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POLITICAL & INTERNATIONAL LAW
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POLITICAL & INTERNATIONAL LAW
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BAR OPERATIONS 2022
ADMINISTRATIVE COMMITTEE
CREATIVES
FINANCE
NICOLE ANN C. PAGLICAWAN
JULIANNE BEATRICE N. ROSARIO
KIM PATRIZ B. CAMPANILLA
CHRISTINE C. TIAMZON
SERMAE ANGELA G. PASCUAL
PHOEBE TANSIONGKUN
RUTH MARIE DISTOR MORALES
ALLYSSA DANIELLE Y. NG
ERIKA THERESE C. BOLLOZOS
TECHNICAL
JOSEPH BILL P. QUINTOS
CHYLER BON AEHROLD S. GARMA
SAMANTHA J. MAGAOAY
SPECIAL PROJECTS
AINA RAE L. CORTEZ
JAYE MARIE C. MARTINEZ
ANNA MARIE GRACE M. ANTONIO
NORBERTO O. SARIGUMBA III
JOHN TAN
JAZZMIN A. BENJAMIN
IMI LIZA B. ESPINA
MARY STEPHANIE C. CRUZ
RAYMIELLE CHRISTIE MAGCALAS
YUUMEI MARIE B. ESMA
AIHRA NICOLE V. DIESTRO
IRISH MAE D. GARCIA
LOGISTICS
CHRISTIAN GIO R. SENARLO
PATRICIA ALYX D. ANG
BERNETTE ANELA S. CUEVAS
DONN LIN
CELINA EUNICE CHEYENNE D. ABUEG
CLARISSE EVANGELINE G. CHOA
ANTHONY JEFFERSON JULIO
ZACKARY N. DUQUILLA
MAEDEN M. BORCELANGO
MARKETING
KATHLEEN C. ROMINA
AARON C. CHENG
ISABELLE BEATRIZ DLS. GINEZ
PRISHA D. CRUZ
NORLENE JAE M. ANDAYA
RIANNA CO
PUBLIC RELATIONS
LUMINA ALINEA O. AQUINO
LUIS ENRICO BATARA
MIKAELA FRANCESCA K. BELEY
REYNALDO M. REVECHE
GRACIELLA RACHEL D. ROBLES
INTERNALS
JEWEL M. CULALA
DANELLA DIANE D. DIMAPILIS
MARC ANGELO M. GUIBONE
SHEILA MARIE GRACE DELOS ANGELES
ALEXIS CAESAR E. SANCHEZ
CHRISTINE C. TIAMZON
ANGELIQUE P. LEDA
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TABLE OF CONTENTS
I. BASIC CONCEPTS UNDER THE 1987 CONSTITUTION ........................................................................... 17
A.
B.
C.
D.
E.
F.
G.
DECLARATION OF PRINCIPLES AND STATE POLICIES ................................................................... 17
NATIONAL TERRITORY ................................................................................................................ 19
SEPARATION OF POWERS ........................................................................................................... 21
CHECKS AND BALANCES .............................................................................................................. 21
STATE IMMUNITY ....................................................................................................................... 21
DELEGATION OF POWERS ........................................................................................................... 25
FUNDAMENTAL POWERS OF THE STATE ..................................................................................... 27
1. POLICE POWER ......................................................................................................................... 28
2. EMINENT DOMAIN ................................................................................................................... 28
3. TAXATION ................................................................................................................................ 29
II. GENERAL PRINCIPLES OF TAXATION ................................................................................................. 31
A.
B.
C.
D.
E.
F.
G.
DEFINITION, CHARACTERISTICS AND PURPOSE OF TAXATION .................................................... 31
1. DEFINITION .............................................................................................................................. 31
2. CHARACTERISTICS .................................................................................................................... 31
3. PURPOSE .................................................................................................................................. 32
DISTINGUISH: POWER OF TAXATION, POLICE POWER, AND EMINENT DOMAIN ........................ 33
SCOPE AND LIMITATIONS OF TAXATION ..................................................................................... 34
1. INHERENT AND CONSTITUTIONAL LIMITATIONS OF TAXATION ................................................. 34
2. TERRITORIALITY PRINCIPLE AND SITUS OF TAXATION ............................................................... 40
REQUISITES OF A VALID TAXATION ............................................................................................. 41
TAX AS DISTINGUISHED FROM OTHER FORMS OF EXACTIONS ................................................... 41
KINDS OF TAXES .......................................................................................................................... 42
DOCTRINES IN TAXATION............................................................................................................ 43
1. LIFEBLOOD THEORY .................................................................................................................. 43
2. CONSTRUCTION AND INTERPRETATION OF TAX LAWS, RULES AND REGULATIONS ................... 43
3. PROSPECTIVITY OF TAX LAWS ................................................................................................... 44
4. IMPRESCRIPTIBILITY OF TAXES .................................................................................................. 44
5. DOUBLE TAXATION................................................................................................................... 45
6. EXEMPTION FROM TAXATION .................................................................................................. 45
7. ESCAPE FROM TAXATION ......................................................................................................... 46
8. EQUITABLE RECOUPMENT........................................................................................................ 48
9. PROHIBITION ON COMPENSATION AND SET-OFF...................................................................... 48
III. LEGISLATIVE DEPARTMENT .............................................................................................................. 50
A.
B.
LEGISLATIVE POWER ................................................................................................................... 50
1. SCOPE AND LIMITATIONS ......................................................................................................... 50
2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ....................................................................... 52
HOUSES OF CONGRESS; COMPOSITIONS AND QUALIFICATIONS ................................................ 52
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1. SENATE .................................................................................................................................... 52
2. HOUSE OF REPRESENTATIVES ................................................................................................... 53
a. District representatives and questions of apportionment .................................................. 53
b. Party-list system ................................................................................................................ 55
LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ............................................. 60
QUORUM AND VOTING MAJORITIES .......................................................................................... 62
DISCIPLINE OF MEMBERS ............................................................................................................ 63
PROCESS OF LAW-MAKING ......................................................................................................... 64
APPROPRIATION AND RE-ALIGNMENT ....................................................................................... 67
LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................................ 68
POWER OF IMPEACHMENT (PHIL. CONST., ART. XI.) ................................................................... 71
ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ........................................ 71
1. ELECTORAL TRIBUNALS ............................................................................................................ 71
2. COMMISSION ON APPOINTMENTS ........................................................................................... 73
INITIATIVE AND REFERENDUM.................................................................................................... 74
IV. EXECUTIVE DEPARTMENT ............................................................................................................... 77
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT .......................... 77
PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .................................................................. 78
POWERS OF THE PRESIDENT ....................................................................................................... 80
1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ............................................................. 81
2. POWER OF APPOINTMENT ....................................................................................................... 81
a. In General.......................................................................................................................... 81
b. Confirmation and by-passed appointments ....................................................................... 82
c. Midnight Appointments & Ad Interim Appointments ......................................................... 83
d. Power of Removal ............................................................................................................. 84
POWER OF CONTROL AND SUPERVISION .................................................................................... 85
1. DOCTRINE OF QUALIFIED POLITICAL AGENCY ........................................................................... 85
2. EXECUTIVE DEPARTMENTS AND OFFICES.................................................................................. 85
3. LOCAL GOVERNMENT UNITS .................................................................................................... 86
EMERGENCY POWERS ................................................................................................................. 86
MILITARY POWERS ...................................................................................................................... 87
1. CALLING OUT POWERS ............................................................................................................. 87
2. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS; EXTENSION ................................................................................................................... 88
EXECUTIVE CLEMENCY ................................................................................................................ 90
1. FORMS AND LIMITATIONS ....................................................................................................... 90
DIPLOMATIC POWER................................................................................................................... 92
POWERS RELATIVE TO APPROPRIATION MEASURES................................................................... 93
RULES OF SUCCESSION ................................................................................................................ 94
V. JUDICIAL DEPARTMENT .................................................................................................................... 98
A.
B.
JUDICIAL POWER......................................................................................................................... 98
JUDICIAL REVIEW ........................................................................................................................ 99
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1. REQUISITES .............................................................................................................................. 99
2. POLITICAL QUESTION DOCTRINE ............................................................................................ 100
3. MOOT QUESTIONS ................................................................................................................. 101
4. OPERATIVE FACT DOCTRINE ................................................................................................... 103
JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY .................................................................. 103
APPOINTMENTS TO THE JUDICIARY .......................................................................................... 105
1. QUALIFICATIONS.................................................................................................................... 105
2. JUDICIAL AND BAR COUNCIL .................................................................................................. 106
THE SUPREME COURT ............................................................................................................... 107
1. COMPOSITION ....................................................................................................................... 107
2. POWERS AND FUNCTIONS ..................................................................................................... 108
VI. CONSTITUTIONAL COMMISSIONS.................................................................................................. 115
A.
B.
C.
D.
E.
COMMON PROVISIONS ............................................................................................................. 115
POWERS AND FUNCTIONS ........................................................................................................ 117
COMPOSITION AND QUALIFICATION OF MEMBERS .................................................................. 125
a. Civil Service Commission ........................................................................................................ 125
b. Commission on Elections ........................................................................................................ 125
c. Commission on Audit ............................................................................................................. 126
PROHIBITED OFFICES AND INTERESTS ....................................................................................... 127
JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS ...................................... 127
IX. BILL OF RIGHTS .............................................................................................................................. 130
A.
B.
C.
DUE PROCESS OF LAW .............................................................................................................. 131
1. PROCEDURAL AND SUBSTANTIVE ........................................................................................... 131
2. VOID-FOR-VAGUENESS ........................................................................................................... 133
3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS ...................................................................... 134
EQUAL PROTECTION ................................................................................................................. 138
1. REQUISITES FOR VALID CLASSIFICATION ................................................................................. 138
2. TESTS TO DETERMINE THE REASONABLENESS OF A CLASSIFICATION ...................................... 141
a. Strict Scrutiny Test ........................................................................................................... 141
b. Intermediate Scrutiny Test............................................................................................... 141
c. Rational Basis Test ........................................................................................................... 141
ARRESTS, SEARCHES AND SEIZURES .......................................................................................... 141
1. REQUISITES OF A VALID WARRANT ......................................................................................... 141
a. Probable Cause................................................................................................................ 142
b. Personal Determination by the Judge .............................................................................. 142
c. Personal Examination of the Complainant and the Witnesses .......................................... 143
d. Facts Personally Known to the Applicant and the Witnesses ............................................ 143
e. Particularity of Description .............................................................................................. 144
2. WARRANTLESS ARRESTS AND DETENTION .............................................................................. 147
a. In Flagrante Delicto ......................................................................................................... 148
b. Hot Pursuit Arrest ............................................................................................................ 149
c. Waiver of Right................................................................................................................ 150
3. WARRANTLESS SEARCHES ...................................................................................................... 151
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a. Search Incidental to a Lawful Arrest ................................................................................. 152
b. Seizure of Evidence in Plain View ..................................................................................... 153
c. Exigent and Emergency Circumstances ............................................................................ 154
d. Search of a Moving Vehicle .............................................................................................. 154
e. Stop and Frisk Rule (Terry Search).................................................................................... 155
f. Customs Search ............................................................................................................... 156
a. Airport Searches .............................................................................................................. 157
b. Checkpoint Search ........................................................................................................... 157
c. Warrantless Search by a Private Individual....................................................................... 158
4. EXCLUSIONARY RULE .............................................................................................................. 159
PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ....................................................... 160
1. PRIVATE AND PUBLIC COMMUNICATIONS .............................................................................. 160
2. INTRUSION, WHEN ALLOWED................................................................................................. 161
a. Upon Lawful Order of the Court....................................................................................... 161
b. When Public Safety or Order Requires Otherwise as Prescribed by Law ........................... 161
3. EXCLUSIONARY RULE ............................................................................................................. 161
FREEDOM OF SPEECH AND EXPRESSION ................................................................................... 163
1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT............................................................... 163
2. CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS...................................................... 165
3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ............................................................. 165
4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ................................. 167
a. Clear and Present Danger Test ......................................................................................... 167
b. Dangerous Tendency Rule ............................................................................................... 168
5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA .................................................... 169
6. UNPROTECTED SPEECH .......................................................................................................... 171
a. Hate Speech and Fighting Words ..................................................................................... 171
b. Defamation and Libel....................................................................................................... 172
c. Absolutely Privileged Communications ............................................................................ 173
d. Qualifiedly Privileged Communications ............................................................................ 173
e. Sedition and Speech in Relation to Rebellion ................................................................... 175
f. Obscenity/Pornography ................................................................................................... 176
FREEDOM OF RELIGION ............................................................................................................ 177
1. NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES ................................................. 177
a. Voluntarism ..................................................................................................................... 177
b. Insulation of the Political Process From Interfaith Dissension ........................................... 178
c. Constitutionally Created .................................................................................................. 179
d. Jurisprudence .................................................................................................................. 179
2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS ................................................ 183
3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION ................................. 184
LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ................................................................. 185
1. SCOPE AND LIMITATIONS ....................................................................................................... 185
2. WATCH-LIST AND HOLD DEPARTURE ORDERS ........................................................................ 186
RIGHT TO INFORMATION .......................................................................................................... 186
1. SCOPE AND LIMITATIONS ....................................................................................................... 186
EMINENT DOMAIN .................................................................................................................... 189
1. CONCEPT................................................................................................................................ 189
2. JUST COMPENSATION ............................................................................................................ 192
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3. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ................................................................... 196
RIGHT TO ASSOCIATION ............................................................................................................ 197
NON-IMPAIRMENT OF CONTRACTS .......................................................................................... 199
ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS................................................. 199
RIGHTS UNDER CUSTODIAL INVESTIGATION ............................................................................. 200
1. MEANING OF CUSTODIAL INVESTIGATION.............................................................................. 200
2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION ..................................................... 202
3. REQUISITES OF A VALID WAIVER ............................................................................................ 204
4. EXCLUSIONARY DOCTRINE...................................................................................................... 204
RIGHTS OF THE ACCUSED .......................................................................................................... 206
1. CRIMINAL DUE PROCESS ........................................................................................................ 206
2. BAIL........................................................................................................................................ 207
3. PRESUMPTION OF INNOCENCE............................................................................................... 210
4. RIGHT TO COUNSEL ................................................................................................................ 211
5. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ................................. 212
6. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL................................................................... 213
7. RIGHT OF CONFRONTATION ................................................................................................... 214
8. RIGHT TO COMPULSORY PROCESSES ...................................................................................... 214
9. TRIAL IN ABSENTIA ................................................................................................................. 215
RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES ................................................. 216
RIGHT AGAINST SELF-INCRIMINATION ...................................................................................... 217
1. EXTENT OF THE RIGHT ............................................................................................................ 218
2. IMMUNITY STATUTES ............................................................................................................. 221
RIGHT AGAINST DOUBLE JEOPARDY ......................................................................................... 222
1. REQUISITES AND LIMITATIONS ............................................................................................... 222
RIGHT AGAINST INVOLUNTARY SERVITUDE .............................................................................. 226
RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS ....................... 227
NON-IMPRISONMENT FOR DEBTS............................................................................................. 228
EX POST FACTO LAWS AND BILLS OF ATTAINDER...................................................................... 229
1. EX POST FACTO LAW .............................................................................................................. 229
2. BILL OF ATTAINDER ................................................................................................................ 230
WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO .................................. 230
1. WRIT OF HABEAS CORPUS ...................................................................................................... 230
2. WRIT OF KALIKASAN ............................................................................................................... 232
3. WRIT OF HABEAS DATA .......................................................................................................... 233
4. WRIT OF AMPARO .................................................................................................................. 233
VIII. CITIZENSHIP ................................................................................................................................. 236
A.
B.
C.
WHO ARE FILIPINO CITIZENS ..................................................................................................... 236
MODES OF ACQUIRING CITIZENSHIP ......................................................................................... 239
a. C.A. No. 473..................................................................................................................... 239
b. R.A. No. 9139................................................................................................................... 240
c. Effects of Judicial Naturalization ...................................................................................... 240
LOSS AND REACQUISITION OF CITIZENSHIP .............................................................................. 241
a. Losing Citizenship ............................................................................................................ 241
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b. Reacquiring Citizenship.................................................................................................... 241
DUAL CITIZENSHIP AND DUAL ALLEGIANCE .............................................................................. 242
IX. LAW ON PUBLIC OFFICERS ............................................................................................................. 245
A.
B.
C.
D.
E.
F.
G.
GENERAL PRINCIPLES ................................................................................................................ 245
KINDS OF APPOINTMENT .......................................................................................................... 247
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ................................................................ 253
POWERS AND DUTIES OF PUBLIC OFFICERS .............................................................................. 256
DISTINGUISH: DE FACTO AND DE JURE OFFICERS...................................................................... 258
CIVIL SERVICE ............................................................................................................................ 259
1. Scope ..................................................................................................................................... 259
2. Appointments to Civil Service ................................................................................................. 260
3. Personnel Actions................................................................................................................... 261
ACCOUNTABILITY OF PUBLIC OFFICERS ..................................................................................... 261
1. DISCIPLINE ............................................................................................................................. 261
a. GROUNDS........................................................................................................................ 261
b. JURISDICTION .................................................................................................................. 262
c. DISMISSAL, PREVENTIVE SUSPENSION, REINSTATEMENT AND BACK SALARIES ................. 263
d. CONDONATION DOCTRINE .............................................................................................. 266
REORGANIZATION ................................................................................................................ 267
2. IMPEACHMENT ...................................................................................................................... 270
3. THE OMBUDSMAN AND THE OFFICE OF THE PROSECUTOR .................................................... 271
4. THE SANDIGANBAYAN ............................................................................................................ 277
X. ADMINISTRATIVE LAW.................................................................................................................... 281
A.
B.
C.
GENERAL PRINCIPLES ................................................................................................................ 281
POWERS OF ADMINISTRATIVE AGENCIES ................................................................................. 282
1. QUASI-LEGISLATIVE (RULE-MAKING) POWER.......................................................................... 283
a. Kinds of Administrative Rules and Regulations ................................................................. 286
b. Requisites for Validity ...................................................................................................... 287
2. QUASI-JUDICIAL POWER ......................................................................................................... 289
a. Administrative Due Process ............................................................................................. 292
b. Administrative Appeal and Review................................................................................... 295
c. Administrative Res Judicata ............................................................................................. 296
3. FACT-FINDING, INVESTIGATIVE, LICENSING, AND RATE-FIXING LAW POWERS ........................ 297
DOCTRINES OF PRIMARY JURISDICTION AND EXHAUSTION OF ADMINISTRATIVE REMEDIES .. 299
XI. ELECTION LAW ............................................................................................................................... 307
A.
SUFFRAGE ................................................................................................................................. 307
1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ............................................................. 307
2. REGISTRATIONS AND DEACTIVATION ..................................................................................... 308
3. INCLUSION AND EXCLUSION PROCEEDINGS............................................................................ 311
4. LOCAL AND OVERSEAS ABSENTEE VOTING ............................................................................. 311
5. DETAINEE VOTING .................................................................................................................. 313
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CANDIDACY ............................................................................................................................... 315
1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES .................................................. 315
2. FILING OF CERTIFICATES OF CANDIDACY ................................................................................ 319
a. Effect of Filing.................................................................................................................. 319
b. Substitution and Withdrawal of Candidates ..................................................................... 320
c. Nuisance Candidates ....................................................................................................... 321
d. Duties of the COMELEC .................................................................................................... 322
CAMPAIGN ................................................................................................................................ 328
1. PREMATURE CAMPAIGNING................................................................................................... 328
2. PROHIBITED CONTRIBUTIONS ................................................................................................ 329
3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA .............................................................. 330
4. LIMITATIONS ON EXPENSES .................................................................................................... 334
5. STATEMENT OF CONTRIBUTIONS AND EXPENSES ................................................................... 335
REMEDIES AND JURISDICTION .................................................................................................. 336
1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY ................... 336
2. PETITION FOR DISQUALIFICATION .......................................................................................... 337
3. FAILURE OF ELECTION VERSUS ANNULMENT OF ELECTION RESULTS ...................................... 341
4. PRE-PROCLAMATION CONTROVERSY...................................................................................... 342
5. ELECTION PROTEST ................................................................................................................ 346
6. QUO WARRANTO ................................................................................................................... 350
XII. LOCAL GOVERNMENTS ................................................................................................................. 353
A.
B.
C.
PRINCIPLES OF LOCAL AUTONOMY ........................................................................................... 354
1. CONSTITUTIONAL RULES AND PRINCIPLES .............................................................................. 354
2. DECLARATION OF POLICIES..................................................................................................... 354
3. THREE FACETS OF LOCAL AUTONOMY .................................................................................... 354
a. Fiscal Autonomy .............................................................................................................. 354
b. Administrative Autonomy ................................................................................................ 355
c. Political Autonomy .......................................................................................................... 355
4. DECENTRALIZATION ............................................................................................................... 356
a. Power vs. Administration ................................................................................................. 356
b. 4 Categories of Decentralization ...................................................................................... 357
c. President’s Power of General Supervision ........................................................................ 358
d. Power of Congress over LGUs .......................................................................................... 359
AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT................. 361
1. 1987 CONSTITUTION .............................................................................................................. 361
2. RA 11054: ORGANIC LAW FOR THE BANGSAMORO AUTONOMOUS REGION IN MUSLIM
MINDANAO ............................................................................................................................... 363
LOCAL GOVERNMENT UNITS ..................................................................................................... 368
1. POWERS OF LOCAL GOVERNMENT UNITS, IN GENERAL .......................................................... 368
a. Sources of the powers of LGUs: ....................................................................................... 368
b. Four Categories of Powers Exercised by LGUs: ................................................................. 368
2. POLICE POWER (GENERAL WELFARE CLAUSE) ......................................................................... 368
a. Two Branches of the General Welfare Clause................................................................... 369
b. Requisites for Valid Exercise of Police Power ................................................................... 370
c. Barangay Police Power .................................................................................................... 371
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3. POWER OF EMINENT DOMAIN (EXPROPRIATION)................................................................... 371
a. Nature of the Power of LGU Eminent Domain .................................................................. 371
b. Requisites of Eminent Domain: (POJOC) .......................................................................... 371
c. Jurisdiction ...................................................................................................................... 372
d. Due Process Requirements .............................................................................................. 372
e. Judicial Review ................................................................................................................ 372
f. Just Compensation .......................................................................................................... 372
g. Requisites for the Immediate Possession by LGU ............................................................. 372
h. Returning the Property .................................................................................................... 374
4. POWER OF TAXATION (POWER TO GENERATE AND APPLY RESOURCES) ................................. 375
a. Constitutional Rules......................................................................................................... 375
b. Power of Taxation is Not Inherent in LGUs ....................................................................... 375
c. Fundamental Principles of Local Taxation ........................................................................ 377
d. Other limitations on taxing powers of LGUs ..................................................................... 380
5. CLOSURE AND OPENING OF ROADS ........................................................................................ 384
a. Power to Open or Close Roads ......................................................................................... 385
b. Requirements and Conditions for Permanent Closure ...................................................... 385
c. Requirements and Conditions for Temporary Closure ...................................................... 385
6. LEGISLATIVE POWER .............................................................................................................. 386
a. Requisites of a Valid Ordinance (CUP PUG) ...................................................................... 386
b. Local Initiative and Referendum ...................................................................................... 389
7. CORPORATE POWERS ............................................................................................................. 390
8. ULTRA VIRES ACTS/CONTRACTS ............................................................................................. 391
9. LIABILITY OF LOCAL GOVERNMENT UNITS .............................................................................. 392
a. Suability of LGUs.............................................................................................................. 392
b. Governmental Functions vs. Proprietary Functions .......................................................... 392
c. Liability on Contracts ....................................................................................................... 393
d. Liability for Torts.............................................................................................................. 394
e. Rules on Enforcing Money Claims vs. LGU ........................................................................ 394
f. Summary Rules on Liability for Damages.......................................................................... 395
10. SETTLEMENT OF BOUNDARY DISPUTES............................................................................ 396
a. Procedure After Failure of Amicable Settlement .............................................................. 396
11. VACANCIES AND SUCCESSION.......................................................................................... 396
a. Grounds for Permanent Vacancy: (F2VR2-DP) .................................................................. 396
b. Filling of Vacancy: ............................................................................................................ 396
c. Permanent Vacancies ...................................................................................................... 396
12. RECALL ............................................................................................................................ 399
a. Who May Exercise ........................................................................................................... 399
b. How Recall is Initiated ..................................................................................................... 399
c. Recall Process/Procedure ................................................................................................ 399
d. Conduct of Recall Election ............................................................................................... 400
13. TERM LIMITS ................................................................................................................... 401
a. Constitutional Rule .......................................................................................................... 401
b. Not an Interruption to the Full Term (3-Term Limit Applies – Hence, Barred): .................. 401
c. An Interruption to the Full Term (3-Term Limit does not Apply – Hence, Not Barred)....... 401
LOCAL TAXATION ...................................................................................................................... 402
1. FUNDAMENTAL PRINCIPLES OF LOCAL TAXATION AND REAL PROPERTY TAXATION ................ 402
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a. Local Taxation [ULIPE] ..................................................................................................... 402
b. Real Property Taxation [CUANE] ...................................................................................... 402
2. COMMON LIMITATIONS ON TAXING POWER OF THE LGU ...................................................... 403
3. REQUIREMENTS FOR A VALID TAX ORDINANCE ...................................................................... 404
4. PROCEDURE FOR APPROVAL AND EFFECTIVITY OF TAX ORDINANCES..................................... 405
5. EXEMPTIONS FROM REAL PROPERTY TAXES (Go-WatCh-ECo] (LGC, Sec. 234)......................... 406
XIII. NATIONAL ECONOMY AND PATRIMONY ..................................................................................... 412
A.
B.
C.
D.
E.
F.
G.
REGALIAN DOCTRINE ................................................................................................................ 412
EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES .......................... 415
FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR PUBLIC UTILITY ....................................... 417
ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ......................... 419
PRACTICE OF PROFESSIONS ...................................................................................................... 420
ORGANIZATIONS AND REGULATION OF PRIVATE AND PUBLIC CORPORATIONS....................... 420
MONOPOLIES, RESTRAINT OF TRADE, AND UNFAIR COMPETITION .......................................... 421
XIV. SOCIAL JUSTICE AND HUMAN RIGHTS ......................................................................................... 423
A.
B.
C.
CONCEPT OF SOCIAL JUSTICE .................................................................................................... 423
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ........................................................................... 424
COMMISSION ON HUMAN RIGHTS ........................................................................................... 428
XV. AMENDMENTS OR REVISIONS OF THE CONSTITUTION ................................................................. 431
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ........................................... 436
A.
B.
ACADEMIC FREEDOM ................................................................................................................ 436
CONSTITUTIONAL TAX EXEMPTIONS FOR CERTAIN INSTITUTIONS ........................................... 437
XVII. PUBLIC INTERNATIONAL LAW ..................................................................................................... 440
A.
B.
C.
CONCEPTS ................................................................................................................................. 441
1. WHAT ARE OBLIGATIONS ERGAOMNES? ................................................................................ 441
2. WHAT IS JUS COGENS? ........................................................................................................... 441
3. WHAT IS EX AEQUO ET BONO? ............................................................................................... 442
RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINES DOMESTIC LAW ......................... 443
SOURCES OF INTERNATIONAL LAW........................................................................................... 444
1. ARTICLE 38. INTERNATIONAL COURTOF JUSTICE STATUTE ...................................................... 444
a. Treaties ........................................................................................................................... 445
b. Custom ............................................................................................................................ 445
c. General Principles of Law ................................................................................................. 447
d. Judicial decisions ............................................................................................................. 448
e. Teachings of the Most Highly QualifiedPublicists........................................................... 448
2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS ................... 448
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D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
POLITICAL & INTERNATIONAL LAW
3. EFFECT OF ACTIONS OF ORGANS OFINTERNATIONAL ORGANIZATION CREATED BY TREATY .... 449
SUBJECTS OF INTERNATIONAL LAW .......................................................................................... 449
1. STATES ................................................................................................................................... 450
2. INTERNATIONAL ORGANIZATIONS .......................................................................................... 452
3. INDIVIDUALS .......................................................................................................................... 453
REQUISITES OF STATEHOOD ..................................................................................................... 453
1. What is a state?...................................................................................................................... 453
a. A permanent population.................................................................................................. 453
b. A defined territory ........................................................................................................... 453
c. Government .................................................................................................................... 454
d. Capacity to enter into relations with other states ............................................................ 454
JURISDICTION OF STATES .......................................................................................................... 454
1. BASIS OF JURISDICTION .......................................................................................................... 454
2. EXEMPTION FROM JURISDICTION ........................................................................................... 456
GENERAL PRINCIPLES OF TREATY LAW ...................................................................................... 458
DOCTRINE OF STATE RESPONSIBILITY ....................................................................................... 463
REFUGEES ................................................................................................................................. 468
EXTRADITION ............................................................................................................................ 471
BASIC PRINCIPLES OF INTERNATIONAL HUMAN RIGHTS LAW .................................................. 473
BASIC PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW .................................................. 476
LAW OF THE SEA ....................................................................................................................... 484
1. BASELINES .............................................................................................................................. 484
2. ARCHIPELAGIC STATES ........................................................................................................... 484
3. Internal Waters ...................................................................................................................... 484
4. Territorial Sea......................................................................................................................... 485
5. Contiguous Zone .................................................................................................................... 485
6. Exclusive Economic Zone ........................................................................................................ 485
7. Continental Shelf.................................................................................................................... 486
8. International Tribunal for the Law of the Sea .......................................................................... 488
INTERNATIONAL ENVIRONMENTAL LAW .................................................................................. 489
1. Precautionary Principle .......................................................................................................... 489
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I. BASIC CONCEPTS UNDER THE 1987
CONSTITUTION
TOPIC OUTLINE UNDER THE SYLLABUS:
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES
B. NATIONAL TERRITORY
C. SEPARATION OF POWERS
D. CHECKS AND BALANCES
E. STATE IMMUNITY
F. DELEGATION OF POWERS
G. FUNDAMENTAL POWERS OF THE
STATE
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES
Self-Executing
and
Non-Self
Executing
Provisions
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).
-
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-self-executing
provisions. (Bernas, 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.
Principles
Binding rules which must be observed in the conduct
of government.
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Policies
Guidelines for the orientation of the state.
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. L-49112,
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]ivilian authority is, at all times, supreme over the
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 the national territory.”
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
PROHIBITS
DOES NOT PROHIBIT
Possession, control and Peaceful use of nuclear
manufacture of nuclear energy
weapons; nuclear arms
tests
POLITICAL & INTERNATIONAL LAW
Exceptions 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 Balanced 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)
1. Uncertainty
2. Possibility of irreversible harm
3. Possibility of serious harm
(International Service for the Acquisition of AgriBiotech v. Greenpeace, G.R. No. 209271, Dec. 8,
2015)
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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)
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. 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
1. 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.
2.
Now, it is to determine the State’s jurisdiction
over which it can exercise its sovereignty.
The government can exercise its power over
POLITICAL & INTERNATIONAL LAW
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 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
cedes to the United States the archipelago
known as the Philippines Islands, and
comprehending the islands lying within the
following line” Article 3 of the 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:
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1.
2.
Territorial sea, seabed, subsoil, insular
shelves, and other submarine areas; and
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.
Future Acquisitions included in National Territory
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 to the
Philippines by historic right or legal title,” that is,
territories which, depending on available evidence,
might belong to the Philippines (e.g., Sabah, the
Marianas, Freedomland) (Bernas, Constitutional
Rights and Social Demands, 8, 2010).
Under Article 3 of the UNCLOS, “every state has the
right to establish the breadth of its territorial sea up to
a limit not exceeding 12 nautical miles, measured
from the baselines.”
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 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
POLITICAL & INTERNATIONAL LAW
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; and
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 Islands”
under the Republic of the 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 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 country’s
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)
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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
Philippines’ claim over Sabah under 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).
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 nonliving
resources
CONTINENTAL
SHELF
Submerged
prolongation of
the
land
territory
Sovereign
rights
of
exploration
and
exploitation of
living and nonliving
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
category of “regime of islands” whose islands
generate their own applicable maritime zones (e.g.,
Kalayaan Islands and Scarborough Shoal).
1.
Kalayaan Islands has its own Territorial Sea,
Contiguous Zone, and Exclusive Economic
Zone.
2.
3.
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.
C. SEPARATION OF POWERS
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, 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 Laurel emphatically
asserted “will neither direct nor restrain executive [or
legislative] action” (Republic v. Bayao, G.R. No.
179492, Jun 5, 2013).
D. 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:
1. Legislation in the form of an enrolled bill
needs final approval from the President to
become a law;
2. President must obtain the concurrence of
Congress to complete certain acts (e.g.
granting of amnesty);
3. Money can be released from the Treasury
only by authority of Congress;
4. Appropriation, revenue, tariff, increases in
public debt and private bills originate in
House of Representatives;
5. SC can declare acts of Congress or the
Executive unconstitutional.
E. STATE IMMUNITY
BASIS: Art. XVI, Sec. 3: “The state may not be sued
without its consent.” This is based on the principle of
equality of states — par in parem non habet
imperium.
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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).
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 sovereigns out of deference to
their role as sovereigns.
Kinds of Immunity
1. Absolute sovereign immunity - where a
state cannot be sued in a foreign court no
matter what the act it is sued for; and
2.
Restrictive sovereign immunity - where a
state is immune from suits involving
governmental actions (jure imperii), but not
from those arising from commercial or nongovernmental 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 State’s commercial activity is a descent to the 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 & INTERNATIONAL 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; and
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’s Republic of
China stating that a project is in pursuit of a sovereign
activity is not the kind of certification that can
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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).
a.
When Suit is Considered against the State: (NUO)
1. The Republic is sued by Name
2. Suits
against
an
Unincorporated
government agency
3. Suit is against a government Official, but is
such that ultimate liability shall devolve on
the government
b.
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. L25916, 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.
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.
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)
Special Law: may come in the form of a
private bill authorizing a named individual to
bring a suit on a special claim.
IMPLIED (CBIP)
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; and
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).
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.
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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
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)
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
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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 Sstate 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)
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
“Immunity
of
the
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).
F. DELEGATION 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).
Exceptions: (PLATE)
1. Delegation to the People – To the extent
reserved to the people by the provision on
initiative and referendum.
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).
a.
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
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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 laws
and ordinances,” and to “maintain public
order in the barangay.” (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.
a. Rationale:
1. Increasing complexity of the task of
government
2. Lack of technical competence on the
part of Congress to provide for specific
details of implementation
3. Administrative agencies may fill in
details of the statute for implementation
4. Legislature may pass “contingent
legislation “which leaves to another
body the business of ascertaining facts
necessary to bring the law into action”
(ABAKADA v. Ermita, G.R. No.
168056, Sept 1, 2005).
a.
b.
c.
d.
If there was a valid delegation,
administrative rules and regulations are just
binding as if they were 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:
1. such a violation is made a crime by the
delegating law;
2. penalty of such is provided in the
statutes;
3. the regulation is published in full text.
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
-
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 the
law is. A statute may be complete when the
subject, and the manner and the extent of its
operation are stated in it such that when it
reaches the delegate,there must be nothing left
for the delegate to do but to enforce the law.
2. Sufficiency of Standard — There must be
adequate guidelines or limitations in the law to
map out the boundaries of the delegate authority
and prevent the delegation from running riot. 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. L45127, May 5, 1989).
Section 8 of PD 910 regarding the Malampaya funds
provides: “all fees, revenues and receipt…under the
Petroleum Act of 1949; as well as the government
share…shall form part of a special fund to be used to
4. Tariff Powers
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finance energy resource development and
exploitation programs and projects of the government
and for such other purposes as may be hereafter
provided by the President.” 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 adequately determine the limits of the President‘s
authority (Belgica v. Ochoa, G.R. No. 208566, Nov.
