warrantless search is only an implied
acquiescence, which amounts to no consent at all.
Silence or lack of aggressive objection is a natural
reaction to a coercive environment brought about
by the police officer's excessive intrusion into his
private space. The prosecution and the police carry
the burden of showing that the waiver of a
constitutional right is one which is knowing,
intelligent, and free from any coercion. In all cases,
such waivers are not to be presumed. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
Invalid Waiver Under RA 10951
RA No. 10591 authorizes warrantless inspections
of houses, which are unreasonable and, therefore,
require a search warrant. Signing the Consent of
Voluntary Presentation for Inspection in the pro
forma Individual Application for New Firearm
Registration cannot be considered a valid waiver of
the right against unreasonable searches under
Article III, Section 2 of the Constitution. There is a
legitimate, almost absolute, expectation of privacy
in one's residence. The inspection contemplated
may only be done with a search warrant. Therefore,
the signing of the Consent of Voluntary
Presentation for Inspection is violative of the
protection against unreasonable searches and
seizures. (Acosta v. Ochoa, G.R. Nos. 211559,
211567, 212570 & 215634, Oct. 15, 2019)
b. Search Incidental to a Lawful Arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
been used or constitute proof in the commission of
an offense without a search warrant. (ROC, Rule
126, § 13)
Purpose
The purpose of allowing a warrantless search and
seizure incident to a lawful arrest is to protect the
arresting officer from being harmed by the person
arrested, who might be armed with a concealed
weapon, and to prevent the latter from destroying
evidence within reach. It is therefore a reasonable
exercise of the S a e police power to protect (1)
law enforcers from the injury that may be inflicted
on them by a person they have lawfully arrested;
and (2) evidence from being destroyed by the
arrestee. It seeks to ensure the safety of the
arresting officers and the integrity of the evidence
under the control and within the reach of the
arrestee. (People v. Calantiao, G.R. No. 203984,
June 18, 2014)
Requisites
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Test for a valid warrantless search incidental to a
lawful arrest: (LCC)
1. The arrest must be Lawful;
2. The item to be searched was within the
arre ee
Custody or area of immediate
control; and
3. The search was Contemporaneous with the
arrest.
Lawful Arrest Must Precede the Search
General Rule: A search incidental to a lawful arrest
requires that there must first be a lawful arrest
before a search is made. Otherwise stated, a lawful
arrest must precede the search; the process
cannot be reversed. (Sapi v. People, G.R. No.
200370, June 7, 2017)
Exception:
A
search
substantially
contemporaneous with an arrest can precede
the arrest if the police has probable cause to
make the arrest at the outset of the search.
(People v. Mariacos, G.R. No. 188611, June
16, 2010)
Scope of Warrantless Search
The scope of allowable warrantless search is
limited to the area within which the person arrested
could reach for a weapon or reach for evidence to
destroy it. (Chimel v. California, 395 U.S. 752, June
23, 1969)
Moreover, in lawful arrests, it becomes both the
duty and the right of the apprehending officers to
conduct a warrantless search not only on the
person of the suspect, but also in the permissible
area within the la er reach. Otherwise stated, a
valid arrest allows the seizure of evidence or
dangerous weapons either on the person of the
one arrested or within the area of his immediate
control. The phrase "within the area of his
immediate control" means the area from within
which he might gain possession of a weapon or
destructible evidence. A gun on a table or in a
drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed
in the clothing of the person arrested. (People v.
Calantiao, G.R. No. 203984, June 18, 2014)
In Valeroso, however, the Court held that the
evidence searched and seized from him could not
be used against him because they were discovered
in a room, different from where he was being
detained, and was in a locked cabinet. Thus, the
POLITICAL LAW
area searched could not be considered as one
within his immediate control that he could take any
weapon or destroy any evidence against him.
(People v. Calantiao, G.R. No. 203984, June 18,
2014)
The better and established rule is a strict
application of the exception provided in Rule 126,
sec. 12 [now Sec. 13] and that is to absolutely limit
a warrantless search of a person who is lawfully
arrested to his or her person at the time of and
incident to his or her arrest and to "dangerous
weapons or anything which may be used as proof
of the commission of the offense." Such
warrantless search obviously cannot be made in a
place other than the place of arre . (Nolasco v.
Pano, G.R. No. L- 69803, Jan. 30, 1987)
What May Be Searched
Assuming a valid arrest, the arresting officer may
search the person of the arrestee and the area
within which the latter may reach for a weapon or
for evidence to destroy, and seize any money or
property found which was:
1. Used in the commission of the crime, or
2. The fruit of the crime, or
3. That which may be used as evidence, or
4. Which might furnish the arrestee with the
means of escaping or committing violence.
(People v. Comprado, G.R. No. 213225, April 4,
2018)
c. Seizure of Evidence in Plain View
Concept
Objects in the "plain view" of an officer who has the
right to be in the position to have that view are
subject to seizure without a warrant.
Requisites
The following elements must be present before the
doctrine may be applied: (VIAJ)
1. A prior Valid intention based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
2. The evidence was Inadvertently discovered by
the police who have the right to be where they
are;
3. The evidence must be immediately Apparent;
and
4. "Plain view" Justified were seizure of evidence
without further search. (People v. Compacion,
G.R. No. 124442, July 20, 2001)
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Immediately Apparent Requirement; Probable
Cause
The immediate requirement means that the
executing officer can, at any time of discovery of
the object or the facts therein available to him,
determine probable cause of the objec
incriminating evidence. Probable cause must be
the direct result of the officer instantaneous
sensory perception of the object. The immediately
apparent test does not require an unduly high
degree of certainty as to the incriminating character
of the evidence. (United Laboratories v. Isip, G.R.
No. 163858, June 28, 2005)
Exception to the Inadmissibility of Evidence
Obtained in a Warrantless Search Incident to a
Lawful Arrest Outside the S
c
Person
and Premises under his Immediate Control
The Plain View Doctrine is actually the exception to
the inadmissibility of evidence obtained in a
warrantless search incident to a lawful arrest
outside the
pec person and premises under
his immediate control. It serves to supplement the
prior justification
whether it be a warrant for
another object, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being
present unconnected with a search directed
against the accused and permits the warrantless
seizure. (People v. Calantiao, G.R. No. 203984,
June 18, 2014)
Applied Where a Police Officer is Not Searching
for Evidence
The doctrine is usually applied where a police
officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object. (Valeroso v. CA,
G.R. No. 164815, Sept. 3, 2009)
Object Seized Inside a Closed Package
General Rule: An object is in plain view if the
object itself is plainly exposed to sight. Where the
object seized was inside a closed package, the
object itself is not in plain view and therefore cannot
be seized without a warrant.
Exception: However, if the package
proclaims its contents, whether by its
distinctive configuration, its transparency, or if
its contents are obvious to an observer, then
POLITICAL LAW
the contents are in plain view and may be
seized.
In other words, if the package is such that an
experienced observer could infer from its
appearance that it contains the prohibited article,
then the article is deemed in plain view. It must be
immediately apparent to the police that the items
that they observe may be evidence of a crime,
contraband or otherwise subject to seizure.
(Caballes v. CA, G.R. No. 136292, Jan. 15, 2002)
Plain View Doctrine Not Applicable When
Evidence Discovered in the Course of a Search
The seizure of the passports, bankbooks, checks,
typewriter, check writer, dry seals and stamp pads
and other assorted documents does not fall within
the plain ie
exception. The assertions of the
police officers that said objects were inad er en l
seized within their plain ie
are mere legal
conclusions which are not supported by any clear
narration of the factual circumstances leading to
their discovery. The supposed illegal character of
the items claimed to have been seized within the
plain ie of the policemen was not readily and
immediately apparent. Rather, the suspicions of
the policemen appear to have been aroused by the
presence of the numerous passports and
immigration documents which they discovered in
the course of their search. (People v. Go, G.R. No.
144639, Sept. 12, 2003)
d. Exigent and Emergency Circumstances
In the event of a coup d e a conducted by the
Reform the Armed Forces Movement Soldiers of
the Filipino People , the EUROCAR Building was
put under surveillance pursuant to an intelligence
report that it housed large quantities of ammunition.
During the operations, the car of the surveillance
team was fired upon by 5 persons from a crowd
within the vicinity of the EUROCAR Building. The
team proceeded to the building without a warrant
and was able to seize de Gracia and plenty of
explosives and ammunition. The SC held that the
arrests were impelled by the exigencies of the
situation, which concerned the very survival of
society and the government. In this case, the
military operatives had reasonable ground to
believe that a crime was being committed. The
team had no opportunity to apply for a search
warrant from the courts, as the court with
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jurisdiction, at that time, was closed due to
disorder. (People v. De Gracia, G.R. Nos. 10200910, July 6, 1994).
e. Search of a Moving Vehicle
Concept
The rules governing searches and seizures have
been liberalized when the object of a search is a
vehicle for practical purposes. Police officers
cannot be expected to appear before a judge and
apply for a search warrant when time is of the
essence considering the efficiency of vehicles in
facilitating transactions involving contraband or
dangerous articles. However, the inherent mobility
of vehicles cannot justify all kinds of searches. Law
enforcers must act on the basis of probable cause.
(Sapi v. People, G.R. No. 200370, June 7, 2017)
Rationale
Securing a search warrant is not practicable to
secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in
which the warrant must be sought. (Papa v. Mago,
G.R. No. L-27360, Feb. 28, 1968)
Visual Search No Probable Cause Required
Thus, routinary and indiscriminate searches of
moving vehicles are allowed if they are limited to a
visual search. This holds especially true when the
object of the search is a public vehicle where
individuals have a reasonably reduced expectation
of privacy. (Sapi v. People, G.R. No. 200370, June
7, 2017)
A search of a moving vehicle may either be a mere
routine inspection or an extensive search. The
search in a routine inspection is limited to the
following instances:
1. Where the officer merely draws aside the
curtain of a vacant vehicle which is parked on
the public fair grounds;
2. Simply looks into a vehicle;
3. Flashes a light therein without opening the car's
doors;
4. Where the occupants are not subjected to a
physical or body search;
5. Where the inspection of the vehicles is limited
to a visual search or visual inspection; and
6. Where the routine check is conducted in a fixed
area. (Macad v. People, G.R. No. 227366, Aug.
1, 2018)
POLITICAL LAW
Extensive Search Probable Cause Required
On the other hand, extensive searches are
permissible only when they are founded upon
probable cause. Any evidence obtained will be
subject to the exclusionary principle under the
Constitution. (Sapi v. People, G.R. No. 200370,
June 7, 2017)
That the object of a warrantless search is allegedly
inside a moving vehicle does not justify an
extensive search absent probable cause.
Moreover, law enforcers cannot act solely on the
basis of confidential or tipped information. A tip is
still hearsay no matter how reliable it may be. It is
not sufficient to constitute probable cause in the
absence of any other circumstance that will arouse
suspicion. (Sapi v. People, G.R. No. 200370, June
7, 2017)
When a vehicle is stopped and subjected to an
extensive search, such a warrantless search has
been held to be valid only as long as the officers
conducting the search have reasonable or
probable cause to believe before the search that
they will find the instrumentality or evidence
pertaining to a crime, in the vehicle to be searched.
(Macad v. People, G.R. No. 227366, Aug. 1, 2018)
A confidential informer tipped the police that a
Gemini car was going to deliver shabu. When they
stopped the car, they saw a gun tucked in T a on
waist. He did not have any documents, which
strengthened the police suspicion. After he was
told to step out of the car, they found plastic
sachets containing shabu on the dri er seat.
These circumstances are sufficient to establish
probable cause for the warrantless search of the
car. Hence, the sachets of shabu may be admitted
as evidence. (People v. Tuazon, G.R. No. 175783,
Sept. 3, 2007)
f. Stop and Frisk Rule (Terry Search)
Concept
A "stop and frisk" search is the act of a police officer
to stop a citizen on the street, interrogate him, and
pat him for weapon(s) or contraband. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
Requisites (URIRA)
1. Police Officer observes Unusual conduct.
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2. Reasonable suspicion that person is engaged
in some type of criminal activity in light of
experience.
3. Identifies himself as a policeman upon
approach.
4. Makes Reasonable inquiries.
5. There i rea onable fear for one own, or
o her
afe . Th , he i en i led o cond c a
limited search of the outer clothing of such
persons in an Attempt to discover weapons
that might be used for assault. (Terry v. Ohio,
392 U.S. 1, June 10, 1968)
Scope
The allowable scope of a "stop and frisk" search is
limited to a protective search of outer clothing for
weapons. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Totality of Suspicious Circumstances; At Least
2 or More Suspicious Circumstances
For a op and fri k search to be valid, it must be
supported by evidence such that the totality of the
suspicious circumstances observed by the
arresting officer led him/her to believe that an
accused was committing an illicit act. (Telen v.
People, G.R. 228107, Oct. 9, 2019)
To sustain the validity of a stop and frisk search,
the arresting officer should have personally
observed
two
(2)
or
more
suspicious
circumstances, the totality of which would then
create a reasonable inference of criminal activity to
compel the arresting officer to investigate further.
(Manibog vs People, G.R. No. 211214, March 20,
2019)
The police officer must observe at least 2 or more
suspicious circumstances. In this case, the
prosecution failed to prove the legality of the
warrantless arrest and the bare assertion that they
caught X in flagrante delicto of illegal possession of
a hand grenade is insufficient to cloth the police
officers with the authority to restrain X liberty.
PO3 Y suspicion based on the sight of a metal
object is not sufficient to defeat X constitutional
right to privacy. More importantly, the prosecution
in this case failed to prove the existence of a hand
grenade as no evidence was proffered on its chain
custody. (Telen v. People, G.R. 228107, Oct. 9,
2019)
POLITICAL LAW
Probable Cause Not Required; But Genuine
Reason Based on Experience
Law enforcers do not have unbridled discretion in
conducting "stop and frisk" searches. While
probable cause is not required, a "stop and frisk"
search cannot be validated on the basis of a
suspicion or hunch. Law enforcers must have a
genuine reason to believe, based on their
experience and the particular circumstances of
each case, that criminal activity may be afoot.
Reliance on one (1) suspicious activity alone, or
none at all, cannot produce a reasonable search.
(Sapi v. People, G.R. No. 200370, June 7, 2017)
g. Customs Search
The Tariff and Customs Code of 1957 authorizes
persons having police authority under Section
2203 of the Tariff and Customs Code to enter, pass
through or search any land, inclosure, warehouse,
store or building, not being a dwelling house; and
also to inspect, search and examine any vessel or
aircraft and any trunk, package, or envelope or any
person on board, or to stop and search and
examine any vehicle, beast or person suspected of
holding or conveying any dutiable or prohibited
article introduced into the Philippines contrary to
law, without mentioning the need of a search
warrant in said cases. But in the search of a
dwelling house, the Code provides that said
dwelling house may be entered and searched only
upon warrant issued by a judge or justice of the
peace. Thus, except in the case of the search of a
dwelling house, persons exercising police authority
under the customs law may effect search and
seizure without a search warrant in the
enforcement of customs laws. (Papa v. Mago, G.R.
No. L-27360, Feb. 28, 1968)
Requisites
Customs searches are allowed when persons
exercising police authority under the customs law
effect search and seizure in the enforcement of
customs laws. To be valid, the requirements are:
(ACH)
1. The person conducting the search is exercising
police Authority under customs law;
2. The search was for the enforcement of
Customs law; and
3. The place searched is not a dwelling place or
House. (Dela Cruz v People of the Philippines,
G.R. No. 209387, Jan. 11, 2016)
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CUSTOMS MODERNIZATION AND TARIFF ACT
Persons Exercising Police Authority
The following persons are authorized to effect
search, seizure, and arrest:
1. Officials of the Bureau, District Collectors,
Deputy District Collectors, police officers,
agents, inspectors and guards of the Bureau;
2. Upon authorization of the Commissioner,
officers and members of the Armed Forces of
the Philippines (AFP) and national law
enforcement agencies; and
3. Officials of the BIR on all cases falling within the
regular performance of their duties, when
payment of internal revenue taxes is involved.
(Customs Modernization And Tariff Act, § 214)
Authority to Enter Properties
Any person exercising police authority may, at any
time, enter, pass through, and search any land,
enclosure, warehouse, store, building or structure
not principally used as a dwelling house.
When a security personnel or any other employee
lives in the warehouse, store, or any building,
structure or enclosure that is used for storage of
goods, it shall not be considered as a dwelling
house for purposes of this Act. (Customs
Modernization And Tariff Act, § 219)
Authority to Search Dwelling House
A dwelling house may be entered and searched
only upon warrant issued by a Judge of a
competent court, the sworn application thereon
showing probable cause and particularly
describing the place to be searched and the goods
to be seized. (Customs Modernization And Tariff
Act, § 220)
Authority to Search Vessels or Aircrafts and
Persons or Goods Conveyed Therein
Any person exercising police authority under this
Act may board, inspect, search and examine a
vessel or aircraft and any container, trunk,
package, box or envelope found on board, and
physically search and examine any person
thereon. In case of any probable violation of this
Act, the person exercising police authority may
seize the goods, vessel, aircraft, or any part
thereof.
POLITICAL LAW
Such power to search includes removal of any false
bottom, partition, bulkhead, or any other
obstruction for the purpose of uncovering any
concealed dutiable or forfeitable goods.
The proceeding herein authorized shall not give
rise to any claim for damage caused to the goods,
vessel or aircraft, unless there is gross negligence
or abuse of authority in the exercise thereof.
(Customs Modernization And Tariff Act, § 221)
Authority to Search Vehicles, Other Carriers,
Persons and Animals
Upon reasonable cause, any person exercising
police authority may open and examine any box,
trunk, envelope, or other container for purposes of
determining the presence of dutiable or prohibited
goods. This authority includes the search of
receptacles used for the transport of human
remains and dead animals. Such authority likewise
includes the power to stop, search, and examine
any vehicle or carrier, person or animal suspected
of holding or conveying dutiable or prohibited
goods. (Customs Modernization And Tariff Act, §
222)
Authority to Search Persons Arriving From
Foreign Countries
Upon reasonable cause, travelers arriving from
foreign countries may be subjected to search and
detention by the customs officers. The dignity of
the person under search and detention shall be
respected at all times. Female inspectors may be
employed for the examination and search of
persons of their own sex. (Customs Modernization
And Tariff Act, § 223)
h. Airport Searches
The search was made pursuant to routine airport
security procedure, which is allowed under Section
9 of Republic Act No. 6235 reading as follows:
SEC. 9. Every ticket issued to a passenger by the
airline or air carrier concerned shall contain among
others the following condition printed thereon:
"Holder hereof and his hand-carried luggage(s) are
subject to search for, and seizure of, prohibited
materials or substances. Holder refusing to be
searched shall not be allowed to board the aircraft,"
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which shall constitute a part of the contract
between the passenger and the air carrier.
This constitutes another exception to the
proscription against warrantless searches and
seizures. As admitted by SUSAN and shown in
Annex "D" of her Brief, the afore-quoted provision
is stated in the "Notice to All Passengers" located
at the final security checkpoint at the departure
lounge. From the said provision, it is clear that the
search, unlike in the Terry search, is not limited to
weapons. Passengers are also subject to search
for prohibited materials or substances.
In this case, after the metal detector alarmed
SUSAN consented to be frisked, which resulted in
the discovery of packages on her body. It was too
late in the day for her to refuse to be further
searched because the discovery of the packages
whose contents felt like rice granules, coupled by
her apprehensiveness and her obviously false
statement that the packages contained only
money, aroused the suspicion of the frisker that
SUSAN was hiding something illegal. It must be
repeated that R.A. No. 6235 authorizes search for
prohibited materials or substances. To limit the
action of the airport security personnel to simply
refusing her entry into the aircraft and sending her
home (as suggested by appellant), and thereby
depriving them of "the ability and facility to act
accordingly, including to further search without
warrant, in light of such circumstances, would be to
sanction impotence and ineffectivity in law
enforcement, to the detriment of society." Thus, the
strip search in the ladie room was justified under
the circumstances. (People v. Canton, G.R. No.
148825, Dec. 27, 2002)
i. Checkpoint Search
Concept
A checkpoint search is a variant of a search of a
moving vehicle. Checkpoints per se are not invalid.
They are allowed in exceptional circumstances to
protect the lives of individuals and ensure their
safety. They are also sanctioned in cases where
the government's survival is in danger. Considering
that routine checkpoints intrude on a motorist's
right to 'free pa age to a certain extent, they must
be conducted in a way least intrusive to motorists.
(Sapi v. People, G.R. No. 200370, June 7, 2017)
POLITICAL LAW
Requisites (No body LAV)
1. Passengers Not subjected to Body search;
2. Limited to visual search
3. Abnormal times; and
4. Vehicle not searched. (Valmonte v. Gen. De
Villa, G.R. No. 83988, September 29, 1989)
Limited to a Visual Search; Vehicle and Body
Search Not Allowed
The extent of routine inspections must be limited to
a visual search. Routine inspections do not give
law enforcers carte blanche to perform warrantless
searches. (Sapi v. People, G.R. No. 200370, June
7, 2017)
For as long as the vehicle is neither searched nor
its occupants subjected to a body search, and the
inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as
violative of an individual's right against
unreasonable searches. Thus, a search where an
officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds,
or simply looks into a vehicle, or flashes a light
therein is not unreasonable. (Sapi v. People, G.R.
No. 200370, June 7, 2017)
Extensive Search Allowed When Probable
Cause Present
However, an extensive search may be conducted
on a vehicle at a checkpoint when law enforcers
have probable cause to believe that the vehicle's
passengers committed a crime or when the vehicle
contains instruments of an offense. (Sapi v.
People, G.R. No. 200370, June 7, 2017)
Exclusive reliance on information tipped by
informants goes against the very nature of
probable cause. A single hint hardly amounts to the
existence of such facts and circumstances which
would lead a reasonably discreet and prudent man
to believe that an offense has been committed and
that the objects sought in connection with the
offense are in the place to be searched. The finding
of should be premised on more than just the initial
information relayed by assets. It was the
confluence of initial tips and a myriad of other
occurrences that ultimately sustained probable
cause. In this case, a radio message cannot be the
sole basis of the finding of probable cause to
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warrant the extensive search of the vehicle of the
accuse on the police checkpoint. (People v.
Yanson, G.R. No. 238453, July 31, 2019)
j. Warrantless Search by a Private Individual
If the search is made at the behest or initiative of
the proprietor of a private establishment for its own
and private purposes, and without the intervention
of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the
act of a private individual, not the law enforcers, is
involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals
so as to bring it within the ambit of alleged unlawful
intrusion by the government. (People v. Marti, G.R.
No. 81561, Jan. 18, 1991)
REASONABLE SEARCH V.
WARRANTLESS SEARCH
A reasonable search, on the one hand, and a
warrantless search, on the other, are mutually
exclusive. While both State intrusions are valid
even without a warrant, the underlying reasons for
the absence of a warrant are different. (Saluday v.
People, G.R. No. 215305, April 3, 2018)
Reasonable Search
A reasonable search arises from a reduced
expectation of privacy, for which reason Section 2,
Article III of the Constitution finds no application.
Examples include searches done at airports,
seaports, bus terminals, malls, and similar public
places. (Saluday v. People, G.R. No. 215305, April
3, 2018)
Warrantless Search
In contrast, a warrantless search is presumably an
"unreasonable search," but for reasons of
practicality, a search warrant can be dispensed
with. Examples include search incidental to a lawful
arrest, search of evidence in plain view, consented
search, and extensive search of a private moving
vehicle. (Saluday v. People, G.R. No. 215305, April
3, 2018)
REASONABLE SEARCH: BUS SEARCHES
POLITICAL LAW
(Saluday v. People, G.R. No. 215305, April 3,
2018)
Prior to Entry
Prior to entry, passengers and their bags and
luggages can be subjected to a routine inspection
akin to airport and seaport security protocol. In this
regard, metal detectors and x-ray scanning
machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of electronic
scanners, passengers can be required instead to
open their bags and luggages for inspection, which
inspection must be made in the passenger's
presence. Should the passenger object, he or she
can validly be refused entry into the terminal.
While in Transit
While in transit, a bus can still be searched by
government agents or the security personnel of the
bus owner in the following three instances: (IPC)
1. Upon receipt of information that a passenger
carries contraband or Illegal articles, the bus
where the passenger is aboard can be stopped
en route to allow for an inspection of the person
and his or her effects. This is no different from
an airplane that is forced to land upon receipt of
information about the contraband or illegal
articles carried by a passenger onboard.
2. Whenever a bus picks passengers en route, the
Prospective passenger can be frisked and his
or her bag or luggage be subjected to the same
routine inspection by government agents or
private security personnel as though the person
boarded the bus at the terminal. This is because
unlike an airplane, a bus is able to stop and pick
passengers along the way, making it possible
for these passengers to evade the routine
search at the bus terminal.
3. A bus can be flagged down at designated
military or police Checkpoints where State
agents can board the vehicle for a routine
inspection of the passengers and their bags or
luggages.
Requisites
In both situations (prior to entry and while in
transit), the inspection of passengers and their
effects prior to entry at the bus terminal and the
search of the bus while in transit must also satisfy
the following conditions to qualify as a valid
reasonable search: (LIDSE)
1. First, as to the manner of the search, it must be
the Least Intrusive and must uphold the dignity
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of the person or persons being searched,
minimizing, if not altogether eradicating, any
cause for public embarrassment, humiliation or
ridicule.
2. Second, neither can the search result from any
Discriminatory motive such as insidious
profiling, stereotyping and other similar motives.
In all instances, the fundamental rights of
vulnerable identities, persons with disabilities,
children and other similar groups should be
protected.
3. Third, as to the purpose of the search, it must
be confined to ensuring public Safety.
4. Fourth, as to the Evidence seized from the
reasonable search, courts must be convinced
that precautionary measures were in place to
ensure that no evidence was planted against
the accused.
Applies to Other Vehicles
Aside from public transport buses, any moving
vehicle that similarly accepts passengers at the
terminal and along its route is likewise covered by
these guidelines. Hence, whenever compliant with
these guidelines, a routine inspection at the
terminal or of the vehicle itself while in transit
constitutes a reasonable search. Otherwise, the
intrusion
becomes
unreasonable,
thereby
triggering the constitutional guarantee under
Section 2, Article III of the Constitution.
Does Not Apply to Privately-Owned Cars
The guidelines do not apply to privately-owned
cars. Neither are they applicable to moving
vehicles dedicated for private or personal use, as
in the case of taxis, which are hired by only one or
a group of passengers such that the vehicle can no
longer be flagged down by any other person until
the passengers on board alight from the vehicle.
REASONABLE SEARCH: PORT SEARCHES
Searches pursuant to port security measures are
not unreasonable per se. The security measures of
x-ray scanning and inspection in domestic ports are
akin to routine security procedures in airports. The
reason behind the exception to the prohibition
against warrantless searches is that there is a
reasonable reduced expectation of privacy when
coming into airports or ports of travel.
Actual inspection upon showing of probable cause
that a crime is being or has been committed is part
POLITICAL LAW
of reasonable security regulations to safeguard the
passengers passing through ports or terminals.
Any perceived curtailment of liberty due to the
presentation of person and effects for port security
measures is a permissible intrusion to privacy
when measured against the possible harm to
society caused by lawless persons.
Thus, when the results of the x-ray scan revealed
the existence of firearms in the bag, the port
authorities have probable cause to conduct a
search of the per on bag. (Dela Cruz v People of
the Philippines, GR 209387, Jan. 11, 2016)
5. CONCEPT OF AN ARREST
Definition
Arrest is the taking of a person into custody in order
that he may be bound to answer for the
commission of an offense. (ROC, Rule 113, § 1)
Arrest, How Made
An arrest is made by an actual restraint of a person
to be arrested, or by his submission to the custody
of the person making the arrest.
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for
his detention. (ROC, Rule 113, § 2)
Requisites of a Valid Warrant of Arrest
The requisites for the issuance of a warrant of
arrest are: (3PS)
1. Existence of Probable cause;
2. Such probable cause must be determined
Personally by the judge;
3. Probable cause is determined by the judge
through a Personal evaluation of the report and
the supporting documents submitted by the
fiscal; and
4. The warrant Specifically describes the place to
be searched and the things to be seized. (AAA
v. Carbonell, G.R. No. 171465, June 8, 2007)
a. Probable Cause
Definition
Probable cause is such set of facts and
circumstances as would lead a reasonably discreet
and prudent man to believe that the offense
charged in the Information or any offense included
therein has been committed by the person sought
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to be arrested. (Viudez II v. CA, G.R. No. 152889,
June 5, 2009)
Purpose
The purpose of the mandate of the judge to first
determine probable cause for the arrest of the
accused is to insulate from the very start those
falsely charged with crimes from the tribulations,
expenses and anxiety of a public trial. (Viudez II v.
CA, G.R. No. 152889, June 5, 2009)
More Than Suspicion, Less Than Evidence That
Would Justify Conviction
In determining probable cause, the average man
weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence
of which he has no technical knowledge. He relies
on common sense. A finding of probable cause
needs only to rest on evidence showing that, more
likely than not, a crime has been committed and
that it was committed by the accused. Probable
cause demands more than suspicion; it requires
less than evidence that would justify conviction.
(Viudez II v. CA, G.R. No. 152889, June 5, 2009)
Probable Cause: Executive v. Judicial
The executive determination of probable cause is
one made during preliminary investigation. It is a
function that properly pertains to the public
prosecutor who is given a broad discretion to
determine whether probable cause exists and to
charge those whom he believes to have committed
the crime as defined by law and thus should be
held for trial. Otherwise stated, such official has the
quasi-judicial authority to determine whether or not
a criminal case must be filed in court. Whether or
not that function has been correctly discharged by
the public prosecutor, i.e., whether or not he has
made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial
court itself does not and may not be compelled to
pass upon.
The judicial determination of probable cause, on
the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be
issued against the accused. The judge must satisfy
himself that based on the evidence submitted,
there is necessity for placing the accused under
custody in order not to frustrate the ends of justice.
If the judge finds no probable cause, the judge
POLITICAL LAW
cannot be forced to issue the arrest warrant.
(Mendoza v. People, G.R. No. 197293, April 21,
2014)
b. Personal Determination of Probable
Cause
Exclusive
The function of the judge to issue a warrant of
arrest upon the determination of probable cause is
exclusive; thus, the consequent implementation of
a warrant of arrest cannot be deferred pending the
resolution of a Petition for Review by the Secretary
of Justice as to the finding of probable cause, a
function that is executive in nature. To defer the
implementation of the warrant of arrest would be an
encroachment on the exclusive prerogative of the
judge. (Viudez II v. CA, G.R. No. 152889, June 5,
2009)
Relies Solely on the P
c
Certification
Grave Abuse of Discretion
If a Judge relies solely on the certification of the
Prosecutor as in this case where all the records of
the investigation have not yet been submitted to
him, he or she has not personally determined
probable cause. The determination is made by the
Provincial
Prosecutor.
The
constitutional
requirement has not been satisfied. The Judge
commits a grave abuse of discretion. (Lim, Sr. v.
Hon. Felix, G.R. Nos. 94054-57, Feb. 19, 1991)
c. Personal Evaluation of the Report and the
Supporting Documents
Judge Not Required to Personally Examine the
Complainant and His Witnesses; Only Required
in the Issuance of Search Warrants
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.
In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the
complainant and his witnesses. Following
established doctrine and procedure, he shall:
1. Personally evaluate the report and the
supporting documents submitted by the fiscal
regarding the existence of probable cause and,
on the basis thereof, issue a warrant of arrest;
or
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2. If on the basis thereof he finds no probable
ca e, he ma di regard he fi cal repor and
require the submission of supporting affidavits
of witnesses to aid him in arriving at a
conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise
judges would by unduly laden with the preliminary
examination and investigation of criminal
complaints instead of concentrating on hearing and
deciding cases filed before their courts. (AAA v.
Carbonell, G.R. No. 171465, June 8, 2007)
Judge Should Not Solely Rely on the Report of
the Prosecutor
Indeed, what the law requires as personal
determination on the part of the judge is that he
should not rely solely on the report of the
investigating prosecutor. The judge should
consider not only the report of the investigating
prosecutor but also the affidavit and the
documentary evidence of the parties, the counteraffidavit of the accused and his witnesses, as well
as the transcript of stenographic notes taken during
the preliminary investigation, if any, submitted to
the court by the investigating prosecutor upon the
filing of the Information. If the report, taken together
with the supporting evidence, is sufficient to sustain
a finding of probable cause, it is not compulsory
that a personal examination of the complainant and
his witnesses be conducted. (AAA v. Carbonell,
G.R. No. 171465, June 8, 2007)
d. Particularity of Description
Does Not Prevent the Issue and Service of a
Warrant Against a Party Whose Name is
Unknown
This rule or principle does not prevent the issue
and service of a warrant against a party whose
name is unknown. In such case the best
description possible of the person to be arrested is
to be given in the warrant; but it must be sufficient
to indicate clearly on whom it is to be served, by
stating his occupation, his personal appearance
and peculiarities, the place of his residence, or
other circumstances by which he can be identified.
(People v. Veloso, G.R. No. L-23051, Oct. 20,
1925)
Arrest Warrant for an Unnamed Party; John
Doe Arrest Warrant
Warrant for the apprehension of an unnamed party
is void, except in those cases where it contains a
descriptio personae such as will enable the officer
to identify the accused." The description must be
sufficient to indicate clearly the proper person upon
whom the warrant is to be served. (People v.
Veloso, G.R. No. L-23051, Oct. 20, 1925)
General Warrants are Void
A general arrest warrant is a warrant upon which
any other individual might as well have been
arrested, as being included in the description, as
the defendant himself. (People v. Veloso, G.R. No.
L-23051, Oct. 20, 1925)
A general warrant is defined as a search or arrest
warrant that is not particular as to the person to be
arrested or the property to be seized. It is one that
allows the seizure of one thing under a warrant
describing another and gives the officer executing
the warrant the discretion over which items to take.
(Worldwide Web Corporation v. People, G.R. No.
161106, Jan. 13, 2014)
CONDUCT OF AN ARREST
Time of Making Arrest
An arrest may be made on any day and at any time
of the day or night. (ROC, Rule 113, § 6)
Method of Arrest by Officer by Virtue of Warrant
When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of the
cause of the arrest and the fact that a warrant has
been issued for his arrest, except when he flees or
forcibly resists before the officer has opportunity to
so inform him, or when the giving of such
information will imperil the arrest. The officer need
not have the warrant in his possession at the time
of the arrest but after the arrest, if the person
arrested so requires, the warrant shall be shown to
him as soon as practicable. (ROC, Rule 113, § 7)
Method of Arrest by Officer Without Warrant
When making an arrest without a warrant, the
officer shall inform the person to be arrested of his
authority and the cause of the arrest, unless the
latter is either engaged in the commission of an
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offense, is pursued immediately after its
commission, has escaped, flees, or forcibly resists
before the officer has opportunity to so inform him,
or when the giving of such information will imperil
the arrest. (ROC, Rule 113, § 8)
Method of Arrest by Private Person
When making an arrest, a private person shall
inform the person to be arrested of the intention to
arrest him and the cause of the arrest, unless the
latter is either engaged in the commission of an
offense, is pursued immediately after its
commission, or has escaped, flees, or forcibly
resists before the person making the arrest has
opportunity to so inform him, or when the giving of
such information will imperil the arrest. (ROC, Rule
113, § 9)
When Forcible Entry Justified
An officer, in order to make an arrest either by
virtue of a warrant, or without a warrant, may break
into any building or enclosure where the person to
be arrested is or is reasonably believed to be, if he
is refused admittance thereto, after announcing his
authority and purpose. (ROC, Rule 113, § 11)
6. WARRANTLESS ARRESTS AND
DETENTION
Purpose
To hold that no criminal can, in any case, be
arrested and searched for the evidence and tokens
of his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved
of criminals, facilitating their escape in many
instances. (Umil v. Ramos, G.R. No. 81567 July 9,
1990)
Instances When Warrantless Arrest May Be
Made
A peace officer or a private person may, without a
warrant, arrest a person:
1. In Flagrante Delicto: When, in his presence,
the person to be arrested has committed, is
actually committing, or is attempting to commit
an offense;
2. Hot Pursuit Arrest: When an offense has just
been committed and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be arrested
has committed it; and
POLITICAL LAW
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another. (ROC, Rule 113, §
5)
a. In Flagrante Delicto
Requisites (OP)
1. The person to be arrested must execute an
Overt act indicating that he has just committed,
is actually committing, or is attempting to
commit a crime; and
2. Such overt act is done in the Presence or within
the view of the arresting officer.
Reliable information alone is insufficient to support
the arrest absent any overt act from the person to
be arrested indicating a crime has just been
committed, was being committed, or is about to be
committed. (Sapi v. People, G.R. No. 200370, June
7, 2017)
Officer Sees the Offense, Although at a
Distance
When the illegal act was committed in the presence
of the arresting officers, a warrantless arrest may
be effected. An offense is committed in the
presence of an officer when the officer sees the
offense, although at a distance, or hears the
disturbances created thereby and proceeds at
once to the scene of the crime. Police officers have
personal knowledge of the actual commission of
the crime when they had earlier conducted
surveillance activities of the accused. (People v.
Sucro, G.R. No. 93239, March 18, 1991)
Continuing Offense
The crimes of rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in
connection therewith constitute direct assaults
against the State and are in the nature of
continuing crimes. Thus, a rebel may be arrested
without a warrant at any time for he is deemed to
be in the act of committing a crime. (Umil v. Ramos,
G.R. No. 81567 July 9, 1990)
Buy-Bust
In buy-bust operations, the arresting officers catch
the malefactor in flagrante delicto. But the arresting
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POLITICAL LAW
officers must neither instigate nor induce the
arrestee to commit a crime. Entrapment is the
employment of such ways and means for the
purpose of capturing a lawbreaker from whose
mind the criminal intent originated. In such cases,
a search warrant is not necessary because a
search pursuant to a buy-bust operation is one
made incidental to a lawful arrest the arrestee is
caught in flagrante delicto. (People v. De La Cruz,
G.R. No. 101315, May 12, 1993)
police officer's determination of probable cause
would necessarily be limited to raw or
uncontaminated facts or circumstances, gathered
as they were within a very limited period of time.
The same provision adds another safeguard with
the requirement of probable cause as the standard
for evaluating these facts of circumstances before
the police officer could effect a valid warrantless
arrest. (Pestilos v. Generoso, G.R. No. 182601,
Nov. 10, 2014)
Stop and Frisk
When a policeman observes suspicious activity,
which leads him to believe that a crime is about to
be committed, he can investigate the suspicious
looking person and may frisk him for weapons as a
measure of self-protection. Should he find,
however, a weapon on the suspect, which is
unlicensed, he can arrest such person for having
committed an offense in his presence.
Manlulu was arrested without a warrant for
allegedly having killed another person at around
1:00AM in the morning. The warrantless arrest was
made around 7:00PM or about 19 hours later. The
SC held that for there to be a lawful warrantless
arrest, the arresting officer must have personal
knowledge of the offense, which has in fact just
been committed. In other words, the arrest has to
immediately follow the commission of the offense.
If a sufficient amount of time lapses as to allow him
to procure a warrant, then the police officer must
do so. In this case, not only was the arrest 19 hours
after the alleged crime, but the arresting officer also
did not have any personal knowledge of the facts.
The SC also held that personal gathering of
information is different from personal knowledge.
(People v. Manlulu, G.R. No. 102140, Apr. 22,
1994)
b. Hot Pursuit Arrest
Requisites (BC-PC-PK)
1. An offense has just Been Committed; and
2. The arresting officer has Probable Cause to
believe based on Personal Knowledge of facts
or circumstances that the person to be arrested
has committed it. (People v. Comprado, G.R.
No. 213225, April 4, 2018)
Element of Immediacy
The clincher in the element of ''personal knowledge
of facts or circumstances" is the required element
of immediacy within which these facts or
circumstances should be gathered. This required
time element acts as a safeguard to ensure that the
police officers have gathered the facts or perceived
the circumstances within a very limited time frame.
This guarantees that the police officers would have
no time to base their probable cause finding on
facts or circumstances obtained after an
exhaustive investigation.
The reason for the element of the immediacy is this
- as the time gap from the commission of the crime
to the arrest widens, the pieces of information
gathered are prone to become contaminated and
subjected to external factors, interpretations and
hearsay. On the other hand, with the element of
immediacy imposed under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure, the
Probable Cause
In determining probable cause, the arresting officer
may rely on all the information in his possession,
his fair inferences therefrom, including his
observations. Mere suspicion does not meet the
requirements of showing probable cause to arrest
without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably
trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a
crime; and under the circumstances, the arresting
officer need not verify such information.
The arresting officer should base his determination
of probable cause on his personal knowledge of
facts and circumstances that the person sought to
be arrested has committed the crime. In other
words, the arresting officer operates on the basis
of more limited facts, evidence or available
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information that he must personally gather within a
limited time frame.
One should not expect too much of an ordinary
policeman. He is not presumed to exercise the
subtle reasoning of a judicial officer. Oftentimes, he
has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the
escape of the criminal. (Pestilos v. Generoso, G.R.
No. 182601, Nov. 10, 2014)
Personal Knowledge: Hearsay Tip Insufficient
The rule requires that an offense had just been
committed. It connotes immediacy in point of time.
Law enforcers need not personally witness the
commission of a crime. However, they must have
personal knowledge of facts and circumstances
indicating that the person sought to be arrested
committed it. A hearsay tip by itself is not personal
knowledge required by the rule. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
The requirement of personal knowledge is absent
in this case. The Policeman was about 6-10 meters
away when he saw the accused emerge from an
alley holding a plastic sachet. His testimony fails to
state that he had personal knowledge that the
sachet contained shabu, or that he saw the sachet
containing white crystalline substance, to create a
reasonable suspicion that the sachet did indeed
contain shabu. From all indications
the time of
the arrest being 11:30 p.m., the Policeman's
location, and the tinted front windshield of the van
through which he was looking
it was highly
doubtful that the Policeman saw, let alone
deciphered, the contents of the sachet. For sure, it
was only when he held the hand of the accused
and confiscated the plastic sachet that he was able
to verify its contents. (Villasana y Cabahug v.
People, G.R. No. 209078, Sept. 4, 2019)
c. Waiver of Right
Objection to Illegal Arrest Must be Made Before
Plea
Appellant is estopped from questioning the legality
of his arrest considering that he never raised this
before entering his plea. Any objection involving a
warrant of arrest or the procedure in the acquisition
of jurisdiction over the person of an accused must
be made before he enters his plea, otherwise, the
POLITICAL LAW
objection is deemed waived. Consequently, any
irregularity attendant to his arrest, if any, had been
cured by his voluntary submission to the jurisdiction
of the trial court when he entered his plea and
participated during the trial. (People v. Salvatierra,
G.R. No. 104663, July 24, 1997)
Accused was seen having a pot session and that
the police who arrested him were conducting a
ake-o
operation. When accused tested
positive for drugs, he was charged with violation of
RA 9165. Accused did not deny that he was
positive for drugs but rather, he questions the
alleged illegality of his arrest. The Court ruled that
accused had already waived the right to question
the arrest. He was assisted by counsel when he
entered his plea and was able to present his
evidence. The right to question the validity of an
arrest may be waived if the accused, assisted by
counsel, fails to object to its validity before
arraignment. (Lapi v. People, G.R. No. 210731,
Feb. 13, 2019)
Waiver of an Illegal Arrest, Not a Waiver of an
Illegal Search
A waiver of an illegal arrest, however, is not a
waiver of an illegal search. While the accused has
already waived his right to contest the legality of his
arrest, he is not deemed to have equally waived his
right to contest the legality of the search.
(Villanueva v. People, G.R. No. 199042, Nov. 17,
2014)
A waiver of an illegal warrantless arrest does not
also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless
arrest. (Valdez v. People, G.R. No. 170180, Nov.
23, 2007)
The right to question the validity of an arrest may
be waived if the accused, assisted by counsel, fails
to object to its validity before arraignment. This
waiver, however, does not carry with it a waiver of
the inadmissibility of the evidence seized during the
illegal arrest. (Lapi v. People, G.R. No. 210731,
Feb. 13, 2019)
Application for Bail, Not a Waiver
An application for or admission to bail shall not bar
the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor,
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provided that he raises them before entering his
plea. (ROC, Rule 114, § 26)
ADMINISTRATIVE ARRESTS
Deportation Proceedings
Section 37 of the Immigration Law, empowering the
Commissioner of Immigration to issue warrants for
the arrest of overstaying aliens is constitutional.
The arrest is a step preliminary to the deportation
of the aliens who had violated the condition of their
stay in this country. The requirement of probable
cause, to be determined by a Judge, does not
extend to deportation proceedings. There need be
no "truncated" recourse to both judicial and
administrative warrants in a single deportation
proceeding. (Harvey v. Miriam Defensor Santiago,
G.R. No. 82544, June 28, 1988)
Drug, Alcohol, and Blood Test
The Court acknowledged that compelled urinalysis
was a form of search but its rea onablene
must
be judged by balancing the intrusion on the
individ al interests against the promotion of
legitimate government interests. What was
essential was the chool custodial responsibility
and authority, the nature of the intrusion, the
confidentiality of the test results and the legitimate
government interest. (Vernonia School District v.
Acton, 515 U.S. 64, June 26, 1995; Board of
Education v. Earls, 536 U.S. 22, June 27, 2002)
The Philippine courts followed the ruling in
Vernonia when it decided a case involving the
mandatory drug testing of candidates for public
office, students of secondary and tertiary schools,
officers and employees of public and private
offices, and persons charged before the
pro ec or office with certain offenses. The SC
held that the right to privacy has been accorded as
a facet of the right to unreasonable searches and
seizures.
On the case of mandatory drug testing provided for
in the Dangerous Drug Act, the Supreme Court
held the following:
1. Candidates for Constitutional Offices
Unconstitutional
A law cannot provide additional qualifications other
than those outlined in the Constitution.
POLITICAL LAW
2. Employees Constitutional
The random drug testing would be undertaken in
such a manner as to protect the privacy of the
employees involved. Also, the privacy interest in an
office is circum cribed b he compan
ork
policies, CBAs, and the right of the employer to
maintain discipline and efficiency in the workplace.
The right to privacy must yield to the necessary and
reasonable requirements of police power.
3. Students Constitutional
It is within the prerogative of schools to require
compliance with reasonable school regulations, as
a condition for admission or enrollment. The court
found:
a. Schools and their administrators stand in
loco parentis with respect to their students;
b. Minor students have contextually fewer
rights than an adult, and are subject to the
custody and supervision of their parents,
guardians, and schools;
c. Schools, acting in loco parentis, have a duty
to safeguard the health and well-being of
their students and may adopt such
measures as may reasonably be necessary
to discharge such duty; and
d. Schools have the right to impose conditions
on applicants for admission that are fair, just,
and non- discriminatory.
4. Persons charged before the public
prosecutor's office Unconstitutional
Defendants in a criminal complaint are not
randomly picked; neither are they beyond
suspicion. Certain persons are singled out and are
impleaded against their will, making a medical test
a tool for criminal prosecution. (Social Justice
Society v. Dangerous Drugs Board, G.R. Nos.
157870, 158633, 161658, Nov. 3, 2008)
7. EXCLUSIONARY RULE
Concept
Any evidence obtained in violation of the right
against unreasonable searches and seizure shall
be inadmissible for any purpose in any proceeding.
(PHIL. CONST., art. III, § 3[2])
Any evidence obtained in violation of the right
against unreasonable searches and seizures shall
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be inadmissible for any purpose in any proceeding.
This exclusionary rule instructs that evidence
obtained and confiscated on the occasion of such
unreasonable searches and seizures are deemed
tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words,
evidence obtained from unreasonable searches
and seizures shall be inadmissible in evidence for
any purpose in any proceeding. (People v.
Comprado, G.R. No. 213225, April 4, 2018)
To Whom Directed: The State
The constitutional proscription against unlawful
searches and seizures therefore applies as a
restraint directed only against the government and
its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the
State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
(People v. Marti, G.R. No. 81561, Jan. 18, 1991)
If the search is made at the behest or initiative of
the proprietor of a private establishment for its own
and private purposes, and without the intervention
of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the
act of private individual, not the law enforcers, is
involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals
so as to bring it within the ambit of alleged unlawful
intrusion by the government. (People v. Marti, G.R.
