Political Law Review
Recap
Compiled by Rehne Gibb N. Larena | JD-NT-4 | AY 2020-21 | University of San Carlos
Political Law Review
RECAP
TABLE OF CONTENTS
CONSTITUTIONAL LAW
Amendment and Revision
5
5
Powers
16
Private Lands
25
Other Powers
17
Economic Activities
25
18
INHERENT POWERS OF THE STATE
25
EXECUTIVE DEPARTMENT
The President
18
Police Power
26
Doctrine of Fair and Proper Submission
5
Doctrine of Constitutional Supremacy
5
Executive Immunity
18
Lawful Subject
27
Judicial Review
5
Executive Privilege
18
Lawful Means
27
Doctrine of Hierarchy of Courts
6
Prohibitions
18
Political Questions
7
Effect of Declaration of Unconstitutionality
7
THE PHILIPPINES AS A STATE
7
Territory
7
People
7
Citizenship; Modes of Acquisition
7
Naturalization: Judicial, Administrative, Congressional
8
Powers and Functions of the President
28
Stages
28
Executive Power
19
Private Property
28
Power of Control
19
Taking
29
Power of General Supervision over LGUs
19
Public use
29
Power of Appointment
19
Just compensation
29
Pardoning Power
20
Military Powers
20
Power over Foreign Affairs
22
Loss of Citizenship
8
Reacquisition
8
Dual Citizenship and Dual Allegiance
8
Foundlings
9
Composition
9
Appointment and Quali ications
Doctrine of Non-Suability of State
9
Suit against State
9
Consent
9
Sovereignty
Eminent Domain
19
JUDICIAL DEPARTMENT
22
The Supreme Court
22
Taxation
32
THE BILL OF RIGHTS
34
Constitutional Rights and Privileges
34
Due Process of Law
34
Procedural Aspect
34
22
Substantive Aspect
37
22
Equal Protection of Law
37
Salary
22
Classi ication
37
Removal
22
Requirements
37
23
Substantial Distinctions
37
9
Judicial Power
23
Relevance to Purpose of Law
38
The State as Parens Patriae
9
Judicial Review
23
Duration
38
Principles and Policies
9
Jurisdiction
23
Applicability to All
38
Sovereignty of the People and Republicanism
9
Manner of sitting and votes required
23
Selective Prosecution
39
Adherence to International Law
10
Mandatory periods for deciding cases
24
Legislations for speci ic class
39
Separation of Church and State
10
Administrative Powers
24
Right to balanced and healthful ecology
10
Rule-making Powers
24
Scope of Protection
39
Right to Quality Education
10
The Lower Courts
24
Procedural Rules and Jurisdiction
39
Right of Indigenous Cultural Communities
10
The Judicial and Bar Council
24
Requisites of a Valid Warrant
40
Doctrine of Separation of Powers
10
ECSTACS
25
Properties Subject to Seizure
42
25
Conduct of the Search
43
25
Admissibility of Illegally Seized Evidence
43
Government
LEGISLATIVE DEPARTMENT
Structure
Synthesized from Constitutional and Allied Political Law Notes
10
10
Powers of the Supreme Court
National Economy and Patrimony
Regalian Doctrine
By RGL
Right Against Unreasonable Searches and Seizures
39
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Warrantless Searches and Seizures
43
Municipal Corporation
55
Administrative Discipline
72
Remedies against unlawful searches
47
Local Government System
56
The Ombudsman
72
Bus Searches/Inspections
47
Regular Political Subdivisions
57
48
Rights of a Person Under Custodial Investigation
Custodial Investigation
48
Autonomous
Subdivisions
Right to remain silent
48
Power Relations
58
Right to have independent and competent counsel
48
Local Power of Taxation
59
Right to be informed
48
Local Police Power
60
Waiver
48
Local Eminent Domain
60
49
Basic Services and Facilities
61
49
Reclassi ication of Lands
61
Rights of the Accused
49
Closure and Opening of Roads
61
Double Jeopardy
50
Corporate Powers
61
Appeals
50
To sue and be sued
61
Privilege Against Self-incrimination
50
To acquire and convey property
62
Ex Post Facto Law and Bill of Attainder
51
To enter into contracts
62
Privilege of Writ of Habeas Corpus
51
Liability for Damages
63
Liberty of Abode and Travel
51
Disciplinary Actions
63
Right to Information
51
Recall
63
52
Local Legislations
64
Non-impairment of Obligations and Contracts
52
Local Initiative and Referendum
64
Right to Speedy Disposition of Cases
52
Freedom of Expression
52
Prior restraint
52
Unprotected utterances
53
Obscene Matters
53
Right to Assemble; Freedom of Association
53
Facial challenge
53
Penumbral Right
53
Right to Bail
Right to bail and extradition proceedings
Disbarment proceedings
Freedom of Religion
53
Non-establishment of religion
54
Free Exercise of Religion
54
Regions
and
Special
Metropolitan
Political
58
73
Quali ications
74
Disquali ications
74
Under the OEC
74
Under the LGC
74
Vacancy and Succession
74
Term Limit
75
Party-list
75
Allocation
75
Nominees
75
Sectors to be represented
75
Disquali ications
76
Postponement or Failure of Elections
76
Suffrage
76
Overseas Absentee Voters
76
Local Absentee Voters
77
Voters’ Registration
77
Inclusion and Exclusion Proceedings
77
Comelec Of icials
77
Administrative Agencies
64
Administrative Powers
78
Powers
65
Power to enforce and administer election laws
Quasi-Legislative
65
Power to conduct plebiscite, initiative, referendum and recall 78
Quasi-Judicial
66
Power to decide all questions affecting elections
78
66
Power to deputize other government agencies
79
Doctrine of Primary Jurisdiction
66
Recommendatory power
79
Doctrine of Exhaustion of Administrative Remedies
66
Power to register political parties and party-list
79
The Two Doctrines Distinguished
67
Power to supervise or regulate franchises, transportation
79
LAW ON PUBLIC OFFICERS
67
Power to investigate and prosecute
79
Public Of ice and Of icer
67
Duty to report.