19, 2013).
Congress can only delegate, usually to administrative
agencies, rule-making power or law execution.
This involves either of two tasks for the administrative
agencies:
1. Subordinate Legislation: Filling in the
details of an otherwise complete statute; or
2. Contingent Legislation: Ascertaining the
fact necessary to put into effect, suspend, or
apply a “contingent” law.
Any post-enactment congressional measure should
be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the
following: (SAHM)
1. Scrutiny based primarily on Congress’
power of appropriation and the budget
hearings conducted in connection with it
2. 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
3. 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).
Reorganization “involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason
of economy or redundancy of functions.” The general
rule has always 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 department are
concerned, the President’s power 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).
POLITICAL & INTERNATIONAL LAW
G. FUNDAMENTAL POWERS OF THE
STATE
Concept, Application, and Limits
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 The
property The property is
property
is (generally in the “taken”
for
“regulated” for form of money) public benefit,
the purpose of is taken for the hence, it must
promoting the support
of be
general
government
compensated.
welfare,
hence it is not
compensable
PERSONS AFFECTED
Usually
Operates on
operates
an entity or an
upon
a
individual as
community of
the owner of a
a class of
particular
entities
or
property
individuals
EFFECT
There is no The
money There is a
transfer
of contributed in transfer of the
title. At most, the concept of right
to
there is a taxes becomes property
restraint
on part
of
the whether it be
the injurious public funds
ownership or
use of the
to a lesser
property
right
(e.g.
possession)
BENEFIT
The person Person affected The
person
affected
receives
the affected
receives no equivalent
of receives the
direct
and the tax in the full and fair
immediate
form
of market value
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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 injury”
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
Regulates
both
liberty
and property
1.
protection,
public
improvements,
and benefits he
receives from
the government
as
such.
Therefore,
taxation may be
used as an
implementation
of police power
(Lutz
v.
Araneta, 1955)
IMPOSITION
There
is
generally
no
limit
to
the
amount
that
may
be
imposed
of the property
taken from him
There is no
amount
imposed but
rather
the
owner is paid
the
market
value of the
property taken
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:
a. President
b. Administrative Bodies
c. 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.
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009)
EXTENT
Affect only property rights
POLICE POWER
Police Power in General
a. 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)
b. It is the power of the State to enact
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). These fall under “public necessity”
c. 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.)
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:
a. the expropriation is for public use
b. 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 matter is legislative, however, “once authority 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. L-24740, Jul 30,
1979).
It may be delegated to LGU’s, 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
national legislature is still the principal of the LGUs,
the latter cannot go beyond the principal’s will or
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modify the same (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 expansive
and ever expanding scope of police power itself
(Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009).
2. “Taking” requires: 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).
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).
General Rule: The power to tax is purely legislative
and it cannot be delegated
Exceptions:
1. 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. )
2.
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.
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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POLITICAL & INTERNATIONAL LAW
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II. GENERAL PRINCIPLES OF TAXATION
TOPIC OUTLINE UNDER THE SYLLABUS
A. DEFINITION,
CHARACTERISTICS
PURPOSE OF TAXATION
1. Definition
2. Characteristics
3. Purpose
AND
B. DISTINGUISH: POWER OF TAXATION,
POLICE POWER, AND EMINENT DOMAIN
C. SCOPE AND LIMITATIONS OF TAXATIO
1. Inherent and constitutional limitations of
taxation
2. Territoriality principle and situs of taxation
D. REQUISITES OF A VALID TAX
E. TAX AS DISTINGUISHED FROM OTHER
FORMS OF EXACTIONS
F. KINDS OF TAXES
G. DOCTRINES IN TAXATION
1. Lifeblood theory
2. Construction and interpretation of tax laws,
rules, and regulations
3. Prospectivity of tax laws
4. Imprescriptibility of taxes
5. Double taxation
6. Exemption from taxation
7. Escape from taxation
8. Equitable recoupment
9. Prohibition on compensation and set-off
A. DEFINITION, CHARACTERISTICS AND
PURPOSE OF TAXATION
1. DEFINITION
Taxation is the power inherent in every sovereign
State to impose a charge or burden upon persons,
properties, or rights to raise revenues for the use and
support of the government to enable it to discharge
its appropriate functions.
Power by which an independent State, through its
lawmaking body, raises and accumulates revenue
from its inhabitants to pay the necessary expenses of
the government. (51 Am. Jur. 341)
Merely a way or mode of apportioning the cost of
government among those who in some measures are
privileged to enjoy its benefits and must bear its
burdens. (71 Am. Jur. 2d 342)
Described as a destructive power which interferes
with the personal and property rights of the people
and takes from them a portion of their property for the
support of the government. (Paseo Realty &
Development Corporation v. CA, G.R. No. 119286,
2004) In Sison v. Ancheta, (G.R. No. L-59431, 1984)
however, the SC acknowledged that the due process
clause may be invoked where a taxing statute is so
arbitrary that it finds no support in the Constitution,
such as when the tax imposition amounts to a
confiscation of property.
Three Elements of Taxation:
1. It is an enforced proportional contribution from
persons and properties;
2. It is imposed by the State by virtue of its
sovereignty;
3. It is levied for the support of the government.
(PCGG v. Cojuangco, G.R. No. 147062-64,
2001)
2. CHARACTERISTICS
Nature
1. The power of taxation is inherent in sovereignty
as an incident or attribute thereof, being essential
to the existence of independent government. It
exists apart from the Constitution and is not being
expressly conferred by the people.
2. It is legislative in character. It is generally not
delegated to the executive or administrative
departments.
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Exceptions where delegation is allowed:
 To Local Government Units (LGUs) with
respect to matters of local concern. (SecS.
5 & 20, Art. X, Constitution);
 When it is allowed by the Constitution (Sec.
28(2), Art. VI, Constitution); and
 When the delegation relates merely to an
administrative implementation that may call
for some degree of discretionary powers
under a set of sufficient standards
expressed by law (Pelaez v. Auditor
General, G.R. No. L-23825, 1965), or
implied from the policy and purpose of the
law (Maceda v. Macaraig, G.R. No. 88291,
1993).
3. It is subject to constitutional and inherent
limitations.
Characteristics
1. It must be used for public purpose. A tax shall be
considered to have been utilized for public
purpose if the welfare of the nation or the greater
portion of its population has benefited from it.
(Gomez v. Palomar, G.R. No. L-23645, 1968; Phil
Guaranty Co., Inc. v. CIR, G.R. No. L-22074,
1965).
2. It is the strongest of all the inherent powers of the
government. (Sison v. Ancheta, G.R. No. L59431, 1984) However, this does not mean that
it is superior to the other inherent powers of the
government.
3. It is territorial in operations. The power to tax can
only be exercised within the territorial jurisdiction
of a taxing authority (51 Am. Jur. 88), except
when it is subject to international comity or there
exists privity of relationship between the taxing
State and the object of tax. Hence, in Mitsubishi
Corporation v. CIR (G.R. No. 175772, 2017), it
was held that the income tax and branch profit
remittance tax paid by Mistubishi was
erroneously collected considering that the
obligation to pay the same had already been
assumed by the Philippine Government by virtue
of its Exchange of Notes with the Japanese
Government.
4. It is comprehensive as it covers persons, things
or property, privilege, occupation, profession or
business, and transactions or activities.
5. It is generally pecuniary in nature (i.e., payable in
money). However, a law may prescribe other
form or kind of payment such as back pay
certificate. (Tirona v. The City Treasurer of
Manila, G.R. No. L-24607, 1968)
6. It is plenary in nature. As a general rule, the
scope of the legislative power to tax is unlimited
and plenary. Acknowledging in its very nature no
limits, the principal check against its abuse is to
be found only in the responsibility of the
legislature. (Creba Inc. v. Romulo, G.R. No.
160756, March 9, 2010)
The legislature, therefore, basically determines:
 The
subjects
(persons,
property,
occupation, exercises, or privileges to be
taxed);
 Method of collection;
 Purpose for which the tax shall be levied;
 Apportionment of tax (whether for general
application or limited to a particular locality);
 Amount or rate;
 Kind of tax to be collected; and
 Situs of taxation.
The legislature also grants legislative tax exemptions
or condonations, and specifies or provides for the
administrative as well as the judicial remedies that
either the government or the taxpayer can avail.
(Petron v. Tiangco, G.R. No. 158881, 2008)
3. PURPOSE
1. Primary or Revenue-Raising Purpose:
Taxation is the power by which the sovereign
raises revenue to defray the necessary expenses
of government.
Taxes provide the funds or property with which to
promote the general welfare and protection of the
whole citizenry.
2. Secondary
or
Non-Revenue/Special
or
Regulatory or Sumptuary Purpose:
Taxation is also used for regulatory purposes. It
is used to attain non-revenue objectives and
pursue policy decisions.
Example:
 Regulation of activities - Taxation could be a
tool to implement the State’s police power,
such as imposing a tax on sale, lease or
disposition of videograms primarily to
answer the need to regulate the video
industry due in part to rampant film piracy,
violation of intellectual property rights and
proliferation of pornography. (Tio v.
Videogram Regulatory Board, G.R. No.
75967, 1987).

Promotion of general welfare - Taxation is
done not merely to raise revenues to support
the government, but also to provide means
for the rehabilitation and stabilization of a
threatened industry (like coco levy funds),
which is affected with public interest. (PCGG
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v. Cojuangco, G.R. No. 147062-64, 2001).
In Lutz v. Araneta, (G.R. No. L-7859, 1955)
tax was imposed for the protection and
promotion of sugar industry, and so the
Court held that its promotion, protection and
advancement, redounds greatly to the
general welfare, hence it is valid.
TAX
POLICE
POWER
EMINENT
DOMAIN
value of the
property
EFFECT
B. DISTINGUISH: POWER OF TAXATION,
POLICE POWER, AND EMINENT
DOMAIN
TAX
POLICE
POWER
EMINENT
DOMAIN
Power to make
and implement
laws for the
general Welfare
Power to take
private property
for public use
with just
Compensation
CONCEPT
Power to
enforce
contribution
to raise funds
for
Government
SCOPE
Plenary,
comprehensi
ve
Broader in
application;
General power
to make and
implement laws
Merely a power
to “take” private
property for
public use
EXERCISING AUTHORITY
National and National
Local
Government or
Governments political
subdivisions
May be granted
to public
service
companies or
public utilities
PURPOSE
Raise
revenues
Exercised to
The taking of
promote public property for
welfare through public use
regulation
Becomes
part of public
fund
PERSONS AFFECTED
Applies to all
persons,
property, and
excises that
may be
subject
thereto
Limited to the
cost of
regulation,
issuance of
license, or
surveillance
No limit
imposed, but
the amount
should be
based on the
fair market
Applies to all
persons,
property, and
excises that
may be subject
thereto
Only particular
property is
covered
SUPERIORITY OF CONTRACTS
Contracts
Contracts may
may be
be impaired
impaired
unless (a)
government
is party to
contract
granting
exemption; or
(b) involves
franchise
BENEFITS RECEIVED
Protection
and general
benefits from
the
government
AMOUNT OF IMPOSITION
No limit
Restraint on the Transfer of right
injurious use of to the property
property
No direct or
immediate
benefit but only
such as may
arise from the
maintenance of
a healthy
economic
standard of
society
Just
compensation
equivalent to
fair market
value of the
property
RELATIONSHIP TO CONSTITUTION
Subject to
certain
constitutional
limitations
Subjected to
certain
constitutional
limitations
Subject to
certain
constitutional
limitations
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C. SCOPE AND LIMITATIONS OF
TAXATION
1. INHERENT AND CONSTITUTIONAL
LIMITATIONS OF TAXATION
The power of taxation is the strongest of all the
powers of the government. Nevertheless, effective
limitations thereon may be imposed by the people
through the Constitution. Accordingly, no matter how
broad and encompassing the power of taxation, it is
still subject to inherent and constitutional limitations.
Inherent Limitations
a. Public Purpose
Test: Whether the proceeds will be used for
something which is the duty of the State to provide.
The public purpose of the tax law must exist at the
time of its enactment. The money raised by taxation
can be expended only for public purposes and not for
the advantage of private individuals. Therefore, since
the appropriation sought a private purpose, it is null
and void. (Pascual v. Secretary of Public Works,
G.R. No. L-10405, 1960)
The term "public use" has acquired a more
comprehensive coverage. To the literal import of the
term signifying strict use or employment by the public
has been added the broader notion of indirect public
benefit or advantage. (Sumulong v. Guerrero, G.R.
No. L-48685, 1987)
b. Inherently Legislative
Power of taxation cannot be delegated – this
contemplates the power to determine kind, object,
extent, amount, coverage, and situs of tax. It must be
distinguished from power to assess and collect which
is exercised by the Executive through the BIR.
However, it may be exceptionally delegated when:
1. The delegation shall not contravene any
constitutional provision or inherent limitations of
taxation;
2. It is effected either by the Constitution or by
validly enacted legislative measures or statute;
and
3. Except when expressly provided by the
Constitution, it should only be in favour of the
local legislative body of the local or municipal
government concerned.
POLITICAL & INTERNATIONAL LAW
1. Delegation to local governments
It is in line with the principle that the power to
create municipal corporations for purposes of
local self-government carries with it the power to
confer the power to tax on such local
governments.
2. Delegation to the President
Certain aspects of the taxing process that are not
legislative in character may be vested to him, e.g.
delegation of tariff powers by Congress to the
President under the flexible tariff clause (Sec.
28(2), Art. VI, Constitution), and delegation of
emergency powers (Sec. 23(2), Art. VI,
Constitution)
In the case of Abakada Guro v. Executive
Secretary Ermita, (G.R. No. 168056, 2005) the
Court held that the Congress does not abdicate
its functions or unduly delegate its power when it
describes what job must be done, who must do
it, and what is the scope of his authority. There is
no undue delegation of legislative power but only
of the discretion as to the execution of a law.
3. Delegation to administrative agencies
Administrative agencies are authorized to fix
within specified limits, tariff rates, import or export
quotas, tonnage and wharfage dues and other
duties or imposts.
c. Territorial (see discussions on
territoriality principle and situs of
taxation below)
d. International Comity
A state must recognize the generally accepted tenets
of international law, they must accord each other as
sovereign equals. This limits the authority of a
government to effectively impose taxes on a
sovereign state and its instrumentalities, as well as
on its property held, and activities undertaken, in that
capacity. (Vitug) For example, a property of a foreign
State or government may not be taxed by another
State.
A state that has contracted valid international
obligations is bound to make in its legislations those
modifications that ensure granting of reliefs under tax
treaties. (Deutsche Bank v. CIR, G.R. No. 188550,
2010)
General rule – The power to tax is exclusively vested
in the legislative body, hence, it cannot be delegated.
(Delegata potestas non potest delegari)
Exceptions:
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e. Exemption of Government
Entities, Agencies, and
Instrumentalities
Rationale: If the government taxes itself or if Local
Government Units tax the national government, it
would be akin to taking money from one pocket to the
other. Entities or agencies exercising sovereign
functions (acta jure imperii) are tax exempt, unless
expressly taxed. Agencies performing proprietary
functions are subject to tax, unless expressly
exempted.
Government owned and controlled corporation
performing proprietary functions are subject to taxes,
except those exempted under Section 27(C) of RA
8424 as amended by RA 9337 and RA 10963,
namely:
1. GSIS
2. SSS
3. HDMF
4. PHIC
5. the local water districts
The amendment reduced the list of exempt entities
by excluding therein the Philippine Amusement and
Gaming Corporation.
Instrumentality of the National Government is exempt
from real property tax. (MIAA v. CA G.R. No. 155650,
2006) However, an instrumentality of the National
Government can be subject to tax if there is a
statutory authority to do so and if there is no express
provision against such act.
Chief Justice Hilario Davide, Jr. in the case of MCIAA
v. Marcos (G.R. No. 120082, 1996) has stated that
“nothing can prevent Congress from decreeing that
even instrumentalities or agencies of the government
performing governmental functions may be subject to
tax.
Constitutional Limitations
Provisions directly affecting Taxation:
a. Prohibition against imprisonment
for non-payment of poll tax (Sec.
20, Art. III, Constitution)
However, the taxpayer can still be made to pay fines
and penalties for non-payment.
Poll tax: cedula/residence tax (but in the US, it
usually means the payment of tax to exercise the
right of suffrage.)
Taxpayer may be imprisoned for non-payment of
other kinds of taxes where the law so expressly
provides.
b. Uniformity and equality of
taxation (Sec. 28 (1), Art VI,
Constitution)
Uniformity: all articles or properties of the same
class taxed at the same rate. (Eastern Theatrical Co.
v. Alfonso, G.R. No. L-1104, 1949)
Equality: apportionment must be more or less just in
the light of taxpayer’s ability to shoulder tax burden.
The equal protection clause refers to like treatment in
like circumstances.
The uniformity and equality clause refers to the
proper relative treatment for tax purposes of persons
in like circumstances. Section 28 (1), Art. VI provides
that Congress shall evolve a progressive system of
taxation. Hence, the Constitution does not really
prohibit a regressive system of taxation. A
progressive system of taxation means that as
resources of the taxpayer become higher, the tax rate
likewise increases. It is based on the ability to pay.
c. Grant by Congress of authority to
the President to impose tariff
rates (flexible tariff clause) (Sec.
28 (2), Art. VI, Constitution)





Includes import and export quotas, tonnage
and wharfage dues aside from tariff rates
Delegated by the Congress
Through a law; the Tariff and Customs Code
has provided for what has been termed as
the “flexible tariff clause” authorizing the
President to modify import duties (Sec. 401,
TCC)
Subject to Congressional limits and
restrictions
Within
the
framework
of
national
development program
d. Prohibition against taxation of
religious,
charitable
and
educational entities/Exemption
from real property taxes (Sec. 28
[3], Art. VI, Constitution)
Exemption under Sec. 28(3), Art. VI pertains only to
real property tax (RPT).
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Summary
WHO
WHO
WHAT
Revenues
Non-stock
non-profit
educational
institutions
Assets
Revenues
Non-stock
non-profit
hospitals
Assets
HOW
Exempt as long
as it is used
actually, directly
and exclusively
(ADE)
for
educational
purposes,
regardless of its
source.
(Sec.
4[3], Art. XIV,
Constitution;
DLSU v. CIR,
2016)
Exempt
from
RPT as long as
they are used
ADE
for
educational
purposes. Id.
Exempt
from
income tax if
they
are
organized and
operated
exclusively for
charitable
purposes and no
part of its net
income or asset
inures to the
benefit of any
member,
organizer, etc.
(Sec.
30[E],
NIRC)
Income from real
or
personal
properties
or
from
activities
conducted
for
profit, regardless
of the disposition
made of such
income, shall be
subject
to
income
tax.
(Sec. 30, last
par., NIRC)
Exempt
from
RPT as long as
they are used
ADE
for
WHAT
Revenues
Other nonstock nonprofit
charitable
institutions
Assets
Propriety
non-profit
hospital
and
educational
institutions
Revenues
HOW
charitable
purposes. (Sec.
28[3], Art. VI,
Constitution)
Exempt provided
that is organized
and
operated
exclusively for
charitable
purposes and no
part of its net
income or asset
inures to the
benefit of any
member,
organizer, etc.
(Sec.
30[E],
NIRC).
Income from real
or
personal
properties
or
from
activities
conducted
for
profit, regardless
of the disposition
made of such
income, shall be
subject
to
income
tax.
(Sec. 30, last
par., NIRC)
Exempt as long
as the property
is it ADE used for
charitable
purposes. (Sec.
28[3], Art. VI,
Constitution)
Exempt
from
income tax if
they
are
organized and
operated
exclusively for
charitable
purposes and no
part of its net
income or asset
inures to the
benefit of any
member,
organizer, etc.
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WHO
WHAT
Assets
HOW
(Sec.
30[E],
NIRC).
If the non-profit
hospital/educati
on
institution
earns
income
from its for-profit
activities, it will
retain its tax
exemption for its
charitable
activities, but the
income from forprofit activities
will be subject to
the preferential
rate of 10%
under Section 27
(B),
NIRC,
Provided,
that
beginning July
1,2020
until
June 30,2023,
the rate of one
percent
(1%)
shall apply,
provided that its
gross
income
from unrelated
trade, business
or activity does
not exceed 50%
of its total gross
income.
Exempt as long
as the property
is ADE used for
educational or
charitable
purposes. (Sec.
28[3], Art. VI,
Constitution)
RPT exemption covers charitable institutions,
churches, and parsonages or convents appurtenant
thereto, mosques and non-profit cemeteries and all
lands, buildings and improvements actually, directly
and exclusively used for charitable, religious and
educational purposes.
Definition of Terms:
 Charitable institution – essentially provide
for free goods and services to the public (to
an indefinite number of persons) which
would otherwise falls on the shoulders of the

government. (CIR. v. St. Luke’s, G.R. No.
203514, 2017)
Exclusive - possessed and enjoyed to the
exclusion of others; debarred from
participation or enjoyment; and 'exclusively'
is defined, 'in a manner to exclude; as
enjoying a privilege exclusively.' . . The
words ‘dominant use’ or ‘principal use’
cannot be equated with ‘used exclusively’
(CIR v. St. Luke’s, G.R. No. 203514, 2017)
As for the income tax exemption of charitable
institutions under the NIRC, a charitable institution
does not lose its character as such and its exemption
from taxes simply because it derives income from
paying patients, whether outpatient, or confined in
the hospital, or receives subsidies from the
government, so long as the money received is
devoted or used altogether to the charitable object
which it is intended to achieve; and no money inures
to the private benefit of the persons managing or
operating the institution (CIR v. St. Luke’s, G.R. No.
203514, 2017)
e. Prohibition against taxation of
non-stock, non-profit
[educational] institutions (Sec.
4[3&4], Art. XIV, Constitution)
Test: How both the revenues and assets will be
used.
Exempts from taxes all revenues and assets of nonstock, non-profit educational institutions actually,
directly and exclusively used for educational
purposes.
Exemption covers income, real estate tax, donor’s
tax, and customs duties (distinguished from the
previous provision, (Sec. 28[3], Art. VI, Constitution),
which pertains only to real property tax exemption
granted to real properties that are used for religious,
charitable, or educational purposes.
Income is exempt provided it is used for maintenance
or improvement of institution (indispensable or
essential). The exemption is strictly personal (i.e.,
non-transferable).
Distinguish tax treatment of:
 Proprietary
educational
institutions
(Preferential tax rate of 10%, but beginning
July 1, 2020 until June 30, 2023, preferential
tax rate is 1%); and
 Government educational institutions (Taxexempt, e.g., UP)
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f.



POLITICAL & INTERNATIONAL LAW
Majority vote of Congress for
grant of tax exemption (Sec. 28
[4], Art. VI, Constitution)
k. No appropriation or use of public
money for religious purposes
(Sec. 29 [2], Art. VI, Constitution)
Includes amnesties, condonations and
refunds
Involves majority of all members voting
separately
Relative majority (majority of quorum) is
sufficient to withdraw exemption
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
g.
Prohibition on use of tax levied
for special purpose (Sec. 29 [3],
Art. VI, Constitution)
Revenues derived for a special fund shall be
administered for the purpose intended only.
Once the purpose is achieved, the balance, if any, is
to be transferred to the general funds of the
government.
h. President’s veto power on
appropriation, revenue, and tariff
bills (Sec. 27 [2], Art. VI,
Constitution)
The President shall have the power to veto any
particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or
items to which he does not object.
i.
Grant of power to the local
government units to create its
own sources of revenue (Sec. 5,
Art. X, Constitution)
l.
Tax bills should originate
exclusively in the House of
Representatives (Sec. 24, Art. VI,
Constitution)
All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
application, and private bills shall originate
exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
m. Judicial power to review legality
of tax (Sec. 5 (2b), Art. VIII,
Constitution)
The Supreme Court shall have the power to review,
revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in
all cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto.
Each local government unit shall have the power to
create its own sources of revenues and to levy taxes,
fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent
with the basic policy of local autonomy. Such taxes,
fees, and charges shall accrue exclusively to the
local governments.
j.
Flexible tariff clause (Sec. 28 [2],
Art. VI, Constitution)
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.
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Provisions indirectly affecting Taxation:
a. Due process (Sec. 1, Art. III,
Constitution)
SUBSTANTIVE
PROCEDURAL
Should not be harsh,
oppressive or
confiscatory
(reasonableness)
No arbitrariness in
assessment and collection
By authority of valid
law
Right to notice and hearing
Must be for a public
purpose
Imposed within
territorial jurisdiction
It can also be invoked by the government. (Province
of Abra v. Hernando, G.R. No. L-49336, 1981)
No state may tax anything not within its jurisdiction
without violating the due process clause; the taxing
power of a state does not extend beyond its territorial
limits, but within such it may tax persons, property,
income, or business. (Manila Gas v. Collector, G.R.
No. L-24780, 1936)
b. Equal protection (Sec. 1, Art. III,
Constitution)
All persons subject to legislation shall be treated
alike, under like circumstances and conditions both
in privileges conferred and liabilities imposed. (Sison,
Jr. v. Ancheta, G.R. No. L-59431, 1984)
No violation of equal protection when there is proper
classification made.
The classification to be valid must:
1. Rest on substantial distinctions;
2. Be germane to the purpose of the law;
3. Not be limited to existing conditions only; and
4. Apply equally to all members of the same class.
Examples:
There are substantial differences between the big
investors who are being lured to establish and
operate their
industries in the special economic zones and
those business operators outside the zones. One
of these is that the former bring in billion-peso
investments and thousands of new jobs. The
Supreme Court also stated that the equal
protection guarantee does not require territorial
uniformity of laws. The classification applies
equally to all the resident individuals and
businesses within the "secured area." The
residents, being in like circumstances or
contributing directly to the achievement of the end
purpose of the law, are not categorized further.
Instead, they are all similarly treated, both in
privileges granted and in obligations required. (Tiu
v. CA, G.R. No. 127410,1999)
A tax is uniform when it operates with the same
force and effect in every place where the subject
of it is found. Uniformity means that all property
belonging to the same class shall be taxed alike
The Legislature has the inherent power not only to
select the subjects of taxation but to grant
exemptions. Tax exemptions have never been
deemed violative of the equal protection clause.
(CIR v. Lingayen
Gulf Electric Power Co., Inc., G.R. No. L-23771,
1988)
c. Religious freedom (Sec. 5, Art III,
Constitution)
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries
with it the right to disseminate religious information.
(American Bible Society v. City of Manila, G.R. No. L9637, 1957) Activities that are simply and purely for
propagation of faith are exempt.
Tax is unconstitutional if it operates as a prior
restraint on exercise of religion or favors a certain
religion (non-establishment of religion).
Income of religious organizations from any activity
conducted for profit or from any of their property, real
or personal, regardless of disposition of such income,
is taxable.
d. Non-impairment of obligations of
contracts (Sec. 10, Art. III,
Constitution)
Applies only when government is party to the contract
granting exemption
Exception: In case of franchise tax. The Constitution
provides that franchise is subject to amendment,
alteration, or repeal by Congress.
Contractual tax exemptions, in the real sense of the
term and where the non-impairment clause of the
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Constitution can rightly be invoked, are those agreed
to by the taxing authority in contracts, such as those
contained in government bonds or debentures,
lawfully entered into by them under enabling laws in
which the government, acting in its private capacity,
sheds its cloak of authority and waives its
governmental immunity. These contractual tax
exemptions, however, are not to be confused with tax
exemptions granted under franchises. A franchise
partakes the nature of a grant which is beyond the
purview of the non-impairment clause of the
Constitution. (MERALCO v. Province of Laguna,
G.R. No. 131359, 1999)
within and sold within the Philippines, or
produced without and sold without the
Philippines, shall be treated as derived from
sources entirely within the Philippines and
entirely without the Philippines, respectively.
2. TERRITORIALITY PRINCIPLE AND
SITUS OF TAXATION
Exception: Gains from the sale of shares of stock
in a domestic corporation shall be treated as
derived entirely from sources within the
Philippines regardless where the said shares are
sold.
Situs is the place of taxation; power to tax is limited
to the territorial jurisdiction of the taxing state. It is
the place or authority that has the right to impose
and collect taxes. (CIR v. Marubeni Corp. GR No.
137377, December 18, 2001)
Exception: where privity of relationship exists, the
State can exercise its taxing powers over its citizen
outside its territory.
Situs of Income Tax
Factors that determine the situs of income tax
(Sec. 23, NIRC):
1. Nationality
2. Residency
3. Source of Income
From sources within the Philippines:
1. Interests on bonds, notes or other interestbearing obligations of residents of the Philippines
(residence of debtor rule).
2. Dividends from a domestic corporation. From a
foreign corporation, if at least 50% of the foreign
corporation’s gross income for a three-year base
period is derived from Philippine sources.
3. Compensation for services performed within the
Philippines.
4. Rentals and royalties from properties located in
the Philippines or any interest in such property
including rentals or royalties for the use of or for
the privilege of using within the Philippines,
patents, copyrights and other like properties.
5. Sale of real property located in the Philippines.
6. Sale of personal property –
By the producer or manufacturer: sale of
personal property produced by the taxpayer
within and sold without the Philippines, or
produced without and sold within the Philippines,
shall be treated as derived from sources within
and partly from sources without the Philippines.
Conversely, sale of personal property produced
By a taxpayer other than the producer of
manufacturer: gains, profit, and income derived
from the purchase within and its sale without the
Philippines, or from the purchase without and its
sale within shall be treated as derived entirely
from sources within the country in which the
personal property is sold.
From sources without the Philippines:
1. Interest other than those derived from sources
within the Philippines.
2. Dividends other than those derived from sources
within the Philippines.
3. Compensation for services performed without the
Philippines.
4. Rentals and royalties from property located
without the Philippines or from any interest in
such property including rentals or royalties for the
use of or for the privilege of using without the
Philippines, patents, copyrights and other like
properties.
Income partly within and partly without the
Philippines:
Items other than those specified above in (1) and (2)
shall be treated as derived partly from sources within
and partly from sources without the Philippines.
Situs of Property Taxes
REAL
PERSONAL PROPERTY
PROPERTY
TANGIBLE
INTANGIBLE
Location of
Location
of
the
Domicile of the
the Property
Property
Owner
Situs of Transfer Tax
TAX
SITUS
Estate Tax
Domicile of the decedent at
the time of his death
Donor’s Tax
Domicile of the donor at the
time of the transfer
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SUMMARY
Toll
OBJECT
SITUS RULE
Person
Residence,
Domicile,
Citizenship
Real Property
Location of the property
Tangible
Personal
Property
Physical location although
the owner resides in another
jurisdiction
Royalties
Where the use of or right to
use is exercised.
Income
Citizenship
Residence
Source of Income
Transfer of
property
Citizenship
Residence
Location of Property
Business or
Occupation
Where the
act/business/occupation is
performed/exercised
D. REQUISITES OF A VALID TAXATION
1. Must be for a public purpose;
2. Should be uniform and equitable;
3. Either the person or property taxed is within the
jurisdiction of the taxing authority;
4. Complies with the requirements of due process;
and
5. Does not infringe any constitutional or inherent
limitations.
E. TAX AS DISTINGUISHED FROM
OTHER FORMS OF EXACTIONS
Customs Duty/Tariff
TAX
Coverage
Object
CUSTOMS DUTY
More
Importation
or
comprehensive
export of goods
than
customs
duty
Persons,
property, etc.
Goods imported or
exported
TAX
TOLL
Kind of Demand
demand sovereignty
of Demand
ownership
Purpose
Support
government
of Collection for the
use of property
Amount
No
limit
– Fair return of the
depends on need cost of the property
of
the or improvement
government
of
License Fee
TAX
Source
of
authorit
y
LICENSE FEE
Exercise
of Emanate from the
Taxing power
police power of the
State
Purpose Raise revenue
Object
Persons,
property
privilege
Amount
No limit
Regulation
Right to exercise a
and privilege
Only necessary to
carry
out
regulation
Distinction lies in the primary purpose:
 The primary purpose of license fees is for
regulation and the excess of the amount
collected, from the cost to carry out the
regulation, should be minimal and incidental.
 Tax’s primary purpose, or at least one of the
real and substantial purposes, is to raise
revenue.
 If amount is too high for regulation and/or the
amount levied is not related to costs of
regulation, it would be a tax.
Purpose of distinction: limitations and exemptions
apply only to one and not to the other (ex. Exemption
from taxation does not include exemption from fees).
A non-stock not-for-profit educational institution,
which is exempt from taxes, is not exempt from
payment of Building Permit Fee and Local Clearance
Fee as the said charges are regulatory fees and not
taxes. (Angeles University v. City of Angeles, G.R.
No. 189999, June 27, 2012)
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Royalty fees are regulatory fees. Clark Special
Economic Zone (“CSEZ”) imposes payments on the
movement of petroleum fuel to and from the
economic zone. Specifically, CSEZ provides for the
payment of accreditation fees, annual inspection
fees, royalty fees and gate pass fees. Chevron is a
domestic company located within the economic zone.
CSEZ billed Chevron for royalty fees at 0.50/liter.
(Chevron Philippines v. BCDA, G.R. No. 173863,
September 15, 2010)
The imposition of capital contribution component of
P10 per bag was an exercise by the State of its
taxation power. While it is true that the power of
taxation can be used as an implement of police
power, the primary purpose of the levy is revenue
generation. If the purpose is primarily revenue, or if
revenue is, at least, one of the real and substantial
purposes, then the exaction is properly called a tax.
(Planters Products, Inc. v. Fertiphil Corp., G.R. No.
166006, 2008)
There is no logic or justification in exacting
employment permit fee from aliens. The imposition is
not regulatory but a revenue measure. It follows then
that the permit fee is essentially a tax for the purpose
of raising money under the guise of regulation.
(Villegas v. Hiu Tsai, L-29646, 1978)
Special Assessment
TAX
Imposed Persons,
on
properties, etc.
SPECIAL
ASSESSMENT
Only on land
Debt
TAX
Source
Law;
obligation
legal Based on contract
Nature
Personal
Assignable
Right to Generally
not May be the subject
set-off
subject
to of compensation/
compensation/
set-off
set-off
Effect
1. As to subject matter or object
a. Personal, Capitation, or Poll Tax
 Fixed amount
 Individuals residing within specified
territory
 Without regard to their property,
occupation or business
Example: Community Tax (Cedula)
b. Property Tax

Imposed on property, real or personal

In proportion to its value or other
reasonable method of apportionment
Example: Real estate tax
Why
For
public Public
imposed purpose
improvement that
regardless
benefits the land
who/what
will
benefit
When
Regular exaction Exceptional as to
imposed
time and locality
Basis
Necessity
Benefits obtained
Imprisonment is No imprisonment
sanction for non- for non-payment
payment
F. KINDS OF TAXES
c.
Purpose To support the Contribution
to
general purposes cost
of
public
of government
improvement
DEBT
Excise/Privilege tax
 Imposed upon the performance of an
act, the enjoyment of a privilege or the
engagement
in
an
occupation,
profession or business
 This is different from the excise tax of
Title VI of the NIRC
Example: Income tax, VAT, estate tax, donor’s tax
2. As to who bears the burden or incidence
a. Direct - imposed on the person who also
bears the burden thereof
Example: income tax, community tax,
estate tax
b.
Indirect - imposed on the taxpayer who shifts
the burden of the tax to another (Maceda v.
Macaraig, Jr., 1991)
Example: VAT, specific tax, percentage tax,
customs duties
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General Rule: The proper party to seek a refund is
the statutory taxpayer. (Silkair v. CIR, G.R. No.
173594, 2008)
b.
Regressive - tax rate decreases as the tax
base increases
c.