No. 81561, Jan. 18, 1991)
8. EFFECTS OF UNREASONABLE
SEARCHES AND SEIZURES
Exclusionary Rule: Fruit of the Poisonous Tree
To protect the people from unreasonable searches
and seizures, Section 3 (2), Article III of the 1987
Constitution provides that evidence obtained
from unreasonable searches and seizures shall be
inadmissible in evidence for any purpose in any
proceeding. In other words, evidence obtained and
confiscated on the occasion of such unreasonable
searches and seizures are deemed tainted and
should be excluded for being the proverbial fruit of
a poisonous tree. (Miguel v. People, G.R. No.
227038, July 31, 2017)
9. EFFECTS OF ILLEGAL DETENTION
POLITICAL LAW
Invalidity of Arrest
The invalidity of an arrest leads to several
consequences among which are:
1. The failure to acquire jurisdiction over the
person of an accused;
2. Criminal liability of law enforcers for illegal
arrest; and
3. Any search incident to the arrest becomes
invalid thus rendering the evidence acquired as
constitutionally inadmissible. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
Arbitrary Detention
Any public officer or employee who, without legal
grounds, detains a person, shall suffer:
1. The penalty of arresto mayor in its maximum
period to prisión correccional in its minimum
period, if the detention has not exceeded three
days;
2. The penalty of prisión correccional in its
medium and maximum periods, if the detention
has continued more than three but not more
than fifteen days;
3. The penalty of prisión mayor, if the detention
has continued for more than fifteen days but not
more than six months; and
4. That of reclusión temporal, if the detention shall
have exceeded six months.
The commission of a crime, or violent insanity or
any other ailment requiring the compulsory
confinement of the patient in a hospital, shall be
considered legal grounds for the detention of any
person. (REVISED PENAL CODE, art. 124)
Delay in the Delivery of Detained Persons to the
Proper Judicial Authorities
The penalties provided in the next preceding article
shall be imposed upon the public officer or
employee who shall detain any person for some
legal ground and shall fail to deliver such person to
the proper judicial authorities within the period of
one hour. (REVISED PENAL CODE, art. 125)
Delaying Release
The penalties provided for in article 124 shall be
imposed upon any public officer or employee who
delays for the period of time specified therein the
performance of any judicial or executive order for
the release of a prisoner or detention prisoner, or
unduly delays the service of the notice of such
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order to said prisoner or the proceedings upon any
petition for the liberation of such person. (REVISED
PENAL CODE, art. 126)
E. PRIVACY OF COMMUNICATION AND
CORRESPONDENCE
(1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding. (PHIL. CONST., art. III, §
3)
Right to Privacy
The right to privacy is the right to be free from
unwarranted exploitation of one person or from
intrusion into one private activities in such a way
as to cause humiliation to a per on ordinary
sensibilities. It is the right of an individual to be free
from unwarranted publicity, or to live without
unwarranted interference by the public in matters
in which the public is not necessarily concerned.
Simply put, the right to privacy is "the right to be let
alone."
The Bill of Rights guarantees the people right to
privacy and protects them against the S a e
abuse of power. In this regard, the State
recognizes the right of the people to be secure in
their houses. No one, not even the State, except in
case of overriding social need and then only under
the stringent procedural safeguards, can disturb
them in the privacy of their homes. (Sps. Hing v.
Choachuy, G.R. No. 179736, June 26, 2013)
Three Strands of the Right to Privacy
1. Locational or Situational Privacy
The privacy that is felt in physical space, such as
that which may be violated by trespass and
unwarranted search and seizure.
2. Informational Privacy
The right of individuals to control information about
themselves.
3. Decisional Privacy
The right of individuals to make certain kinds of
fundamental choices with respect to their personal
and reproductive autonomy. (Vivares v. St.
Theresa’s College, G.R. No. 202666, Sept. 29,
2014)
Zones of Privacy
Relevant to any discussion of the right to privacy is
the concept known as the "Zones of Privacy."
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises
not only from our conviction that the right to privacy
is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to
the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and
"everyone has the right to the protection of the law
against such interference or attacks." (Disini v.
Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)
The right of privacy is recognized and enshrined in
several provisions of the Bill of Rights:
1. Sec. 3
Privacy of Communication &
Correspondence
2. Sec. 1 Due Process & Equal Protection; Right
to Life, Liberty, and Property
3. Sec. 2 Right Against Unreasonable Searches
and Seizures
4. Sec. 6 Liberty of Abode & Right to Travel
5. Sec. 8 Right to Form Associations
6. Sec. 17 Right Against Self Incrimination (Ople
v. Torres, G.R. No. 127685, July 23, 1998)
Zones of privacy are likewise recognized and
protected in our laws and rules:
1. Civil Code
2. Revised Penal Code
3. Anti-Wire Tapping Law
4. Secrecy of Bank Deposits Act
5. Intellectual Property Code
6. Rules of Court (Ople v. Torres, G.R. No.
127685, July 23, 1998)
1. CONCEPT OF COMMUNICATION AND
CORRESPONDENCE
Concept
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Forms of communication and correspondence
considered private and protected by this provision
include:
1. Letters
2. Messages
3. Telephone calls
4. Telegrams and the like (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
Reasonable Expectation of Privacy Test
In ascertaining whether there is a violation of the
right to privacy, courts use the "reasonable
expectation of privacy" test. This test determines
whether a person has a reasonable expectation of
privacy and whether the expectation has been
violated.
The reasonableness of a per on expectation of
privacy depends on a two-part test:
1. Subjective: Whether, by his conduct, the
individual has exhibited an expectation of
privacy; and
2. Objective: This expectation is one that society
recognizes
as
reasonable.
(Pollo
v.
Constantino-David, G.R. No. 181881, Oct. 18,
2011)
Customs, community norms, and practices may,
therefore, limit or extend an indi id al reasonable
expectation of privacy. Hence, the reasonableness
of a per on expectation of privacy must be
determined on a case-to-case basis since it
depends on the factual circumstances surrounding
the case. (Sps. Hing v. Choachuy, G.R. No.
179736, June 26, 2013)
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by
unreasonable government intrusion. (Disini v. Sec.
of Justice, G.R. No. 203335, Feb. 18, 2014)
A government employee has a burden of proving
that he has legitimate expectation of privacy either
in his office or computer files. He can prove this by
alleging and demonstrating the following: he used
a password on his computer, did not share his
office with co-workers and kept the same locked.
However, the existence of a workplace privacy
POLITICAL LAW
policy may limit or erode the reasonable
expectation of privacy. (Pollo v. Constantino-David,
G.R. No. 181881, Oct. 18, 2011)
Private Communications Can Be Made Public
Private communications can be made public where
a secret involves public questions which the State
should and ought to know, the State may infringe
that privacy of communication by some process or
by appealing to the Court for the purpose of
determining whether or not the privacy should be
maintained. The court may allow intrusions on
privacy of communication and correspondence
only on the ground of probable cause. (Bernas, The
1987 Constitution of the Republic of the
Philippines, 2009)
Public Figure
The right of privacy of a "public figure" is
necessarily narrower than that of an ordinary
citizen. (Ayer v. Capulong, G.R. No. 82380, April
29, 1988)
Personal Matters
Section 7, Article III of the 1987 Constitution grants
the right of the people to information on matters of
public concern. Personal matters are exempt or
outside the coverage of the people right to
information on matters of public concern. The data
treated as "strictly confidential" under EO 420
being private matters and not matters of public
concern, these data cannot be released to the
public or the press. (KMU v. Dir. Gen. of NEDA,
G.R. No. 167798, April 19, 2006)
2. INTRUSION, WHEN AND HOW ALLOWED
The
privacy
of
communication
and
correspondence shall be inviolable except:
1. Upon lawful order of the court, or
2. When public safety or order requires otherwise
as prescribed by law. (PHIL. CONST., art. III, §
3[1])
a. Upon Lawful Order of the Court
Probable Cause Required
The constitutional text does not give any ground. It
is submitted that the requirement of probable cause
in the preceding section (Art. III, Sec. 2) should be
followed. After all, the privacy right is but an aspect
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of the right to be secure in one person. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
b. When Public Safety or Order Requires
Otherwise as Prescribed by Law
Prescribed by Law
It should be based upon a government official
assessment that public safety and order demand
such intrusion, as provided by law. It is not only that
the discretion of the executive officer is limitable by
law but also that a public officer who exercises this
power must be able to point to a law under which
he acts. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Public Order and Safety
The security of human lives, liberty, and property
against the activities of invaders, insurrectionists,
and rebels. (1971 Constitutional Convention, Nov.
25, 1972)
3. EXCLUSIONARY RULE
Concept
Any evidence obtained in violation of the right to
privacy of communication and correspondence
shall be inadmissible for any purpose in any
proceeding. (Phil. Const., art. III, § 3[2])
To Whom Directed: The State
To come under the exclusionary rule, however, the
evidence must be obtained by government agents
and not by private individuals acting on their own.
This does not mean however that private
individuals cannot be held liable. Almost all these
liberties are also guaranteed by Article 32 of the
Civil Code, making private violations actionable
even if the violation does not have a constitutional
consequence such as the applicability of the
exclusionary rule. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009)
Exclusionary rule will not apply if the recipient of the
message granted access to the message(s) sent.
(Office of the Court Administrator v. Judge Eliza B.
Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017)
POLITICAL LAW
Applied to wife who took documents and
papers from
ba
clinic without the
latter's knowledge and consent
The constitutional injunction declaring the privacy
of communication and correspondence to be
inviolable is no less applicable simply because it is
the wife (who thinks herself aggrieved by her
husband's infidelity) who is the party against whom
the constitutional provision is to be enforced. The
only exception to the prohibition in the Constitution
is if there is a lawful order from a court or when
public safety or order requires otherwise, as
prescribed by law. Any violation of this provision
renders the evidence obtained inadmissible for any
purpose in any proceeding.
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person,
by contracting marriage, does not shed his/her
integrity or his right to privacy as an individual and
the constitutional protection is ever available to him
or to her.
The
law
insures
absolute
freedom
of
communication between the spouses by making it
privileged. Neither husband nor wife may testify for
or against the other without the consent of the
affected spouse while the marriage subsists.
Neither may be examined without the consent of
the other as to any communication received in
confidence by one from the other during the
marriage, save for specified exceptions. But one
thing is freedom of communication; quite another is
a compulsion for each one to share what one
knows with the other. And this has nothing to do
with the duty of fidelity that each owes to the other.
(Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996)
R.A. 10175 (CYBERCRIME PREVENTION ACT)
Certain Cybercrime Offenses under RA 10175
were assailed for violating both the right against
unreasonable searches and seizures and the right
to privacy. The court held that relevant to any
discussion of the right to privacy is the concept
known as the Zones of Privacy, as discussed
earlier.
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In assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by
unreasonable government intrusion. The usual
identifying information regarding a person includes
his name, his citizenship, his residence address,
his contact number, his place and date of birth, the
name of his spouse, if any, his occupation, and
similar data. The law punishes those who acquire
or use such identifying information without right,
implicitly to cause damage. Petitioners failed to
show how government effort to curb computerrelated identity theft violates the right to privacy and
correspondence as well as the right to due process
of law.
However, Section 12 on real-time collection of
traffic data was declared unconstitutional for the
authority that Section 12 gives law enforcement
agencies is too sweeping and lacks restraint. While
it says that traffic data collection should not
disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their
hands from looking into the identity of their sender
or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad
elements in these agencies. Section 12, of course,
limits the collection of traffic data to those
a ocia ed with specified comm nica ion . But
this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that
would specify the target communications. The
power is virtually limitless, enabling law
enforcement authorities to engage in fi hing
e pedi ion,
choosing
whatever
specified
communication they want. This evidently threatens
the right of individuals to privacy. (Disini v. Sec. of
Justice, G.R. No. 203335, Feb. 18, 2014)
R.A. 4200 (ANTI-WIRETAPPING ACT)
a. Only protects letters, messages, telephone
calls, telegrams and the like.
b. The substance of the conversation need not be
specifically alleged in the information.
c. Under Section 3 of R.A. 4200, a peace officer,
who is authorized by a written order of the
Court, may execute any of the acts declared to
POLITICAL LAW
be unlawful in the said law in cases involving the
crimes of:
1. Treason
2. Espionage
3. Provoking war and disloyalty in case of war
4. Piracy and mutiny in the high seas
5. Rebellion (conspiracy and proposal to
commit; inciting to commit)
6. Sedition (conspiracy to commit and inciting
to commit)
7. Kidnapping
8. Violations of C.A. No. 616 (punishing
espionage and other offenses against
national security)
d. R.A. 4200 does not distinguish between a party
to the private communication or a third person.
Hence, both could be held liable under R.A.
4200 if they commit any of the prohibited acts
under R.A. 4200. (Ramirez v. CA, G.R. No.
93833, Sept. 28, 1995)
e. The use of a telephone extension to overhear a
private conversation is not a violation of R.A.
4200 because it is not similar to any of the
prohibited devices under the law. Also, a
telephone extension is not purposely installed
for the purpose of secretly intercepting or
recording private communication. (Gaanan v.
IAC, G.R. No. L- 69809, Oct. 16, 1986)
ONLINE SOCIAL NETWORK PRIVACY
Before one can have an expectation of privacy in
his or her Online Social Network activity, it is first
necessary that said user manifest the intention to
keep certain posts private. In the cyber world,
utilization of privacy tools is the manifestation of the
er invocation of his or her right to informational
privacy.
That the photos are viewable by friend onl does
not necessarily bolster the contention to the right to
privacy. In this regard, the cyber community is
agreed that the digital images under this setting still
remain to be outside the confines of the zones of
privacy in view of the following:
1. Facebook allo
he orld o be more open
and connected by giving its users the tools to
in erac and hare in an concei able a
2. A good n mber of Facebook
er befriend
other users who are total strangers;
3. The heer n mber of Friend one er ha ,
usually by the hundreds; and
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4. A
er Facebook friend can
hare he
former po , or ag o her
ho are no
Facebook friends with the former, despite its
being visible only to his or her own Facebook
friends.
Setting a po
or profile de ail privacy to
Friend is no assurance that it can no longer be
viewed by another user who is not Facebook
friends with the source of the content.
Therefore, a Facebook user who opts to make use
of a privacy tool to grant or deny access to his or
her post or profile detail should not be denied the
informational privacy right which necessarily
accompanies said choice. Otherwise, using these
privacy tools would be a feckless exercise, such
that if, for instance, a user uploads a photo or any
personal information to his or her Facebook page
and sets its privacy level at "Only Me" or a custom
list so that only the user or a chosen few can view
it, said photo would still be deemed public by the
courts as if the user never chose to limit the pho o
visibility and accessibility. Such position, if
adopted, will not only strip these privacy tools of
their function but it would also disregard the very
intention of the user to keep said photo or
information within the confines of his or her private
space. (Vivares v. St. Theresa’s College, G.R. No.
202666, Sept. 29, 2014)
WRIT OF HABEAS DATA (A.M. No 08-1-16-SC)
Definition (Sec. 1)
The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a
private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
Purpose
It bears reiteration that like the Writ of Amparo,
habeas data was conceived as a response, given
the lack of effective and available remedies, to
address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is
to address violations of or threats to the rights to
life, liberty or security as a remedy independently
from those provided under prevailing Rules. Writs
POLITICAL LAW
of Amparo and habeas data will not issue to protect
purely property or commercial concerns nor when
the grounds invoked in support of the petitions
therefor are vague or doubtful. Employment
constitutes a property right under the context of the
due process clause of the Constitution. It is evident
that re ponden reservations on the real reasons
for her transfer - a legitimate concern respecting
the terms and conditions of one employment - are
what prompted her to adopt the extraordinary
remedy of habeas data. (Manila Electric Company
v. Lim, G.R. No. 184679, Oct. 5, 2010)
Who May File (P-SCP-R) (Sec. 2)
1. Any person whose right to Privacy is
threatened
2. In case of extrajudicial disappearance or
killings:
a. Spouse, Children and Parents
b. Any ascendant, descendant or collateral
Relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity
in default of those mentioned in the
preceding paragraph.
National Bilibid Inmates
The right of a convicted national inmate to his or
her privacy runs counter to the state interest of
preserving order and security inside our prison
systems. There is no longer any reasonable
expectation of privacy when one is being monitored
and guarded at all hours of the day. Unless there is
compelling evidence that a public employee
engaged in the gathering, collecting or storing of
data or information on the convicted national
inmate has committed an unlawful act which
threatens the life of the inmate, a petition for the
writ of habeas data cannot prosper (In the Matter
of the Petition for Writ of Habeas Corpus/Data v.
De Lima, G.R. Nos. 215585 & 215768, Sept. 8,
2020).
F. FREEDOM OF SPEECH AND
EXPRESSION
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition
the government for redress of grievances. (PHIL.
CONST., art. III, § 4)
1. CONCEPT
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Freedom of expression has gained recognition as
a fundamental principle of every democratic
government, and given a preferred right that stands
on a higher level than substantive economic
freedom or other liberties. In the Philippines, the
primacy and high esteem accorded freedom of
expression is a fundamental postulate of our
constitutional system. This right was elevated to
constitutional status in the 1935, the 1973 and the
1987 Constitutions, reflecting our own lesson of
history, both political and legal, that freedom of
speech is an indispensable condition for nearly
every other form of freedom. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
a. Continuum of Thought, Speech,
Expression, and Speech Acts
Speech may be said to be inextricably linked to
freedom itself as the right to think is the beginning
of freedom, and speech must be protected from the
government because speech is the beginning of
thought. (Diocese of Bacolod v. COMELEC, G.R.
No. 205728, Jan. 21, 2015, citing Bernas from the
Records of the 1987 Constitutional Convention)
Communication is an essential outcome of
protected speech. Communication exists when (1)
a speaker, seeking to signal others, uses
conventional actions because he or she
reasonably believes that such actions will be taken
by the audience in the manner intended; and (2)
the audience so takes the actions. In
communicative action, the hearer may respond to
the claims by either accepting the speech ac
claims or opposing them with criticism or requests
for justification
Speech is not limited to vocal communication.
Conduct is treated as a form of speech sometimes
referred to as
mbolic peech, such that when
peech and non peech elements are combined
in the same course of conduct, the communicative
element of the conduct may be sufficient to bring
into play the right to freedom of expression.
The right to freedom of expression, thus, applies to
the entire continuum of speech from utterances
made to conduct enacted, and even to inaction
itself as a symbolic manner of communication.
POLITICAL LAW
(Diocese of Bacolod v. COMELEC, G.R. No.
205728, Jan. 21, 2015)
Scope
The scope of freedom of extends protection to:
1. Written or spoken words
2. Symbolic speech
3. Motion pictures
(Diocese of Bacolod v. COMELEC, G.R. No.
205728, Jan. 21, 2015)
Includes the Right to be Silent
Freedom of speech includes the right to be silent.
Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what
is in his mind also guarantees to him the liberty not
to utter what is not in his mind. (Diocese of Bacolod
v. COMELEC, G.R. No. 205728, Jan. 21, 2015)
Protects Speech, Print and Assembly
The scope of freedom of expression is so broad
that it extends protection to nearly all forms of
communication. It protects (1) speech, (2) print and
(3) assembly regarding secular as well as political
causes, and is not confined to any particular field
of human interest. The protection covers myriad
matters of public interest or concern embracing all
issues, about which information is needed or
appropriate, so as to enable members of society to
cope with the exigencies of their period. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
Protects Media, Whether Print or Broadcast
The constitutional protection is not limited to the
exposition of ideas. The protection afforded free
speech extends to speech or publications that are
entertaining as well as instructive or informative. All
forms of media, whether print or broadcast, are
entitled to the broad protection of the clause on
freedom of speech and of expression. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
b. Purposes of Free Speech Doctrines
The constitutional protection assures the broadest
possible exercise of free speech and free press for
religious, political, economic, scientific, news, or
informational ends, inasmuch as the Constitution's
basic guarantee of freedom to advocate ideas is
not confined to the expression of ideas that are
conventional or shared by a majority. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
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There are several theories and schools of thought
that strengthen the need to protect the basic right
to freedom of expression:
a. The right of the people to participate in public
affairs, including the right to criticize
government actions. Speech that promotes
dialogue on public affairs, or airs out grievances
and political discontent, should thus be
protected and encouraged.
b. Free speech should be encouraged under the
concept of a market place of ideas based on the
theory that the ultimate good desired is better
reached by the free trade in ideas.
c. Free speech involves self-expression that
enhances human dignity. This right is a means
of assuring individual self-fulfillment, among
others.
d. Expression is a marker for group identity. Free
speech must be protected as the vehicle to find
those who have similar and shared values and
ideals, to join together and forward common
goals.
e. The Bill of Rights, free speech included, is
supposed to protect individuals and minorities
against majoritarian abuses perpetrated
through the framework of democratic
governance.
f. Free speech must be protected under the
afe
al e heor . Thi pro ide
ha
nonviolent manifestations of dissent reduce the
likelihood of violence. Free speech must, thus,
be protected as a peaceful means of achieving
one
goal, con idering he po ibility that
repression of nonviolent dissent may spill over
to violent means just to drive a point. (Diocese
of Bacolod v. COMELEC, G.R. No. 205728,
Jan. 21, 2015)
c. Balance Between Unbridled Expression
and Liberty
From the language of Sec. 4, the right to free
speech and a free press is not susceptible of any
limitation. But the realities of life in a complex
society preclude a literal interpretation of the
provision prohibiting the passage of a law that
would abridge such freedom. For freedom of
expression is not an absolute, nor is it an unbridled
license that gives immunity for every possible use
of language and prevents the punishment of those
who abuse this freedom. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
POLITICAL LAW
Thus, all speech are not treated the same. Some
types of speech may be subjected to some
regulation by the State under its pervasive police
power, in order that it may not be injurious to the
equal right of others or those of the community or
society. (Chavez v. Gonzales, G.R. No. 168338,
Feb. 15, 2008)
The freedom of expression, as with the other
freedoms encased in the Bill of Rights, is, however,
not absolute. It may be regulated to some extent to
serve important public interests, some forms of
speech not being protected. The limits of the
freedom of expression are reached when the
expression touches upon matters of essentially
private concern. The constitutional guarantee
obviously was not intended to give immunity for
every possible use of language. The freedom to
express one sentiments and belief does not grant
one the license to vilify in public the honor and
integrity of another. Any sentiments must be
expressed within the proper forum and with proper
regard for the rights of others. (Soriano v.
Laguardia, G.R. No. 164785, April 29, 2009)
2. TYPES OF REGULATION
a. Prior Restraint and Subsequent
Punishment
PRIOR RESTRAINT (CENSORSHIP)
Concept
Prior restraint refers to official governmental
restrictions on the press or other forms of
expression in advance of actual publication or
dissemination. Freedom from prior restraint is
largely freedom from government censorship of
publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive,
legislative or judicial branch of the government.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Essence of Censorship
The Session Law of Minnesota mandated the
abatement, as public nuisances, of malicious,
scandalous, and defamatory publications. After
publishing articles that criticized certain local public
officials and personalities, The Saturday Press,
owned by the petitioner Near, was enjoined from
further publication. The court held that the
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operation and effect of the statute in substance is
that public authorities may bring the owner or
publisher of a newspaper or periodical before a
judge upon a charge of conducting a business of
publishing
scandalous
and
defamatory
matter...and unless the owner or publisher is able
to disposed to bring competent evidence to satisfy
the judge that the charges are true and are
published with good motives and for justifiable
ends, his newspaper or periodical is suppressed
and further publication is made punishable as a
contempt. This is of the essence of censorship.
(Near v. Minnesota, 283 U.S. 697, June 1, 1931;
Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Presumed Invalid and Unconstitutional
General Rule: Any system of prior restraints of
expression comes to court bearing a heavy
Presumption against its constitutional validity. The
Government thus carries a heavy burden of
showing justification for in enforcement of such
restraint. There, thus a reversal of the normal
presumption of validity that inheres in every
legislation. (SWS v. COMELEC, G.R. No. 147571,
May 5, 2001)
Exception: The technical effect of Article IX
(C) (4) of the Constitution may be seen to be
that no presumption of invalidity arises in
respect of exercises of supervisory or
regulatory authority on the part of the Comelec
for the purpose of securing equal opportunity
among candidates for political office, although
such supervision or regulation may result in
some limitation of the rights of free speech and
free press. For supervision or regulation of the
operations of media enterprises is scarcely
conceivable without such accompanying
limitation. Thus, the applicable rule is the
general, time-honored one
that a statute is
presumed to be constitutional and that the
party asserting its unconstitutionality must
discharge the burden of clearly and
convincingly proving that assertion. (National
Press Club v. COMELEC, G.R. No. 102653
March 5, 1992)
Any prior restraint upon the freedom of the press
bears a heavy presumption against its
constitutionality. In other words, the government
POLITICAL LAW
must clearly make out a case to overcome this
presumption, which it failed to do in this case. The
word ec ri
is so broad that it should not be
used to abrogate the fundamental law. The
publication would not cause an inevitable,
immediate, and direct event that would imperil the
safety of the American forces, such that there was
no grave and irreparable danger. The US Supreme
Court also held that the 1st Amendment does not
tolerate prior restraints predicated upon beliefs that
untoward consequences may result therefrom. The
press must be left free to publish news, whatever
the source, without censorship or restraint because
only a free and unrestrained press can effectively
expose government deception to the people. (New
York Times v. United States, 403 U.S. 713, June
30, 1971)
Government Acts Precluded
Freedom
from
prior
restraint
precludes
governmental acts that:
1. Requires approval of a proposal to publish;
2. Licensing or permits as prerequisites to
publication including the payment of license
taxes for the privilege to publish; and
3. Injunctions against publication.
Even the closure of the business and printing
offices of certain newspapers, resulting in the
discontinuation of their printing and publication, are
deemed as previous restraint or censorship.
Any law or official that requires some form of
permission to be had before publication can be
made, commits an infringement of the
constitutional right, and remedy can be had at the
courts. (Chavez v. Gonzales, G.R. No. 168338,
Feb. 15, 2008)
When Prohibition on Prior Restraint Does Not
Apply (WOS)
1. When the nation is at War. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
(e.g., The government can prevent publication
about the number or location of its troops)
2. Obscene publications
3. Security of community life may be protected
against incitements to acts of violence or
overthrow by force of orderly government. (Near
v. Minnesota, 283 U.S. 697, June 1, 1931)
SUBSEQUENT PUNISHMENT
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Concept
The aspect of freedom from liability subsequent to
publication precludes liability for completed
publications of views traditionally held innocent.
Otherwise, the prohibition on prior restraint would
be meaningless, as the unrestrained threat of
subsequent punishment, by itself, would be an
effective prior restraint.
Thus, opinions on public issues cannot be
punished when published, merely because the
opinions are novel or controversial, or because
they clash with current doctrines. This fact does not
imply that publishers and editors are never liable
for what they print. Such freedom gives no
immunity from laws punishing scandalous or
obscene matter, seditious or disloyal writings, and
libelous or insulting words.
As classically expressed, the freedom of the press
embraces at the very least the freedom to discuss
truthfully and publicly matters of public concern,
without previous restraint or fear of subsequent
punishment. For discussion to be innocent, it must
be truthful, must concern something in which
people in general take a healthy interest, and must
not endanger some important social end that the
government by law protects. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
b. Content Based and Content Neutral
It is not enough to determine whether a challenged
governmental act constitutes some form of
restraint on freedom of speech. A distinction has to
be made whether the restraint is (1) a contentneutral regulation, or (2) a content-based restraint
or censorship. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
CONTENT-BASED REGULATION
Concept
A content-based restraint or censorship is where
the restriction is based on the subject matter of the
utterance or speech. (Chavez v. Gonzales, G.R.
No. 168338, Feb. 15, 2008)
Subject to the Clear and Present Danger Rule
POLITICAL LAW
A governmental action that restricts freedom of
speech or of the press based on content is given
the strictest scrutiny in light of its inherent and
invasive impact. Only when the challenged act has
overcome the clear and present danger rule will it
pass constitutional muster, with the government
having the burden of overcoming the presumed
unconstitutionality. Unless the government can
overthrow this presumption, the content-based
restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
Clear and Present Danger Test
Whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and
degree. (Chavez v. Gonzales, G.R. No. 168338,
Feb. 15, 2008)
Requisites of a Valid Content-Based Regulation
With respect to content-based restrictions, the
government must: (HIIR)
1. The government must show the type of Harm
the speech sought to be restrained would bring
about
especially the gravity and the
imminence of the threatened harm otherwise
the prior restraint will be invalid;
2. The regulation which restricts the speech
content must serve an important or substantial
government Interest, which is unrelated to the
suppression of free expression; and
3. The Incidental Restriction on speech must be
no greater than what is essential to the
furtherance of that interest. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
CONTENT-NEUTRAL REGULATION
Concept
A content-neutral regulation is merely concerned
with the incidents of the speech, or one that merely
controls the time, place or manner, and under welldefined standards. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Subject to Intermediate Approach
When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its validity.
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Because regulations of this type are not designed
to suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but
an intermediate approach somewhere between
the mere rationality that is required of any other law
and the compelling interest standard applied to
content-based restrictions. The test is called
intermediate because the Court will not merely
rubberstamp the validity of a law but also require
that the restrictions be narrowly-tailored to promote
an important or significant governmental interest
that is unrelated to the suppression of expression.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Intermediate Approach: O B
Test for a Valid
Content-Neutral Regulation
A governmental regulation is sufficiently justified if:
(CISUNOG)
1. It is within the Constitutional power of the
Government;
2. It furthers an Important or Substantial
governmental interest;
3. The governmental interest is Unrelated to the
suppression of free expression; and
4. The incident restriction on alleged freedom of
speech & expression is NO Greater than is
essential to the furtherance of that interest.
(Chavez v. Gonzales, G.R. No. 168338, Feb.
15, 2008)
c. Incitement and Advocacy
General Rule: The constitutional guarantees of
free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or
of law violation.
Exception: Except where such advocacy is
directed to inciting or producing imminent
lawless action and is likely to incite or produce
such action. (Brandenburg v. Ohio, 395 U.S.
444, June 9, 1969)
Further, it is incumbent on the court to make clear
in some fashion that the advocacy must be of
action and not merely abstract doctrine. (Yates v.
United States, 354 U.S. 298, June 17, 1957)
d. Specificity of Regulation and Overbreadth
Doctrine
POLITICAL LAW
Specificity of Regulation and Vagueness
Doctrine
The vagueness doctrine is an analytical tool
developed for testing "on their faces" statutes in
free speech cases or, as they are called in
American law, First Amendment cases. A facial
challenge is allowed to be made to a vague statute
and also to one which is overbroad because of
possible "'chilling effect' on protected speech that
comes from statutes violating free speech. A
person who does not know whether his speech
constitutes a crime under an overbroad or vague
law may simply restrain himself from speaking in
order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence.
(Lagman v. Medialdea, G.R. No. 231658)
It is best to stress that the vagueness doctrine has
a special application only to free-speech cases.
They are not appropriate for testing the validity of
penal statutes. (Lagman v. Medialdea, G.R. No.
231658)
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible 'chilling effect' upon protected speech.
The theory is that when statutes regulate or
proscribe speech and no readily apparent
construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution,
the transcendent value to all society of
constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes
with no requirement that the person making the
attack demonstrate that his own conduct could not
be regulated by a statute drawn with narrow
specificity. This rationale does not apply to penal
statutes.
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for
testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do
service when what is involved is a criminal statute.
With respect to such statute, the established rule is
that one to whom application of a statute is
constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken
as applying to other persons or other situations in
which its application might be unconstitutional. As
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has been pointed out, vagueness challenges in the
First Amendment context, like overbreadth
challenges typically produce facial invalidation,
while statutes found vague as a matter of due
process typically are invalidated only 'as applied' to
a particular defendant.
"On its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court
whose activities are constitutionally protected. It
constitutes a departure from the ca e and
con ro er
requirement of the Constitution and
permits decisions to be made without concrete
factual settings and in sterile abstract contexts.
(Estrada v. Sandiganbayan, G.R. No. 148560,
Nov. 19, 2001)
Overbreadth Doctrine
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.
Prohibiting placing of campaign decals on private
cars is overbroad, and thus invalid prohibition.
(Adiong v. COMELEC, G.R. No. 103956 March 31,
1992)
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, G.R. No. 147571, May 5, 2001)
Summary of Rules
General Rule: The overbreadth and vagueness
doctrines then have special application only to free
speech cases. They are inapplicable for testing the
validity of penal statutes.
Rationale: All penal laws, like the cybercrime
law, have of course an inherent chilling effect,
an in terrorem effect or the fear of possible
prosecution. But to prevent the State from
legislating criminal laws because they instill
such kind of fear is to render the state powerless
in addressing and penalizing socially harmful
conduct.
Exceptions:
1. When a penal statute is challenged as applied
2. When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded
on the overbreadth and vagueness doctrine is
acceptable. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
The facial challenge has expanded its scope to
cover statutes not only regulating free speech, but
also those involving religious freedom, and other
fundamental rights because of the expanded scope
of judicial power. (Imbong v. Ochoa, G.R. No.
204819, April 8, 2014)
As Applied v. Facial Challenge
Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a
facial invalidation is an examination of the entire
law, pinpointing its flaws and defects, not only on
the basis of its actual operation to the parties, but
also on the assumption or prediction that its very
existence may cause others not before the court to
refrain from constitutionally protected speech or
activities.
General Rule: In an "as applied" challenge, the
petitioner who claims a violation of his
constitutional right can raise any constitutional
ground
absence of due process, lack of fair
notice,
lack
of
ascertainable
standards,
overbreadth, or vagueness. Here, one can
challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the
statute based solely on the violation of the
rights of third persons not before the court. This
rule is also known as the prohibition against thirdparty standing.
Exception: A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute
even if he claims no violation of his own rights
under the assailed statute where it involves free
speech on grounds of overbreadth or
vagueness of the statute.
Rationale: To counter the "chilling effect" on
protected speech that comes from statutes
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violating free speech. (Disini v. Sec. of Justice,
G.R. No. 203335, Feb. 18, 2014)
e. Speech Regulation in Relation to Election
R.A. NO. 9006: FAIR ELECTION ACT
Purpose
Republic Act No. 9006 was adopted with the end in
mind of guaranteeing or ensuring equal opportunity
for public service and to this end, stipulates
mechanisms for the supervision or regulation of the
enjoyment or utilization of all franchises or permits
for the operation of media of communication or
information. The Fair Election Act provides means
to realize the policy articulated in Article II, Section
26 of the 1987 Constitution to guarantee equal
access to opportunities for public service. (SWS v.
COMELEC, G.R. No. 208062, April 07, 2015)
Sec. 5.4 of R.A. 9006 Unconstitutional
§5.4 lays a prior restraint on freedom of speech,
expression, and the press prohibiting the
publication of election survey results affecting
candidates within the prescribed periods of fifteen
(15) days immediately preceding a national
election seven (7) days before a local election.
Sec. 5.4 fails to meet criterion [3] of the O Brien test
because the causal connection of expression to the
asserted governmental interest makes such
interest not unrelated to the suppression of free
expression. By prohibiting the publication of
election survey results because of the possibility
that such publication might undermine the integrity
of the election, §5.4 actually suppresses a whole
class of expression, while allowing the expression
of opinion concerning the same subject matter by
newspaper
columnists,
radio
and
TV
commentators, armchair theorists, and other
opinion makers. In effect, §5.4 shows a bias for a
particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results.
Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech
and the resulting restriction of free expression is
only incidental, §5.4 nonetheless fails to meet
criterion [4] of the O Brien test, namely, that the
restriction be not greater than is necessary to
further the governmental interest. As already
stated, §5.4 aims at the prevention of last-minute
pressure on voters, the creation of bandwagon
effect, j nking of weak or lo ing candidates, and
resort to the form of election cheating called
dagdag-ba a . Praiseworthy as these aims of
the regulation might be, they cannot be attained at
the sacrifice of the fundamental right of expression,
when such aim can be more narrowly pursued by
punishing unlawful acts, rather than speech
because of apprehension that such speech creates
the danger of such evils.
To summarize then, §5.4 is invalid because (1) it
imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression
of a category of expression even though such
suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can
be achieved by means other than the suppression
of freedom of expression. (SWS v. COMELEC,
G.R. No. 147571, May 5, 2001)
COMELEC
Resolution
Constitutional
No.
9674
Section 5. Election Surveys. – 5.2. During the
election period, any person, natural as well as
juridical, candidate or organization who publishes
a survey must likewise publish the following
information:
a. The name of the person, candidate, party or
organization who commissioned or paid for the
survey.
SWS, Pulse Asia and other survey firms of similar
circumstance are required to submit the names of
all commissioners and payors of surveys. The
submission shall include the names of all
"subscribers" of those published surveys. Such
information/data shall be for the exclusive and
confidential use of the Commission. All surveys
published subsequent to the promulgation of this
Resolution must be accompanied by all the
information required in Republic Act no. 9006,
including the names of commissioners, payors and
subscribers. A violation of these rules shall
constitute an election offense as provided in
Republic Act no. 9006, or the Fair Election Act.
COMELEC Resolution No. 9674 is valid. The
names of those who commission or pay for election
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surveys, including subscribers of survey firms,
must be disclosed pursuant to Section 5.2(a) of the
Fair Elections Act. This requirement is a valid
regulation in the exercise of police power and
effects the constitutional policy of guaranteeing
equal access to opportunities for public service.
Section 5.2(a)
requirement of disclosing
subscribers does not curtail pe i ioner
free
speech rights.
a) Appl ing he O Brien Test, first, the text of
Section 5.2(a) of the Fair Elections Act supports
the inclusion of subscribers among those
persons who paid for the survey. Thus,
Resolution No. 9674 is a regulation finding
basis in statute.
b) Second, not only an important or substantial
state interest but even a compelling one
rea onabl gro nd Re ol ion No. 9674
inclusion of subscribers to election surveys.
Thus, regardless of whether an intermediate or
strict standard is used, Resolution No. 9674
passes scrutiny.
c) Third, while it does regulate expression (i.e.,
pe i ioner p blica ion of elec ion
r e ), i
does not go so far as to suppress desired
expression. There is neither prohibition nor
censorship specifically aimed at election
surveys. The freedom to publish election
surveys remains. All Resolution No. 9674 does
is articulate a regulation as regards the manner
of publication, that is, that the disclosure of
those who commissioned and/or paid for,
including those subscribed to, published
election surveys must be made.
d) Lastly, Resolution No. 9674 is narrowly tailored
to meet the objective of enhancing the
opportunity of all candidates to be heard and
considering the primacy of the guarantee of free
expression and is demonstrably the least
restrictive means to achieve that object. (SWS
v. COMELEC, G.R. No. 208062, April 07, 2015)
COMELEC Resolution No. 9674 Not a Prior
Restraint
Resolution No. 9674 poses no prohibition or
censorship specifically aimed at election surveys.
Apart from regulating the manner of publication,
survey companies remain free to publish election
surveys. The disclosure requirement kicks in only
upon, not prior to, publication. (SWS v. COMELEC,
G.R. No. 208062, April 07, 2015)
Public Election Surveys May Be Subject to
Regulation
POLITICAL LAW
Election surveys, on their face, do not state or
allude to preferred candidates. As a means,
election surveys are ambivalent. Election surveys
thus become unambiguous only when viewed in
relation to the end for which they are employed. To
those whose end is to get a candidate elected,
election surveys, when limited to their own private
consumption, are a means to formulate strategy.
When published, however, the tendency to shape
voter preferences comes into play. In this respect,
published election surveys partake of the nature of
election propaganda. It is then declarative speech
in the context of an electoral campaign properly
subject to regulation. (SWS v. COMELEC, G.R.
No. 208062, April 07, 2015)
Effects of Election Surveys on Voter Behavior
1. Bandwagon effect
where electors rally to
support the candidate leading in the polls.
2. Underdog effect
where electors rally to
support the candidate trailing in the polls.
3. Motivating effect where individuals who had
not intended to vote are persuaded to do so.
4. Demotivating effect
where voters abstain
from voting out of certainty that their candidate
or party will win.
5. Strategic voting where voting is influenced
by the chances of winning.
6. Free-will effect where voters cast their ballots
to prove the polls wrong. (SWS v. COMELEC,
G.R. No. 208062, April 07, 2015)
REGULATION OF SPEECH IN THE CONTEXT
OF ELECTORAL CAMPAIGNS
Regulation of Speech Made by Candidates or
the Members of Their Political Parties Valid if
Content-Neutral
Regulation of speech in the context of electoral
campaigns made by candidates or the members of
their political parties or their political parties may be
regulated as to time, place, and manner (contentneutral regulation). (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
Regulation of Speech of Persons Who Are Not
Candidates or Who Do Not Speak as Members
of a Political Party - Unconstitutional
Regulation of speech in the context of electoral
campaigns made by persons who are not
candidates or who do not speak as members of a
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political party which are, taken as a whole,
principally advocacies of a social issue that the
public must consider during elections is
unconstitutional. Such regulation is inconsistent
with the guarantee of according the fullest possible
range of opinions coming from the electorate
including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the
choice of a candidate.
COMELEC does not have the authority to regulate
the enjoyment of the right to freedom of expression
exercised by citizens who are neither electoral
candidates nor sponsored by any electoral
candidate. A tarpaulin that expresses a political
opinion constitutes political speech. Speech that
promotes dialogue on public affairs, or airs out
grievances and political discontent, should be
protected and encouraged.
However, this does not mean that there cannot be
a specie of speech by a private citizen which will
not amount to an election paraphernalia to be
validly regulated by law. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
Test for a Valid Regulation of Election
Paraphernalia Directed to Private Persons
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of
persons who are not candidates or who do not
speak as members of a political party if they are not
candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The
regulation should be: (LR-NT-LR)
1. Provided by Law;
2. Reasonable;
3. Narrowly Tailored to meet the objective of
enhancing the opportunity of all candidates to
be heard and considering the primacy of the
guarantee of free expression; and
4. Demonstrably the Least Restrictive means to
achieve that object.
The regulation must only be content-neutral, i.e.
with respect to the time, place, and manner of the
rendition of the message. In no situation may the
speech be prohibited or censored on the basis of
its content. For this purpose, it will not matter
whether the speech is made with or on private
POLITICAL LAW
property. (Diocese of Bacolod v. COMELEC, G.R.
No. 205728, Jan. 21, 2015)
Regulation on Size Limitations of Tarpaulins
A Content-Based Regulation
Size limitations during elections hit at a core part of
expression. The content of the tarpaulin is not
easily divorced from the size of its medium. A
content-based regulation, however, bears a heavy
presumption of invalidity and is measured against
the clear and present danger rule. The latter will
pass constitutional muster only if justified by a
compelling reason, and the restrictions imposed
are neither overbroad nor vague.
With the clear and present danger test, respondent
COMELEC failed to justify the regulation. There is
no compelling and substantial state interest
endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of
expression. There is no reason for the state to
minimize the right of noncandidate petitioners to
post the tarpaulin in their private property. The size
of the tarpaulin does not affect anyone el e
constitutional rights. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
Prohibition on Posting of Election Campaign
Materials During an Election Period in PUVs
and Transport Terminals
A Prior Restraint;
Unconstitutional
COMELEC Resolution No. 9615: Posting an
election campaign material during an election
period in PUVs and transport terminals carries with
it the penalty of revocation of the public utility
franchise and shall make the owner thereof liable
for an election offense.
The prohibition constitutes a clear prior restraint on
the right to free expression of the owners of PUVs
and transport terminals. As a result of the
prohibition, owners of PUVs and transport
terminals are forcefully and effectively inhibited
from expressing their preferences under the pain of
indictment for an election offense and the
revocation of their franchise or permit to operate.
Resolution No. 9615 are content-neutral
regulations since they merely control the place
where election campaign materials may be posted.
However, the prohibition is still repugnant to the
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free speech clause as it fails to satisfy all of the
requisites for a valid content-neutral regulation
(O Brien Test).
Applying the O Brien Test, it is conceded that
Resolution No. 9615 furthers an important and
substantial governmental interest, i.e., ensuring
equal opportunity, time and space among
candidates aimed at the holding of free, orderly,
honest, peaceful, and credible elections. It is
further conceded that the governmental interest in
imposing the said prohibition is unrelated to the
suppression of free expression. However,
Resolution No. 9615 is not within the
constitutionally delegated power of the COMELEC,
thus fails the first criterion of the O Brien Test. (1UTAK v. COMELEC, G.R. No. 206020, April 14,
2015)
COMELEC May Only Regulate the Franchise or
Permit to Operate and Not the Ownership per
se of PUVs and Transport Terminals
Section 4, Article IX-C of the Constitution only
grants COMELEC supervisory and regulatory
powers over the enjoyment or utilization of all
franchises or permits for the operation, inter alia, of
transportation and other public utilities. The
COMELEC constitutionally delegated powers of
supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals,
but only to the franchise or permit to operate the
same. There is a marked difference between the
franchise or permit to operate transportation for the
use of the public and the ownership per se of the
vehicles used for public transport. In the same
manner, the COMELEC does not have the
constitutional power to regulate public transport
terminals owned by private persons. (1-UTAK v.
COMELEC, G.R. No. 206020, April 14, 2015)
Resolution No. 9615 Not Justified Under the
Captive Audience Doctrine
The captive-audience doctrine states that when a
listener cannot, as a practical matter, escape from
intrusive speech, the speech can be restricted. The
captive-audience doctrine recognizes that a
listener has a right not to be exposed to an
unwanted message in circumstances in which the
communication cannot be avoided. A regulation
based on the captive-audience doctrine is in the
guise of censorship, which undertakes selectively
POLITICAL LAW
to shield the public from some kinds of speech on
the ground that they are more offensive than
others. Such selective restrictions have been
upheld only when the speaker intrudes on the
privacy of the home or the degree of captivity
makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure.
A government regulation based on the captiveaudience doctrine may not be justified if the
supposed cap i e a dience may avoid exposure
to the otherwise intrusive speech. The prohibition
under Resolution No. 9615 is not justified under the
captive- audience doctrine; the commuters are not
forced or compelled to read the election campaign
materials posted on PUVs and transport terminals.
Nor are they incapable of declining to receive the
messages contained in the posted election
campaign materials since they may simply avert
their eyes if they find the same unbearably
intrusive. (1-UTAK v. COMELEC, G.R. No.
206020, April 14, 2015)
Prohibition on Posting of Decals and Stickers
in Mobile Places Unconstitutional
COMELEC prohibition on posting of decals and
stickers on mobile places whether public or private
except in designated areas provided for by the
COMELEC itself is null and void on constitutional
grounds.
The posting of decals and stickers in mobile places
like cars and other moving vehicles does not
endanger any substantial government interest.
There is no clear public interest threatened by such
activity so as to justify the curtailment of the
cherished ci i en
right of free speech and
expression.
The regulation strikes at the freedom of an
individual to express his preference and, by
displaying it on his car, to convince others to agree
with him. A sticker may be furnished by a candidate
but once the car owner agrees to have it placed on
his private vehicle, the expression becomes a
statement by the owner, primarily his own and not
of anybody else. (Adiong v. COMELEC, G.R. No.
103956 March 31, 1992)
f. Speech Regulation in Relation to Media
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POLITICAL LAW
Four Aspects of Freedom of the Press
1. Freedom from prior restraint
2. Freedom from punishment subsequent to
publication
3. Freedom of access to information
4. Freedom of circulation. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
However, the clear and present danger rule applies
to all media, including broadcast, but only when the
challenged act is a content-based regulation that
infringes on free speech, expression and the press.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Print v. Broadcast Media
While all forms of communication are entitled to the
broad protection of freedom of expression clause,
the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the
freedom accorded to newspapers and other print
media.
Motion Pictures Censorship
When the MTRCB classified the movie Kapit sa
Patalim as "For-Adults-Only," the Supreme Court
dismissed this petition for certiorari solely on the
ground that there are not enough votes for a ruling
that there was a grave abuse of discretion in the
classification.
According to U.S. Courts, the three major reasons
why broadcast media stands apart from print media
are:
a. The scarcity of the frequencies by which the
medium operates [i.e., airwaves are physically
limited while print medium may be limitless];
b. Its "pervasiveness" as a medium; and
c. Its unique accessibility to children.
According to Philippine jurisprudence, first, the
difference in treatment, in the main, is in the
regulatory scheme applied to broadcast media that
is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g.,
obscenity, pornography, seditious and inciting
speech), or is based on a compelling government
interest that also has constitutional protection, such
as national security or the electoral process.