79
Judicial Review
54
Remedies For Violation of Constitutional Rights
54
Powers, Duties, Rights, Privileges and Prohibitions
69
55
Liabilities
70
Termination
71
Synthesized from Constitutional and Allied Political Law Notes
73
Elective Of icials
64
ADMINISTRATIVE LAW
Privacy of Communication and Correspondence
PUBLIC CORPORATION LAW
ELECTION LAW
By RGL
78
Quasi-Legislative Powers
79
Quasi-Judicial Powers
79
Election Period
80
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Election Offenses
80
Campaign Period
82
Certi icate of Candidacy
83
Voting and the EB
83
Counting and Ballot Appreciation
83
Canvassing
84
Pre-proclamation Controversies
84
Proclamation
85
Election Contests
85
PUBLIC INTERNATIONAL LAW
87
Sources of International Law
87
Treaties
88
States and Government
89
Jurisdiction
91
Immunity from Jurisdiction
93
State Responsibility
93
Synthesized from Constitutional and Allied Political Law Notes
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CONSTITUTIONAL LAW
Amendment and Revision
Article XVII, 1987 Constitution. Section 1. Any amendment to, or
revision of, this Constitution may be proposed by:
1.
The Congress, upon a vote of three-fourths of all its
2.
Members; or
A constitutional convention.
Section 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of
a.
b.
at least twelve per centum of the total number of
registered voters,
of which every legislative district must be represented by at
least three per centum of the registered voters therein.
No amendment under this section shall be authorized within ive years
following the rati ication of this Constitution nor oftener than once
every ive years thereafter.
Section 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, OR by a majority vote of
all its Members, submit to the electorate the question of calling such a
convention.
➔ The framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready
and shown" to the people "before" they sign such proposal.
(Lambino v. Comelec)
Doctrine of Fair and Proper Submission
All the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite.
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violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in
every statute and contract. (Manila Prince Hotel v GSIS )
Under the doctrine of constitutional supremacy, if a law or contract
Synthesized from Constitutional and Allied Political Law Notes
Ripeness
Judicial Review
In Tan v. Macapagal, this Court held that for a case to be considered
ripe for adjudication, "it is a prerequisite that something had by
then been accomplished or performed by either branch before a court
may come into the picture."
Requisites of a judicial inquiry:
Lis Mota
1.
2.
3.
4.
There must be an actual case or controversy;
The question of constitutionality must be raised by the proper
party;
The constitutional question must be raised at the earliest
possible opportunity; and
The decision of the constitutional question must be necessary
to the determination of the case itself.
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever
possible. Courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
Rules of Avoidance
1.
Taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and
(5) for legislators, there must be a claim that the of icial action
complained of infringes upon their prerogatives as legislators.
2.
3.
4.
5.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government.
Section 1, Article VIII of the Constitution engraves, for the irst time
into its history, into block letter law the so-called "expanded
certiorari jurisdiction" of this Court.
6.
7.
The Court will not pass upon the constitutionality of legislation
in a friendly, non-adversary proceeding, declining because to
decide such questions is legitimate only in the last resort, and
as a necessity in the determination of real, earnest and vital
controversy between individuals.
The Court will not anticipate a question of constitutional law
in advance of the necessity of deciding it.
The Court will not formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied.
The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of.
The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation.
The Court will not pass upon the constitutionality of a statute
at the instance of one who has availed himself of its bene its.
When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will irst
ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.
⭐Important Points in Provincial Bus Operators v. DOLE
Locus standi
Doctrine of Constitutional Supremacy
sustain direct injury as a result of the governmental act that is
being challenged.
or legal standing has been de ined as a personal and substantial
interest in the case such that the party has sustained or will
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➔ The doctrines of primary jurisdiction and exhaustion of
administrative remedies may only be invoked in matters
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involving the exercise of quasi-judicial power.
➔ Under the concept of third-party standing, actions may be
brought on behalf of third parties provided the following
criteria are met:
1. irst, "the [party bringing suit] must have suffered an
'injury-in-fact,' thus giving him or her a 'suf iciently
concrete interest' in the outcome of the issue in
dispute";
2. second, "the party must have a close relation to the
third party"; and
3. third, "there must exist some hindrance to the third
party's ability to protect his or her own interests."
➔ In addition to an actual controversy, special reasons to
represent, and disincentives for the injured party to bring the
suit themselves, there must be a showing of the transcendent
nature of the right involved. Only constitutional rights shared
by many and requiring a grounded level of urgency can be
transcendent.
⭐Important points in KMU v. Aquino III
Most important in the list of requisites of judicial review is the
existence of an actual case or controversy. In every exercise of
judicial power, whether in the traditional or expanded sense, this is an
absolute necessity.
There is an actual case or controversy if there is a "con lict of legal
right, an opposite legal claims susceptible of judicial resolution." A
petitioner bringing a case before this Court must establish that there
is a legally demandable and enforceable right under the
Constitution. There must be
1.
2.
3.
a real and substantial controversy,
with de inite and concrete issues involving the legal relations
of the parties, and
admitting of speci ic relief that courts can grant.
A case is ripe for adjudication when the challenged governmental
act is a completed action such that there is a direct, concrete, and
adverse effect on the petitioner. In connection with acts of
administrative agencies, ripeness is ensured under the doctrine of
exhaustion of administrative remedies. However, it is not an
ironclad rule. It may be disregarded
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(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative
agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as
an alter ego of the President bears the implied and assumed
approval of the latter,
(7) when to require exhaustion of administrative remedies would
be unreasonable,
(8) when it would amount to a nulli ication of a claim,
(9) when the subject matter is a private land in land case
proceedings,
(10) when the rule does not provide a plain, speedy and
adequate remedy,
(11) when there are circumstances indicating the urgency of
judicial intervention,
(12) when no administrative review is provided by law,
(13) where the rule of quali ied political agency applies, and
(14) when the issue of non-exhaustion of administrative remedies
has been rendered moot.
The principle of primary administrative jurisdiction states that
courts cannot or will not determine a controversy involving a question
which is within the jurisdiction of the administrative tribunal prior to
the resolution of that question by the administrative tribunal, where the
question demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of
fact.
As for mootness, Courts cannot render judgment after the issue has
already been resolved by or through external developments. However,
Courts will decide cases, otherwise moot and academic, if:
1.
2.
3.