Proportionate or Flat - based on a fixed
percentage of the amount of the property,
income or other basis to be taxed
Example: Real estate tax, VAT, percentage
tax
d.
Mixed - the tax rates are partly progressive
and partly regressive.
Exception: if the law confers exemption from both
direct or indirect taxes, claimant is entitled to a refund
even if claimant is not the statutory taxpayer but only
bears the economic burden of the tax. (Philippine
Airlines v. CIR, G.R. No. 198759, 2013)
3. As to tax rates or determination of amount
a. Specific - tax imposed and based on a
physical unit of measurement, as by head,
number, weight, length or volume
Example: Tax on distilled spirits, fermented
liquors, cigars
b.
c.
Ad Valorem - tax of a fixed proportion of the
value of property with respect to which the
tax is assessed; requires intervention of
assessor.
Example: Real estate tax, excise tax on
cars, non-essential goods
Mixed
4. As to purposes
a. General, fiscal or revenue- imposed for the
general purpose of supporting the
government
Example: Income tax, percentage tax
b.
Special or regulatory - imposed for a special
purpose, to achieve some social or
economic objectives
Example: Protective tariffs or customs duties
5. As to scope or authority to impose
a. National - imposed by the national
government
Example: National internal revenue taxes,
custom duties
b.
Municipal or local - imposed by the municipal
corporations or local governments
Example: Real estate tax, occupation tax
6. As to graduation of rate (three systems of
taxation)
a. Progressive or graduated - tax rate
increases as the tax base or bracket
increases
Example: Income tax, estate tax, donor’s tax
G. DOCTRINES IN TAXATION
1. LIFEBLOOD THEORY
Taxes are the lifeblood of the Government. Without
revenue raised from taxation, the government will not
survive, resulting in detriment to society. Without
taxes, the government would be paralyzed for lack of
motive power to activate and operate it.
(Commissioner v. Algue, G.R. No. L-28896, 1988)
2. CONSTRUCTION AND
INTERPRETATION OF TAX LAWS,
RULES AND REGULATIONS
Tax Laws
General rule: Tax laws are construed liberally in
favor of the government and strictly against the taxing
authority. In case of doubt, tax statutes are construed
strictly against the government and liberally in favor
of the taxpayer. (CIR v. CA, G.R. No. 107135, 1999)
Taxes, being burdens, are not to be presumed
beyond what the statute expressly and clearly
declare.
Tax statutes offering rewards are liberally construed
in favor of informers.
Exception: Where the language of the tax statute is
plain and there is no doubt as to the legislative intent.
In such case, the words employed are to be given
their ordinary meaning.
Tax Exemptions and Exclusions
General rule: Exemptions are not favored and are
construed strictissimi juris against the taxpayer.
An exemption from the common burden cannot be
permitted to exist upon vague implication or
inference.
Taxation is the rule while exemption is the exception.
Therefore, whoever claims exemption must be able
to justify his claim or right thereto, by a grant
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expressed in terms “too plain to be mistaken and too
categorical to be misinterpreted.”
If not expressly mentioned by law, it must at least be
within its purview by clear legislative intent.
Claims for refund partake of the nature of tax
exemptions and will not be allowed unless granted in
the most explicit and categorical language.
Exceptions:
1. When the law itself expressly provides
for a liberal construction, that is, in case
of doubt, it shall be resolved in favor of
exemption.
2. When the exemption is in favor of the
government itself or its agencies
because the general rule is that they are
exempt from tax
3. When the exemption refers to religious,
charitable and educational institutions
4. When there is an express mention or
when the taxpayer falls within the
purview of the exemption by clear
legislative intent, the rule on strict
construction does not apply.
Tax Rules and Regulations
The construction placed by the office charged with
implementing and enforcing the provisions of the
NIRC should be given controlling weight unless such
interpretation is clearly erroneous.
Taxpayers cannot be deprived of their entitlement to
the benefit of a treaty for failure to strictly comply with
an administrative issuance requiring the prior
application for tax treaty relief. At most, the
application for a tax treaty relief from the BIR should
merely operate to confirm the entitlement of the
taxpayer to the relief. The denial of a tax relief based
on a tax treaty due to the failure of a taxpayer to
comply with a RMO would impair the value of the tax
treaty and the State’s duty to comply in good faith
with the tax treaty. (Deutsche Bank AG Manila v. CIR,
G.R. No. 188550, 2013)
Non-retroactivity of Rulings (Sec. 246) - Any
revocation, modification or reversal of any of the rules
and regulations promulgated in accordance with the
preceding Sections or any of the rulings or circulars
promulgated by the Commissioner shall not be given
retroactive application if the revocation, modification
or reversal will be prejudicial to the taxpayers, except
in the following cases:
1. Where the taxpayer deliberately misstates
or omits material facts from his return or any
document required of him by the Bureau of
Internal Revenue;
2.
3.
Where the facts subsequently gathered by
the Bureau of Internal Revenue are
materially different from the facts on which
the ruling is based; or
Where the taxpayer acted in bad faith.
Penal Provisions of Tax Laws
Strict construction so as not to extend the plain terms
thereof that might create offenses by mere
implication not so intended by the legislative body.
(People v. Martin, G.R. No. L-38019, 1980)
3. Prospectivity Of Tax Laws
This principle provides that a tax law must only be
applicable and operative prospectively.
Taxes may be imposed retroactively by law, but
unless so expressed by such law, these taxes must
only be imposed prospectively. (Hydro Resources v.
CA, G.R. No. 80276, 1990)
Ex post facto is not applicable for tax purposes.
However, when it comes to civil penalties like fines
and forfeiture (except interest), tax laws may provide
and allow its application retroactively, unless it
produces harsh and oppressive consequences which
violate the taxpayer’s constitutional rights regarding
equity and due process. (Fernandez v. Fernandez,
G.R. No. L-9141, 1956; CIR v. Filipinas Compañas
de Seguros, G.R. No. 14880, 1960)
4. Imprescriptibility Of Taxes
Although the NIRC provides for the limitation in the
assessment and collection of taxes imposed, such
will only be applicable to those taxes where a tax
return is required. The prescriptive period shall start
from the time the taxpayer files the tax return and
declares his liability. (Bisaya Land Transportation Co.
v. Collector of Internal Revenue, G.R. Nos. L-12100
& L-11812, 1959).
Unless otherwise provided by the tax law itself, taxes
in general are imprescriptible. (CIR v. Ayala
Securities Corporation, G.R. No. L-29485, 1976)
The law on prescription being a remedial measure
should be interpreted liberally in favor of the taxpayer
in order to protect the taxpayer. (Republic v. Ablaza,
G.R. No. L-14519, 1960)
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5. Double taxation
a. Direct Double Taxation (Strict sense)
The same property is taxed twice when it should be
taxed only once.
Both taxes must be imposed:
 On the same property or subject matter;
 For the same purpose;
 By the same taxing authority;
 Within the same jurisdiction or taxing district
and during the same period; and
 They must be of the same kind or character
of tax. (Villanueva v. City of Iloilo, G.R. No.
L-26521, 1968)
b. Indirect Double taxation (Broad sense)
It means indirect duplicate taxation. It extends to all
cases in which there are two or more pecuniary
impositions. The Constitution does not prohibit the
imposition of double taxation in the broad sense.
Constitutionality of Double Taxation
The SC held that there is no constitutional prohibition
against double taxation in the Philippines. (Villanueva
v. City of Iloilo, G.R. No. L-26521, 1968) Therefore, it
may not be a valid defense against the validity of a
tax measure. (Pepsi-Cola v. Tanauan, G.R. No. L31156, 1976) What is prohibited is direct double
taxation.
There is no double taxation in the following cases:
 By
taxing
corporate
income
and
stockholders’ dividends from the same
corporation;
 Tax imposed by the State and the local
government upon the same occupation,
calling or activity;
 Real estate tax and income tax collected on
the same real estate property leased for
earning purposes (Villanueva v. City of Iloilo,
G.R. No. L-26521, 1968); and
 Taxes are imposed on taxpayer’s final
product and the storage of raw materials
used in the production of the final product
(Procter and Gamble Philippines v.
Municipality of Jagna, G.R. No. L-24265,
1979).
Example:
Spouses are American citizens residing in the
Philippines, hence, they pay income taxes in the
Philippines and federal income taxes in the US. The
Court held that double taxation becomes obnoxious
only where the taxpayer is taxed twice for the benefit
of the same governmental entity. In this case, while
the taxpayers would have to pay two taxes on the
same income, the Philippine government only
POLITICAL & INTERNATIONAL LAW
receives the proceeds of one tax. (Commissioner v.
Lednickey, G.R. No. L-18169, 1964)
c. Tax treaties as relief from double taxation
Modes of eliminating Double Taxation
 Provide for exemptions or allowance of
deduction or tax credit for foreign taxes;
 Enter into treaties with other states (e.g.,
former Phil-Am Military Bases Agreements
as to income tax); or
 Apply the principle of reciprocity.
In the case of CIR v S.C. Johnson & Sons, Inc., (G.R.
No. 127105, 1999), International Juridical Double
Taxation is defined as an imposition of comparable
taxes in two or more States on the same taxpayer in
respect of the same subject matter and for identical
periods. In order to eliminate double taxation, a tax
treaty is entered into by the two contracting States.
The apparent rationale for doing away with double
taxation is to encourage the free flow of goods and
services and the movement of capital, technology
and persons between countries, conditions deemed
vital in creating robust and dynamic economies.
6. Exemption from taxation
Tax Exemption
The grant of immunity to particular persons or
corporations or to persons or corporations of a
particular class from a tax which persons and
corporations generally within the same state or taxing
district are obliged to pay.
It is an immunity
or privilege; it is freedom from a financial charge or
burden to which others are subjected. (Greenfield v.
Meer, G.R. No. 156, 1946)
Nature of Tax Exemption
Exemption from taxes is personal in nature and
covers only taxes for which the taxpayer-grantee is
directly liable. In any case, it cannot be transferred or
assigned by the person to whom it is given without
the consent of the State.
Tax exemptions are strictly construed against the
taxpayer because such provisions are highly
disfavored and may almost be said to be odious to
the law. (Manila Electric Company v. Vera, G.R. No.
L-29987, 1975)
Exemptions are not presumed, but when public
property is involved, exemption is the rule, and
taxation, the exception.
General Rule: Exemptions are not presumed.
Exception: When public property is involved (i.e.,
exemption is the rule, and taxation, the exception)
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There can be no simultaneous exemptions under two
laws, one partial and the other total.
Kinds of Tax Exemption
1. Express (or affirmative) – when certain
persons, property or transactions are, by
express provision, exempted from all or
certain taxes, either entirely or in part.
Purpose is some public benefit or interest, which the
law-making body considers sufficient to offset the
monetary loss entailed in the grant of exemptions.
Created in a treaty on grounds of reciprocity or to
lessen the rigors of the international double or
multiple taxation.
Equity is not a ground for tax exemption.
Examples of Statutory Tax Exemptions:
 Intercorporate dividends by a domestic
corporation from another domestic
corporation1
 Section 105 of the Tariff and Customs
Code
 Section 234 of the Local Government
Code
 Other special laws such as Omnibus
Investment Code of 1987 and Philippine
Overseas Shipping Act
2.
3.
Implied (or by omission) – when a tax is
levied on certain classes of person,
properties
or
transactions
without
mentioning the other classes. Every tax
statute makes exemptions since all those
not mentioned are deemed exempted. The
omission may either be accidental or
intentional.
Contractual – those lawfully entered into by
the government in contracts under existing
laws. These exemptions must not be
confused with the tax exemptions granted
under franchises, which are not contracts
within the context of non-impairment clause
of the Constitution. (Cagayan Electic Co. v.
CIR, G.R. No. L-60126, 1985)
The mere undertaking of NPC under the Agreement,
that it shall be responsible for the payment of all real
estate taxes and assessments, does not justify the
exemption of FELS – a private company. The
privilege granted to NPC cannot be extended to
FELS. (Fels Enegry, Inc. v. Province of Batangas,
G.R. Nos. 168557 & 170628, 2007)
Revocation of tax exemption
Tax exemption is generally revocable. The
congressional power to grant an exemption
necessarily carries with it the consequent power to
revoke the same.
In order to be irrevocable, the tax exemption must be
founded on a contract or granted by the Constitution.
By way of exception, a contractual tax exemption
obtained from the State for a valid and material
consideration of a mutual nature cannot be revoked
without impairing the obligation of contracts under the
Constitution. (Mactan Cebu Int’l Airport Authority v.
Marcos, G.R. No. 120082, 1996; MERALCO v.
Province of Laguna, G.R. No. 131359, 1999)
7. Escape from taxation
a. Shifting of tax burden
The imposition of tax is transferred from the statutory
taxpayer to another without violating the law.
Ways of shifting the tax burden (FBO):
1. Forward shifting: The transfer of burden
from the producer to distributor until it finally
reaches the ultimate purchaser or consumer
2.
Backward shifting: The reverse of forward
shifting, e.g. the manufacturer has agreed to
buy the supplier’s product only if the price is
reduced by the amount of tax
3.
Onward shifting: The tax burden is shifted
twice or more either forward or backward
Rationale/grounds for exemption
A presumption that the public interest will be
subserved by the exemption allowed. Grant of
exemption rests upon that such will benefit the body
of the people and not upon any idea of lessening the
burden of the individual owners of property.
1SEC.
27 (D) (4) Intercorporate Dividends. - Dividends received by a
domestic corporation from another domestic corporation shall not
be subject to tax.
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Taxes that can be shifted
1. VAT
2. Percentage tax
3. Excise tax on excisable articles
4. Ad valorem taxes that oil companies pay to
BIR upon removal of petroleum products
from its refinery
Meaning of impact and incidence of taxation
 Impact of Taxation – point on which the tax
is originally imposed or the one on whom the
tax is formally assessed.

Incidence of Taxation – point on which the
tax burden finally rests or settles down.
Example: VAT is originally assessed against the
seller who is required to pay the said tax, but the
burden is actually shifted or passed on to the buyer.
It is important to know where the impact of taxation
lies (i.e. who the statutory taxpayer is) because it will
generally determine:
1. The proper party to claim a refund of
erroneously imposed indirect taxes; and
2. Whether the indirect taxes can be passed on
to an exempt buyer.
b. Distinguish: tax avoidance and tax
evasion
Tax avoidance – also called tax minimization, is a
tax saving device that is legally permissible
The Court held that tax avoidance is the use of a tax
saving device within the means sanctioned by law.
Any tax avoidance scheme should be used by the
taxpayer in good faith and at arm’s length (CIR v
Estate of Benigno Toda Jr., G.R. 147188, 2004)
When a merger or reincorporation is undertaken for
a bona fide purpose and not solely for the purpose of
escaping the burden of taxation, it is not evasion.
The questioned merger involved a pooling of
resources aimed at the continuation and expansion
of business and so came under the intendment of the
NIRC exempting from the capital gains tax
exchanges of property effected under lawful
corporate combinations. (Commissioner v. Rufino,
G.R. No. L-33665-68, 1987)
Tax evasion – connotes fraud through the use of
pretenses and forbidden devices to lessen or defeat
taxes; must be willful and intentional
POLITICAL & INTERNATIONAL LAW
It connotes the integration of three factors:
1. End to be achieved, i.e., the payment of less
than that known by the taxpayer to be legally
due, or the non-payment of tax when it is shown
that a tax is due;
2. Accompanying state of mind which is
described as being "evil," in "bad faith," "willful,"
or "deliberate and not accidental"; and
3. Course of action or failure of action, which
is unlawful. (Toda, Jr. v. CA, G.R. No. 78583,
1990).
TAX EVASION
Other
Name
Means
Tax Dodging
Penalty
Punishable by
law
To
escape
payment
of
taxes
Object
Use
means
Illegal
TAX
AVOIDANCE
Tax
Minimization
Use
legal
means
Not punishable
by law
To minimize
payment
of
taxes
Willful Blindness Doctrine
An individual or corporation can no longer say that
the errors on their tax returns are not their
responsibility or that it is the fault of the accountant
they hired.
An act is willful if it is “voluntary, conscious and
intentional.” Bad motive or intent to defraud need not
be shown. The only thing that needs to be shown is
that the taxpayer is aware of his/her obligation to file
annual income tax returns but “she nevertheless,
voluntarily, knowingly and intentionally failed to file
the required returns.” (People v. Kintanar, CTA E.B.
No. 006, 2010, affirmed by the SC in 2012)
However, in the case of People v. Judy Ann Santos
(CTA Case No. 012, 2013), affirmed by the SC in
2013, the CTA Division acquitted Santos although
the BIR asserted the same arguments it made in the
Kintanar case. Santos was charged with failure to
supply correct and accurate information in her ITR.
She claimed that by virtue of trust, respect and
confidence, she entrusted her finances to her
manager since she was a child. Here, the CTA
Division found that the element of willfulness and
motive to commit fraud were wanting and that Santos
was merely negligent. Unlike Santos, who did not
know any better, Kintanar was an experienced
businesswoman who ought to have known and
understood all the matters concerning her business,
including knowledge and awareness of her tax
obligations concerning her business and should have
ensured the correct filing of her returns.
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People v. Kintanar
People v. Santos
Tax evasion connotes the integration of the
three factors.
All elements are Lacks the element of
present
willfulness
“Willful" in tax crimes The element of willful
means
voluntary, failure to supply correct
intentional violation of and
accurate
a known legal duty, information must be
and bad faith or bad fully established as a
purpose need not be positive act or state of
shown
mind. It cannot be
presumed
nor
attributed to mere
inadvertent
or
negligent acts.
Involves non-filing of Involves failure to
Income Tax Return.
supply correct and
accurate information.
The elements of a Mere understatement
violation of Section of a tax is not itself
255 of the NIRC for proof of fraud for the
failure to make or file purpose of tax evasion.
a return are:
The elements of a
1. The accused is a violation of Section 255
person required to of for failure to supply
make or file a return; correct and accurate
2. The accused failed information are:
to make or file the
return at the time 1. That a person is
required by law;
required to supply
3. The failure to make correct and accurate
or file the return was information;
willful.
2. That there is failure
to supply correct and
accurate information at
the time or times
required by law or rules
and regulations; and
3. That such failure to
supply correct and
accurate information is
done willfully.
8. Equitable recoupment
When a taxpayer is entitled to a claim for refund but
he was not able to file a written claim within the
prescribed time, the taxpayer is allowed to credit the
amount for refund against his existing liability. This is
not allowed in the Philippines and is applied in
common law countries.
POLITICAL & INTERNATIONAL LAW
9. Prohibition on compensation and
set-off
Taxes are not subject to set-off or legal
compensation because the government and the
taxpayer are not mutual creditor and debtor of each
other. (Republic v. Mambulao Lumber Co., G.R. No.
L-17725, 1962; Caltex Phils. v. COA, G.R. No.
92585, 1992)
Taxes are not subject to set-off or compensation for
the following reasons:
1. Taxes are of distinct kind, essence and nature,
and these impositions cannot be classed in
merely the same category as ordinary
obligations;
2. The applicable laws and principles governing
each are peculiar, not necessarily common, to
each other; and
3. Public policy is better subserved if the integrity
and independence of taxes are maintained.
(Republic v. Mambulao Lumber Co., G.R. No. L17725, 1962)
A person cannot refuse to pay tax on the basis that
the government owes him an amount equal to or
greater than the tax being collected. The collection
of a tax cannot await the results of a lawsuit against
the government. (Philex Mining Corp. v. CIR, G.R.
No. 125704, 1998; Francia v. Intermediate Appellate
Court, G.R. No. L-67649, 1988)
In several cases, as an exception to offsetting, the
Court have allowed the determination of the
taxpayer’s liability in a refund case, thereby allowing
the offsetting taxes. In these cases, offsetting was
allowed because the determination of the taxpayer’s
liability is intertwined with the resolution for the claim
of refund.
In the case of TPC, where in it filed a claim for refund
or credit under Sec. 112 of the NIRC while the issue
to be resolved is whether TPC is entitled of its
unutilized input VAT, the offsetting was not allowed.
The Court held that, since it is not a claim for refund
under Section 229 of the NIRC, the correctness of
TPC's VAT returns is not an issue. Hence, the
determination of the taxpayer’s liability was not
related with the resolution of the claim for refund or
credit offsetting was also not an issue. (CIR v. Toledo
Power Company, G.R. No. 196415, 2015)
————- end of topic ————
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III. LEGISLATIVE DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
A. LEGISLATIVE POWER
1. Scope and limitations
2. Principle of non-delegability;
exceptions
A. LEGISLATIVE POWER
1.
SCOPE AND LIMITATIONS
Nature of Legislative Power
Legislative power is the authority to make, alter and
repeal laws. (PHIL. CONST., art. VI, § 1.)
C. LEGISLATIVE PRIVILEGES;
INHIBITIONS; AND 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. HOUSES OF CONGRESS;
COMPOSITIONS AND QUALIFICATIONS
1. Senate
2. House of Representatives
a. District representatives and
questions of apportionment
b. Party-list system
F. PROCESS OF LAW-MAKING
G. APPROPRIATION AND RE-ALIGNMENT
H. LEGISLATIVE INQUIRIES AND
OVERSIGHT FUNCTIONS
I.
POWER OF IMPEACHMENT
J.
ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
1. Powers and Jurisdiction
K. 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 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
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3.
4.
5.
6.
Must not be Partial or discriminatory
Must not Prohibit, but may regulate trade
Must not be Unreasonable
Must be General and Consistent with public
policy (Magtajas v. Pryce Properties, G.R.
No. 111097, July 20, 1994).
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).
3. People’s Initiative on Statutes
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
power of the President: “Whenever in the judgment
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 decrees,
orders or letters of instruction, which shall form part
of the law of the land.”
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).
NOTE:
1. The 1973 Constitution provided for two
concurrent legislative agencies:
a. Batasang Pambansa
b. President
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
Constitution provides that “The incumbent President
shall continue to exercise legislative powers until the
first Congress is convened.”
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.
Limitations on Legislative Power
A. Substantive - limitations on the content of
laws
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
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b.
3.
4.
5.
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.
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
On the Supreme Court’s jurisdiction. No law
shall be passed increasing the appellate
jurisdiction of the Supreme Court as
provided in the Constitution without its
advice and concurrence
On nobility. No law granting title of royalty
or nobility shall be passed
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.
3.
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.
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.
PRINCIPLE OF NON-DELEGABILITY;
EXCEPTIONS
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 II(F)
[Delegation of Powers] of this Reviewer.
B. HOUSES OF CONGRESS;
COMPOSITIONS AND
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.)
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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
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
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).
Qualifications for Senate and House of
Representatives:
SENATOR
REPRESENTATIVE
Natural-born citizen of the Philippines
Able to read and write
At least 35 years old
At least 25 years old
on the DAY OF THE
on the DAY OF THE
ELECTION
ELECTION
At least 35 years old
At least 25 years old
on the DAY OF THE
on the DAY OF THE
ELECTION
ELECTION
Registered voter
Registered voter in the
district in which he
shall be elected
(except party-list
representatives)
Resident of the
Resident of the said
Philippines for at least
district for at least 1
2 years immediately
year immediately
preceding the election
preceding election
(except party-list
representative)
POLITICAL & INTERNATIONAL LAW
Term of 6 years
commencing at noon
on June 30,
next following their
election
Term limit: no more
than 2 consecutive
terms
a.
Term of 3 years
commencing at noon
on June 30, next
following their election
Term limit: no more
than 3 consecutive
terms
District
representatives
questions of apportionment
and
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
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
Residence Requirement
1. 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)
2. Domicile denotes a fixed permanent
residence to which when absent for
business or pleasure, one intends to return.
a. The absence of a person from said
permanent residence, no matter
how long, notwithstanding, it
continues to be the domicile of that
person.
b. In other words, domicile is
characterized
by
animus
revertendi. (Id.)
3. 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)
4. Domicile of origin is not easily lost. To
successfully effect a change of domicile, the
following must be proven: (AID)
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a.
5.
6.
7.
an Actual removal or an actual
change of domicile
b. a bona fide Intention of abandoning
the former place of residence and
establishing a new one
c. 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
The determination of
the number of
representatives which
a State, county or
other subdivision may
send to a legislative
body
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
REAPPORTIONMENT
The realignment or
change in legislative
districts brought about
by changes in
population and
mandated by the
constitutional
requirement of equality
of representation
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 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.
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Jurisprudence
1. 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 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).
2. 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.)
3. Necessity of confirmation by plebiscite:
a. 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).
b. 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).
4. 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)
POLITICAL & INTERNATIONAL LAW
Gerrymandering
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
territory, is meant to prevent ‘gerrymandering.’ (Id.)
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 access
to one’s district representative in Congress. 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
considered “instrumentalities of the State in carrying
out the functions of government”. They 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 party-list 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
nominees by the respective sectors the seats
reserved for sectoral representation.
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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.
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
POLITICAL & INTERNATIONAL LAW
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
1. 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.
2. 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.
3. 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 partylist seats.
4. 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 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:
a. (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
(“guaranteed seats” or the number of seats
allocated to the 2% qualifiers).
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a.
4.
5.
6.
7.
Number of votes received by the
party-list ÷ the total number of votes
cast for the party-list system
(divisor)
b. 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)
Determine the “additional seats” through the
following formula:
a. Maximum number of seats (result of
#1) - guaranteed seats
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
Distribute the additional seats (rounded
down) in accordance to the ranking.
Take note of the three seat cap. (BANAT v.
COMELEC, G.R. No. 179271, 2009)
POLITICAL & INTERNATIONAL LAW
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
1. Principle of Social Justice: The inspiration
of the system is social justice understood in
both the economic and political sense.
2. 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 nonsectoral parties in the party-list system and
exclusively limit it to sectoral groups.
3. Groups
must
comply
with
the
Constitution and other applicable laws:
The enumeration of marginalized and underrepresented 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).
4. Three different groups may participate in
the party-list system:
5. national parties or organizations,
6. regional parties or organizations, and
7. sectoral parties or organizations.
8. 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.
9. Rule on Sectoral Parties: Sectoral parties
or organizations may either be 'marginalized
and underrepresented' or lacking in 'welldefined political constituencies'. It is enough
that their principal advocacy pertains to the
special interest and concerns of their sector.
a. 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
b. Sectors that lack 'well defined
political constituencies’: (PWEY)
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ix.
Professionals
x.
Women
xi.
Elderly
xii.
Youth
10. 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. 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.
b. 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
1. A majority of the members of both types of
sectoral parties or organizations must
belong to the sector they represent, i.e.
majority must:
a. Be marginalized and underrepresented
or
b. Lack well-defined political constituencies
Rules on Nominees of Party-Lists
1. 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:
a. Belong to their respective sectors or
i. To
“belong”
in
the
marginalized
and
underrepresented sector
does not mean one must
"wallow
in
poverty,
destitution or infirmity."
ii. It is sufficient that one, or
his or her sector, is below
the middle class
b. Have a track record of advocacy for
their respective sectors
2. The nominees of national and regional
parties or organizations must be bona-fide
members of such parties or organizations.
3. 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
POLITICAL & INTERNATIONAL LAW
nominee who remains qualified (Atong
Paglaum v. COMELEC, G.R. No. 203766,
April 2, 2013).
a. 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 word “or” is a disjunctive term signifying
disassociation and independence of one thing from
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
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cause of the sector they represent (Abang-Lingkod v.
COMELEC, G.R. No. 206952, Oct. 22, 2013).
Term vs. Tenure
TERM
The period during
which the
elected
officer
is
legally
authorized to assume
his office and exercise
the powers thereof
Cannot be reduced
TENURE
The period during
which such officer
actually
holds the
position
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.).
a. Mere filing of a certificate of
candidacy during one’s term is
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
3.
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
The Senator or representative elected shall
serve only for the unexpired term.
COMELEC’s Role in a Special Election (R.A. No.
6645, as amended by R.A. No. 7166)
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 election’s
validity.
1. 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.
2. 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.
3. 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.
4. Thus, the failure of the COMELEC to
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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
PARTY-LIST
REPRESENTATIVE
REPRESENTATIVE
AS TO ELECTION OR SELECTION
Elected according to Elected nationally, with
legislative district by party-list organizations
the constituents of garnering at least 2%
such district.
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 No special residency
his legislative district requirement
in
a
for at least 1 year legislative district.
immediately before the
election.
AS TO MANNER OF CANDIDATE’S
ELECTION
Elected personally (i.e. Voted upon by party or
by name of candidate). 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 party
he/she changed party or affiliation, loses his
or affiliation.
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 A substitution will be
be held provided that made within the party,
the vacancy takes based on the list
place at least 1 year submitted
to
the
before
the
next COMELEC.
election.
POLITICAL & INTERNATIONAL LAW
AS TO EFFECT OF LOSING IN THE
PREVIOUS ELECTION
A
district A
party-list
representative is not representative cannot
prevented from running sit if he ran and lost in
again as a district the previous election.
representative
if
he/she lost during the
previous election.
AS TO EFFECT OF CHANGE OF
AFFILIATION PRIOR TO ELECTION
A change in affiliation A change in affiliation
within months prior to within 6 months prior to
election
does
not election prohibits the
prevent
a
district party-list
representative
from representative
from
running under his new sitting
as
party.
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.
1. 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.
“Speech or debate” includes:
1. Utterances made by Congressmen in the
performance of their official functions, such
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2.
3.
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. L15905, Aug. 3, 1966).
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
act, but is "political in nature,” outside the ambit 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 ‘speech or debate’ must 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 with Congress’
jurisdiction)
POLITICAL & INTERNATIONAL LAW
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 During his term. If he
office or employment in does so, he forfeits his
the Government or any seat in Congress.
subdivision, agency or
instrumentality thereof,
including GOCCS or
their subsidiaries.
During the term for
Cannot be appointed
to any office which was which he was elected.
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
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
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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
corporation and appear in “intervention” before the
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 “salaries”
and not “emoluments”, members of the 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.
D. QUORUM AND VOTING MAJORITIES
Sessions (PHIL. CONST., art. VI, § 15.)
1.
2.
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
1. 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.
2.
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
1. Voluntary Recess - takes place before the
adjournment of Congress like Christmas
recess
2. Compulsory Recess - takes place when
the Congress adjourns
Quorum to do business - Majority of each House
shall constitute a quorum.
1. A smaller number may adjourn from day to
day and may compel the attendance of
absent members.
2. In computing a quorum, members who are
outside the country and thus outside of each
House’s coercive jurisdiction are not
included.
3. 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).
4. 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).
5. 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)
Voting Majorities of Congress
SENATE
NATURE OF
REQUIRED
PROCEEDING
VOTES
For
the 2/3 of All
effectivity
of
treaty
or
international
agreement
Conviction in 2/3 of All
impeachment
BASIS
Sec. 21, Art.
VII
Sec. 3(6), Art.
XI
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HOUSE OF REPRESENTATIVES
NATURE OF
REQUIRED
BASIS
PROCEEDING
VOTES
Affirm
or 1/3 of All
Sec. 3(3), Art.
Override
XI
Resolution to
Impeach
COMMON TO BOTH
NATURE OF
REQUIRED
BASIS
PROCEEDING
VOTES
Discipline
2/3 of All
Sec. 16(3)
Members
Election
of Majority of All Sec. 16(1)
Officers
Declare
the 2/3 of Both Sec. 23
Existence of a Houses,
State of War
voting
separately
Override
2/3 of All in Sec. 27(1)
President's
the House of
Veto
Origin
Quorum to do Majority w/in Sec. 16(2);
business
Compulsive
Avelino
v.
Power of the Cuenco
House
Yeas and Nays 1/5
of Sec. 16(4)
in the Journal
Members
present
of
each house
Tax Exemption
Majority of All Sec. 28(4)
Confirmation of Majority
of Art. VII, Sec.
new
VP Both Houses, 9
nominated by voting
President
separately
Determination
2/3 of Both Art. VII, Sec.
that
Pres. Houses,
11
unable
to voting
discharge
separately
powers & duties
To break a tie in Majority of All, Art. VII, Sec.
presidential
voting
4
election
separately
Revocation of Majority of All, Art. VII, Sec.
Proc. of Martial voting jointly
18
Law/
Suspension of
Priv. of Writ of
Habeas Corpus
Extension
of Majority of All, Art. VII, Sec.
Proc.
of voting jointly
18
ML/Suspension.
of Priv. of WHC
To Concur w/ Majority of All Art. VII, Sec.
President
in
19
granting
amnesty
POLITICAL & INTERNATIONAL LAW
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. Determine President’s disability (PHIL.
CONST., art. VII, § 11.)
3. Declaring existence of a state of war in joint
session (PHIL. CONST., art. VI, § 23(1).)
4. Confirming the President’s nomination 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
1. By a majority vote of all respective members
2. Congress has the sole prerogative in
choosing its officers and the manner by
which they are chosen. (Defensor-Santiago
v. Guingona, G.R. No. 134577, Nov. 18,
1988)
3. 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.)
4. 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.)
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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. L-17144,
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 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 conduct, members of Congress
can be:
1. censured,
2. committed to prison,
3. suspended, and
4. 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
“interruption” of a term under 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 indicator of the suspended official’s
continuity 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).
POLITICAL & INTERNATIONAL LAW
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.
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1.
2.
For example, registration fees used for the
construction and maintenance of highways.
(PAL vs. Edu, G.R. No. L-41383, Aug. 15,
1988).
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. L75697, 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’s 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 VicePresident 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.)
POLITICAL & INTERNATIONAL LAW
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
Of
The
Bicameral
Conference
Committee’s Powers (A2R2P)
1. Adopt the Bill entirely; or
2. Amend; or
3. Revise; or
4. Reconcile the House Bill and the Senate
Bills;
5. 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 committee,” consisting of members
nominated from both Houses, is an extraconstitutional 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
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
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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 “item”. (Gonzalez v.
Macaraig, Jr., G.R. No. 87636, Nov. 19, 1990).
EXECUTIVE IMPOUNDMENT - Refusal of the
President to spend funds already allocated by
Congress for a specific purpose. It is in effect, an
“impoundment” 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
Revenue/tax bill
Appropriations bill
ITEM
Subject of the tax, and
tax
rate
imposed
thereon
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.
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
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Cases When the Constitution Requires Yeas And
Nays To Be Recorded
1. Last and third readings of a bill
2. Upon 1/5 members’ 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 — with no appointed date for
resumption
‘Place’
Refers not to the building but to the political unit
where the Houses may be sitting.
G. APPROPRIATION AND RE-ALIGNMENT
No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law. (PHIL.
CONST. § 29(1))
Rules on Appropriation
All appropriation bills shall originate exclusively in the
House of Representatives, but the Senate may
propose or concur with amendments. (PHIL. CONST.
§ 24)
If, by the end of any fiscal year, the Congress shall
have failed to pass the general appropriations bill for
the ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the
general appropriations bill is passed by the
Congress. (PHIL. CONST. § 25 (7))
Limits on Power to Appropriate
The Congress may not increase the appropriations
recommended by the President for the operation of
the Government as specified in the budget. The form,
content, and manner of preparation of the budget
shall be prescribed by law (PHIL. CONST. § 25 (1)).
Prohibition on “Riders” in Appropriation Bills
No provision or enactment shall be embraced in the
general appropriations bill unless it relates
specifically to some particular appropriation therein.
Any such provision or enactment shall be limited in
POLITICAL & INTERNATIONAL LAW
its operation to the appropriation to which it relates.
(PHIL. CONST. § 25 (2)).
A provision which refers to the fundamental
government policy matters of the calling to active
duty and the reversion to inactive status of reserve
officers in the AFP is a non-appropriation item
inserted in an appropriation measure and is a
violation of the constitutional inhibition against
“riders” to the General Appropriations Act (GAA)
(Garcia v Mata, G.R. No. L-33713 July 30, 1975).