The test to determine whether freedom of
expression may be limited is the clear and present
danger of an evil of a substantive character that the
State has a right to prevent. Such danger must not
only be clear but also present.
a. There should be no doubt that what is feared
may be traced to the expression complained of.
The causal connection must be evident.
b. Also, there must be reasonable apprehension
about its imminence. The time element cannot
be ignored. Nor does it suffice if such danger be
only probable.
Second, regardless of the regulatory schemes that
broadcast media is subjected to, the Court has
consistently held that the clear and present danger
test applies to content-based restrictions on media,
without making a distinction as to traditional print or
broadcast media. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Clear and Present Danger Rule: Applicable to
Broadcast Media IF Content-Based Regulation
All forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of
speech and expression clause. The test for
limitations on freedom of expression continues to
be the clear and present danger rule. (Eastern
Broadcasting v. Dans, G.R. No. L-59329 July 19,
1985)
The basic postulate, wherefore, is that where the
movies, theatrical productions radio scripts,
television programs, and other such media of
expression are concerned
included as they are
in freedom of expression
censorship, especially
so if an entire production is banned, is allowable
only under the clearest proof of a clear and present
danger of a substantive evil to public morals, public
health or any other legitimate public interest.
(Gonzales v. Katigbak, G.R. No. L-69500 July 22,
1985)
A limited intrusion into a person's privacy has long
been regarded as permissible where that person is
a public figure and the information sought to be
elicited from him or to be published about him
constitute of a public character. The right of privacy
cannot be invoked resist publication and
dissemination of matters of public interest. The
interest sought to be protected by the right of
privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the
private affairs and activities of an individual which
are outside the realm of legitimate public concern.
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(Ayer v. Capulong, G.R. No. 82380 April 29, 1988,
On the proposed motion picture entitled "The Four
Day Revolution" involving Sen. Juan Ponce Enrile)
Television Censorship
PD No. 1986 gives the MTRCB the power to
screen, review and examine all "television
programs." By the clear terms of the law, the Board
has the power to approve, delete and/or prohibit
the exhibition and/or television broadcast of
television programs. The law also directs the
MTRCB to apply contemporary Filipino cultural
values as standard to determine those which are
objectionable for being immoral, indecent, contrary
to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime.
It is significant to note that in Iglesia ni Cristo v. CA,
the Court declared that freedom of religion has
been accorded a preferred status by the framers of
our fundamental laws. Yet despite the fact that
freedom of religion has been accorded a preferred
status, still the Court, did not exempt the Iglesia ni
Cri o religious program from pe i ioner review
power.
If the Court, in Iglesia ni Cristo, did not exempt
religious programs from the jurisdiction and review
power of petitioner MTRCB, with more reason,
there is no justification to exempt therefrom "The
Inside Story" which, is protected by the
constitutional provision on freedom of expression
and of the press, a freedom bearing no preferred
status.
Thus, 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, G.R. No. 155282,
Jan. 17, 2005)
Live TV coverage of a criminal case may be
allo ed... mere fear of possible undue influence is
not tantamount to actual prejudice resulting in the
deprivation of the right to a fair rial. (In Re: Petition
For Radio And TV Coverage Of The Multiple
Murder Case Against Zaldy Ampatuan et al., A.M.
No. 10-11-5-SC, June 14, 2011)
POLITICAL LAW
Radio Censorship
In Santiago v. Far Eastern Broadcasting, the case
hinges on whether the petitioner has a clear legal
right to broadcast any speech over one of the radio
stations owned and operated by the respondent
without first submitting the manuscript, and
whether there is a corresponding duty devolved by
law upon the respondent to permit the petitioner to
do so.
The Court ruled that it is not the duty of the
respondent as a public service corporation to
broadcast speeches without requiring the
submission of the manuscript thereof in advance,
but that, on the contrary, the laws and regulations
expressly authorize the respondent to make such
requirement.
a. Section 2 of Act No. 3180, which is the franchise
of the respondent corporation, provides that the
broadcasting service shall be open to the
general public subject to the general regulations
of the grantee for the allotment of time and the
class of communications acceptable for
broadcasting.
b. Commonwealth Act No. 98, where the
Secretary of the Interior "shall examine all
programs, sustaining or sponsored, of all
broadcasting stations," with the power "to
eliminate or cancel from the program such
number or parts thereof as in his opinion are
neither moral, educational nor entertaining, and
prejudicial to public interest."
c. Department Order No. 13, which requires all
broadcasting stations to submit daily to the
Secretary of the Interior at least twenty-four
hours in advance of the actual broadcasting
hour, two copies of all programs to be
broadcasted by the stations. Further, it is
provided that if a program contains any
speeches, ... copies of these or a gist thereof,
may be required by the Secretary of the Interior
to be submitted together with the program.
(Santiago v. Far Eastern Broadcasting, G.R.
No. L-48683, Nov. 8, 1941)
3. JUDICIAL ANALYSIS, PRESUMPTIONS
AND LEVELS AND TYPES OF SCRUTINY
Generally, restraints on freedom of speech and
expression are evaluated by either or a
combination of three tests. As articulated in our
jurisprudence, the Court has applied either the
dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges.
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More recently, the Court has concluded that it has
generally adhered to the clear and present danger
test. (Chavez v. Gonzales, G.R. No. 168338, Feb.
15, 2008)
a. Clear and Present Danger Test
Concept
This test is used for statements against lower
courts. Whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and
degree.
Clear connotes a causal connection with the
danger of the substantive evil arising from the
utterance questioned. Pre en refers to the time
element that is identified with imminent and
immediate danger. (Gonzales v. COMELEC, G.R.
No. L-27833, April 18, 1969)
Applies
to
Content-Based
Regulation;
Presumed Unconstitutional
A governmental action that restricts freedom of
speech or of the press based on content is given
the strictest scrutiny in light of its inherent and
invasive impact. Only when the challenged act has
overcome the clear and present danger rule will it
pass constitutional muster, with the government
having the burden of overcoming the presumed
unconstitutionality. Unless the government can
overthrow this presumption, the content-based
restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
As Applied to Broadcast Media
Radio station DYRE was summarily closed for
national security reasons because it allegedly aired
subversive programs. The Court ruled that all forms
of media are entitled to the protection of the
freedom of speech and expression clause. The
clear and present danger test may be applied to
test the limits of free speech. That the words are
used in such circumstances and are of such nature
as to create a clear and present danger that they
will bring about the substantive evils that Congress
has a right to prevent. The SC recognized that the
government also has a right to be protected against
POLITICAL LAW
broadcasts that incite the listeners to violently
overthrow it.
However, the clear and present danger test is not
an all-embracing interpretation that is applicable to
all utterances in all forums. Freedom of television
and radio broadcasting is lesser in scope than the
freedom accorded to newspaper and print media.
Radio broadcasting receives the most limited
protection from the free expression clause.
Broadcast media have a uniquely pervasive
presence in the lives of all citizens
it reaches
even the privacy of the home. Broadcast media is
uniquely accessible to all, even children
selectivity is more difficult in radio and TV. In other
words, the audiences of radio and TV have lesser
opportunity to cogitate, analyze, and reject the
utterances. (Eastern Broadcasting v. Dans Jr.,
G.R. No. L-59329, July 19, 1985)
Applied to Cases involving the C
Power
of Contempt
The power of contempt should be balanced with
the right to freedom of expression, especially when
it may have the effect of stifling comment on public
matters. The power to punish for contempt is not
exercised without careful consideration of the
circumstances of the allegedly contumacious act,
and the purpose of punishing the act. Especially
where freedom of speech and press is involved,
this Court has given a restrictive interpretation as
to what constitutes contempt. An article which does
not impede, obstruct, or degrade the administration
of justice is not contumacious. The question in
every case is whether the words used are used in
such circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that congress has
a right to prevent. It is a question of proximity and
degree. (Roque v. Chief of Staff, G.R. No. 214986,
February 15, 2017)
b. Dangerous Tendency Rule
Concept
If the words uttered create a dangerous tendency
which the state has a right to prevent, then such
words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it
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necessary that the language used be reasonably
calculated to incite persons to acts of force,
violence or unlawfulness. It is sufficient if the
natural tendency and probable effect of the
utterance be to bring about the substantive evil the
utterance be to bring about the substantive evil
which the legislative body seeks to prevent.
(Cabansag v. Fernandez, G.R. No. L-8974, Oct.
18, 1957)
This is used for statements against the Supreme
Court and permits the application of restrictions
when:
a. There is a rational connection between the
speech
restrained
and
the
danger
apprehended; and
b. The tendency of one to create the other is
shown. (Gonzales v. COMELEC, G.R. No. L27833, April 18, 1969)
Applied to the Cases Involving Independence
of the Court
The "dangerous tendency" rule has been adopted
in cases where extreme difficulty is confronted
determining where the freedom of expression ends
and the right of courts to protect their
independence begins. There must be a remedy to
borderline cases and the basic principle of this rule
lies in that the freedom of speech and of the press,
as well as the right to petition for redress of
grievance, while guaranteed by the constitution,
are not absolute. They are subject to restrictions
and limitations, one of them being the protection of
the courts against contempt. (Cabansag v.
Fernandez, G.R. No. L-8974, Oct. 18, 1957)
Applied to Seditious Speech
Citizen Perez made this remark at a political
discussion at a town municipio: and the Filipinos,
like myself, must use bolos for cutting off Wood
head for having recommended a bad thing for the
Philippine . The court held that criticism, no matter
how severe, on the Executive, the Legislature, and
the Judiciary, is within the range of liberty of
speech, unless the intention and effect be
seditious. In this case, the Court found a seditious
tendency which could easily produce disaffection
among the people and a state of feeling
incompatible with a disposition to remain loyal to
the Government and obedient to the laws. (People
v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas,
POLITICAL LAW
The 1987 Constitution of the Republic of the
Philippines, 2009)
c. Balancing of Interests Test
Concept
The balancing of interests test is used as a
standard when courts need to balance conflicting
social values and individual interests, and requires
a conscious and detailed consideration of the
interplay of interests observable in a given situation
of type of situation. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008)
Republic Act 4880 among other things prohibits the
too early nomination of political candidates and
limits the period for partisan political activity. Its
purpose is to prevent the debasement of the
political process. In determining the validity of the
law, free speech as a social value must be weighed
against the political process as a social value.
(Gonzales v. COMELEC, G.R. No. L-27833, April
18, 1969)
The dangerous tendency rule and the clear and
present danger rule were evolved in the context of
prosecution for seditious speech. They are thus
couched in terms of degree of evil and proximity of
the evil. But not all evils easily lend themselves, like
sedition to measurement of proximity and degree.
For legislation therefore whose object is not the
prevention of evil measurable in terms of proximity
and degree, another test had to be evolved. The
balancing of interests serves this purpose. It is
used, for instance, for commercial speech. (People
v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
Factors to Consider
Although the urgency of the public interest sought
to be secured by Congressional power restricting
the individual's freedom, and the social importance
and value of the freedom so restricted, are to be
judged in the concrete, not on the basis of
abstractions, a wide range of factors are
necessarily relevant in ascertaining the point or line
of equilibrium. Among these are:
a. The social values and importance of the specific
aspect of the particular freedom restricted by
the legislation;
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b. The specific thrust of the restriction, i.e.,
whether the restriction is direct or indirect,
whether or not the persons affected are few;
c. The value and importance of the public interest
sought to be secured by the legislation
the
reference here is to the nature and gravity of the
evil which Congress seeks to prevent;
d. Whether the specific restriction decreed by
Congress is reasonably appropriate and
necessary for the protection of such public
interest; and
e. Whether the necessary safeguarding of the
public interest involved may be achieved by
some other measure less restrictive of the
protected freedom. (J. Castro, Separate
Opinion in Gonzales v. COMELEC, G.R. No. L27833, April 18, 1969)
Summary
TEST
CRITERION
Clear
and
Present Danger
Whether the words used are
used in such circumstances
and are of such a nature as to
create a clear and present
danger that they will bring
about the substantive evils
that Congress has a right to
prevent. It is a question of
proximity and degree.
Dangerous
Tendency
If the words uttered create a
dangerous tendency which
the state has a right to
prevent, then such words are
punishable.
There should be a rational
connection
between the
speech restrained and the
danger apprehended and the
tendency of one to create the
other is shown.
Balancing
Interests
of
Courts need to balance
conflicting social values and
individual
interests,
and
requires a conscious and
detailed consideration of the
interplay
of
interests
observable in a given
situation of type of situation.
4. SPECIAL TOPICS IN FREE EXPRESSION
CASES
a. Hate Speech and Fighting Words
HATE SPEECH
Speech that demeans on the basis of race,
ethnicity, gender, religion, age, disability, or any
other similar ground is hateful. (Matal v. Tam, 582
U.S., June 19, 2017)
Speech that carries no meaning other than the
expression of hatred for some group, such as a
particular race, esp. in circumstances in which the
communication is likely to provoke violence.
(Black Law Dictionary, 10th ed.)
No Hate Speech Exception to Free Speech
The proudest boast of our free speech
jurisprudence is that we protect the freedom to
express he thought that we ha e. (Matal v. Tam,
582 U.S., June 19, 2017)
FIGHTING WORDS
Words which by their very utterance, inflict injury or
tend to incite an immediate breach of the peace. It
has been well observed that such utterances are
no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any
benefit that may be derived from them is clearly
outweighed by the social interest in order and
morality. (Chaplinsky v. New Hampshire, 315 U.S.
568, March 9, 1942)
Test
The test is what men of common intelligence would
understand would be words likely to cause an
average addressee to fight. (Chaplinsky v. New
Hampshire, 315 U.S. 568, March 9, 1942)
Fighting Words No Constitutional Protection
IF Defamatory or Tortious
"Fighting words" are not entitled to constitutional
protection and may be penalized. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
Fighting words are not subject to subsequent
punishment unless they are defamatory or tortious.
Fighting words refer to profane or vulgar words that
are likely to provoke a violent response from an
audience. Profane or vulgar words like "Fuck the
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draft," when not directed at any particular person,
ethnic or religious group, are not subject to
subsequent punishment. As aptly stated, "one
man vulgarity may be another man lyric." If
profane or vulgar language like "Fuck the draft" is
not subject to subsequent punishment, then with
more reason it cannot be subject to prior restraint.
Without a law punishing the actual utterance or
publication of an expression, an expression cannot
be subject to prior restraint because such
expression is not unlawful or illegal. (J. Carpio,
Separate Opinion in Soriano v. Laguardia, G.R. No.
164785, April 29, 2009; citing Cohen v. California,
403 U.S. 15, June 7, 1971)
Summary
HATE SPEECH
Speech that demeans
on the basis of race,
ethnicity,
gender,
religion, age, disability,
or any other similar
ground is hateful.
Protected Speech
FIGHTING WORDS
Words which by their
very utterance, inflict
injury or tend to incite
an immediate breach
of the peace.
Unprotected Speech (if
defamatory or tortious)
b. Defamation and Libel
Definition
A libel is a public and malicious imputation of a
crime, or of a vice or a defect, real or imaginary, or
any act, omission, condition, status, or
circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is
dead. (REVISED PENAL CODE, art. 353)
Libel Not a Constitutionally Protected Speech
Libel is not a constitutionally protected speech and
that the government has an obligation to protect
private individuals from defamation. (Disini v. Sec.
of Justice, G.R. No. 203335, Feb. 18, 2014)
Elements
The elements of libel are: (APIM)
a. The Allegation of a discreditable act or
condition concerning another;
b. Publication of the charge;
c. Identity of the person defamed; and
d. Existence of Malice.
(Disini v. Sec. of Justice, G.R. No. 203335, Feb.
18, 2014)
Proof that Statement is False
In the absence of proof that the defendant knew
that the statement was false or published with
reckless disregard of whether or not it was true, the
defendant cannot be held liable for libel.
(Guingguing v. Court of Appeals, G.R. No. 128959,
Sept. 30, 2005)
When is Malice Present
There is malice when the author of the imputation
is prompted by ill-will or spite and speaks not in
response to duty but merely to injure the reputation
of the person who claims to have been defamed.
(Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995)
Every Defamatory Imputation Presumed
Malicious
General Rule: Every defamatory imputation is
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown.
Exceptions:
1. A private communication made by any
person to another in the performance of
any legal, moral or social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or
speech delivered in said proceedings, or of
any other act performed by public officers
in the exercise of their functions. (REVISED
PENAL CODE, art. 354)
Doctrine of Fair Commentaries
The enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since
fair commentaries on matters of public interest are
likewise privileged.
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The doctrine of fair commentaries means "that
while in general every discreditable imputation
publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable
imputation is directed against a public person in his
public capacity, it is not necessarily actionable. In
order that such discreditable imputation to a public
official may be actionable, it must either be a false
allegation of fact or a comment based on a false
supposition. (Yuchengco v. The Manila Chronicle,
G.R. No. 184315, Nov. 25, 2009)
Cyberlibel Only the Original Author is Liable
Only the original author of the statement should be
prosecuted for libel. Because of the unique culture
of cyberspace, the inclusion of those who just
shared the statement in the case would have a
chilling effect upon them. This makes the law
overbroad and therefore in violation of freedom of
expression. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
Contempt is Akin to a Case of Libel
Contempt is akin to a case of libel for both
constitute limitations upon freedom of the press or
freedom of expression guaranteed by our
Constitution. What is considered a privilege in one
may likewise be considered in the other. The
principle of privileged communications can also be
invoked in contempt charges.
When a lawyer has become a public figure for
being involved in a public issue, the controversy
involving such individual becomes a matter of
public interest. Therefore, the media has the right
to report the disciplinary case as legitimate news.
Such will not be considered as a violation of the
confidentiality rule in disciplinary proceedings
against lawyers. (Atty. Raymund P. Palad v. Lolit
Solis, et al., G.R. No. 206691, Oct. 3, 2016)
Privileged Communications
1. Absolutely Privileged Communications
Those which are not actionable even if the author
has acted in bad faith.
POLITICAL LAW
by public officers in the performance of their duties,
and allegations or statements made by the parties
or their counsel in their pleadings or motions or
during the hearing of judicial proceedings, as well
as the answers given by witnesses in reply to
questions propounded to them, in the course of
said proceedings, provided that said allegations or
statements are relevant to the issues, and the
answers are responsive or pertinent to the
questions propounded to said witnesses.
2. Qualifiedly Privileged Communications
Those which contain defamatory imputations but
are not actionable unless found to have been made
without good intention justifiable motive.
To this genre belong "private communications" and
"fair and true report without any comments or
remark under article 354 of the Revised Penal
Code. (Manila Bulletin v. Domingo, G.R. No.
170341, July 5, 2017)
While generally every defamatory imputation is
presumed malicious, if the communication is
privileged, the presumption does not arise. The
plaintiff assumes the burden of proving malice.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Requisites of a Qualifiedly Privileged
Communication under Article 354, No. 1 of the
Revised
Penal
Code
P a
C
ca
In order to prove that a statement falls within the
purview of a qualified privileged communication
under Article 354, No. 1, the following requisites
must concur: (DAG)
1. The person who made the communication had
a legal, moral, or social Duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or
of the one to whom it is made;
2. The communication is Addressed to an officer
or a board, or superior, having some interest or
duty in the matter, and who has the power to
furnish the protection sought; and
3. The statements in the communication are made
in Good faith and without malice. (Syhunliong
v. Rivera, G.R. No. 200148, June 4, 2014)
This classification includes statements made by
members of Congress in the discharge of their
functions as such, official communications made
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Group/Class Libel
Where the defamation is alleged to have been
directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing
as to apply to every individual in that group or class,
or sufficiently specific so that each individual in the
class or group can prove that the defamatory
statement specifically pointed to him, so that he
can bring the action separately, if need be.
(Newsweek v. IAC, G.R. No. L-63559, May 30,
1986)
If the group is a very large one, then the alleged
libelous statement is considered to have no
application to anyone in particular, since one might
as well defame all mankind. Not only does the
group as such have no action; the plaintiff does not
establish any personal reference to himself. As the
size of these groups increases, the chances for
members of such groups to recover damages on
tortious libel become elusive. This principle is said
to embrace two (2) important public policies:
a. First, where the group referred to is large, the
courts presume that no reasonable reader
would take the statements as so literally
applying to each individual member; and
b. Second, the limitation on liability would
satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a
sound compromise between the conflicting
fundamental interests involved in libel cases.
(MVRS Publication v. Islamic Da’wah Council of
the Philippines, G.R. No. 135306. Jan. 28,
2003)
LIBEL AGAINST PUBLIC OFFICIALS AND
PUBLIC FIGURES
Public Figure
Those who, by reason of the notoriety of their
achievements or the vigor and success with which
they seek the public's attention. (Gertz v. Welch,
418 U.S. 323, June 25, 1974)
Public Official
Those who hold governmental office. (Gertz v.
Welch, 418 U.S. 323, June 25, 1974)
New York Times Standard Actual Malice
Public officials/figures must prove that the
statement was made with ac al malice in order to
POLITICAL LAW
recover damages for a defamatory falsehood
relating to his official conduct.
Actual malice means there was knowledge that it
was false or with reckless disregard of whether it
was false or not. (NY Times v. Sullivan, 376 U.S.
254, 1964).
General Rule: Every defamatory imputation is
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown.
Exception: If the defamed is a public
figure/official, there is no presumption of
malice. Instead, the public official/figure
defamed m
pro e ac al malice.
Fair Commentaries
These are privileged and constitute a valid defense
in an action for libel or slander. When the
discreditable imputation is directed against a public
person in his public capacity, it is not necessarily
actionable. In order for it to be actionable, it must
either be a false allegation of fact or a comment
based on a false supposition.
If the comment is an expression of opinion based
on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might
reasonably be inferred. The insertion of an old
picketing footage in a news report was not libelous
because it did not convey anything derogatory in
nature, and it was actually simultaneously voiced
over by the narration of the news report. The report
was also merely quoted from the contents and
allegations in the petition and is merely a summary
of the petition. (GMA Network v. Bustos, G.R. No.
146848, Oct. 17, 2006)
LIBEL AGAINST PRIVATE INDIVIDUALS
New York Times Standard Not Applicable to
Defamed Private Individuals
So long as they do not impose liability without fault,
the States may define for themselves the
appropriate standard of liability (less demanding
than the New York Times standard actual malice)
for a publisher or broadcaster of defamatory
falsehood injurious to a private individual.
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The States, however, may not permit recovery of
presumed or punitive damages when liability is not
based on knowledge of falsity or reckless disregard
for the truth, and the private defamation plaintiff
who establishes liability under a less demanding
standard than the New York Times test may
recover compensation only for actual injury. (Gertz
v. Welch, 418 U.S. 323, June 25, 1974)
Rationale
Because private individuals characteristically have
less effective opportunities for rebuttal than do
public officials and public figures, they are more
vulnerable to injury from defamation. Because they
have not voluntarily exposed themselves to
increased risk of injury from defamatory
falsehoods, they are also more deserving of
recovery. The state interest in compensating injury
to the reputation of private individuals is therefore
greater than for public officials and public figures.
To extend the New York Times standard to media
defamation of private persons whenever an issue
of general or public interest is involved would
abridge to an unacceptable degree the legitimate
state interest in compensating private individuals
for injury to reputation and would occasion the
additional difficulty of forcing courts to decide on an
ad hoc basis which publications and broadcasts
address issues of general or public interest and
which do not. (Gertz v. Welch, 418 U.S. 323, June
25, 1974)
c. Sedition and Speech in Relation to
Rebellion
Seditious Speech is an Unprotected Speech
Criticism is permitted to penetrate even to the
foundations of Government. Criticism, no matter
how severe, on the Executive, the Legislature, and
the Judiciary, is within the range of liberty of
speech, unless the intention and effect be
seditious. But when the intention and effect of the
act is seditious, the constitutional guaranties of
freedom of speech and press and of assembly and
petition must yield to punitive measures designed
to maintain the prestige of constituted authority, the
supremacy of the constitution and the laws, and the
existence of the State. (People v. Perez, G.R. No.
L-21049, Dec. 22, 1923)
POLITICAL LAW
The freedom of speech secured by the Constitution
does not confer an absolute right to speak or
publish without responsibility whatever one may
choose. It is not unbridled license that gives
immunity for every possible use of language and
prevents the punishment of those who abuse this
freedom.
So statutes against sedition have
guaranty, although they should not be interpreted
so as to agitate for institutional changes. Thus,
another limit of free speech and writing is seditious
speech which is prohibited under Art. 142 of the
Revised Penal Code. (Mendoza v. People, G.R.
No. L-2990, Dec. 17, 1951)
When a fictitious suicide photo and letter were
published in newspapers of general circulation
expressing disappointment in the Roxas
administration and instructing a fictitious wife to
teach their children to burn photos of the President,
the Court held that such act constitutes inciting to
sedition. It suggests or incites rebellious
conspiracies or riots and tends to turn the people
against the constituted authorities, or to provoke
violence from opposition groups who may seek to
silence the writer, which is the sum and substance
of the offense under consideration. (Mendoza v.
People, G.R. No. L-2990, Dec. 17, 1951)
Reason Why Seditious Utterances are
Prohibited
Manifestly, the legislature has authority to forbid
the advocacy of a doctrine designed and intended
to overthrow the Government without waiting until
there is a present and immediate danger of the
success of the plan advocated. If the State were
compelled to wait until the apprehended danger
became certain, then its right to protect itself would
come into being simultaneously with the overthrow
of the Government, when there would be neither
prosecuting officers nor courts for the enforcement
of the law. (Gitlow vs. New York, 268 U.S. 652,
June 7, 1925)
Tests Applied to Seditious Words
1. Clear and Present Danger Test
A political party applied for a permit to hold a public
meeting in Manila. The Mayor refused to grant
permit. The refusal of the Mayor to grant permit for
the holding of a public meeting was predicated
upon fear that in view of the bitterness of the
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speeches expected from the minority men who
were fresh from a political defeat and were
smarting with charges of fraud against those in
power, there might be breach of the peace and of
public order. The Court ruled that the danger
apprehended was not imminent and the evil to be
prevented was not a serious one. Thus, the Mayor
was ordered by the Supreme Court in mandamus
proceedings to issue a permit. (Primicias v.
Fugoso, G.R. No. L-1800, Jan. 27, 1948)
2. Dangerous Tendency Test
Citizen Perez made this remark at a political
discussion at a town municipio: and the Filipinos,
like myself, must use bolos for cutting off Wood
head for having recommended a bad thing for the
Philippine . The court held that criticism, no matter
how severe, on the Executive, the Legislature, and
the Judiciary, is within the range of liberty of
speech, unless the intention and effect be
seditious. In this case, the Court found a seditious
tendency which could easily produce disaffection
among the people and a state of feeling
incompatible with a disposition to remain loyal to
the Government and obedient to the laws. (People
v. Perez, G.R. No. L-21049, Dec. 22, 1923)
Utterances Must Incite the Public to Commit
Sedition
It is not inciting to sedition when it is not proved that
the defendant incited the people to rise publicly and
tumultuously in order to attain any of the ends
mentioned in Art. 139 (sedition), which are:
1. To prevent the promulgation or execution of any
law or the holding of any popular election;
2. To prevent the National Government, or any
provincial or municipal government, or any
public officer thereof from freely exercising its or
his functions, or prevent the execution of any
administrative order;
3. To inflict any act of hate or revenge upon the
person or property of any public officer or
employee;
4. To commit, for any political or social end, any
act of hate or revenge against private persons
or any social class; and
5. To despoil, for any political or social end, any
person, municipality or province, or the National
Government of all its property or any part
thereof. (People vs. Arrogante, 39 O.G. 1974)
POLITICAL LAW
d. Obscenity/Pornography
Concept; Miller Test for Obscenity
There is no perfect definition of "obscenity" but the
latest word is that of Miller v. California which
established basic guidelines, to wit: (PILV)
1. Whether to the average person, applying
contemporary standards would find the work,
taken as a whole, appeals to the Prurient
Interest;
2. Whether the work depicts or describes, in a
patently offensive way, sexual conduct
specifically defined by the applicable state Law;
and
3. Whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
Value. (Fernando v. CA, G.R. No. 159751, Dec.
6, 2006; Miller v. California, 413 U.S. 15, June
21, 1973)
But, it would be a serious misreading of Miller to
conclude that the trier of facts has the unbridled
discretion in determining what is "patently
offensive. No one will be subject to prosecution for
the sale or exposure of obscene materials unless
these materials depict or describe patently
offensive "hard core" sexual conduct. Examples
included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or
perverted, actual or simulated; and (b) patently
offensive representations or descriptions of
masturbation, excretory functions, and lewd
exhibition of the genitals. What remains clear is that
obscenity is an issue proper for judicial
determination and should be treated on a case to
case basis and on the j dge sound discretion.
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Relative Obscenity
The Court noted that there was no perfect
definition of ob ceni and that ultimately therefore
ob ceni
is an issue proper for judicial
determination and should be treated on a case to
case basis and on the j dge sound di cre ion.
(Soriano v. Laguardia, G.R. No. 164785, April 29,
2009)
Obscenity is an Unprotected Speech
As obscenity is an unprotected speech which the
State has the right to regulate, the State in pursuing
its mandate to protect, as parens patriae, the public
from obscene, immoral and indecent materials
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must justify the regulation or limitation. One such
regulation is Article 201 of the Revised Penal Code.
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Necessarily, that the confiscated materials are
obscene must be proved. (Fernando v. CA, G.R.
No. 159751, Dec. 6, 2006)
Procedure for Conviction Under Art. 201
1. The authorities must apply for the issuance of a
search warrant from a judge, if in their opinion,
an obscenity rap is in order;
2. The authorities must convince the court that the
materials sought to be seized are "obscene",
and pose a clear and present danger of an evil
substantive
enough
to
warrant
State
interference and action;
3. The judge must determine whether or not the
same are indeed "obscene:" the question is to
be resolved on a case-to-case basis and on His
Honor's sound discretion.
4. If, in the opinion of the court, probable cause
exists, it may issue the search warrant prayed
for;
5. The proper suit is then brought in the court
under Article 201 of the Revised Penal Code;
6. Any conviction is subject to appeal. The
appellate court may assess whether or not the
properties seized are indeed "obscene." (Pita v.
CA, G.R. No. 80806, Oct. 5, 1989)
Mere Possession Not Punishable; Publicity is
Necessary
Mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not
punishable under Article 201 of the RPC,
considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public.
The offense in any of the forms under Article 201 is
committed only when there is publicity. The law
does not require that a person be caught in the act
of selling, giving away or exhibiting obscene
materials to be liable, for as long as the said
materials are offered for sale, displayed or
exhibited to the public. (Fernando v. CA, G.R. No.
159751, Dec. 6, 2006)
e. Commercial Speech
Concept
Commercial speech is speech that does no more
than propose a commercial transaction. (Central
POLITICAL LAW
Hudson Gas v. Public Service Commission, 447
U.S. 557, June 20, 1980)
Advertising, however tasteless and excessive it
sometimes
may
seem,
is
nonetheless
dissemination of information as to who is producing
and selling what product, for what reason, and at
what price. So long as we preserve a
predominantly free enterprise economy, the
allocation of our resources in large measure will be
made through numerous private economic
decisions. It is a matter of public interest that those
decisions, in the aggregate, be intelligent and well
informed. To this end, the free flow of commercial
information is indispensable. And if it is
indispensable to the proper allocation of resources
in a free enterprise system, it is also indispensable
to the formation of intelligent opinions as to how
that system ought to be regulated or altered.
(Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, May 24,
1976)
Accorded Lesser Protection
Although the Constitution accords a lesser
protection to commercial speech than to other
constitutionally
guaranteed
expression,
nevertheless the First Amendment protects
commercial
speech
from
unwarranted
governmental regulation. (Central Hudson Gas v.
Public Service Commission, 447 U.S. 557, June
20, 1980)
Central Hudson Test for a Valid Commercial
Speech Regulation
For commercial speech to come within the First
Amendment: (FISDO)
1. Speech must not be False or misleading or
proposing an illegal activity;
2. Governmental Interest sought to be served by
the regulation must be Substantial;
3. The regulation must Directly advance the
governmental interest asserted; and
4. The regulation must not be Overbroad not
more extensive than is necessary to serve that
interest. (Central Hudson Gas v. Public Service
Commission, 447 U.S. 557, June 20, 1980)
f. National Emergencies
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POLITICAL LAW
The right of freedom of speech and to peacefully
assemble and petition the government for redress
of grievances, are fundamental personal rights of
the people recognized and guaranteed by the
Constitutions of democratic countries.
In many places and in ordinary times, the
defendants, in saying all that was said in the
circular, would have been within their constitutional
rights. But the character of every act depends upon
the circumstances in which it is done.
But it is a settled principle growing out of the nature
of well-ordered civil societies that the exercise of
those rights is not absolute for it may be so
regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, not
injurious to the rights of the community or society.
The power to regulate the exercise of such and
other constitutional rights is termed the sovereign
"police power" which is the power to prescribe
regulations, to promote the health, morals, peace,
education, good order or safety, and general
welfare of the people. This sovereign police power
is exercised by the government through its
legislative branch by the enactment of laws
regulating those and other constitutional and civil
rights, and it may be delegated to political
subdivisions, such as towns, municipalities, and
cities authorizing their legislative bodies, called
municipal and city councils to enact ordinances for
the purpose.
The question in every case is whether the words
used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a
question of proximity and degree. (Schenck v.
United States, 249 U.S. 47, March 3, 1919)
However, under our democratic system of
government no such unlimited power may be
validly granted to any officer of the government,
except perhaps in cases of national emergency.
(Primicias v. Fugoso, G.R. No. L-1800, Jan. 27,
1948)
Speech During War Time
In the landmark case of Schenck v. United States,
the Supreme Court affirmed the conviction of
Charles Schenck and Elizabeth Baer for violating
the Espionage Act of 1917 through actions that
obstructed the recr i ing or enlistment er ice
during World War I.
The ruling established that Congress has more
latitude in limiting speech in times of war than in
peacetime. When a nation is at war, many things
that might be said in time of peace are such a
hindrance to its effort that their utterance will not be
endured so long as men fight, and that no Court
could regard them as protected by any
constitutional right.
g. Speech of Public Officers
Civil Service Does Not Deprive Government
Workers of their Freedom of Expression
Government workers, whatever their ranks, have
as much right as any person in the land to voice out
their protests against what they believe to be a
violation of their rights and interests. Civil Service
does not deprive them of their freedom of
expression. It would be unfair to hold that by joining
the government service, the members thereof have
renounced or waived this basic liberty. This
freedom can be reasonably regulated only but can
never be taken away. (GSIS v. Villaviza, G.R. No.
180291, July 27, 2010)
Freedom of Expression Regulated, But Not
Removed
It is correct to conclude that those who enter
government service are subjected to a different
degree of limitation on their freedom to speak their
mind; however, it is not tantamount to the
relinquishment of their constitutional right of
expression otherwise enjoyed by citizens just by
reason of their employment. Unarguably, a citizen
who accepts public employment must accept
certain limitations on his or her freedom. But there
are some rights and freedoms so fundamental to
liberty that they cannot be bargained away in a
contract for public employment. It is the Co r
responsibility to ensure that citizens are not
deprived of these fundamental rights by virtue of
working for the government.
In simple paraphrase, regulation of the freedom of
expression is not removal of the constitutional right.
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(Davao City Water District v. Aranjuez, G.R. No.
194192, June 16, 2015)
h. H c
Veto
The heckler e o involves situations in which the
government attempts to ban protected speech
because it might provoke a violent response. In
such situations, the mere possibility of a violent
reaction to protected speech is simply not a
constitutional basis on which to restrict the right to
speak. (Cohen v. California, 403 U.S. 15 June 7,
1971)
In Feiner v. New York (340 U.S. 315, Jan. 14,
1951), petitioner was neither arrested nor
convicted for the making of the speech or the
content of his speech, but for the reaction which it
actually engendered. The Court held that the police
cannot be used as an instrument for the
suppression of unpopular views; but, when a
speaker passes the bounds of argument or
persuasion and undertakes incitement to riot, the
police are not powerless to prevent a breach of the
peace.
5. COGNATE RIGHTS
a. Freedom of Assembly and Petition
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition
the government for redress of grievances. (PHIL.
CONST., art. III, § 4)
Concept
The right of petition is the primary right, the right
peaceably to assemble a subordinate and
instrumental right, as if the provision read: The
right of the people peaceable to a emble in order
to pe i ion the go ernmen . The right to peaceable
assembly is a right cognate to those of free speech
and free press and is equally fundamental.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009, citing De Jonge v. Oregon,
299 U.S. 353, Jan. 3, 1937)
The right to peaceably assemble and petition for
redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that
enjoys primacy in the realm of constitutional
protection. For these rights constitute the very
basis of a functional democratic polity, without
which all the other rights would be meaningless
and unprotected. (Bayan v. Ermita, G.R. No.
169838, April 25, 2006)
Definition of Assembly & Public Assembly
"Assembly" means a right on the part of the citizens
to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our
republican institution and complements the right of
speech. As in the case of freedom of expression,
this right is not to be limited, much less denied,
except on a showing of a clear and present danger
of a substantive evil that Congress has a right to
prevent. In other words, like other rights embraced
in the freedom of expression, the right to assemble
is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of
a permit or authorization from the government
authorities except, of course, if the assembly is
intended to be held in a public place, a permit for
the use of such place, and not for the assembly
itself, may be validly required. (David v. Arroyo,
G.R. No. 171396, May 3, 2006)
"Public assembly" means any rally, demonstration,
march, parade, procession or any other form of
mass or concerted action held in a public place for
the purpose of presenting a lawful cause; or
expressing an opinion to the general public on any
particular issue; or protesting or influencing any
state of affairs whether political, economic or
social; or petitioning the government for redress of
grievances. The definition herein contained shall
not include picketing and other concerted action in
strike areas by workers and employees resulting
from a labor dispute as defined by the Labor Code,
its implementing rules and regulations, and by the
Batas Pambansa Bilang 227. (B.P. 880, Sec. 3[a])
B.P. 880: THE PUBLIC ASSEMBLY
ACT OF 1985
Purpose
B.P. 880 sets forth the requirements and procedure
which are necessary to regulate the time, place and
manner of public assemblies.
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Rules on Assembly in Public Place
(a) The applicants for a permit to hold an assembly
should inform the licensing authority of the date,
the public place where and the time when it will
take place.
(b) If the assembly were to be held at a private
place, only the consent of the owner or the one
entitled to its legal possession is required.
(c) The application should be filed ahead of time to
enable the public official concerned to appraise
whether there are valid objections to the grant
of the permit or to its grant, but in another public
place. It is an indispensable condition to such
refusal or modification that the clear and
present danger test be the standard for the
decision reached.
(d) If the public authority is of the view that there is
an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter.
(e) The decision of the public authority, whether
favorable or adverse, must be transmitted to the
applicants at the earliest opportunity so that
they may, if they so desire, have recourse to the
proper judicial authority. (Reyes v. Bagatsing,
G.R. No. L-65366, Nov. 9, 1983; Codified in the
provisions of B.P. 880)
Application Permit
General Rule: A written permit shall be required
for any person or persons to organize and hold a
public assembly in a Public Place.
Exceptions: However, no permit shall be
required if the public assembly shall be done
or made in a: (FPC)
1. Freedom park duly established by law or
ordinance or;
2. In Private property, in which case only the
consent of the owner or the one entitled to
its legal possession is required; or
3. In the Campus of a government-owned
and operated educational institution which
shall be subject to the rules and regulations
of said educational institution. (B.P. 880,
Sec. 4)
"Public place" shall include any highway,
boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open
space of public ownership where the people are
allowed access. (B.P. 880, Sec. 3[b])
POLITICAL LAW
Application Subject to the Clear and Present
Danger Test
It shall be the duty of the mayor or any official acting
in his behalf to issue or grant a permit unless there
is clear and convincing evidence that the public
assembly will create a clear and present danger to
public order, public safety, public convenience,
public morals or public health. (B.P. 880, Sec. 6[a])
The permit can only be denied on the ground of
clear and present danger to public order, public
safety, public convenience, public morals or public
health. This is a recognized exception to the
exercise of the right. (Bayan v. Ermita, G.R. No.
169838, April 25, 2006)
The Mayor possesses rea onable discretion to
determine or specify streets or public places to be
used for the assembly in order to secure
convenient use thereof by others and provide
adequate and proper policing to minimize the risks
of disorder and maintain public safety and order.
(Navarro v. Villegas, G.R. No. L-31687, Feb. 26,
1970)
Inaction of Mayors on the Application
There is need to address the situation adverted to
by petitioners where mayors do not act on
applications for a permit and when the police
demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In
such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show
the police an application duly filed on a given date
can, after two days from said date, rally in
accordance with their application without the need
to show a permit, the grant of the permit being then
presumed under the law, and it will be the burden
of the authorities to show that there has been a
denial of the application, in which case the rally
may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the
law. (Bayan v. Ermita, G.R. No. 169838, April 25,
2006)
The mayor or any official acting in his behalf shall
act on the application within two (2) working days
from the date the application was filed, failing
which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his
behalf refuse to accept the application for a permit,
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said application shall be posted by the applicant on
the premises of the office of the mayor and shall be
deemed to have been filed. (B.P. 880, Sec. 6[b])
Freedom Parks No Prior Permit Required
Every city and municipality in the country shall
within six months after the effectivity of this Act
establish or designate at least one suitable
"freedom park" or mall in their respective
jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where
demonstrations and meetings may be held at any
time without the need of any prior permit. In the
cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom
parks within the period of six months from the
effectivity this Act. (B.P. 880, Sec. 15)
The existence of freedom parks is an essential part
of the la
system of regulation of the people
exercise of their right to peacefully assemble and
petition. No prior permit may be required for the
exercise of such right in any public park or plaza of
a city or municipality until that city or municipality
shall have established or designated such freedom
parks. For without such alternative forum, to deny
the permit would in effect be to deny the right.
Advance notices should, however, be given to the
authorities to ensure proper coordination and
orderly proceeding. (Bayan v. Ermita, G.R. No.
169838, April 25, 2006)
B.P. 880 is Constitutional
B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates
the time, place and manner of the assemblies. A
fair and impartial reading of B.P. No. 880 thus
readily shows that it refers to all kinds of public
assemblies that would use public places. The
reference to la f l ca e does not make it
content-based because assemblies really have to
be for lawful causes, otherwise they would not be
peaceable and entitled to protection. Neither are
the words opinion, pro e ing and infl encing
in the definition of public assembly content based,
since they can refer to any subject. The words
pe i ioning the government for redress of
grie ance
come from the wording of the
Constitution, so its use cannot be avoided. Finally,
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maximum tolerance is for the protection and benefit
of all rallyists and is independent of the content of
the expressions in the rally.
Neither is the law overbroad. It regulates the
exercise of the right to peaceful assembly and
petition only to the extent needed to avoid a clear
and present danger of the substantive evils
Congress has the right to prevent. There is,
likewise, no prior restraint, since the content of the
speech is not relevant to the regulation. (Bayan v.
Ermita, G.R. No. 169838, April 25, 2006)
The Calibrated Preemptive Response (CPR);
Serves No Valid Purpose
The CPR is a policy set forth in a press release
(Sept. 21, 2005) by Malacañang issued in view of
intelligence reports pointing to credible plans of
anti-government groups to inflame the political
situation, sow disorder and incite people against
the duly constituted authorities. The rule of CPR
was issued in lieu of ma im m olerance provided
under B.P. 880.
The Court ruled that in view of the maximum
tolerance mandated by B.P. No. 880, CPR serves
no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed
is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically
means the following: (Bayan v. Ermita, G.R. No.
169838, April 25, 2006)
"Maximum tolerance" means the highest degree of
restraint that the military, police and other peace
keeping authorities shall observe during a public
assembly or in the dispersal of the same. (B.P. 880,
Sec. 3[c])
A.M. 98-7-02-SC: GUIDELINES ON THE
CONDUCT OF DEMONSTRATIONS, PICKETS,
RALLIES AND OTHER SIMILAR GATHERINGS
IN THE VICINITY OF THE SUPREME COURT
AND ALL OTHER COURTS
Prohibited Activity Near the SC and Other
Courts
Demonstrators, picketers, rallyists and all other
similar persons are enjoined from holding any
activity on the sidewalks and streets adjacent to, in
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front of, or within a radius of two hundred (200)
meters from, the outer boundary of the Supreme
Court Building, any Hall of Justice, and any other
building that houses at least one (1) court sala.
Such activities unquestionably interrupt and
hamper the working condition in the salas, offices
and chambers of the courts. (Sec. 2)
b. Freedom of Association
The right of the people, including those employed
in the public and private sectors, to form unions,
associations, or societies for purposes not contrary
to law shall not be abridged. (PHIL. CONST., art. III,
§ 8)
Does Not Include the Right to Compel Others
The provision guarantees the right to form
associations. It does not include the right to compel
others to form an association. (Bernas, The 1987
Constitution: A Commentary, 2009)
Article III, Section 8 guarantees the freedom to
associate as well as the freedom not to associate.
The provision is not a basis to compel others to
form or join an association. (Acosta v. Ochoa, G.R.
Nos. 211559, 211567, 212570 & 215634, Oct. 15,
2019)
Aspect of Right to Liberty
The right to form associations shall not be impaired
without due process of law and is thus an aspect of
the right of liberty. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
Aspect of Freedom of Contract
It is also an aspect of the freedom of contract. In
addition, insofar as the associations may have for
their object the advancement of beliefs and ideas,
the freedom of association is an aspect of the
freedom of speech and expression, subject to the
same limitation. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
IRR of RA 10951; Sports Shooter Applicant
Section 4.10 of the Rules Implementing RA 10951
does not compel a sports shooter applicant to join
a gun club or sports shooting association; it only
provides that they must submit a certification from
the president of a recognized gun club or sports
shooting association that he or she is joining the
POLITICAL LAW
competition. This certification ensures that the
extra ammunition is indeed granted to legitimate
sports shooters, which is remarkably more than
that allowed to an ordinary owner of a firearm.
Thus, Section 4.10 does not violate Article III,
Section 8 of the Constitution. (Acosta v. Ochoa,
G.R. Nos. 211559, 211567, 212570 & 215634, Oct.
15, 2019)
Not Accorded to Top-level and Middle
Managers
The Commission intended the absolute right to
organize of government workers, supervisory
employees, and security guards to be
constitutionally guaranteed. By implication, no
similar absolute constitutional right to organize for
labor purposes should be deemed to have been
granted to top-level and middle managers. As to
them the right of self-organization may be
regulated and even abridged conformably to Art. III,
§ 8.
If these managerial employees would belong to or
be affiliated with a Union, the latter might not be
assured of their loyalty to the Union in view of
evident conflict of interests. The Union can also
become company-dominated with the presence of
managerial employees in Union membership
(United Pepsi-Cola Supervisory Union (UPSU) v.
Laguesma, G.R. No. 122226, March 25, 1998)
Registration Not a Limitation to the Right
The registration of labor unions is not a limitation to
the right of assembly or association, which may be
exercised with or without said registration. The
latter is merely a condition sine qua non for
the acquisition of legal personality by labor
organizations, associations or unions and the
possession of the "rights and privileges granted by
law to legitimate labor organizations". The
Constitution does not guarantee these rights and
privileges, much less said personality, which are
mere statutory creations, for the possession and
exercise of which registration is required to protect
both labor and the public against abuses, fraud, or
impostors who pose as organizers, although not
truly accredited agents of the union they purport to
represent. Such requirement is a valid exercise of
the police power, because the activities in which
labor organizations, associations and union of
workers are engaged affect public interest, which
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should be protected. (Philippine Assoc. of Free
Labor Unions v. Sec. of Labor, G.R. No. L-22228,
Feb. 27, 1969)
State Not Obligated to Accord Official Status
The right to organize does not equate to the a e
obligation to accord official status to every single
association that comes into existence. It is one
thing for individuals to galvanize themselves as a
collective, but it is another for the group that they
formed to not only be formally recognized by the
state, but also bedecked with all the benefits and
privileges that are attendant to official status. In
pursuit of public interest, the state can set
reasonable regulations
procedural, formal, and
substantive
with which organizations seeking
state imprimatur must comply. (Quezon City PTCA
Federation, Inc. vs DepEd, G.R. No. 188720,
February 23, 2016)
B.P. 222
B.P. 222, which prevents political parties and
groups from supporting directly or indirectly any
barangay candida e campaign for election does
not violate the right to form associations. Political
parties may freely be formed although there is a
restriction on their activities, i.e., their intervention
in the election of barangay officials on May 17,
1982 is prescribed. But the ban is narrow, not total,
and has the purpose of preventing the clear and
imminent danger of the debasement of the
electoral process. It operates only on concerted or
group action of political parties. (Occeña v.