4.
there is a grave violation of the Constitution;
the exceptional character of the situation and the paramount
public interest is involved;
when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the
public; and
the case is capable of repetition yet evading review.
Doctrine of Hierarchy of Courts
⭐Important points in Gios-Samar v. DOTC
The doctrine of hierarchy of courts dictates that, direct recourse to
the Supreme Court is allowed only to resolve questions of law,
notwithstanding the invocation of paramount or transcendental
importance of the action. This doctrine is not mere policy, rather, it is a
constitutional iltering mechanism. There are instances where this
doctrine has been relaxed:
(1) when there are genuine issues of constitutionality that must
be addressed at the most immediate time;
(2) when the issues involved are of transcendental importance;
(3) cases of irst impression;
(4) the constitutional issues raised are better decided by the Court;
(5) exigency in certain situations;
(6) the iled petition reviews the act of a constitutional organ;
(7) when petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of
law that could free them from the injurious effects of
respondents' acts in violation of their right to freedom of
expression; and
(8) the petition includes questions that are "dictated by public
welfare and the advancement of public policy, or demanded by
the broader interest of justice, or the orders complained of were
found to be patent nullities, or the appeal was considered as
clearly an inappropriate remedy."
The foregoing exceptions reveal a common denominator - the issues
for resolution of the Court are purely legal.
The presence of one or more of the so-called "special and important
reasons" is not the decisive factor considered by the Court in
deciding whether to permit the invocation, at the irst instance, of its
original jurisdiction over the issuance of extraordinary writs. Rather, it
is the nature of the question raised by the parties in those
"exceptions" that enabled the Court to allow direct action.
The ONLY circumstance when the SC may take cognizance of a case in
the irst instance, despite the presence of factual issues, is in the
exercise of its constitutionally-expressed task to review the suf iciency
of the factual basis of the President's proclamation of martial law
under Section 18, Article VII.
(1) when there is a violation of due process,
Synthesized from Constitutional and Allied Political Law Notes
By RGL
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How to differentiate certiorari in the Rules of Court from that
provided for by Sec 1 Art VIII of the Constitution?
➔ Rule 65 has its reference to grave abuse of discretion exercised
by courts and entities exercising quasi-judicial functions.
➔ In the Constitution, it refers to any branch or
instrumentalities of the government.
Political Questions
The term “political question” refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
There are two species of political questions:
(1) "truly political questions" and
(2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason
for respect of the doctrine of separation of powers to be maintained. On
the other hand, by virtue of Section 1, Article VIII of the Constitution,
courts can review questions which are not truly political in nature.
Effect of Declaration of Unconstitutionality
Under the operative fact doctrine, the law is recognized as
unconstitutional but the effects of the unconstitutional law, prior to its
declaration of nullity, may be left undisturbed as a matter of equity and
fair play. The operative fact doctrine is a rule of equity. As such, it
must be applied as an exception to the general rule that an
unconstitutional law produces no effects.
The general rule is that an unconstitutional law is void. It produces
no rights, imposes no duties and affords no protection. It has no legal
effect. It is, in legal contemplation, inoperative as if it has not been
passed. The doctrine of operative fact, as an exception to the general
rule, only applies as a matter of equity and fair play. It nulli ies the
effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored. The
past cannot always be erased by a new judicial declaration.
Synthesized from Constitutional and Allied Political Law Notes
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The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the
invalid law.
THE PHILIPPINES AS A STATE
Criteria of a state laid down in the Montevideo Convention:
1.
2.
3.
4.
a permanent population,
a de ined territory,
a government, and
a capacity to enter into relations with other states.
Territory
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. (archipelagic
doctrine of territoriality)
UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, sea-use
rights over maritime zones.
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of
territory. Under traditional international law typology, States acquire (or
conversely, lose) territory through
1.
2.
3.
4.
occupation,
accretion,
cession and
prescription,
NOT by executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty's terms to delimit
maritime zones and continental shelves.
People
The constitutional proscription on alien ownership of lands of the
public or private domain was intended to protect lands from falling
in the hands of non-Filipinos.
Citizenship; Modes of Acquisition
➔ The Philippine law on citizenship adheres to the principle of
By RGL
jus sanguinis.
➔ Cases involving issues on citizenship are sui generis. Once
the citizenship of an individual is put into question, it
necessarily has to be threshed out and decided upon. In the
case of Frivaldo v. Comelec, decisions declaring the
acquisition or denial of citizenship cannot govern a person's
future status with inality. This is because a person may
subsequently reacquire, or for that matter, lose his citizenship
under any of the modes recognized by law for the purpose.
➔ Citizenship proceedings, as aforestated, are a class of its own,
in that, unlike other cases, res judicata does not obtain as a
matter of course.
The 1987 Constitution enumerates who are Filipino citizens as
follows:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mothers, who
elect Philippine citizenship upon reaching the age of majority,
and
(4) Those who are naturalized in accordance with law.
There are two ways of acquiring citizenship:
(1) by birth, and
(2) by naturalization.
These ways of acquiring citizenship correspond to the two kinds of
citizens: the natural-born citizen, and the naturalized citizen. A
person who at the time of his birth is a citizen of a particular country, is
a natural-born citizen thereof.
As de ined in the same Constitution, natural-born citizens "are those
citizens of the Philippines from birth without having to perform
any act to acquire or perfect his Philippine citizenship." Those who
elect Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens.
On the other hand, naturalized citizens are those who have become
Filipino citizens through naturalization, generally under CA No. 473,
otherwise known as the Revised Naturalization Law, and by RA No.
530. To be naturalized, an applicant has to prove that he possesses all
the quali ications and none of the disquali ications provided by law
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to become a Filipino citizen. The decision granting Philippine
citizenship becomes executory only after two (2) years from its
promulgation when the court is satis ied that during the intervening
period, the applicant has
(1) not left the Philippines;
(2) has dedicated himself to a lawful calling or profession;
(3) has not been convicted of any offense or violation of
Government promulgated rules; or
(4) committed any act prejudicial to the interest of the nation or
contrary to any Government announced policies.
Two requisites must concur for a person to be considered a
natural-born citizen:
(1) a person must be a Filipino citizen from birth and
(2) he does not have to perform any act to obtain or perfect his
Philippine citizenship,
exc those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority, as they are deemed natural-born citizens.