Following liberal construction, a provision will not be
considered a “rider” if: 1) it is not inconsistent with or
foreign to the general subject, 2) considered in
furtherance of such subject by providing for the
method and means of carrying out the general
subject (Fariñas v Executive Secretary; G.R. No.
147387, 2003).
Transfer of Funds / Re-alignment
General Rule: No law shall be passed authorizing
any transfer of appropriations;
Exception (Exclusive List): The following may, by
law, be authorized to augment any item in the general
appropriations law for their respective offices from
savings in other items of their respective
appropriations:
1. The President
2. Senate President
3. Speaker of the House of Representatives,
4. the Chief Justice of the Supreme Court
5. the heads of Constitutional Commissions
(PHIL. CONST. § 25 (5))
Individual members of Congress may only determine
the necessity of the realignment of savings in the
allotments for their operating expenses because they
are in the best position to know whether there are
savings available in some items and whether there
are deficiencies in other items of their operating
expenses that need augmentation. However, it is the
Senate President and the Speaker of the House of
Representatives who shall approve the realignment.
(Philippine Constitution Association v. Enriquez, G.R.
No. 113105, 19 August 1994.)
Discretionary Funds
Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes
to be supported by appropriate vouchers and subject
to such guidelines as may be prescribed by law.
(Araullo v. Aquino, G.R. No. 209287, 1 July 2014)
Special Purpose Fund
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A special appropriations bill shall specify the purpose
for which it is intended, and shall be supported by
funds actually available as certified by the National
Treasurer, or to be raised by a corresponding
revenue proposal therein. (Belgica v. Ochoa, Jr. G.R.
No. 208566, 19 November 2013)
H. 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
procedure’ 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)
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 legislation”
but, “in aid of prosecution” where the stated purpose
of the investigation is, to determine the existence of
POLITICAL & INTERNATIONAL LAW
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 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
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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).
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 the termination
of
the
last session of such legislative inquiry (even
Congress
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:
1. Upon their own initiative, with the consent of
the President (and that of the House
concerned)
2. Upon the request of either House
3. 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.
4. Interpellations shall not be limited to written
questions, but may cover related matters.
5. The inquiry will be conducted in executive
session when:
○ Required by the security of state, or
public interest, and
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When the President so states in
writing.
There is no such thing as a ‘question hour’ 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 Congress‘
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 Congress’ 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).
WHO MAY
APPEAR
WHO
CONDUCTS
SUBJECT
MATTER
OR
PURPOSE
NATURE
EXEMPTED
PERSONS
EXEMPTED
INFORMATI
ON
QUESTION
HOUR
(SEC. 22)
Only
department
heads
Entire body
LEGISLATIVE
INVESTIGATION
(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
Congress’
oversight
function
Discretionary Compulsory
All heads of (1) President
departments
(2) Justices of the
of
the Supreme Court
Executive
(3) Members of
Branch of the the
AFP,
if
government
prevented by the
shall secure President
as
the consent Commander-inof
the Chief (Gudani v.
President
Senga, G.R. No.
prior
to 170165, Aug. 15,
appearing
2006)
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 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 self-incrimination
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)
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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 legislation” under Section 21,
Article VI, the appearance is mandatory (Senate v.
Ermita, G.R. No. 169777, April 20, 2006).
I.
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).)
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
resolution of endorsement by any member.
The complaint is referred to a Committee
2.
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
J. ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
1.
ELECTORAL TRIBUNALS
a.
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.
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2.
Six (6) Members of the Senate or House, as
the case may be. They shall be chosen on
the basis of proportional representation
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
—
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 ‘party disloyalty’ short of proof that he has formally
affiliated with another political group. (Bondoc v.
Pineda, G.R. No. 97710, Sept. 26, 1991)
b. 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.
POLITICAL & INTERNATIONAL LAW
“Qualifications” 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’s 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
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 “at noon on the 30th day of June”.
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
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common good. (Robles v HRET, G.R. No. 86647,
Feb. 5, 1990)
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 candidate’s 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
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)
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 natural-born 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 ballot’s 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, including the
period of filing election protests before it, is beyond
dispute. It’s rule-making power necessarily flows
from the general power granted it by the Constitution.
(Lazatin v HRET, G.R. No. 84297, 1998)
2.
COMMISSION ON APPOINTMENTS
a.
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)
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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.)
3.
4.
5.
The Constitution does not require that the “political
parties” 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).
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.)
b. 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,
Other public Ministers or consuls
Officers of the AFP from the rank of Colonel
or Naval Captain and above; and
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 enumeration of
Art. VII, Section 16. (Sarmiento v. Mison, G.R. No L79974, Dec. 17, 1987)
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 IV(C)(2)
[Powers of the President: Power of Appointment] of
this Reviewer.
K. INITIATIVE AND REFERENDUM
1.
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
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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))
2. Referendum
The power of the electorate to approve or reject
legislation through an election called for the purpose
(R.A. No. 6735, § 3(c))
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
————- end of topic ————-
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A. QUALIFICATIONS, ELECTION,
AND TERM OF PRESIDENT AND
VICE-PRESIDENT
IV. EXECUTIVE DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
A. QUALIFICATIONS,
ELECTION,
AND
TERM OF THE PRESIDENT AND VICEPRESIDENT
B. PRIVILEGES,
INHIBITIONS,
DISQUALIFICATIONS
AND
C. POWERS OF THE PRESIDENT
1. General executive and administrative
powers
2. Power of appointment
a. In general
b. Confirmation and by-passed
appointments
c. Midnight and ad interim
appointments
d. Power of Removal
D. POWER
OF
CONTROL
AND
SUPERVISION
1. Doctrine of qualified political agency
2. Executive Departments and Offices
3. Local Government Units
E. EMERGENCY POWERS
F. MILITARY POWERS
1. Calling out powers
2. Declaration of martial law and
suspension of the privilege of the writ of
habeas corpus; extension
G. EXECUTIVE CLEMENCY
1. Forms and Limitations
H. DIPLOMATIC POWER
I. POWERS
RELATIVE
APPROPRIATION MEASURES
J.
RULES OF SUCCESSION
TO
Qualifications of President and Vice-President
(Secs 3-4):
PRESIDENT
VICE-PRESIDENT
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 reelection successive terms
(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 re-election.
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).
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
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●
●
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)
profession
tenure
●
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, INHIBITIONS, AND
DISQUALIFICATIONS
1. Disqualifications
SUBJECT
SOURCE OF
DISQUALIFICATION
President
PROHIBITED FROM:
Holding any office or employment
Vice President
during their tenure
Cabinet
Members
Deputies
Assistants
Cabinet
members
or
of
Exceptions:
● Otherwise provided in the
Constitution (e.g., Vice
President appointed as a
member of the Cabinet,
Secretary of Justice sits
as an ex-officio 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,
indirectly,
directly or
any
other
in
their
any
●
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)
Participating
business
during
Spouses and
4th
degree
relatives of the
President
(consanguinity
or affinity)
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)
Cannot be appointed during
President’s tenure as:
(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).
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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
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).
2. Privileges
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 President’s immunity from suit cannot
be invoked because the questioned acts are not the
acts of the President but merely those of a
Department Secretary (Gloria v. CA, G.R. No.
119903, Aug. 15, 2000).
POLITICAL & INTERNATIONAL LAW
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)
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 “quintessential
and nondelegable power” 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 “received” by a close
advisor of the President. Under the
“operational proximity” test, Secretary Neri
of NEDA can be considered a close advisor,
being a member of President Arroyo’s
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 the
public officers covered by this executive order;
including:
 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)
 Military, diplomatic and other national
security matters which in the interest of
national security should not be divulged;
 Information between inter-government
agencies prior to the conclusion of treaties
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

and executive agreements (Chavez v.
PCGG, G.R. No. 130716, Dec. 9, 1998);
Discussion in close-door Cabinet meetings
(Chavez v. PCGG, G.R. No. 130716, Dec.
9, 1998);
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
advisor’s 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
performed in pursuit of legislation” (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
approved” – 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 communications’
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.
POLITICAL & INTERNATIONAL LAW
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 President’s 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
COMMUNICATIONS
PROCESS PRIVILEGE
PRIVILEGE
Pertains
to Includes
advisory
communications,
opinions,
documents or other recommendations and
materials that reflect deliberations comprising
presidential
decision- part of a process by
making and deliberations which
governmental
decisions and policies
are formulated
Applies to decision- Applies to decisionmaking of the President
making of executive
officials (and judiciary)
Rooted
in
the Based on common law
constitutional principle of privilege
separation of powers
Requisites:
Requisites:
(a) It must involve a (a) Predecisional – it
quintessential
and
precedes, in temporal
non-delegable power
sequence,
the
of the President
decision to which it
(b) Operational
relates
Proximity
(b) Deliberative – reflects
(c) Important
and
the give and take of
compelling need to
the
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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C. POWERS OF THE PRESIDENT
1. GENERAL EXECUTIVE AND
ADMINISTRATIVE POWERS
Executive Powers, In General
The Constitution provides that "[t]he executive power
shall be vested in the President of the Philippines.”
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 President’s 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.
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.
POLITICAL & INTERNATIONAL LAW
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 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).
2. POWER OF APPOINTMENT
a. In General
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 President’s 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).
Kinds of Presidential Appointments under Art VII,
Sec.15 of the Constitution
(a) Appointments made by an acting president
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POLITICAL & INTERNATIONAL LAW
(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 ‘recess’ or ‘ad-interim’
appointments.
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)
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 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.” But 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)
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).
Requisites for Valid Appointment
1. Authority to appoint and evidence of its
exercise;
2. Transmittal of the appointment and proof of
it
3. Vacant position at the time of appointment;
4. Receipt of the appointment and
5. 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).
Limitations on the Exercise/Power
The Constitutional Limitations on the
President’s 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:
(a) Constitutional Commissions
(b) Ombudsman
(c) Department Secretaries
(d) Undersecretaries
(e) Chairmen and heads of Bureaus and Offices
(f) GOCCs (PHIL. CONST., art. VII, § 13)
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).
b. Confirmation
appointments
and
by-passed
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).
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.
Procedure When No CA Confirmation Needed:
(a) Appointment
(b) Acceptance
Once appointee accepts, President can no longer
withdraw the appointment
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.
Difference between Disapproval and By-Passed
Appointments
APPOINTMENTS
BY-PASSED
DISAPPROVED
APPOINTMENTS
When the Commission When an ad-interim
disapproves
an
ad position is by-passed
interim appointment, the because of law of time or
appointee can no longer failure
of
the
be extended a new Commission to organize,
appointment, inasmuch there is no final decision,
as the disapproval is a the President is free to
final decision in the renew the ad-interim
exercise
of
the appointment.
Commission’s checking
power
on
the
appointment authority of
the President
c. Midnight Appointments & Ad
Interim Appointments
MIDNIGHT APPOINTMENT
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 “midnight appointments.” (PHIL. CONST., art.
VII, § 15).
Exceptions
1.
Temporary appointments to executive
positions if continued vacancies will prejudice
public service or endanger public safety.
2.
Prohibition does not extend to appointments
in the Supreme Court. Had the framers
intended to extend the 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. 98-5-01SC, Nov. 9, 1998).
3.
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).
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).
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4.
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.
5.
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 60-day 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 President’s or Acting President’s 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.
POLITICAL & INTERNATIONAL LAW
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)
AD INTERIM APPOINTMENT
6.
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 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.
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.
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.
● Applies only to positions requiring
confirmation of CA Appointments to fill an
office in an ‘acting’ 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).
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)
d. 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
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application to appointments in the Judiciary because
temporary or acting appointments can only
undermine the judiciary due to their being revocable
at will…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.
D. 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 President’s 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 President’s 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.
The power of supervision does not include the power
of control; but the power of control necessarily
includes the power of supervision.
The President’s power over GOCCs comes not from
the Constitution but from statute. Hence, it may
similarly be taken away by statute.
POLITICAL & INTERNATIONAL LAW
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.
1. 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 her] cabinet members exercising
control over a particular executive department”.
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).
2. Executive Departments and Offices
The President may, by executive or administrative
order, direct the reorganization of government
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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
offices.”
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 “to achieve simplicity,
economy and efficiency” (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 President’s 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 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).
3. 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.
POLITICAL & INTERNATIONAL LAW
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.
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 interest,” 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.)
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).
E. EMERGENCY POWERS
Congress is the repository of emergency powers. But
in times of war or other national emergency, it may,
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F. MILITARY 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, and
or suppress lawless public safety requires it
violence, invasion, or
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
(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)
1.
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 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 President’s 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 “decrees.” 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 “acts of
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terrorism” have not yet been defined and made
punishable by the Legislature, such portion of G.O.
No. 5 is declared unconstitutional. (David v.
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)
Checks and Balances to Limit the Exercise of
the Martial Law and Suspension
Powers/Safeguards against Abuse
1.
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).
2.
3.
4.
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).
5.
6.
7.
2. 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
8.
9.
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 military’s 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)
10.
11.
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
12.
13.
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.
The President's proclamation or suspension
shall be for a period not exceeding 60 days.
Within 48 hours from the proclamation or
suspension, the President must submit a
Report in person or in writing to Congress.
The Congress, voting jointly and by a vote of
at least a majority of all its Members, can
revoke the proclamation or suspension.
The President cannot set aside the
Congress' revocation of his proclamation or
suspension.
The President cannot, by himself, extend his
proclamation or suspension. He should ask
the Congress' approval.
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.
The extension of the proclamation or
suspension shall only be approved when the
invasion or rebellion persists and public
safety requires it.
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.
The Supreme Court must promulgate its
decision within 30 days from the filing of the
appropriate proceeding
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
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.
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.
The suspension of the privilege of the writ
applies only to persons judicially charged for
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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.
(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6,
2018)
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.)
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)
POLITICAL & INTERNATIONAL LAW
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
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 Court’s 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 Court’s 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.)
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
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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 of the Commander-inChief 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)
POLITICAL & INTERNATIONAL LAW
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 to Congress may take into
information available to consideration:
the President prior to or
(a) Data available to
at the time of the
the President
declaration
prior to or at the
time of the
Court is not allowed to
declaration and
undertake
an
(b) Events
independent
supervening the
investigation beyond
declaration
the pleadings
Does not look into the Can probe further and
absolute correctness of deeper, can delve into
the factual basis
accuracy of facts
presented before it
Passive
Initiated by filing of a
petition
“in
an
appropriate
proceeding”
by
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:
1. Lifting by the President himself;
2. Revocation by Congress;
3. Nullification by the Supreme Court; and
4. By operation of law after 60 days (PHIL.
CONST. art. VII, § 18).
G. EXECUTIVE CLEMENCY
1. Forms and Limitations
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
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mitigating whenever a strict application of the
provisions of the law will result in undue harshness.
(Bernas,
1987
Philippine
Constitution:
A
Commentary, 924, 2009).
Extinguishes the offense
FORMS OF EXECUTIVE CLEMENCY
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.
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
PARDON
Ordinary Offenses
To individuals
Must be accepted
No
need
for
Congressional
Concurrence
Private act of President;
it must be proved
May be granted before or
after conviction
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).
LIMITATIONS
CANNOT BE GRANTED:
(a) Before conviction, in cases of 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.
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 (RisosVidal 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)
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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).
H. 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
well-established national
policies and traditions
and those involving
arrangements of more or
less temporary nature
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 Senate’s
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)
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).
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Treaty v. Executive Agreement
Involves political issues,
national policy
EXECUTIVE
AGREEMENT
Involves details carrying
out national policy
International agreements
of a permanent kind
More or less temporary
in character
Must be ratified
No need to be ratified
TREATY
shared function between the executive and
legislative branches hence the Senate’s
power to concur with treaties necessarily
includes the power to impose conditions for
its concurrence.
(Pangilinan et. al. v. Cayetano et. al., G.R. No.
238875, G.R. No. 239483 & 240954, March 16,
2021)
I.
An “exchange of notes” 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
Agreement” 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).
The President does not have absolute unilateral
authority to withdraw from a treaty.
1.
2.
3.
The President enjoys some leeway in
withdrawing from agreements which he or
she determines to be contrary to the
Constitution or statutes.
The President cannot unilaterally withdraw
from agreements which were entered into
pursuant to congressional imprimatur.
When a statute is adopted, the President
cannot withdraw from the treaty being
implemented unless the statute itself is
repealed. (ex. Congress passed R.A 9581
ahead of the Senate’s concurrence to the
Rome Statute.)
The President cannot unilaterally withdraw
from international agreements where the
Senate concurred and expressly declared
that any withdrawal must also be made with
its concurrence. Effecting treaties is a
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 “item.”
Executive Impoundment - Refusal of the President
to spend funds already allocated by Congress for a
specific purpose. It is, in effect, an “impoundment” of
the law allocating such expenditure of funds.
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 word “actual” denotes that something
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)
Veto Powers
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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 ‘pocket veto’
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 specific
rejected a bull submitted provisions of a bill,
to him for his approval usually
a
budget
when Congress adjourns appropriations
bill,
during the period given to without vetoing the entire
the president to approve legislative package
or reject a bill
Congressional pork barrel violates the
President’s 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
the bill. (Belgica v. Hon. Ochoa, G.R. No. 208566,
Nov. 19, 2013)
See Part III(I) 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
POLITICAL & INTERNATIONAL LAW
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
J. 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.
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’s.
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.
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(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 President
permanently disabled
Both President and VP- Senate President, or in
Elect are not chosen, or case of his inability,
do not qualify, or both Speaker of the House
die, or both become shall act as President
permanently disabled
until a President or a VP
shall have been chosen
Death,
permanent and qualified.
disability, or inability of
Senate President and Congress
shall
Speaker of the house as determine, by law, who
Acting President
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 dies/
VP becomes President
permanently disabled/
for the unexpired term
impeached or resigns
Both President and VP
Senate President, or in
die/ permanently
case of his inability,
disabled/ impeached or
Speaker of the House
resign
shall act as president
until the President or VP
Death, permanent
shall have been elected
disability, or inability of
and qualified.
Senate President and
Speaker of the house as Congress shall
Acting President
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
POLITICAL & INTERNATIONAL LAW
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.
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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V. JUDICIAL DEPARTMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
A. JUDICIAL POWER
B. JUDICIAL REVIEW
1. Requisites
2. Political question doctrine
3. Moot questions
4. Operative fact doctrine
C. JUDICIAL INDEPENDENCE AND FISCAL
AUTONOMY
D. APPOINTMENTS TO THE JUDICIARY
1. Qualifications
2. Judicial and Bar Council
(composition and powers)
E. THE SUPREME COURT (COMPOSITION
POWERS, AND FUNCTIONS)
POLITICAL & INTERNATIONAL LAW
A. JUDICIAL POWER
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).
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).
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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 our 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
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)
B. 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.
1. REQUISITES
Requisites of Judicial Review: (EARLS)
1. The question of constitutionality must be
raised in the first instance, or at the Earliest
opportunity.
2. The question involved must be Ripe for
adjudication,
e.g.
the
challenged
government act must have had an adverse
effect on the person challenging it.
3. An Actual case calling for the exercise of
judicial power.
4. Resolution of the issue of constitutionality is
unavoidable or is the very Lis mota of the
case.
5. The person challenging the governmental
act must have ‘Standing’ (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
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 Pano
̃ , G.R.
No. 59524, Feb. 18, 1985)
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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;
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.)
● 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
POLITICAL & INTERNATIONAL LAW
hypothetical. (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 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)
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)
2. 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
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(Tanada v. Cuenco, G.R. No. L-10520, Feb. 28,
1957).
Recognition of diplomatic immunity (ICMC v. Hon.
Calleja, G.R. No. 85750, Sept. 28, 1990).
The judiciary is NOT precluded from reviewing
“political questions”. 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.
The determination of what constitutes “betrayal of
public trust” or “other high crimes” 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).
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 a 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)
Examples of cases in jurisprudence where the
Court held that there was no political question
involved.
1. Apportionment
of
representative
districts
(because
there
are
constitutional
rules
governing
apportionment)
(Bagabuyo
v.
COMELEC, G.R. No. 176970, Dec. 8,
2008).
2. Suspension of the privilege of the writ of
habeas corpus because the Constitution
sets limits to executive discretion on the
matter (Montenegro v. Castañeda, G.R.
No. L-4221, Aug. 30, 1952).
3. 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).
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 vested by the
Constitution in the Executive and Legislative
Departments.
Examples of political questions in jurisprudence
Interpretation of the meaning of “disorderly behavior”
and the legislature’s power to suspend a member
(there is no procedure for the imposition of the
penalty of suspension nor did the 1935 Constitution
define what “disorderly behavior is). The matter is left
to the discretion of the legislature (Osmeña, 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).
3. 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 “moot 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 there is a grave violation of the
Constitution;
o the situation is of exceptional
character and paramount public
interest is involved;
o the constitutional issue raised
requires formulation of controlling
principles to guide the bench, the
bar, and the public; and
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o
POLITICAL & INTERNATIONAL LAW
the case is capable of repetition yet
evading review.
(White Light v. City of Manila, G.R. No. 122846, Jan.
20, 2009)
(Narra Nickel Mining and Development Corp. v.
Redmont Consolidated Mines Corp., G.R. No.
195580, Jan. 28, 2015)
Rules on the Liberal Approach on Locus Standi
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.)
Taxpayer
● the
tax measure
is
unconstitutional (David v.
Arroyo, G.R. No. 171396,
May 3, 2006)
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)
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. COMELEC, GR No. 132922, April 21,
1998)
Requisites for Third Party Standing (jus tertii)
(IRH)
1. The litigant must have suffered an injury-infact, 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.
Voters
Concerned
citizens
Legislators
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 (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
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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
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)
4. 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)
C. JUDICIAL INDEPENDENCE AND
FISCAL AUTONOMY
Concepts of Judicial Independence
DECISIONAL
INDEPENDENCE OR
INSTITUTIONAL
INDIVIDUAL
(JUDICIAL)
JUDICIAL
INDEPENDENCE
INDEPENDENCE
Refers to a judge's Describes
the
ability
to
render separation
of
the
decisions free from judicial branch from the
political or popular 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
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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)
●
Constitutional Safeguards to Secure Judicial
Independence
Judiciary in General
● Creation and abolition of courts
o Congress’ 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 the 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 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. 10-10-4C, 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 Judiciary’s needs require. It
recognizes the power and authority
to levy, assess and collect fees, fix
rates
of
compensation
not
exceeding the highest rates
authorized by law for compensation
and pay plans of the government
and allocate and disburse such
sums as may be provided by law or
prescribed by them in the course of
the discharge of their functions.
(Bengzon v. Drilon, G.R. No.
103524, April 15, 1992)
o Legal fees constitute not only a vital
source of the Court’s financial
resources but also comprise an
essential element of the Court’s
fiscal
independence.
Any
exemption from the payment of
legal fees granted by Congress to
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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 Court’s 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)
●
Jurisdiction
o It may not be deprived of minimum
and appellate jurisdiction
o Congress may not increase the
Supreme
Court’s
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).)
D. APPOINTMENTS TO THE JUDICIARY
1. QUALIFICATIONS
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).
Until a correction of existing records on one’s 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
SUPREME
COURTS (CA,
NONCOURT
CTA,
COLLEGIAT
SANDIGANBAY
E COURTS
AN)
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
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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. 884-5433, 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 10 Engaged for at least 5
years in the practice of years in the practice of
law in the Philippines
law in the Philippines
or
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
1.
2.
a. Composition (PHIL. CONST., art. VIII, §
8.)
Chief Justice, as ex-officio chairman
Secretary of Justice, as ex-officio member
3.
4.
5.
6.
7.
Representative of Congress, as ex-officio
member
Representative of the Integrated Bar
A professor of law
A retired member of the Supreme Court
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).)
● 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)
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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)
POLITICAL & INTERNATIONAL LAW
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 newlyappointed 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)
E. THE SUPREME COURT
1. COMPOSITION
A Constitutional Court
The Supreme Court is the only constitutional court,
all the lower courts being of statutory creation.
The Supreme Court has supervision over the JBC,
and this authority covers the overseeing of the JBC’s
compliance with its own rules. (Jardeleza v. Sereno,
G.R. No. 213181, Aug. 19, 2014)
Members (PHIL. CONST., art. VIII, § 4(1).)
● Chief Justice, and
● 14 Associate Justices
The primary limitation to the JBC's exercise of
discretion is that the nominee must possess the
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
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
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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
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
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
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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)
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
POLITICAL & INTERNATIONAL LAW
supplemented by the final judgment. The Supreme
Court 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.
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.
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 24month 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)
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EN BANC AND DIVISION CASES
En Banc (PHIL. CONST., art. VIII, § 4(2).)
● All cases involving constitutionality of a:
(LIT)
o Law
o 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
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.
● When the required number is not obtained,
the case shall be decided en banc.
POLITICAL & INTERNATIONAL LAW
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, “when the required number is not
obtained, the case shall be decided en
banc” only speaks of “case” and not
“matter.”
● 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-à-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 party’s 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)
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
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●
●
●
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 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
POLITICAL & INTERNATIONAL LAW
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. 082-01-0, 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 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
judges’ and court personnel’s 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
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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 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.
POLITICAL & INTERNATIONAL LAW
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).)
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)
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3.
4.
5.
6.
All cases involving the legality of any: Tax,
Impost, Toll, Assessment or any Penalty
imposed in relation thereto (TITAP)
All cases in which the jurisdiction of any
lower court is in issue
Criminal cases where the penalty imposed is
reclusion perpetua or higher
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 judge’s
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
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-and-take
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
●
●
●
●
Court’s 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-decisional” and
“deliberative” 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.
The principle of comity or inter-departmental
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 Court’s
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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POLITICAL & INTERNATIONAL LAW
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VI. CONSTITUTIONAL COMMISSIONS
TOPIC OUTLINE UNDER THE SYLLABUS:
A. COMMON PROVISIONS
B. POWERS AND FUNCTIONS
C. COMPOSITION AND QUALIFICATION OF
MEMBERS
D. PROHIBITED OFFICES AND INTERESTS
E. JUDICIAL REVIEW OF FINAL ORDERS,
RESOLUTIONS, AND DECISIONS OF
CONSTITUTIONAL COMMISSIONS
POLITICAL & INTERNATIONAL LAW
A. COMMON PROVISIONS
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
‘independent’
● Each is conferred certain powers and
functions by the Constitution which cannot
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 reappointed 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)
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●
The Commissions may appoint their own
officials and employees in accordance with
Civil Service Law (PHIL. CONST. art. IX, § 4).
(c) The promotional appointment must conform
to the rotational plan or the staggering of
terms in the commission membership.
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
appropriation may not be less than the previous year.
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.
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,
‘to prevent one person (the President of the
Philippines) from dominating the commissions’”
(Funa v. Chairman of COA, G.R. No. 192791, April
24, 2012).
The 2 conditions for the workability of the
“Rotational Scheme” are:
● The terms of the first batch of
commissioners should start on a common
date; and
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) 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.
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. L-8684, 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. IX-D,
Sec. § 1(2))
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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)
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 ‘majority’
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.
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
POLITICAL & INTERNATIONAL LAW
entire commission. (e.g. Chairman cannot ratify a
decision that would otherwise have been void.)
B. 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 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,
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6.
7.
8.
9.
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 reevaluation 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, 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
2.
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
Non-Career Service: characterized by
entrance on bases other than those of the
usual tests utilized for the career service,
tenure limited to a period 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.
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2.
3.
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 recommendation
of the CSC (Salazar v. Mathay, G.R. No. L44061, Sept. 20, 1976)
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).
POLITICAL & INTERNATIONAL LAW
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 XI-B. “No
officer or employee of the civil service shall be
removed or suspended except for cause provided by
law.”
Classes of non-competitive positions
● 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.
(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
ensures
freedom
of
intercourse
without
embarrassment or freedom from misgiving or
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 Employee’s Relationship to the item
seized;
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2.
POLITICAL & INTERNATIONAL LAW
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)
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)
Rule on Security of Tenure
No officer or 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.
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).
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
Commission on Elections
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:
1. Elective municipal officials decided by
trial courts of general jurisdiction
2. Elective barangay officials decided by trial
courts of limited jurisdiction
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a.
3.
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’s
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).
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 ‘contests’ (after proclamation) is
in exercise of its judicial functions.
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).
POLITICAL & INTERNATIONAL LAW
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 citizens’ 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.
COMELEC can conduct preliminary investigations 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
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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 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 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).
● COMELEC has jurisdiction to determine the
presence of “probable cause” in election
cases. The finding of probable cause and
the prosecution of election offenses rests in
the COMELEC’s 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 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
contests regarding the Presidency and VicePresidency.
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 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 candidate’s
qualifications except if there exists selfevident
facts
of
unquestioned
or
unquestionable veracity and judicial
confessions.
In this light the COMELEC cannot cancel
Poe’s certificate of candidacy lacking prior
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determination of her qualifications by a
competent body. (Poe-Llamanzares v.
Comelec et al, G.R. Nos. 221697 & 221698700, March 8, 2016)
The COMELEC’s power to motu proprio deny due
course to a certificate of candidacy is subject to the
candidate’s opportunity to be heard. Under Article II,
Section 26 of the Constitution, “the state shall
guarantee equal access to opportunities for public
service.” (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 nuisance candidates,
their COC’s may 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. (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)
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’s order to remove the tarpaulin posted by
the Diocese of Bacolod bearing the heading
‘Conscience Vote’ was unconstitutional. (Diocese of
Bacolod v COMELEC, G.R. No 205728, Jan. 21,
2015)
POLITICAL & INTERNATIONAL LAW
Are the functions under R.A. No. 8436
mandatory?
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 “voter-verified
paper audit trail” 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 “voterverified paper audit trail.” 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
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 agency’s 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’s
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
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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 liquidated 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.
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
POLITICAL & INTERNATIONAL 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’s 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’s findings
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’s
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 “public
corporations.” 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)
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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)
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 ‘governmentowned and controlled corporations with
original charters, as well as government
owned or controlled corporations without
original charters’. 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’s 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
‘public bidding’ and what constitutes failure of the
same when regulations require public bidding for the
sale of government property.
C. COMPOSITION AND QUALIFICATION
OF MEMBERS
a.
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.
4.
With
proven
capacity
for
public
administration; and
Must not have been candidates for any
elective position in the election immediately
preceding their appointment
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)
b. Commission on Elections
Composition
One Chairman and 6 Commissioners
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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).
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.
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)
●
c.
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.
Appointment to any vacancy shall only be for the
unexpired portion of the term of the predecessor.
●
●
“With Original Charter” 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’s 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).
● The COMELEC HAS jurisdiction over intraparty disputes. The ascertainment of the
identity of a political party and its legitimate
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●
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 agency’s 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’s
vital constitutional power unduly limited and thereby
useless and ineffective (Yap v. Commission on Audit,
G.R. No.158562, April 23, 2010).
POLITICAL & INTERNATIONAL LAW
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)
D. 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.
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).
E. JUDICIAL REVIEW OF FINAL ORDERS,
RESOLUTIONS, AND DECISIONS
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
Purposes” created the BSP as a “public corporation”
(Boy Scouts of the Philippines v. COA, G.R. No.
177131, June 7, 2011)
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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●
●
●
POLITICAL & INTERNATIONAL LAW
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 days’ 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).
————- end of topic ————-
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J.
IX. BILL OF RIGHTS
TOPIC OUTLINE UNDER THE SYLLABUS
A. DUE PROCESS OF LAW
1. Procedural and substantive
2. Void-for-vagueness
3. Judicial and administrative due process
B. EQUAL PROTECTION OF LAWS
1. Requisites for valid classification
2. Tests to determine the reasonableness of a
classification
C. ARRESTS, SEARCHES AND SEIZURES
1. Requisites of a valid warrant
2. Warrantless arrests and detention
3. Warrantless searches
4. Exclusionary rule
D. PRIVACY OF COMMUNICATIONS
CORRESPONDENCE
1. Private and public communications
2. Intrusion, when allowed
3. Exclusionary rule
AND
E. FREEDOM OF SPEECH AND EXPRESSION
1. Prior restraint and subsequent punishment
2. Content-based
and
content-neutral
regulations
3. Facial challenges and overbreadth doctrine
4. Tests to determine the validity of
governmental regulation
5. State regulation of different types of mass
media
6. Unprotected speech
F. FREEDOM OF RELIGION
1. Non-establishment clause and free exercise
clauses
2. Benevolent neutrality and conscientious
objector
3. Tests to determine the validity of
governmental regulation
G. LIBERTY OF ABODE AND RIGHT TO TRAVEL
1. Scope and limitations
2. Watch-list and hold departure orders
RIGHT TO ASSOCIATION
1. Scope and limitations
K. NON-IMPAIRMENT OF CONTRACTS
1. Concept and limitations
L. FREE ACCESS TO COURTS AND ADEQUATE
LEGAL ASSISTANCE
M. RIGHT UNDER CUSTODIAL INVESTIGATION
1. Meaning of custodial investigation
2. Rights of a person under custodial
investigation
3. Requisites of a valid waiver
4. Exclusionary doctrine
N. RIGHTS OF THE ACCUSED
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to counsel
5. Right to be informed of the nature and cause
of accusation
6. Right to speedy, impartial, and public trial
7. Right of confrontation
8. Right to compulsory process
9. Trials in absentia
O. RIGHT TO SPEEDY TRIAL AND SPEEDY
DISPOSITION OF CASES
P. RIGHT AGAINST SELF-INCRIMINATION
1. Extent of the right
2. Immunity statutes
Q. RIGHT AGAINST DOUBLE JEOPARDY
1. Requisites and limitations
R. RIGHT AGAINST IVOLUNTARY SERVITUDE
S. RIGHT AGAINST EXCESSIVE FINES, AND
CRUEL AND INHUMAN PUNISHMENTS
T. NON-IMPRISONMENT FOR DEBTS
U. EX POST FACTO LAWS AND BILLS OF
ATTANDER
V. WRITS OF HABEAS CORPUS, KALIKASAN,
HABEAS DATA, AND AMPARO
H. RIGHT TO INFORMATION
1. Scope and limitations
I.
EMINENT DOMAIN
1. Concept
2. Just compensation
3. Expropriation by local government units
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A. 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)
1. PROCEDURAL AND SUBSTANTIVE
PROCEDURAL
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)
POLITICAL & INTERNATIONAL LAW
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 “present its side” or
“defend its interest in due course”, 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
Center’s 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 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,
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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
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 landowner’s 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 landowner’s 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
POLITICAL & INTERNATIONAL LAW
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’s 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)
SUBSTANTIVE
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
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)
Requisites
Laws which interfere with life, liberty, and property
satisfy substantive due process when there is:
(b) Lawful Subject – The interests of the public
generally, as distinguished from those of a
particular class, require such interference;
and
(c) Lawful Means – The means are reasonably
necessary for the accomplishment of the
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purpose, and not unduly oppressive upon
individuals.
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.
POLITICAL & INTERNATIONAL LAW
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)
2. VOID-FOR-VAGUENESS
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 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 of a Valid Ordinance (Police
Power of LGUs) (Must NOT CUPPU, Must
be GC)
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.
Publication
Due process, which is a rule of fairness, requires that
those who must obey a command must first know the
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)
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Purpose
A vague statute is repugnant to the Constitution in
two (2) respects:
(a) It violates due process for failure to accord
persons, especially the parties targeted by it,
fair notice of what conduct to avoid; and
(b) 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)
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 v. Overbreadth
VOID FOR
OVERBREADTH
VAGUENESS
Unconstitutional
Statute or act
Gov't regulation of free
speech
Lacks comprehensible
standards
Means
sweep
unnecessarily broadly
People guess at its
meaning; differ in
application
Violates due process;
creates
unbridled
discretion
Not
unclear
Invades
freedoms
necessarily
protected
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
(Ju3NO)
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
Judicial
property which is the
Proceedings
subject
of
the
proceeding;
3. The defendant must be
given an opportunity to
be heard; and
Judgment must be rendered
upon lawful hearing.