COMELEC, G.R. No. L-60258, 1984)
Automatic or Compulsory Membership
Compulsory membership is an annotation on a lot
owner's certificate of title. Hence, petitioners were
bound by this annotation. The constitutional
guarantee of freedom of association can only be
invoked against the State, and does not apply to
private transactions, like a sale, where a condition
was validly imposed by the vendor. Automatic
membership in a homeowners' association does
not violate lot owners' right to freedom of
association because they were not forced to buy
their lots from the developer. (Cezar Yatco Real
Estate Services, Inc. v. Bel-Air Village Association,
Inc., G.R. No. 211780, Nov. 21, 2018.)
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A closed shop agreement is legal since it is a valid
form of union security. (Villar v. Inciong, G.R. No.
L-50283-84, April 20, 1983).
Compulsory membership of all lawyers in the
Integrated Bar of the Philippines does not violate
the right of association (In Re: Edillon, A.M. No.
1928, Aug. 3, 1978).
Right to Strike of Employees in the Public
Sector
To grant employees of the public sector the right to
strike, there must be a clear and direct legislative
authority therefor. In the absence of any express
legislation allowing government employees to
strike, recognizing their right to do so, or regulating
the exercise of the right, employees in the public
service may not engage in strikes, walkouts and
temporary work stoppages like workers in the
private sector. (Bangalisan v. CA, G.R. No.
124678, July 31, 1997).
In cases of CSC employees (e.g., SSS, public
school teachers):
Government employees may, therefore, through
their unions or associations, either petition the
Congress for the betterment of the terms and
conditions of employment which are within the
ambit of legislation or negotiate with the
appropriate government agencies for the
improvement of those which are not fixed by law. If
there be any unresolved grievances, the dispute
may be referred to the Public Sector Labor Management Council for appropriate action. But
employees in the civil service may not resort to
strikes, walk-outs and other temporary work
stoppages, like workers in the private sector, to
pressure the Government to accede to their
demands. (Social Security System Employees
Association (SSEA) v. Court of Appeals, G.R. No.
85279, July 28, 1989)
Other Constitutional Provisions Related to the
Right to Association:
The State shall guarantee the rights of all workers
to self-organization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law.
(PHIL. CONST., art. III, § 3, par. 2)
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The right to self-organization shall not be denied to
government employees. (PHIL. CONST., art. IX-B, §
2, par. 5)
c. Freedom of Information
The right of the people to information on matters of
public concern shall be recognized. (PHIL. CONST.,
art. III, § 7)
The constitutional guarantee of the right to
information on matters of public concern
enunciated in Section 7 of Article III of the 1987
Constitution complements the S a e policy of full
public disclosure in all transactions involving public
interest expressed in Section 28 of Article II of the
1987 Constitution. These provisions are aimed at
ensuring transparency in policy-making as well as
in the operations of the Government, and at
safeguarding the exercise by the people of the
freedom of expression. In a democratic society like
ours, the free exchange of information is
necessary, and can be possible only if the people
are provided the proper information on matters that
affect them. But the people right to information is
not absolute. The constitutional guarantee to
information does not open every door to any and
all information. It is limited to matters of public
concern, and is subject to such limitations as may
be provided by law. Likewise, the S a e policy of
full public disclosure is restricted to transactions
involving public interest, and is further subject to
reasonable conditions prescribed by law. (Sereno
v. Committee on Trade and Related Matters of
NEDA, G.R. No. 175210, Feb. 1, 2016)
Rights Guaranteed
1. Right to information on matters of public
concern
2. Right of access to official records and
documents
The people have the right to information on matters
of public concern, and access to official records
shall be allowed to citizens as may be provided by
law. It is a self-executing provision. (Legazpi v.
CSC, G.R. No. L-72119, May 29, 1987)
The threshold question is, therefore, whether or not
the information sought is of public interest or public
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concern. "Public concern" like "public interest" is a
term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the
public may want to know, either because these
directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to
determine in a case by case basis whether the
matter at issue is of interest or importance, as it
relates to or affects the public. (Legazpi v. CSC,
G.R. No. L-72119, May 29, 1987)
In case of conflict, there is a need to strike a
balance between the right of the people and the
interest of the Government to be protected.
(Sereno v. Committee on Trade and Related
Matters of NEDA, G.R. No. 175210, Feb. 1, 2016)
Limitations
The government has discretion with respect to the
authority to determine what matters are of public
concern and the authority to determine the manner
of access to them. A distinction has to be made
between the discretion to refuse outright the
disclosure of or access to a particular information
and the authority to regulate the manner in which
the access is to be afforded.
The first is a limitation upon the availability of
access to the information sought, which only the
Legislature may impose. The second pertains to
the government agency charged with the custody
of public records. (Legazpi v. CSC, G.R. No. L72119, May 29, 1987)
The regulations which the Register of Deeds, or the
Chief of the General Land Registration Office, or
the Secretary of Justice is empowered to
promulgate are confined to prescribing the manner
and hours of examination to the end that damage
to, or loss of, the records may be avoided, that
undue interference with the duties of the custodian
of the books and documents and other employees
may be prevented, that the right of other persons
entitled to make inspection may be insured, and the
like. (Subido v. Ozaeta, G.R. No. L-1631, Feb. 27,
1948)
Although citizens are afforded the right to
information and, pursuant thereto, are entitled to
access to official records, the Constitution does not
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accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and
the like in their desire to acquire information on
matters of public concern. (Valmonte v. Belmonte
Jr., G.R. No. 74930, Feb. 13, 1989)
Examples of Matters of Public Information
according to Jurisprudence:
1. Decision and voting slips of the MTRCB board
for the classification of movies (AquinoSarmiento v. Morato, G.R. No. 92541, Nov. 13,
1991)
2. Civil Service eligibility of sanitarians (Legaspi v.
CSC, G.R. No. L-72119, May 29, 1987)
3. Party-list nominees through medium other than
the Cer ified Li (Bantay Republic Act or BARA 7941 v. COMELEC, G.R. No. 177271, May
4, 2007)
4. GSIS loans granted to former Batasang
Pambansa members (Valmonte v. Belmonte
Jr., G.R. No. 74930, Feb. 13, 1989)
5. Examination papers and answer keys in the
CPA Board Exam (Antolin v. Domondon, G.R.
No.165036, July 5, 2010)
6. Definite
propositions
and
official
recommenda ion of agencies preceding and
even before the consummation of the contract
(Chavez v. Public Estates Authority, G.R. No.
133250, July 9, 2002)
The right to information is paramount, and that the
wiretapping issue is subservient to this right. The
Hello Garci tapes should be played, because
prohibiting its airing would be prior restraint.
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
2008)
Exceptions (BENT DISC)
The constitutional guarantee of the people's right to
information do not cover:
1. Banking transactions
2. Executive Sessions
3. National Security matters
4. Trade secrets
5. Diplomatic correspondence
6. Intelligence information
7. Supreme Court deliberations
8. Closed Door cabinet meetings
POLITICAL LAW
There are certain classes of information which may
be withheld from the public and even from
Congress. These are national security matters or
confidential diplomatic matters, trade secrets and
banking transactions, the identity of informants in
criminal investigations, confidential or classified
matters which come to the knowledge of public
officials by reason of their office. (Chavez v. PCGG,
G.R. No 130716, Dec. 9, 1998)
Before a definite proposition is reached by an
agency, there are no official acts, transactions, or
decisions yet which can be accessed by the public
under the right to information. Only when there is
an official recommendation can a definite
proposition arise and, accordingly, the p blic right
to information attaches. (DFA v. BCA International,
G.R. No. 210858, June 29, 2016)
Without doubt, therefore, ensuring and promoting
the free exchange of ideas among the members of
the
committee
tasked
to
give
tariff
recommendations to the President were truly
imperative. The fact that some members of the
committee were not part of the President's Cabinet
was of no moment. The Court regarded the
meeting of the committee as a Closed-door
Cabinet meeting. (Sereno v. Committee on Trade
and Related Matters of NEDA, G.R. No. 175210,
Feb. 1, 2016)
The chemical composition of special lubricants is a
trade secret. The ingredients constitute the very
fabric of the compan
business. To compel its
disclosure is to cripple their business and to place
it at an undue disadvantage. Trade secrets should
receive greater protection from discovery because
they deserve economic value from being generally
unknown and not readily ascertainable by the
public. (Air Philippines v. Pennswell, Inc, G.R. No.
172835, Dec. 13, 2007)
Diplomatic Negotiations
It is clear that while the final text of the JPEPA may
not be kept perpetually confidential since there
should be ample opportunity for discussion before
a treaty is appro ed the offers exchanged by the
parties during the negotiations continue to be
privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese
representatives submitted their offers with the
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understanding that hi oric confiden iali
would
govern the same. Disclosing these offers could
impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in
future negotiations. (Akbayan v. Aquino, G.R. No.
170516, July 16, 2008)
Negotiations for Treaties and Executive
Agreements
Information regarding negotiations for treaties and
executive agreements prior to conclusion of the
agreement is privileged information. (Senate v.
Ermita, G.R. No. 169777, April 20, 2006)
Access to Court Records
The right of the public to be informed of the
proceedings in court is not founded in the desire or
necessity of people to know about the doing of
others, but in the necessity of knowing whether its
servant, the judge, is properly performing his duty.
Unlike court orders and decisions, however,
pleadings and other documents filed by parties to
a case need not be matters of public concern or
interest. For they are filed for the purpose of
establishing the basis upon which the court may
issue an order or a judgment affecting their rights
and interests.
In fine, access to court records may be permitted
at the discretion and subject to the supervisory and
protective powers of the court, after considering the
actual use or purpose for which the request for
access is based and the obvious prejudice to any
of the parties. (Hilado v. Judge Reyes, G.R. No.
163155, July 21, 2006)
Court deliberations are traditionally recognized as
privileged communications (deliberative process
privilege). This privilege may be invoked by judges
and also by court officials and employees who are
privy to these deliberations. It is understood that
the rule extends to documents and other
communications which are part of or are related to
the deliberative process. However, to invoke the
privilege, there must be a showing that the
document is both predecisional and deliberative.
Court records which can be shown to possess both
these qualities cannot be the subject of subpoena.
(In Re: Production of Court Records and
Documents and the Attendance of Court officials
POLITICAL LAW
and employees as witnesses under the subpoenas
of Feb 10,2012 and the various letters for the
Impeachment Prosecution Panel dated Jan 19 and
25, 2012, Feb. 14, 2012)
Deliberative Process Privilege
U.S. courts have established two fundamental
requirements, both of which must be met, for the
deliberative process privilege to be invoked:
1. Predecisional The communication must be
predecisional, i.e., antecedent to the adoption of
an agency policy; and
2. Deliberative
The communication must be
deliberative, i.e., a direct part of the deliberative
process in that it makes recommendations or
expresses opinions on legal or policy matters.
The deliberative process privilege exempts
materials that are 'predecisional' and 'deliberative,'
but requires disclosure of policy statements and
final opinions 'that have the force of law or explain
actions that an agency has already taken.
As a qualified privilege, the burden falls upon the
government agency asserting the deliberative
process privilege to prove that the information in
question
satisfies
both
requirements
predecisional and deliberative. The agency bears
the burden of establishing the character of the
decision, the deliberative process involved, and the
role played by the documents in the course of that
process. It may be overcome upon a showing that
the discoverant's interests in disclosure of the
materials outweigh the government's interests in
their confidentiality. The determination of need
must be made flexibly on a case-by-case, ad hoc
basis, and the factors relevant to this balancing
include: the relevance of the evidence, whether
there is reason to believe the documents may shed
light on government misconduct, whether the
information sought is available from other sources
and can be obtained without compromising the
government's deliberative processes, and the
importance of the material to the discoverant's
case. (DFA v. BCA International, G.R. No. 210858,
June 29, 2016)
Presidential Communications Privilege
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Applies to decision-making of the President; rooted
in the constitutional principle of separation of power
and the President's unique constitutional role;
applies to documents in their entirety, and covers
final and post-decisional materials as well as predeliberative ones; meant to encompass only those
functions that form the core of presidential
authority.
Requisites:
1. The communications relate to a "quintessential
and non-delegable power" of the President;
2. The communications are "received" by a close
advisor of the President; and
3. There is no adequate showing of a compelling
need that would justify the limitation of the
privilege and of the unavailability of the
information elsewhere by an appropriate
investigating authority. (Neri v. Senate
Committee, G.R. No. 180643, March 25, 2008)
Publication of Laws and Regulations
The very first clause of Section I of Commonwealth
Act 638 reads: "There shall be published in the
Official Gazette..." The word "shall" used therein
imposes upon respondent officials an imperative
duty. That duty must be enforced if the
Constitutional right of the people to be informed on
matters of public concern is to be given substance
and reality. The law itself makes a list of what
should be published in the Official Gazette. It is
needless to add that the publication of presidential
issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is
a rule of law that before a person may be bound by
law, he must first be officially and specifically
informed of its contents. Publication is necessary
to apprise the public of the contents of [penal]
regulations and make the said penalties binding on
the persons affected thereby. (Tanada v. Tuvera,
G.R. No. L-63915, April 24, 1985).
Other Constitutional Provisions Related to the
Right to Information
Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of
full public disclosure of all its transactions involving
public interest. (PHIL. CONST., art. II, § 28)
G. FREEDOM OF RELIGION
POLITICAL LAW
No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or
political rights. (PHIL. CONST., art. III, § 5)
The constitutional assurance of religious freedom
provides two guarantees:
1. The Establishment Clause
2. The Free Exercise Clause (Imbong v. Ochoa,
G.R. No. 204819, April 8, 2014)
1. BASIC PRINCIPLES
a. Purpose
The constitutional provision not only prohibits
legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed
or the practice of any form of worship, but also
assures the free exercise of one chosen form of
religion within limits of utmost amplitude.
It has been said that the religion clauses of the
Constitution are all designed to protect the
broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others
and with the common good.
Any legislation whose effect or purpose is to
impede the observance of one or all religions, or to
discriminate invidiously between the religions, is
invalid, even though the burden may be
characterized as being only indirect. But if the state
regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to
advance the a e secular goals, the statute is
valid despite its indirect burden on religious
observance, unless the state can accomplish its
purpose without imposing such burden. (Estrada v.
Escritor, A.M. NO. P-02-1651, June 22, 2006)
b. Concept of Religion
In Philippine jurisprudence, religion, for purposes
of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case
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of Aglipay v. Ruiz involving the Establishment
Clause, defined religion as a profession of faith to
an active power that binds and elevates man to his
Creator.
Twenty years later, the Court cited the Aglipay
definition in American Bible Society v. City of
Manila, a case involving the Free Exercise clause.
The latter also cited the American case of Davis v.
Beason in defining religion, viz: it has reference to
one views of his relations to His Creator and to
the obligations they impose of reverence to His
being and character and obedience to His Will.
The Davis definition, however, has been expanded
in U.S. jurisprudence to include non-theistic beliefs.
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
2006)
Accorded Preferred Status
Freedom of religion is accorded preferred status by
the framers of our fundamental law. And the
Supreme Court has consistently affirmed this
preferred status, well aware that it is designed to
protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty
of others and with the common good. (Re: Letter of
Tony Valenciano, A.M. No. 10-4-19-SC, March 7,
2017)
POLITICAL LAW
Verily, the principle of separation of Church and
State is based on mutual respect. Generally, the
State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and
discriminate against another. On the other hand,
the church cannot impose its beliefs and
convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its
beliefs, even if it sincerely believes that they are
good for the country. (Imbong v. Ochoa, G.R. No.
204819, April 8, 2014)
Definition of Church
The Constitution utilizes the term "church" in its
generic sense, which refers to a temple, a mosque,
an iglesia, or any other house of God which
metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious
congregations collectively. (Imbong v. Ochoa, G.R.
No. 204819, April 8, 2014)
Rationale
Our history, not to speak of the history of mankind,
has taught us that the union of church and state is
prejudicial to both, for occasions might arise when
the state will use the church, and the church the
state, as a weapon in the furtherance of their
respective ends and aims. (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
Religious freedom, although not unlimited, is a
fundamental personal right and liberty and has a
preferred position in the hierarchy of values.
Contractual rights, therefore, must yield to freedom
of religion. It is only where unavoidably necessary
to prevent an immediate and grave danger to the
security and welfare of the community that
infringement of religious freedom may be justified,
and only to the smallest extent necessary. (Estrada
v. Escritor, A.M. NO. P-02-1651, June 22, 2006)
The rationale of the rule is summed up in the
familiar saying, "Strong fences make good
neighbors." The idea is to delineate the boundaries
between the two institutions and, thus, avoid
encroachments by one against the other because
of a misunderstanding of the limits of their
respective exclusive jurisdictions. The demarcation
line calls on the entities to render therefore unto
Caesar the things that are Caesar's and unto God
the things that are God's." (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
2. PRINCIPLE OF SEPARATION OF CHURCH
AND STATE
3. NON-ESTABLISHMENT CLAUSE
The separation of Church and State shall be
inviolable. (PHIL. CONST., art. II, § 6)
Basis
Concept
The establishment clause principally prohibits the
State from sponsoring any religion or favoring any
religion as against other religions. It mandates a
strict neutrality in affairs among religious groups.
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Essentially, it prohibits the establishment of a state
religion and the use of public resources for the
support or prohibition of a religion. (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014)
Basis
In Philippine jurisdiction, there is substantial
agreement on the values sought to be protected by
the Establishment Clause, namely, voluntarism
and insulation of the political process from interfaith
dissension:
1. Voluntarism
Voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the
inviolability of the human conscience which is also
protected by the free exercise clause. From the
religious perspective, religion requires voluntarism
because compulsory faith lacks religious efficacy.
Compelled religion is a contradiction in terms.
As a social value, it means that the growth of a
religious sect as a social force must come from the
voluntary support of its members because of the
belief that both spiritual and secular society will
benefit if religions are allowed to compete on their
own intrinsic merit without benefit of official
patronage.
2. Insulation of the Political Process From
Interfaith Dissension
Such voluntarism cannot be achieved unless the
political process is insulated from religion and
unless religion is insulated from politics. Nonestablishment thus calls for government neutrality
in religious matters to uphold voluntarism and avoid
breeding interfaith dissension. (Estrada v. Escritor,
A.M. NO. P-02-1651, June 22, 2006)
Prohibited Acts of the State Under the
Establishment Clause
The non-establishment clause reinforces the wall
of separation between Church and State. It simply
means that:
1. The State cannot set up a Church.
2. The State cannot pass laws which aid one
religion, aid all religion, or prefer one religion
over another.
3. The State cannot force nor influence a person
to go to or remain away from church against his
will or force him to profess a belief or disbelief
in any religion.
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4. The State cannot punish a person for
entertaining or professing religious beliefs or
disbeliefs,
for
church
attendance
or
nonattendance.
5. No tax in any amount, large or small, can be
levied to support any religious activity or
institution whatever they may be called or
whatever form they may adopt or teach or
practice religion.
6. The State cannot openly or secretly participate
in the affairs of any religious organization or
group and vice versa.
Its minimal sense is that the State cannot establish
or sponsor an official religion. (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
In effect, what non-establishment calls for is
government neutrality in religious matters. Such
government neutrality may be summarized in four
general propositions:
1. Government must not prefer one religion over
another or religion over irreligion because such
preference would violate voluntarism and breed
dissension.
2. Government funds must not be applied to
religious purposes because this too would
violate voluntarism and breed interfaith
dissension.
3. Government action must not aid religion
because this too can violate voluntarism and
breed interfaith dissension.
4. Government action must not result in excessive
entanglement with religion because this too can
violate voluntarism and breed interfaith
dissension. (Re: Letter of Tony Valenciano;
citing Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Limiting the prohibition for religious use of the
structure to 20 years obviously opens the facility to
use for any purpose at the end of that period. It
cannot be assumed that a substantial structure has
no value after that period and hence the
unrestricted use of a valuable property is in effect
a contribution of some value to a religious body.
Congress did not base the 20-year provision on
any contrary conclusion. If, at the end of 20 years,
the building is, for example, converted into a chapel
or otherwise used to promote religious interests,
the original federal grant will in part have the effect
of advancing religion. To this extent the Act
therefore trespasses on the Religion Clauses. The
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restrictive obligations of a recipient institution under
§751 (a) (2) cannot, compatibly with the Religion
Clauses, expire while the building has substantial
value. The limitation of federal interest in the
facilities to a period of 20 years violates the
Religion Clauses of the First Amendment, as the
unrestricted use of valuable property after 20 years
is in effect a contribution to a religious body. (Tilton
v. Richardson, 403 U.S. 672, June 28, 1971)
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to
their children or wards in public elementary and
high schools within the regular class hours by
instructors designated or approved by the religious
authorities of the religion to which the children or
wards belong, without additional cost to the
Government. (PHIL. CONST., art. XIV, § 3[3])
When viewed in its overall context, the creche
display violates the Establishment Clause. The
creche angel's words endorse a patently Christian
message: Glory to God for the birth of Jesus Christ.
Moreover, nothing in the creche's setting detracts
from that message. Although the government may
acknowledge
Christmas
as
a
cultural
phenomenon, it may not observe it as a Christian
holy day by suggesting that people praise God for
the birth of Jesus. (County of Allegheny v. ACLU,
492 U.S. 573, July 2, 1989)
Ownership
of
Sectarian
Educational
Institutions
Educational institutions, other than those
established by religious groups and mission
boards, shall be owned solely by citizens of the
Philippines or corporations or associations at least
sixty per centum of the capital of which is owned by
such citizens. The Congress may, however,
require increased Filipino equity participation in all
educational institutions. (PHIL. CONST., art. XIV,
§4[2])
Permitted Acts of the
Establishment Clause
2. Jurisprudence
State
Under
the
1. Constitutionally Created
Tax Exemptions
Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, nonprofit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation. (PHIL.
CONST., art. VI, § 28[3])
Limited Public Aid to Chaplaincies
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or
other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution,
or government
orphanage or
leprosarium. (PHIL. CONST., art. VI, § 29[2])
Religious Instruction in Public Elementary and
High Schools
The holding of Catholic masses at the basement of
the QC Hall of Justice is not a case of
establishment, but merely accommodation.
1. There is no law, ordinance or circular issued by
any duly constitutive authorities expressly
mandating that judiciary employees attend the
Catholic masses at the basement.
2. When judiciary employees attend the masses to
profess their faith, it is at their own initiative,
without any coercion from the judges or
administrative officers.
3. No government funds are being spent because
the lightings and air conditioning continue to be
operational even if there are no religious rituals
there.
4. The basement has neither been converted into
a Roman Catholic chapel nor has it been
permanently appropriated for the exclusive use
of its faithful.
5. The allowance of the masses has not
prejudiced other religions
6. In no case shall a particular part of a public
building be a permanent place for worship for
the benefit of any and all religious groups. There
shall also be no permanent display of religious
icons in all halls of justice in the country. In case
of religious rituals, religious icons and images
may be displayed but their presentation is
limited only during the celebration of such
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activities. After any religious affair, the icons
and images shall be hidden or concealed from
public view. (Re: Letter of Tony Valenciano,
A.M. No. 10-4-19-SC, March 7, 2017)
Aglipay of the Philippine Independent Church
sought to prohibit the issuance and sale of such
stamps commemorating a Catholic Eucharistic
Congress for violating the command that no public
money should be appropriated to support any
system of religion. The SC held that the statute
contemplates no religious purpose. The stamps
were not sold for the benefit of the Catholic Church,
but merely to advertise the Philippines as the seat
of the Eucharistic Congress. Thus, the resulting
propaganda possibly in favor of the Catholic
Church is merely incidental and should not frustrate
the main purpose of the law, which is to generate
profit and boost tourism. (Aglipay v. Ruiz, G.R. No.
L-45459, March 13, 1937)
Government programs that neutrally provide
benefits to a broad class of citizens and without
reference to religion do not violate the nonestablishment clause, as when government
furnishes a disabled child enrolled in a sectarian
school with a sign language interpreter to facilitate
his education because the service is part of a
general government program that neutrally
distributes benefits to any child qualifying as
disabled under the IDEA, without regard to the
sectarian or non-sectarian or public or non-public
nature of the school the child attends. Neither does
the IDEA create a financial incentive for parents to
choose a sectarian school. Most cases, where
governmental aids were struck down, challenged
programs which gave direct grants of government
aid, relieving sectarian schools of costs they
otherwise would have borne. In this case, the child
is the primary beneficiary and whatever benefits
that may accrue to the school is merely incidental.
(Zobrest, et al. v. Catalina Foothills School District,
509 U.S. 1, June 18, 1993)
If there is nothing unconstitutional or illegal in
holding a fiesta and having a patron saint for the
barrio, then any activity intended to facilitate the
worship of the patron saint (such as the acquisition
and display of his image) cannot be branded as
illegal. The barrio fiesta is a socio-religious affair.
Its celebration is an ingrained tradition in rural
POLITICAL LAW
communities. The fiesta relieves the monotony and
drudgery of the lives of the masses. Not every
governmental activity which involves the
expenditure of public funds and which has some
religious tint is violative of the constitutional
provisions regarding separation of church and
state, freedom of worship and banning the use of
public money or property. (Garces v. Estenzo, G.R.
No. L-53487, May 25, 1981)
The express purpose of the statute was the
furtherance of educational opportunities for the
young, and the law merely makes available to all
children the benefits of a general program to lend
school books free of charge, and the financial
benefit is to parents and children, not to schools.
Parochial schools, in addition to their sectarian
function, perform the task of secular education,
and, on the basis of this meager record, the Court
cannot agree with appellants that all teaching in a
sectarian school is religious or that the intertwining
of secular and religious training is such that secular
textbooks furnished to students are in fact
instrumental in teaching religion. (Board of
Education v. Allen, 392 U.S. 236, June 10, 1968)
The menorah display does not have the prohibited
effect of endorsing religion, given its "particular
physical setting." Its combined display with a
Christmas tree and a sign saluting liberty does not
impermissibly endorse both the Christian and
Jewish faiths, but simply recognizes that both
Christmas and Chanukah are part of the same
winter-holiday season, which has attained a
secular status in our society. The widely accepted
view of the Christmas tree as the preeminent
secular symbol of the Christmas season
emphasizes this point. The tree, moreover, by
virtue of its size and central position in the display,
is clearly the predominant element, and the
placement of the menorah beside it is readily
understood as simply a recognition that Christmas
is not the only traditional way of celebrating the
season. The absence of a more secular alternative
to the menorah negates the inference of
endorsement. Similarly, the presence of the
mayor's sign confirms that in the particular context
the government's association with a religious
symbol does not represent sponsorship of religious
beliefs but simply a recognition of cultural diversity.
Given all these considerations, it is not sufficiently
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likely that a reasonable observer would view the
combined display as an endorsement or
disapproval of his individual religious choices.
(County of Allegheny v. ACLU, 492 U.S. 573, July
2, 1989)
The RH Law does not violate the Establishment
Clause. The petitioners are misguided in their
supposition that the State cannot enhance its
population control program through the RH Law
simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the
State is not precluded to pursue its legitimate
secular objectives without being dictated upon by
the policies of any one religion. (Imbong v. Ochoa,
G.R. No. 204819, April 8, 2014)
TESTS
FOR
STATUTES
CONSTITUTIONALITY
OF
Abington Test
To withstand the strictures of the Establishment
Clause: (SAIR)
1. There must be a Secular legislative purpose;
and
2. A primary effect that neither Advances nor
Inhibits Religion.
If the purpose and the primary effect of the
enactment is the advancement or inhibition of
religion, then the enactment exceeds the scope of
legislative power as circumscribed by the
Constitution. (School Dist. of Abington Tp. v.
Schempp, 374 U.S. 203, June 17, 1963)
Lemon Test
The Lemon test requires a challenged policy to
meet the following criteria to pass scrutiny under
the Establishment Clause. The test for determining
whether a law meets the requirements of the
Establishment Clause is that: (SAIREE)
1. The statute must have a Secular legislative
purpose;
2. Its primary or principal effect must be one that
neither Advances nor Inhibits Religion; and
3. The statute must not foster an Excessive
Entanglement with religion. (Lemon v.
Kurtzman, 403 U.S. 602, June 28, 1971)
Agostini Test for Excessive Entanglement
To determine/assess excessive entanglement, the
following must be taken into consideration:
1. The character and purposes of the benefitted
institutions;
2. The nature of the aid that the State provides;
and
3. The resulting relationship between the
government and religion, e. g., whether it was
neutral and nonideological. (Agostini v. Felton,
521 U.S. 203, June 23, 1997)
Mitchell Test for Determining a S a
Effect
Three primary criteria for determining whether a
statute/government aid has the effect of advancing
religion:
1. If it results in governmental indoctrination;
2. If it defines its recipients by reference to religion;
or
3. If it creates an excessive entanglement.
The US Supreme Court further held that under the
neutrality principle, aid that is offered to a broad
range of groups or persons without regard to
religion are valid. One way to assure the said
neutrality is through the principle of private choice,
wherein the government is not considered to have
provided any support of religion when aid to
schools, even if direct, is a) neutrally available and
b) before reaching or benefitting any religious
school, first passes through the hands of numerous
private citizens who are free to direct the aid
elsewhere. (Mitchell v. Helms, 530 US 793, June
28 2000)
TWO MAIN STANDARDS USED BY THE COURT
IN DECIDING RELIGION CLAUSE CASES
1. Separation
Protects the principle of church-state separation
with a rigid reading of the principle.
a. Strict Separationist
The Strict Separationist believes that the
Establishment Clause was meant to protect the
state from the church, and the a e hostility
towards religion allows no interaction between
the two.
An absolute barrier to formal interdependence
of religion and state needs to be erected.
Religious institutions could not receive aid,
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whether direct or indirect, from the state. Nor
could the state adjust its secular programs to
alleviate burdens the programs placed on
believers.
Only the complete separation of religion from
politics would eliminate the formal influence of
religious institutions and provide for a free
choice among political views, thus a strict wall
of separation is necessary.
b. Strict Neutrality or Separationist View
Unlike the strict separationists, the strict
neutrality view believes that the wall of
separation does not require the state to be their
adversary. Rather, the state must be neutral in
its relations with groups of religious believers
and non-believers. State power is no more to be
used so as to handicap religions than it is to
favor them.
The strict neutrality approach is not hostile to
religion, but it is strict in holding that religion may
not be used as a basis for classification for
purposes of governmental action, whether the
action confers rights or privileges or imposes
duties or obligations. Only secular criteria may
be the basis of government action. It does not
permit, much less require, accommodation of
secular programs to religious belief.
2. Benevolent Neutrality or Accommodation
Benevolent neutrality protects religious realities,
tradition and established practice with a flexible
reading of the principle.
Accommodations are government policies that
take religion specifically into account not to
promote the go ernmen favored form of religion,
but to allow individuals and groups to exercise their
religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the
exercise of, a per on or in i ion religion.
The government may take religion into account to
exempt, when possible, from generally applicable
governmental regulation individuals whose
religious beliefs and practices would otherwise
thereby be infringed, or to create without state
involvement an atmosphere in which voluntary
religious exercise may flourish. Accommodation is
forbearance and not alliance. it does not reflect
agreement with the minority, but respect for the
conflict between the temporal and spiritual
authority in which the minority finds itself.
Benevolent
neutrality
gives
room
for
accommodation of religious exercises as required
by the Free Exercise Clause. It allows breaches in
the wall of separation to uphold religious liberty,
which after all is the integral purpose of the religion
clauses.
Although the Philippine constitutional history and
interpretation mandate benevolent neutrality,
benevolent neutrality does not mean that the Court
ought to grant exemptions every time a free
exercise claim comes before it. But it does mean
that the Court will not look with hostility or act
indifferently towards religious beliefs and practices
and that it will strive to accommodate them when it
can within flexible constitutional limits; it does mean
that the Court will not simply dismiss a claim under
the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this
precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence
of legislation granting exemption from a law of
general applicability, the Court can carve out an
exception when the religion clauses justify it.
The Court thus lays down the doctrine that in
Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits
as discussed above, but more importantly,
because
our
constitutional
history
and
interpretation indubitably show that benevolent
neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases.
The ideal towards which this approach is directed
is the protection of religious liberty not only for a
minority, however small not only for a majority,
however large but for each of us to the greatest
extent possible within flexible constitutional limits.
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
2006)
4. FREE EXERCISE CLAUSE
Concept
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The right to religious profession and worship has a
two-fold aspect: freedom to believe and freedom to
act on one belief. The first is absolute as long as
the belief is confined within the realm of thought.
The second is subject to regulation where the belief
is translated into external acts that affect the public
welfare. (Re: Letter of Tony Valenciano, A.M. No.
10-4-19-SC, March 7, 2017)
Freedom to believe
Absolute as long as the belief is confined within the
realm of thought. The individual is free to believe
(or disbelieve) as he pleases concerning the
hereafter. He may not be required to prove his
beliefs. He may not be punished for his inability to
do so. Religion, after all, is a matter of faith. "Men
may believe what they cannot prove." Everyone
has a right to his beliefs and he may not be called
to account because he cannot prove what he
believes. (Re: Letter of Tony Valenciano, A.M. No.
10-4-19-SC, March 7, 2017)
Freedom to act on one's beliefs
But where the individual externalizes his beliefs in
acts or omissions that affect the public, his freedom
to do so becomes subject to the authority of the
State. As great as this liberty may be, religious
freedom, like all other rights guaranteed in the
Constitution, can be enjoyed only with a proper
regard for the rights of others. It is error to think that
the mere invocation of religious freedom will
stalemate the State and render it impotent in
protecting the general welfare. The inherent police
power can be exercised to prevent religious
practices inimical to society. (Re: Letter of Tony
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
Purpose
The Free Exercise Clause accords absolute
protection to individual religious convictions and
beliefs and proscribes government from
questioning a per on
beliefs or imposing
penalties or disabilities based solely on those
beliefs. The Clause extends protection to both
beliefs and unbelief. (Estrada v. Escritor, A.M. NO.
P-02-1651, June 22, 2006)
However, a law advancing a legitimate
governmental interest is not necessarily invalid as
one interfering with the free exercise of religion
merely because it also has an incidental and
POLITICAL LAW
detrimental effect on the same. (Centeno v.
Villalon-Pornillos, G.R. No. 113092, Sept. 1, 1994)
Benevolent neutrality and claims of religious
freedom cannot shield respondent judge from
liability for misconduct under our laws. She
knowingly entered into a civil marriage with her first
husband. She knew its effects under our laws. She
had sexual relations with her second husband
while her first marriage was subsisting. She cannot
claim that engaging in sexual relations with another
person during the subsistence of a marriage is an
exercise of her religious expression. Legal
implications and obligations attach to any person
who chooses to enter civil marriages. This is
regardless of how civil marriages are treated in that
per on religion. Also, as a lawyer and a judge, is
expected to abide by the law. Her conduct affects
the credibility of the courts in dispensing justice.
Thus, in finding respondent administratively liable
for violation of her marriage obligations under our
laws, this court protects the credibility of the
judiciary in administering justice. (Perfecto v.
Esidera, A.M. NO. RTJ-15-2417, July 22, 2015)
Basis
The basis of the free exercise clause is the respect
for the inviolability of the human conscience. Under
this part of religious freedom guarantee, the State
is prohibited from unduly interfering with the
outside manifestations of one's belief and faith.
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)
Permitted Acts of the State Under the Free
Exercise Clause
The free exercise clause does not relieve one of
the obligations to comply with a law that incidentally
forbids (or requires) the performance of an act that
his religious belief requires (or forbids):
1. If the law is not specifically directed to religious
practice.
2. If the law is constitutional as applied to those
who engage in the specified act for nonreligious purposes.
If the law is not specifically directed to religious
practice and is applied equally to all, regardless of
whether they do the act for religious or nonreligious purposes, it does not offend the free
exercise clause.
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The balancing of interests test, whereby
government actions that substantially burden a
religious practice must be justified by a compelling
governmental interest, is inapplicable to an acrossthe-board criminal prohibition of a particular form of
conduct. Otherwise, this would create an
extraordinary right to ignore general laws in the
name of religion for as long as no compelling State
interest intervenes. (Employment Division v. Smith,
494 U.S. 872, April 17, 1990)
A law that burdens religious practice need not be
justified by a compelling governmental interest, if it
is a) neutral and b) of general applicability.
However, when the law is not neutral or not of
general application, the same must undergo the
most rigorous of scrutiny:
1. It must be justified by a compelling
governmental interest.
2. It must be narrowly tailored to advance the said
interest. (Church of the Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U.S. 520, June 11 1993)
The Supreme Court upheld the exemption of
members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their
employer and a union because it would violate the
teaching of their church not to join any group.
(Victoriano v. Elizalde Rope Workers’ Union, G.R.
No. L-2524, Sept. 12, 1974)
An exemption may be accorded to the Jeho ah
Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs,
however bi arre those beliefs may seem to others.
Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt
such patriotic exercises. (Ebralinag v. Division
Superintendent, G.R. No. 95770, March 1, 1993)
City Ordinance No. 3000, as amended, which
requires obtaining of a Mayor's permit before any
person can engage in any of the businesses,
trades or occupations enumerated therein, does
not impose any charge upon the enjoyment of a
right granted by the Constitution, nor tax the
exercise of religious practices. Hence, it cannot be
considered unconstitutional, even if applied to
plaintiff Society. (American Bible Society v. City of
Manila, G.R. No. L-9637, April 30, 1957)
POLITICAL LAW
The First Amendment does not prohibit the
challenged regulation from being applied to
petitioner even though its effect is to restrict the
wearing of the headgear (yarmulke) required by his
religious beliefs. That Amendment does not require
the military to accommodate such practices as
wearing a yarmulke in the face of its view that they
would detract from the uniformity sought by dress
regulations. Here, the Air Force has drawn the line
essentially between religious apparel that is visible
and that which is not, and the challenged regulation
reasonably and even-handedly regulates dress in
the interest of the military's perceived need for
uniformity. (Goldman v. Weinberger, 475 U.S. 503,
March 25, 1986)
Not all acts done by those who are priests, bishops,
ustadz, imams, or any other religious make such
act immune from any secular regulation. The
religious also have a secular existence. They exist
within a society that is regulated by law. The
tarpaulin, on its face, does not convey any religious
doctrine of the Catholic church. That the position of
the Catholic church appears to coincide with the
message of the tarpaulin regarding the RH Law
does not, by itself, bring the expression within the
ambit of religious speech. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
Prohibited Acts of the State Under the Free
Exercise Clause
A state statute which forbids any person to solicit
money or valuables for any alleged religious cause,
unless a certificate therefor shall first have been
procured from a designated official, who is required
to determine whether such cause is a religious one
and who may withhold his approval if he
determines that it is not, is a previous restraint upon
the free exercise of religion and a deprivation of
liberty without due process of law in violation of the
Fourteenth Amendment. (Cantwell v. Connecticut,
310 U.S. 296, May 19, 1940)
The religious views espoused by respondents
might seem incredible, if not preposterous, to most
people. But if those doctrines are subject to trial
before a jury charged with finding their truth or
falsity, then the same can be done with the
religious beliefs of any sect. When the triers of fact
undertake that task, they enter a forbidden domain.
The First Amendment does not select any one
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group or any one type of religion for preferred
treatment. It puts them all in that position. Thus, the
District Court ruled properly when it withheld from
the jury all questions concerning the truth or falsity
of the religious beliefs or doctrines of respondents.
This course was required by the First Amendment's
guarantee of religious freedom. (United States v.
Ballard, 322 U.S. 78, April 24, 1944)
The provisions of City Ordinance No. 2529, as
amended, which requires the payment of license
fee for conducting the business of general
merchandise, cannot be applied to plaintiff society,
for in doing so, it would impair its free exercise and
enjoyment of its religious profession and worship,
as well as its rights of dissemination of religious
beliefs. (American Bible Society v. City of Manila,
G.R. No. L-9637, April 30, 1957)
The State's claim that it is empowered, as parens
patriae, to extend the benefit of secondary
education to children regardless of the wishes of
their parents cannot be sustained against a free
exercise, for the Amish have introduced convincing
evidence that accommodating their religious
objections by forgoing one or two additional years
of compulsory education will not impair the physical
or mental health of the child, or result in an inability
to be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way
materially detract from the welfare of society.
(Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972)
The ordinances' texts and operation demonstrate
that they are not neutral, but have as their object
the suppression of Santeria's central element,
animal sacrifice. That this religious exercise has
been targeted is evidenced by Resolution 87-66's
statements of "concern" and "commitment," and by
the use of the words "sacrifice" and "ritual" in
Ordinances 87-40, 87-52, and 87-71. Moreover,
the latter ordinances' various prohibitions,
definitions, and exemptions demonstrate that they
were "gerrymandered" with care to proscribe
religious killings of animals by Santeria church
members but to exclude almost all other animal
killings. Although Ordinance 87-72 appears to
apply to substantial nonreligious conduct and not
to be overbroad, it must also be invalidated
because it functions in tandem with the other
ordinances to suppress Santeria religious worship.
POLITICAL LAW
(Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, June 11, 1993)
TESTS USED IN ASCERTAINING THE LIMITS
OF THE EXERCISE OF RELIGIOUS FREEDOM
1. Clear and Present Danger Test
Appropriate for religious speech cases. (Estrada v.
Escritor, A.M. NO. P-02-1651, June 22, 2006)
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship
carries with it the right to disseminate religious
information. Any restraints of such right can only be
justified like other restraints of freedom of
expression on the grounds that there is a clear and
present danger of any substantive evil which the
State has the right to prevent. (American Bible
Society v. City of Manila, G.R. No. L-9637, April 30,
1957)
2. Benevolent Neutrality
Compelling State
Interest Test
The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human
conduct has different effects on the
ae
interests: some effects may be immediate and
short-term while others delayed and far-reaching.
Compelling State Interest Test From a
Benevolent Neutrality Stance
A three-step process is followed in weighing the
a e interest and religious freedom when these
collide: (BSCL)
1. Has the statute or government action created a
Burden on the free exercise of religion? The
courts often look into the Sincerity of the
religious belief, but without inquiring into the
truth of the belief because the Free Exercise
Clause prohibits inquiring about its truth.
2. Is there a sufficiently Compelling state interest
to justify this infringement of religious liberty?
3. Has the state in achieving its legitimate
purposes used the Least intrusive means
possible so that the free exercise is not infringed
any more than necessary to achieve the
legitimate goal of the state?
In the above circumstances, the State undertakes
the burden of presenting evidence of its compelling
interest to override re ponden
religious belief.
Further, the State has to show that the means it has
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adopted in pursuing the said interest is the least
restrictive to means to a per on exercise of
religious freedom. (Estrada v. Escritor, A.M. NO. P02-1651, June 22, 2006)
3. Conscientious Objector Test
A person who for moral or religious reasons is
opposed to participating in any war, and who may
be excused from military conscription but remains
subject to service in civil work for the na ion
health, safety or interest. (Black Law Dictionary,
9th ed.)
RH Law
Sections 7, 23 and 24 commonly mandate that a
hospital or a medical practitioner to immediately
refer a person seeking health care and services
under the law to another accessible healthcare
provider despite their conscientious objections
based on religious or ethical beliefs.
In this case, the conscientious objector's claim to
religious freedom would warrant an exemption
from obligations under the RH Law, unless the
government succeeds in demonstrating a more
compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the
plea of conscientious objectors for exemption from
the RH Law deserves no less than strict scrutiny.
The obligation to refer imposed by the RH Law
violates the religious belief and conviction of a
conscientious objector. Once the medical
practitioner, against his will, refers a patient
seeking information on modem reproductive health
products, services, procedures and methods, his
conscience is immediately burdened as he has
been compelled to perform an act against his
beliefs.
In case of conflict between the religious beliefs and
moral convictions of individuals, on one hand, and
the interest of the State, on the other, to provide
access and information on reproductive health
products, services, procedures and methods to
enable the people to determine the timing, number
and spacing of the birth of their children, the Court
is of the strong view that the religious freedom of
health providers, whether public or private, should
be accorded primacy.
POLITICAL LAW
Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the
RH Law. If he would be compelled to act contrary
to his religious belief and conviction, it would be
violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise
of religion. (Imbong v. Ochoa, G.R. No. 204819,
April 8, 2014)
Conscientious Objection to Military Service
Escritor was the court interpreter at the RTC of Las
Pinas. A complaint for disgraceful and immoral
conduct under the Revised Administrative Code
was filed against Escritor because of living with a
man not her husband. As a defense, she asserted
that this conjugal arrangement was in conformity
with her religious congregation which was the
Jeho ah
witnesses. In discussing the Free
Exercise Clause, the court tackled United States v.
Seeger, which involved four men who claimed
"conscientious objector" status in refusing to serve
in the Vietnam War. One of the four, Seeger, was
not a member of any organized religion opposed to
war, but when specifically asked about his belief in
a Supreme Being, Seeger stated that "you could
call (it) a belief in a Supreme Being or God. These
just do not happen to be the words that I use."
Forest Peter, another one of the four claimed that
after considerable meditation and reflection "on
values derived from the Western religious and
philosophical tradition," he determined that it would
be "a violation of his moral code to take human life
and that he considered this belief superior to any
obligation to the state." The Court avoided a
constitutional question by broadly interpreting not
the Free Exercise Clause, but the statutory
definition of religion in the Universal Military
Training and Service Act of 1940 which exempt
from combat anyone "who, by reason of religious
training and belief, is conscientiously opposed to
participation in war in any form." (Estrada v.
Escritor A.M. No. P-02-1651, June 22, 2006. See
also Gerona v. Secretary of Education, G.R. No. L13954, Aug. 12, 1959)
As seen in U.S. v. Seeger, supra, it may also be
used as a ground for exemption from compulsory
military service. It also includes those with a
sincere and meaningful belief which occupies in the
life of its possessor a place parallel to that filled by
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the God of those admittedly qualifying for the
exemption. (380 U.S. 163, March 8, 1965)
H. LIBERTY OF ABODE AND FREEDOM
OF MOVEMENT
The liberty of abode and of changing the same
within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
in the interest of national security, public safety or
public health, as may be provided by law. (PHIL.
CONST., art. III, § 6)
1. SCOPE AND LIMITATIONS
Rights Guaranteed
1. Freedom to choose and change one place of
abode
2. Freedom to travel within the country and outside
Liberty of Abode
But one can search in vain for any law, order, or
regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of
that city to force citizens of the Philippine
Islands — and these women despite their being in
a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the
same constitutional guaranties as are other
citizens — to change their domicile from Manila to
another locality. (Villavicencio v. Lukban, G.R. No.
L-14639, March 25, 1919)
The order of the Court of Appeals releasing
petitioner on bail constitutes such lawful order as
contemplated by the above provision. The
condition imposed by the Court of Appeals is
simply consistent with the nature and function of a
bail bond, which is to ensure that petitioner will
make himself available at all times whenever the
Court requires his presence. Besides, a closer look
at the questioned condition will show that petitioner
is not prevented from changing abode; he is merely
required to inform the court in case he does so.
(Yap Jr. v. Court of Appeals, G.R. No. 141529,
June 6, 2001)
Right to Travel
AO1 does not infringe upon pe i ioner right to
travel but merely bars motorcycles, bicycles,
tricycles, pedicabs, and any non- motorized
vehicles as the mode of traveling along limited
access highways. The right to travel does not mean
the right to choose any vehicle in traversing a toll
way. The right to travel refers to the right to move
from one place to another. Petitioners can traverse
the toll way any time they choose using private or
public four-wheeled vehicles. Petitioners are not
denied the right to move from Point A to Point B
along the toll way. Petitioners are free to access the
toll way, much as the rest of the public can. The
mode by which petitioners wish to travel pertains to
the manner of using the toll way, a subject that can
be validly limited by regulation. (Mirasol v. DPWH,
G.R. No. 158793, June 8, 2006)
City councils are authorized to enact curfew
ordinances (as what respondents have done in this
case) and enforce the same through their local
officials. In other words, PD 603 provides sufficient
statutory basis - as required by the Constitution - to
restrict the minors' exercise of the right to travel.