The statutory formalities of electing Philippine citizenship are:
(1) a statement of election under oath;
(2) an oath of allegiance to the Constitution and Government of
the Philippines; and
(3) registration of the statement of election and of the oath with
the nearest civil registry.
It is not the registration of the act of election, although a valid
requirement under Commonwealth Act No. 625, that will confer
Philippine citizenship on the petitioners. It is only a means of
con irming the fact that citizenship has been claimed. (Ma, et al. v
Fernandez, Jr)
Naturalization: Judicial, Administrative, Congressional
➔ Section 1 of R.A. No. 530 provides that no decision granting
citizenship in naturalization proceedings shall be
executory until after two years from its promulgation.
➔ Naturalization laws should be rigidly enforced in favor of
the Government and against the applicant.
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citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service
of a foreign country;
(5) By cancellation of the certi icate of naturalization;
(6) By having been declared by competent authority, a deserter of
the Philippine armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted:
and
(7) In case of a woman, upon her marriage, to a foreigner if, by
virtue of the laws in force in her husband’s country, she
acquires his nationality.
In the case of Aznar v. Comelec, the Court ruled that the mere fact that
respondent Osmena was a holder of a certi icate stating that he is an
American did not mean that he is no longer a Filipino, and that an
application for an alien certi icate of registration was not tantamount to
renunciation of his Philippine citizenship.
In Caasi v. CA, the Court ruled that immigration to the United States by
virtue of a “greencard,” which entitles one to reside permanently in
that country, constitutes abandonment of domicile in the Philippines.
With more reason then does naturalization in a foreign country
result in an abandonment of domicile in the Philippines.
Reacquisition
Filipino citizens who have lost their citizenship may however
reacquire the same in the manner provided by law. C.A. No. 63,
enumerates the three modes by which Philippine citizenship may be
reacquired by a former citizen:
(1) by naturalization,
(2) by repatriation, and
(3) by direct act of Congress.
Naturalization is a mode for BOTH acquisition and reacquisition of
Philippine citizenship.
Loss of Citizenship
Repatriation, on the other hand, may be had under various statutes
Under Commonwealth Act No. 63, a Filipino citizen may lose his
by those who lost their citizenship due to:
Synthesized from Constitutional and Allied Political Law Notes
By RGL
(1) desertion of the armed forces;
(2) service in the armed forces of the allied forces in World War II;
(3) service in the Armed Forces of the United States at any other
time;
(4) marriage of a Filipino woman to an alien; and
(5) political and economic necessity.
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. Moreover, repatriation results in the recovery of
the original nationality.
R.A. No. 8171 provides for the repatriation of
1.
Filipino women who lost their Philippine citizenship by
marriage to aliens; and
2.
Natural-born Filipinos including their minor children who lost
their Philippine citizenship on account of political or
economic necessity.
Those not covered by RA 8171 can possibly reacquire Philippine
citizenship by availing of the Citizenship Retention and
Re-acquisition Act of 2003 (RA 9225) by simply taking an oath of
allegiance to the Republic of the Philippines.
When does the citizenship quali ication of a candidate for an
elective of ice apply?
In Frivaldo v. Comelec, the Court ruled that the citizenship
quali ication must be construed as “applying to the time of
proclamation of the elected of icial and at the start of his term.” The
Court also ruled in Frivaldo that repatriation retroacts to the date of
iling of one’s application for repatriation.
Dual Citizenship and Dual Allegiance
Dual citizenship is different from dual allegiance. The former
arises when, as a result of the concurrent application of the different
laws of two or more states, a person is simultaneously considered a
national by the said states.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an individual's volition.
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With respect to dual allegiance, Article IV, §5 of the Constitution
provides: "Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law."
The phrase "dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No.
7854, §20 must be understood as referring to "dual allegiance."
For candidates with dual citizenship, it should suf ice if, upon the
iling of their certi icates of candidacy, they elect Philippine citizenship
to terminate their status as persons with dual citizenship.
There is no provision in the dual citizenship law - R.A. 9225 - requiring
"duals" to actually establish residence and physically stay in the
Philippines irst before they can exercise their right to vote.
Foundlings
As a matter of law, foundlings are as a class, natural-born citizens.
(Poe-Llamanzares v. Comelec)
Sovereignty
Doctrine of Non-Suability of State
In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, “unduly vex the peace of
nations.”
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when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs.
The doctrine of immunity from suit will not apply and may not be
invoked where the public of icial is being sued in his private and
personal capacity as an ordinary citizen.
Consent
The rule on State immunity from suit is not absolute. The State may be
sued with its consent. The State's consent to be sued may be given
either expressly or impliedly.
Express consent may be made through a general law or a special law.
The general law waiving the immunity of the state from suit is found in
Act No. 3083, where the Philippine government 'consents and submits
to be sued upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis of civil
action between private parties.
There is implied consent when the State enters into a contract. The
government is deemed to have descended to the level of the other
contracting party and to have divested itself of its sovereign immunity.
However, not all contracts entered into by the government operate as a
waiver of its non-suability; distinction must still be made between one
which is executed in the exercise of its sovereign functions and
another which is done in its proprietary capacity.
Government
Suit against State
The State as Parens Patriae
The rule is that if the judgment against such of icials will require the
state itself to perform an af irmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has
not been formally impleaded. In such a situation, the state may move to
dismiss the complaint on the ground that it has been iled without its
consent.
Under the doctrine, the state has the sovereign power of guardianship
over persons of disability, and in the execution of the doctrine the
legislature is possessed of inherent power to provide protection to
persons non sui juris and to make and enforce rules and regulations as it
deems proper for the management of their property. Parens patriae
means "father of his country", and refers to the State as a last-ditch
provider of protection to those unable to care and fend for themselves.
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
In Maynilad v. SENR, the Court enunciated the Public Trust Doctrine.
The doctrine holds that certain natural resources belong to all and
cannot be privately owned or controlled because of their inherent
importance to each individual and society as a whole. A clear
declaration of public ownership, the doctrine reaf irms the
superiority of public rights over private rights for critical resources. It
impresses upon states the af irmative duties of a trustee to manage
Synthesized from Constitutional and Allied Political Law Notes
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these natural resources for the bene it of present and future generations
and embodies key principles of environmental protection: stewardship,
communal responsibility, and sustainability.