(El Banco Español – Filipino
v. Palanca, G.R. No. L11390, March 26, 1918)
(HESS-PIK)
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
3. JUDICIAL AND ADMINISTRATIVE
DUE PROCESS
Administrative Proceeding; Dead Respondent
In administrative cases, the essence of procedural
due process is one’s 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
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.
Administrative/
Quasi-Judicial
Proceedings
1. The right to a Hearing,
which includes the right
to present one’s case
and submit evidence in
support thereof;
2. The
tribunal
must
consider the Evidence
presented;
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
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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.
L-46496)
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)
(WAEEC)
Academic
Disciplinary
Proceedings
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.
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)
(GIHO)
Deportation
Proceedings
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
Commissioner
of
Immigration.
Although
a
deportation
proceeding does not partake
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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)
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)
Extradition
Proceedings
(Granting of
bail)
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)
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)
The grant of the
presupposes
that
bail
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)
Thus, the cancellation of an
extraditee’s 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)
Instances when hearing is not necessary:
(c) When administrative agencies are exercising
their quasi-legislative functions.
(d) When administrative agencies are exercising
their quasi-judicial functions if temporary
pending hearing.
(e) Abatement of nuisance per se.
(f) Granting by courts of provisional remedies.
(g) Cases of preventive suspension.
(h) Removal of temporary employees in the
government.
(i) Issuance of warrants of distraint and/or levy
by the BIR Commissioner.
(j) Cancellation of the passport of a person
charged with a crime.
(k) Suspension of a bank’s 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
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its own independent conclusions. (Gutierrez v COA,
GR. No. 200628, Jan. 13, 2015)
No Hearing in Provisional Price-fixing
Such a relaxed procedure is especially true in
administrative bodies, such as the ERB which in
matters of rate or price fixing is considered as
exercising a quasi-legislative, not quasi-judicial
function. As such administrative agency, it is not
bound by the strict or technical rules of evidence
governing court proceedings Relaxed procedures
adopted could not have resulted in the denial of due
process. (Maceda v. ERB, G.R. No. 96266, Jul. 18,
1991)
Pilotage is considered a property right Thus,
the exercise of one's profession falls within
the constitutional guarantee against wrongful
deprivation of, or interference with, property
rights
without due process. However, it is important
to note that a regulation of professions does
not per se entail a wrongful deprivation. It is
only when a
vested right is taken away without due
process of l aw that it falls under the aegis of
Article III, Sec. 1. (Corona v. UHPAP, G.R.
No. 111953)
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
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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
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)
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.
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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)
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)
B. EQUAL PROTECTION
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
POLITICAL & INTERNATIONAL LAW
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)
The Constitution does not require absolute equality
among persons. It is enough that all persons under
like circumstances or conditions are given the same
privileges and required to follow the same
obligations. In short, a classification based on valid
and reasonable standards does not violate the equal
protection clause. (Tiu v. Court of Appeals, G.R. No.
127410, Jan. 20, 1999)
1. 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 Workers’ Union, G.R. No. L-2524, Sept.
12, 1974)
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
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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 “unfair as it [was]
selective” 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 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
POLITICAL & INTERNATIONAL LAW
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 “privilege” 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 “class” 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. 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)
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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 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. L23794, Feb. 17, 1968)
POLITICAL & INTERNATIONAL LAW
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
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position of political powerlessness as to command
extraordinary protection from the 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)
2. TESTS TO DETERMINE THE
REASONABLENESS OF A
CLASSIFICATION
Philippine jurisprudence has developed three (3)
tests of judicial scrutiny to determine the
reasonableness of classifications.
POLITICAL & INTERNATIONAL LAW
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)
C. ARRESTS, SEARCHES AND
SEIZURES
Section 2 is not just a circumscription of the power of
the State over a person’s home and possessions.
More importantly, it protects the privacy and sanctity
of the person himself. It is a guarantee of the right of
the people to be secure in their “persons… against
unreasonable searches and seizures.” It is therefore
also a guarantee against unlawful arrests and other
forms of restraint on the physical liberty of the person.
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009)
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)
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
Under our Constitution, the same is declared a
popular right of the people and, of course,
indisputably it equally applies to both citizens and
foreigners in this country. (Qua Chee Gan v
Deportation Board, G.R. No. L-10280, September 30,
1963).
1. REQUISITES OF A VALID WARRANT
SEARCH WARRANTS
A search warrant is an order in writing, issued in
the name of the People of the Philippine Islands,
signed by a judge or a justice of the peace, and
directed to a peace officer, commanding him to
search for personal property and bring it before the
court. (Sec. 1, Rule 126, Revised Rules of Criminal
Procedure)
The requisites for the issuance of a search warrant
are: (POJEWS)
1. Probable cause is present (in connection with
one specific offense);
2. Such probable cause must be determined
personally by the judge;
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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)
Although the use of the word “and” implies
conjunction or union, the CA was mistaken in giving
the word undue importance.
The primary
consideration here is the finding of probable cause. It
would not be necessary to examine both the
applicant and other witnesses if either one is
sufficient for the judge to establish probable cause.
(People v. Gabiosa Sr., G.R. No. 248395, Jan. 29,
2020.)
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)
POLITICAL & INTERNATIONAL LAW
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)
Conclusions of law unsupported by particulars are
not sufficient to establish probable cause to be used
as basis for the issuance of a warrant. (Bernas, The
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
A tip received from a classified informant may be the
basis of a search. (People v. Lo Ho Wing, G.R. No.
88017, Jan. 21, 1991)
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 warrant’s
application does not dilute the probable cause finding
made herein. The delay may be accounted for by a
witness’s fear of reprisal and natural reluctance to get
involved in a criminal case. (Laud v. People, G.R. No.
199032, Nov. 19, 2014)
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Trial Judge Determination Accorded Great
Deference by the Reviewing Court
Generally, a judge’s 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 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)
POLITICAL & INTERNATIONAL LAW
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)
Depositions made by Clerk
The participation of respondent Judge in the
proceedings which led to the issuance of search
warrant was limited to listening to the stenographer's
readings of her notes, to a few words of warning
against the commission of perjury, and to
administering the oath to the complainant and his
witness. This cannot be considered a personal
examination. If there was an examination at all of the
complainant and his witness, it was the one
conducted by the Deputy Clerk of Court. The
Constitution and the Rules require a personal
examination by the judge. (Bache v. Co. v. Ruiz, G.R.
No. L-32409. Feb. 27, 1971)
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)
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)
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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
The warrant must be issued in relation to one specific
offense. (ROC, Sec. 4, Rule, 126)
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)
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
POLITICAL & INTERNATIONAL LAW
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 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. L-23051, 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. L23051, Oct. 20, 1925)
As said warrant is issued against 50 “John Does" not
one of whom the witnesses to the complaint could or
would Identify, it is of the nature of a general warrant,
one of a class of writs long proscribed as
unconstitutional and once anathematized as "totally
subversive of the liberty of the subject."
(Pangandaman v. Casar, G.R. No. 71782 April 14,
1988)
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
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POLITICAL & INTERNATIONAL LAW
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)
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)
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)
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)
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 be seized. (Uy v.
BIR, G.R. No. 129651, Oct. 20, 2000)
General Rule: A general warrant is null and void.
(Nolasco v. Pano
̃ , G.R. No. L- 69803, Oct. 8,
1985).
 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)
Scatter-shot Warrants
A warrant must be issued upon probable cause in
connection with one specific offense. Thus, where
the questioned warrant was issued for multiple
offenses, specifically Articles 171 and 213 of the
Revised Penal Code, as well as the Anti-Graft and
Corrupt Practices Act, it is void for being a scattershot warrant. (Vallejo v. CA, G.R. No. 156413, Apr.
14, 2004)
No provision of law exists which requires that a
warrant, partially defective in specifying some
items sought to be seized yet particular with
respect to the other items, should be nullified as a
whole. A partially defective warrant remains valid
as to the items specifically described in the
warrant. A search warrant is severable, the items
not sufficiently described may be cut off without
destroying the whole warrant. (Microsoft
Corporation v. Maxicorp, G.R. No. 140946, Sept.
13, 2004)
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 Laboratories v. Isip, G.R. No.
163858, June 28, 2005)
The description "an undetermined amount of
marijuana" must be held to satisfy the requirement for
particularity in a search warrant. What is to be seized
in the instant case is property of a specified
character, i.e., marijuana, an illicit drug. By reason of
its character and the circumstances under which it
would be found, said article is illegal. A further
description would be unnecessary and ordinarily
impossible, except as to such character, the place,
and the circumstances. It is not required that
technical precision of description be required,
particularly where, by the nature of the goods to be
seized, their description must be rather general,
since the requirement of technical description would
mean that no warrant could issue. (People v. Tee,
G.R. Nos. 140546-47, January 20, 2003)
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CONDUCT OF A SEARCH
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)
Period of the Validity of a Search Warrant
A search warrant shall be valid for 10 days from its
date. Thereafter it shall be void. (ROC, Rule 126,
Sec. 10)
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 “two witnesses of sufficient age and
discretion residing in the same locality” 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)
“Knock and Announce” 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 announce” principle 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
POLITICAL & INTERNATIONAL LAW
reasonable. (People v. Huang Zhen Hua, G.R. No.
139301, Sept. 29, 2004)
Unannounced Intrusion When Permissible
Unannounced intrusion into the premises
permissible when:
is
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
officers’
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 authorities’ claim that they had to use
some force in order to gain entry cannot be doubted.
The occupants of the house, especially accusedappellant, refused to open the door despite the fact
that the searching party knocked on the door several
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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)
WARRANT OF ARREST
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, Sec. 1, Rule 113)
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,
Sec. 2. Rule 113)
If the judge is satisfied from the preliminary
examination conducted by him or by the investigating
officer that the offense complained of has been
committed and that there is reasonable ground to
believe that the accused has committed it, he must
issue a warrant or order for his arrest. (Sec. 6, Rule
112, Revised Rules of
Criminal Procedure)
Probable cause for issuance of warrant of arrest
Such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that
an offense has been committed by the person sought
to be arrested.
Judicial determination of probable cause for
warrants of arrest
Before issuing a warrant of arrest, the judge must be
satisfied that based on the evidence submitted, there
is sufficient proof that a crime has been committed
and that the person to be arrested is probably guilty
thereof. At this stage of the criminal proceeding, the
judge is not yet tasked to review in detail the evidence
submitted during the preliminary investigation. It is
sufficient that he personally evaluates the evidence
in determining probable cause to issue a warrant of
arrest. (Pestillos v. Generoso, G.R. No. 182601, Nov.
10, 2014)
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself 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. (Soliven v. Makasiar, G.R. No.
82585 Nov. 14, 1988
POLITICAL & INTERNATIONAL LAW
A judge may rely upon the fiscal's certification of the
existence of probable cause and, on the basis
thereof, issue a warrant of arrest. However, the
certification does not bind the judge to come out with
the warrant of arrest.
To be sure, the Judge must go beyond the
Prosecutor’s certification and investigation report
whenever necessary. He should call for the
complainant and witnesses themselves to answer the
court’s probing questions when the circumstances of
the case so require. (Lim Sr. v. Felix G.R. Nos.
94054-57, Feb. 19, 1991)
2. 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)
In warrantless arrests, it is not enough that there is
reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact
or actually have been committed first. (People v.
Burgos, G.R. No. L-68955)
Entrapment
It is recognized that in every arrest, there is a certain
amount of entrapment used to outwit the persons
violating or about to violate the law. Not every
deception is forbidden. The type of entrapment the
law forbids is the inducing of another to violate the
law, the "seduction" of an otherwise innocent person
into a criminal career.
Where the criminal intent originates criminal in the
mind of the entrapping person and the accused is
lured into the commission of the offense charged in
order to prosecute him, there is entrapment and no
conviction may be had.
Where, however, the criminal intent originates in the
mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy
for the state, or public officials furnished the accused
an opportunity for commission of the offense, or that
the accused is aided in the commission of the crime
in order to secure the evidence necessary to
prosecute him, there is no entrapment and the
accused must be convicted.27 The law tolerates the
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use of decoys and other artifices to catch a criminal.
(People v. Doria, G.R. No. 125299 January 22, 1999)
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
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)
For an arrest of a suspect in flagrante delicto, two
elements must concur, namely: (a) 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 (b) such overt act
POLITICAL & INTERNATIONAL LAW
is done in the presence or within the view of the
arresting officer. The officer's personal knowledge of
the fact of the commission of an offense is absolutely
required. The officer himself must witness the crime.
Furthermore, the facts do not give rise to a
reasonable suspicion that X was in possession of
shabu. From a meter away, even with perfect vision
a police officer would not have been able to identify
with reasonable accuracy the contents of the plastic
sachet. X's acts of standing on the street and holding
a plastic sachet in his hands, are not by themselves
sufficient to incite suspicion of criminal activity or to
create probable cause enough to justify a warrantless
arrest. (Dominguez y Argana v. People, G.R.
235898, Mar. 13, 2019)
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
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)
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.
For the arrest of one in flagrante delicto to be valid
under Rule 112, Section 5(a), the law tilts in favor of
authority. Thus, speech which in an officer's
estimation is criminally seditious can justify
warrantless arrest in flagrante delicto even if upon
prosecution the officer is proved wrong. The criminal
character of speech is something that is not easily
determined and must await court estimation.
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(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
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 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)
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
POLITICAL & INTERNATIONAL LAW
personal gathering of information is different from
personal knowledge. (People v. Manlulu, G.R. No.
102140, Apr. 22, 1994)
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 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
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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)
Escapee
An arrest without warrant is l awful 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 temporarily confined while his case is
pending, or has escaped while being transferred from
one confinement to another. (ROC, Sec. 5(c), Rule
113)
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
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 “stakeout” 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)
POLITICAL & INTERNATIONAL LAW
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, 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 “reasonableness” must
be judged by balancing the intrusion on the
individual’s interests against the promotion of
legitimate government interests. What was essential
was the school’s 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 prosecutor’s 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.
A waiver of an illegal warrantless arrest does not also
mean a waiver of the inadmissibility of evidence
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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.
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 circumscribed by the company’s work
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)
3. 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)
POLITICAL & INTERNATIONAL LAW
Warrantless searches are allowable in the following
circumstances: (WIPE MS CACP)
(a) Waiver of right
(b) Search Incidental to a lawful arrest
(c) Seizure of evidence in Plain view
(d) During
exigent
and
Emergency
circumstances
(e) Search of a Moving vehicle
(f) Stop and frisk rule (Terry Search)
(g) Customs search
(h) Airport searches
(i) Checkpoint Search
(j) 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)
Waiver of Right
Requisites
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)
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It is the State that has the burden of proving, by clear
and positive testimony, that the necessary consent
was obtained, and was freely and voluntarily given.
(Valdez v. People, G.R. No. 170180, Nov. 23, 2007)
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)
Any objection to the legality of the search warrant and
the admissibility of the evidence obtained thereby
was deemed waived when no objection was raised
by appellant during trial. (People v. Nunez, G.R. No.
177148, G.R. No. 177148
June 30, 2009)
a. 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)
POLITICAL & INTERNATIONAL LAW
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 State’s 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
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 arrestee’s
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
latter’s 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
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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 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 arrest.”
(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:
(a) Used in the commission of the crime, or
(b) The fruit of the crime, or
(c) That which may be used as evidence, or
(d) Which might furnish the arrestee with the
means of escaping or committing violence.
(People v. Comprado, G.R. No. 213225, April
4, 2018)
b. 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;
POLITICAL & INTERNATIONAL LAW
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)
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 object’s incriminating
evidence. Probable cause must be the direct result of
the officer’s 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)
It is undeniable that the seizure of the prohibited
items in this case was valid under the "plain view"
doctrine, for which the following requisites concur: (a)
the law enforcement officer in search of the evidence
has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b)
the discovery of evidence in plain view is inadvertent;
(c) it is immediately apparent to the officer that the
item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.
In this case all the elements of plain view
were established. First, the police officers were
conducting a routine checkpoint when they flagged
down X, because he was committing several traffic
infractions. Thus, the police officers had a prior
justification for their act of flagging down X and their
subsequent intrusion. Second, upon asking X for his
registration papers, he voluntarily opened his utility
box, and the two (2) sachets of shabu were plainly
visible to the police officer Z. The discovery of the
sachets was inadvertent and the illicit items were
immediately apparent. Lastly, sachets containing
white crystalline substance were confiscated since it
appeared that the same could be evidence of a
crime, contraband, or otherwise subject to seizure.
This seizure of evidence justified the subsequent
searches and the arrest of Danilo. If not for the said
plastic sachets, there would have been no valid
reason to search or frisk Danilo as his traffic
violations were punishable only by fine. His traffic
violations per se did not justify a search incidental to
a lawful arrest as there was as yet no lawful arrest to
speak of. (De Villa y Guinto v. People, G.R. No.
224039, Sept. 11, 2019.)
Exception to the Inadmissibility of Evidence
Obtained in a Warrantless Search Incident to a
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Lawful Arrest Outside the Suspect’s 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 suspect’s 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
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 view” exception. The assertions of the police
officers that said objects were “inadvertently” seized
within their “plain view” 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 view” of the
policemen was not readily and immediately apparent.
POLITICAL & INTERNATIONAL LAW
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)
c.
Exigent
and
Circumstances
Emergency
In the event of a coup d’etat 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
jurisdiction, at that time, was closed due to disorder.
(People v. De Gracia, G.R. Nos. 102009-10, July 6,
1994).
d.
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. L27360, 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
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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:
(a) Where the officer merely draws aside the
curtain of a vacant vehicle which is parked on
the public fair grounds;
(b) Simply looks into a vehicle;
(c) Flashes a light therein without opening the
car's doors;
(d) Where the occupants are not subjected to a
physical or body search;
(e) Where the inspection of the vehicles is
limited to a visual search or visual inspection;
and
(f) Where the routine check is conducted in a
fixed area. (Macad v. People, G.R. No.
227366, Aug. 1, 2018)
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 Tuazon’s waist. He
did not have any documents, which strengthened the
police’s suspicion. After he was told to step out of the
car, they found plastic sachets containing shabu on
the driver’s seat. These circumstances are sufficient
to establish probable cause for the warrantless
POLITICAL & INTERNATIONAL LAW
search of the car. Hence, the sachets of shabu may
be admitted as evidence. (People v. Tuazon, G.R.
No. 175783, Sept. 3, 2007)
e.
Stop and
Search)
Frisk
Rule
(Terry
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.
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 is reasonable fear for one’s own, or others’
safety. Thus, he is entitled to conduct 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 “stop and frisk” 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’s liberty. PO3
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Y suspicion based on the sight of a metal object is
not sufficient to defeat X’s 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)
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)
f.
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)
POLITICAL & INTERNATIONAL LAW
CUSTOMS MODERNIZATION AND TARIFF
ACT
Persons Exercising Police Authority
The following persons are authorized to effect
search, seizure, and arrest:
(a) Officials of the Bureau, District Collectors,
Deputy District Collectors, police officers,
agents, inspectors and guards of the Bureau;
(b) Upon authorization of the Commissioner,
officers and members of the Armed Forces of
the Philippines (AFP) and national law
enforcement agencies; and
(c) 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.
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.
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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)
a.
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,"
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 ladies’ room was justified under the
circumstances. (People v. Canton, G.R. No. 148825,
Dec. 27, 2002)
b.
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 passage’ 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)
Requisites (No body LAV)
1.
2.
3.
4.
Passengers Not subjected to Body search;
Limited to visual search
Abnormal times; and
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
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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)
Unannounced Checkpoints
We see no need for checkpoints to be announced, as
the accused have invoked. Not only would
announcements be impractical, it would also
forewarn those who intend to violate the ban. Even
so, badges of legitimacy of checkpoints may still be
inferred from their fixed location and the regularized
manner in which they are operated. (People v.
Escano, G.R. Nos. 129756-58, Jan. 28, 2000)
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
warrant the extensive search of the vehicle of the
accuse on the police checkpoint. (People v. Yanson,
G.R. No. 238453, July 31, 2019)
c.
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)
POLITICAL & INTERNATIONAL LAW
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
(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)
(a) 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
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contraband or illegal articles carried by a
passenger onboard.
(b) 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.
(c) 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
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
POLITICAL & INTERNATIONAL LAW
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 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
person’s bag. (Dela Cruz v People of the Philippines,
GR 209387, Jan. 11, 2016)
4. 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 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
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POLITICAL & INTERNATIONAL LAW
purpose in any proceeding. (People v. Comprado,
G.R. No. 213225, April 4, 2018)
Constantino-David, G.R. No. 181881, Oct.
18, 2011)
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)
Customs, community norms, and practices may,
therefore, limit or extend an individual’s reasonable
expectation of privacy. Hence, the reasonableness of
a person’s 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)
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)
D. PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE
1. PRIVATE AND PUBLIC
COMMUNICATIONS
Concept
Forms of communication and correspondence
considered private and protected by this provision
include:
(a) Letters
(b) Messages
(c) Telephone calls
(d) 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 person’s expectation of
privacy depends on a two-part test:
(a) Subjective: Whether, by his conduct, the
individual has exhibited an expectation of
privacy; and
(b) Objective: This expectation is one that
society recognizes as reasonable. (Pollo v.
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 coworkers and kept the same locked. However, the
existence of a workplace privacy 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’s 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)
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2. INTRUSION, WHEN ALLOWED
The privacy of communication and correspondence
shall be inviolable except:
(a) Upon lawful order of the court, or
(b) 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
of the right to be secure in one’s 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’s
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
POLITICAL & INTERNATIONAL LAW
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)
General rule: The constitutional proscription against
unreasonable search and seizure applies as a
restraint against the government and its agencies. It
can only be invoked against the State. If the search
is made at the initiative of a private person for private
purposes, without the intervention of police
authorities, the right cannot be invoked because only
the act of a private individual is involved and not of
law enforcers. The protection of unreasonable search
and seizure cannot be extended to acts committed by
private individuals. (People v. Marti, G.R. No. 81561)
However, applied to wife who took documents
and papers from husband’s 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
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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.
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 computer-related 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 “associated with specified
communications.” 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
“fishing expedition,” 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 be unlawful in the said law in
cases involving the crimes of:
1.
2.
3.
4.
5.
Treason
Espionage
Provoking war and disloyalty in case of war
Piracy and mutiny in the high seas
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)
e. 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)
f. 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
user’s invocation of his or her right to informational
privacy.
That the photos are viewable by “friends only” 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:
(a) Facebook “allows the world to be more open
and connected by giving its users the tools to
interact and share in any conceivable way”
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(b) A good number of Facebook users “befriend”
other users who are total strangers;
(c) The sheer number of “Friends” one user has,
usually by the hundreds; and
(d) A user’s Facebook friend can “share” the
former’s post, or “tag” others who are not
Facebook friends with the former, despite its
being visible only to his or her own Facebook
friends.
Setting a post’s or profile detail’s privacy to “Friends”
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 photo’s 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)
E. FREEDOM OF SPEECH AND
EXPRESSION
The doctrine on freedom of speech was formulated
primarily for the protection of “core” speech such as
speech which communicates political, social, or
religious ideas. Those enjoy the same degree of
protection.
(Bernas,
The
1987
Philippine
Constitution: A Comprehensive Reviewer, 2011).
Includes every form of expression, whether oral,
written, tape, or disc recorded. It also includes
movies, symbolic speech (wearing of arm-bands),
peaceful picketing, and conduct which amounts to
speech. (Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011).
POLITICAL & INTERNATIONAL LAW
1. 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 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
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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
must clearly make out a case to overcome this
presumption, which it failed to do in this case. The
word “security” 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)
(a) 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)
(b) Obscene publications
POLITICAL & INTERNATIONAL LAW
(c) 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)
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 “recruiting or enlistment service”
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.
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.
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)
SUBSEQUENT PUNISHMENT
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
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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)
2. CONTENT-BASED AND CONTENT
NEUTRAL REGULATIONS
POLITICAL & INTERNATIONAL LAW
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)
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
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
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.
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 contentbased 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’Brien 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)
3. FACIAL CHALLENGES AND
OVERBREADTH DOCTRINE
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
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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 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 ‘case and controversy’
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)
POLITICAL & INTERNATIONAL LAW
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:
(a) When a penal statute is challenged as
applied
(b) 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
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may cause others not before the court to refrain from
constitutionally protected speech or activities.
(Gonzales v. COMELEC, G.R. No. L-27833, April 18,
1969)
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 third-party standing.
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)
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)
4. TESTS TO DETERMINE THE
VALIDITY OF GOVERNMENTAL
REGULATION
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. 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. “Present” refers to the time element that
is identified with imminent and immediate danger.
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 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 Court’s 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
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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
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. L8974, 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. L8974, Oct. 18, 1957)
POLITICAL & INTERNATIONAL LAW
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’s head
for having recommended a bad thing for the
Philippines.” 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, 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
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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;
(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.
L-27833, April 18, 1969)
individual
interests,
and
requires
a
conscious
and
detailed consideration
of the interplay of
interests observable
in a given situation of
type of situation.
5. STATE REGULATION OF
DIFFERENT TYPES OF MASS MEDIA
Four Aspects of Freedom of the Press
(a) Freedom from prior restraint
(b) Freedom from punishment subsequent to
publication
(c) Freedom of access to information
(d) Freedom of circulation. (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.
Summary
TEST
Clear
and
Present
Danger
Dangerous Tendency
Balancing of Interests
CRITERION
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.
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.
Courts
need
to
balance
conflicting
social values and
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.
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)
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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)
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)
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.
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.
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
POLITICAL & INTERNATIONAL LAW
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. (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 Cristo’s
religious program from petitioner’s 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
allowed...“mere fear of possible undue influence is
not tantamount to actual prejudice resulting in the
deprivation of the right to a fair trial.” (In Re: Petition
For Radio And TV Coverage Of The Multiple Murder
Case Against Zaldy Ampatuan et al., A.M. No. 10-115-SC, June 14, 2011)
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
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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
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)
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 twentyfour 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)
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)
Commercial Speech
Commercial speech is speech that does no more
than propose a commercial transaction. (Central
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
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)
6. UNPROTECTED SPEECH
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’s
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 “the thought
that we hate.” (Matal v. Tam, 582 U.S., June 19,
2017)
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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
draft," when not directed at any particular person,
ethnic or religious group, are not subject to
subsequent punishment. As aptly stated, "one man’s
vulgarity may be another man’s 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)
1. The Allegation of a discreditable act or condition
concerning another;
2. Publication of the charge;
3. Identity of the person defamed; and
4. 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:
(a) A private communication made by any
person to another in the performance of any
legal, moral or social duty; and
(b) 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
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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.
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)
POLITICAL & INTERNATIONAL LAW
Privileged Communications
c. Absolutely Privileged
Communications
Those which are not actionable even if the author has
acted in bad faith.
This classification includes statements made by
members of Congress in the discharge of their
functions as such, official communications made 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.
d. 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
remarks” 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 – “Private Communications”
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
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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)
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 ‘actual malice’ in order to recover
POLITICAL & INTERNATIONAL LAW
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 must prove ‘actual 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.
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)
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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)
e. 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)
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
POLITICAL & INTERNATIONAL LAW
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 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’s head
for having recommended a bad thing for the
Philippines.” 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)
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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:
(a) To prevent the promulgation or execution of
any law or the holding of any popular
election;
(b) 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;
(c) To inflict any act of hate or revenge upon the
person or property of any public officer or
employee;
(d) To commit, for any political or social end, any
act of hate or revenge against private
persons or any social class; and
(e) 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)
f.
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
POLITICAL & INTERNATIONAL LAW
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 judge’s sound discretion.
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Sex and obscenity are not synonymous. Obscene
material is material which deals with sex in a manner
appealing to prurient interest. The portrayal of sex,
(e.g., in art, literature and scientific works), is not itself
sufficient reason to deny material the constitutional
protection of freedom of speech and press. Sex, a
great and mysterious motive force in human life has
indisputably been a subject of absorbing interest to
mankind through the ages; it is one of the vital
problems of human interest and public concern.
(Gonzales v. Kalaw-Katigbak, G.R. No. L-69500, Jul.
22, 1985)
Relative Obscenity
The Court noted that there was “no perfect definition
of obscenity” and that ultimately therefore “obscenity
is an issue proper for judicial determination and
should be treated on a case to case basis and on the
judge’s sound discretion.” (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 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
(a) The authorities must apply for the issuance
of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;
(b) 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;
(c) 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.
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(d) If, in the opinion of the court, probable cause
exists, it may issue the search warrant
prayed for;
(e) The proper suit is then brought in the court
under Article 201 of the Revised Penal Code;
(f) 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)
POLITICAL & INTERNATIONAL LAW
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)
Every violation of the free exercise clause involves
compulsion, whereas a violation of the nonestablishment clause need not involve compulsion.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
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)
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)
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 constitutional assurance of religious freedom
provides two guarantees:
1. NON-ESTABLISHMENT CLAUSE
AND FREE EXERCISE CLAUSES
F. FREEDOM OF RELIGION
1. The Establishment Clause
2. The Free Exercise Clause (Imbong v. Ochoa,
G.R. No. 204819, April 8, 2014)
In Philippine jurisprudence, religion, for purposes of
the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case 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’s 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.
Non-establishment clause
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.
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:
a.
Voluntarism
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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.
b.
Insulation
Process
Dissension
of
the
From
Political
Interfaith
Such voluntarism cannot be achieved unless the
political process is insulated from religion and unless
religion is insulated from politics. Non-establishment
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:
(a) The State cannot set up a Church.
(b) The State cannot pass laws which aid one
religion, aid all religion, or prefer one religion
over another.
(c) 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.
(d) The State cannot punish a person for
entertaining or professing religious beliefs or
disbeliefs, for church attendance or
nonattendance.
(e) 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.
(f) 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:
(a) Government must not prefer one religion
over another or religion over irreligion
because such preference would violate
voluntarism and breed dissension.
(b) Government funds must not be applied to
religious purposes because this too would
violate voluntarism and breed interfaith
dissension.
(c) Government action must not aid religion
because this too can violate voluntarism and
breed interfaith dissension.
(d) 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 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)
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
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suggesting that people praise God for the birth of
Jesus. (County of Allegheny v. ACLU, 492 U.S. 573,
July 2, 1989)
It is not necessary that there be a direct
governmental compulsion for the non-establishment
clause to be violated. Enactment of laws which
coerce or influence, directly or indirectly, any
individual to follow a religion or irreligion is sufficient
for the said clause to be violated. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
The expulsion or excommunication of members of a
religious institution or organization is a matter best
left to the discretion of church officials, and the laws
and canons of said institution or organization. It is not
for the courts to exercise control over church
authorities in the performance of their discretionary
and official functions. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009)
Permitted Acts of the State Under the
Establishment Clause
c. Constitutionally Created
Tax Exemptions
Charitable institutions, churches and parsonages or
convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation. (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
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])
POLITICAL & INTERNATIONAL LAW
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])
d.
Jurisprudence
The holding of Catholic masses at the basement of
the QC Hall of Justice is not a case of establishment,
but merely accommodation.
(a) 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.
(b) 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.
(c) No government funds are being spent
because the lightings and air conditioning
continue to be operational even if there are
no religious rituals there.
(d) The basement has neither been converted
into a Roman Catholic chapel nor has it been
permanently appropriated for the exclusive
use of its faithful.
(e) The allowance of the masses has not
prejudiced other religions
(f) 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 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. 10-4-19SC, 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
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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 non-establishment 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 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. L53487, 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
POLITICAL & INTERNATIONAL LAW
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 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)
Free Exercise Clause
Concept
The right to religious profession and worship has a
two-fold aspect: freedom to believe and freedom to
act on one’s 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. 104-19-SC, March 7, 2017)
The court determines whether an act is a religious
ceremony and not any religious group or sect, or a
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follower of the said group or sect. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
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 person’s 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 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
POLITICAL & INTERNATIONAL LAW
in that person’s 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 non-religious
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 non-religious
purposes, it does not offend the free exercise clause.
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 across-the-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)
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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 Jehovah’s
Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs,
however ‘bizarre’ 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. L9637, April 30, 1957)
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 evenhandedly 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)
POLITICAL & INTERNATIONAL LAW
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 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
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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. (Church of the Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, June 11 1993)
2. BENEVOLENT NEUTRALITY AND
CONSCIENTIOUS OBJECTORS
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
government’s 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 person’s or institution’s 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.
POLITICAL & INTERNATIONAL LAW
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. P02-1651, June 22, 2006)
Sherbert Test
This is the applicable test for benevolent neutrality.
The test involves the following:
1. Does the law burden the person of his free
exercise of religion;
2. Is the person sincere in his belief; and
3. Does the State have a compelling interest in
implementing the law/regulation/policy? (Estrada
v. Escritor, A.M. No. P-02-1651, Aug. 4, 2003)
Conscientious objectors
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 nation’s health,
safety or interest. (Black’s Law Dictionary, 9th ed.)
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.
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.
Although the Philippines’ 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
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.
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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.
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 Jehovah’s
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 the God of
those admittedly qualifying for the exemption. (380
U.S. 163, March 8, 1965)
3.
TESTS TO DETERMINE THE
VALIDITY OF GOVERNMENTAL
REGULATION
TESTS FOR CONSTITUTIONALITY OF
STATUTES
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
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neutral and nonideological. (Agostini v. Felton,
521 U.S. 203, June 23, 1997)
Mitchell Test for Determining a Statute’s 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)
The right of the people to information on matters of
public concern shall be recognized. (Phil Const., art.
III, § 7)
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. 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
(a) Freedom to choose and change one’s place
of abode
(b) 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
POLITICAL & INTERNATIONAL LAW
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 petitioners’ 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 One’s 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
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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
(a) LIBERTY OF ABODE: Lawful order of the
court and within the limits prescribed by law.
(b) 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.
(PHIL. CONST., art. III, § 6)
2. WATCH-LIST AND HOLD
DEPARTURE ORDERS
Watch-list Orders vs. Hold Departure Orders
1. Watch-list Orders issued against:
(c) Accused in criminal cases (irrespective of
nationality in RTC or below); OR
(d) Any person with pending case in DOJ
2. Hold Departure Orders issued against:
(e) Accused on criminal cases (irrespective of
nationality in courts below RTC);
(f) aliens (defendant, respondent, and witness
in pending civil or labor case, or any case
pending before administrative agency of the
government); and
(g) Any person motu proprio by the Secretary of
Justice or request of heads of departments,
Constitutional Commissions, Congress, or
Supreme Court
7. Both issued by the Secretary of Justice
(Department Circular No. 41)
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
POLITICAL & INTERNATIONAL LAW
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)
[The DOJ] does not have inherent power to issue a
hold-departure order, unlike the courts, or to restrict
the right to travel in [any way]. It is limited to the
powers expressly granted to it by law and may not
extend the same on its own accord or by any skewed
interpretation of its authority. Without a valid
legislation, the DOJ's actions will perpetually be met
with legal hurdles to the detriment of the due
administration of justice. (Genuino v. De Lima, G.R.
No. 197930, April 17, 2018)
H. RIGHT TO INFORMATION
The right of the people to information on matters of
public concern shall be recognized. (PHIL. CONST.,
art. III, § 7)
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)
Rights Guaranteed
(a) Right to information on matters of public
concern
(b) Right of access to official records and
documents
These are political rights available to citizens only.
They are "subject to such limitations as may be
provided by law." (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer)
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 State’s 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)
1. Scope and limitations
Matters of Public Concern
The people have the right to information on matters
of public concern, and access to official records shall
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be allowed to citizens as may be provided by law. It
is a self-executing provision.