Considering that the right to travel is a fundamental
right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test is the applicable
test. (SPARK v. Quezon City, G.R. No. 225442,
Aug. 8, 2017)
No Right of Return to O
Country
Essentially, the right involved is the right to return
to one's country, a totally distinct right under
international law, independent from although
related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right
to freedom of movement and abode within the
territory of a state, the right to leave a country, and
the right to enter one's country as separate and
distinct rights. The Declaration speaks of the "right
to freedom of movement and residence within the
borders of each state" separately from the "right to
leave any country, including his own, and to return
to his country." (Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989)
Limitations (PHIL. CONST., art. III, § 6)
RIGHT
CONDITIONS FOR
VALID
CURTAILMENT
LIBERTY OF ABODE
Lawful order of the
court and within the
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limits prescribed by
law.
RIGHT TO TRAVEL
May be curtailed even
by
administrative
officers in the interest
of national security,
public safety, or public
health, as may be
provided by law.
2. WATCH-LIST AND HOLD DEPARTURE
ORDERS
Article III, Section 6 of the 1987 Constitution should
by no means be construed as delimiting the
inherent power of the Courts to use all means
necessary to carry their orders into effect in
criminal cases pending before them. When by law
jurisdiction is conferred on a Court or judicial
officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed
by such Court or officer. Holding an accused in a
criminal case within the reach of the Courts by
preventing his departure from the Philippines must
be considered as a valid restriction on his right to
travel so that he may be dealt with in accordance
with law. The offended party in any criminal
proceeding is the People of the Philippines. It is to
their best interest that criminal prosecutions should
run their course and proceed to finality without
undue delay, with an accused holding himself
amenable at all times to Court Orders and
processes. (Silverio v. CA, G.R. No. 94284, April 8,
1991)
Department Circular No. 41 was bereft of legal
basis because of the absence of a law authorizing
the Secretary of Justice to issue Hold Departure
Orders (HDO), Watch List Orders (WLO), or Allow
Departure Order (ADO). The issuance of DOJ
Circular No. 41, without a law to justify its action, is
an unauthorized act of the DOJ of empowering
itself under the pretext of dire exigency or urgent
necessity (Genuino v. De Lima, G.R. No. 197930,
April 17, 2018)
I. EMINENT DOMAIN
POLITICAL LAW
Private property shall not be taken for public use
without just compensation. (PHIL. CONST., art. III, §
9)
1. CONCEPT
The State has the inherent power of eminent
domain. It means the ultimate right of the sovereign
power not only over public property but also over
the private property of all citizens within its
territorial sovereignty. Section 9 is NOT a grant of
this power to the State but rather a limitation to it.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Who May Exercise (CELPQ)
1. Congress
2. Executive, pursuant to legislation enacted by
Congress
3. Local government units, pursuant to an
ordinance enacted by their respective
legislative bodies (under LGC)
4. Public corporations, as may be delegated by
law
5. Quasi-public corporations e.g. PNR, PLDT,
Meralco.
The delegated power of eminent domain of local
government is strictly speaking not a power of
eminent but of inferior domain--a share merely in
eminent domain. Hence, it is only as broad as the
authority delegated to it. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Since, as we have held above, the powers and
functions of ISA have reverted to the Republic of
the Philippines upon the termination of the statutory
term of ISA, While the power of eminent domain is,
in principle, vested primarily in the legislative
department of the government, we believe and so
hold that no new legislative act is necessary should
the Republic decide, upon being substituted for
ISA, in fact to continue to prosecute the
expropriation proceedings. For the legislative
authority, a long time ago, enacted a continuing or
standing delegation of authority to the President of
the Philippines to exercise, or cause the exercise
of, the power of eminent domain on behalf of the
Government of the Republic of the Philippines.
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(Iron and Steel Authority v. CA, G.R. No. 102976,
Oct. 25, 1995)
REQUISITES
FOR
VALID
EXERCISE:
(TaPuCom)
1. There is a Taking of private property
2. Taking is for Public use
3. Payment of just Compensation
The power of eminent domain is available only
when the owner does not want or opposes the sale
of his property. Thus, if a valid contract exists
between the government and the owner, the
government cannot exercise the power of eminent
domain as a substitute to the enforcement of the
contract.
Where the landowner agrees voluntarily to the
taking of his property by the government for public
use, he thereby waives his right to the institution of
a formal expropriation proceeding covering such
property. Failure for a long time of the owner to
question the lack of expropriation proceedings
covering a property that the government had taken
constitutes a waiver of his right to gain back
possession. The lando ner remedy in such case
is an action for the payment of just compensation,
not ejectment. (Republic of the Philippines v. Primo
Mendoza and Maria Lucero, G.R. No. 185091,
Aug. 8, 2010)
The claim of Telephone Company A right of
eminent domain cannot be properly resolved in a
complaint for forcible entry or unlawful detainer.
Eminent domain or expropriation is the inherent
right of the state to condemn private property to
public use upon payment of just compensation.
The power is exercised by the legislature and may
be delegated to local governments, other public
entities, and public utilities. Expropriation may be
judicially claimed only by filing a complaint for
expropriation. An expropriation suit falls under the
jurisdiction of the regional trial court because it is a
case incapable of pecuniary estimation. It deals
with the go ernmen exercise of its authority and
right to take property for public use. The right of an
expropriator to file a complaint for expropriation is
not allowed in an action such as a forcible entry or
unlawful detainer suit. These actions are summary
in nature. Therefore, in this case, the Court cannot
POLITICAL LAW
award expropriation. Nevertheless, the resolution
of this case is without prejudice to the filing of a
separate case for expropriation. (PLDT v. Citi
Appliance, G.R. No. 214546, October 9, 2019)
The exercise of the right of eminent domain,
whether directly by the State or by its authorized
agents, is necessarily in derogation of private
rights. It is one of the harshest proceedings known
to the law. Consequently, when the sovereign
delegates the power to a political unit or agency, a
strict construction will be given against the agency
asserting the power. The authority to condemn is
to be strictly construed in favor of the owner and
against the condemnor. (Jesus is Lord School v.
Municipality of Pasig, G.R. No. 152230, Aug. 9,
2005)
Eminent Domain is the taking of private property for
public use, thus no expropriation proceeding can
continue if the property to be expropriated will not
be for public use. Considering that Corp A is no
longer using respondent X properties for the
purpose of building the Substation Project, it may
be allowed to discontinue with the expropriation
proceedings, subject to the approval of the court.
However, in order to determine whether the
expropriation may be dismissed, it must not fall
under the following exceptions: first, the trial co r
order already became final and executory, second,
the government already took possession of the
property; and lastly, the expropriation case already
caused prejudice to the landowner. (National
Power Corporation v. Posada, G.R. No. 191945,
March 11, 2015)
THERE IS TAKING OF PRIVATE PROPERTY
The power of eminent domain must be
distinguished from police power. When the State
exercises "police power," property is merely
"regulated." There is no transfer of ownership. By
eminent domain, property is "taken." There is
transfer of ownership. "Regulation" is not
compensable but "taking" must be compensated.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011).
In the context of the State's inherent power of
eminent domain, there is "taking" where the owner
is actually deprived or dispossessed of his
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property; where there is a practical destruction or a
material impairment of the value of his property; or
when he is deprived of the ordinary use thereof.
(PNOC v. Maglasang, G.R. No. 155407, Nov. 11,
2008)
Neither can it be said that the right of eminent
domain may be exercised by simply leasing the
premises to be expropriated. Where, as here, the
owner was compensated and not deprived of the
ordinary and beneficial use of his property by its
being diverted to public use, there is no taking
within the constitutional sense. (PNOC v.
Maglasang, G.R. No. 155407, Nov. 11, 2008)
Elements of Taking (BEAPP)
1. Utilization of the property must be in such a way
as to oust the owner and deprive him of the
Beneficial enjoyment of his property;
2. The expropriator Enters the property;
3. Entry is made under warrant or color of legal
Authority;
4. Property is devoted to Public use; and
5. The entrance must be Permanent (Republic v.
Ortigas & Co., Ltd. Partnership, G.R. No.
171496, March 3, 2014)
The owner of a property taken is entitled to be
compensated when there is taking of private
property for some public purpose. The Constitution
proscribes taking of private property without just
compensation, any taking must entail a
corresponding appropriation for that purpose.
When the road or street was delineated upon
government request and taken for public use, the
government must compensate the owner for his or
her sacrifice, lest it violates the constitutional
provision against taking without just compensation.
(Republic v. Ortigas & Co., Ltd. Partnership, G.R.
No. 171496, March 3, 2014)
NPC is liable on the basis that its acquisition of a
right-of-way easement over the portion of
respondents' land was a taking under the power of
eminent domain. A right-of-way easement or
burden becomes a "taking" under eminent domain
when there is material impairment of the value of
the property or prevention of the ordinary uses of
the property for an indefinite period. The intrusion
into the property must be so immediate and direct
as to subtract from the owner's full enjoyment of the
POLITICAL LAW
property and to limit his or her exploitation of it.
Hence, due to the nature of the easement done by
NPC in this case, which will deprive the normal use
of the land for an indefinite period and expose the
property owners' lives and limbs to danger, just
compensation must be based on the full market
value of the affected property. (NPC v Sps.
Asoque, G.R. No. 172507, September 14, 2016)
Expropriation is not limited to the acquisition of real
property with a corresponding transfer of title or
possession. The right-of-way easement resulting in
a restriction or limitation on property rights over the
land traversed by transmission lines also falls
within the ambit of the term expropriation. The
ownership of land extends to the surface as well as
to the subsoil under it. Underground tunnels
impose limitations on the o ner use of the
property for an indefinite period and deprive them
of its ordinary use. (NPC v. Lucman Ibrahim, G.R.
No. 168732, June 29, 2007)
There was a full taking on the part of NPC,
notwithstanding that the owners were not
completely and actually dispossessed. It is settled
that the taking of private property for public use, to
be compensable, need not be an actual physical
taking or appropriation. (NAPOCOR v. Heirs of
Macabangkit Sangkay, G.R. No. 165828, Aug. 24,
2011)
Compensable
taking
includes
destruction,
restriction, diminution, or interruption of the rights
of ownership or of the common and necessary use
and enjoyment of the property in a lawful manner,
lessening or destroying its value. (NAPOCOR v.
Heirs of Macabangkit Sangkay, G.R. No. 165828,
Aug. 24, 2011)
The Republic may, in the exercise of the sovereign
power of eminent domain, require the telephone
company to permit interconnection of the
government telephone system and that of the
PLDT, as the needs of the government service may
require, subject to the payment of just
compensation to be determined by the court.
Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no
cogent reason appears why the said power may
not be availed of to impose only a burden upon the
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owner of condemned property, without loss of title
and possession. (Republic v. PLDT, G.R. No. L18841, Jan. 27, 1969)
A regulation that deprives any person of the
profitable use of his property constitutes a taking
and entitles him to compensation, unless the
invasion of rights is so slight as to permit the
regulation to be justified under the police power.
Similarly, a police regulation that unreasonably
restricts the right to use business property for
business purposes amounts to a taking of private
property, and the owner may recover therefor.
(OSG v. Ayala, G.R. No. 177056, Sept. 18, 2009)
TAKING IS FOR PUBLIC USE
The "public use" requirement for a and exercise of
the power of eminent domain is a flexible and
evolving concept influenced by changing
conditions. It is accurate to state then that at
present whatever may be beneficially employed for
the general welfare satisfies the requirement of
public use. Specifically, urban renewal or
redevelopment and the construction of low-cost
housing is recognized as a public purpose, not only
because of the expanded concept of public use but
also because of specific provisions in the
Constitution. (Sumulong v. Guerrero, G.R. No. L48685, Sept. 30, 1987)
Public use means p blic usefulness, utility or
advantage, or what is productive of general benefit;
so that any appropriating of private property by the
State under its right of eminent domain for
purposes of great advantage to the community, is
a taking for public
e. (Gohld Realty Co. v.
Hartford, 104 A. 2d 365, 368-9 Conn., 1954;
Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
The City of Manila, acting through its legislative
branch, has the express power to acquire private
lands in the city and subdivide these lands into
home lots for sale to bona fide tenants or
occupants thereof, and to laborers and lowsalaried employees of the city. That only a few
could actually benefit from the expropriation of the
property does not diminish its public use character.
It is simply not possible to provide all at once land
and shelter for all who need them. Corollary to the
POLITICAL LAW
expanded notion of public use, expropriation is not
anymore confined to vast tracts of land and landed
estates. It is therefore of no moment that the land
sought to be expropriated in this case is less than
half a hectare only. (Phil. Columbian Association v.
Hon. Panis, G.R. No. L-106528, Dec. 21, 1993)
The purpose in setting up the marker is essentially
to recognize the distinctive contribution of the late
Felix Manalo to the culture of the Philippines, rather
than to commemorate his founding and leadership
of the Iglesia ni Cristo. The practical reality that
greater benefit may be derived by members of
the Iglesia ni Cristo than by most others could well
be true but such a peculiar advantage still remains
to be merely incidental and secondary in nature.
(Manosca v. CA, G.R. No. 106440, Jan. 29, 1996)
2. JUST COMPENSATION
Just compensation has been defined as the "fair
and full equivalent of the loss". The equivalent to
be rendered for the property to be taken shall be
real, substantial, full and ample. The constitutional
limitation of "just compensation" is considered to be
a sum equivalent to the market value of the
property, broadly defined as the price fixed by the
seller in open market in the usual and ordinary
course of legal action and competition; or the fair
value of the property; as between one who receives
and one who desires to sell it, fixed at the time of
the actual taking by the government. (NPC v Sps.
Asoque, G.R. No. 172507, September 14, 2016)
In eminent domain or expropriation proceedings,
the just compensation is generally the market
value. The market value is ha sum of money
which a person is desirous but not compelled to
buy, and an owner willing but not compelled to sell,
would agree on as a price to be given and received
herefore. (Landbank of the Philippines v
Manzano, GR 188243, Jan. 24, 2018)
If municipal property is acquired in its corporate or
private capacity, the State must pay just
compensation. But if it is any other property such
as public buildings or held by the municipality for
the State in trust for the inhabitants, the State is
free to dispose of it at will, without any
compensation. (Land Bank v. Spouses Orilla, G.R.
No. 157206, June 27, 2008)
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POLITICAL LAW
The concept of just compensation does not imply
fairness
to the
property
owner alone.
Compensation must be just not only to the property
owner, but also to the public which ultimately bears
the cost of expropriation. (DPWH v. Spouses
Tecson, G.R. No. 179334, July 1, 2013)
Includes Payment In Full Without Delay
Just compensation does not only refer to the full
and fair equivalent of the property taken; it also
means, equally if not more than anything, payment
in full without delay. (Land Bank of the Philippines
v. Gallego, G.R. No. 173226, July 29 2013)
Judicial Function
The determination of just compensation is a judicial
function which cannot be curtailed or limited by
legislation, much less by an administrative rule.
The executive department or legislature may make
initial determinations but when a party claims a
violation of the guarantee on the exercise of the
power of eminent domain, no statute, decree, or
executive order can mandate that its own
determination shall prevail over the co r
findings. (Landbank of the Philippines v Manzano,
GR 188243, January 24, 2018)
Tax Benefit as Just Compensation
The tax benefit granted to the establishments can
be deemed as their just compensation for private
property taken by the State for public use. The
taxation power can also be used as an implement
for the exercise of the power of eminent domain.
(Commissioner of Internal Revenue v. Central
Luzon Drug Corporation, G.R. No. 159647, April
15, 2005)
While administrative issuances are entitled to great
respect, their application must always be in
harmony with the law they seek to interpret.
Administrative issuances or orders, though they
enjoy the presumption of legalities, are still subject
to the interpretation by the Supreme Court
pursuant to its power to interpret the law. While
rules and regulations issued by the administrative
bodies have the force and effect of law and are
entitled to great respect, courts interpret
administrative regulations in harmony with the law
that authorized them and avoid as much as
possible any construction that would annul them as
invalid exercise of legislative power. Thus, while
the formula prescribed by the Department of
Agrarian Reform requires due consideration, the
determination of just compensation shall still be
subject to the final decision of the special agrarian
court. (Land Bank of the Philippines v. Franco, G.R.
No. 203242, March 12, 2019)
Just Compensation in Expropriation by LGUs
The exercise of the power of eminent domain by a
local government unit is now governed by Section
19 of Republic Act 7160. For properties under
expropriation, the law now requires the deposit of
an amount equivalent to fifteen percent (15%) of
the fair market value of the property based on its
current tax declaration. (Knecht v. Municipality of
Cainta, G.R. No. 145254, 2006).
Excludes Value of Excavated Soil
The Court also upheld the CA ruling, which deleted
the inclusion of the value of the excavated soil in
the payment for just compensation. There is no
legal basis to separate the value of the excavated
soil from that of the expropriated properties. In the
context of expropriation proceedings, the soil has
no value separate from that of the expropriated
land. Just compensation ordinarily refers to the
value of the land to compensate for what the owner
actually loses. Such value could only be that which
prevailed at the time of the taking. (Republic of the
Philippines, represented by the National Irrigation
Administration v. Rural Bank of Kabacan Inc., G.R.
No. 185124, Jan. 25, 2012)
Who Are Entitled to Just Compensation:
1. Owner of the property
2. All owning, occupying or claiming to the
property who have lawful interest in the
property to be condemned (e.g. mortgagee,
lessee, vendee under an executory contract).
(Vda. De Ouano v. Republic, G.R. No. 168770,
Feb. 9, 2011)
Payment for Consequential Damages
No actual taking of the building is necessary to
grant consequential damages. Consequential
damages are awarded if as a result of the
expropriation, the remaining property of the owner
suffers from an impairment or decrease in value.
(Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
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To determine just compensation, the trial court
should first ascertain the market value of the
property, to which should be added the
consequential damages after deducting therefrom
the consequential benefits which may arise from
the expropriation. If the consequential benefits
exceed the consequential damages, these items
should be disregarded altogether as the basic
value of the property should be paid in every case.
(Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
(B.H. Berkenkotter & Co. v. Court of Appeals, G.R.
No. 89980, Dec. 14, 1992)
Reckoning period
The value of the property must be determined
either as of the date of the taking of the property or
the filing of the complaint, "whichever came first."
(Eslaban v. De Onorio, G.R. No. 146062, June 18,
2001)
If the objections to and the defenses against the
right of the plaintiff to expropriate the property are
overruled, or when no party appears to defend as
required by this Rule, the court may issue an order
of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be
expropriated, for the public use or purpose
described in the complaint, upon the payment of
just compensation to be determined as of the date
of the taking of the property or the filing of the
complaint, whichever came first. (ROC, Rule 67, §
4)
Just Compensation in Agrarian Cases
Under CARL, the final decision on the value of just
compensation lies solely on the Special Agrarian
Court. There is no need to exhaust administrative
remedies through the various Adjudication Board
of the Department of Agrarian Reform before a
party can go to the Special Agrarian Court for
determination of just compensation. (Landbank of
the Philippines v Manzano, GR 188243, January
24, 2018)
The Special Agrarian Court is req ired to
con ider the facts in CARL and the formula in the
administrative issuances. Consideration of these
guidelines, however, does not mean that these are
the sole bases for arriving at the just compensation.
POLITICAL LAW
The courts are not precluded from considering
other factors. A
argument on mandatory
adherence to the provisions of law and the
administrative orders must fail. (Landbank of the
Philippines v Manzano, GR 188243, January 24,
2018)
Settled is the rule that when the agrarian reform
process is still incomplete, such as in this case
where the just compensation due the landowner
has yet to be settled, just compensation should be
determined and the process be concluded under
RA 6657. (Land Bank of the Philippines, v. Heirs of
Jesus Alsua, G.R. No. 211351, Feb. 4, 2015)
In determining just compensation, the cost of
acquisition of the land, the current value of like
properties, its nature, actual use and income, the
sworn valuation by the owner, the tax declarations,
and the assessment made by government
assessors, shall be considered. The social and
economic benefits contributed by the farmers and
the farm workers and by government to the
property as well as the non-payment of taxes or
loans secured from any government financing
institution on the said land shall be considered as
additional factors to determine its valuation. (RA
6657, sec. 17, otherwise known as Comprehensive
Agrarian Reform Law of 1988)
It is not adequate to merely use the formula in an
administrative order of the Department of Agrarian
Reform or rely on the determination of a land
assessor to show a final determination of the
amount of just compensation. Courts are still
tasked with considering all factors present, which
may be stated in formulas provided by
administrative agencies. When acting within the
bounds of the Comprehensive Agrarian Reform
Law, special agrarian courts "are not strictly bound
to apply the DAR formula to its minute detail,
particularly when faced with situations that do not
warrant the formula's strict application; they may,
in the exercise of their discretion, relax the
formula's application to fit the factual situations
before them. The Comprehensive Agrarian Reform
Law merely provides for guideposts to ascertain
the value of properties. Courts are not precluded
from considering other factors that may affect the
value of property. (Land Bank of the Philippines v.
Franco, G.R. No. 203242, March 12, 2019)
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Effect of Non-Payment of Just Compensation
Non-payment of just compensation does not entitle
the private landowners to recover possession of
their expropriated lot. But, the prolonged
occupation of the government without instituting
expropriation proceedings will entitle the
landowner to damages. Such pecuniary loss
entitles him to adequate compensation in the form
of actual or compensatory damages, which in this
case should be the legal interest (6%) on the value
of the land at the time of taking, from said point up
to full payment. (City of Iloilo v. Besana, G. R. No.
168967, Feb. 12, 2010)
While the prevailing doctrine is that "the nonpayment of just compensation does not entitle the
private landowner to recover possession of the
expropriated lots, however, in cases where the
government failed to pay just compensation within
five (5) years from the finality of the judgment in the
expropriation proceedings, the owners concerned
shall have the right to recover possession of their
property. This is in consonance with the principle
that "the government cannot keep the property and
dishonor the judgment." To be sure, the five-year
period limitation will encourage the government to
pay just compensation punctually. This is in
keeping with justice and equity. After all, it is the
duty of the government, whenever it takes property
from private persons against their will, to facilitate
the payment of just compensation. We defined just
compensation as not only the correct determination
of the amount to be paid to the property owner but
also the payment of the property within a
reasonable time. Without prompt payment,
compensation cannot be considered "just."
(Republic v. Lim, G.R. No. 161656, June 29, 2005)
Effect of Delay in Payment of Just
Compensation
Imposition of legal interest per annum on the just
compensation due to the landowner is in the nature
of damages for delay of payment. If property is
taken for public use before compensation is
deposited with the court having jurisdiction over the
case, the final compensation must include interests
on its just value to be computed from the time the
property is taken to the time when compensation is
actually paid or deposited with the court.
(Landbank of the Philippines v Manzano, GR
188243, January 24, 2018)
POLITICAL LAW
The foregoing clearly dictates that valuation of the
land for purposes of determining just compensation
should not include the inflation rate of the Philippine
Peso because the delay in payment of the price of
expropriated land is sufficiently recompensed
through payment of interest on the market value of
the land as of the time of taking from the
landowner. (NAPOCOR v. Manalastas, G.R. No.
196140, Jan. 27, 2016)
Under Article III, Section 9 of the 1987 Constitution,
pri a e property shall not be taken for public use
without just compen a ion. The SC notes that for
almost 20 years, the DPWH had been enjoying the
use of X property without paying the full amount
of just compensation under the Compromise
Agreement. In keeping with substantial justice, the
Court imposes the payment of legal interest on the
remaining just compensation due to X. (Republic of
the Philippines v. Fetalvero, G.R. No. 198008,
February 4, 2019.)
The concept of delay does not pertain to the length
of time that elapsed from the filing of the Complaint
until its resolution. Rather, it refers to the fact that
property was taken for public use before
compensation was deposited with the court having
jurisdiction over the case. There will be delay if the
property was taken for public use before
compensation was paid or deposited with the court.
Hence, between the taking of the property and the
actual payment, legal interests accrue in order to
place the owners in a position as good as the
position they were in before the taking occurred.
(National Power Corporation v. Heirs of Gregorio
Ramoran, G.R. No. 193455, June 13, 2016)
3. ABANDONMENT OF INTENDED USE AND
RIGHT OF REPURCHASE
If the property ceases to be used for a public
purpose, the property reverts to the owner in fee
simple. (Bernas, The 1987 Constitution: A
Comprehensive Reviewer, 2006).
We now expressly hold that the taking of private
property, consequent to the Go ernmen
exercise of its power of eminent domain, is always
subject to the condition that the property be
devoted to the specific public purpose for which it
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was taken. Corollarily, if this particular purpose or
intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners,
if they so desire, may seek the reversion of the
property, subject to the return of the amount of just
compensation received. In such a case, the
exercise of the power of eminent domain has
become improper for lack of the required factual
justification. (Mactan-Cebu International Airport v.
Lozada, G.R. No. 176625, Feb. 25, 2010)
If the genuine public necessity
the very reason
or condition as it were
allowing, at the first
instance, the expropriation of a private land ceases
or disappears, then there is no more cogent point
for the go ernmen retention of the expropriated
land. The same legal situation should hold if the
government devotes the property to another public
use very much different from the original or
deviates from the declared purpose to benefit
another private person. A condemnor should
commit to use the property pursuant to the purpose
stated in the petition for expropriation, failing which
it should file another petition for the new purpose.
If not, then it behooves the condemnor to return the
said property to its private owner, if the latter so
desires. Lands should be differentiated from a
piece of land, ownership of which was absolutely
transferred by way of an unconditional purchase
and sale contract freely entered by two parties, one
without obligation to buy and the other without the
duty to sell. In that case, the fee simple concept
really comes into play. There is really no occasion
to apply the "fee simple concept" if the transfer is
conditional. The taking of a private land in
expropriation proceedings is always conditioned on
its continued devotion to its public purpose. As a
necessary corollary, once the purpose is
terminated or peremptorily abandoned, then the
former owner, if he so desires, may seek its
reversion, subject of course to the return, at the
very least, of the just compensation received.
(Ouano, et. al. v. Republic, G.R. No.168770, Feb.
9, 2011)
4. EXPROPRIATION BY LOCAL
GOVERNMENT UNITS
Requisites Before an LGU Can Exercise the
Power of Eminent Domain (OPJO):
POLITICAL LAW
1. An Ordinance is enacted by the local legislative
council authorizing the local chief executive, in
behalf of the LGU, to exercise the power of
eminent domain or pursue expropriation
proceedings over a particular private property.
2. The power of eminent domain is exercised for
Public use, purpose or welfare, or for the
benefit of the poor and the landless.
3. There is payment of Just compensation, as
required under Section 9, Article III of the
Constitution, and other pertinent laws.
4. A valid and definite Offer has been previously
made to the owner of the property sought to be
expropriated, but said offer was not accepted.
(LOCAL GOVERNMENT CODE, sec. 19)
Immediate Entry
In the case of LGUs, entry into the property may be
made before payment provided that a deposit is
made in an amount set by the court (15%). The
local government unit may immediately take
possession of the property upon the filing of the
expropriation proceedings and upon making a
deposit with the proper court of at least fifteen
percent (15%) of the fair market value of the
property based on the current tax declaration of the
property to be expropriated. (LOCAL GOVERNMENT
CODE, sec. 19)
Limitations on the Exercise of the Eminent
Domain Powers of LGUs
Order of priority in acquiring land for socialized
housing: Private lands rank last in the order of
priority for purposes of socialized housing.
RA No. 7279 (Urban Development & Housing Act)
lays down the mandatory priority in the acquisition
of lands:
1. Those owned by the government
2. Alienable lands of the public domain
3. Unregistered, idle, or abandoned lands
4. Those within declared Areas of Priority
Development, Zonal Improvement, Slum
Improvement, or Resettlement Program
sites Bagong Lipunan Improvement Sites
and Services (BLISS) which have not been
acquired
5. Privately owned lands (last in the priority)
Other modes of acquisition must first be
exhausted.
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POLITICAL LAW
The City of Manila failed to comply with any of the
aforesaid requirements. The exercise of eminent
domain cannot override the guarantees of due
process conferred upon the property owners.
(Heirs of JBL Reyes v. City of Manila, G.R. Nos.
132431 & 137146, Feb. 13, 2004)
the public use character of the taking. Any law
fixing the amount of just compensation is not
binding on the courts because it is a question of
fact which is always subject to review by the courts.
(Bernas, The 1987 Constitution: A Commentary,
2009)
LGUs v. National Government
On the part of local government
units, expropriation is also
governed by Section 19 of the
Local Government Code:
The statements made in tax documents by the
assessor may serve as one of the factors to be
considered but they cannot exclude or prevail over
a court determination made after expert
commissioners have examined the property and all
pertinent circumstances are taken into account and
after the parties have had the opportunity to fully
plead their cases before a competent and unbiased
tribunal. (Manotok v. NHA, G.R. No. L-55166, May
21, 1987)
LGUs
1. The filing of a complaint for
expropriation sufficient in form
and substance; and
2. The deposit of the amount
equivalent to 15% of the fair
market value of the property to
be expropriated based on its
current tax declaration. (Iloilo v.
Legaspi, G.R. No. 154614, Nov.
25, 2004)
Pursuant to Section 2 of Rule 67
of the 1997 Revised Rules of Civil
Procedure:
1. The filing of a complaint for
expropriation sufficient in form
and substance; and
NATIONAL
GOV T
2. The making of a deposit
equivalent to the assessed
value of the property subject to
expropriation.
Upon
compliance
with
the
requirements, the issuance of
the writ of possession becomes
ministerial. (Biglang-awa v.
Bacalla, G.R. Nos. 139927 and
139936, Nov. 22, 2000)
JUDICIAL REVIEW
Matters That May be Reviewed by the Courts:
(ANP)
1. The Adequacy of the compensation
2. The Necessity of the taking
3. The P b c U
character of the taking
If the expropriation is pursuant to a specific law
passed by Congress, the courts cannot question
A previous decision is no obstacle to the legislative
arm of the Government in thereafter (over two
years later in this case) making its own
independent assessment of the circumstances
then prevailing as to the propriety of undertaking
the expropriation of the properties in question and
thereafter by enacting the corresponding
legislation as it did in this case. (Republic v. De
Knecht, G.R. No. 87335, Feb. 12, 1990)
EMINENT DOMAIN V. POLICE POWER
Action to Recover Just Compensation v. Action
for Damages
ACTION TO
ACTION FOR
RECOVER JUST
DAMAGES
COMPENSATION
Also known as inverse Seeks to vindicate a
condemnation,
has legal wrong through
the
objective
to damages, which may
recover the value of be
actual,
moral,
property taken in fact nominal, temperate,
by the governmental liquidated,
or
defendant,
even exemplary
though no formal
exercise of the power When a right is
of eminent domain has exercised in a manner
been attempted by the not conformable with
taking agency.
the norms enshrined
in Article 19 and like
provisions on human
relations in the Civil
Code,
and
the
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exercise results to the
damage of another, a
legal
wrong
is
committed and the
wrongdoer is held
responsible.
The two actions are radically different in nature and
purpose. The action to recover just compensation
is based on the Constitution while the action for
damages is predicated on statutory enactments.
Indeed, the former arises from the exercise by the
State of its power of eminent domain against
private property for public use, but the latter
emanates from the transgression of a right.
The fact that the owner rather than the expropriator
brings the former does not change the essential
nature of the suit as an inverse condemnation, for
the suit is not based on tort, but on the
constitutional prohibition against the taking of
property without just compensation. It would very
well be contrary to the clear language of the
Constitution to bar the recovery of just
compensation for private property taken for a public
use solely on the basis of statutory prescription.
(NAPOCOR v. Heirs of Mabangkit Sangkay, G.R.
No. 165828, Aug. 24, 2011)
Article III, Section 9 of the Constitution provides a
substantive guarantee that private property that is
taken by the state for public use should be paid for
with just compensation. If the state does not agree
with the property owner on a price, the state,
through the competent government agency, should
file the proper expropriation action under Rule 67
of the Revised Rules of Court. In case of a taking
without the proper expropriation action filed, the
property owner may file its own action to question
the propriety of the taking or to compel the payment
of just compensation. Among these inverse
condemnation actions is a complaint for payment
of just compensation and damages. When an
inverse condemnation is filed, the provisions for the
appointment of commissioners under Rule 32
not Sections 5, 6, 7, or 8 of Rule 67 of the Rules of
Court
will be followed. (NPC v. Sps. Asoque,
G.R. No. 172507, Sept. 14, 2016)
MISCELLANEOUS APPLICATION
General Rule: The value must be that as of the
time of the filing of the complaint for expropriation.
Exception:
When the filing of the case comes later than the
time of taking and meanwhile the value of the
property has increased because of the use to which
the expropriator has put it, the value is that of the
time of the earlier taking.
Exceptions to the Exception:
If the value increased independently of what the
expropriator did, then the value is that of the
FILING of the case.
Even before compensation is given, entry may
be made upon the property condemned by
depositing the money or an equivalent form of
payment such as government bonds.
J. NON-IMPAIRMENT OF CONTRACTS
No law impairing the obligation of contracts shall be
passed. (PHIL. CONST., art. 3, § 10)
What Constitutes Impairment
1. If it changes the terms and conditions of a legal
contract either as to the time or mode of
performance.
2. If it imposes new conditions or dispenses with
those expressed
3. If it authorizes for its satisfaction something
different from that provided in its terms.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011) (Clemens v.
Nolting, 42 Phil. 702, Jan. 24, 1922)
The non-impairment clause is a limit on the
exercise of legislative power and not of judicial or
quasi-judicial power. The SEC, through the hearing
panel that heard the petition for approval of the
Rehabilitation Plan, was acting as a quasi-judicial
body and thus, its order approving the plan cannot
constitute an impairment of the right and the
freedom to contract. (BPI v. SEC, G.R. No.
164641, 2007)
Settled is the rule that the non-impairment clause
of the Constitution must yield to the loftier purposes
targeted by the Government. The right granted by
this provision must submit to the demands and
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necessities of the State's power of regulation. Such
authority to regulate businesses extends to the
banking industry which, as this Court has time and
again emphasized, is undeniably imbued with
public interest. (Goldenway v. Merchandising
Corporation v. Equitable PCI Bank, G.R. No.
195540, 2013)
Public Contracts
The non-impairment clause protects contracts with
the government, including franchises. However,
the obligation arising from franchises are subject to
modification by police power. This is in consonance
with Article 12, Section 11. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Even granting that the "agreement" between the
two governments or their representatives creates a
binding obligation under international law, it
remains incumbent for each contracting party to
adhere to its own internal law in the process of
complying with its obligations. The promises made
by a Philippine president or his alter egos to a
foreign monarch are not transubstantiated by
divine right so as to ipso facto render legal rights of
private persons obviated. (Kuwait Airways v.
Philippine Airlines, G.R. No. 156087, 2009)
POLITICAL LAW
Licenses are Not Considered Contracts
Timber licenses, permits, and license agreements
are the principal instruments by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is
promoted. It cannot be denied that they merely
evidence a privilege granted by the State, and it
does not vest a permanent or irrevocable right.
They are not deemed contracts within the due
process of law clause. (Oposa v Factoran, G.R. No.
101083, July 30, 1993; C&M Timber Corporation v.
Alcala, G.R. No. 111088, June 13, 1997)
Instances When the Non-impairment Clause is
Inapplicable
The parties to a contract cannot, through the
exercise of prophetic discernment, fetter the
exercise of the taxing power of the State. For not
only are existing laws read into contracts in order
to fix obligations as between parties, but the
reservation of essential attributes of sovereign
power is also read into contracts as a basic
postulate of the legal order. The policy of protecting
contracts against impairment presupposes the
maintenance of a government, which retains
adequate authority to secure the peace and good
order of society. In truth, the Contract Clause has
never been thought as a limitation on the exercise
of the State's power of taxation save only where a
tax exemption has been granted for a valid
consideration. (Tolentino v. Secretary of Finance,
G.R. No. 115455, Oct. 30, 1995)
These contractual stipulations on the use of the
land even if said conditions are annotated on the
Torrens title can be impaired if necessary to
reconcile with the legitimate exercise of police
power. (Presley v. Bel-Air Village Association, Inc.,
G.R. No. 86774, Aug. 21, 1991) (Ortigas & Co.
Limited Partnership v. Feati Bank and Trust Co.,
G.R. No. L-24670, Dec. 14, 1979)
Impairment is anything that diminishes the efficacy
of the contract. Section 47 of the General Banking
Law did not divest juridical persons of the right to
redeem their foreclosed properties but only
modified the time for the exercise of such right by
reducing the one-year period originally provided in
Act No. 3135. (Goldenway Merchandising Corp. v.
Equitable PCI Bank, G.R. No. 195540, March 13,
2013)
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The free exercise of religious profession or belief is
superior to contract rights. In case of conflict, the
latter must, therefore, yield to the former.
(Victoriano v. Elizalde Rope Workers’ Union, G.R.
No. L-25246, Sept. 12, 1974)
K. ADEQUATE LEGAL ASSISTANCE AND
FREE ACCESS TO COURTS
Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied
to any person by reason of poverty. (PHIL. CONST.,
art. 3, § 11)
Indigent Party
A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon
an ex parte application and hearing, is satisfied that
the party is one who has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
(ROC, Rule 3, § 21)
Indigent Litigants Exempt From Payment of
Legal Fees
Indigent litigants (a) whose gross income and that
of their immediate family do not exceed an amount
double the monthly minimum wage of an employee
and (b) who do not own real property with a fair
market value as stated in the current tax
declaration of more than three hundred thousand
(P300,000.00) pesos shall be exempt from the
payment of legal fees.
The legal fees shall be a lien on any judgment
rendered in the case favorable to the indigent
litigant unless the court otherwise provides.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his
POLITICAL LAW
immediate family do not earn a gross income
abovementioned, and they do not own any real
property with the fair value aforementioned,
supported by an affidavit of a disinterested person
attesting to the truth of the litigan affidavit. The
current tax declaration, if any, shall be attached to
the li igan affidavit. (ROC, Rule 141, § 19)
Matter of Right
If the applicant for exemption meets the salary and
property requirements under Section 19 of Rule
141, then the grant of the application is mandatory
and is a matter of right. (Algura v. The Local
Government Unit of the City of Naga G.R. No.
150135, Oct. 30, 2006)
Matter of Discretion
On the other hand, when the application does not
satisfy one or both requirements, then the
application should not be denied outright; instead,
the court should apply the "indigency test" under
Section 21 of Rule 3 that the applicant has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family and use its sound discretion in determining
the merits of the prayer for exemption. (Algura v.
The Local Government Unit of the City of Naga
G.R. No. 150135, Oct. 30, 2006)
S
Expenses
Sheriff expenses are not exacted for any service
rendered by the court; they are the amount
deposited to the Clerk of Court upon filing of the
complaint to defray the actual travel expenses of
the sheriff, process server or other courtauthorized persons in the service of summons,
subpoena and other court processes that would be
issued relative to the trial of the case. Thus, in In
Re: Exemption of Cooperatives from Payment of
Court and Sheriff
Fees Payable to the
Government in Actions Brought Under R.A. 6938,
the Court clarified that heriff expenses are not
considered as legal fees. (In Re Letter of Chief
Public Attorney Acosta, AM No. 11-10-03-O, July
30, 2013)
L. RIGHT AGAINST SELF INCRIMINATION
No person shall be compelled to be a witness
against himself. (PHIL. CONST., art. 3, § 17)
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Concept
It is the duty of the prosecution, in order to convict
one of a crime, to produce evidence showing guilt
beyond a reasonable doubt; and the accused
cannot be called upon either by express words or
acts to assist in the production of such evidence;
nor should his silence be taken as proof against
him. He has a right to rely on the presumption of
innocence until the prosecution proves him guilty of
every element of the crime with which he is
charged. (US v. Navarro, G.R. No. 1272, Jan. 11,
1904)
The right against self-incrimination is not merely a
formal technical rule the enforcement of which is
left to the discretion of the court; it is mandatory; it
secures to a defendant a valuable and substantive
right; it is fundamental to our scheme of justice.
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much as
resort to compulsory disclosure, directly or
indirectly, of facts usable against him as a
confession of the crime or the tendency of which is
to prove the commission of a crime.
Thus, an accused has:
1. The right to forego testimony, and
2. The right to remain silent, unless he chooses to
take the witness stand. (Chavez v. CA, G.R. No.
L-29169, Aug. 19, 1968)
Purpose
It was established on the grounds of public policy
and humanity
1. Of Policy: Because if the party were required to
testify, it would place the witness under the
strongest temptation to commit the crime of
perjury.
2. Of Humanity: Because it would prevent the
extorting of confessions by duress. (US v.
Navarro, G.R. No. 1272, Jan. 11, 1904)
Option of Refusal to Answer, Not a Prohibition
of Inquiry
The right against self-incrimination prescribes an
option of refusal to answer incriminating questions
and not a prohibition of inquiry. It simply secures to
a witness, whether he be a party or not, the right to
refuse to answer any particular incriminatory
question, i.e., one the answer to which has a
tendency to incriminate him for some crime.
(People v. Ayson, G.R. No. 85215, July 7, 1989)
1. SCOPE AND COVERAGE
Against Testimonial Compulsion
The kernel of the right is not against all compulsion,
but against testimonial compulsion. The right
against self-incrimination is simply against the legal
process of extracting from the lips of the accused
an admission of guilt. It does not apply where the
evidence sought to be excluded is not an
incrimination but as part of object evidence.
(Agustin v. CA, G.R. No. 162571, June 15, 2005)
Covers Writing in a Prosecution for
Falsification
Writing is something more than moving the body,
or the hands, or the fingers; writing is not a purely
mechanical act, because it requires the application
of intelligence and attention. Writing means that the
accused is to furnish a means to determine
whether or not he is the falsifier. (Beltran v.
Samson, G.R. No. 32025, Sept. 23, 1929)
Purely Mechanical Act: Must Be Related to the
Offense Charged
Petitioner was arrested for extortion; he resisted
having his urine sample taken; and finally, his urine
sample was the only available evidence that was
used as basis for his conviction for the use of illegal
drugs. The drug test was a violation of petitioner's
right to privacy and right against self-incrimination.
Cases where non-testimonial compulsion has been
allowed reveal, however, that the pieces of
evidence obtained were all material to the principal
cause of the arrest. In the instant case, we fail to
see how a urine sample could be material to the
charge of extortion. The RTC and the CA,
therefore, both erred when they held that the
extraction of pe i ioner urine for purposes of drug
testing was merely a mechanical act. (Dela Cruz v.
People, G.R. No. 200748, July 23, 2014)
EXCLUSIONS
The essence of the right against self-incrimination
is testimonial compulsion, that is, the giving of
evidence against himself through a testimonial act.
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Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak
his guilt, hence the assistance and guiding hand of
counsel is not required.
Thus, the right against self-incrimination does not
apply in the following cases:
1. A woman charged with adultery may be
compelled to submit to physical examination to
determine her pregnancy.
2. An accused may be compelled to submit to
physical examination and to have a substance
taken from his body for medical determination
as to whether he was suffering from gonorrhea
which was contracted by his victim.
3. To e pel morphine from he defendan mo h.
4. To ha e he o line of he defendan
foo
traced to determine its identity with bloody
footprints.
5. To be photographed or measured, or his
garments or shoes removed or replaced, or to
move his body to enable the foregoing things to
be done. (Dela Cruz v. People, G.R. No.
200748, July 23, 2014)
Over the years, the Supreme Court has expressly
excluded several kinds of object evidence taken
from the person of the accused from the realm of
self-incrimination. These include:
1. Photographs, hair, and other bodily substances.
2. E amina ion of a oman geni alia, in an ac ion
for annulment filed by her husband, to verify his
claim that she was impotent, her orifice being
too small for his penis.
3. DNA testing and its results. (Agustin v. CA, G.R.
No. 162571, June 15, 2005)
The right against self-incrimination does not apply
to records required by law to be kept which are the
appropriate subjects of governmental regulation
and where restrictions are validly established.
(Shapiro v. United States, 335 U.S. 1, June 21,
1948)
WHEN TO INVOKE; WAIVER
Available Only When the Incriminatory
Question is Asked
The right against self-incrimination can be claimed
only when the specific question, incriminatory in
character, is actually put to the witness. It cannot
be claimed at any other time. It does not give a
witness the right to disregard a subpoena, to
POLITICAL LAW
decline to appear before the court at the time
appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear
as required, take the stand, be sworn and answer
questions. It is only when a particular question is
addressed to him, the answer to which may
incriminate him for some offense, that he may
refuse to answer on the strength of the
constitutional guaranty. (People v. Ayson, G.R. No.
85215, July 7, 1989)
A question tends to incriminate when the answer of
the accused or the witness would establish a fact,
which would be a necessary link in a chain of
evidence to prove the commission of a crime by the
accused or the witness. Further, a crime or a
criminal act may contain two or more elements and
that a question would have a tendency to
incriminate, even if it tends to elicit only one of said
elements. (Isabela Sugar Co. v. Macadaeg, G.R.
No. L-5924, Oct. 28, 1953)
Not Self-Executing; May Be Waived
The right against self-incrimination is not selfexecuting or automatically operational. It must be
claimed. If not claimed by or in behalf of the
witness, the protection does not come into play. It
follows that the right may be waived, expressly, or
impliedly, as by a failure to claim it at the
appropriate time. (People v. Ayson, G.R. No.
85215, July 7, 1989)
When a person, however, voluntarily answers an
incriminating question, he is deemed to have
waived his right. Moreover, after the accused has
pleaded guilty, for the purpose of ascertaining the
proper penalty to be imposed or for any other legal
purposes, the court may properly ask such
questions which are necessary to that end.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Where the witness, in answer to previous
incriminating questions, said, "I do not remember,"
that is clearly a refusal to answer, and the privilege
is not deemed waived thereby. (Isabela Sugar Co.
v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953)
Not a Valid Waiver; Judgement Void; Habeas
Corpus is a Proper Remedy
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In this case, petitioner is a defendant in a criminal
case. He was called by the prosecution as the first
witness in that case to testify for the People during
the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he
broadened "by the clear cut statement that he will
not e if . But petitioner's protestations were met
with the judge's emphatic statement that it "is the
right of the prosecution to ask anybody to act as
witness on the witness stand including the
accused," and that defense counsel "could not
object to have the accused called on the witness
stand." The cumulative impact of all these is that
accused-petitioner had to take the stand. He was
thus peremptorily asked to create evidence against
himself.
The Court ruled that there is therefore no waiver of
the privilege. To be effective, a waiver must be
certain and unequivocal, and intelligently,
understandably, and willingly made; such waiver
following only where liberty of choice has been fully
accorded.
Habeas corpus is a high prerogative writ. It is
traditionally considered as an exceptional remedy
to release a person whose liberty is illegally
restrained such as when the accused's
constitutional rights are disregarded. Such defect
results in the absence or loss of jurisdiction and
therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right
was violated. That void judgment of conviction may
be challenged by collateral attack, which precisely
is the function of habeas corpus. This writ may
issue even if another remedy which is less effective
may be availed of by the defendant. Thus, failure
by the accused to perfect his appeal before the
Court of Appeals does not preclude a recourse to
the writ. The writ may be granted upon a judgment
already final. (Chavez v. CA, G.R. No. L-29169,
Aug. 19, 1968)
WHO MAY INVOKE
Only Applies to Natural Persons
Unlike the search and seizure clause, which
protects both natural persons and corporations, the
privilege against self-incrimination is a personal
one, applying only to natural individuals. Thus, a
corporation may be compelled to submit to the
visitorial powers of the state even if this results in
disclosure of criminal acts of the corporation.
Moreover, a corporate officer may not prevent the
production of corporate papers on the ground that
they may incriminate him personally, for in such a
situation it would not be a case of the officer
incriminating himself but the corporation
incriminating him. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009)
Accused v. Ordinary Witness
ACCUSED
The defendant in a
cannot be compelled
to testify or produce
evidence
in
the
criminal case in which
he is the accused, or
one of the accused.
He
cannot
be
compelled to do so
even by subpoena or
other process or order
of the Court.
The defendant in a
criminal action can
refuse
to
testify
altogether. He can
refuse to take the
witness stand, be
sworn, answer any
question.
ORDINARY
WITNESS
The witness receiving
a subpoena must obey
it, appear as required,
take the stand, be
sworn and answer
questions.
A
witness
cannot
refuse to take the
witness stand. It is only
when
a
particular
question is addressed
to
which
may
incriminate himself for
some offense that he
may refuse to answer
on the strength of the
constitutional
guaranty.
As to an accused in a criminal case, it is settled that
he can refuse outright to take the stand as a
witness. An accused occupies a different tier of
protection from an ordinary witness. Under the
Rules of Court, in all criminal prosecutions the
defendant is entitled among others
1. To be exempt from being a witness against
himself, and
2. To testify as witness in his own behalf; but if he
offers himself as a witness he may be crossexamined as any other witness; however, his
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neglect or refusal to be a witness shall not in
any manner prejudice or be used against him.