In this framework, a relationship is formed - "the state is the
trustee, which manages speci ic natural resources the trust
principal - for the trust principal for the bene it of the current and
future generations - the bene iciaries." The public is regarded as the
bene icial owner of trust resources, and courts can enforce the public
trust doctrine even against the government itself.
Principles and Policies
➔ A constitutional provision is self-executing
1. if the nature and extent of the right conferred and
2. the liability imposed are ixed by the constitution itself,
3. so that they can be determined by an examination and
construction of its terms, and
4. there is no language indicating that the subject is referred
to the legislature for action.
Unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution
are self-executing.
➔ The Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy.
➔ While Section 19, Article II of the 1987 Constitution requires
the development of a self-reliant and independent national
economy effectively controlled by Filipino entrepreneurs, it
does not impose a policy of Filipino monopoly of the
economic environment. The objective is simply to prohibit
foreign powers or interests from maneuvering our economic
policies and ensure that Filipinos are given preference in all
areas of development.
Sovereignty of the People and Republicanism
Ours is a representative democracy - as distinguished from a direct
democracy - in which the sovereign will of the people is expressed
through the ballot, whether in an election, referendum, initiative, recall
(in the case of local of icials) or plebiscite. Any exercise of the powers
of sovereignty in any other way is unconstitutional.
Under the 1987 Constitution, the people can directly exercise their
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sovereign authority through the following modes, namely:
(1) elections;
the people choose the representatives to whom they will
entrust the exercise of powers of government.
(2) plebiscite;
the people ratify any amendment to or revision of the
Constitution and may introduce amendments to the
constitution.
(3) initiative;
legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any
ordinance through an election called for the purpose.
(4) recall; and
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exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the
Incorporation Clause in the above-cited constitutional provision. (SOJ v.
Lantion)
Separation of Church and State
— uncertainty, the possibility of irreversible harm, and the
possibility of serious harm — coincide, the case for the precautionary
principle is strongest.
The separation of Church and State shall be inviolable.
Right to Quality Education
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not a denial of its
in luence in human affairs. In fact, certain general concessions are
indiscriminately accorded to religious sects and denominations.
1.
2.
a method of removing a local of icial from of ice before the
expiration of his term because of loss of con idence.
(5) referendum.
the people can approve or reject a law or an issue of national
importance.
Adherence to International Law
The fact that international law has been made part of the law of the land
does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law
are given a standing equal, not superior, to national legislative
enactments. (Philip Morris v CA)
The rule of pacta sunt servanda requires the parties to a treaty to keep
their agreement therein in good faith. The observance of our country's
legal duties under a treaty is also compelled by Section 2, Article II of
the Constitution. Under the doctrine of incorporation, rules of
international law form part of the law of the land and no further
legislative action is needed to make such rules applicable in the
domestic sphere.
The doctrine of incorporation is applied whenever municipal tribunals
(or local courts) are confronted with situations in which there appears
to be a con lict between a rule of international law and the provisions of
the constitution or statute of the local state. Efforts should irst be
Synthesized from Constitutional and Allied Political Law Notes
irreplaceable; and
(c) settings in which the harm that might result would be serious.
When these features
3.
4.
Our Constitution and laws exempt from taxation properties
devoted exclusively to religious purposes.
Sectarian aid is not prohibited when a priest, preacher, minister
or other religious teacher or dignitary as such is assigned to the
armed forces or to any penal institution, orphanage or
leprosarium.
Optional religious instruction in the public schools is by
constitutional mandate allowed.
Thursday and Friday of Holy Week, Christmas Day, and
Sundays are made legal holidays.
Right to balanced and healthful ecology
Oposa v. Factoran, Jr. recognized the "public right" of citizens to "a
balanced and healthful ecology. Their personality to sue in behalf of
the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned.
While the Constitution indeed mandates the State to provide quality
education, the determination of what constitutes quality education
is best left with the political departments who have the necessary
knowledge, expertise, and resources to determine the same. (Council of
Teachers and Staff of Colleges and Universities of the Philippines v
Secretary of Education)
Right of Indigenous Cultural Communities
The Philippine legal system's framework for the protection of
indigenous peoples was never intended and will not operate to deprive
courts of jurisdiction over criminal offenses. (Tawahig v Lapinid)
Doctrine of Separation of Powers
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual
division in our Constitution. The principle of separation of powers
(1) allows the “blending” of some of the executive, legislative, or
judicial powers in one body;
(2) does not prevent one branch of government from inquiring into
the affairs of the other branches to maintain the balance of
power;
(3) but ensures that there is no encroachment on matters within
the exclusive jurisdiction of the other branches.
The precautionary principle inds direct application in the
evaluation of evidence in cases before the courts. The precautionary
principle bridges the gap in cases where scienti ic certainty in factual
indings cannot be achieved. By applying the precautionary principle,
the court may construe a set of facts as warranting either judicial action
or inaction, with the goal of preserving and protecting the environment.
LEGISLATIVE DEPARTMENT
For purposes of evidence, the precautionary principle should be treated
as a principle of last resort, where application of the regular Rules of
Evidence would cause in an inequitable result for the environmental
plaintiff —
The power to create a province or city inherently involves the
power to create a legislative district.
(a) settings in which the risks of harm are uncertain;
(b) settings in which harm might be irreversible and what is lost is
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Structure
The allowable membership of the House of Representatives can be
increased, and new legislative districts of Congress can be created, only
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through a national law passed by Congress.
Indeed, the of ice of a legislative district representative to Congress
is a national of ice, and its occupant, a Member of the House of
Representatives, is a national of icial.
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. (Sema v Comelec)
1.
2.
3.
4.
5.
a natural-born citizen of the Philippines and,
on the day of the election, is at least 25 years of age,
able to read and write, and, except the party-list
representatives:
a registered voter in the district in which he shall be elected,
and
a resident thereof for a period of not less than 1 year
immediately preceding the day of the election.
➔ Term of 3 years, for not more than 3 consecutive terms.
Composition
1. Senate
➔ Composed of twenty-four Senators who shall be elected at large.