The threshold question is, therefore, whether or not
the information sought is of public interest or public
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)
Examples of Matters of Public Concern
according to jurisprudence:
(a) Loanable funds of GSIS
(b) Civil service eligibility of sanitarian
employees
(c) Appointments made to public offices and the
utilization of public property
(d) National board examinations such as the
CPA Board Exams
(e) Names of nominees of partylists
(f) Negotiations leading to the consummation of
the transaction
(Valmonte v. Belmonte, G.R. No. 74930; Legazpi v.
CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R.
No. 140835; Antolin v. Domondon, G.R. No.165036;
Bantay Republic v. COMELEC, G.R. No. 177271;
Chavez v. PEA and Amari, G.R. No. 133250)
Examples of Matters of Public Information
according to Jurisprudence:
(a) Decision and voting slips of the MTRCB
board for the classification of movies
(b) Civil Service eligibility of sanitarians
(c) Party-list nominees through medium other
than the “Certified List”
(d) GSIS loans granted to former Batasang
Pambansa members
(e) Examination papers and answer keys in the
CPA Board Exam
(f) Definite
propositions
and
“official
recommendations” of agencies preceding
and even before the consummation of the
contract
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(Aquino-Sarmiento v. Morato, G.R. No. 92541;
Legaspi v. CSC, G.R. No. L-72119; Bantay Republic
Act or BA-RA 7941 v. COMELEC, G.R. No. 177271,;
Valmonte v. Belmonte Jr., G.R. No. 74930,; Antolin
v. Domondon, G.R. No.165036; Chavez v. Public
Estates Authority, G.R. No. 133250)
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)
Limitations
Restrictions to the right to information may be:
(g) Based on kinds of information
(a) Based on access
(b) Based on reasonable regulation for the
convenience of and for order in the office that
has custody of the documents
(Baldoza v. Dimaano, A.M. No. 1120-MJ, 1976)
(c) Based on availability.
Based on Kinds of Information
The constitutional guarantee of the people's
right to information do not cover: (BENT DISC)
(h) Banking transactions
(i) Executive Sessions
(j) National Security matters
(k) Trade secrets
(l) Diplomatic correspondence
(m) Intelligence information
(n) Supreme Court deliberations
(o) Closed Door cabinet meetings
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)
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 public’s right to
information attaches.
(DFA v. BCA International, G.R. No. 210858)
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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 Closeddoor Cabinet meeting.
(Sereno v. Committee on Trade and Related Matters
of NEDA, G.R. No. 175210, supra)
The chemical composition of special lubricants is a
trade secret. The ingredients constitute the very
fabric of the company’s 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)
Based on Access
(a) Opportunity to inspect and copy records at
his expense (Chavez v. PEA and Amari,
supra)
(b) Not the right to compel custodians of official
records to prepare lists, abstracts,
summaries and the like (Valmonte v.
Belmonte, supra)
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.
(Legaspi v. CSC, G.R. No. 72119, 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, May 29, 1987)
Although citizens are afforded the right to information
and, pursuant thereto, are entitled to access to official
records, the Constitution does not 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
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public concern. (Valmonte v. Belmonte Jr., G.R. No.
74930, Feb. 13, 1989)
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)
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 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)
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 approved” – 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
understanding that “historic confidentiality” 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
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future negotiations. (Akbayan v. Aquino, G.R. No.
170516)
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))
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:
(a) Predecisional – The communication must be
predecisional, i.e., antecedent to the
adoption of an agency policy; and
(b) 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
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 pre-deliberative
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)
I.
EMINENT DOMAIN
Private property shall not be taken for public use
without just compensation. (PHIL. CONST., art. III, §
9)
1. CONCEPT
Eminent domain is the authority and right of the
State, as sovereign, to take private property for public
use upon observance of due process of law and
payment of just compensation. The State's power of
eminent domain is limited by the constitutional
mandate that private property shall not be taken for
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public use without just compensation. (Republic v.
BPI, G.R. No. 203039, Sept. 11, 2013)
Examples of the uses to which the power of eminent
domain may be put
(a) PHIL. CONST., art. XII, § 18: public utilities
(b) PHIL. CONST., art. XIII, § 4: land reform
(c) PHIL. CONST., art. XVIII, § 22: idle or
abandoned agricultural lands
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Scope and limitations
In the hands of Congress the scope of the power is,
like the scope of legislative power itself, plenary.
(Barlin v. Ramirez, G.R. No. L-2832, November 24,
1906)
The exercise of such right is not unlimited, for two
mandatory requirements should underlie the
Government’s exercise of the power of eminent
domain, namely:
1. that it is for a particular public purpose; and
2. that just compensation be paid to the property
owner. (Mactan-Cebu International Airport
Authority v. Lozada, Sr., G.R. No. 176625, 2010)
Who May Exercise (CELPQ)
(a) Generally, Congress
(b) Delegated Executive, pursuant to legislation
enacted by Congress
(c) Local government units, pursuant to an
ordinance enacted by their respective
legislative bodies (under LGC)
(d) Public corporations, as may be delegated
by law
(e) 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)
Requisites For Valid Exercise: (TaPuCom)
1. There is a Taking of private property
2. Taking is for Public use
3. Payment of just Compensation
POLITICAL & INTERNATIONAL LAW
Necessity
(a) The necessity must be of public character.
(b) Political question when power is exercised by
Congress;
(c) Generally justiciable when exercised by a
delegate (except when delegation is grant of
authority for special purpose).
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 landowner’s
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’s 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 government’s
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 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
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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’s 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 court’s 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 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;
POLITICAL & INTERNATIONAL LAW
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
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 owner’s 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)
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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
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. L-48685, Sept. 30, 1987)
Public use means “public 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 use.” (Gohld Realty Co. v. Hartford, 104 A. 2d
365, 368-9 Conn., 1954; Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
POLITICAL & INTERNATIONAL LAW
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 low-salaried 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 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. L106528, 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 is the full and fair equivalent of the
property sought to be expropriated. The general rule
is that the just compensation to which the owner of
the condemned property is entitled to is the market
value. Market value is that sum of money which a
person desirous but not compelled to buy, and an
owner willing but not compelled to sell, would agree
on as a price to be paid by the buyer and received by
the seller. The general rule, however, is modified
where only a part of a certain property is
expropriated. In such a case, the owner is not
restricted to compensation for the portion actually
taken, he is also entitled to recover the consequential
damage, if any, to the remaining part of the property.
(Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
The word 'just' is used to modify the meaning of the
word 'compensation' to convey the idea that the
equivalent to be given for the property to be taken
shall be real, substantial, full and ample." (Republic
v. San Miguel Vda. De Ramos, G.R. No. 211576,
Feb. 19, 2020, citing Evergreen Manufacturing Corp.
v. Republic, G.R. Nos. 218628 & 218631, Sept. 6,
2017)
To stress, compensation, to be just, it must be of such
value as to fully rehabilitate the affected owner; it
must be sufficient to make the affected owner whole.
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(Republic v. San Miguel Vda. De Ramos, G.R. No.
211576, Feb. 19, 2020)
Inclusions in the Loss of the affected owner
The loss incurred by the affected owner necessarily
includes all incidental costs to facilitate the transfer of
the expropriated property to the expropriating
authority, including the CGT due on the forced sale
and other transfer taxes. These costs must be taken
into consideration in determining just compensation
in the same way these costs are factored into the
selling price of real property in an arm's length
transaction. Notably, the value of the expropriated
property, as declared by the affected owner, is one of
the factors listed under Section 5 of RA 8974.
(Republic v. San Miguel Vda. De Ramos, G.R. No.
211576, Feb. 19, 2020)
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)
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)
Judicial Function
The final determination of just compensation is
vested in courts. In the recent case of Alfonso v. Land
Bank, this Court ruled that courts may deviate from
the basic formula provided by administrative
agencies if it finds, in its discretion, that other factors
must be taken into account in the determination of
just compensation. Deviation, however, must be
grounded on a reasoned explanation based on the
evidence on record. Absent this, the deviation will be
considered as grave abuse of discretion. (Land Bank
of the Philippines v. Franco, G.R. No. 203242, March
12, 2019)
While it is true that "the determination of the amount
of just compensation is within the court's discretion, it
should not be done arbitrarily or capriciously. Rather,
it must always be based on all established rules,
upon correct legal principles and competent
evidence." The court cannot base its judgment on
mere speculations and surmises. (Republic v.
Spouses Salvador, G.R. No. 205428, June 7, 2017)
POLITICAL & INTERNATIONAL LAW
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).
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)
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)
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:
(a) Owner of the property
(b) 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
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POLITICAL & INTERNATIONAL LAW
impairment or decrease in value. (Republic v. BPI,
G.R. No. 203039, Sept. 11, 2013)
property or the filing of the complaint, whichever
came first. (ROC, Rule 67, § 4)
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, citing B.H.
Berkenkotter & Co. v. Court of Appeals, G.R. No.
89980, Dec. 14, 1992)
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)
Consequential damages are only awarded if as a
result of the expropriation, the remaining property of
the owner suffers from an impairment or decrease in
value. In this case, no evidence was submitted to
prove any impairment or decrease in value of the
subject property as a result of the expropriation. More
significantly, given that the payment of capital gains
tax on the transfer of the subject property has no
effect on the increase or decrease in value of the
remaining property, it can hardly be considered as
consequential damages that may be awarded to
respondents. (Republic v. Spouses Salvador, G.R.
No. 205428, June 7, 2017)
Likewise, the award of consequential damages is
improper because only a portion, and not the entire
area, of the respondents' property was expropriated.
It must be proven by sufficient evidence that the
remaining portion suffers from an impairment or
decrease in value. Only 218 sqm. out of the 380 sqm.
was expropriated. In order for there to be an award
of consequential damages, there must be evidence
supporting that the remaining 162 sqm. suffered from
any impairment or decrease in value. (Republic v.
San Miguel Vda. De Ramos, G.R. No. 211576, Feb.
19, 2020)
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
The Special Agrarian Court is “required to consider”
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.
The courts are not precluded from considering other
factors. A’s 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’s formula to its
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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)
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 non-payment
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
POLITICAL & INTERNATIONAL LAW
deposited with the court. (Landbank of the
Philippines v Manzano, GR 188243, January 24,
2018)
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,
“private property shall not be taken for public use
without just compensation.” The SC notes that for
almost 20 years, the DPWH had been enjoying the
use of X’s 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)
The respondents are not entitled to legal interest on
the amount of just compensation. The rationale for
imposing interest on just compensation is to
compensate the property owners for the income that
they would have made if they had been properly
compensated. In the instant case, however, the
respondents received the amount of P457,800.00
before petitioner Republic took possession of the
subject property. Otherwise stated, there was full and
prompt payment of just compensation at the time of
taking. (Republic v. San Miguel Vda. De Ramos, G.R.
No. 211576, Feb.19, 2020)
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3. EXPROPRIATION BY LOCAL
GOVERNMENT UNITS
Requisites Before an LGU Can Exercise the Power
of Eminent Domain (OPJO):
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:
(a) Those owned by the government
(b) Alienable lands of the public domain
(c) Unregistered, idle, or abandoned lands
(d) 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
(e) Privately owned lands (last in the priority)
(f) Other modes of acquisition must first be
exhausted.
POLITICAL & INTERNATIONAL 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)
JUDICIAL REVIEW
Matters That May be Reviewed by the Courts: (ANP)
(a) The Adequacy of the compensation
(b) The Necessity of the taking
(c) The “Public Use” character of the taking
If the expropriation is pursuant to a specific law
passed by Congress, the courts cannot question 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)
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)
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
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
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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. RIGHT TO ASSOCIATION
Scope
Persons, both in the public and private sectors, may
form unions, associations, and societies. The right is
recognized as belonging to the people whether
employed or unemployed, and whether employed in
POLITICAL & INTERNATIONAL LAW
the government or in the private sector. (Bernas, The
1987 Constitution: A Commentary, 2009)
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 of Liberty
The right to form associations shall not be impaired
except through a valid exercise of police power. It is
therefore an aspect of the general right of liberty.
It is also an aspect of the freedom of contract.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Aspect of Freedom of Expression and of Belief
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)
Hierarchy of Civil Liberties
The Constitution recognizes a hierarchy of values.
Hence, the degree of protection an association
enjoys depends on the position which the
association's objective or activity occupies in the
constitutional hierarchy of values. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011)
Not Absolutely Guaranteed to Top-level and
Middle Managers
The [Constitutional] 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 companydominated with the presence of managerial
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employees in Union membership (United Pepsi-Cola
Supervisory Union (UPSU) v. Laguesma, G.R. No.
122226, March 25, 1998)
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 competition.
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)
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". 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
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 state’s
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
candidate’s campaign for election does not violate
the right to form associations. [T]he 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)
POLITICAL & INTERNATIONAL LAW
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.)
A closed shop agreement is legal since it is a valid
form of union security. (Villar v. Inciong, G.R. No. L50283-84, April 20, 1983).
Organization of the Integrated Bar of the
Philippines Legally Unobjectionable
Compulsory membership in the Integrated Bar of the
Philippines does not violate the freedom of
association. [It] has become an imperative means to
raise the standards of the legal profession, improve
the administration of justice, and enable the Bar to
discharge its public responsibility fully and effectively.
(In Re: Edillion, AC-1928, December 19, 1980)
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, 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
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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)
The right to self-organization shall not be denied to
government employees. (Phil Const., art. IX-B, § 2,
par. 5)
K. NON-IMPAIRMENT OF CONTRACTS
No law impairing the obligation of contracts shall be
passed. (PHIL. CONST., art. 3, § 10)
The non-impairment clause is a limit on the exercise
of legislative power and not of judicial or quasijudicial 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)
Not absolute
Jurisprudence has established that a valid exercise
of police power is superior to the obligation of
contracts. (Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
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
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)
Non-Impairment Clause Prevails:
(a) Against the removal of tax exemptions,
where the consideration for the contract is
the tax exemption itself
(b) Regulation on loans
What Constitutes Impairment
(a) If it changes the terms and conditions of a
legal contract either as to the time or mode of
performance.
POLITICAL & INTERNATIONAL LAW
(b) If it imposes new conditions or dispenses
with those expressed
(c) 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)
L. 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)
The new Constitution has expanded the right so that
in addition to giving free access to courts it now
guarantees free access also to "quasi judicial bodies"
and to "adequate legal assistance" as well. (Bernas,
The 1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
Those protected include low paid employees,
domestic servants and laborers. (Cabangis v.
Almeda Lopez, G.R. No. 47685, September 20,
1940)
‘Pauper’ vs. ‘Indigent’
They need not be persons so poor that they must be
suppored at public expense. "It suffices that plaintiff
is indigent... And the difference between 'paupers'
and 'indigent' persons is that the latter are 'persons
who have no property or sources of income sufficient
for their support aside from their own labor though
self-supporting when able to work and in
employment.'" (Acar v. Rosal, G.R. No. L-21707,
March 18,1967)
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)
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Indigent Litigants Exempt From Payment of
Legal Fees
Indigent litigants
whose gross income and that of their immediate
family do not exceed an amount double the monthly
minimum wage of an employee; and
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
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 litigant’s affidavit. The
current tax declaration, if any, shall be attached to the
litigant’s 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)
POLITICAL & INTERNATIONAL LAW
the Court clarified that sheriff’s expenses are not
considered as legal fees. (In Re Letter of Chief Public
Attorney Acosta, AM No. 11-10-03-O, July 30, 2013)
M. RIGHTS 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)
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)
Sheriff’s Expenses
Sheriff’s 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 court-authorized 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’s Fees Payable to
the Government in Actions Brought Under R.A. 6938,
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)
1. Meaning of custodial investigation
Custodial investigation involves any questioning
initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived
of his freedom of action in any significant way.
It is only after the investigation ceases to be a
general inquiry into an unsolved crime and begins
to focus on a particular suspect, the suspect is
taken into custody, and the police carries out a
process of interrogations that lends itself to
eliciting incriminating statements that the rule
begins to operate. (People v. Marra, G.R. No.
108494, Sept. 20, 1994)
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The invocation of these rights applies during
custodial investigation. (People v. Chavez, G.R. No.
207950, Sept. 22, 2014)
Applies to Invitation, “Request for Appearance”
& Voluntary Surrender
Republic Act No. 7438 expanded the definition of
custodial investigation to “include the practice of
issuing an ‘invitation’ to a person who is investigated
in connection with an offense he is suspected to have
committed, without prejudice to the liability of the
‘inviting’ officer for any violation of law. 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)
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 “request 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
counsel. (Gamboa v. Judge Cruz, G.R. No. L-56291
June 27, 1988)
POLITICAL & INTERNATIONAL LAW
Investigations can be conducted by:
(a) Police authorities, including:
1. Municipal police
2. Philippine Constabulary
(b) NBI officers
(c) CAFGU members
(d) Barangay Captains (People v. Ochate, G.R.
No. 127154, July 30, 2002, Bernas, The
1987 Constitution of the Republic of the
Philippines, 2009)
Instances when the Miranda Rights do not
apply:
(a) 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)
(b) 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)
(c) 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)
(d) 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)
(e) 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)
(f) 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)
(g) 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.
L-49149, Oct. 23, 1981)
(h) 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
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(i)
(j)
(k)
(l)
having committed the crime. (People v.
Baloloy, G.R. No. 140740, April 12, 2002)
Person in a police line-up not entitled to
counsel. (Gamboa v. Judge Cruz, G.R. No.
L-56291 June 27, 1988)
Administrative proceedings. (Cudia v.
Superintendent of the PMA, G.R. No.
211362, Feb. 24, 2015)
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 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)
Signing of marked money. A person’s right
against self-incrimination was not violated for
his signing and possession of the marked
bills did not constitute a crime; (People v.
Linsangan, G.R. No. 88589, G.R. No. 88589
April 16, 199)
Summary of When Rights are Available
AVAILABLE
NOT AVAILABLE
1. After a person has 1. During a police
been taken into
line-up [Exception:
custody
Once there is a
2. When a person is
move among the
deprived of his
investigators
to
freedom of action
elicit admissions or
in any significant
confessions from
way
the suspect]
3. When a person is 2. During
issued
an
administrative
invitation for an
investigations
investigation
in 3. Confessions made
connection with an
by an accused at
offense
he
is
the
time
he
suspected to have
voluntarily
committed
surrendered to the
4. When a person
police or outside
voluntarily
the context of a
surrenders to the
formal investigation
police
4. Statements made
The investigation is
to a private person
being conducted by 5. Signing of arrest
the government with
reports
and
respect to a criminal
booking sheets
offense (police, DOJ, Signing
and
NBI)
possession of marked
money
When Rights End
The Criminal Process includes:
(a) Investigation prior to the filing of charges
POLITICAL & INTERNATIONAL LAW
(b) Preliminary examination and investigation
after charges are filed
(c) Period of trial
2. Rights of a person under custodial
investigation
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)
RIGHT TO REMAIN SILENT
If the individual is alone and indicates in any manner
that he does not wish to be interrogated, the police
may not question him. The mere fact that he may
have answered some questions or volunteered some
statements on his own does not deprive him of the
right to refrain from answering any further inquiries
until he has consulted with an attorney and thereafter
consents to be questioned. (Miranda v. Arizona, 384
U.S. 436, Jun. 13, 1966)
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 appellant’s 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)
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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)
Being independent refers to those who do not have
an adverse interest to that of the accused. (Bernas,
The 1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
Moreover, being independent does not mean 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.
(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:
(a) A special counsel
(b) Public or private prosecutor
(c) Counsel of the police
(d) A municipal attorney whose interest is
admittedly adverse to that of the accused
(e) Barangay captain
(f) 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)
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 counsel, he
must be provided with one. (PHIL. CONST., art. III, §
12[1])
POLITICAL & INTERNATIONAL LAW
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)
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)
RIGHT TO BE INFORMED OF HIS RIGHTS
The right to be informed of his rights is more than the
routine-reading out of the rights. It implies a
correlative obligation on the part of the police
investigator to explain, and contemplates an effective
communication that results in understanding what is
conveyed. Short of this, there is a denial of the right,
as it cannot be said that the person has been
informed of his right. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009)
Prior to any questioning, the person must be warned
that he has a right to remain silent, that any statement
he does make may be used as evidence against him,
and that he has a right to the presence of an attorney,
either retained or appointed. The defendant may
waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to
consult with an attorney before speaking, there can
be no questioning. (Miranda v Arizona, 384 U.S. 436,
Jun. 13, 1966)
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3. Requisites of a valid 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
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:
1. Parents
2. Elder brothers and sisters
3. Spouse
4. Municipal mayor
5. Municipal judge
6. District school supervisor
7. 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 abovementioned 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:
POLITICAL & INTERNATIONAL LAW
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)
A confession is not rendered involuntary merely
because defendant was told that he should tell the
truth or that it would be better for him to tell the
truth. (People v. Calvo, G.R. No. 91694, G.R. No.
91694 March 14, 1997)
Effect of Absence of a Valid Waiver: Confession
Inadmissible in Evidence
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)
Any inquiry a “bantay bayan” makes has the color of
a state-related function and objective insofar as the
entitlement of a suspect to his constitutional rights
provided for under Article III, Section 12 of the
Constitution, otherwise known as the Miranda Rights,
is concerned. (People v. Lauga, G.R. No. 186228,
Mar.15, 2010)
Rights under Section 12 can be lost by neglect.
Where the defense fails to raise objections to the
admissibility of evidence immediately, as required by
Section 36 of Rule 132 of the Rules of Court the
accused is deemed to have waived his right to object
to admissibility. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
4. Exclusionary Doctrine
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
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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 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 Juanito’s 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’s 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 Juanito’s extrajudicial
POLITICAL & INTERNATIONAL LAW
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)
Applicable to Accused Aliens
The fact that all accused are foreign nationals does
not preclude application of the "exclusionary rule"
because the constitutional guarantees embodied in
the Bill of Rights are given and extend to all persons,
both aliens and citizens.(People v. Wong Chien Ming,
G.R. Nos. 112801-11, Apr. 12, 1996)
Exclusionary Rule Not Applicable to the Violator
of the Right
The constitutional provision makes the confessions
and admissions inadmissible “against 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 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 co-accused 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:
(a) The conspiracy be first proved by evidence
other than the admission itself;
(b) The admission relates to the common object;
and
(c) It has been made while the declarant was
engaged in carrying out the conspiracy.
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(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)
Even after charges are filed, the police may still
attempt to extract extrajudicial confessions or
admissions outside judicial supervision. For this
reason, Section 12(1) still applies. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
N. RIGHTS OF THE ACCUSED
(a) 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)
(b) (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 [D-BIH-CIS-CPA]
(a) Criminal due process
(b) Bail
(c) Presumption of innocence
(d) Right to be heard
POLITICAL & INTERNATIONAL LAW
(e) Assistance of counsel
(f) Right to be informed of the nature and cause
of accusation
(g) Right to speedy, impartial, and public trial
(h) Right to confrontation
(i) Compulsory process
(j) Trials in absentia
1. 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. L5527, Dec. 22, 1910)
This presupposes that the penal law being applied
satisfies the substantive requirements of due
process. (Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
In criminal proceedings then, due process is satisfied
if the accused is "informed as to why he is proceeded
against and what charge he has to meet, with his
conviction being made to rest on evidence that is not
tainted with falsity after full opportunity for him to
rebut it and the sentence being imposed in
accordance with a valid law. It is assumed, of course,
that the court that rendered the decision is one of
competent jurisdiction." (Nunez v. Sandiganbayan,
G.R. Nos. L-50581-50617, Jan. 30, 1982)
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).
There must be allegation and proof that the judges
have been unduly influenced, not simply that they
might be, by the barrage of publicity because the
subliminal effects of publicity are basically
unbeknown and beyond knowing. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Right to Appeal
The right to appeal is not a natural right or a part of
due process; it is merely a statutory privilege, and
may be exercised only in the manner and in
accordance with the provisions of law. (Manila Mining
Corp. v. Amor, G.R. No. 182800, April 20, 2015)
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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)
2. 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
To honor the presumption of innocence until his guilt
is proven beyond reasonable doubt
To enable him to prepare his defense without being
subjected to punishment before conviction (Cortes v.
Catral, A.M. No. RTJ-97-1387, 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’s 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 persons”,
it must be available to one who is detained even
before formal charges are filed.
Exceptions:
(a) Persons charged with offenses punishable
by reclusion perpetua, life imprisonment and
death, when evidence of guilt is strong
POLITICAL & INTERNATIONAL LAW
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
“presumption great.”
“proof
evident”
or
(a) 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.
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 court’s 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:
(a) Bail as a Matter of Right (Sec 4),
(b) Bail as a Matter of Discretion (Sec 5),
(c) 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
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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)
Bail is a matter of right when the offense charged is
punishable by any penalty lower than reclusion
perpetua (Art. III, Sec 13, 1987 Constitution). Bail
becomes a matter of discretion if the offense charged
is punishable by death, reclusion perpetua, or life
imprisonment. Consequently, bail will be denied if the
evidence of guilt presented by the prosecution is
strong (Art. III, Sec. 7, 1987 Constitution). In this
case, X is charged with violating Sec. 5 Art. II of RA
9165, which is punishable by life imprisonment.
Hence, X’s bail becomes a matter of judicial
discretion if the evidence of his guilt is not strong.
When bail is discretionary, the trial court must
conduct bail hearings to determine whether the
evidence of guilt of the accused is strong. During the
bail hearings, the prosecution has the burden of
proof. The court’s grant or denial of the bail
application must contain a summary of the
prosecution’s evidence which should be the basis of
the judge in its conclusion in determining the weight
of the evidence of the accused's guilt. The
jurisprudential standard on providing a summary of
the prosecution’s evidence entails that the summary
of the evidence presented during the prior hearing is
formally recognized as having been presented and,
most importantly, considered. A summary is
necessarily a reasonable recital of any evidence
presented by the prosecution. An incomplete
enumeration or selective inclusion of pieces of
evidence cannot be considered a summary (People
v. Tanes y Belmonte, G.R. No. 240596, April 3, 2019)
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)
BUT SEE: The currently fragile state of Enrile’s
health presents another compelling justification for
his admission to bail.
POLITICAL & INTERNATIONAL LAW
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’s 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:
(a) He is arrested by virtue of a warrant of arrest
or by warrantless arrest.
(b) 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
Excessive bail shall not be required (PHIL. CONST.,
art. 3, § 13).
Factors to be considered in setting the amount
of bail: (F3P3 CAWN)
(k) Financial Ability of the accused to give bail
(l) Forfeiture of other bail
(m) The accused was a Fugitive from justice
when arrested
(n) Probability of the accused appearing at the
trial
(o) Penalty for the offense charged
(p) Pendency of other cases where the accused
is on bail
(q) Character and reputation of the accused
(r) Age and health of the accused
(s) Weight of the evidence against the accused
(t) Nature and circumstance of the offense
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(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)
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:
(a) If appellant escapes from prison or
confinement;
(b) If appellant jumps bail; or
(c) If appellant flees to another country during
the pendency of the appeal
(ROC, Rule 124, § 8; Rule 125, § 1)
POLITICAL & INTERNATIONAL LAW
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 evidence.” This
standard should be lower than proof beyond
reasonable doubt but higher than preponderance of
evidence.
The potential extraditee must prove by “clear and
convincing evidence” that :
(a) he is not a flight risk and will abide with all the
orders and processes of the extradition court,
and
(b) 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 Bail of Military Personnel
Tradition has recognized the non-existence of the
right to bail because of the disciplinary structure of
the military and because soldiers are allowed the
fiduciary right to bear arms and can therefore cause
great havoc. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
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
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POLITICAL & INTERNATIONAL LAW
purpose of ascertaining whether or not the evidence
of guilt is strong.
sentence. (Dumlao v. COMELEC, G.R. No. L-52245,
Jan. 22, 1980)
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.
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)
Parallel to the accused’s right to a hearing is the
prosecution’s 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)
Petitioner, which is a corporate entity, has no
personality to invoke the right to be presumed
innocent which right is available only to an individual
who is an accused in a criminal case (Feeder
International Line v. CA, G.R. 94262, May 31, 1991).
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
(par. 2, § 4 of BP Blg. 52) 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
Both the RTC and CA seriously overlooked the longstanding legal tenet that the starting point of every
criminal prosecution is that the accused has the
constitutional right to be presumed innocent. This
presumption of innocence is overturned only when
the prosecution has discharged its burden of proof in
criminal cases that it has proven the guilt of the
accused beyond reasonable doubt, with each and
every element of the crime charged in the information
proven to warrant a finding of guilt for that crime or
for any other crime necessarily included therein.
This burden of proof never shifts. The accused can
simply rely on his right to be presumed innocent. It is
thus immaterial, in this case or in any other cases
involving dangerous drugs, that the accused put forth
a weak defense.
The prosecution therefore, in cases involving
dangerous drugs, always has the burden of proving
compliance with RA 9165, which lays down the
procedure that police operatives must follow to
maintain the integrity of the confiscated drugs used
as evidence. In this case, there were far too many
unexplained absences in the procedure: the time and
place in the markings on the sachets, certificate of
inventory, pictures during the actual buy-bust
operation, inventory of the evidence and witnesses
present. The chain of custody was clearly broken.
The Court cannot presume that the accused
committed the crimes they have been charged with
as the State must fully establish that. Nor can the
Court shirk from their responsibility of protecting the
liberties of our citizenry just because the lawmen are
shielded by the presumption of the regularity of their
performance of duty. This by no means defeats the
much stronger presumption of innocence in favor of
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every person whose life, property and liberty comes
under the risk of forfeiture on the strength of a false
accusation of committing some crime. When catching
drug pushers, police officers must always be advised
to do so within the bounds of the law.
With the chain of custody having been compromised,
the X deserves acquittal as his right to the
presumption of innocence has not been overturned.
(People vs. Dagdag, G.R. No. 225503, Jun. 26,
2019)
The presumption of regularity in the performance of
duty cannot overcome the stronger presumption of
innocence in favor of the accused. The right of the
accused to be presumed innocent until proven guilty
is a constitutionally protected right; therefore, the
burden lies with the prosecution to prove the
accused’s guilt beyond reasonable doubt. In this
case, the prosecution failed to prove the corpus
delicti of the crimes of sale and possession of illegal
drugs due to unexplained breaches of procedure
committed by the buy-bust team in the seizure,
custody, and handling of the seized drugs. Given the
fact that a buy-bust operation is a planned operation,
it is questionable why the buy-bust team could not
have ensured the presence of the required witnesses
pursuant to Sec 21, Art II of RA 9165, or at the very
least marked, photographed, and inventoried the
seized items immediately after seizure or
confiscation. In other words, the prosecution was not
able to overcome the presumption of innocence of X.
(People v. Fulinara y Fabelania, G.R. No. 237975,
Jun. 19, 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
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
POLITICAL & INTERNATIONAL LAW
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)
4. Right to counsel
In criminal cases, the right of an accused person to
be assisted by a member of the bar is immutable.
Otherwise, there would be a grave denial of due
process. Thus, even if the judgment had become final
and executory, it may still be recalled, and the
accused afforded the opportunity to be heard by
himself and counsel.
The right to counsel is absolute and may be invoked
at all times. More so, in the case of an on-going
litigation, it is a right that must be exercised at every
step of the way, with the lawyer faithfully keeping his
client. (Telan v. CA, G.R. No. 95026 Oct. 4, 1991)
Duty of Court to Inform Accused of his Right to
Counsel
(a) Inform accused that he has the right to have
his own counsel before being arraigned;
(b) After giving such information, to ask accused
whether he desires the aid of counsel;
(c) If he so desires to procure the services of
counsel, the court must grant him reasonable
time to do so; and
(d) 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)
The right to counsel of an accused is guaranteed by
our Constitution, our laws and our Rules of Court.
During custodial investigation, arraignment, trial and
even on appeal, the accused is given the option to be
represented by a counsel of his choice. But when he
neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for
him. While the right to be represented by counsel is
absolute, the accused's option to hire one of his own
choice is limited. (People v. Serzo, G.R. No. 118435,
June 20, 1997)
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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)
Waiver
Accused persons are perfectly entitled to waive [their
right to counsel] and they may defend themselves in
person. The law expressly authorizes them to defend
themselves in person, without the assistance of
counsel. It is understood, of course, that they waive
their right to be assisted by counsel when they not
only do not appoint or request one, but voluntarily
submit to trial, and especially when they actually
exercise therein the right of defense by crossexamining the witnesses for the prosecution and by
introducing evidence in their own behalf. (US v. Go
Leng, G.R. No. 6707, February 8, 1912)
5. Right to be informed of the nature
and cause of accusation
Purpose
(a) To furnish the accused with a description of
the charge against him as will enable him to
make his defenses.
(b) To avail himself of his conviction or acquittal
against a further prosecution for the same
cause.
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.
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.
POLITICAL & INTERNATIONAL LAW
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 person’s 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 accused-respondent 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)
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)
Since the qualifying circumstance of “common law
spouse” 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 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)
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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)
Waiver
The right to assail the sufficiency of the information
or the admission of evidence may be waived by the
accused-appellant. An information which lacks
certain essential allegations may still sustain a
conviction when the accused fails to object to its
sufficiency during the trial, and the deficiency was
cured by competent evidence presented therein.
(People v. Palarca G.R. No. 146020, May 29, 2002)
6. Right to speedy, impartial and public
trial
a. Right to Speedy Trial
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)
The test of violation of the right to speedy trial has
always been to begin counting the delay from the
time the information is filed, not before the filing. The
delay in the filing of the information, which in the
instant case has not been without reasonable cause,
is therefore not to be reckoned with in determining
whether there has been a denial of the right to
speedy trial. (Martin v. General Fabian Ver, G.R. No.
L-62810 July 25, 1983)
Trial includes hearing, reception of evidence and
other processes, such as decision in the first
instance, appeal and final executory decision in the
last instance. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009)
Remedy if the Right to Speedy Trial was
violated:
(a) He can move for the dismissal of the case
(b) 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)
POLITICAL & INTERNATIONAL LAW
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. L21741, 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 judge.” It is an element of due process.
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)
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It is demandable only during trials. Thus, it cannot be
availed of during preliminary investigations.
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 “safeguard against any
attempt to employ our courts as instruments of
prosecution.” 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.
A recognized exception to the general rule that a trial
must be public is that the general public may be
excluded when the evidence to be presented in the
proceeding may be characterized as “offensive to
decency or public morals”.
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)
7. Right of confrontation
Purpose
1. To afford the accused an opportunity to crossexamine the witness
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:
(a) The admissibility of “dying declarations”
(b) Trial in absentia under Section 14(2)
(c) With respect to child testimony
(Bernas,
The
1987
Constitution:
Comprehensive Reviewer, 2011)
A
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 crossexamine 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)
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 cross-examine
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)
The principle requiring a testing of testimonial
statements by cross-examination has always been
understood
as
requiring,
not
necessarily
an actual cross-examination,
but
merely
an opportunity to exercise the right to cross-examine
if desired. (Fulgado v. CA, G.R. No. L-61570 Feb. 12,
1990)
8. Right to compulsory processes
Compulsory process to secure:
(a) The attendance of witnesses
(a) 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)
Subpoena and Subpoena Duces Tecum
Subpoena is a process directed to a person requiring
him or her to attend and to testify at the hearing or
the trial of an action, or at any investigation
conducted by competent authority, or for the taking
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of his or her deposition. It may also require him or
her to bring with him or her any books, documents, or
other things under his or her control, in which case it
is called a subpoena duces tecum. (Rule 21, §1,
Rules of Court)
The right to compulsory process
attendance of witnesses cannot
appeal if he made no effort during
himself of it. (Bernas, The 1987
Commentary, 2009)
of securing the
be invoked on
the trial to avail
Constitution: A
Preliminary investigation is not too early a stage to
stand guard against any significant erosion of the
constitutional right to due process. At this stage, the
accused should not be denied access to evidence
favorable to him since preliminary investigation can
result in arrest or deprivation of liberty. (Bernas, The
1987 Constitution: A Commentary, 2009)
9. Trial in absentia
Trial in absentia simply means that the accused
waives his right to meet the witnesses face to face.