The right of the defendant in a criminal case to be
exempt from being a witness against himself
signifies that he cannot be compelled to testify or
produce evidence in the criminal case in which he
is the accused, or one of the accused. He cannot
be compelled to do so even by subpoena or other
process or order of the Court. He cannot be
required to be a witness either for the prosecution,
or for a co-accused, or even for himself. In other
words unlike an ordinary witness (or a party in a
civil action) who may be compelled to testify by
subpoena, having only the right to refuse to answer
a particular incriminatory question at the time it is
put to him the defendant in a criminal action can
refuse to testify altogether. He can refuse to take
the witness stand, be sworn, answer any question.
(Rosete v. Lim, G.R. No. 136051, June 8, 2006)
2. APPLICATION
General Rule: The right against self-incrimination
is available in any civil, criminal, or administrative
proceeding. (People v. Ayson, G.R. No. 85215,
July 7, 1989)
Expanded Application
1. The right is extended to respondents in
administrative investigations that partake of the
nature of or are analogous to criminal
proceedings.
2. The right extends to all proceedings sanctioned
by law.
3. The right extends to all cases in which
punishment is sought to be visited upon a
witness, whether a party or not.
4. The right extends to legislative investigations.
5. The right extends to administrative proceedings
which possess a criminal or penal aspect, i.e.
medical board investigation.
6. The right extends to investigations conducted
by a fact-finding ad hoc board.
(Standard Chartered Bank v. Senate
Committee on Banks, G.R. NO. 167173, Dec.
27, 2007; Pascual v. Board of Medical
Examiners, G.R. No. L-25018, May 26, 1969;
Galman v. Pamaran, G.R. Nos. 71208-09, Aug.
30, 1985)
POLITICAL LAW
Nature and Purpose
A state response to the constitutional exception
the right against self-incrimination
to its vast
powers, especially in the field of ordinary criminal
prosecution and in law enforcement and
administration, is the use of an immunity statute.
Immunity statutes seek a rational accommodation
between the imperatives of an indi id al
constitutional right against self-incrimination
(considered the fount from which all statutes
granting immunity emanate) and the legitimate
governmental interest in securing testimony. By
voluntarily offering to give information on the
commission of a crime and to testify against the
culprits, a person opens himself to investigation
and prosecution if he himself had participated in the
criminal act. To secure his testimony without
exposing him to the risk of prosecution, the law
recognizes that the witness can be given immunity
from prosecution. In this manner, the state interest
is satisfied while respecting the indi id al s
constitutional right against self-incrimination.
(Quarto v. Ombudsman, G.R. No. 169042, Oct. 5,
2011)
Kinds of Immunity Statutes
1. Use Immunity
prohibits use of witness'
compelled testimony and its fruits in any
manner in connection with the criminal
prosecution of the witness.
2. Transactional Immunity grants immunity to
the witness from prosecution for an offense to
which his compelled testimony relates. (Galman
v. Pamaran, G.R. Nos. 71208-09, Aug. 30,
1985)
Source of Immunity: The Legislative
The power to grant immunity from prosecution is
essentially a legislative prerogative. The exclusive
power of Congress to define crimes and their
nature and to provide for their punishment
concomitantly carries the power to immunize
certain persons from prosecution to facilitate the
attainment of state interests, among them, the
solution and prosecution of crimes with high
political, social and economic impact. In the
exercise of this power, Congress possesses broad
discretion and can lay down the conditions and the
extent of the immunity to be granted. (Quarto v.
Ombudsman, G.R. No. 169042, Oct. 5, 2011)
3. IMMUNITY STATUTES
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Authority to Grant Immunity: The Executive,
But Reviewable by Courts
While the legislature is the source of the power to
grant immunity, the authority to implement is
lodged elsewhere. The authority to choose the
individual to whom immunity would be granted is a
constituent part of the process and is essentially an
executive function. (Quarto v. Ombudsman, G.R.
No. 169042, Oct. 5, 2011)
On the other hand, it is the trial court that
determines whether the pro ec ion preliminary
assessment of the accused- i ne
qualifications
to be a state witness satisfies the procedural
norms. This relationship is in reality a symbiotic one
as the trial court, by the very nature of its role in the
administration of justice, largely exercises its
prerogative based on the pro ec or findings and
evaluation. The court is given this power once it
has already acquired jurisdiction over the crime
and the accused. The discharge of an accused is
part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. (Quarto
v. Ombudsman, G.R. No. 169042, Oct. 5, 2011)
Extent of Judicial Review of a Bestowed
Immunity
An immunity statute does not, and cannot, rule out
a review by the Supreme Court of the
Omb d man exercise of discretion. Like all other
officials under our constitutional scheme of
government, all their acts must adhere to the
Constitution. The parameters of the Co r review,
however, are narrow as the Court is not a trier of
facts. Since the determination of the requirements
under Section 17, Rule 119 of the Rules of Court
(Discharge of Accused to be State Witness) is
highly factual in nature, the Court must, thus,
generally defer to the judgment of the Ombudsman
who is in a better position (than the Sandiganbayan
or the defense) to know the relative strength and/or
weakness of the evidence presently in his
possession and the kind, tenor and source of
testimony he needs to enable him to prove his
case. Thus, the Court rules on the basis of a
petition for certiorari under Rule 65 and address
mainly the Omb d man exercise of discretion.
The room for intervention only occurs when a clear
and grave abuse of the exercise of discretion is
shown. (Quarto v. Ombudsman, G.R. No. 169042,
Oct. 5, 2011)
POLITICAL LAW
M. RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing
and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation,
or any other means which vitiate the free will shall
be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to and rehabilitation of victims of
torture or similar practices, and their families. (PHIL.
CONST., art. 3, § 12)
Miranda Rights Under Sec. 12(1)
1. The right to remain silent.
2. The right to have competent and independent
counsel preferably of his own choice.
3. The right to be informed of such rights. (People
v. Rapeza, G.R. No. 169431, April 3, 2007)
Purpose
The objective is to prohibit incommunicado
interrogation of individuals in a police-dominated
atmosphere,
resulting
in
self-incriminating
statement without full warnings of constitutional
rights. (People v. Rapeza, G.R. No. 169431, April
3, 2007)
The purposes of the safeguards prescribed by
Miranda are to ensure that the police do not coerce
or trick captive suspects into confessing, to relieve
the inherently compelling pressures generated by
the custodial setting itself, which work to undermine
the indi id al will to resist, and as much as
possible to free courts from the task of scrutinizing
individual cases to try to determine, after the fact,
whether particular confessions were voluntary.
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Those purposes are implicated as much by incustody questioning of persons suspected of
misdemeanours as they are by questioning of
persons suspected of felonies. (People v. Chavez,
G.R. No. 207950, Sept. 22, 2014)
RIGHT TO REMAIN SILENT
Silence Not an Implied Admission of Guilt
Clearly, when appellant remained silent when
confronted by the accusation of "AAA" at the police
station, he was exercising his basic and
fundamental right to remain silent. At that stage, his
silence should not be taken against him. Thus, it
was error on the part of the trial court to state that
appellan silence should be deemed as implied
admission of guilt. (People v. Guillen, G.R. No.
191756, Nov. 25, 2013)
A person under investigation has the right to refuse
to answer any question. His silence, moreover,
may not be used against him. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
Must Include an Explanation that Anything Said
Can and Will be Used Against Him
The warning of the right to remain silent must be
accompanied by the explanation that anything said
can and will be used against the individual in court.
This warning is needed in order to make him aware
not only of the privilege, but also of the
consequences of forgoing it. (Miranda v. Arizona,
384 U.S. 436, June 13, 1966)
RIGHT TO COMPETENT AND INDEPENDENT
COUNSEL
Purpose
The right to counsel at all times is intended to
preclude the slightest coercion as would lead the
accused to admit something false. The lawyer,
however, should never prevent an accused from
freely and voluntarily telling the truth. (People v.
Mojello, G.R. No. 145566, March 9, 2004)
Mandatory; Must be Provided if Person Cannot
Afford
The right to counsel is mandatory. Thus, if the
person under custodial investigation cannot afford
the services of a competent and independent
POLITICAL LAW
counsel, he must be provided with one. (PHIL.
CONST., art. III, § 12[1])
Counsel of Choice Not Exclusive
The right to counsel does not mean that the
accused must personally hire his own counsel. The
constitutional requirement is satisfied when a
counsel is:
1. Engaged by anyone acting on behalf of the
person under investigation; or
2. Appointed by the court upon petition of the said
person or by someone on his behalf. (People v.
Espiritu, G.R. No. 128287, Feb. 2, 1999)
The phrase "preferably of his own choice" does not
convey the message that the choice of a lawyer by
a person under investigation is exclusive as to
preclude other equally competent and independent
attorneys from handling the defense; otherwise the
tempo of custodial investigation will be solely in the
hands of the accused who can impede, nay,
obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another,
is not available to protect his interest. (People v.
Mojello, G.R. No. 145566, March 9, 2004)
Non-Independent Counsel
The Constitution further requires that the counsel
be independent; thus, he cannot be:
1. A special counsel
2. Public or private prosecutor
3. Counsel of the police
4. A municipal attorney whose interest is
admittedly adverse to that of the accused
5. Barangay captain
6. Lawyer applying for a position in the NBI where
it was NBI conducting the investigation
(People v. Reyes, G.R. No. 178300, March 17,
2009; People v. Tomaquin, G.R. No. 133188,
July 23, 2004; People v. Januario, G.R. No.
98252, Feb. 7, 1997)
Competent Counsel: Effective and Vigilant
A competent counsel is an effective and vigilant
counsel. An "effective and vigilant counsel"
necessarily and logically requires that the lawyer
be present and able to advise and assist his client
from the time the confessant answers the first
question asked by the investigating officer until the
signing of the extrajudicial confession. (People v.
Tomaquin, G.R. No. 133188, July 23, 2004)
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POLITICAL LAW
RIGHT TO BE INFORMED
issuing an in i a ion to a person who is
investigated in connection with an offense he is
suspected to have committed, without prejudice to
the liability of the in i ing officer for any violation of
law. This means that even those who voluntarily
surrendered before a police officer must be
apprised of their Miranda rights. For one, the same
pressures of a custodial setting exist in this
scenario. (People v. Bitancor, GR. No. 207950;
Sept. 22, 2014)
Transmission of Meaningful Information
An accused's right to be informed of the right to
remain silent and to counsel contemplates the
transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an
abstract constitutional principle. (People v.
Januario, G.R. No. 98252, Feb. 7, 1997)
Effective Communication on the Part of the
Police
The right of a person under custodial investigation
to be informed of his rights to remain silent and to
counsel implies a correlative obligation on the part
of the police investigator to explain and to
contemplate an effective communication that
results in an understanding of what is conveyed.
Short of this, there is a denial of the right, as it
cannot then truly be said that the person has been
truly informed of his rights. (People v. Januario,
G.R. No. 98252, Feb. 7, 1997)
When accused was merely told of his constitutional
rights but was never asked whether he understood
what he was told or whether he wanted to exercise
or avail of such rights is an ineffective and
inadequate compliance with the mandates of the
constitution. Any confession obtained under these
circumstances is flawed and cannot be used as
evidence not only against the declarant but also
against his co-accused. (People v. Verano, G.R.
No. 181474, July 26, 2017)
1. AVAILABILITY
Custodial Investigation
The invocation of these rights applies during
custodial investigation, which begins when the
police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on
a particular suspect taken into custody by the
police who starts the interrogation and propounds
questions to the person to elicit incriminating
statements. (People v. Chavez, G.R. No. 207950,
Sept. 22, 2014)
Applies
to
Invitation,
R
for
A
a a c & Voluntary Surrender
Republic Act No. 7438 expanded the definition of
custodial investigation to incl de the practice of
The circumstances surrounding the appearance of
the accused in the police station falls within the
definition of custodial investigation. He was
identified as a suspect and when he was given a
req est for appearance , he was already singled
out as the probable culprit. When he appeared
before the police station, the pressure of custodial
setting was present. Furthermore, based on his
testimony, the police was inside the station during
the confrontation. A "request for appearance"
issued by law enforcers to a person identified as a
suspect is akin to an "invitation." Thus, he is
covered by the rights of an accused while under
custodial investigation. Any admission obtained
from the "request for appearance" without the
assistance of counsel is inadmissible in evidence.
(Lopez v. People, G.R. No. 212186, June 29, 2016)
Does Not Apply to Police Lineups
As a rule, a police lineup is not part of the custodial
investigation. The right to be assisted by counsel
attaches only during custodial investigation and
cannot be claimed by the accused during
identification in a police line-up because it is not
part of the custodial investigation process. This is
because during a police line-up, the process has
not yet shifted from the investigatory to the
accusatory and it is usually the witness or the
complainant who is interrogated and who gives a
statement in the course of the line-up. (People v.
Lara, G.R. No. 199877, Aug. 13, 2012)
However, the moment there is a move or even an
urge of said investigators to elicit admissions or
confessions or even plain information which may
appear innocent or innocuous at the time, from said
suspect, he should then and there be assisted by
counsel, unless he waives the right, but the waiver
shall be made in writing and in the presence of
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counsel. (Gamboa v. Judge Cruz, G.R. No. L56291 June 27, 1988)
NON-AVAILABILITY
1. The rights are not available before
government investigators become involved.
Thus, admissions made in an administrative
investigation conducted by officials of the
Philippine Airlines do not come under Section
12. (People v. Ayson, G.R. No. 85215, July 7,
1989)
2. The rights are not available when the
confession or admission is made to a private
individual. (People v. Tawat, G.R. No. L62871, May 25, 1984)
3. The rights do not apply to a person
undergoing audit because an audit examiner
is not a law enforcement officer. (Navallo v.
Sandiganbayan, G.R. No. 97214, July 16,
1994)
4. The rights do not apply to a verbal admission
made to a radio announcer who was not part
of the investigation. (People v. Ordono, G.R.
No. 132154, June 29, 2000)
5. The rights do not apply to an admission made
to a mayor who is approached not as mayor
but as confidante. (People v. Zuela, G.R. No.
112177, Jan. 28, 2000)
6. The rights do not apply to an interview
recorded on video in the presence of
newsmen, but the Supreme Court warned that
trial courts should admit similar confessions
with extreme caution. (People v. Endino, G.R.
No. 133026, Feb. 20, 2001)
7. The rights do not apply to persons who
voluntarily surrender, where no written
confession was sought to be presented in
evidence as a result of a formal custodial
investigation. (People v. Taylaran, G.R. No. L49149, Oct. 23, 1981)
8. The rights do not apply to spontaneous
statements, not elicited through questioning
by the authorities, but given in an ordinary
manner whereby the accused orally admits
having committed the crime. (People v.
Baloloy, G.R. No. 140740, April 12, 2002)
9. Person in a police line-up not entitled to
counsel. (Gamboa v. Judge Cruz, G.R. No. L56291 June 27, 1988)
10. Administrative proceedings. (Cudia v.
Superintendent of the PMA, G.R. No. 211362,
Feb. 24, 2015)
11. Signing of arrest reports and booking sheets.
It is not an extra-judicial statement and cannot
be the basis of a judgment of conviction. The
Booking Sheet is merely a statement of the
POLITICAL LAW
accused's being booked and of the date which
accompanies the fact of an arrest. (People v.
Bandin, G.R. No. 104494, Sept. 10, 1993)
When Rights End
The Criminal Process includes:
1. Investigation prior to the filing of charges
2. Preliminary examination and investigation after
charges are filed
3. Period of trial
The Miranda rights or the Section 12(1) rights were
conceived for the first of these three phases, that
is, when the inquiry is under the control of police
officers. It is in this situation that the psychological
if not physical atmosphere of custodial
investigations, in the absence of proper
safeguards, is inherently coercive. Outside of this
situation, Section 12(1) no longer applies and
Sections 14 and 17 come into play instead.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
The right to counsel under Section 12 (1) of Article
III of the Constitution applies in criminal
proceedings, but not in administrative proceedings.
Any proceeding conducted by an administrative
body is not part of the criminal investigation or
prosecution. While investigations conducted by an
administrative body may at times be akin to a
criminal proceeding, the fact remains that under
existing laws, a party in an administrative inquiry
may or may not be assisted by counsel,
irrespective of the nature of the charges and of the
respondent's capacity to represent himself, and no
duty rests on such body to furnish the person being
investigated with counsel. In an administrative
proceeding, a respondent has the option of
engaging the services of counsel or not. Thus, the
right to counsel is not always imperative in
administrative investigations because such
inquiries are conducted merely to determine
whether there are facts that merit disciplinary
measure against erring public officers and
employees, with the purpose of maintaining the
dignity of government service. As such, the hearing
conducted by the investigating authority is not part
of a criminal prosecution. (Gutierrez v COA, G.R.
No. 200628, Jan. 13, 2015, citing Remolona v
CSC, G.R. No. 137473, Aug. 2, 2001)
Summary of Availability and Non-Availability
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AVAILABLE
1. After a person has
been taken into
custody
2. When a person is
deprived of his
freedom of action
in any significant
way
3. When a person is
issued an invitation
for an investigation
in connection with
an offense he is
suspected to have
committed
4. When a person
voluntarily
surrenders to the
police
5. The investigation is
being conducted
by the government
with respect to a
criminal
offense
(police, DOJ, NBI)
NOT AVAILABLE
1. During a police lineup
[Exception:
Once there is a
move among the
investigators
to
elicit admissions or
confessions
from
the suspect]
2. During
administrative
investigations
3. Confessions made
by an accused at
the
time
he
voluntarily
surrendered to the
police or outside the
context of a formal
investigation
4. Statements made to
a private person
5. Signing of arrest
reports and booking
sheets
2. REQUISITES
The Miranda doctrine requires that: (S3A)
1. Any person under custodial investigation has
the right to remain Silent;
2. Anything he says can and will be used Against
him in a court of law;
3. He has the right to talk to an Attorney before
being questioned and to have his counsel
present when being questioned; and
4. If he cannot Afford an attorney, one will be
provided before any questioning if he so
desires. (People v. Cabanada, G.R. No.
221424, July 19, 2017)
3. WAIVER
The rights of persons under custodial investigation
cannot be waived except:
1. In writing; and
2. In the presence of counsel. (PHIL. CONST., art.
III, § 12[1])
R.A. 7438 Extrajudicial Confession (Sec. 2)
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation:
1. Shall be in writing; and
POLITICAL LAW
2. Signed by such person in the presence of
his counsel or in the latter's absence:
a. Upon a valid waiver, and
b. In the presence of any of the following
as chosen by him/her:
Parents
Elder brothers and sisters
Spouse
Municipal mayor
Municipal judge
District school supervisor
Priest or minister of the gospel
RA 7438 does not propose that the persons
mentioned above appear in the alternative or as a
substitute for counsel without any condition or
clause. It is explicitly stated therein that before the
above-mentioned persons can appear two (2)
conditions must be met:
1. Counsel of the accused must be absent, and
2. A valid waiver must be executed. (People v.
Ordono, G.R. No. 132154, June 29, 2000)
Extrajudicial Confession
Under the present laws, a confession to be
admissible must be: (WAVES)
1. Made in Writing, and in the language known to
and understood by the confessant;
2. Made with the Assistance of competent and
independent counsel;
3. Given Voluntarily and intelligently where the
accused realized the legal significance of his
act;
4. Express and categorical; and
5. Signed, or if the confessant does not know how
to read and write, thumbmarked by him. (People
v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998)
Burden of Proof: Lies With the Prosecution
Whenever a protection given by the Constitution is
waived by the person entitled to that protection, the
presumption is always against the waiver.
Consequently, the prosecution must prove with
strongly convincing evidence to the satisfaction of
this Court that indeed:
1. The accused willingly and voluntarily submitted
his confession; and
2. Knowingly and deliberately manifested that he
was not interested in having a lawyer assist him
during the taking of that confession. (People v.
Jara, G.R. No. L-61356-57, Sept. 30, 1986)
Effect of Absence of a Valid Waiver: Confession
Inadmissible in Evidence
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In the absence of a valid waiver, any confession
obtained during the police custodial investigation
relative to the crime, including any other evidence
secured by virtue of the said confession is
inadmissible in evidence even if the same was not
objected to during the trial by the counsel of the
appellant. (People v. Samontañez, G.R. No.
134530, Dec. 4, 2000)
EXCLUSIONARY RULE
Any confession or admission obtained in violation
of the rights of a person under custodial
investigation hereof shall be inadmissible in
evidence against him. (PHIL. CONST., art. III, §
12[3])
Nature
According to the exclusionary rule, once the
primary source (the "tree") is shown to have been
unlawfully obtained, any secondary or derivative
evidence (the "fruit") derived from it is also
inadmissible. Stated otherwise, illegally seized
evidence is obtained as a direct result of the illegal
act, whereas the "fruit of the poisonous tree" is the
indirect result of the same illegal act. The "fruit of
the poisonous tree" is at least once removed from
the illegally seized evidence, but it is equally
inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not
be used to gain other evidence because the
originally illegally obtained evidence taints all
evidence subsequently obtained. (People v.
Samontañez, G.R. No. 134530, Dec. 4, 2000)
Covers Both Confession & Admission
Admission an act, declaration or omission of
a party as to a relevant fact.
Confession
a declaration of an accused
acknowledging his guilt of the offense charged,
or of any offense necessarily included therein.
(Aquino v. Paiste, G.R. No. 147782, June 25,
2008)
Only Covers Confession or Admission Made
During Custodial Investigation
Infractions of the so-called Miranda rights render
inadmissible only the extrajudicial confession or
admission made during custodial investigation.
The admissibility of other evidence, provided they
are relevant to the issue and is not otherwise
excluded by law or rules, is not affected even if
POLITICAL LAW
obtained or taken in the course of custodial
investigation.
The fact that that accused was not assisted by
counsel during the investigation and inquest
proceedings does not in any way affect his
culpability. It has already been held that "the
infractions of the so-called Miranda rights render
inadmissible only the extrajudicial confession or
admission made during custodial investigation."
Here, appellant's conviction was based not on his
alleged uncounseled confession or admission but
on the testimony of the prosecution witness.
(People v. Bio, G.R. No. 195850, Feb. 16, 2015)
However, there is merit in J ani o claim that his
constitutional rights during custodial investigation
were violated by Judge Dicon when the latter
propounded to him incriminating questions without
informing him of his constitutional rights. It is settled
that at the moment the accused voluntarily
surrenders to, or is arrested by, the police officers,
the custodial investigation is deemed to have
started. So, he could not thenceforth be asked
about his complicity in the offense without the
assistance of counsel. Judge Dicon claim that no
complaint has yet been filed and that neither was
he conducting a preliminary investigation deserves
scant consideration. The fact remains that at that
time Juanito was already under the custody of the
police authorities, who had already taken the
statement of the witnesses who were then before
Judge Dicon for the administration of their oaths on
their statements. At any rate, while it is true that
J ani o extrajudicial confession before Judge
Dicon was made without the advice and assistance
of counsel and hence inadmissible in evidence, it
could however be treated as a verbal admission of
the accused, which could be established through
the testimonies of the persons who heard it or who
conducted the investigation of the accused.
(People v. Baloloy, G.R. No. 140740, April 12,
2002)
Exclusionary Rule Not Applicable to the
Violator of the Right
The constitutional provision makes the confessions
and admissions inadmissible again him, that is,
against the source of the confession or admission.
And it is he alone who can ask for exclusion. They
are, however, admissible against the person
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violating the constitutional prohibition, to the extent
that admissibility is allowed by the ordinary rules on
evidence. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Inter Alios Acta Rule
General Rule: An extrajudicial confession is
binding only on the confessant and is not
admissible against his or her co-accused because
it is considered as hearsay against them. The rights
of a party cannot be prejudiced by an act,
declaration, or omission of another.
Exception: An admission made by a
conspirator under Section 31, Rule 130 of the
Rules of Court. This provision states that the
act or declaration of a conspirator in
furtherance of the conspiracy and during its
existence may be given in evidence against
the co-conspirator after the conspiracy is
shown by evidence other than such act of
declaration. It is admissible against a coaccused when it is used as circumstantial
evidence to show the probability of
participation of said co-accused in the crime.
Thus, in order that the admission of a conspirator
may be received against his or her co-conspirators,
it is necessary that:
1. The conspiracy be first proved by evidence
other than the admission itself;
2. The admission relates to the common object;
and
3. It has been made while the declarant was
engaged in carrying out the conspiracy. (People
v. Cachuela, G.R. No. 191752, June 10, 2013)
In order that an extra-judicial confession may be
used against a co-accused of the confessant, there
must be a finding of other circumstantial evidence
which when taken together with the confession
would establish the guilt of a co-accused beyond
reasonable doubt. (People v. Constancio, G.R. No.
206226, April 04, 2016)
N. RIGHTS OF THE ACCUSED
1.
All persons, except those charged with
offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties,
or be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail
shall not be required. (PHIL. CONST., art. 3, §
13)
2.
(1) No person shall be held to answer for a
criminal offense without due process of law.
(2) In all criminal prosecutions, the accused
shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the
nature and cause of the accusation against
him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and
to have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf. However, after
arraignment,
trial
may
proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable. (PHIL.
CONST., art. 3, § 14)
Rights of the Accused
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed of the nature and cause
of accusation
7. Right to speedy, impartial, and public trial
8. Right to confrontation
9. Compulsory process
10. Trials in absentia
3. CRIMINAL DUE PROCESS
Concept
As to procedural due process, the requirement that
no person shall be held to answer for a criminal
offense without due process of law simply requires
that the procedure established by law be followed.
If that procedure fully protects life, liberty and
property of the citizens in the state, then it will be
held to be due process of law. (U.S. v. Ocampo,
G.R. No. L-5527, Dec. 22, 1910)
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This presupposes that the penal law being applied
satisfies the substantive requirements of due
process.
(Bernas,
The
1987
Philippine
Constitution: A Comprehensive Reviewer, 2011)
Another aspect of due process is the right to be
tried by an impartial judge (cold neutrality of an
independent, wholly-free, disinterested and
impartial tribunal). (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
Due Process and Military Tribunal
A military commission or tribunal cannot try and
exercise jurisdiction, even during the period of
martial law, over civilians for offenses allegedly
committed by them as long as civil courts are open
and functioning, and that any judgement rendered
by such body relating to a civilian is null and void
for lack of jurisdiction on the part of the military
tribunal concerned. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009)
4. BAIL
Concept
Bail is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before
any court as required under the conditions
hereinafter specified. Bail may be given in the form
of corporate surety; property bond, cash deposit, or
recognizance. (ROC, Rule 114, § 1)
Purpose
(0) To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt
(1) To enable him to prepare his defense without
being subjected to punishment before
conviction (Cortes v. Catral, A.M. No. RTJ-971387, Sept. 10, 1997)
The main purpose of bail is to relieve an accused
from the rigors of imprisonment until his conviction
and secure his appearance at the trial. Thus, as
bail is intended to secure one provisional liberty,
the same cannot be posted before custody over
him has been acquired by the judicial authorities,
either by lawful arrest or voluntary surrender. Only
those who have been either arrested, detained, or
otherwise deprived of their freedom, will ever have
the occasion to seek the protective mantle
extended by the right to bail. But the person
seeking provisional release need not wait for a
formal complaint or information to be filed against
him. (Paderanga v. Court of Appeals, G.R. No.
115407, Aug. 28, 1995)
General Rule: All persons actually detained shall,
before conviction be entitled to bail. (PHIL. CONST.,
art. 3, § 13).
Since bail is constitutionally available to all
per on , it must be available to one who is
detained even before formal charges are filed.
Exceptions:
(1) Persons charged with offenses punishable by
reclusion perpetua, life imprisonment and
death, when evidence of guilt is strong
For the purpose of determining whether an
offense is punishable by reclusion
perpetua, what is determinative is the
penalty provided for by law regardless of
the attendant circumstances. To require
more than that would practically entail a
full-dress trial thereby defeating the
purpose of bail which is to enable the
accused to obtain liberty pending trial.
Strong evidence means proof e iden
pre mp ion grea .
or
(2) Persons who are members of the AFP facing a
court martial
Trial Court Conviction
If convicted by the trial court, bail is only
discretionary pending appeal (Magno v. Abbas,
G.R. No. L-19361, Feb.y 26, 1965; Comendador,
et al. v. Villa, G.R. No. 93177, Aug. 2, 1991)
When a person who is out on bail is convicted, the
bondsman must surrender him for execution of the
final judgement. (ROC, Rule 114, § 2[d])
Under Section 13, Article 3, Before Conviction,
Bail is Either:
A. A matter of right: When the offense charged
is punishable by any penalty lower than
reclusion perpetua. To this extent, the right is
absolute.
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B. A matter of discretion: When the offense
charged is punishable by reclusion perpetua, it
shall be denied if the evidence of guilt is strong.
Once it is determined that the evidence of guilt
is not strong, bail becomes a matter of right.
(People v. Nitcha, G.R. No. 113517, Jan. 19,
1995)
Discretion refers to the co r discretion to
determine whether or not the evidence of
guilt is strong.
Do not confuse interpretation of Bail under
Bill of Rights with the interpretation of Bail
under Rule 114 of the Revised Rules of
Criminal Procedure as to:
i.
Bail as a Matter of Right (Sec 4),
ii.
Bail as a Matter of Discretion (Sec
5),
iii. Non-Bailable offenses (Sec 7).
Strong Evidence Means Evident Proof or
Presumption is Great
Evident proof means clear, strong evidence which
leads a well-guarded dispassionate judgment to
the conclusion that the offense has been
committed as charged, and that the accused is the
guilty agent.
Presumption is great when the circumstances
testified to are such that the inference of guilt
naturally to be drawn therefrom is strong, clear, and
convincing to an unbiased judgment and excuses
all reasonable probability of any other conclusion.
(People v. Judge Cabral, G.R. No. 131909, Feb.
18, 1999)
Since the grant of bail is discretionary and can only
be determined by judicial findings, such discretion
can only be exercised after evidence is submitted
to the court, the petitioner has the right of cross
examination and to introduce his own evidence in
rebuttal. (Santos v. Judge How, A.M. No. RTJ-051946, Jan. 26, 2007)
Health Considerations
A mere claim of illness is not a ground for bail. Bail
is not a sick pass for an ailing or aged detainee or
prisoner needing medical care outside the prison
facility. (People v. Fitzgerald, G.R. No. 149723,
Oct. 27, 2006)
POLITICAL LAW
BUT SEE: The currently fragile state of Enrile
health presents another compelling justification for
his admission to bail.
Bail for the provisional liberty of the accused,
regardless of the crime charged, should be allowed
independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
injurious to his health or to endanger his life.
Indeed, denying him bail despite imperiling his
health and life would not serve the true objective of
preventive incarceration during the trial.
Accordingly, we conclude that the Sandiganbayan
arbitrarily ignored the objective of bail to ensure the
appearance of the accused during the trial; and
unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such,
the Sandiganbayan gravely abused its discretion in
denying Enrile Motion to Fix Bail. (Juan Ponce
Enrile v. Sandiganbayan, G.R. No. 213847, Aug.
18, 2015)
A person is considered to be in the custody of
law when:
(1) He is arrested by virtue of a warrant of arrest or
by warrantless arrest.
(2) He has voluntarily submitted himself to the
jurisdiction of the court by surrendering to the
proper authorities.
The Court held that when the person has actually
posted a bail bond, which was accepted by the
court, he has effectively submitted himself to the
jurisdiction of the court over his person.
(Paderanga v. Court of Appeals, G.R. No. 115407,
Aug. 28, 1995)
Other Rights in Relation to Bail:
A. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus
is suspended
B. Excessive bail shall not be required (PHIL.
CONST., art. 3, § 13).
Factors to be considered in setting the amount
of bail: (F3P3 CAWN)
1. Financial Ability of the accused to give bail
2. Forfeiture of other bail
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3.
The accused was a Fugitive from justice
when arrested
4. Probability of the accused appearing at the
trial
5. Penalty for the offense charged
6. Pendency of other cases where the accused
is on bail
7. Character and reputation of the accused
8. Age and health of the accused
9. Weight of the evidence against the accused
10. Nature and circumstance of the offense
(ROC, Rule 114, § 9)
Where the right to bail exists, it should not be
rendered nugatory by requiring a sum that is
excessive. (De La Camara v. Enage, G.R. Nos. L32951-2, Sept. 17, 1971)
To fix bail at an amount equivalent to the civil
liability of which petitioner is charged is to permit
the impression that the amount paid as bail is an
exaction of the civil liability that accused is charged
of; this we cannot allow because bail is not
intended as a punishment, nor as a satisfaction of
civil liability which should necessarily await the
judgment of the appellate court. (Yap v. CA, G.R.
141529, June 6, 2001)
Courts Cannot Strictly Require Cash Bond
The condition that the accused may have
provisional liberty only upon his posting of a cash
bond is abhorrent to the nature of bail and
transgresses our law on the matter. The allowance
of a cash bond in lieu of sureties is authorized in
this jurisdiction only because our rules expressly
provide for it. And even where cash bail is allowed,
the option to deposit cash in lieu of a surety bond
primarily belongs to the accused.
Recognizance
An obligation of record entered into before a court
guaranteeing the appearance of the accused for
trial. It is in the nature of a contract between the
surety and the state. The details on how
recognizance can be obtained or when it is
applicable is left to legislation. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2009)
POLITICAL LAW
Apart from bail, a person may attain provisional
liberty through recognizance, which is an obligation
of record entered into by a third person before a
court, guaranteeing the appearance of the accused
for trial. It is in the nature of a contract between the
surety and the state. (People v. Abner, G.R. No. L2508, Oct. 27, 1950)
Dismissal of Appeal in Criminal Cases Due to
Jumping of Bail
The Court of Appeals/Supreme Court may, upon
motion of the appellee or motu proprio, dismiss the
appeal if the appellant:
1. If appellant escapes from prison or
confinement;
2. If appellant jumps bail; or
3. If appellant flees to another country during the
pendency of the appeal
(ROC, Rule 124, § 8; Rule 125, § 1)
Bail in Deportation Proceedings
As a general rule, the constitutional right to bail is
available only in criminal proceedings. Thus, they
do not apply in deportation proceedings, which are
administrative in nature. However, see Mejoff v.
Director of Prisons, where the court applied the
general principles of international law found in the
UDHR and ordered released under a bond in a
Habeas Corpus petition. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Bail in Extradition Cases
Our extradition law does not provide for the grant
of bail to an extraditee. There is no provision
prohibiting him or her from filing a motion for bail, a
right to due process under the Constitution.
However, an extradition proceeding, while
ostensibly administrative, bears all earmarks of a
criminal process. A potential extraditee may be
subject to arrest, to a prolonged restraint of liberty,
and forced to transfer to the demanding state
following the proceedings.
The standard used in granting bail in extradition
cases is clear and convincing e idence. This
standard should be lower than proof beyond
reasonable doubt but higher than preponderance
of evidence.
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The potential extraditee must prove by clear and
convincing e idence that :
i. he is not a flight risk and will abide with all
the orders and processes of the extradition
court, and
ii. that there exist special, humanitarian, and
compelling reasons for him to be released
on bail. (Government of Hong Kong v.
Olalia, Jr., G.R. No.153675, April 19, 2007)
Right to a Hearing
In cases where the accused is charged with an
offense punishable by reclusion perpetua, a
hearing, mandatory in nature and which should be
summary or otherwise in the discretion of the court,
is required with the participation of both the
defense and a duly notified representative of the
prosecution for the purpose of ascertaining
whether or not the evidence of guilt is strong.
The constitutional right to bail necessarily includes
the right to a hearing. When bail is denied without
a hearing, a fundamental right is violated. Hence,
the presentation of evidence for the prosecution in
private inquiry, in the absence of the detainee, and
the subsequent issuance of an order on the basis
of the private inquiry, cannot be allowed. The
hearing, however, need not be separate and
distinct from the trial itself. And it need only be
summary. The right to a prompt hearing is waived
by agreeing to postponements.
Parallel to the acc ed right to a hearing is the
pro ec ion right to present evidence. If the
prosecution is denied such right, the grant of bail is
void. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
3. PRESUMPTION OF INNOCENCE
Concept
Its principal effect is that no person shall be
convicted unless the prosecution has proved him
guilty beyond reasonable doubt. (Bernas, The
1987 Constitution: A Comprehensive Reviewer,
2011)
Prima Facie Presumption
The Constitution does not prohibit the legislature
from providing that proof of certain facts leads to a
prima facie presumption of guilt, provided that the
facts proved have a reasonable connection to the
ultimate fact presumed. (U.S. v Luling, G.R. No. L11162, Aug. 12, 1916)
Accusation Not Synonymous With Guilt
An accusation, according to the fundamental law,
is not synonymous with guilt. The challenged
proviso contravenes the constitutional presumption
of innocence, as a candidate is disqualified from
running for public office on the ground alone that
charges have been filed against him before a civil
or military tribunal. It condemns before one is fully
heard. A person disqualified to run for public office
on the ground that charges have been filed against
him is virtually placed in the same category as a
person already convicted of a crime with the
penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold
office during the term of the sentence (REVISED
PENAL CODE, art. 44) (Dumlao v. COMELEC, G.R.
No. L-52245, Jan. 22, 1980)
Conviction in Illegal Drugs Cases
To convict an accused of the illegal sale of
dangerous drugs, the prosecution must not only
prove that the sale took place, but also present the
corpus delicti in evidence. The only time that
conviction may be sustain despite noncompliance
with the chain of custody requirements is if there
were justifiable grounds provided. Before the
courts may consider the seized drugs as evidence
despite
noncompliance
with
the
legal
requirements, justifiable grounds must be identified
and proven. The prosecution must establish the
steps taken to ensure that the integrity and
evidentiary value of the seized items were
preserved. It is the positive duty to establish its
reason for the procedural lapses. (People v.
Ternida y Munar, G.R. No. 212626, June 3, 2019)
Continues Pending Appeal
Presumption of innocence persists even when
there is conviction by lower court and case is still
on appeal. Such presumption is not destroyed until
there is proof that accused is guilty beyond
reasonable doubt based on evidence. (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer, 2011)
Equipoise Rule
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Where the evidence in a criminal case is evenly
balanced, the constitutional presumption of
innocence tilts the scales in favor of the accused.
(People v. Erguiza, G.R. No. 171348, Nov. 26
2008)
Anti-Hazing Law
Section 14 of the Anti-Hazing Law provides that an
accused's presence during a hazing is prima facie
evidence of his or her participation. However, this
does not violate the constitutional presumption of
innocence. The constitutional presumption of
innocence is not violated when there is a logical
connection between the fact proved and the
ultimate fact presumed. When such prima facie
evidence is unexplained or not contradicted by the
accused, the conviction founded on such evidence
will be valid. However, the prosecution must still
prove the guilt of the accused beyond reasonable
doubt. The existence of a disputable presumption
does not preclude the presentation of contrary
evidence. Neither has it been shown how Section
14 does away with the requirement that the
prosecution must prove the participation of the
accused in the hazing beyond reasonable doubt.
(Fuertes v. Senate of the Philippines, G.R. No.
208162, Jan. 07, 2020)
Duty of Court to Inform Accused of his Right to
Counsel
1. Inform accused that he has the right to have his
own counsel before being arraigned;
2. After giving such information, to ask accused
whether he desires the aid of counsel;
3. If he so desires to procure the services of
counsel, the court must grant him reasonable
time to do so; and
4. If he so desires to have counsel but is unable
to employ one, the court must assign a counsel
de officio to defend him.
(People v. Agbayani, G.R. No. 122770, Jan 16,
1998) (ROC, Rule 116, § 6)
When an accused unaided by counsel qualifiedly
admits his guilt to an ambiguous or vague
information from which a serious crime can be
deduced, it is not prudent for the trial court to
render a serious judgment finding the accused
guilty of a capital offense without absolutely any
evidence to determine and clarify the true facts of
the case. (People v. Holgado, G.R. No. L-2809,
March 22, 1950)
6. RIGHT TO BE INFORMED OF THE
NATURE AND CAUSE OF ACCUSATION
4. RIGHT TO BE HEARD
Includes the right to be present at the trial from
arraignment to promulgation of sentence. (U.S.
Beecham, G.R. No. 5161 & 5162, Oct. 9, 1912)
After
arraignment,
trial
may
notwithstanding absence of accused.
proceed
Elements: (PIC3)
1.
2.
3.
4.
5.
Right to be Present at the trial;
Right to Counsel;
Right to an Impartial judge;
Right of Confrontation;
Right to Compulsory process to secure the
attendance of witnesses.
(Bernas,
The
1987
Constitution:
A
Comprehensive Reviewer, 2011)
5. ASSISTANCE OF COUNSEL
Purpose
1. To furnish the accused with a description of the
charge against him as will enable him to make
his defenses.
2. To avail himself of his conviction or acquittal
against a further prosecution for the same
cause.
3. To inform the court of the facts alleged. (U.S.
v. Karelsen, G.R. No. 1376, Jan. 21, 1904)
Sufficiency of Complaint or Information
A complaint or information is sufficient if it states
the:
1. Name of the accused;
2. Designation of the offense given by the statute;
3. Acts or omissions complained of as constituting
the offense;
4. Name of the offended party;
5. Approximate date of the commission of the
offense; and
6. Place where the offense was committed.
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When an offense is committed by more than one
person, all of them shall be included in the
complaint or information. (ROC, Rule 110, § 6)
If the information fails to allege the material
elements of the offense, the accused cannot be
convicted thereof even if the prosecution is able to
present evidence during the trial with respect to
such elements.
The real nature of the crime charged is determined
from the recital of facts in the information. It is not
based on the caption, preamble or from the cited
provision of law allegedly violated. (People v.
Labado, G.R. No. L-38548, July 24, 1980)
In a situation where a court (in a fused action for
the enforcement of criminal and civil liability) may
validly order an accused-respondent to pay an
obligation arising from a contract, a per on right
to be notified of the complaint, and the right to have
the complaint dismissed if there is no cause of
action, are completely defeated. If the accusedrespondent is completely unaware of the nature of
the liability claimed against him or her at the onset
of the case, he is blindsided. It is a clear violation
of a person's right to due process. (Gloria S. Dy v.
People of the Philippines, GR No. 189081, August
10, 2016)
POLITICAL LAW
information. (People v. Begino, G.R. No. 181246,
March 20, 2009)
Date of Commission of the Crime
General Rule: It is unnecessary to state in the
information the precise date that the offense was
committed
Exception: When it is an essential element of
the offense. (People v. Bugayong, G.R. No.
126518, Dec. 2, 1998)
When the time given in the complaint is not
essential, it need not be proven as alleged. The
complaint will be sustained if there is proof that the
offense was committed at any time within the
period of the statute of limitations and before the
commencement of the action. The date of
commission is not an element of rape. The
gravamen of rape is carnal knowledge of a woman.
(People v. Rafon, G.R. No. 169059, Sept. 5, 2007)
The Supreme Court has upheld complaints and
information in prosecutions for rape which merely
alleged the month and year of its commission.
(People v. Ching, G.R. No. 177150, Nov. 22, 2007)
7. RIGHT TO SPEEDY, IMPARTIAL, AND
PUBLIC TRIAL
a. Right to Speedy Trial
Qualifying and Aggravating Circumstances
Must be Alleged
The complaint or information shall state the
designation of the offense given by the statute,
aver the acts or omissions constituting the offense,
and specify its qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section or
subsection of the statute punishing it. (ROC, Rule
110, § 8)
Factors Used in Determining Whether the Right
to a Speedy Trial Has Been Violated: (TL-RAP)
1. Time expired from the filing of the information
2. Length of delay involved
3. Reasons for the delay
4. Assertion or non-assertion of the right by the
accused
5. Prejudice caused to the defendant (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer 2011)
Since the qualifying circumstance of common law
po e was not alleged in the Information for rape
against appellant, he could not be convicted of rape
in the qualified form as he was not properly
informed of the nature and cause of accusation
against him. In a criminal prosecution, it is a
fundamental rule that every element of the crime
charged must be alleged in the complaint or
Remedy if the Right to Speedy Trial was
violated:
1. He can move for the dismissal of the case
2. If he is detained, he can file a petition for the
issuance of writ of habeas corpus. (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer, 2011)
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The right to speedy trial is considered violated only
when the proceeding is attended by vexatious,
capricious and oppressive delays. Courts are
required to do more than a mathematical
computation of the number of postponements of
the scheduled hearings of the case and to give
particular regard to the facts and circumstances
peculiar to each case. (Nelson Imperial, et al. v.
Maricel M. Joson, et al.; Santos O. Francisco v.
Spouses Gerard and Maricel Joson Nelson;
Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos.
160067, 170410, 171622, Nov. 17, 2010)
Where a prosecuting officer, without good cause,
secures postponements of the trial of a defendant
against his protest beyond a reasonable period of
time, as in this instance for more than a year, the
accused is entitled to relief by a proceeding in
mandamus to compel a dismissal of the
information, or if he be restrained of his liberty, by
habeas corpus to obtain his freedom. (Conde v.
Rivera, G.R. No. L-21741, Jan. 25, 1924)
Dismissal Based on the Right to Speedy Trial
If the dismissal is valid, it amounts to an acquittal
and can be used as basis to claim double jeopardy.
This would be the effect even if the dismissal was
made with the consent of the accused. (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer, 2011)
Speedy Trial v. Speedy Disposition of Cases
The right to a speedy trial is available only to an
accused and is a peculiarly criminal law concept,
while the broader right to a speedy disposition of
cases may be tapped in any proceedings
conducted by state agencies. In this case, the
appropriate right involved is the right to a speedy
disposition of cases, the recovery of ill-gotten
wealth being a civil suit. (Coconut Producers
Federation, Inc. et al. v. Republic of the Philippines;
Wigberto E. Tanada, et al., intervenors; Danilo S.
Ursua v. Republic of the Philippines, G.R. Nos.
177857-58 & G.R. No. 178193, Jan. 24, 2012)
b. Right to Impartial Trial
The accused is entitled to the cold neutrality of an
impartial j dge. It is an element of due process.
POLITICAL LAW
When a judge has previously convicted a person of
a crime i.e., arson, he should disqualify himself
from hearing another case involving the same
person, but with a different crime, i.e., malversation
(Ignacio v. Villaluz, G.R. No. L-37527-52, May 25,
1979)
c. Right to Public Trial
The attendance at the trial is open to all irrespective
of their relationship to the accused. However, if the
evidence to be adduced is offensive to decency or
public morals, the public may be excluded. (Garcia
v. Domingo, G.R. No. L-30104, July 25, 1973)
The purpose is to serve as a afeg ard against
any attempt to employ our courts as instruments of
pro ec ion. The knowledge that every trial is
subject to the contemporaneous review in the
forum of the public opinion is an effective restraint
on possible abuse of judicial power. (Garcia v.
Domingo, G.R. No. L-30104, July 25, 1973)
The right of the accused to a public trial is not
violated if the hearings are conducted on
Saturdays, either with the consent of the accused
or if he failed to object thereto.
An accused is entitled to a public trial, at least to
the extent of having his friends, relatives and
counsel present no matter with what offense he
may be charged. (In Re: Oliver, 333 U.S. 257,
March 8, 1948)
8. RIGHT OF CONFRONTATION
Purpose
1. To afford the accused an opportunity to crossexamine the witness
2. To allow the judge the opportunity to observe
the conduct or demeanor of the witness
(Bernas,
The
1987
Constitution:
A
Comprehensive Reviewer, 2011)
Exceptions to the right to face witnesses:
1. The admissibility of d ing declara ion
2. Trial in absentia under Section 14(2)
3. With respect to child testimony
(Bernas,
The
1987
Constitution:
Comprehensive Reviewer, 2011)
A
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Notes:
Where a party has had the opportunity to crossexamine an opposing witness but failed to avail
himself of it, he necessarily forfeits the right to
cross-examine and the testimony given on direct
examination of the witness will be received or
allowed to remain in the record. (People v.
Seneris, G.R. No. L-48883, Aug. 6, 1980)
It is demandable only during trials. Thus, it
cannot be availed of during preliminary
investigations.
Right of confrontation is available during trial
which begins only upon arraignment.