➔ Quali ications:
1. a natural-born citizen of the Philippines and,
2. on the day of the election, is at least 35 years of age,
3. able to read and write,
4. a registered voter, and
5. a resident of the Philippines for not less than 2 years
immediately preceding the day of the election.
➔ Term of 6 years, for not more than 2 consecutive terms.
2. House of Representatives
➔ Composed of not more than 250 members, unless otherwise ixed
by law.
➔ Composed of
1. district representatives elected from legislative districts
apportioned in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive
ratio, and
2. party-list representatives of registered national, regional,
and sectoral parties or organizations.
Relevant Jurisprudence
➔ "Gerrymandering" is a term employed to describe an
apportionment of representative districts so contrived as to give an
unfair advantage to the party in power. The Constitution
proscribes gerrymandering, as it mandates each legislative
district to comprise, as far as practicable, a contiguous, compact
and adjacent territory. (Navarro v Ermita)
➔ Plainly read, Section 5(3) of the Constitution requires a 250,000
minimum population only for a city to be entitled to a
representative, but not so for a province.
Our ruling is that population is not the only factor but is just
one of several other factors in the composition of the additional
district. (Aquino III v Comelec)
➔ The constitutionality of a legislative apportionment act is a judicial
question, and not one which the court cannot consider on the
ground that it is a political question. (Aldaba v Comelec)
➔ Legislative apportionment is de ined as 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 and
voting power among the districts.
➔ Shall have at least one representative:
1. Each city with a population of at least 250,000, or
2. Each province.
Reapportionment, on the other hand, is the realignment or
change in legislative districts brought about by changes in
population and mandated by the constitutional requirement of
equality of representation.
➔ Quali ications:
The legislative district that Article VI, Section 5 speaks of is a
Synthesized from Constitutional and Allied Political Law Notes
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political unit because it is the basis for the election of a member of
the House of Representatives and members of the local legislative
body. It is NOT, however, a political subdivision through which
functions of government are carried out. It can more appropriately
be described as a representative unit that may or may not
encompass the whole of a city or a province, but unlike the latter, it
is NOT a corporate unit.
The law clearly provides that the basis for districting shall be the
number of the inhabitants of a city or a province, not the
number of registered voters therein.
The Constitution does not require mathematical exactitude or
rigid equality as a standard in gauging equality of representation.
(Bagabuyo v Comelec)
➔ A city whose population has increased to 250,000 is entitled to
have a legislative district only in the "immediately following
election" after the attainment of the 250,000 population.
First, certi ications on demographic projections can be issued
only if such projections are declared of icial by the National
Statistics Coordination Board (NSCB). Second, certi ications
based on demographic projections can be issued only by the NSO
Administrator or his designated certifying of icer. Third,
intercensal population projections must be as of the middle of
every year. (Aldaba v Comelec)
3. Party-list
➔ Shall constitute 20% of the total number of representatives
including those under the party list.
➔ Four inviolable parameters in Veterans v Comelec
1.
First, the twenty percent allocation
2.
Second, the two percent threshold as quali ied by Banat v
Comelec
3.
Third, the three-seat limit
4.
Fourth, proportional representation
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N umber of votes of f irst party
T otal votes f or party −list system
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= P roportion of votes of 1st party
If the proportion is
● At least 6%, 2 additional seats;
● At least 4% but less than 6%, 1 additional seat;
● Less than 4%, NO additional seat.
Addt′l seat =
N o. of votes of party
N o. of votes of f irst party
× N o. of additional seats of 1st party
➔ Comelec has a constitutional duty to disclose and release the names
of the nominees of the party-list groups named in the herein
petitions. (Bantay RA 7941 v Comelec)
➔ "Proportional representation" is the touchstone to ascertain
entitlement to extra seats. (CIBAC v Comelec)
➔ Rules on Party-list registration, membership and disquali ications,
as laid down in Ang Bagong Bayani v Comelec
1. The political party, sector, organization or coalition must
represent the marginalized and underrepresented groups
identi ied in Section 5 of RA 7941. Verily, majority of its
membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a con lict of
interests, it has chosen or is likely to choose the interest of such
sectors.
2. Major political parties must comply with the declared statutory
policy of enabling “Filipino citizens belonging to marginalized and
underrepresented sectors x x x to be elected to the House of
Representatives.”
3. The religious sector may not be represented in the party-list
system.
4. Disquali ications under Sec 6 of RA 7941:
➔ It is a religious sect or denomination, organization or
association organized for religious purposes;
➔ It advocates violence or unlawful means to seek its goal;
➔ It is a foreign party or organization;
➔ It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or
through any of its of icers or members or indirectly through
third parties for partisan election purposes;
➔ It violates or fails to comply with laws, rules or regulations
relating to elections;
Synthesized from Constitutional and Allied Political Law Notes
➔ It declares untruthful statements in its petition;
➔ It has ceased to exist for at least one (1) year; or
➔ It fails to participate in the last two (2) preceding elections or
fails to obtain at least two per centum (2%) of the votes cast
under the party-list system in the two (2) preceding elections
for the constituency in which it has registered.
5. The party or organization must not be an adjunct of, or a project
organized or an entity funded or assisted by, the government.
6. The party must not only comply with the requirements of the law;
its nominees must likewise do so.
7. Not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its
nominees.
8. While lacking a well-de ined political constituency, the nominee
must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will bene it the nation as a
whole.
➔ There is no need for legislation to create an additional party-list
seat whenever four additional legislative districts are created by
law. Section 5(2), Article VI of the 1987 Constitution automatically
creates such additional party-list seats.
The illing-up of all available party-list seats is not mandatory.
Actual occupancy of the party-list seats depends on the number of
participants in the party-list election. (BANAT v Comelec)
➔ In determining the allocation of seats for party-list representatives
under Section 11 of R.A. No. 7941, the following procedure shall be
observed:
1.
The parties, organizations, and coalitions shall be ranked
from the highest to the lowest based on the number of votes
they garnered during the elections.
2.
The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system
shall be entitled to one guaranteed seat each.
3.
Those garnering suf icient number of votes, according to the
ranking in paragraph 1, shall be entitled to additional seats in
proportion to their total number of votes until all the additional
seats are allocated.
4.