The trial may proceed, despite the absence of the
accused. Its purpose is to prevent unnecessary
delays in trial caused by the failure of the accused to
attend provided that his absence is unjustifiable.
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009)
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)
Presence of the Accused Not Absolutely
Required
After repeated warnings, the trial judge ordered the
accused removed from court and told him that the
trial would continue in his absence until he promised
to conduct himself in a manner befitting a courtroom.
On appeal, the SC held that the behavior of the
accused had forfeited his right to be present.
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009 citing Illinois v. Allen)
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 he
may be. (Estrada v. People, G.R. No. 162371,
Aug. 25, 2005)
WHEN PRESENCE OF THE ACCUSED IS A
DUTY
(a) Arraignment and Plea
(b) During Trial, for identification
(c) 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
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right but not his duty or obligation to the court.
(Carredo v. People, G.R. No. 77542, March 19, 1990)
O. RIGHT TO SPEEDY TRIAL AND
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
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)
In this case, since the preliminary investigation was
terminated beyond the 10-day period provided in the
Revised Rules of Criminal Procedure, the burden of
proof thus shifted towards the prosecution to prove
that the delay was not unreasonable. The period of
delay in this case — 5 years — was extraordinarily
long that there could conceivably be no procedural
rule that would justify said delay. (Javier v.
Sandiganbayan, G.R. No. 237997, Jun. 10, 2020)
The Rules of Procedure of the OMB do not prescribe
a period to conclude a PI. Here, PI shall be conducted
in accordance with Sec. 3, Rule 112 of the ROC. Also
based on Rule 112, Sec. 4, the investigating officers
of the OMB has 10 days within which to determine
the presence of probable cause. The complaint was
filed on April 27, 2016; X was directed to file a
counter-affidavit on October 13, 2016. After that, the
case remained stagnant for nearly two years–that is,
POLITICAL & INTERNATIONAL LAW
until the February 22, 2018 resolution. No
clarificatory hearing was set by the OMB upon X’s
submission of a counter-affidavit; neither was X
required to send additional documents. Not having
acted in accordance with its own periods, the burden
of proof falls to the prosecution to justify the delay.
The prosecution may establish that the issues are so
complex and the evidence so voluminous as to
render delay inevitable; however, the transaction in
this case involves only one contract, with two pages,
and the records are not voluminous such that it would
require additional time for the prosecutor to review.
X did not waive his right to speedy disposition of
cases either. With or without the prodding of the
accused, the Rules of Procedure of the OMB and the
Rules of Court fixed the period for termination of a PI;
the OMB has the positive duty to observe the
specified periods under the rules. Mere inaction on
the part of the accused, without more, does not
qualify as an intelligent waive of this constitutional
right. Since the prosecution failed to provide amply
justification for the delay in the PI, it can be concluded
that X’s right to speedy disposition of cases was
violated. (Perez v. Sandiganbayan, G.R. No. 245862,
November 3, 2020)
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 TRIAL
Sec. 14
Only applies to the
trial phase of criminal
cases
SPEEDY
DISPOSITION
Sec. 16
Covers all phases of
judicial, quasi-judicial
and
administrative
proceedings
In resolving questions involving the right to speedy
disposition of cases, the Court is guided by the ruling
in Cagang v. Sandiganbayan.
(a) The right to speedy disposition of cases is
different from the right to speedy trial. The
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latter may only be invoked in criminal
prosecutions, while the former may be
invoked before any tribunal.
(b) A case is deemed initiated upon the filing of
a formal complaint prior to a preliminary
investigation. Delays beyond the reasonable
periods for preliminary investigation set by
the Ombudsman will be taken against the
prosecution.
(c) Courts must determine which party carries
the burden of proof. If the right is invoked
within the given time periods, the defense
has the burden of proof that the right was
justifiably invoked. It must prove whether the
case is motivated by malice or clearly only
politically motivated and is attended by utter
lack of evidence, and second, that the
defense did not contribute to the delay. If the
delay occurs beyond the given time period,
the prosecution has the burden of justifying
the delay. It must prove that it followed the
prescribed procedure in the conduct of
preliminary investigation and in the
prosecution of the case, that the complexity
of the issues and the volume of evidence
made the delay inevitable, and that no
prejudice was suffered by the accused as a
result of the delay.
(a) Determination of the length of delay is never
mechanical. Courts must consider the entire
context of the case, from the amount of
evidence to be weighed to the simplicity or
complexity of the issues raised.
An exception to this rule is if there is an allegation
that the prosecution of the case was solely motivated
by malice. Malicious intent may be gauged from the
behavior of the prosecution throughout the
proceedings. If malicious prosecution is properly
alleged and substantially proven, the case would
automatically be dismissed without need of further
analysis of the delay. Another exception would be the
waiver of the accused to the right to speedy
disposition of cases or the right to speedy trial. If it
can be proven that the accused acquiesced to the
delay, the constitutional right can no longer be
invoked. In all cases of dismissals due to inordinate
delay, the causes of the delays must be properly laid
out and discussed by the relevant court.
(b) he right to speedy disposition of cases or the
right to speedy trial must be timely raised.
The respondent or the accused must file the
appropriate motion upon the lapse of the
statutory or procedural periods. Otherwise,
POLITICAL & INTERNATIONAL LAW
they are deemed to have waived their right to
speedy disposition of cases. (Perez v.
Sandiganbayan, G.R. No. 245862, Nov. 3,
2020)
Application
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 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 SELFINCRIMINATION
No person shall be compelled to be a witness against
himself. (PHIL. CONST., art. 3, § 17)
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
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POLITICAL & INTERNATIONAL LAW
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.
when they held that the extraction of petitioner’s urine
for purposes of drug testing was merely a mechanical
act. (Dela Cruz v. People, G.R. No. 200748, July 23,
2014)
Thus, an accused has:
(a) The right to forego testimony, and
(b) The right to remain silent, unless he chooses
to take the witness stand. (Chavez v. CA,
G.R. No. L-29169, Aug. 19, 1968)
EXCLUSIONS
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. Extent of the right
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
The essence of the right against self-incrimination is
testimonial compulsion, that is, the giving of evidence
against himself through a testimonial act. 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:
(a) A woman charged with adultery may be
compelled to submit to physical examination
to determine her pregnancy.
(b) An accused may be compelled to submit to
physical examination (e.g. ultraviolet exam,
paraffin test) 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. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
(c) To expel morphine from the defendant’s
mouth.
(d) To have the outline of the defendant’s foot
traced to determine its identity with bloody
footprints.
(e) 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)
(f) To be compelled to wear a pair of pants or
garments for size (Bernas, The 1987
Constitution of the Republic of the
Philippines, 2009)
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 selfincrimination. These include:
(a) Photographs, hair, and other bodily
substances.
(b) Examination of a woman’s genitalia, in an
action for annulment filed by her husband, to
verify his claim that she was impotent, her
orifice being too small for his penis.
(c) DNA testing and its results. (Agustin v. CA,
G.R. No. 162571, June 15, 2005)
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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
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
(a) The right is extended to respondents in
administrative investigations that partake of
the nature of or are analogous to criminal
proceedings.
(b) The right extends to all proceedings
sanctioned by law.
(c) The right extends to all cases in which
punishment is sought to be visited upon a
witness, whether a party or not.
(d) The
right
extends
to
legislative
investigations.
(e) The right extends to administrative
proceedings which possess a criminal or
penal
aspect,
i.e.
medical
board
investigation.
(f) 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)
Forfeiture proceedings
Proceedings for forfeiture of proper are deemed
criminal or penal, and, hence, the exemption of
defendants in criminal case from the obligation to be
witnesses against themselves are applicable thereto
(Cabal v. Kapunan, G.R. No. L-19052 Dec. 29,
1962).
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 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
POLITICAL & INTERNATIONAL LAW
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
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 testify.” 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 accusedpetitioner had to take the stand. He was thus
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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)
POLITICAL & INTERNATIONAL LAW
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 –
(a) To be exempt from being a witness against
himself, and
(b) To testify as witness in his own behalf; but if
he offers himself as a witness he may be
cross-examined as any other witness;
however, his 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 coaccused, 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,
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answer any question. (Rosete v. Lim, G.R. No.
136051, June 8, 2006)
2. Immunity statutes
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 individual’s constitutional right against selfincrimination (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
individual’s
constitutional right against self-incrimination. (Quarto
v. Ombudsman, G.R. No. 169042, Oct. 5, 2011)
Kinds of Immunity Statutes
(a) Use Immunity – prohibits use of witness'
compelled testimony and its fruits in any
manner in connection with the criminal
prosecution of the witness.
(b) 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)
POLITICAL & INTERNATIONAL LAW
Examples of Immunity Statutes
(a) PD No. 749 (Granting Immunity from
Prosecution to Givers of Bribes and Other
Gifts and to their Accomplices in Bribery and
Other Graft Cases against Public Officers,
July 18, 1975);
(b) PD No. 1731 (Providing for Rewards and
Incentives to Government Witnesses and
Informants and other Purposes, October 8,
1980);
(c) PD No. 1732 (Providing Immunity from
Criminal Prosecution to Government
Witnesses and for other Purposes, October
8, 1980);
(d) PD No. 1886 (creating the Agrava FactFinding Board, October 22, 1983);
(e) 1987 Constitution, Article XIII, Section 18(8)
(empowering the Commission on Human
Rights to grant immunity);
(f) RA No. 6646 (An Act Introducing Additional
Reforms in the Electoral System and for
other Purposes, January 5, 1988);
(g) Executive Order No. 14, August 18, 1986;
(h) RA No. 6770 (Ombudsman Act of 1989,
November 17, 1989);
(i) RA No. 6981 (Witness Protection, Security
and Benefit Act, April 24, 1991);
(j) RA No. 7916 (The Special Economic Zone
Act of 1995, July 25, 1994); RA No. 9165
(Comprehensive Dangerous Drugs Act of
2002, June 7, 2002);
(k) RA No. 9416 (An Act Declaring as Unlawful
Any Form of Cheating in Civil Service
Examinations, etc., March 25, 2007); and
(l) RA No. 9485 (Anti-Red Tape Act of 2007,
June 2, 2007) (Quarto v. Hon. Ombudsman,
G.R. No. 169042, Oct. 5, 2011)
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 prosecution’s preliminary assessment of
the accused-witness’ 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
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administration of justice, largely exercises its
prerogative based on the prosecutor’s 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 Ombudsman’s
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 Court’s 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
Ombudsman’s 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)
Q. 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 offense.”
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 act.”
Only
conviction
or
acquittal – not dismissal
without
the
express
consent of the accused –
will bar a subsequent
prosecution.
1. Requisites and limitations
1. A first jeopardy attached prior to the second;
2. The first jeopardy has been validly terminated;
and
3. 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
[ICAPA]
1. After
a
valid
Indictment;
2. Before
a
Competent court;
3. After
Arraignment;
4. When a valid Plea
has been entered;
and
5. When the accused
has
been
Acquitted
or
convicted, or the
case dismissed or
otherwise
terminated without
his
express
consent.
(Cerezo v. People,
G.R. No. 185230,
June 1, 2011)
WHEN JEOPARDY
DOES NOT ATTACH
1. If information does
not charge any
offense. (People v.
Judge Consulta,
G.R. No. L-41251,
March 31, 1976)
2. If, upon pleading
guilty, the accused
presents evidence
of complete selfdefense, and the
court
thereafter
acquits
him
without entering a
new plea of not
guilty for accused.
There is no valid
plea here. (People
v. Balisacan, G.R.
No. L-26376, Aug.
31, 1966)
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. L-61652, June
22, 1984)
4. If a complaint filed
for
preliminary
investigation
is
dismissed.
(People v. Daco,
G.R. No. L-17210,
Nov. 30, 1962)
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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 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’s
evidence and issued the assailed September 5, 2006
order. Under this circumstance, the RTC’s
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, accusedrespondents 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)
POLITICAL & INTERNATIONAL LAW
Dismissal before arraignment
Reinvestigation against the companions of the
accused would not subject them to double jeopardy.
The case against them was dismissed before they
were arraigned. (People v. Jugueta, G.R. No.
202124, April 5, 2016)
b. The first jeopardy has been
validly terminated
(a) Acquittal;
(b) Conviction; or
Dismissal without the express consent of the
accused [ViD-ReMs]
(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)
Under Sec. 9, Rule 113 ( now Sec. 9, Rule 117) of
the Rules of Court, the defense of double jeopardy is
available to the accused only where he was either
convicted or acquitted or the case against him was
dismissed or otherwise terminated without his
consent. (People v. Bulaong, G.R. No. L-19344)
When there was no denial of the right to speedy trial
and the dismissal was upon the instance of the
accused, reinstatement of the case did not violate the
right against double jeopardy. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011)
Verbal orders
There is no showing that this verbal order of
dismissal was ever reduced to writing and duly
signed by him. Thus, it did not yet attain the effect of
a judgment of acquittal, so that it was still within the
powers of the judge to set it aside and enter another
order, now in writing and duly signed by him,
reinstating the case. (Abay Sr. v. G.R. No. L-66132
June 27, 1988)
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Termination with consent, waiver of right
General Rule: Equivalent to a waiver of the defense
of double jeopardy.
(a) Motion to dismiss for lack of jurisdiction
(b) Motion to dismiss on the ground that the facts
alleged in the information did not constitute
the offense. This amounts to estoppel.
(c) Pleading not guilty to the second charge,
instead of moving to quash
Consenting to a provisional dismissal (Bernas, The
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
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.
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. A second jeopardy is for the same
offense as in the first
Same Offense [IAN-2]
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
POLITICAL & INTERNATIONAL LAW
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)
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)
Different Provisions, different crimes
Where two different laws (or articles of the same
code) define two crimes, prior jeopardy as to one
of them is no obstacle to a prosecution of the other,
although both offenses arise from the same facts,
if each crime involves some important act which is
not an essential element of the other. (Loney v.
People, G.R. No. 152644, February 10, 2006)
If one provision requires proof of an additional fact or
element which the other does not, an acquittal or
conviction or a dismissal of the information under one
does not bar prosecution under the other. ( People v.
Tiozon, G.R. No. 89823, G.R. No. 89823, June 19,
1991)
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.
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
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prosecution’s incompetence, it
considered a supervening event.
would
not
be
Ordinances and National Statute Punishing the
Same Act
The constitutional protection, against double
jeopardy is available although the prior offense
charged under an ordinance be different from the
offense charged subsequently under a national
statute such as the Revised Penal Code, provided
that both offenses spring from the same act or set of
acts. (People v. Relova G.R. No. L-45129 March 6,
1987)
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 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)
Continuous Crimes
Petitioner’s 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
MTCC-Tagbilaran, 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 petitioner’s 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)
d.
Limitations
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)
Appeals
Any party may appeal from a judgment or final order,
unless the accused will be placed in double jeopardy.
(ROC, Rule 122, § 1)
General Rule: The prosecution may not appeal an
acquittal, and an acquittal is immediately final. (ROC,
Rule 120, § 7)
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)
Exception to the Exception:
(a) 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)
(b) The dismissal does not amount to an
acquittal or dismissal on the merits. (People
v. Salico, G.R. No. L-1567, Oct. 13, 1949)
(c) The question to be passed upon is purely
legal. (People v. Desalisa, L-15516, Dec.17,
1966)
(d) The dismissal violates the right of due
process of the prosecution. (People v.
Sandiganbayan et. al., G.R. No. 164577, July
5, 2010)
(e) The dismissal or acquittal was made with
grave abuse of discretion. (People v.
Sandiganbayan et. al., G.R. No. 164577, July
5, 2010)
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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 accused’s appeal of his conviction
(a) Waiver of right to double jeopardy
(b) 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)
e.
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
POLITICAL & INTERNATIONAL LAW
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’s
scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers
the use of “electronic, mechanical, digital, optical,
magnetic or any other means.” 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.
(Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18,
2014)
R. RIGHT AGAINST INVOLUNTARY
SERVITUDE
(a) No person shall be detained solely by reason
of his political beliefs and aspirations.
(b) 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)
A private person who contracts obligations of
rendering services in a civil capacity to the Army as
an employee in its offices cannot, by law, either civil
or military, be compelled to fulfill them by
imprisonment and deportation from his place of
residence. (In Re A.O. Brooks, G.R. No. L-507,
November 5, 1901).
Slavery
The status or condition of a person over whom any or
all of the powers attaching to the right of ownership
are charged. (R.A. No. 10364, Sec. 3(e))
Debt Bondage
The pledging by the debtor of his or her personal
services or labor or those of a person under his or her
control as security or payment for a debt, when the
length and nature of services is not clearly defined or
when the value of the services as reasonably
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assessed is not applied toward the liquidation of the
debt. (R.A. 10364, Sec. 3(i))
Code, it need only be disproportionate to the
circumstances of the offense and of the offender.
Political Prisoners
A state cannot hold “political prisoners”. (Bernas, The
1987 Constitution: A Comprehensive Reviewer, 152,
2011)
It has been held that to come under the constitutional
ban on excessive and inhuman punishment, the
punishment must be ‘flagrantly and plainly
oppressive,’ ‘wholly disproportionate to the nature of
the offense as to shock the moral sense of the
community.’ (People v. Estoista, G.R. No. L-5793,
Aug. 27, 1953)
Exceptions [P2EPOM]:
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)
S. RIGHT AGAINST EXCESSIVE FINES,
AND CRUEL AND INHUMAN
PUNISHMENTS
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.
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)
“Cruel and unusual,” as these words are found in the
Constitution, do not have the same meaning as
“clearly excessive” 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 “cruel and unusual” or
“excessive” 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 “clearly
excessive” under Article 5 of the Revised Penal
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,
disproportionate to the offense.
the
fine
is
Guides for Determining Whether a Punishment
is “Cruel and Unusual”
(a) It must not be so severe as to be degrading
to the dignity of human beings.
(b) It must not be applied arbitrarily.
(c) It must not be unacceptable to contemporary
society.
(d) 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
punishment.“ 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 AntiHazing Law seeks to punish the conspiracy of silence
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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:
(a) It inflicts traumatic pain not just on the convict
but also on his family, even if the penalty is
not carried out.
(b) There was no convincing evidence that it is
effective as a deterrent of serious crime.
(c) Penology favors reformative rather than
vindictive penalties.
(d) Life is too precious a gift to be placed at the
discretion of a human judge.
(e) 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 crimes.” (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
(a) Guilty person is 70 years old and above;
(b) Guilty person is below 18 years old; and
(c) Where upon appeal or automatic review of
the case by the SC, the required majority
vote is not obtained for the imposition of the
POLITICAL & INTERNATIONAL LAW
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)
T. 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)
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U. EX POST FACTO LAWS AND BILLS OF
ATTAINDER
No ex post facto law or bill of attainder shall be
enacted. (PHIL. CONST., art. 3, § 22)
1. EX POST FACTO 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)
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)
Illustrations
A law shortening the prescriptive period for a crime is
ex post facto. (People v. Sandiganbayan, G.R. No.
101724, July 3, 1992)
Analogous to an ex post facto law and covered by the
same prohibition would be an official interpretation of
a penal law given by the Department of Justice which
is subsequently changed to the prejudice of one who
had relied on the earlier interpretation. (Co v. Court
of Appeals, G.R. No. 100776, October 28,1993)
Where the Court had denied Ombudsman jurisdiction
over cases before RTC but later reversed its decision
while the case was already before the
Sandiganbayan, there is no ex post facto law
because no new law was passed. The Courts
interpretation retroacts to the date the [Ombudsman
Act] took effect. (Castro v. Judge Deloria, G.R. No.
163586, January 27, 2009)
POLITICAL & INTERNATIONAL LAW
Application
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
(a) When it prescribes a criminal penalty
imposable in a criminal trial.
(b) 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)
Instances when the prohibition on ex-post facto
laws is inapplicable
Extradition treaty - As the Court of Appeals correctly
concluded, the Treaty is neither a piece of criminal
legislation nor a criminal 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)
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)
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)
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)
Preventive suspension pendente lite - Section 13 of
Republic Act 3019, as among the crimes subjecting
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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 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)
Nature of a bill of attainder as a legislative
adjudication of guilt
Its essence is the substitution of a legislative for a
judicial determination of guilt.
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
POLITICAL & INTERNATIONAL LAW
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)
“Frequently a bill of attainder was doubly
objectionable because of its ex post facto features.
This is the historic explanation for uniting the two
mischiefs in one clause... Therefore, if a statute is a
bill of attainder, it is also an ex post facto law. But if it
is not an ex post facto law, the reasons that establish
that it is not are persuasive that it cannot be a bill of
attainder”. (People v. Ferrer, G.R. No. L-32613-14,
Dec. 27, 1972)
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 victim’s 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)
V. WRITS OF HABEAS CORPUS,
KALIKASAN, HABEAS DATA, AND
AMPARO
1. 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,
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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)
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 “to inquire
into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person
POLITICAL & INTERNATIONAL LAW
therefrom if such restraint is illegal. Any 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:
(a) Supreme Court or any of its members;
(b) Court of Appeals, or any of its members in
instances authorized by law; or
(c) 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 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
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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:
**Actual invasion or actual rebellion; and
1. 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
EXTENDS 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 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.
DOES NOT
EXTEND TO
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)
2. WRIT OF KALIKASAN
(Rule 7, A.M. No. 09-6-8-SC)
Definition (Sec. 1)
A remedy available to a natural or juridical person,
entity authorized by law, people’s organization, nongovernmental organization, or any public interest
group accredited by or registered with any
government agency, on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by an
unlawful act or omission of a public official or
employee, or private individual or entity, involving
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
two or more cities or provinces.
Requisites for the issuance of the Writ:
1. There is an actual or threatened violation of the
constitutional right to a balanced 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; and
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 or
provinces. (Segovia v. The Climate Change
Commission, G.R. No. 211010, March 7, 2017)
Who may file
(a) Natural Persons
(b) Juridical Persons
(c) Entity organized by law
(d) NGO
(e) Any public interest group accredited by or
(f) registered with any government agency
(Sec. 1)
Where to file
The petition shall be filed with the Supreme Court or
with any of the stations of the Court of Appeals. (Sec.
3)
When Is The Writ Issued
Within three (3) days from the date of filing of
the petition, if the petition is sufficient in form
and substance (Sec. 5)
What are the reliefs granted
Directing the respondent to:
(a) Permanently cease and desist from committing
acts or neglecting the performance of a duty in
violation of environmental laws
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(b) Permanently cease and desist from committing
acts or neglecting the performance of a duty in
violation of environmental laws
(c) Protect, preserve, rehabilitate or restore the
environment;
(d) Monitor strict compliance with the decision and
orders of the court
(e) Make periodic reports on the execution of the final
judgment
(f) Other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or
restoration of the environment.
3. WRIT OF HABEAS DATA
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 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
respondent’s reservations on the real reasons for her
transfer - a legitimate concern respecting the terms
and conditions of one’s 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)
(a) Any person whose right to Privacy is threatened
(b) In case of extrajudicial disappearance or killings:


Spouse, Children and Parents
Any ascendant, descendant or collateral
Relative of the aggrieved party within the
fourth civil degree of consanguinity or
POLITICAL & INTERNATIONAL LAW
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).
4. 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:
(a) 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)
(b) Merely seeking protection of property rights, like
land in possession of the petitioners. (Castillo v.
Cruz, G.R. No. 182165, Nov. 25, 2009)
(c) 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)
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
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2.
indirect contempt from this Court when
governmental efforts are less than what the
individual situations require.
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 victim’s 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 “the 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 omission.” (Razon v. Tagitis, G.R.
No. 182498, Dec. 3, 2009)
Indispensable Element of Gov’t 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)
POLITICAL & INTERNATIONAL LAW
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)
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
organization’s 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
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 ————-
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VIII. CITIZENSHIP
TOPIC OUTLINE UNDER THE SYLLABUS
A. WHO ARE FILIPINO CITIZENS
B. MODES OF ACQUIRING CITIZENSHIP
C. LOSS AND RE-ACQUISITION OF
PHILIPPINE CITIZENSHIP
D. DUAL CITIZENSHIP AND ALLEGIANCE
POLITICAL & INTERNATIONAL LAW
CITIZENSHIP
What is Citizenship
Citizenship is a legal device denoting political
affiliation. (David v. Senate Electoral Tribunal, G.R.
No. 221538, September 20, 2016.)
It is one's "personal and … permanent membership
in a political community. … The core of citizenship is
the capacity to enjoy political rights, that is, the right
to participate in government principally through the
right to vote, the right to hold public office[,] and the
right to petition the government for redress of
grievance.” (Go v. Republic of the Philippines, G.R.
202809, July 2, 2014, citing Bernas, The 1987
Constitution of the Republic of the Philippines: A
Commentary, 2009)
A. WHO ARE FILIPINO CITIZENS
The following are citizens of the Philippines:
(d) Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution.
(e) Those whose fathers or mothers are citizens
of the Philippines.
(f) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
(g) Those who are naturalized in accordance
with law. (PHIL CONST., art. IV, § 1)
Citizens at the time of adoption of the 1987
Constitution
Philippine citizens at the time of the adoption of the
1987 Constitution were those who were citizens
under the 1973 Constitution. In turn, citizens of the
Philippines at the time of the adoption of the 1973
Constitution are those who were citizens under the
1935 Constitution. Thus, what determines citizenship
is the Constitution in effect at the time of a person’s
birth.
Children of Filipino fathers or mothers
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. This is how the
principle of jus sanguinis is applied in the 1987
Constitution. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Filipina Mother
The citizenship of an illegitimate child of a Filipina
mother is Filipino. This is true whether the child be
born under the 1935 or under the
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1973 or 1987 Constitution. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011)
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
Those born under the 1935 Constitution whose
mothers were Philippine citizens (at the time at least
of their marriage to an alien father) may elect
Philippine citizenship.
The Court interprets Section 1, Par. 3 of Article IV of
the Philippine Constitution as applying not only to
those who elect Philippine citizenship after February
2, 1987 but also to those who, having been born of
Filipino mothers, elected citizenship before that date.
The provision in Paragraph 3 was intended to correct
an unfair position which discriminates against Filipino
women. (Co v. House of Representatives Electoral
Tribunal, G.R. Nos. 92191-92 & 92202-03, July 30,
1991.)
(h) 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.
(i) Under the 1973 Constitution - Children born
of Filipino mothers were already considered
Filipinos.
(j) Therefore, the provision on election of
citizenship under the 1987 Constitution only
applies to those persons who were born
under the 1935 Constitution.
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)
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
POLITICAL & INTERNATIONAL LAW
26, 2010, Bernas, The 1987 Philippine Constitution:
A Comprehensive Reviewer, 2011)
Kinds of citizenship
(k) Natural born citizens
(l) Naturalized citizens
Who are Natural Born Citizens
(a) 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)
“Having to perform an act” means that the act must
be personally done by the citizen.
The process is certainly not analogous to
naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one
born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.
(Poe-Llamanzares v. COMELEC, G.R. No. 221697,
March 8, 2016)
(b) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority
(Phil Const., art. IV, § 2)
(c) 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: A
Commentary, 2009)
Natural Born Citizens & Public Office
Under the Constitution, the following must be naturalborn citizens:
1. President (PHIL CONST., art. VII, § 2)
2. Vice-President (PHIL CONST., art. VII, § 3)
3. Members of Congress (PHIL CONST., art. VI § 3 &
6)
4. Justices of SC and lower collegiate courts (PHIL
CONST., art. VIII, § 7(1))
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5. Ombudsman and his deputies (PHIL CONST., art.
XI, § 8)
6. Members of Constitutional Commissions:
 CSC (PHIL CONST., art. IX-B, §1(1))
 COMELEC (PHIL CONST., art. IX-C, §1)
 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, naturalborn citizens. While the 1935 Constitution’s
enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude
foundlings either.
No such intent or language in the Constitution
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.
Domestic laws on adoption also support the principle
that foundlings are Filipinos.
Foundlings are likewise citizens under international
law:
 A foundling is presumed to have the
"nationality of the country of birth”. (Article
14, 1930 Hague Convention on Certain
Questions Relating to the Conflict of
Nationality Laws)

A foundling is presumed born of citizens of
the country where he is found. (Article 2,
1961 UN Convention on the Reduction of
Statelessness.)
(Poe-Llamanzares
v.
COMELEC, G.R. Nos. 221697 & 221698700, March 8, 2016)
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)
The words of our most fundamental law cannot be
read so as to callously exclude all foundlings from
public service. 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
natural-born citizen. (David v. SET, G.R. No. 221538,
Sept. 20, 2016)
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.
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)
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B. 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
(Bernas, The 1987 Constitution of the Republic
of the Philippines: A Commentary, 2009)
Two ways of acquiring citizenship in the
Philippines
Basic Philippine law follows the rule of jus sanguinis
and provides for naturalization. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011)
Naturalization is a mode for both acquisition
(governed by CA 473) and reacquisition (governed
by CA 63) of Philippine citizenship.
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
(a) Administrative Naturalization (R.A. No. 9139)
(b) Judicial Naturalization (C.A. No. 473)
(c) 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
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 native-born 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;
POLITICAL & INTERNATIONAL LAW
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
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
Certificate of Naturalization
of
(a) If it is shown that said naturalization
certificate was obtained fraudulently or
illegally.
(b) 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
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facie evidence of his intention of taking up his
permanent residence in the same.
(c) If the petition was made on an invalid
declaration of intention.
(d) 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.
(e) 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
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;
4. 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;
5. The applicant must have a known trade,
business, profession or lawful occupation, from
which he/she derives income sufficient for his/her
POLITICAL & INTERNATIONAL LAW
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;
6. The applicant must be able to read, write and
speak Filipino or any of the dialects of the
Philippines; and
7. 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
(a) Those opposed to organized government or
affiliated with any association of group of
persons who uphold and teach doctrines
opposing all organized governments;
(b) Those defending or teaching the necessity of
or propriety of violence, personal assault or
assassination
for
the
success
or
predominance of their ideas;
(c) Polygamists or believers in the practice of
polygamy;
(d) Those convicted of crimes involving moral
turpitude;
(e) Those suffering from mental alienation or
incurable contagious diseases;
(f) Those who, during the period of their
residence in the Philippines, have not
mingled socially with Filipinos, or who have
not evinced a sincere desire to learn and
embrace the customs, traditions and ideals
of the Filipinos;
(g) Citizens or subjects with whom the
Philippines is at war, during the period of
such war; and
(h) 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
(a) The legitimate minor children of the
naturalized father become Filipinos as well.
(b) 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)
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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. L11499, 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:
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;
The finding on citizenship is affirmed by the Supreme
Court. (Go v. Bureau of Immigration and Deportation,
G.R. no. 191810, Jun. 22, 2015)
C. LOSS AND REACQUISITION OF
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)
a. Losing Citizenship
(a) Naturalization in a foreign country (C.A. 63, §
1(1))
(a) Express renunciation or expatriation (CA 63,
§1(2))
(b) Taking an oath of allegiance to another
country upon reaching the age of majority;
POLITICAL & INTERNATIONAL LAW
(c) Marriage by a Filipino woman to an alien, if
by the laws of her husband’s country, she
becomes a citizen thereof.
(d) 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’s consent;
(e) Denaturalization;
(f) Being found by final judgment to be a
deserter of the AFP
b. Reacquiring Citizenship
Citizenship may be Reacquired by:
(a) Repatriation
(b) Naturalization
(c) 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 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)
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Who May be Repatriated:
(a) Filipino women who have lost their Philippine
citizenship by marriage to aliens
(b) 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)
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)
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.
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 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)
(a) Person Opposed to organized government or
affiliated with any association or group of
persons who uphold and teach doctrines
opposing organized government;
(b) Person defending or teaching the necessity
or propriety of Violence, personal assault, or
association for the predominance of their
ideas;
(c) Person convicted of crimes involving Moral
turpitude; or
(d) 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.
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
person’s repatriation. (Poe-Llamanzares v. Comelec
et al., G.R. Nos. 221697 & 221698-700, March 8,
2016)
D. 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
Allows a person who acquires foreign citizenship to
simultaneously enjoy the rights he previously held as
a Filipino citizen. This is completely voluntary, and
results in the application of different laws of two or
more states to a dual citizen.
Dual Allegiance
a. Aliens who are naturalized as Filipinos but
remain loyal to their country of origin;
b. Public officers who, while serving the
government, seek citizenship in another
country.
Dual Citizenship vs. Dual Allegiance
Dual citizenship arises when, as a result of the
concurrent application of the different laws of two or
more states, a person is simultaneously considered
a national by the said states, as is the case of
respondent.
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Dual allegiance, on the other hand, refers to the
situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states.
While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition. (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999)
Prohibition against Dual Allegiance
The constitution prohibits dual allegiance not dual
citizenship. Dual allegiance arising from e.g., mixed
marriages or birth in foreign soil was seen as more
insidious than dual citizenship.
POLITICAL & INTERNATIONAL LAW
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 ————-
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.
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)
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
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IX. LAW ON PUBLIC OFFICERS
TOPIC OUTLINE UNDER THE SYLLABUS:
A. GENERAL PRINCIPLES
B. KINDS OF APPOINTMENT
C. DISABILITIES AND INHIBITIONS OF
PUBLIC OFFICERS
D. POWERS AND DUTIES OF PUBLIC
POLITICAL & INTERNATIONAL LAW
A. GENERAL PRINCIPLES
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.
(Agpalo, Administrative Law, Law on Public Officers
and Election Law, 247-48, 2005)
OFFICERS
E. DE FACTO VS DE JURE OFFICERS
F. THE CIVIL SERVICE
G. ACCOUNTABILITY OF PUBLIC OFFICERS
1.
2.
3.
4.
DISCIPLINE
a. Grounds
b. Jurisdiction
c. Dismissal, Preventive
Suspension,
Reinstatement, and Back
Salaries
d. Condonation Doctrine
IMPEACHMENT
THE OMBUDSMAN
a. Functions
b. Judicial review in
administrative
proceedings
c. Judicial review in penal
proceedings
THE SANDIGANBAYAN
Law on Public Officers
This branch of law deals with public office, its
creation, modification and dissolution, 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 their official relations.
Public Office Refers to Either Two Concepts:
1. Functional unit of government – It is within
the framework of government organization,
and refers to any major functional unit of a
department or bureau including regional
office.
2. Position - Held by an individual whose
functions are defined by law or regulation
(Agpalo, Administrative Law, Law on Public Officers
and Election Law, 247, 2005)
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)
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)
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Essential characteristics of “public office:”
1. Authority conferred by law;
2. Fixed tenure of office;
3. Power to exercise some of the sovereign
functions of government;
4. Key element of such test is that “officer is
carrying out a sovereign function;”
5. Essential elements to establish public
position as “public office” are:
a. Position must be created by
Constitution, legislature, or through
authority conferred by legislature;
b. Portion of sovereign power of
government must be delegated to
position;
c. Duties and powers must be defined,
directly or impliedly, by legislature or
through legislative authority;
d. Duties
must
be
performed
independently without control of
superior power other than law; and
e. Position
must
have
some
permanency.
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.
Temporary performance of public function is
sufficient to constitute a person a public official.
(RPC, art. 203)
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. 147026-27, 2009).
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. (RA 7080)
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.
(1987 Administrative Code)
Includes elective and appointive officials and
employees, permanent or temporary, whether in the
classified or unclassified or exempt service (noncareer or career), receiving compensation, even
nominal, from the government. (Anti-Graft and
Corrupt Practices Act)
Includes elective and appointive officials and
employees, permanent or temporary, whether in the
career or noncareer service, including military and
police personnel, whether or not they receive
compensation, regardless of amount. (Code of
Conduct and Ethical Standards of Public Officers)
Employee
A person in the service of government or any of its
agencies,
divisions,
subdivisions,
or
instrumentalities. (1987 Administrative Code)
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.