Section 7 of the Special Rules of Procedure
prescribed for Shari a courts aforecited provides
that if the plaintiff has no evidence to prove his
claim, the defendant shall take an oath and
judgment shall be rendered in his favor by the
Court. On the other hand, should defendant
refuse to take an oath, plaintiff may affirm his
claim under oath, in which case judgment shall
be rendered in his favor. Said provision
effectively deprives a litigant of his constitutional
right to due process. It denies a party his right to
confront the witnesses against him and to crossexamine them. It should have no place even in
the Special Rules of Procedure of the Shari a
courts of the country. (Tampar v. Usman, G.R.
No. 82077, Aug. 16, 1991)
9. COMPULSORY PROCESS
Compulsory process to secure:
1. The attendance of witnesses
2. The production of evidence in his behalf
The 1973 and 1987 Constitutions expanded the
right to compulsory process which now includes the
right to secure the production of evidence in one's
behalf. By analogy, U.S. v. Ramirez which laid
down the requisites for compelling the attendance
of witnesses, may be applied to this expanded
concept. Thus, the movant must show:
1. That the evidence is really material;
2. That he is not guilty of neglect in previously
obtaining the production of such evidence;
3. That the evidence will be available at the time
desired; and
4. That no similar evidence could be obtained.
(Bernas,
The
1987
Constitution:
A
Comprehensive Reviewer, 2011)
10. TRIALS IN ABSENTIA
Requisites (ANU)
1. The accused has been validly Arraigned and
2. Accused has been duly Notified; and
3. His failure to appear is Unjustifiable. (Parada
v. Veneracion, A.M. No. RTJ-96-1353, March
11, 1997)
This is allowed to speed up disposition of criminal
cases. (People v. Salas, G.R. No. L-66469, July 29,
1986)
Voluntary Waiver
Trial in absentia can also take place when the
accused voluntarily waives his right to be present.
The right may be waived provided that after
arraignment he may be compelled to appear for the
purpose of identification by the witnesses of the
prosecution, or provided he unqualifiedly admits in
open court after his arraignment that he is the
person named as the defendant in the case on trial.
Thus, for an accused to be excused from attending
trial, it is not enough that he vaguely agrees to be
identified by witnesses in his absence. He must
unqualifiedly admit that every time a witness
mentions as name by which he is known, the
witness is to be understood as referring to him.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Judgement In Absentia
While the accused is entitled to be present during
promulgation of judgment, the absence of his
counsel during such promulgation does not affect
its validity.
Promulgation of judgment in absentia is valid
provided that the essential elements are present:
1. That the judgment be recorded in the criminal
docket; and
2. That a copy be served upon the accused or
counsel. Recording the decision in the criminal
docket of the court satisfies the requirement of
notifying the accused of the decision wherever
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he may be. (Estrada v. People, G.R. No.
162371, Aug. 25, 2005)
WHEN PRESENCE OF THE ACCUSED IS A
DUTY
1. Arraignment and Plea
2. During Trial, for identification
3. Promulgation of Sentence
Exception: Light offense where accused
need not personally appear.
It is important to state that the provision of the
Constitution authorizing the trial in absentia of the
accused in case of his non-appearance after
arraignment despite due notice simply means that
he thereby waives his right to meet the witnesses
face to face among others. An express waiver of
appearance after arraignment, as in this case, is of
the same effect. However, such waiver of
appearance and trial in absentia does not mean
that the prosecution is thereby deprived of its right
to require the presence of the accused for
purposes of identification by its witnesses which is
vital for the conviction of the accused. Such waiver
of a right of the accused does not mean a release
of the accused from his obligation under the bond
to appear in court whenever so required. The
accused may waive his right but not his duty or
obligation to the court. (Carredo v. People, G.R.
No. 77542, March 19, 1990)
O. RIGHT TO THE SPEEDY DISPOSITION
OF CASES
All persons shall have the right to a speedy
disposition of their cases before all judicial, quasijudicial, or administrative bodies. (PHIL. CONST., art.
III, § 16)
Concept
The right to speedy disposition of cases is a relative
and flexible concept. To determine whether or not
a person's right to speedy disposition of cases is
violated, there are four factors to consider. The four
(4) factors
(1) the length of the delay; (2) the
reason for the delay; (3) the respondent's assertion
of the right; and (4) prejudice to the respondent
are to be considered together, not in isolation. The
interplay of these factors determine whether the
POLITICAL LAW
delay was inordinate. (Baya v. Sandiganbayan,
G.R. Nos. 204978-83, July 6, 2020)
In evaluating criminal cases invoking the right to
speedy disposition of cases, a case is deemed to
have commenced from the filing of the formal
complaint and the subsequent conduct of the
preliminary
investigation.
(Republic
v.
Sandiganbayan, G.R. No. 231144, Feb. 19, 2020)
A mere mathematical reckoning of the time
involved, therefore, would not be sufficient. In the
application of the constitutional guarantee of the
right to speedy disposition of cases, particular
regard must also be taken of the facts and
circumstances peculiar to each case. (Binay v.
Sandiganbayan, G.R. 120681, Oct. 1, 1999)
Waiver
The person must invoke his or her constitutional
right to speedy disposition of cases in a timely
manner and failure to do so even when he or she
has already suffered or will suffer the
consequences of delay constitutes a valid waiver
of that right. (Baya v. Sandiganbayan, G.R. Nos.
204978-83, July 6, 2020)
Remedy
The remedy for violation of the right to a speedy
disposition of a case is dismissal obtained through
mandamus. (Lumanlaw v. Hon. Peralta, G.R. No.
164953, Feb. 13, 2006)
Speedy Trial v. Speedy Disposition of Cases
SPEEDY DISPOSITION
SPEEDY TRIAL
(Sec. 16)
(Sec. 14)
Only applies to the Covers all phases of
trial
phase
of judicial,
quasi-judicial
criminal cases
and
administrative
proceedings
Application
From the time the Complaint was filed on January
18, 2005, until the Resolution was finally approved
by the Ombudsman on June 23, 2008, it took the
prosecution three (3) and a half years to conclude
the preliminary investigation. The multiple
respondents and numerous documents involved
made the case more complex and difficult to
resolve. Verily, there were 10 respondents charged
in the Complaint before the Office of the
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Ombudsman and the documents involved,
consisting of certifications, affidavits of completion,
disbursement slips signed by each accused, would
require verification. The investigating officer
needed to evaluate whether each accused
impleaded is probably guilty of the charges. While
it took 10 years from the filing of the Complaint until
the
Information
was
filed
before
the
Sandiganbayan, the Sandiganbayan failed to take
into account that there was a pending petition for
certiorari filed before the Supreme Court. Thus, the
delay was inevitable. It was only after the resolution
of the petition for certiorari that the information was
ordered to be filed. Furthermore, it must be
stressed that it was also the respondent who filed
a motion before the Sandiganbayan to suspend the
proceedings pending the resolution of the petition
for certiorari. Furthermore, the respondent is
deemed to have waived his right. In the span of 3
years of preliminary investigation, he never raised
this contention and instead, he allowed the
investigation to drag on. Even if the approval of the
Resolution took a protracted time of almost 2 years,
the respondent still did not raise the issue. Finally,
after the Information was filed before the
Sandiganbayan, it took one and a half years before
the respondent brought it up. In fact, it was only
after the Supreme Co r denial of the Motion for
Reconsideration that the respondent decided to
question the preliminary investigation. Thus, there
is no violation of the re ponden right to speedy
disposition of cases. (Republic v. Sandiganbayan,
G.R. No. 231144, Feb. 19, 2020)
The fact finding investigation of the Ombudsman
lasted nearly 5 years and 5 months. It is clear that
the Ombudsman had taken an unusually long
period just to investigate the criminal complaint and
to determine whether cases be filed against the
respondents. It is incumbent for the State to prove
that the delay was reasonable which it failed. At no
time should the progress and success of the
preliminary investigation of a criminal case be
made dependent upon the ratification of a treaty by
the Senate that would provide to the prosecutorial
arm of the State, already powerful and
overwhelming in terms of its resources, an undue
advantage unavailable at the time of the
investigation. To allow the delay under those terms
would definitely violate fair play and nullify due
process of law. The guarantee of speedy
POLITICAL LAW
disposition of cases under Section 16 of Article III
applies to all cases pending before all judicial,
quasi-judicial or administrative bodies. Thus, the
fact-finding investigation should not be deemed
separate from the preliminary investigation
conducted by the Ombudsman if the aggregate
time spent for both constitutes inordinate and
oppressive delay in the disposition of the case.
(People v. Sandiganbayan, G.R. Nos. 188165 &
189063, Dec. 11, 2013)
P. RIGHT AGAINST EXCESSIVE FINES
AND CRUEL, DEGRADING, AND INHUMAN
PUNISHMENTS
(1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to
reclusion perpetua.
(2) The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be
dealt with by law. (PHIL. CONST., art. III, § 19)
Cr el and n
al, as these words are found in
the Constitution, do not have the same meaning as
clearl e ce i e found in Article 5 of the Revised
Penal Code. The fact that the punishment
authorized by the statute is severe does not make
it cruel and unusual. Thus, to be cr el and
n
al or e ce i e within the meaning of the
constitution, the penalty must be flagrantly
disproportionate to the offense no matter under
what circumstances the offense may be
committed; but to be clearl e ce i e under
Article 5 of the Revised Penal Code, it need only
be disproportionate to the circumstances of the
offense and of the offender.
It has been held that to come under the
constitutional ban on excessive and inhuman
punishment, the punishment must be flagran l
and plainly oppre i e, holl disproportionate to
the nature of the offense as to shock the moral
sense of the comm ni . (People v. Estoista, G.R.
No. L-5793, Aug. 27, 1953)
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Cruel and Inhuman
Involves torture or lingering suffering (e.g., being
drawn and quartered).
Degrading
It exposes a person to public humiliation (e.g.,
being tarred and feathered, then paraded
throughout town).
Excessive Fine
When under any circumstance, the fine is
disproportionate to the offense.
Guides for Determining Whether a Punishment
is C
and U
a :
1. It must not be so severe as to be degrading to
the dignity of human beings.
2. It must not be applied arbitrarily.
3. It must not be unacceptable to contemporary
society.
4. It must not be excessive.
Note:
It must serve a penal purpose more effectively
than a less severe punishment would. (Brennan
concurring in Furman v. Georgia, 408 U.S. 238,
1972)
R.A. 9346 prohibited the imposition of the death
penalty. Only by an Act of Congress can it be
reborn.
(Bernas,
The
1987
Philippine
Constitution: A Comprehensive Reviewer, 2011)
Anti-Hazing Law
The Anti Hazing Law does not violate the
prohibition on cruel and unusual punishment. The
prohibition contemplates "extreme corporeal or
psychological p ni hmen . Penalties like fines or
imprisonment may be cruel, degrading, or inhuman
only when they are "flagrantly and plainly
oppressive and wholly disproportionate to the
nature of the nature of the offense as to shock the
moral sense of the community." However, if the
penalty has a legitimate purpose, then the
punishment is proportionate, and the constitutional
prohibition is not violated. The Anti-Hazing Law
seeks to punish the conspiracy of silence and
secrecy, tantamount to impunity, that would
otherwise shroud the crimes committed. Hence,
the penalty has a legitimate purpose, and the
constitutional prohibition is not violated. (Fuertes v.
Senate of the Philippines, G.R. No. 208162, Jan.
07, 2020)
DEATH PENALTY
Death penalty was abolished because:
It inflicts traumatic pain not just on the convict
but also on his family, even if the penalty is not
carried out.
There was no convincing evidence that it is
effective as a deterrent of serious crime.
Penology favors reformative rather than
vindictive penalties.
Life is too precious a gift to be placed at the
discretion of a human judge.
The law itself, by imposing so many safeguards
before such is carried out, manifests a
reluctance to impose it. (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 2011)
Legislature may re-impose it, subject to the
following conditions:
1. That Congress defines what is meant by
heinous crimes;
2. That Congress specify and penalize by death,
only those crimes that qualify as heinous in
accordance with the definition set in heinous
crimes law or death penalty law; and
3. That Congress, in enacting this death penalty
bill, be singularly motivated by compelling
reasons involving heinous crime . (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997)
Heinous Crimes
Heinous crimes are those which are grievous,
odious, and hateful; and by reason of their manifest
wickedness, viciousness, atrocity, and perversity,
are repugnant and outrageous to the common
standards and norms of decency and morality in a
just, civilized, and ordered society. (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997)
Instances When Death Penalty Shall Not Be
Imposed:
1. Guilty person is 70 years old and above;
2. Guilty person is below 18 years old; and
3. Where upon appeal or automatic review of the
case by the SC, the required majority vote is
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not obtained for the imposition of the death
penalty. (REVISED PENAL CODE, art. 47)
The duty of a judge when an accused pleads guilty
to a capital offense is to look into the evidence to
see if death is the proper penalty. (People v.
Vinuya, G.R. No. 125925, Jan. 28, 1999)
Q. NON-IMPRISONMENT FOR DEBTS
No person shall be imprisoned for debt or nonpayment of a poll tax. (PHIL. CONST., art. 3, § 20)
Debt
A contractual obligation, whether express or
implied, resulting in any liability to pay money.
Thus, all other types of obligations are not within
the scope of this prohibition. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Imprisonment for Fraudulent Debt
1. The fraudulent debt constitutes a crime (e.g.
estafa); and
2. The debtor has been duly convicted.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
BP 22
The gravamen of the offense punished by BP 22 is
the act of making and issuing a worthless check or
a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and
putting them in circulation. (Lozano v. Martinez,
G.R. No. L-63419, Dec. 18, 1986)
Subsidiary Imprisonment
If an accused fails to pay the fine imposed upon
him, this may result in his subsidiary imprisonment
because his liability is ex delicto and not ex
contractu. (Alejo v. Judge Inserto, A.M. No. 1098
CFI, May 31, 1976)
Poll Tax
It is a capitation tax imposed on all persons of a
certain age. At present it is the tax one pays for his
or her residence certificate which generally serves
as a personal identification instrument. (Bernas,
The
1987
Philippine
Constitution:
A
Comprehensive Reviewer, 2011)
R. RIGHT AGAINST DOUBLE JEOPARDY
No person shall be twice put in jeopardy of
punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to
another prosecution for the same act. (PHIL.
CONST., art. 3, § 21)
Kinds of Jeopardy
Same Offense
No person shall be
twice put in jeopardy
of punishment for the
same offen e.
Conviction, acquittal,
or dismissal of the
case
without
the
express consent of the
accused will bar a
subsequent
prosecution.
Same Act
When an act is
punished by a law and
an
ordinance,
conviction or acquittal
under either shall
constitute a bar to
another prosecution
for the same ac .
Only conviction or
acquittal
not
dismissal without the
express consent of the
accused
will bar a
subsequent
prosecution.
1. REQUISITES TO RAISE THE DEFENSE OF
DOUBLE JEOPARDY:
a.
b.
c.
A first jeopardy attached prior to the second;
The first jeopardy has been validly
terminated; and
A second jeopardy is for the same offense
as in the first. (Cerezo v. People, G.R. No.
185230, June 1, 2011)
a. A first jeopardy attached prior to the
second
WHEN JEOPARDY
ATTACHES
WHEN JEOPARDY
DOES NOT ATTACH
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[ICAPA]
1. If information does
1. After
a
valid
not charge
any
Indictment;
offense.
2. Before
a
(People v. Judge
Competent court;
Consulta, G.R. No.
L-41251, March 31,
3. After
1976)
Arraignment;
4. When a valid Plea 2. If, upon pleading
guilty, the accused
has been entered;
presents evidence
and
of complete self5. When the accused
defense, and the
has
been
court
thereafter
Acquitted
or
acquits him without
convicted, or the
entering a new plea
case dismissed or
of not guilty for
otherwise
accused. There is
terminated without
no valid plea here.
his
express
(People
v.
consent.
Balisacan, G.R. No.
(Cerezo v. People,
L-26376, Aug. 31,
G.R. No. 185230,
1966)
June 1, 2011)
3. If the information for
an
offense
cognizable by the
RTC is filed with the
MTC. There is no
jurisdiction here.
(People v. Ibasan,
Sr., G.R. No. L61652, June 22,
1984)
4. If a complaint filed
for
preliminary
investigation
is
dismissed.
(People v. Daco,
G.R. No. L-17210,
Nov. 30, 1962)
Judgement Must be Rendered by a Court of
Competent Jurisdiction
The MeTC took cognizance of the Information for
reckless imprudence resulting in parricide while the
criminal case for parricide was still pending before
the RTC. We held that once jurisdiction is acquired
by the court in which the Information is filed, it is
there retained. Therefore, as the offense of
reckless imprudence resulting in parricide was
included in the charge for intentional parricide
POLITICAL LAW
pending before the RTC, the MeTC clearly had no
jurisdiction over the criminal case filed before it, the
RTC having retained jurisdiction over the offense
to the exclusion of all other courts. The requisite for
jeopardy to attach that the judgment be rendered
by a court of competent jurisdiction is therefore
absent. A decision rendered without jurisdiction is
not a decision in contemplation of law and can
never become executory. Hence, the remand of the
case to the RTC for trial would not amount to
double jeopardy. (People v. Honrales, G.R. Nos.
182651 & 182657, Aug. 25, 2010)
The RTC issued its September 5, 2006 order in
defiance of the TRO issued by the CA. The records
show that the CA had issued a TRO on April 19,
2006, which should have prohibited the RTC from
further proceeding on the case. But the RTC,
instead, continued with the presentation of the
prosecution evidence and issued the assailed
September 5, 2006 order. Under this circumstance,
the RTC September 5, 2006 order was actually
without force and effect and would not serve as
basis for the petitioners to claim that their right
against double jeopardy had been violated. The
RTC, clearly, acted with grave abuse of discretion
in issuing its September 5, 2006 order in view of
the earlier TRO issued by the CA. (Villalon v. Chan,
G.R. No. 196508, Sept. 24, 2014)
The RTC clearly exceeded its jurisdiction when it
entertained the joint Motion for Reconsideration
with respect to the accused-respondents who were
at large. Being at large, accused-respondents have
not regained their standing in court. Once an
accused jumps bail or flees to a foreign country, or
escapes from prison or confinement, he loses his
standing in court; and unless he surrenders or
submits to the jurisdiction of the court, he is
deemed to have waived any right to seek relief from
the court. Thus, accused-respondents were not
placed in double jeopardy because, from the very
beginning, the lower tribunal had acted without
jurisdiction. Verily, any ruling issued without
jurisdiction is, in legal contemplation, necessarily
null and void and does not exist. In criminal cases,
it cannot be the source of an acquittal. (People v.
De Grano, G.R. No. 167710, June 5, 2009)
b. The first jeopardy has been validly
terminated
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1. Acquittal;
2. Conviction; or
3. Dismissal without the express consent of the
accused
a. Dismissal based on violation of the right to
a speedy trial amounts to an acquittal
b. Dismissal based on demurrer to evidence
is a dismissal on the merits
c. Dismissal on motion of the prosecution,
subsequent to a motion for reinvestigation
filed by the accused
d. Discharge of an accused to be a state
witness. This amounts to an acquittal
e. Dismissal on the merits
If the first dismissal was based on the merits, there
should be no second prosecution. If the first
dismissal was not based on the merits and was
erroneous, one should look at whether the
dismissal was with the consent of the accused. If
not, there should be no second prosecution.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
c. A second jeopardy is for the same offense
as in the first
Same Offense
1. Exact identity between the offenses charged in
the first and second cases.
2. One offense is an attempt to commit or a
frustration of the other offense.
3. One offense is necessarily included or
necessary includes the other. (Bernas, The
1987 Constitution of the Republic of the
Philippines, 2009)
4. The situation is different when one act violates
two different statutes or two different provisions
of a statute. The rule in such a case is that if
the one act results in two different offenses,
prosecution under one is a bar to prosecution
under the other. (Bernas, The 1987
Constitution of the Republic of the Philippines,
2011).
Same Evidence Test
Whether the evidence needed in one case will
support a conviction in the other. (U.S. v. Tan Oco,
G.R. No. 11338, Aug. 15, 1916)
POLITICAL LAW
However, this applies only in a more general
sense, hence it is the test laid down under Section
9 of Rule 117 of the Revised Rules of Criminal
Procedure that should apply. This states that one
offense must necessarily be included in the other,
i.e., whether one offense is identical with the other
or whether one offense necessarily includes or is
necessarily included in the other. Identity of
offenses
does
not
require
one-to-one
correspondence between the facts and law
involved in the two charges. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
Supervening Facts
A conviction for an offense will not bar a
prosecution for an offense which necessarily
includes the offense charged in the former
information where:
1. The graver offense developed due to a
supervening fact arising from the same act or
omission constituting the former charge.
2. The facts constituting the graver offense
became known or were discovered only after
the filing of the former information.
3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and the offended party. (ROC, Rule 117, § 7)
If the facts could have been discovered by the
prosecution but were not discovered because of
the pro ec ion incompetence, it would not be
considered a supervening event.
Quasi Offense
Once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be
prosecuted again for that same act. For the
essence of the quasi offense of criminal negligence
under Article 365 of the Revised Penal Code lies in
the execution of an imprudent or negligent act that,
if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or
careless act, not the result thereof. The gravity of
the consequence is only taken into account to
determine the penalty, it does not qualify the
substance of the offense. And, as the careless act
is single, whether the injurious result should affect
one person or several persons, the offense
(criminal negligence) remains one and the same,
and cannot be split into different crimes and
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POLITICAL LAW
prosecutions. To do so would be a violation of the
mantle of protection afforded by the Double
Jeopardy Clause. (Ivler v. San Pedro, G.R. No.
172716, Nov. 17, 2010)
Appeals
Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy. (ROC, Rule 122, § 1)
Continuous Crimes
Pe i ioner
acts of allegedly preventing Ms.
Magsigay from appearing and testifying in a
preliminary investigation proceeding and offering in
evidence a false affidavit were clearly motivated by
a single criminal impulse in order to realize only
one criminal objective, which is to obstruct or
impede the preliminary investigation proceeding in
I.S. Case No. 04-1238. Thus, applying the principle
of delito continuado (continuous crime), petitioner
should only be charged with one (1) count of
violation of PD 1829 which may be filed either in
Jagna, Bohol where Ms. Magsigay was allegedly
prevented from appearing and testifying in I.S.
Case No. 04-1238, or in Tagbilaran City, Bohol
where petitioner allegedly presented a false
affidavit in the same case. However, since he was
already charged
and in fact, convicted in a
Judgment dated July 3, 2007
in the MTCCTagbilaran, the case in MCTC-Jagna should be
dismissed as the events that transpired in Jagna,
Bohol should only be deemed as a partial
execution of pe i ioner single criminal design.
Consequently, the criminal case in MCTC-Jagna
must be dismissed; otherwise, petitioner will be
unduly exposed to double jeopardy, which the
Court cannot countenance. (Navaja v. De Castro
G.R. No. 180969, Sept. 11, 2017)
General Rule: The prosecution may not appeal an
acquittal, and an acquittal is immediately final.
(ROC, Rule 120, § 7)
2. LIMITATIONS
a. Motions for Reconsideration and Appeals
Motions for Reconsideration
At any time before a judgment of conviction
becomes final, the court may, upon motion of the
accused or at its own instance, but with the consent
of the accused, grant a new trial or reconsideration.
(ROC, Rule 121, § 1)
From the phraseology of the rule, it is evident that
a motion for new trial or a motion for
reconsideration applies when the judgment is one
of conviction; and it is the accused, not the
prosecution which avails of the same. (Riano,
Criminal Procedure, 583, 2014)
Exception: The prosecution may appeal an order
of dismissal when:
1. The dismissal is on motion or with the
express consent of the accused. (ROC,
Rule 117, § 7)
a. Exception to the Exception: If
motion is based on violation of the
right to a speedy trial or on a
demurrer to evidence. (People v.
Velasco, G.R. No. 140633, Feb. 4,
2002)
2. The dismissal does not amount to an
acquittal or dismissal on the merits.
(People v. Salico, G.R. No. L-1567, Oct.
13, 1949)
3. The question to be passed upon is purely
legal. (People v. Desalisa, L-15516,
Dec.17, 1966)
4. The dismissal violates the right of due
process of the prosecution. (People v.
Sandiganbayan et. al., G.R. No. 164577,
July 5, 2010)
5. The dismissal or acquittal was made with
grave abuse of discretion. (People v.
Sandiganbayan et. al., G.R. No. 164577,
July 5, 2010)
Although, as a rule, dismissal of a criminal case
may be used to abate an administrative case based
on the same facts, the same does not hold true if it
were the other way around, that is, the dismissal of
the administrative case is being invoked to abate
the criminal case. However, if the two actions are
based on the same facts and evidence, such as in
this case, dismissal in administrative case may be
used to negate criminal liability. (People v.
Sandiganbayan et. al., G.R. No. 164577, July 5,
2010).
Effect of an acc
appeal of his conviction
1. Waiver of right to double jeopardy
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2. The appellate court may place a penalty higher
than that of the original conviction. (Trono v.
United States, 199 U.S. 521, 26 S.C.T. 121, 50
L. Ed. 2920, 1905)
An appeal in a criminal case opens the entire case
for review on any question including one not raised
by the parties. When an accused appeals from the
sentence of the trial court, he waives the
constitutional safeguard against double jeopardy
and throws the whole case open to the review of
the appellate court, which is then called upon to
render such judgment as law and justice dictate,
whether favorable or unfavorable to the appellant.
(People v. Torres, G.R. No. 189850, Sept. 22,
2014)
Res Judicata
Res judicata is a doctrine of civil law and thus has
no bearing on criminal proceedings. Res judicata
applies only when there is a final judgment on the
merits of a case; it cannot be availed of in an
interlocutory order even if the order is not
appealed. Even if the argument is expanded to
contemplate double jeopardy, double jeopardy will
not apply because it requires that the accused has
been convicted or acquitted or that the case
against the accused has been dismissed or
terminated without his express consent. (People v.
Escobar, G.R. No. 214300, July 26, 2017)
b. Dismissal with Consent of Accused
General Rule: Equivalent to a waiver of the
defense of double jeopardy.
Exception: When motion is based on Provisional
Dismissal - A case shall not be provisionally
dismissed except with the express consent of the
accused and with notice to the offended party.
(ROC, Rule 117, § 8).
The provisional dismissal of offenses punishable
by imprisonment not exceeding 6 years or a fine of
any amount, or both, shall become permanent 1
year after issuance of the order without the case
having been revived. With respect to offenses
punishable by imprisonment of more than 6 years,
their provisional dismissal shall become permanent
2 years after issuance of the order without the case
having been revived.
POLITICAL LAW
A motion of the accused for a provisional dismissal
of a case is an express consent to such provisional
dismissal. If a criminal case is provisionally
dismissed with the express consent of the accused,
the case may be revived only within the periods
provided in the new rule. On the other hand, if a
criminal case is provisionally dismissed without the
express consent of the accused or over his
objection, the new rule would not apply. The case
may be revived or refiled even beyond the
prescribed periods subject to the right of the
accused to oppose the same on the ground of
double jeopardy or that such revival or refiling is
barred by the statute of limitations. (People v.
Panfilo Lacson, G.R. 149453, Oct. 7, 2003)
c. Cybercrime Prevention Act
Section 7 of RA 10175 which provides for
prosecution under both the Revised Penal Code
and the Cybercrime Prevention Act was assailed
as unconstitutional for violating the rule on double
jeopardy.
The
provision
was
declared
unconstitutional as to Section 4(c)(4) on Libel and
Section 4(c)(2) on Child Pornography. However,
with respect to the other prohibited acts, the Court
left the determination of the correct application of
Section 7 to actual cases. In relation to Section
4(c)(4) on Libel, the Court said that if the published
material on print, said to be libelous, is again
posted online or vice versa, that identical material
cannot be the subject of two separate libels. The
two offenses, one a violation of Article 353 of the
Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially
the same elements and are in fact one and the
same offense. Charging the offender under both
laws would be a blatant violation of the proscription
against double jeopardy. As to Section 4(c)(2) on
Child Pornography, the Court said that Section
4(c)(2) merely expands the ACPA scope so as to
include identical activities in cyberspace. As
previously discussed, ACPA definition of child
pornography in fact already covers the use of
elec ronic, mechanical, digital, optical, magnetic or
any other mean . Thus, charging the offender
under both Section 4(c)(2) and ACPA would
likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
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(Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18,
2014)
S. RIGHT AGAINST INVOLUNTARY
SERVITUDE
(1) No person shall be detained solely by reason of
his political beliefs and aspirations.
(2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the
party shall have been duly convicted. (PHIL.
CONST., art. 3, § 18)
Involuntary Servitude
Every condition of enforced or compulsory service
of one to another no matter under what form such
servitude may be disguised. (Rubi v. Provincial
Board, G.R. No. L-14078, March 7, 1919)
Political Prisoners
A state cannot hold poli ical pri oner . (Bernas,
The 1987 Constitution: A Comprehensive
Reviewer, 152, 2011)
Exceptions:
1. Punishment for a crime.
2. Personal military or civil service in the interest
of national defense.
3. In naval enlistment, a person who enlists in a
merchant ship may be compelled to remain in
service until the end of the voyage.
4. Posse Comitatus (every able-bodied person is
ultimately responsible for keeping peace) for
the apprehension of criminals.
5. Return to work order issued by the DOLE
Secretary or the President.
6. Minors under patria potestas are obliged to
obey their parents. (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 152, 2011)
POLITICAL LAW
1. Makes an action done before the passing of
the law, and which was innocent when done,
criminal, and punishes such action.
2. Aggravates the crime or makes it greater than
when it was committed.
3. Changes the punishment and inflicts a greater
punishment than that which the law annexed to
the crime when it was committed.
4. Alters the legal rules of evidence and receives
less testimony than the law required at the time
of the commission of the offense in order to
convict the accused.
5. Assumes to regulate civil rights and remedies
but in effect imposes a penalty or deprivation
of a right, which when done was lawful.
6. Deprives a person accused of a crime of some
lawful protection to which he has become
entitled such as the protection of a former
conviction or acquittal, or a proclamation of
amnesty. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer,
2011)
The prohibition on ex post facto laws only applies
to retrospective penal laws. (Bernas, The 1987
Philippine
Constitution:
A
Comprehensive
Reviewer, 2011)
When Laws are Penal
1. When it prescribes a criminal penalty imposable
in a criminal trial.
2. If it prescribes a burden equivalent to a criminal
penalty (e.g. disqualification from the practice of
a
profession)
even
in
administrative
proceedings. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer,
2011)
T. EX POST FACTO LAWS AND BILLS OF
ATTAINDER
Characteristics of an Ex Post Facto Law:
1. Refers to criminal matters
2. Retrospective
3. Causes prejudicial to the accused
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
No ex post facto law or bill of attainder shall be
enacted. (PHIL. CONST., art. 3, § 22)
Instances when the prohibition on ex-post facto
laws is inapplicable:
1. EX POST FACTO LAW
1. Extradition treaty - As the Court of Appeals
correctly concluded, the Treaty is neither a
piece of criminal legislation nor a criminal
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procedural statute. "It merely provides for the
extradition of persons wanted for prosecution of
an offense or a crime which offense or crime
was already committed or consummated at the
time the treaty was ratified." (Wright v. CA, G.R.
No. 113213, Aug. 15, 1994)
2. Probation Law and its amendments
Presidential Decree No. 1990, like the
Probation Law that it amends, is not penal in
character. It may not be considered as an ex
post facto law. (Fajardo v. CA, G.R. No.
128508, Feb. 1, 1999)
3. Change of court jurisdiction - R.A 7975,
which amended P.D. 1606 as regards the
Sandiganbayan's jurisdiction, its mode of
appeal and other procedural matters, has been
declared by the Court as not a penal law, but
clearly a procedural statute, i.e. one which
prescribes rules of procedure by which courts
applying laws of all kinds can properly
administer justice. Not being a penal law, the
retroactive application of R.A. 8249 cannot be
challenged as unconstitutional. On the removal
of the intermediate review of facts, the Supreme
Court still has the power of review to determine
if he presumption of innocence has been
convincing overcome. (Lacson v. Executive
Secretary, G.R. No. 128096, Jan. 20, 1999)
4. House rental law - The petitioner's contention
that BP 877 is an ex post facto law must also be
rejected. It is not penal in nature and the mere
fact that it contains penal provisions does not
make it so. At any rate, she is not being
prosecuted under the said penal provisions.
(Juarez v. CA, G.R. No. 93474, Oct. 7, 1992)
5. Preventive suspension pendente lite Section 13 of Republic Act 3019, as among the
crimes subjecting the public officer charged
therewith with suspension from office pending
action in court, is not a penal provision which
violates the constitutional prohibition against the
enactment of ex post facto law. The RPC clearly
states that suspension from the employment or
public office during the trial or in order to
institute proceedings shall not be considered as
penalty. It is not a penalty because it is not
imposed as a result of judicial proceedings. In
POLITICAL LAW
fact, if acquitted, the official concerned shall be
entitled to reinstatement and to the salaries and
benefits which he failed to receive during
suspension (Bayot v. Sandiganbayan, G.R.
Nos. L-61776 to No. L-61861, March 23, 1984)
IRR of RA 10951; Class-A Light Weapons
There is no retroactive application mandated in the
Rules Implementing RA 10951. On the contrary,
firearm licenses to possess Class-A light weapons
issued before the passage of RA 10591 are still
recognized both under RA 10591 and its
Implementing Rules. If the IRR were indeed in the
nature of an ex post facto law, then private
individuals who possess Class-A light weapons
under the old law must be expressly punished
under the new law because the new law only allows
them to own and possess small arms. Yet, as
expressly provided in the law, existing license
holders of Class-A light weapons may renew their
licenses under the new law and Implementing
Rules. Therefore, the IRR of RA No. 10591 is not
an ex post facto law. (Acosta v. Ochoa, G.R. Nos.
211559, 211567, 212570 & 215634, Oct. 15, 2019)
2. BILL OF ATTAINDER
A bill of attainder is a legislative act which inflicts
punishment without a judicial trial. If the
punishment be less than death, the act is termed a
bill of pains and penalties. (Cummings v. Missouri,
4 Wall 277, 323 US, 1867)
The constitutional ban against bills of attainder
serves to implement the principle of separation of
powers by confining legislatures to rule-making
and thereby forestalling legislative usurpation of
the judicial function. (People v. Ferrer, G.R. Nos. L32613-14, Dec. 27, 1972)
Elements (LINaW)
1. There must be a Law
2. The law Imposes a penal burden
3. On a Named individual or easily ascertainable
members of a group
4. The penal burden is imposed directly by the
law Without judicial trial. (Bernas, The 1987
Philippine Constitution: A Comprehensive
Reviewer, 2011)
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The bill of attainder does not need to be directed at
a specifically named person. It may also refer to
easily ascertainable members of a group in such a
way as to inflict punishment on them without
judicial trial. (Cummings v. Missouri, 4 Wall 277,
323 US, 1867)
For a law to be considered a bill of attainder, it must
contain all the following: a specification of certain
individuals or a group of individuals, the imposition
of a punishment, penal or otherwise, and the lack
of judicial trial. (Fuertes v. Senate of the
Philippines, G.R. No. 208162, Jan. 07, 2020)
Anti-Hazing Law
The Anti-Hazing Law is not a bill of attainder. There
is no lack of judicial trial. The mere filing of an
Information against the accused is not a finding of
guilt. The accused is not being charged merely
because he/she is a member of a fraternity/sorority,
but because he/she is allegedly a principal in the
hazing that led to the ic im death. These are
matters for the trial court to decide. The
prosecution must still prove the offense. (Fuertes v.
Senate of the Philippines, G.R. No. 208162, Jan.
07, 2020)
J. PRIVILEGE OF THE WRIT OF HABEAS
CORPUS
The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or
rebellion when the public safety requires it. (PHIL.
CONST., art. 3, § 15)
Privilege of the Writ of Habeas Corpus
The right to have an immediate determination of
the legality of the deprivation of physical liberty.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Writ of Habeas Corpus
A writ directed to the person detaining another,
commanding him to produce the body of the
prisoner at a designated time and place, with the
day and cause of his caption and detention, to do,
submit to, and receive whatever the court or judge
awarding the writ shall consider in the behalf.
(Sombong v. CA, G.R. No. 111876, Jan. 31, 1996)
POLITICAL LAW
To What Habeas Corpus Extends
Except as otherwise expressly provided by law, the
writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any
person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the
person entitled thereto. (ROC, Rule 102, Sec. 1)
Habeas corpus is the proper remedy for a person
deprived of liberty due to mistaken identity. In such
cases, the person is not under any lawful process
and is continuously being illegally detained. (In the
Matter of the Petition for Habeas Corpus of
Datukan Malang Salibo, G.R. No. 197597, April 8,
2015).
Purpose of the Writ
The primary purpose of the writ is to inquire into all
manner of involuntary restraint as distinguished
from voluntary, and to relieve a person therefrom if
such restraint is illegal. (Agcaoili v. Hon. Farinas,
G.R. No. 232395, July 3, 2018)
What is Suspended: The Privilege, Not The Writ
The writ is never suspended. It always issues as a
matter of course. What is suspended is the
privilege of the writ, i.e., once the officer making the
return shows to the court that the person detained
is being detained for an offense covered by the
suspension, the court may not inquire further.
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Remedy Becomes Moot When Restraint
Becomes Legal
The arrest warrants against the accused were
issued by the court that has jurisdiction over the
offense charged. Since the restraint on the
accused has become legal, the remedy of habeas
corpus has already become moot and academic.
The "great writ of liberty" of habeas corpus "was
devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint,
and as the best and only sufficient defense of
personal freedom." Habeas corpus is an
extraordinary, summary, and equitable writ,
consistent with the law's "zealous regard for
personal liberty." Its primary purpose is o inquire
into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any
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restraint which will preclude freedom of action is
sufficient." The restraint of liberty need not be
confined to any offense so as to entitle a person to
the writ. Habeas corpus may be availed of as a
post-conviction remedy or when there is an alleged
violation of the liberty of abode. (Osorio v Navera,
G. R. No. 223272, February 26, 2018)
When Writ Not Allowed or Discharge
Authorized
The writ shall not be allowed if it appears that the
person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of
a court of record, and that the court or judge had
jurisdiction to issue the process, render the
judgment, or make the order.
If the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of
any informality or defect in the process, judgment,
or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with
or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful
judgment. (ROC, Rule 102, Sec. 4)
Process
An application for a writ of habeas corpus may be
made through a petition filed before the:
1. Supreme Court or any of its members;
2. Court of Appeals, or any of its members in
instances authorized by law; or
3. Regional Trial Court or any of its presiding
judges.
The court or judge grants the writ and requires the
officer or person having custody of the person
allegedly restraining of liberty to file a return of the
writ. A hearing on the return of the writ is then
conducted.
The return of the writ may be heard by a court apart
from that which issued the writ. Should the court
issuing the writ designate a lower court to which the
writ is made returnable, the lower court shall
proceed to decide the petition of habeas corpus. By
virtue of the designation, the lower court acquires
the power and authority to determine the merits of
the petition for habeas corpus. Therefore, the
decision on the petition is a decision appealable to
POLITICAL LAW
the court that has appellate jurisdiction over
decisions of the lower court. (In the Matter of the
Petition for Habeas Corpus of Datukan Malang
Salibo, G.R. No. 197597, April 8, 2015)
National Bilibid Inmates; Standing
The inmates' allegations of suddenly being
transferred from the National Bilibid Prisons in
Muntinlupa City to the National Bureau of
Corrections in Manila City for the purpose of
conducting an inspection on their living quarters, if
proven, are sufficient to clothe the party with
standing to file an application for a writ of habeas
corpus, provided that they invoke a violation of a
fundamental right granted to all citizens, regardless
of whether they are incarcerated or not. However,
mere allegation of a violation of one's constitutional
right is not enough. The violation of constitutional
right must be sufficient to void the entire
proceedings. (In the Matter of the Petition for Writ
of Habeas Corpus/Data v. De Lima, G.R. Nos.
215585 & 215768, Sept. 8, 2020).
Suspension of the Privilege of the Writ of
Habeas Corpus
The President may suspend the privilege for a
period not exceeding 60 days. The grounds for the
suspension of the privilege are:
1. Actual invasion or actual rebellion; and
2. When the public safety requires the
suspension
The suspension of the privilege of the writ shall
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with the invasion.
During the suspension of the privilege of the writ,
any person thus arrested or detained shall be
judicially charged within three days, otherwise he
shall be released. (PHIL. CONST., art. 7, § 18)
Inapplicability of the Writ of Habeas Corpus
1. To question the conditions of confinement
2. Once charges have been filed in court
Limitations to the Writ of Habeas Corpus
DOES NOT EXTEND
EXTENDS TO
TO
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All cases of illegal
confinement
or
detention by which
any person is deprived
of his liberty, or by
which the rightful
custody of any person
is withheld from the
person entitled to it.
It is essential to inquire
into all manner of
involuntary restraint
and to relieve a person
from it if such restraint
is illegal.
Questions
of
conditions
of
confinement; but only
to the fact and
duration
of
confinement.
It is not a means for
the
redress
of
grievances or to seek
injunctive relief or
damages. (In re: Major
Aquino, G.R. 174994,
Aug. 31, 2007)
WRIT OF AMPARO
A remedy available to any person whose right to
life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a
public official or employee, or of a private individual
or entity. (Sec. of National Defense v. Manalo, G.R.
No. 180906, Oct. 7, 2008)
The Writ of Amparo does not cover threats to
property. To be entitled to a Writ of Amparo,
petitioners must prove that their rights to life,
liberty, and security are being violated or
threatened by an unlawful act or omission. The
intrusion into their farm was merely a violation of
property rights. (Pador v. Arcayan, G.R. No. 18346,
March 12, 2013)
Examples of Property Rights Not Covered:
Right to be restituted of personal belongings. It
is already subsumed under the general rubric of
property rights which are no longer protected by
the writ of amparo. (Roxas v. Arroyo, G.R. No.
189155, Sept. 7, 2010)
Merely seeking protection of property rights, like
land in possession of the petitioners. (Castillo v.
Cruz, G.R. No. 182165, Nov. 25, 2009)
Violent incidents purely property-related such as
acts of terrorism in relation to a disputed land
(Tapuz v. Hon. Judge del Rosario, G.R. No.
182484, June 17, 2008)
POLITICAL LAW
Two-fold Burden for Public Authorities
The burden for the public authorities to discharge
in these situations, under the Rule on the Writ of
Amparo, is two-fold.
1. The first is to ensure that all efforts at
disclosure and investigation are undertaken
under pain of indirect contempt from this Court
when governmental efforts are less than what
the individual situations require.
2. The second is to address the disappearance,
so that the life of the victim is preserved and his
or her liberty and security restored. (Razon v.
Tagitis, G.R. No. 182498, Dec. 3, 2009)
The remedy of the writ of amparo provides rapid
judicial relief as it partakes of a summary
proceeding that requires only substantial evidence
to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal
guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of
evidence, or administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings. (Razon v. Tagitis, G.R.
No. 182498, Dec. 3, 2009)
The framers of the Amparo Rule never intended
Section 5(c) to be complete in every detail in stating
the threatened or actual violation of a ic im
rights. As in any other initiatory pleading, the
pleader must of course state the ultimate facts
constituting the cause of action, omitting the
evidentiary details. In an Amparo petition, however,
this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a
situation of uncertainty; the petitioner may not be
able to describe with certainty how the victim
exactly disappeared, or who actually acted to
kidnap, abduct or arrest him or her, or where the
victim is detained, because these information may
purposely be hidden or covered up by those who
caused the disappearance. Section 5(e) merely
requires that the Amparo petitioner (the respondent
in the present case) allege he actions and
recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity
of the person responsible for the threat, act or
omi ion. (Razon v. Tagitis, G.R. No. 182498,
Dec. 3, 2009)
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Indispensable Element of G
Participation
The petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable
element of government participation. (Spouses
Martin and Santiago v. Tulfo, G.R. No. 205039,
Oct. 21, 2015)
Coverage
The writ shall cover (1) extralegal killings and (2)
enforced disappearances or threats thereof. (The
Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec.
1)
Extralegal Killings
Extralegal killings are killings committed without
due process of law, i.e., without legal safeguards
or judicial proceedings. (Mison v. Gallegos, G.R.
No. 210759, June 23, 2015)
POLITICAL LAW
The remedy of the writ of amparo may be available
even to convicted national inmates, as long as the
alleged abduction was made for the purpose of
placing the national inmate outside the protection
of the law. However, considering that the Secretary
of Justice has the authority to determine the
movement of national inmates between penal
facilities, there is no compelling reason to grant the
writ of amparo in situations where there is an
urgent need to remove the national inmates from
their place of confinement and to transfer them to
another detention facility. (In the Matter of the
Petition for Writ of Habeas Corpus/Data v. De
Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020).
- end of topic
-
Enforced Disappearance
Enforced disappearances are attended by the
following characteristics:
1. An arrest, detention or abduction of a person by
a government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government.
2. The refusal of the State to disclose the fate or
whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty
which places such persons outside the
protection of law. (Mison v. Gallegos, G.R. No.
210759, June 23, 2015)
Elements of an Enforced Disappearance
1. That there be an arrest, detention, abduction or
any form of deprivation of liberty;
2. That it be carried out by, or with the
authorization, support or acquiescence of, the
State or a political organization;
3. That it be followed by the State or political
organi a ion
refusal to acknowledge or
give information on the fate or whereabouts of
the person subject of the amparo
petition; and
4. That the intention for such refusal is to remove
the subject person from the protection of the
law for a prolonged period of time. (Section
3(g) R.A. No. 9851; Mison v. Gallegos, G.R.
No. 210759, June 23, 2015)
National Bilibid Inmates
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LAW ON PUBLIC
OFFICERS
Political Law
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X. LAW ON PUBLIC OFFICERS
A. GENERAL PRINCIPLES
TOPIC OUTLINE UNDER THE SYLLABUS:
C. Modes and kinds of appointment
Public Office
The right, authority, and duty created and conferred
by law, by which for a given period, either fixed by
law or enduring at the pleasure of the appointing
power, an individual is invested with some portion
of the sovereign functions of the government, to be
exercised by him for the benefit of the public.
(Fernandez v. Santo Tomas, GR No. 116418, 7
March 1995)
D. Eligibility and qualification requirements
Office
X. LAW ON PUBLIC OFFICERS
A. General principles
B. Modes of acquiring title to public office
E. Disabilities and inhibitions of public officers
F. Powers and Duties of Public Officers
G. Rights of Public Officers
H. Liabilities of Public officers
1. Preventive Suspension and back salaries
2. Illegal dismissal, reinstatement, and back
salaries
I.
Immunity of Public Officers
J. Distinguish: de facto vs. de jure officers
K. Termination of official relation
L. The Civil Service
1. Scope
2. Appointments to the Civil Service
3. Personnel Actions
M. Accountability of public officers
1. Types of Accountability
a. Administrative
b. Criminal
2. The Ombudsman and the Office of the
Special Prosecutor
3. The Sandiganbayan
N. Term Limits
refers, within the framework of
governmental organization, to any major
functional unit of a department or bureau
including regional offices (e.g. Office of the
Secretary). It may also refer to any position held
or occupied by individual persons, whose functions
are defined by law or regulation (e.g. Secretary).
[Section
2(9),
Introductory
Provisions,
Administrative Code of 1987]
Public Office Not a Property Right
It is not a property right but a protected right. It
cannot be taken from its incumbent without due
process. It is property in the broad sense since the
right to hold office includes everything of pecuniary
value to its possessor. The right to public office is
protected by the right to security of tenure, which is
guaranteed by the Constitution. A public office is
personal to the public officer and is not
transmissible to his heirs upon his death. No heir
may be allowed to continue holding his office in his
place. (Segovia v. Noel, 47 Phil. 543, 1925)
Public office is not a property. It is, however, well
settled x x x that a public office is not property within
the sense of the constitutional guaranties of due
process of law, public trust or agency. x x x The
basic idea of the government x x x is that of a
popular representative government, the
officers being mere agents and not rulers of the
people, one where no one man or set of men
has a proprietary or contractual right to an
office, but where every officer accepts office
pursuant to the provisions of the law and holds
the office as a trust for the people he
represents. (Montesclaros v. COMELEC, GR No.