Each party, organization, or coalition shall be entitled to not
more than three (3) seats. (BANAT v Comelec)
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➔ The COMELEC may motu proprio or upon veri ied complaint of any
interested party, remove or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization
or coalition if it:
(a) fails to participate in the last two (2) preceding elections; or
(b) fails to obtain at least two per centum (2%) of the votes cast
under the party-list system in the two (2) preceding elections
for the constituency in which it has registered.
A party-list group or organization which quali ied in the second
round of seat allocation cannot now validly be delisted for the
reason alone that it garnered less than 2% in the last two elections.
The disquali ication should now necessarily be read to apply to
party-list groups or organizations that did not qualify for a seat
in the two preceding elections for the constituency in which it
registered. (Phil Guardians Brotherhood v Comelec)
➔ The phrase “marginalized and underrepresented” should refer
only to the sectors in Section 5 that are, by their nature,
economically “marginalized and underrepresented.” These
sectors are: labor, peasant, isherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas workers,
and other similar sectors. For these sectors, a majority of the
members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees of the
sectoral party either must belong to the sector, or must have a
track record of advocacy for the sector represented. Belonging
to the “marginalized and underrepresented” sector does not mean
one must “wallow in poverty, destitution or in irmity.” It is
suf icient that one, or his or her sector, is below the middle class.
More speci ically, the economically “marginalized and
underrepresented” are those who fall in the low income group as
classi ied by the National Statistical Coordination Board. (Atong
Paglaum v Comelec)
Quali ications and Term of Of ice
The unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having
infringed the constitutional provision de ining the quali ication or
eligibility requirements for one aspiring to run for and serve as
senator. (Social Justice Society v DDB)
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Residence requirement
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the Constitution
or the law intends to prevent the possibility of a "stranger or newcomer
unacquainted with the conditions and needs of a community and not
identi ied with the latter from [seeking] an elective of ice to serve that
community." (Torayno v Comelec)
There is a difference between domicile and residence. ‘Residence’ is
used to indicate a place of abode, whether permanent or temporary;
‘domicile’ denotes a ixed permanent residence to which, when absent,
one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile
is residence coupled with the intention to remain for an unlimited time.
A man can have but one domicile for the same purpose at any time, but
he may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily
so since no length of residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile. (Macalintal v Comelec)
There are three requisites to acquire a new domicile:
1.
Residence or bodily presence in a new locality;
2.
an intention to remain there; and
3.
an intention to abandon the old domicile.
To successfully effect a change of domicile, one must demonstrate an
actual removal or an actual change of domicile; a bona ide intention of
abandoning the former place of residence and establishing a new one
and de inite acts which correspond with the purpose. In other words,
there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must
be for an inde inite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual. (Llamanzares v Comelec)
Synthesized from Constitutional and Allied Political Law Notes
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Term vs. Tenure
In the law of public of icers, there is a settled distinction between "term"
and "tenure." The term of an of ice must be distinguished from the
tenure of the incumbent. The term means the time during which the
of icer may claim to hold of ice as of right, and ixes the interval after
which the several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds the
of ice. The term of of ice 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 COA)
Grounds by which term of Members of Congress may be shortened:
a) Section 13, Article VI. Forfeiture of his seat by holding any
other of ice or employment in the government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or subsidiaries;
b) Section 16 (3). Expulsion as a disciplinary action for
disorderly behavior;
c) Section 17. Disquali ication as determined by resolution of
the Electoral Tribunal in an election contest; and
d) Section 7, par. 2: Voluntary renunciation of of ice.
(Dimaporo v Mitra)
Election
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. In a general election, where the law ixes the date of
the election, the election is valid without any call by the body charged to
administer the election.
In a special election to ill a vacancy, the rule is that a statute that
expressly provides that an election to ill a vacancy shall be held at the
next general elections ixes the date at which the special election is to be
held and operates as the call for that election. Consequently, an election
held at the time thus prescribed is not invalidated by the fact that the
body charged by law with the duty of calling the election failed to do so.
This is because the right and duty to hold the election emanate from the
statute and not from any call for the election by some authority and the
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law thus charges voters with knowledge of the time and place of the
election. (Tolentino v Comelec)
Organization and Sessions
Election of Of icers
The Senate shall elect its President and the House of Representatives, its
Speaker, by a majority vote of ALL its respective Members.
Quorum
There is a difference between a majority of "all the members of the
House" and a majority of "the House", the latter requiring less number
than the irst. (Avelino v Cuenco)
Rules of Proceedings
In Osmeña v. Pendatun, it was held that ‘the rules adopted by
deliberative bodies are subject to revocation, modi ication or waiver at
the pleasure of the body adopting them. Parliamentary rules are merely
procedural, and with their observance, the courts have no concern. They
may be waived or disregarded by the legislative body. Consequently,
mere failure to conform to parliamentary usage will not invalidate the
action (taken by a deliberative body) when the requisite number of
members have agreed to a particular measure.
Where the construction to be given to a rule affects persons other than
members of the legislative body the question presented is necessarily
judicial in character. Even its validity is open to question in a case
where private rights are involved. (Arroyo v De Venecia)
Generally, the Constitution DOES NOT require that the yeas and the nays
of the Members be taken every time a House has to vote, except only in
the following instances:
1.
2.
3.
upon the last and third readings of a bill,
at the request of one- ifth of the Members present, and
in repassing a bill over the veto of the President.
The Constitutional right of the Senate to promulgate its own rules of
proceedings has been recognized and af irmed by this Court. As such,
the exercise of this power is generally exempt from judicial
supervision and interference, except on a clear showing of such
arbitrary and improvident use of the power as will constitute a denial of
due process. The only limitation to the power of Congress to promulgate
its own rules is the observance of
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2) Conclusive as to due enactment - process required by
Congress in passing it onto a bill has been done; all of the
proceedings required have been followed.
1. quorum,
2. voting, and
3. 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, Jr. v Senate Committee of the Whole)
When rules of procedure should be published:
1.
2.
If it affects the rights of witnesses, as in inquiries in aid of
legislation under Section 21, Article VI;
Such rules expressly provide for their publication before
the rules can take effect.
Discipline of Members
➔ On the ground of disorderly behavior;
➔ With the concurrence of ⅔ of ALL its Members, suspend or
expel a Member;
➔ A penalty of suspension shall not exceed 60 days.