Classifications of Public Officer
1. Constitutional or statutory
2. National or local
3. Legislative, executive or judicial
4. Lucrative or honorary
5. Discretionary or ministerial
6. Appointive or elective
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7.
8.
Civil or military
De jure or de facto
B. KINDS OF APPOINTMENT
Appointment
The act of designation by the executive officer, board,
or body to whom that power has been delegated, of
the individual who is to exercise the powers and
functions of a given office. It is to be distinguished
from the selection or designation by a popular vote.
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.
Election
The act of selecting or choosing a person by popular
vote to occupy the office.
Commission
It is the written evidence of appointment.
Appointment v. Designation
APPOINTMENT
DESIGNATION
AS TO NATURE
Executive, Irrevocable
Legislative, revocable
AS TO EFFECT
Selection
of
an Mere imposition by law of
individual who is to additional duties on an
exercise the functions incumbent official
of a given office
Results in security of Does not result in
tenure when completed security of tenure
Can be subject of a Cannot be subject of a
protest before the CSC protest before the CSC
AS TO EFFECTIVITY
connoted permanency
implies temporariness
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 be 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,
GR No 69137, August 5, 1986)
POLITICAL & INTERNATIONAL LAW
Requisites for a Valid appointment
1. Position is vacant
2. The appointing authority must be vested
with the power to appoint at the time
appointment is made;
3. The appointee should possess all the
qualifications including appropriate civil
service eligibility and non of the
disqualifications;
4. The appointee accepts the appointment by
taking the oath and entering into discharge
of duty (Garces v. CA, GR No. 114795, July
17, 1996)
Steps in a regular appointment (NCIAO)
1. Nomination by President
2. Confirmation
by
Commission
on
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
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.
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.
Steps in an ad-interim appointment (AIAC)
1. Appointment by the appointing authority
2. Issuance of the commission
3. Acceptance by the appointee
4. Confirmation by the CA
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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. Confirmation Required
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.
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. 104-22-SC,
2010)
MODES AND KINDS OF APPOINTMENT
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 appointees 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.
Acceptance may be express when it is done verbally
or in writing. Acceptance is implied when, without
formal acceptance, the appointee enters upon the
exercise of the duties and functions of an office.
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.
o The appointee may be replaced
sooner if a qualified civil service
eligible becomes available.
o 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.
o Temporary appointment given to a
non-civil service eligible is without a
definite tenure and is dependent
upon the pleasure of the appointing
power.
o Acquisition of civil service eligibility
during tenure of a temporary
appointee does not necessarily
translate
to
permanent
appointment. A new appointment
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●
3.
4.
which is permanent is necessary.
(Province of Camarines Sur v. CA,
G.R. No. 104639, 1995)
o 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
Regular Appointment - made by the President
while Congress is in session and becomes
effective after the nomination is confirmed by the
Commission on Appointments.
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 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
POLITICAL & INTERNATIONAL LAW
the end of his term, whether or not it is confirmed
by the Commission.
Officers that the President Shall Appoint: (EMA2CJC2AR-NL2)
1. Heads of Executive departments
2. Ambassadors
3. Other public Ministers and consuls
4. Officers of the Armed forces from the rank of
colonel or naval captain
5. 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
6. Officers whose appointments are Not
otherwise provided for by law
7. Officers whom the president may be
authorized by Law to appoint
8. Officers Lower in rank whose appointments
the Congress, by law, vested in the
President
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
(Sections 13, 14 and 15 of Art. VII)
The constitutional limitations refer to appointments in
the executive and not the judicial branch of
government. (De Castro v. JBC, G.R. 191002, 2010)
Revocability of Appointment
General Rule: Appointment to an office once made
and completed, is not subject to reconsideration or
revocation because revocation after a complete
appointment is tantamount to removal.
Exception: Where the appointment is temporary.
(Ong v. Office of the President, GR No 184219,
January 30, 2012)
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Nepotism
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.
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 Commission
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 supervision over him, are prohibited.
As used in the Civil Service Law, the term
“relative” and members of the family referred to
those within the 3rd degree of consanguinity or
affinity.
Exceptions: (CTAP)
1. Persons employed in Confidential capacity
2. Teachers
3. Physicians
4. Members of AFP
The restriction shall not be applicable to any 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.
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 documents,
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.
174730-37, 2011)
POLITICAL & INTERNATIONAL LAW
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.
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 profile
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)
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)
ELIGIBILITY AND QUALIFICATION
REQUIREMENTS
Eligibility
state of being legally fit to be chosen.
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
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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.
Qualification
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. Act of entering into performance of public
office
Two Meanings of Qualifications
WHEN REFERRING TO
WHEN USED IN THE
THE ACT OF ENTERING
SENSE OF
INTO THE
ENDOWMENTS,
PERFORMANCE OF THE
QUALITIES OR
FUNCTIONS OF A
ATTRIBUTES
PUBLIC OFFICE
The individual must
Failure of an officer to
possess the
perform an act required by
qualifications at the
law could affect the
time of appointment or officer’s title to the office.
election and
continuously for as
Note:
long as the official
● Prolonged failure or
relationship continues.
refusal to take the
office could result in
Note:
forfeiture of office.
● Property
● An oath of office taken
qualifications may
before one who has no
not be imposed
authority to administer
for the exercise of
oath is no oath at all.
the right to run for
● Once proclaimed and
public office.
duly sworn in office, a
● Loss of any of the
public officer is entitled
qualifications
to assume office and to
during
exercise the functions
incumbency will
thereof. The pendency
be a ground for
of an election protest is
termination.
not sufficient basis to
enjoin him from
assuming office.
POLITICAL & INTERNATIONAL LAW
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. 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’s 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 Legislature’s Power to Prescribe
Qualifications:
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.
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
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POLITICAL & INTERNATIONAL LAW
position is prohibited by constitutional or statutory
provision although the second position is not
incompatible with the first.
In the absence of constitutional inhibition, Congress
has the same right to provide disqualifications that it
has to provide qualifications for office.
Those Prescribed by the Constitution
POSITION
QUALIFICATIONS
1. A natural-born citizen of the
Philippines
2. A registered voter
3. Able to read and write
President and
4. At least 40 years of age on the
Vice President
day of the election; and
5. A resident of the Philippines
for at least 10 years
immediately preceding such
election.
1. A natural-born citizen of the
Philippines
2. On the day of the election, is
at least 35 years of age
3. Able to read and write
Senators
4. A registered voter; and
5. A resident of the Philippines
for not less than 2 years
immediately preceding the
day of the election
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
Members of the
4. Except
the
party-list
House of
representatives, a registered
Representative
voter in the district in which
s
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.
1. A natural-born citizen of the
Philippines
2. A Member of the SC must be
at least 40 years of age; and
Members of the
3. Must have been for 15 years
SC and lower
or more, a judge of a lower
collegiate court
court or engaged in the
practice of law in the
Philippines.
4. A member of the judiciary
must be a person of proven
Chairman and
the
Commissioners
of the CSC
Chairman and
the
Commissioners
of the
COMELEC
Chairman and
the
Commissioners
of the COA
competence, integrity, probity
and independence. (1987
Consti, art. VIII, sec. 7(3))
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.
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.
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.
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Chairman and
Members of the
Commission on
Human Rights
1. Natural-born citizens of the
Philippines; and
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.
C. 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. Mental or physical Incapacity
2. Misconduct or crime
3. Removal or suspension from office
4. Impeachment
5. Previous tenure of office
6. Being an Elective official
7. Consecutive terms
8. Having been a Candidate for any elective
position
9. Holding more than One office
10. Relationship with the appointing power
11. Office Newly created or the emoluments of
which have been increased
12. Grounds under the Local Government
Code
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. (Sec 7, Art IX-B)
Exception to holding multiple offices:
1. Those provided for under the Constitution, such
as:
a. President as head of NEDA (Art XII, Sec.
9)
b. VP may be appointed as Cabinet
Member (Art VII, Sec. 3)
c. VP as Acting President (Art VII, Sec. 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 functions
of the officials’ offices. (Funa v. Agra, G.R.
191644, 2013)
General Disqualifications under the Constitution:
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, §VI)
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 under the Constitution:
1. The President, Vice-president, the Members of
the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in the
Constitution, hold any other office or
employment during their tenure. (Phil. Const. art.
VIII, §13)
2. 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)
3. The Members of the Supreme Court and of other
courts established by law shall not be designated
to any agency performing quasi-judicial or
administrative functions. (Phil. Const. art. VIII, §
12)
4. 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)
5. The Ombudsman and his Deputies shall not be
qualified to run for any office in the election
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6.
7.
8.
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
government-owned or controlled corporations
(Phil. Const.art. VII, § 13, Art. VII)
PD 807, Sec. 49 prohibits the appointment of a
Senator or Congressman to any office which may
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 quasi-judicial 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
6.
7.
disqualifications and prohibitions as provided for
members of the Constitutional Commissions.
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.
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.
Spoils Systems and Political Lame Ducks
SPOILS SYSTEM
POLITICAL LAME DUCKS
No elective official
shall be eligible for
appointment
or
designation in any
capacity to any public
office
or
position
during his tenure.
(1987 Const, art. IX-B,
sec. 7)
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.
(1987 Const, Art. IX-B, Sec.
6)
The
disqualification
subsists only during
the tenure in office of
the elective official. He
may be 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. (1987 Const,
art. IX-B, sec. 1(1))
Except
for
losing
candidates in barangay
elections no candidate who
lost in any election shall,
within 1 year after such
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election, be appointed to
any
office
in
the
Government
or
any
government-owned
or
controlled corporations or in
a any of their subsidiaries.”
(Local Government Code,
Sec. 94)
Power of Congress to Prescribe Disqualifications
In the absence of constitutional inhibition, Congress
has the same right to provide disqualifications that it
has to provide qualifications for office.
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
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.
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, GR 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.
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 quasijudicial 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 teach
in schools, except during session hours,
Sanggunian members who are also members of
the Bar shall not:
. Appear as counsel before any court
in any civil case wherein a local
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3.
government unit or any office, agency or
instrumentality of the government is the
adverse party;
a. 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;
b. collect any fee for their appearance
in administrative proceeding involving
the local government until of which he is
an official; and
c. use property and personnel of the
Government
except
when
the
Sanggunian member concerned is
defending
the
interest
of
the
government
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.
D. POWERS AND DUTIES OF PUBLIC
OFFICERS
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. 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.
Ministerial Powers v. Discretionary Powers
Ministerial Powers
Discretionary Powers
When it is absolute, When it requires the
certain, and imperative exercise of reason and
involving
merely discretion in determining
execution of a specific how or whether the act
duty arising from fixed shall be done or the
and designated facts.
course
pursued.
Note: The law exacting
its discharge prescribes Note: The officer is
and defines the time, expected to discharge
mode, and occasion of its the duty directly and not
performance with such
through the intervening
mind of another.
POLITICAL & INTERNATIONAL LAW
certainty that nothing is
left for judgment or
discretion.
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.
Ministerial v. Discretionary Powers:
Constitutional Duties of Public Officers
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;
498. Submit a declaration under oath of
assets, liabilities, and net worth upon assumption
of officer and thereafter as may be required;
499. Owe the State and Constitution
allegiance at all times.
Duties of Public officers, In General
1. Duty to obey the law
2. Duty to accept and continue in office;
3. Duty to accept burden of office;
4. 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
Territorial Limitation and Duration of Authority
The authority of all public officers is limited and
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.
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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)
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)
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 hold-over
(Nueno v Angeles, GR no 89, February 1, 1946)
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)
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.
General Rule: Mandamus will not lie for the
performance of a discretionary duty
Exceptions:
a. When the discretion granted is only as to the
manner of its exercise and not the discretion to
b.
act or not to act, the court may require a general
action
Grave abuse of discretion
As to the obligation of the officer to perform his
powers and duties
1. Mandatory — where the provisions of a statute
relating to public officers are intended for the
protection of the citizen and to prevent a sacrifice
of his property, and by a disregard of such
provision, his rights might be and generally
would be injuriously affected
2. Permissive — statutes define the time and mode
in which the public officers will discharge their
duties, and those which are obviously designed
merely to secure order, uniformity, system and
dispatch in public business.
As to the relationship of the officer to his subordinates
1. Power of Control — power of an officer to
manage, direct or govern, including the power to
alter or modify or set aside what a subordinate
had done in the performance of his duties and to
substitute his judgment for that of the latter
2. Power of Supervision — it is the power of mere
oversight over an inferior body and does not
include any restraining authority over such body.
The officer merely sees to it that rules are
followed but he himself does not lay down such
rules, nor does he have the discretion to modify
or replace them.
RIGHTS OF PUBLIC OFFICERS
1. Right to Wages;
2. Right to Preference in Promotion subject to
the discretion of the appointing authority;
3. Right to vacation and sick leave;
4. Right to Maternity Leave;
5. Right to Retirement Pay;
6. Other rights:
a. Right to reimbursement for expenses
incurred in due performance of duty
(but
this
does
not
include
transportation allowance for those
using government vehicles);
b. Right to be indemnified against
liabilities they may incur in bona fide
discharge of duties;
c. Right to longevity pay.
d. Right to self-organization
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Prohibition on Double Compensation
The purpose of the prohibition against additional or
double compensation for public officials: to manifest
a commitment to the fundamental principle that a
public office is a public trust. It is expected of a
government official or employee that he keeps
uppermost in mind the demands of public welfare. He
is there to render public service. He is entitled to be
rewarded for the performance of the functions
entrusted to him, but that should not be the overriding
consideration. The temptation to further personal
ends, public employment as a means for the
acquisition of wealth, is to be resisted. There must be
awareness on the part of the officer or employee of
the government that he will receive only such
compensation as may be fixed by law. With such a
realization, he is expected not to avail himself of
devious or circuitous means to increase the
remuneration attached to his position. (Veloso v.
COA, G.R. 193677, 2011)
Claims for double retirement benefits fall under the
prohibition against the receipt of double
compensation when they are based on exactly the
same services and on the same creditable period.
(Ocampo v. Commission on Audit, G.R 188716,
2013)
PROMOTION
The movement from one position to another with
increase in duties and responsibilities as authorized
by law and usually accompanied by an increase in
pay.
DEMOTION
There is demotion when an employee is appointed to
a position resulting in diminution of duties,
responsibilities, status or rank, which may or may not
involve a reduction in salary. Where an employee is
appointed to a position with the same duties and
responsibilities but with rank and salary higher than
those enjoyed in his previous position, there is no
demotion and the appointment is valid. (Bautista v.
CSC, G.R. 185215, 2010)
Demotion to a lower rate of compensation is
equivalent to removal if no cause is shown for it when
it is not part of any disciplinary action. In this case,
demotion is not proper.
NEXT-IN-RANK RULE
The person next in rank shall be given preference in
promotion when the position immediately above his
is vacated.
The concept of next-in-rank does not import any
mandatory or peremptory requirement that the
POLITICAL & INTERNATIONAL LAW
person next in rank must be appointed to the
vacancy.
The appointing authority has the discretion to fill the
vacancy under the next-in-rank rule or by any other
method authorized by law (e.g. by transfer).
HOLD-OVER
When a public officer’s term has expired or his
services are terminated, but he should continue
holding his office until his successor is appointed or
chosen and qualifies.
RETIREMENT
Retirement has been defined as a withdrawal from
office, public station, business, occupation, or public
duty. It involves a bilateral act of the parties, a
voluntary agreement between the employer and the
employee whereby the latter, after reaching a certain
age, agrees and/or consents to sever his
employment with the former. Retirement plans create
a contractual obligation in which the promise to pay
benefits is made in consideration of the continued
faithful service of the employee for the requisite
period. Before a right to retirement benefits vests in
an employee, he must have met the stated conditions
of eligibility with respect to the nature of employment,
age, and length of service. This is a condition
precedent to his acquisition of rights thereunder.
(Reyes v. CA, G.R. 167002, 2011)
If retirement benefits have been given to an entity
disqualified to receive the same, there is an
obligation to return the amounts under the principle
of solutio indebiti (GSIS v. COA, G.R. No. 138381,
2004).
E. DISTINGUISH: DE FACTO AND DE
JURE OFFICERS
De Facto Officer
One whose acts, though not those of a lawful officer,
the law, upon principles of policy and justice, will hold
valid so far as they involve the interests of the public
and third persons where the duties of the office were
exercised:
1. without a known appointment or election, but
under
circumstance
of
reputation
or
acquiescence;
2. with a known and valid appointment or election
but the office failed to conform to a legal
requirement;
3. With a known appointment or election but void
because of:
a. ineligibility of the officer; or
b. want of authority of the appointing or electing
authority;
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c.
d.
irregularity in appointment or election not
known to the public; or
With known appointment or election
pursuant to an unconstitutional law before
adjudged to be such
Requisites
1. Valid and legitimate office;
2. Actual physical possession of the office in good
faith;
3. Color of right or general acquiescence by the
public
Legal Effects of Acts of De Facto Officers
So far as the rights of a third person are concerned,
the lawful acts of a de facto officer if done within the
scope and by the apparent authority of the office, is
considered valid and binding as if he were the officer
legally elected and qualified for the office and in full
possession thereof.
Entitlement to Salary
General Rule: Rightful incumbent may recover from
a de facto officer the salary received by the latter
during the time of wrongful tenure even though the
latter is in good faith and under color of title.
Exception: When there is no de jure officer, the de
facto officer is entitled to salaries for the period when
he actually discharged functions. (Civil Liberties
Union v. Executive Secretary, GR No 83896,
February 22, 1991)
How De Facto Officer Ousted
A de facto officer may be ousted in a direct
proceeding where the title will be the principal issue,
not in a collateral action or in an action to which he is
not a party.
The proper remedy is to institute quo warranto
proceeding under Rule 66 of the ROC. The title to a
public office may not be contested except directly, by
quo warranto.
De Jure Officer
One who has the lawful right to the office in all
respects, but who has either been ousted from it, or
who has never actually taken possession of it. When
the officer de jure is also the officer de facto, the
lawful title and possession are united.
Usurper
One who takes possession of the office and
undertakes to act officially without any color of right
or authority, either actual or apparent. Note that it is
the color of authority, not the color of title, that
distinguishes an officer de facto from a usurper. It
POLITICAL & INTERNATIONAL LAW
means that the authority to hold office is by some
election or appointment, however irregular or
informal.
De Jure v De Facto Officer
A de jure officer has a legal right to the office but he
may not be in possession of the office; while a de
facto officer possesses the office because of the
color of authority.
De Facto v. Usurper
DE FACTO
OFFICER
USURPER
AS TO MODE OF ACQUIRING POSSESSION OF
OFFICE
Officer under any of
the 4 circumstances
mentioned.
One who takes possession
of an office and undertakes
to act officially without any
authority, either actual or
apparent.
AS TO COLOR OF AUTHORITY
Has color of authority
Has neither lawful title nor
color of right or title to office
AS TO VALIDITY OF ACTS
Acts are valid as to
the public until such
time as his title to the
office is adjudged
insufficient
Acts are absolutely void and
can be impeached in any
proceeding at any time,
unless
and
until
he
continues to act for so long a
time as to afford a
presumption of his right to
act
AS TO ENTITLEMENT OF SALARIES
May be entitled to
compensation
for
services rendered
Not entitled to compensation
F. CIVIL SERVICE
1.
Scope
Civil Service Commission (CSC)
central personnel agency of the government.
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Composition
● Chairman and 2 commissioners
● Appointed by the President with consent of
the Commission on Appointments for a term
of 7 years, without reappointment.
Coverage of the Civil Service
All branches, subdivisions, instrumentalities, and
agencies of the government including GOCC with
original charters.
Authority of the Civil Service Commission
1. Limited to reviewing appointments on the basis
of the Civil Service Law.
2. Only allowed to check whether the appointee
possesses the appropriate civil eligibility or the
required qualification. CSC has no discretionary
power.
Limitations to the power to appoint
1. The power does not include authority to make
the appointment itself or to direct the appointing
authority to change the employment status of an
employee.
2. No authority to revoke appointment simply
because it believed that another person is better
qualified.
3. No power to pass upon the qualifications or
tenure of the appointing officer or declare the
latter’s position vacant for an act that produced
forfeiture of his office.
4. Cannot change the tenure of office granted to
appointee such as where the appointing
authority indicated permanent appointment but
CSC approved as temporary such appointment.
2.
Appointments to Civil Service
Classifications
1. Career
Characteristics:
1. Entrance based on merit and fitness to be
determined by competitive examinations or
based on highly technical qualifications;
2. Opportunity for advancement to higher career
positions; and
3. Security of tenure
Levels of Positions
1st level: clerical, trades, crafts and custodial
service positions involving non-professional/subprofessional in a non-supervisory or supervisory
POLITICAL & INTERNATIONAL LAW
capacity requiring less than 4 years of collegiate
studies.
2nd level: professional, technical and scientific
positions in a non-supervisory/supervisory
capacity requiring at least 4 years of college work
up to division chief level.
3rd level: career executive service positions
The position of department manager is not a third
level position which is appointed by the President.
For said reason, a PEZA department manager only
needs the approval of the PEZA Director-General to
validate his appointment or re-appointment. As he
need not possess a CESO or CSEE eligibility, the
CSC has no valid and legal basis in invalidating his
appointment or re-appointment. (Agyao v. CSC, G.R.
182591, 2011)
2. Non-career
Characteristics:
1. Entrance on bases other than those of the usual
test of merit and fitness;
2. Tenure which is limited to:
a. Period specified by law;
b. Coterminous with that of appointing
authority;
c. Subject to appointing authority’s pleasure;
d. Limited to the duration of a particular project.
They, however, enjoy constitutional guarantee that
they cannot be removed except for cause and after
due hearing.
Oppositions to Appointment
Any person who feels aggrieved by the appointment
of a person may file a protest against the
appointment.
Causes for protesting appointment
1. Appointee not qualified;
2. Appointee is not the next-in-rank;
3. In the case of appointment by transfer,
reinstatement, or by original appointment, that
the protestant is not satisfied with the written
special reason(s) given by the appointing
authority.
Meaning of “For Cause”
For reasons which the law and sound public policy
recognized as sufficient warrant for approval, that is,
legal cause, and not merely causes which appointing
power in the exercise of discretion may deem
sufficient. The cause must relate to and affect the
administration of the office, and must be restricted to
something substantial in nature.
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Revocation or Recall of Appointment
General Rule: Appointment once made
irrevocable and not subject to reconsideration.
is
Grounds when CSC has power to recall, on its
own initiative, an appointment initially approved:
1. Non-compliance with the procedures/criteria
provided in the agency’s merit promotional plan
2. Failure to pass through the agency’s
selection/promotion board
3. Violation of the existing collective agreement
between management and employees relative to
promotion
4. Violation of other existing civil service law, rules
and regulations
3.
Personnel Actions
Personnel action
Any action denoting movement or progress of
personnel in the civil service. (EO 292, Rule V, § 1,
cited in City Mayor Debulgado v. CSC, G.R. 111471,
1994).
Includes the following: (PART R2D2)
1. Appointment through certification
2. Promotion
3. Transfer
4. Reinstatement
5. Reemployment
6. Detail
7. Reassignment
8. Demotion
It is the CSC which is empowered to look into the
validity of creation of positions and appointments of
personnel appointed by the Mayor whose
appointments were confirmed by the CSC. There
being a valid appointment confirmed by CSC and the
concerned personnel having rendered services,
payment of their salaries is proper and legal.
(Tolentino v. Loyola, G.R. 153809, 2011)
Valid personnel actions
1. Extending temporary appointment, however, this
must not amount to removal.
2. Transfer or re-assignment but this must not
involve a reduction in rank, status, and salary,
without break in service.
3. Detail must be made in the interest of public
service, absent showing of manifest abuse or
improper motive or purpose.
Personnel actions amounting to removal
1. Shortening term is removal
2. Control does not extend to removal
3. Demotion
4. Denial of optional retirement and refusal to
reinstate
While a temporary transfer or assignment of
personnel is permissible even without the employee’s
prior consent, it cannot be done when the transfer is
a preliminary step toward his removal, or is a scheme
to lure him away from his permanent position, or
designed to indirectly terminate his service, or force
his resignation. Such a transfer would in effect
circumvent the provision which safeguards the tenure
of office of those who are in the Civil Service. (Garcia
v. Lejano, G.R. L-12220, 1960).
Waiver of security of tenure
Acceptance
of
temporary
appointment
or
assignment, without reservations is a waiver of
security of tenure.
G. ACCOUNTABILITY OF PUBLIC
OFFICERS
1. DISCIPLINE
a. GROUNDS
General Rule: A public officer is not liable for injuries
sustained by another due to official acts done within
the scope of his authority.
Exceptions: (BM-NID)
1. Bad faith;
2. Malice;
3. Negligence;
4. Death or Injury to persons or damage to property
Administrative liability is separate from and
independent of criminal liability.
It is a fundamental principle in the law on public
officers that administrative liability is separate from
and independent of criminal liability. A simple act or
omission can give rise to criminal, civil or
administrative liability, each independently of the
others. This is known as the threefold liability rule.
Thus, absolution from a criminal charge is not a bar
to an administrative prosecution, and vice versa. The
dismissal of the administrative cases against the
petitioners will not necessarily result in the dismissal
of the criminal complaints filed against them.
(Regidor, Jr. v. People, G.R. 166086-92, 2009; Office
of the President v. Cataquiz, G.R. 183445, 2011)
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Proof of damage or actual injury
Proof of damage or actual injury is not required for
administrative liability to attach to a public officer. It is
enough that the act was contrary to the established
norms of conduct for government service. However,
an employee of GSIS who altered IP addresses
without authority, not in the performance of his duties,
will not be guilty of grave misconduct but conduct
prejudicial to the best interest of service. To
constitute misconduct, the act or acts must have a
direct relation to and be connected with the
performance of official duties. (GSIS v. Mayordomo,
G.R. No. 191218, 2011)
Presumption of good faith in the discharge of
official duties.
Every public official is entitled to the presumption of
good faith in the discharge of official duties. Although
a public officer is the final approving authority and the
employees who processed the transaction were
directly under his supervision, personal liability does
not automatically attach to him but only upon those
directly responsible for the unlawful expenditures.
(Dimapilis-Baldoz v. Commission on Audit, G.R.
199114, 2013)
Concept of public office is a public trust
The concept of public office is a public trust and the
corollary requirement of accountability to the people
at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that
an elective local official's administrative liability for a
misconduct committed during a prior term can be
wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election
is not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory basis
in our jurisdiction to support the notion that an official
elected for a different term is fully absolved of any
administrative liability arising from an offense done
during a prior term. (Carpio-Morales v. CA and Binay,
G.R. 217126-27, 2015)
Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
The basic idea of government in the Philippines is
that of a representative government, the officers
being mere agents and not rulers of the people, one
where no one man or set of men had a proprietary or
contractual right to an office, but where every officer
accepts office pursuant to the provisions of law and
holds the office as a trust for the people whom he
represents. (Bernas, 1987 Philippine Constitution: A
POLITICAL & INTERNATIONAL LAW
Commentary, 924, 2009, citing Cornejo v. Gabriel, 41
Phil. 188, 1920)
Public Officers and employees owe the State and this
Constitution allegiance at all times and any public
officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with
by law (PHIL. CONST., art. XI, § 18.)
b. JURISDICTION
Jurisdiction in Disciplinary Cases
1. The Secretaries and heads of agencies and
instrumentalities, provinces, cities and
municipalities shall have jurisdiction to
investigate and decide matters involving
disciplinary action against officers and
employees under their jurisdiction. Their
decision shall be final in case the penalty
imposed is suspension for not more than 30
days or fine in an amount not exceeding 30
days’ salary.
2. In case the decision rendered by a bureau
or office head is appealable to the
Commission, the same may be initially
appealed to the department and finally to the
Commission and pending appeal, the same
shall be executor except when the penalty is
removal, in which case the same shall be
executory only after confirmation by the
Secretary concerned.
3. The Commission shall decide upon appeal
all
administrative
disciplinary
cases
involving the imposition of a penalty of
suspension for more than 30 days, or fine in
an amount exceeding 30 days’ salary,
demotion in rank or salary transfer, removal
or dismissal from office.
4. A complaint may be filed directly with the
Commission by a private citizen against a
government official or employee in which
case it may hear and decide the case or it
may deputize any department, agency,
official, or group of officials to conduct the
investigation.
5. Disciplinary cases and cases involving
“personnel actions” affecting employees in
the civil service are within the exclusive
jurisdiction of the Civil Service Commission,
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6.
7.
8.
which is the sole arbiter of controversies
relating to the civil service.
Executive Order No. 151, or the Presidential
Commission Against Graft and Corruption,
exercises jurisdiction to investigate all
administrative complaints involving graft and
corruption filed in any form or manner
against presidential appointees in the
executive department of the government,
including those in GOCCs. Such jurisdiction
extends to nonpresidential appointees who
may have acted in conspiracy or who may
have been involved with a presidential
appointee.
The Sandiganbayan has exclusive original
jurisdiction over presidents, directors or
trustees, or managers of GOCCs, without
any distinction with respect to the manner of
their creation, whenever charges of graft
and corruption are involved.
RA No. 4670, otherwise known as the
Magna Carta for Public School Teachers,
covers
and
governs
administrative
proceedings involving public
school
teachers.
c. DISMISSAL, PREVENTIVE
SUSPENSION, REINSTATEMENT
AND BACK SALARIES
1. Preventive Suspension and Back Salaries
PREVENTIVE SUSPENSION
Merely a preventive measure, a preliminary step in
an administrative investigation. The purpose of the
suspension order is to prevent the accused from
using his position and the powers and prerogatives
of his office to influence potential witnesses or tamper
with records which may be vital in the prosecution of
the case against him. If after such investigation, the
charge is established and the person investigated is
found guilty of acts warranting his suspension or
removal, then, as a penalty, he is suspended,
removed
or
dismissed.
(Villasenor
v.
Sandiganbayan, G.R. No. 180700, 2008)
POLITICAL & INTERNATIONAL LAW
Two kinds of preventive suspension of
government employees charged with offenses
punishable by removal or suspension:
1. Preventive suspension pending investigation;
and
2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the
respondent is exonerated.
Effect of Decision on Suspension When Made
Before or After 90 Days:
IF THE CASE IS
DECIDED BEFORE
90 DAYS
IF THE CASE IS DECIDED
NOT DECIDED WITHIN 90
DAYS
The suspension will
last less than 90
days.
The suspension may not
exceed
the
maximum
period of 90 days.
Preventive suspension is merely a preventive
measure, a preliminary step in an administrative
investigation; the purpose thereof is to prevent the
accused from using his position and the powers and
prerogatives of his office to influence potential
witnesses or tamper with records which may be vital
in the prosecution of the case against him.
(Ombudsman v. Francisco, G.R. 172553, 2011)
It is now settled that Sec. 13 of Republic Act No. 3019
makes it mandatory for the Sandiganbayan to
suspend any public official against whom a valid
information charging violation of that law, Book II,
Title 7 of the Revised Penal Code, or any offense
involving fraud upon government or public funds or
property is filed. The court trying a case has neither
discretion nor duty to determine whether preventive
suspension is required to prevent the accused from
using his office to intimidate witnesses or frustrate his
prosecution or continuing committing malfeasance in
office. (Villasenor v. Sandiganbayan, G.R. 180700,
2008)
There is no dispute as to the power of the
Ombudsman to place a public officer charged with an
administrative offense under preventive suspension.
That power is clearly confined under Section 24 of
R.A. No. 6770. The law sets forth two conditions that
must be satisfied to justify the issuance of an order of
preventive suspension pending an investigation, to
wit:
1. The evidence of guilt is strong; and\
2. Either the following circumstance co-existing
with the first requirement:
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a.
The
charge
involves
dishonesty,
oppression or grave misconduct or neglect
in the performance of duty;
b. The charge would warrant removal from the
service; or
c. The respondent’s continued stay in office
may prejudice the case filed against him.
(Ombudsman v. Valeroso, G.R. 167828, 2007)
Prior notice and hearing are not required in the
issuance of a preventive suspension order.
Settled is the rule that prior notice and hearing are
not required in the issuance of a preventive
suspension order. (Carabeo v. CA, G.R.
178000/178003, 2009)
GROUNDS FOR PREVENTIVE SUSPENSION OF
POLICE OFFICERS [RA 8551, SEC. 55]
(Preventive Suspension Pending Criminal Case)
The court shall immediately suspend the accused
from office for a period not exceeding 90 days from
arraignment:
1. Upon the filing of a complaint or information
sufficient in form and substance against a
member of the PNP;
2. For grave felonies where the penalty imposed by
law is 6 years and 1 day or more.
Exception: If it can be shown by evidence that the
accused is harassing the complainant and/or
witnesses, the court may order the preventive
suspension of the accused PNP member even if the
charge is punishable by a penalty lower than 6 years
and 1 day.
General Rule: The period of preventive suspension
shall not be more than 90 days.
POLITICAL & INTERNATIONAL LAW
Two conditions before an employee may be
entitled to back salaries in preventive suspension
cases:
1. The employee must be found innocent of the
charges; and
2. His suspension must be unjustified or the official
was innocent. (CSC v. Cruz, G.R. 187858, 2011)
The reasoning behind these conditions runs this way:
although an employee is considered under
preventive suspension during the pendency of a
successful appeal, the law itself only authorizes
preventive suspension for a fixed period; hence, his
suspension beyond this fixed period is unjustified and
must be compensated. The rule on payment of back
salaries during the period of suspension of a member
of the civil service who is subsequently ordered
reinstated, is already settled in this jurisdiction. Such
payment of salaries corresponding to the period
when an employee is not allowed to work may be
decreed not only if he is found innocent of the
charges that caused his suspension (Sec. 35, RA
2260), but also when the suspension is unjustified.
(CSC v. Cruz, G.R. 187858, 2011).
The mere reduction of the penalty on appeal does not
entitle a government employee to back salaries if he
was not exonerated of the charge against him. If the
exoneration of the employee is relative (as
distinguished from complete exoneration), an inquiry
into the factual premise of the offense charged and
of the offense committed must be made. If the
administrative offense found to have been actually
committed is of lesser gravity than the offense
charged, the employee cannot be considered
exonerated if the factual premise for the imposition of
the lesser penalty remains the same. (CSC v. Cruz,
G.R. No. 187858, 2011).
Exception: If the delay in the disposition of the case
is due to the fault, negligence or petitions of the
respondent.
The preventive suspension may be sooner lifted by
the court in the exigency of the service upon
recommendation of the chief, PNP. Such case shall
be subject to continuous trial and shall be terminated
within 90 days from arraignment of the accused.
Back salaries during preventive suspension
General Rule: A public official is not entitled to any
compensation if he has not rendered any service.
(Reyes v. Hernandez, G.R. No. Apr. 8, 1941)
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Preventive Suspension Pending Investigation v.
Appeal
PREVENTIVE
SUSPENSION PENDING
INVESTIGATION
PREVENTIVE
SUSPENSION
PENDING APPEAL
Not a penalty. It is a
measure
intended
to
enable the disciplining
authority to investigate
charges
against
respondent by preventing
the latter from intimidating
or in any way influencing
witnesses against him. If
the investigation is not
finished and a decision is
not rendered within that
period, the suspension will
be
lifted
and
the
respondent
will
automatically
be
reinstated.
If
after
investigation, respondent
is found innocent of the
charges
and
is
exonerated, he should be
reinstated.
(CSC
v.
Alfonso, G.R. 179452,
2009)
If the penalty imposed
by
the
disciplining
authority is suspension
or dismissal and, after
review, the respondent
is exonerated.
No back salaries shall
be due for the period of
preventi