152295, 2002)
Public Office Not a Contract
The right of an incumbent of an office does
depend on any contract in the sense of
arrangement or bargain between him and
public. Generally speaking, the nature of
not
an
the
the
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relation of a public officer to the public is
inconsistent with either a property or a contract
right. (De Leon, The Law on Public Officers and
Election Law, 6-7, 2011)
How created:
1. By the Constitution (e.g. Office of the President)
2. By valid statutory enactments (e.g. Office of the
Insurance Commissioner)
3. By authority of the law (e.g. the Davide
Commission, Philippine Truth Commission)
Elements of Public Office: (LSCIP)
1. Created by Law or by authority of law;
2. Possesses a delegation of portion of Sovereign
powers of government, for benefit of the public;
3. Powers conferred and duties imposed defined
by Constitution, legislature, or by its authority;
4. Duties performed Independently and only
controlled by law unless placed under general
control of superior office or body;
5. Permanent or continuous. (State v. Taylor, 144
N.W. 2d. 289,1966; Javier v. Sandiganbayan,
G.R. No.147026-27, 2009)
Sovereign Functions. The functions of Veterans
Federation of the Philippines enshrined in Section
4 of Rep. Act No. 2640 should most certainly fall
within the category of sovereign functions. The
protection of the interests of war veterans is not
only meant to promote social justice, but is also
intended to reward patriotism. All of the functions in
Section 4 concern the well-being of war veterans,
our countrymen who risked their lives and lost their
limbs in fighting for and defending our nation. It
would be injustice of catastrophic proportions to
say that it is beyond sovereignty's power to reward
the people who defended her. (Veterans
Federation of the Philippines v. Reyes, GR No.
155027, 2006)
A salary is a usual but not a necessary criterion
for determining the nature of the position. It is
not conclusive. The salary is a mere incident and
forms no part of the office. Where a salary or fees
is annexed, the office is provided for it is a naked
or honorary office, and is supposed to be accepted
merely for the public good. Hence, the office of the
[National Centennial Commission] Chair may be
characterized as an honorary office, as opposed to
a lucrative office or an office of profit, i.e., one to
which salary, compensation or fees are attached.
But it is a public office, nonetheless. (Laurel v.
Desierto, G.R. No. 145368, 2002)
POLITICAL LAW
Public Officer v. Employee, Definitions
Public Officer
A person whose duties, not being clerical in nature,
involves the exercise of discretion in the
performance of the functions of the government
when used with reference to a person having
authority to do a particular act or perform a
particular function in the exercise of government
power, officer includes any government employee,
agent, or body having authority to do so the act or
exercise that function. (Executive Order No. 292,
1987 Administrative Code)
Public Officer, Criminal Law context
Any person, by direct supervision of the law,
popular election, or appointment by competent
authority, shall take part in the performance of
public functions in the RP or shall perform in said
government or for any of its branches public duties
as an employee, agent, or subordinate official, of
any rank or class is deemed a public officer.
Temporary performance of public function is
sufficient to constitute a person a public official.
(Art. 203, Revised Penal Code)
Includes elective and appointive officials and
employees, permanent or temporary, whether in
the classified or unclassified or exempt service
(non-career or career), receiving compensation,
even nominal, from the government. (RA 3019,
Anti-Graft and Corrupt Practices Act)
Includes elective and appointive officials and
employees, permanent or temporary, whether in
the career or non-career service, including military
and police personnel, whether or not they receive
compensation, regardless of amount. (RA, 6713,
Code of Conduct and Ethical Standards of Public
Officers)
Officer means any person holding any public office
in the govt. of the RP by virtue of an appointment,
election, or contract (executed bet. private person
and government. (R.A. 7080, Office of the
Ombudsman)
Employee
A person in the service of government or any of its
agencies,
divisions,
subdivisions,
or
instrumentalities. (Executive Order No. 292, 1987
Administrative Code)
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Public Officer v. Employee, Distinguished
An officer is distinguishable from a mere employee
in the sense that:
1. Position has greater importance, dignity and
independence
2. Required to take an official oath, and to give an
official bond;
3. Greater liability to account for misfeasance or
nonfeasance in office;
4. Tenure of office is usually different from that of
an ordinary employee
5. Public officer must be invested by law with a
por ion S a e
o ereign , and a hori ed o
exercise functions either of an executive,
legislative, or judicial character (De Leon, The
Law on Public Officers and Election Law, 15,
2011)
Public officer v. Clerk, Distinguished
An officer, as distinguished from the clerk, refers to
a person whose duties, not being of a clerical or
manual nature, involves the exercise of discretion
in the performance of the functions of the
government. (Section 2, Executive Order No. 292,
1987 Administrative Code)
B. MODES OF ACQUIRING TITLE TO
PUBLIC OFFICE
retaining Sec. 66) of the Omnibus Election Code
through Sec. 14 of RA 9006, elective officials are
not deemed resigned (but appointive officials are)
upon the filing of a certificate of candidacy.
(Fariñas v. Executive Secretary, G.R. Nos. 147387
& 152161, 2003)
Designation
The mere imposition of new or additional duties
upon an officer to be performed by him in a special
manner. It presupposes that the officer is already
in the service by virtue of an earlier appointment,
performing other functions. The implication is that
he/she shall hold office only in a temporary
capacity and may be replaced at will by the
appointing authority. It does not confer security of
tenure on the person designated. (Tapispisan v.
CA, G.R. No.120082, June 8, 2005)
Commission
A written authority from a competent source given
to the officer as his/her warrant for the exercise of
the powers and duties of the office to which he is
commissioned. It is the written evidence of the
appointment, but not the appointment itself. (De
Leon, The Law on Public Officers and Election
Law, 81, 2011)
Appointment vs. Designation
APPOINTMENT
DESIGNATION
Election
Elective officials occupy their office by virtue of
the mandate of the electorate. They are elected to
an office for a definite term and may be removed
therefrom only upon stringent conditions. (Fariñas
v. Executive Secretary, G.R. Nos. 147387 &
152161, 2003)
Executive, Irrevocable Legislative, revocable
Appointment
Appointive officials hold their office by virtue of
their designation thereto by an appointing
authority. Some appointive officials hold their office
in a permanent capacity and are entitled to security
of tenure while others serve at the pleasure of the
appointing authority. (Fariñas v. Executive
Secretary, G.R. Nos. 147387 & 152161, 2003)
Results
NOTE: Since the classification justifying Section 14
of Rep. Act No. 9006 (Fair Election Act), i.e.,
elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions
and all the persons belonging under the same
classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed. Thus, with the repeal of Sec. 67 (but
As to nature
As to Effect
Selection
of
an Mere imposition by law
individual who is to of additional duties on
exercise the functions an incumbent official
of a given office
in security Does not result
of
tenure security of tenure
when completed
Can be subject of a
protest before the
CSC
in
Cannot be subject of a
protest before the CSC
As to Effectivity
connoted permanency implies temporariness
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Nature of Appointments
It is essentially a discretionary power and cannot
be delegated, it must be performed by the officer
upon whom it is vested according to his best lights,
the only condition being that the appointee should
possess the qualifications required by law. If he
does, then the appointment cannot be faulted on
the ground that there are others better qualified
who should have been preferred. (Luego v. Civil
Service Commission, G.R. No. 69137, August 5,
1986)
Appointments (In case of Presidential
appointments, this confirmation applies only
to numbers 1 to 5 in the list of Officers that the
President shall appoint (see below))
3. Issuance of the commission or the written
authority from a competent source given to
the officer as his warrant for the exercise of
the powers and duties of the office to which
he is commissioned.
4. Acceptance by the appointee
5. Oath and assumption (De Leon, The Law on
Public Officers and Election Law, 78-81,
2011)
Limits to Discretion
Hence, although, the terms of the law creating the
authority confer upon the officer general
discretionary power without qualification, his
authority is not deemed to be an unlimited one.
The e erci e of he officer di cre ion i
ill
limited, by legal construction, to the evident
purposes of the act, and to what is known as a
sound and legal discretion, excluding all arbitrary,
capricious,
inquisitorial
and
oppressive
proceedings. (De Leon, The Law on Public
Officers and Election Law, 139, 2011)
Ad interim appointments are made while
Congress is NOT in session or during its recess,
whether such recess is voluntary (before
adjournment) or compulsory (when Congress
adjourns). The appointment shall cease to be
effective upon rejection by the COA, or if not acted
upon, at the adjournment of the next session of
Congress, whether regular or special. (De Leon,
The Law on Public Officers and Election Law, 7376, 2011)
Requisites for a Valid appointment
The following elements should always concur in
the making of a valid (which should be understood
as both complete and effective) appointment:
(1) Authority to appoint and evidence of the
exercise of the authority;
(2) Transmittal of the appointment paper and
evidence of the transmittal;
(3) Vacant position at the time of appointment;
and
(4) Receipt of the appointment paper and
acceptance of the appointment by the
appointee
who
possesses
all
the
qualifications
and
none
of
the
disqualifications.
The
concurrence
of all these
elements
should always apply, regardless of when the
appointment is made, whether outside, just before,
or during the appointment ban. These steps in the
appointment process should always concur
and operate as a single process. There is no
valid appointment if the process lacks even one
step. (Velicaria-Garafil v. OP, GR No. 203372,
2015)
Steps in a regular appointment (NCIAO)
1. Nomination by President
2. Confirmation
by
Commission
on
It is well settled in this jurisdiction that the
President
can
renew
the ad
interim appointments of by-passed appointees.
Justice Roberto Concepcion, Jr. lucidly explained
in his concurring opinion in Guevara vs.
Inocentes why by-passed ad interim appointees
could be extended new appointments, thus: "In
short, an ad interim appointment ceases to be
effective upon disapproval by the Commission,
because the incumbent can not continue holding
office over the positive objection of the
Commission. It ceases, also, upon "the next
adjournment of the Congress," simply because the
President may then issue new appointments
not
because of implied disapproval of the Commission
deduced from its inaction during the session of
Congress, for, under the Constitution, the
Commission may affect adversely the interim
appointments only by action, never by omission. If
the adjournment of Congress were an implied
disapproval of ad interim appointments made prior
thereto, then the President could no longer appoint
those so by-passed by the Commission. But, the
fact is that the President may reappoint them, thus
clearly indicating that the reason for said
termination of the ad interim appointments is not
the disapproval thereof allegedly inferred from said
omission of the Commission, but the circumstance
that upon said adjournment of the Congress, the
President is free to make ad interim appointments
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or reappointments." [Matibag v. Benipayo, G.R.
No. 149036, 2002]
Temporary or acting appointments are those
which last until a permanent appointment is issued.
The Commission on Appointments cannot confirm
their
appointments
because
confirmation
presupposes a valid nomination or ad-interim
appointment. Thus, the appointee has no
personality to bring a quo warranto proceeding
because he is not entitled to office. (De Leon, The
Law on Public Officers and Election Law, 76, 2011)
The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time
until the appointment of a permanent occupant to
the office. 16 In case of vacancy in an office
occupied by an alter ego of the President, such as
the office of a department secretary, the President
must necessarily appoint an alter ego of her choice
as acting secretary before the permanent
appointee of her choice could assume office.
Congress, through a law, cannot impose on the
President the obligation to appoint automatically
the undersecretary as her temporary alter ego.
An alter ego, whether temporary or permanent,
holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications
to an office, cannot impose on the President who
her alter ego should be.
The office of a department secretary may become
vacant while Congress is in session. Since a
department secretary is the alter ego of the
President, the acting appointee to the office must
necessarily have the President's confidence. Thus,
by the very nature of the office of a department
secretary, the President must appoint in an acting
capacity a person of her choice even while
Congress is in session. That person may or may
not be the permanent appointee, but practical
reasons may make it expedient that the acting
appointee will also be the permanent appointee.
The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that "[t]he
President may temporarily designate an officer
already in the government service or any other
competent person to perform the functions of an
office in the executive branch." Thus, the President
may even appoint in an acting capacity a person
not yet in the government service, as long as the
President deems that person competent.
[Pimentel, Jr. v. Ermita, G.R. No. 164978, 2005]
Steps in an ad-interim appointment (AIAC)
1.
2.
3.
4.
Appointment by the appointing authority
Issuance of the commission
Acceptance by the appointee
Confirmation by the CA
Steps for appointments that do not require
confirmation: (AIA)
1. Appointment by the appointing authority
2. Issuance of the commission
3. Acceptance by the appointee
Absolute
Appointment
v.
Conditional
Appointment
It is long settled in the law that where the power of
appointment is absolute, and the appointee has
been determined upon, no further consent or
approval is necessary, and the formal evidence of
the appointment, the commission, may issue at
once. However, where the assent or confirmation
of some other officer or body is required, the
commission can issue or the appointment may be
complete only when such assent or confirmation is
obtained. In either case, the appointment becomes
complete when the last act required of the
appointing power is performed. Until the process is
completed, the appointee can claim no vested right
in the office nor invoke security of tenure. (Corpuz
v. CA, G.R. No. 123989, 1998)
Where the power of appointment is absolute and
the appointee has been determined upon, no
further consent or approval is necessary and the
formal evidence of the appointment, the
commission, may issue at once. The appointment
is deemed complete once the last act required of
the appointing authority has been complied with. A
written memorial that can render title to public office
indubitable is required. This written memorial is
known as the commission. For purposes of
appointments to the judiciary, therefore, the date
the commission has been signed by the President
is the date of the appointment. Such date will
determine the seniority of the members of the
Court of Appeals in connection with Section 3,
Chapter I of BP 129, as amended by RA 8246. In
other words, the earlier the date of the commission
of an appointee, the more senior he is over the
other subsequent appointees. (Re: Seniority
among the four most recent appointments to the
position of Associate Justices of the Court of
Appeals, A.M. 10-4-22-SC, 2010)
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C. MODES AND KINDS OF
APPOINTMENTS
General Rule: Acceptance of appointment is not
necessary for the completion or validity of
appointment.
Exception: Acceptance is necessary to
possession of office, and to enable appointee to the
enjoyment and responsibility of an office.
General Rule: An appointment to an office, once
made and complete, is not subject to
reconsideration or revocation.
Exception: An officer is removable at the will of the
appointing power.
Forms of Acceptance
1. Express done verbally or in writing.
2. Implied - without formal acceptance, the
appointee enters upon the exercise of the duties
and functions of an office. (De Leon, The Law on
Public Officers and Election Law, 65, 2011)
Kinds of Appointment under the Civil Service
Law
1. Permanent appointments - issued to a
person who meets all the requirements for the
position to which he is being appointed,
including the appropriate eligibility prescribed,
in accordance with the provisions of the laws,
rules, and standards promulgated in
pursuance thereof.
2. Temporary appointments - issued in the
absence of any eligibles, when necessary to
public interest, in order to fill a vacancy with a
person who meets all the requirements for the
position to which he/she is being appointed,
except the appropriate civil service eligibility.
Appointment in an acting capacity is
merely temporary, one which is good only
until another appointment is made to take
its place
Temporary appointments shall not exceed
12 months.
The appointee may be replaced
sooner if a qualified civil service
eligible becomes available.
Where
a
temporary
appointee
acquires civil service eligibility during
his tenure as such, his temporary
appointment
does
not
thereby
automatically become permanent.
What is required is a new appointment.
Temporary appointment given to a
POLITICAL LAW
non-civil service eligible is without a
definite tenure and is dependent upon
the pleasure of the appointing power.
Acquisition of civil service eligibility
during tenure of a temporary
appointee does not necessarily
translate to permanent appointment.
A new appointment which is
permanent is necessary. (Province of
Camarines Sur v. CA, G.R. No.
104639, 1995)
Power of President to make
temporary
appointment:
The
President may temporarily designate
an officer already in the government
service or any other competent
person to perform the functions of an
office in the executive branch,
appointment to which is vested in him
by law, when:
1. The
officer
regularly
appointed to the office is
unable to perform his duties
by reason of illness, absence
or any other cause; or
2. there exists a vacancy
Instances of Temporary Appointment
1. appointee does not possess civil
service eligibility
2. appointment by the President in an
executive office during the absence
or incapacity of the incumbent
3. designation as officer in charge
4. appointment held at the pleasure of
the appointing power
3. Regular Appointment
made by the
President while Congress is in session and
becomes effective after the nomination is
confirmed
by
the
Commission
on
Appointments.
4. Provisional appointment - A person who has
not qualified in an appropriate examination but
who otherwise meets the requirements for
appointment to a regular position in the
competitive service, whenever a vacancy
occurs and the filling thereof is necessary in the
interest of the service and there is no
appropriate register of eligibles at the time of
appointment.
5. Ad Interim Appointment
it is made while
Congress is not in session, before confirmation
by the CA; it is immediately effective, and
ceases to be valid if disapproved or by-passed
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by the CA or until the next adjournment of the
Congress.
6. Midnight Appointment
made by the
President or acting president within 2 months
immediately before the next presidential
elections and up to the end of his term, whether
or not it is confirmed by the Commission.
after a complete appointment is tantamount to
removal. (De Leon, The Law on Public Officers
and Election Law, 68-69, 2011)
Officers that the President Shall Appoint: (EMA2C- JC2AR-NL2)
Nepotism
The ord rela i e and member of he famil
referred to are those related within the third degree
either of consanguinity or affinity. Since a public
office is a public trust, created for the benefit and in
the interest of the people, appointments thereto
should be based solely on merit and fitness
uninfluenced by any personal or filial
consideration. (De Leon, The Law on Public
Officers and Election Law, 46, 417, 2011)
1. The Constitution prohibits the president from
appointing his close relatives (within the 4th
civil degree by consanguinity or affinity to the
president or his spouse) to high positions in
government during his tenure. No relative of
the President, within the 4th civil degree, shall
be appointed to/as:
a. Constitutional Commissions
b. The Office of the Ombudsman
c. Secretary of a Department
d. Undersecretary of a Department
e. Chairman or Head of Bureaus of
Offices
f. Any GOCC
g. Any GOCC subsidiary
2. Under the Civil Service Decree, all
appointments in the national, provincial, city,
and municipal governments or in any branch
or instrumentality, including GOCCs, made in
favor of the appointing or recommending
authority, or of the chief of the bureau of the
office, or of persons exercising immediate
supervision over him, are prohibited. As used
in he Ci il Ser ice La , he erm rela i e and
members of the family referred to those within
the 3rd degree of consanguinity or affinity. (De
Leon, The Law on Public Officers and Election
Law, 46, 2011)
1.
2.
3.
4.
5.
6.
7.
8.
Heads of Executive departments
Ambassadors
Other public Ministers and consuls
Officers of the Armed forces from the ranks of
colonel or naval captain
Other officers whose appointment are vested
in him in the Constitution
a. Regular members of the Judicial and
Bar Council
b. The Chairman and Commissioners of
the Civil Service Commission
c. The Chairman and Commissioners of
the COMELEC
d. The Chairman and Commissioners of
the Commission on Audit
e. Members of the Regional Consultative
Commission (De Leon, The Law on
Public Officers and Election Law, 71,
2011)
Officers whose appointments are Not
otherwise provided for by law
Officers whom the president may be authorized
by Law to appoint
Officers Lower in rank whose appointments
the Congress, by law, vested in the President
(PHIL. CONST., art. VII, § 16)
Constitutional Limitations on the Presidential
Power to Appoint:
1. Nepotism (see discussion and exceptions
below)
2. Midnight appointments
3. Those relating to an Acting President (PHIL.
CONST., art. VII, §§ 13-15)
The constitutional limitations refer to appointments
in the executive and not the judicial branch of
government. (De Castro v. JBC, G.R. No.191002,
2010)
Revocability of Appointment
General Rule: Appointment to an office once
made and completed, is not subject to
reconsideration or revocation because revocation
Exception: Where the appointment is temporary.
(Ong v. Office of the President, GR No 184219,
January 30, 2012)
Exceptions: (CTAP)
1.
2.
3.
4.
Persons employed in Confidential capacity
Teachers
Physicians
Members of AFP (De Leon, The Law on Public
Officers and Election Law, 47, 2011)
The restriction shall not be applicable to any
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member who, after his or her appointment to any
position in an office or bureau, contracts marriage
with someone in the same office or bureau. In this
event, the employment or retention therein of both
husband and wife may be allowed. (De Leon, The
Law on Public Officers and Election Law, 46, 2011)
The mere issuance of appointment in favor of a
relative within the third degree of consanguinity or
affinity is sufficient to constitute nepotism. Also,
even if the case is one of falsification of public
document, the requirement of disclosure of
relationship to the appointing power in the local
government units simply aims to ensure strict
enforcement of the prohibition against nepotism.
(Galeos v. People, G.R. No. 174730-37, 2011)
The rule on nepotism also applies to designations
made in favor of a relative of the authority making
a designation. A designation accomplishes the
same purpose as appointment. (Laurel v. Civil
Service Commission, G.R. No. 71562, 1991)
Vacancy
There is a vacancy when an office is empty and
without a legally qualified incumbent appointed or
elected to it with a lawful right to exercise its
powers and perform its duties. There can be no
appointment to a non-vacant position. (De Leon,
The Law on Public Officers and Election Law, 104,
2011)
CAUSES: (I RACED PAR2C)
1. Impeachment
2. Removal from office or resignation of the
incumbent
3. Abandonment
4. Conviction of a crime
5. Expiration of term
6. Death
7. Permanent disability
8. Acceptance of incompatible office
9. Reaching the age limit
10. Recall
11. Creation of a new office
12. Failure of person to accept
For appointments not needing confirmation,
removal may be by President or officer designated
by law. If the appointment is permanent, removal is
allowed only for cause.
Principles of Vacancy
1. A person no matter how qualified cannot be
appointed to an office which is not vacant
(Costin v Quimbo, GR No 32271, January 27,
1983) Such appointment is considered null
and void ab initio. (General Manager, PPA v.
Monserate, G.R. No. 129616, Apr. 17, 2002)
2. One who is legally dismissed from office is, by
fiction of law, deemed not to have vacated his
office (Fernandez v Cuneta, GR No 14392,
May 30, 1960)
D. ELIGIBILITY AND QUALIFICATION
REQUIREMENTS
Eligibility
The state of being legally fit to be chosen. It is
of a continuing nature and must exist both at
the commencement and during the occupancy
of an office. (De Leon, The Law on Public Officers
and Election Law, 19, 2011)
Eligible
Under the Admin Code, it is used to refer to a
person who obtains a passing grade in a civil
service examination and whose name is entered in
the register of eligibles from which appointments
must be made. (ADMIN CODE, Book V, Title 1-a,
Sec.5, Par. (8))
Nature of right to hold Public Office
The right to hold public office is not a natural right.
It exists only because and by virtue of some law
expressly or impliedly creating and conferring it.
The qualifications which relate to an office must be
complied with by persons seeking that office. An
election or appointment to office of a person who is
ineligible or unqualified gives him no right to hold
the office. (De Leon, The Law on Public Officers
and Election Law, 20-21, 2011)
Qualifications
Acts which a person is required to do before
entering upon position. Means two things:
1. Endowments, qualities, or attributes that make
an individual eligible for public office
2. Acts, which a person, before entering upon the
performance of his duties, is by law required to
do, such as taking, subscribing, and filing of an
official oath, and giving an official bond (De
Leon, The Law on Public Officers and Election
Law, 20, 2011)
Subject to constitutional limitations, Congress may
determine the eligibility and qualifications of
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officers and provide for the methods of filling
offices.
Two Meanings of Qualifications
WHEN REFERRING
WHEN USED IN THE
TO THE ACT OF
SENSE OF
ENETRING INTO
ENDOWMENTS,
THE
QUALITIES OR
PERFORMANCE OF
ATTRIBUTES
THE FUNCTIONS OF
A PUBLIC OFFICE
The individual must
possess
the
qualifications at the
time of appointment
or
election
and
continuously for as
long as the official
relationship
continues.
Note:
Property
qualifications
may
not
be
imposed for the
exercise of the
right to run for
public office.
Loss of any of
the qualifications
during
incumbency will
be a ground for
termination.
Failure of an officer to
perform
an
act
required by law could
affec he officer i le
to the office.
Note:
Prolonged
failure or refusal
to take the office
could result in
forfeiture
of
office.
An oath of office
taken before one
who has no
authority
to
administer oath
is no oath at all.
Once
proclaimed and
duly sworn in
office, a public
officer is entitled
to assume office
and to exercise
the
functions
thereof.
The
pendency of an
election protest
is not sufficient
basis to enjoin
him
from
assuming office.
The qualifications for public office are continuing
requirements and must be possessed not only at
the time of appointment or election or assumption
of office but d ring he officer en ire en re. Once
any of the required qualifications is lost, his title
may be reasonably challenged.
Formal Qualifications: (CAP CARES)
1. Citizenship
2. Age
3. Political affiliation
4. Civil service examination
5. Ability to read and write
6. Residence
7. Education
8. Suffrage
Only accountable public officers or those who are
entrusted with the collection and custody of public
money, and public ministerial officers whose
actions may affect the rights and interests of
individuals are required to give an official bond.
Improper notarization is not among the grounds for
disqualification as stated under the OEC and LGC.
Apart from the qualifications provided for in the
Constitution, the power to prescribe additional
qualifications for elective office and grounds for
disqualification therefrom, consistent with the
constitutional provisions, is vested in Congress.
(Amora v. COMELEC, G.R. No. 19228, 2011)
An officer who misrepresented his or her
qualification, e.g. educational attainment and
eligibility for government service, is guilty of plain
and simple dishonesty as it refers to the act of
intentionally making a false statement on any
material fact in securing one
appointment.
(Momongan v. Sumayo, A.M. No. P-10-2767,
2011)
All public officers and employees shall take an oath
or affirmation to uphold and defend the
Constitution. (PHIL. CONST., art. IX-B, § 4)
Limits on L
Qualifications:
a
Power to Prescribe
1. The legislature may not reduce or increase the
qualifications prescribed in an exclusive
manner by the Constitution.
2. The legislature may prescribe only general
qualifications.
3. The qualifications must be relevant to the office
for which they are prescribed.
Holding more than one office
There is no constitutionally protected right to hold
incompatible offices. The manifest purposes of a
restriction on multiple holdings are to prevent
offices of public trust from accumulating in a single
person, and to prevent individuals from deriving,
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directly or indirectly, any pecuniary benefit by virtue
of their dual position-holding.
Members of the
House of
Representatives
1. A
natural-born
citizen
of
the
Philippines
2. On the day of the
election, is at least
25 years of age
3. Able to read and
write
4. Except the party-list
representatives, a
registered voter in
the district in which
he shall be elected;
and
5. A resident thereof
for a period of not
less than 1 year
immediately
preceding the day of
the election.
Members of the
SC and lower
collegiate court
1. A
natural-born
citizen
of
the
Philippines
2. A Member of the SC
must be at least 40
years of age; and
3. Must have been for
15 years or more, a
judge of a lower
court or engaged in
the practice of law in
the Philippines.
4. A member of the
judiciary must be a
person of proven
competence,
integrity, probity and
independence.
Chairman and the
Commissioners of
the CSC
1. Natural-born
citizens
of
the
Philippines and
2. At the time of their
appointment,
at
least 35 years of
age
3. With
proven
capacity for public
administration; and
4. Must not have been
candidates for any
elective position in
the
elections
immediately
preceding
their
appointment.
Where a person is prohibited from holding two
offices at the same time, his appointment or
election to a second office may operate to vacate
the first or he may be ineligible for the second.
A person who accepts and qualifies for a second
and incompatible office is deemed to vacate, or by
implication, to resign from the first office. The same
rule obtains where the holding of more than one
position is prohibited by constitutional or statutory
provision although the second position is
compatible with the first. (De Leon, The Law on
Public Officers and Election Law, 44, 2011)
In the absence of constitutional inhibition,
Congress has the same right to provide
disqualifications that it has to provide qualifications
for office. (De Leon, The Law on Public Officers
and Election Law, 23, 2011)
Those Prescribed by the Constitution
POSITION
QUALIFICATION
President and Vice
President
1. A
natural-born
citizen
of
the
Philippines
2. A registered voter
3. Able to read and
write
4. At least 40 years of
age on the day of
the election; and
5. A resident of the
Philippines for at
least
10
years
immediately
preceding
such
election.
Senators
1. Philippines
2. On the day of the
election, is at least
35 years of age
3. Able to read and
write
4. A registered voter;
and
5. A resident of the
Philippines for not
less than 2 years
immediately
preceding the day of
the election.
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Chairman and the
Commissioners of
the COMELEC
1. Natural-born
citizens
of
the
Philippines and
2. At the time of their
appointment,
at
least 35 years of
age
3. Holders of a college
degree; and
4. Must not have been
candidates for any
elective positions in
the
immediately
preceding elections
5. However, a majority
thereof,
including
the Chairman, shall
be members of the
Philippine Bar who
have been engaged
in the practice of law
for at least 10 years.
Chairman and the
Commissioners of
the COA
1. A
natural-born
citizens
of
the
Philippines
2. At the time of their
appointment,
at
least 35 years of
age
3. Certified
Public
Accountants
with
not less than 10
years of auditing
experience,
or
members of the
Philippine Bar who
have been engaged
in the practice of law
for at least 10 years;
and
4. Must not have been
candidates for any
elective position in
the
elections
immediately
preceding
their
appointment
5. At no time shall all
Members of the
Commission belong
to
the
same
profession.
Chairman
and Members
1. Natural-born
citizens
of
the
Philippines; and
of the Commission
on Human Rights
2. A majority of whom
shall be members of
the Bar.
3. The term of office
and
other
qualifications and
disabilities of the
Members of the
Commission shall
be provided by law.
1. Natural-born
citizens
of
the
Philippines; and
2. At the time of
appointment,
at
least 40 years old, of
recognized probity
and independence,
and members of the
Philippine Bar
Ombudsman and
3.
Must not have been
his/her Deputies
candidates for any
elective office in the
immediately
preceding elections
4. Ombudsman must
have, for 10 years
and more, been a
judge or engaged in
the practice of law in
the Philippines
(De Leon, The Law on Public Officers and Election
Law, 35-37, 2011)
E. DISABILITIES AND INHIBITIONS OF
PUBLIC OFFICERS
Disqualification
It is the presence of circumstances and qualities
which makes an individual ineligible from holding a
public office. Lack of disqualifications is itself a
qualification.
Disqualifications: (IM RIPE C2ORN LG)
1.
2.
3.
4.
5.
6.
7.
8.
Mental or physical Incapacity
Misconduct or crime
Removal or suspension from office
Impeachment
Previous tenure of office
Being an Elective official
Consecutive terms
Having been a Candidate for any elective
position
9. Holding more than One office
10. Relationship with the appointing power
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11. Office Newly created or the emoluments of
which have been increased
12. Grounds under the Local Government Code
(De Leon, The Law on Public Officers and
Election Law, 40-49, 2011)
2.
General Rule: Appointive and elective officials
cannot hold multiple employment or office during
their tenure.
Exception: Appointive officials may hold other
office when allowed by law or by the primary
functions of their positions. (PHIL. CONST., art. XIB, § 7)
Exception to holding multiple offices:
3.
1. Those provided for under the Constitution,
such as:
a. President as head of NEDA (PHIL.
CONST., art. XII, § 9)
b. VP may be appointed as Cabinet
Member (PHIL. CONST., art. VII, § 3)
c. VP as Acting President (PHIL. CONST.,
art. VII, § 7)
d. In and ex-officio capacity (CLU v.
Exec. Sec., G.R. No. 83896, 1991);
and
2. Posts occupied by Executive officials specified
in Section 13, Article VII without additional
compensation in ex officio capacities as
provided by law and as required by the primary
f nc ion of he official office . (Funa v. Agra,
G.R. No. 191644, 2013)
General
Disqualifications
Constitution:
under
under
5.
6.
the
1. No candidate who lost in an election shall,
within one year after such election, be
appointed to any office in Government. (PHIL.
CONST., art. IX-B, § 6)
2. No elective official shall be eligible for
appointment or designation in any capacity
to any public office or position during his
tenure. (PHIL. CONST., art. IX-B, § 7 (1))
3. Unless otherwise provided by law or by the
primary functions of his position, no
appointive official shall hold any other
position in Government. (PHIL. CONST., art.
IX-B, § 7 (2))
Special
Disqualifications
Constitution:
4.
the
1. The President, Vice-president, the Members
of the Cabinet, and their deputies or
assistants shall not, unless otherwise
7.
8.
provided in the Constitution, hold any other
office or employment during their tenure.
(PHIL. CONST., art. VIII, § 13)
No Senator or Member of the House of
Representatives may hold any other office or
employment in the Government, or any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their subsidiaries,
during his term, without forfeiting his seat.
Neither shall he be appointed to any office
which may have been created or the
emoluments thereof increase during the term
for which he was elected. (PHIL. CONST., art.
VI, § 13)
The Members of the Supreme Court and of
other courts established by law shall not be
designated to any agency performing quasijudicial or administrative functions. (PHIL.
CONST., art. VIII, § 12)
No Member of a Constitutional Commission
shall, during his tenure, hold any other office
or employment. (PHIL. CONST., art. IX-A, § 2)
The same disqualification applies to the
Ombudsman and his deputies. (PHIL.
CONST., art. XI, § 8)
The Ombudsman and his Deputies shall not
be qualified to run for any office in the
election immediately succeeding their
cessation from office. (PHIL. CONST., art. XI,
§ 11)
Members of Constitutional Commissions, the
Ombudsman and his deputies must not have
been Candidates for any elective position in
the elections immediately preceding their
appointment. (PHIL. CONST., art. IX-B, IX-C,
IX-D, § 1; art. XI, § 8)
Members of the Constitutional Commissions,
the Ombudsman and his deputies are
appointed to a term of seven (7) years,
without reappointment. (PHIL. CONST., art.
IX-B, § 1 (2); art. IX-C, § 1 (2); art. IX-D, §. 1
(2); art. IX, § 11)
The spouse and relatives by consanguinity
or affinity within the fourth civil degree of the
President shall not during his tenure be
appointed as Members of the Constitutional
Commissions, or the Office of the
Ombudsman,
or
as
Secretaries,
Undersecretaries, chairmen or heads of
bureaus or offices, including governmentowned or controlled corporations (PHIL.
CONST., art. VII, § 13, art. VII)
P.D. 807, Sec. 49 prohibits the appointment of a
Senator or Congressman to any office which may
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have been created or emoluments thereof
increased during the term for which he was
elected.
When the Constitution has attached a
disqualification to the holding of any office,
Congress cannot remove it under the power to
prescribe qualifications as to such offices as it may
create. The Constitution imposes limitations on the
right of certain officials to hold more than one office
at the same time.
1. The President, Vice President, Members of
the Cabinet, their deputies or assistants shall
not, unless otherwise provided in the
Constitution, hold any other office or
employment during their tenure.
2. A Senator or Member of the House of
Representatives may not hold any office or
employment in the Government, or any
subdivision, agency, or instrumentality,
including GOCCS or their subsidiaries,
during his term (not tenure) without forfeiting
his seat.
3. The members of the Supreme Court and of
other courts established bylaw shall not be
designated to any agency performing quasijudicial or administrative functions.
4. A member of the Constitutional Commission
shall not, during his tenure, hold any other
office or employment.
5. During their tenure, the Ombudsman and his
deputies are subject to the same
disqualifications and prohibitions as
provided
for
members
Constitutional Commissions.
of
the
6. Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other office
or employment in the government or any
subdivision, agency, or instrumentality,
including GOCCs or their subsidiaries.
7. No member of the armed forces in the active
service shall, at any time, be appointed or
designated in any capacity to a civilian
position in the government including GOCCs
or any of their subsidiaries.
8. The Constitution prohibits the President from
appointing his close relatives to high
positions in the government. Thus: "The
spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not, during his tenure, be
appointed as members of the Constitutional
Commissions, or the Office of the
Ombudsman,
or
as
Secretaries,
Undersecretaries, chairmen or heads of
bureaus of offices, including governmentowned or -controlled corporations and their
subsidiaries.
9. Under the Civil Service Decree, all
appointments in the national, provincial, city,
and municipal governments or in any branch
or
instrumentality
thereof,
including
government-owned
or
controlled
corporations, made in a favor or a relative of
the appointing or recommending authority, or
of the chief of the bureau or office, or of
persons exercising immediate supervision
over him, are prohibited. As used in the law,
the word "relative" and members of the
family referred to are those related within the
third degree either of consanguinity or of
affinity. The restriction shall not be applicable
to the case of a member of any family who,
after his or her appointment to any position
in an office or bureau, contracts marriage
with someone in the same office or bureau,
in which event the employment or retention
therein of both husband and wife may be
allowed.
10. The following are exempted from the
operation of the rules on nepotism: 1)
persons employed in a confidential capacity;
2) teachers; 3) physicians; and 4) members
of the Armed Forces of the Philippines.
Spoils System and Political Lame Ducks
SPOILS SYSTEM
No elective official
shall be eligible for
appointment
of
designation in any
capacity to any
public office or
position during his
tenure
(PHIL.
CONST. art. IX-B,
§7)
The disqualification
subsists only during
the tenure in office
of
the
elective
official. He may be
POLITICAL LAME
DUCKS
No candidate who
has lost in any
election shall, within
one year after such
election,
be
appointed to any
office
in
the
Government of any
government-owned
or
controlled
corporations or in
any
of
its
subsidiaries. (PHIL.
CONST., art. IX-B,
§6)
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appointed provided
he forfeits his seat.
Examples of
exceptions:
1. The
Vice
President may
be appointed as
a
cabinet
member.
2. A
Congressman
may sit in the
Judicial and Bar
Council.
3. To be eligible
to hold any other
office,
the
elected official
must first resign
from his office.
Members of the
Civil Service shall
not
have
been
candidates for any
elective position in
the
elections
immediately
preceding
their
appointment. (PHIL.
CONST., art. IX-B,
§1)
Except for losing
candidates
in
barangay elections,
no candidate who
lost in any election
shall, within 1 year
after such election,
be appointed to any
office
in
the
Government or any
government-owned
or
controlled
corporations or in
any
of
their
sub idiarie . (Local
Government Code,
§94).
Power
of
Congress
Disqualifications
to
Prescribe
In the absence of constitutional inhibition,
Congress has the same right to provide
disqualifications that it has to provide
qualifications for office. (De Leon, The Law on
Public Officers and Election Law, 21, 2019)
Restrictions
1. Congress may not add disqualifications
where the Constitution has provided them in
such a way as to indicate an intention that the
disqualifications provided shall embrace all
that are to be permitted; and
2. When the Constitution has attached a
disqualification to the holding of any office,
Congress cannot remove it under the power
to prescribe qualifications as to such offices
as it may create
(De Leon, The Law on Public Officers and
Election Law, 21, 2019)
Congress cannot validly amend or otherwise
modify the qualification standards (under the
Constitution), as it cannot disregard, evade, or
weaken the force of a constitutional mandate,
or alter or enlarge the Constitution. The
Constitution is the basic law to which all laws must
conform; no act shall be valid if it conflicts with the
Constitution. In the discharge of their defined
functions, the three departments of government
have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it
imposes must be observed. Congress' inherent
legislative powers, broad as they may be, are
subject to certain limitations. [SJS v. DDB, GR No.
157870, 2008]
Divestment
When a public official is in a conflict-of-interest
situation. Such official must resign from his position
in any private business enterprise within 30 days
from his assumption of office and/ or divest himself
of his shareholdings or interest within 60 days from
such assumption. (RA 6713, Office of the
Ombudsman)
Duration of Qualification
Eligibility to an office should be construed as of a
continuing nature and must exist at the
commencement of the term and during occupancy
of the office. The reckoning point in determining the
qualifications of an appointee is the date of
issuance of the appointment and not the date of its
approval by the CSC or the date of resolution of the
protest against it (CSC v de la Cruz, G.R. No.
158737, August 31, 2004)
Persons required to take an Oath of Office
under the Constitution
1. All public officers and employees
2. President, VP, or the acting President
3. All members of the AFP
Oath of Office
It is a qualifying requirement for a public office.
Only when the public officer has satisfied this
prerequisite can his right to enter into the position
be considered plenary and complete. Until then, he
has none at all and for as long as he has not
qualified, the holdover officer is the rightful
occupant. (De Leon, The Law on Public Officers
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and Election Law, 110, 2011)
Inhibitions
It is a restraint upon the public officer against the
doing of certain acts which may be legally done by
others.
Inhibitions under the Constitution
1. The President, Vice-President, Cabinet
Members and their deputies and assistants
shall not, during tenure, directly or indirectly
practice any other profession, participate in
any business or be financially interested in
any contract with the Government. They shall
strictly avoid conflict of interest in the conduct
of their office.
2. No Senator or Member of the House may
hold any other office or employment in the
Government during his term without forfeiting
his seat.
3. No Senator or Member of the House may
personally appear as counsel before any
court of justice or before the Electoral
Tribunal, or quasi-judicial and other
administrative bodies.
4. No Senator or Member of the House shall
directly or indirectly, be interested financially
in any contract with, or in any franchise or
special privilege granted by the Government,
during his term of office
5. No
Member
of
the
Constitutional
Commission shall, during his tenure, hold any
other office or employment. Neither shall he
engage in the practice of any profession or in
the active management or control of
business which in any way may be affected
by the functions of his office, nor shall he be
financially interested, directly or indirectly, in
any contract with, or in any franchise or
special privilege granted by the Government
during his term of office. This inhibition
applies as well to the Ombudsman and his
deputies.
6. No officer or employee in the civil service shall
engage, directly or indirectly, in any
electioneering or partisan political campaign.
Practice of Profession
1. All governors, city and municipality mayors,
are prohibited from practicing their
profession or engaging in any occupation
other than the exercise of their functions as
local chief executives;
2. Sanggunian members may practice their
professions, engage in any occupation, or
POLITICAL LAW
teach in schools, except during session
hours, Sanggunian members who are also
members of the Bar shall not:
a. Appear as counsel before any court
in any civil case wherein a local
government unit or any office,
agency or instrumentality of the
government is the adverse party;
b. appear as counsel in any criminal
case wherein an officer or employee
of the national or local government is
accused of an offense committed in
relation to his office;
c. collect any fee for their appearance
in
administrative
proceeding
involving the local government until
of which he is an official; and
d. use property and personnel of the
Government except when the
Sanggunian member concerned is
defending the interest of the
government
3. Doctors of medicine may practice their
profession even during official hours of work
only on occasions of emergency, provided
that officials concerned do not derive
monetary compensation therefrom.
(Section 90, Local Government Code)
While, as already discussed, certain local elective
officials (like governors, mayors, provincial board
members and councilors) are expressly subjected
to a total or partial proscription to practice their
profession or engage in any occupation, no such
interdiction is made on the punong barangay and
the members of the sangguniang barangay.
Expressio unius est exclusio alterius. Since they
are excluded from any prohibition, the
presumption is that they are allowed to practice
their profession. And this stands to reason
because they are not mandated to serve full time.
In fact, the sangguniang barangay is supposed to
hold regular sessions only twice a month. (Catu v.
Rellosa, GR No. 5738, 2008)
A civil service officer or employee whose
responsibilities do not require his time to be fully
at the disposal of the government can engage in
the private practice of law only with the written
permission of the head of the department
concerned (i.e. DILG). (Section 12, Rule XVIII of
the Revised Civil Service Rules)
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F. POWERS AND DUTIES OF PUBLIC
OFFICERS
Extent of Powers or Authority
1. Expressly conferred upon him by the law
under which he has been appointed or elected
2. Expressly annexed to the office by the law
which created it or some other law referring to
it
3. Attached to the office as an incident to it
(De Leon, The Law on Public Officers and Election
Law, 119, 2019)
Consequence of Holding Office
To hold an office means to possess or to occupy the
office, or to be in possession and administration of
the office, which implies nothing less than the
actual discharge of the functions and duties of the
office. (Funa v. Agra, G.R. No. 191644, 2013)
Doctrine of necessary implication
All powers necessary to the exercise of the power
expressly granted are deemed impliedly granted.
The fact that a particular power has not been
expressly conferred does not necessarily mean
that it is not possessed by the officer claiming it.
(Robustum Agricultural Corporation v. Department
of Agrarian Reform, G.R. No. 221484, Nov. 19,
2018)
No statute can be enacted that can provide all the
details involved in its application. There is always
an omission that may not meet a particular
situation. What is thought, at the time of
enactment, to be an all-embracing legislation may
be inadequate to provide for the unfolding events
of the future. So-called gaps in the law develop as
the law is enforced. One of the rules of statutory
construction used to fill in the gap is the doctrine of
necessary implication. (Chua v. CSC,GR No.
88979, 1992)
Ministerial v. Discretionary Powers
MINISTERIAL
POWERS
DISCRETIONARY
POWERS
When
it
is
absolute, certain,
and
imperative
involving merely
execution of a
specific
duty
arising from fixed
and designated
facts.
When it requires the
exercise of reason and
discretion in determining
how or whether the act
shall be done or the course
pursued.
Note: The officer is
expected to discharge the
duty directly and not
Note: The law
exacting
its
discharge
prescribes
and
defines the time,
mode,
and
occasion of its
performance with
such
certainty
that nothing is left
for judgement or
discretion.
through the intervening
mind of another.
It is susceptible of
delegation
and
can be compelled
by judicial action.
General Rule: It cannot be
delegated to another
Exception: Power of the
President to conclude
treaties may be assigned to
a treaty panel, which can
negotiate the treaty on his
behalf, under his
instructions and subject to
his approval.
(De Leon, The Law on Public Officers and Election
Law, 122-123, 2019)
Constitutional Duties of Public Officers
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. (PHIL. CONST., art. XI,
§ 1);
2. Submit a declaration under oath of assets,
liabilities, and net worth upon assumption of
officer and thereafter as may be required;
(PHIL. CONST., art. XVIII, § 7)
3. Owe the State and Constitution allegiance at
all times. (PHIL. CONST., art. XI, § 18);
Duties of Public officers, In General
1.
2.
3.
4.
Duty to obey the law
Duty to accept and continue in office;
Duty to accept burden of office;
Duty as to diligence and care in the
performance of official duties;
5. Duty in choice and supervision of
subordinates;
6. Duty to perform official acts honestly, faithfully,
and to the best of his ability;
7. Duty not to use his official power to further his
own interest (De Leon, The Law on Public
Officers and Election Law, 152-44, 2011)
Territorial Limitation and Duration of Authority
The authority of all public officers is limited and
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POLITICAL LAW
confined to that territory over which the law, by
virtue of which they claim, has sovereign force. The
authority is limited in its exercise to that term during
which he is by law invested with the rights and
duties of the office. (De Leon, The Law on Public
Officers and Election Law, 132-33, 2011)
Effect when law fixes specific date for the end of
a term
When the law fixes a specific date for the end of the
term, there is an implied prohibition against holdover (Nueno v Angeles, GR no 89, February 1,
1946)
Alter Ego Principle
The acts of the Secretaries of the departments,
performed and promulgated in the regular course
of business are, unless disapproved or reprobated
by the President, presumptively the acts of the
President. (Carpio v Executive Secretary, GR No
96409, February 14, 1992)
Nature of Officer during Hold-Over
During the period of hold-over, the public officer is a
de jure officer (Bautista v Fajardo, GR No 13799,
September 23, 1918)
Doctrine of Qualified Political Agency
All executive and administrative organizations are
adjuncts of the Executive department, the heads of
the various executive departments are assistants
and agents of the Chief Executive, and, except in
cases where the Chief Executive is required by the
Constitution or law to act in person or in the
exigencies of the situation demand that he act
personally, the multifarious executive and
administrative functions of the Chief Executive are
performed by and through the executive
departments, and the acts of the secretaries,
performed and promulgated in the regular course
of business, are, unless disapproved or reprobated
by the Chief Executive, presumptively the acts of
the Chief Executive (Villena v. Secretary of Interior,
GR No. L-46570, 1939)
Limits of the Alter Ego Doctrine
There are certain powers that are reserved to the
President which cannot be exercised by the
Secretaries of the departments such as:
1. Declaration of Martial Law
2. Suspension of the privilege of writ of habeas
corpus
3. Pardoning Power;
4. Purely discretionary powers
Principle of Hold-Over
In the absence of any express of implied
constitutional or statutory provision to the contrary,
the public officer is entitled to hold office until his
successor shall have been duly chosen and shall
have qualified. (Lecaroz v. Sandiganbayan, GR No
130872, March 25, 1999)
Classifications of Powers and Duties
As to their Nature
1. Ministerial
the law exacting its discharge
prescribes and defines the time, mode and
occasion of its performance and requires
neither judgment nor discretion. This kind of
duty is susceptible of delegation.
2. Discretionary a public officer has the right
to decide how and when the duty shall be
performed. A public officer cannot delegate
this kind of duty.
(De Leon, The Law on Public Officers and Election
Law, 135-36, 2011)
General Rule: Mandamus will not lie for the
performance of a discretio