➔ Republic Act No. 3019 does not exclude from its coverage the
members of Congress. The Sandiganbayan did not err in
decreeing the assailed preventive suspension order. (Santiago
v Sandiganbayan)
Journal and Congressional Records
The Enrolled Bill Theory
An Enrolled bill is that bill which bears the signature of the Senate
President and Speaker of the House; the bill approved by both houses
and that which is sent to the President for approval.
It carries on its face a solemn assurance by the legislative and executive
departments of the government, charged, respectively, with the duty of
enacting and executing the laws, that it was duly passed by Congress.
A duly authenticated bill or resolution imports absolute verity and is
binding on the courts (Mabanag v Lopez Vito). It proves two things:
1) Conclusive as to tenor of bill - cannot entertain comments on
variance with journal/record; things there are conclusive.
Synthesized from Constitutional and Allied Political Law Notes
It is well settled that the enrolled bill—which uses the term "urea
formaldehyde" instead of "urea and formaldehyde"— is conclusive upon
the courts as regards the tenor of the measure passed by Congress and
approved by the President. (Casco v Gimenez)
If there has been any mistake in the printing of the bill before it was
certi ied by the of icers of Congress and approved by the Executive, the
remedy is by amendment or curative legislation, not by judicial
decree.
Probative Value of Journal
Journals should be public, because all are required to conform to them;
they should be permanent, that rights acquired today upon the faith of
what has been declared to be law shall not be destroyed tomorrow, or at
some remote period of time, by facts resting only in the memory of
individuals. (US v Pons)
Matters to be entered in the Journal
1.
Yeas and nays on 3rd and inal reading (Sec 26[2]);
2.
Veto message of the President (Sec 27[1]);
3.
Yeas and nays on repassing of vetoed bill (id);
4.
Yeas and nays on any question upon request of 1/5 of
members present (Sec 16[4])
Journal Entry Rule v. Enrolled Bill Theory
It may be noted that the enrolled bill theory is based mainly on "the
respect due to coequal and independent departments,” which requires
the judicial department "to accept, as having passed Congress, all bills
authenticated in the manner stated.” Thus it has also been stated in
other cases that if the attestation is absent and the same is not required
for the validity of a statute, the courts may resort to the journals and
other records of Congress for proof of its due enactment.
As far as Congress itself is concerned, there is nothing sacrosanct in the
certi ication made by the presiding of icers. It is merely a mode of
authentication. The journal of the proceedings of each House of
Congress is no ordinary record. The Constitution requires it. (Astorga
v Villegas)
By RGL
With respect to matters not expressly required to be entered in the
journal, the enrolled bill prevails in the event of any discrepancy.
(Morales v Subido)
Constitutional Organs within Congress
Electoral Tribunals
➔ Sole Judge. Not subject to appeal. May only be questioned via
Certiorari petition to the SC. Its exercise of power is intended to
be its own -- full, complete and unimpaired.
➔ Contests. May only be iled by one who seeks to replace the
protestee.
➔ Members. Electoral tribunal acquires jurisdiction upon taking
of oath and assumption of of ice of the proclaimed winner.
Prior to assumption, COMELEC has jurisdiction.
Composition
Each Electoral Tribunal shall be composed of 9 Members,
1.
2.
Three (3) of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and
The remaining six (6) shall be Members of the Senate or the
House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the
political parties and the parties or organizations registered
under the party-list system represented therein.
The senior Justice in the Electoral Tribunal shall be its Chairman.
Function
The HRET could continue or discontinue the revision proceedings ex
proprio motu, that is, of its own accord. There was nothing to prevent
the HRET from continuing the revision of its own accord by authority of
Rule 88.
The only prerequisite to the exercise by the HRET of its prerogative
under Rule 88 was its own determination that the evidence thus far
presented could affect the of icially proclaimed results. Much like the
appreciation of contested ballots and election documents, the
determination of whether the evidence could in luence the of icially
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Political Law Review
proclaimed results was a highly technical undertaking, a function best
left to the specialized expertise of the HRET.
Finally, it is hornbook doctrine that jurisdiction, once acquired, is not
lost at the instance of the parties but continues until the case is
terminated. (Dueñas, Jr. v HRET)
The phrase “election, returns and quali ications” should be
interpreted in its totality as referring to all matters affecting the validity
of the contestee’s title. But if it is necessary to specify, we can say that
1.
2.
3.
“election” referred to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the
casting and counting of the votes;
“returns” to the canvass of the returns and the proclamation of
the winners, including questions concerning the composition
of the board of canvassers and the authenticity of the election
returns; and
“quali ications” to matters that could be raised in a quo
warranto proceeding against the proclaimed winner, such as
his disloyalty or ineligibility or the inadequacy of his
certi icate of candidacy.
The word “sole” in Section 17, Article VI and Rule 12 of the Revised
Rules of the SET underscores the exclusivity of the SET’s jurisdiction
over election contests relating to members of the Senate. (Barbers v
Comelec)
In Pangilinan v Comelec, we ruled that “where the candidate has
already been proclaimed winner in the congressional elections, the
remedy of petitioner is to ile an electoral protest with the Electoral
Tribunal of the House of Representatives.”
Once a winning candidate has been proclaimed, taken his oath, and
assumed of ice as a Member of the House of Representatives, the
jurisdiction of the House of Representatives Electoral Tribunal
begins over election contests relating to his election, returns, and
quali ications, and mere allegation as to the invalidity of her
proclamation does not divest the Electoral Tribunal of its
jurisdiction. (Limkaichong v Comelec)
To be considered a Member of the House of Representatives, there
must be a concurrence of the following requisites:
(1) a valid proclamation,
(2) a proper oath, and
(3) assumption of of ice.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
Before there is a valid or of icial 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)
Judicial Review
The degree of judicial intervention should not be made to depend on
how many legislative members of the HRET belong to this party or that
party. The test remains the same - manifest grave abuse of
discretion. (Co v HRET)
The discretion of the House to choose its members to the HRET and the
CA is not absolute, being subject to the mandatory constitutional rule
on proportional representation. Under the doctrine of primary
jurisdiction, prior recourse to the House is necessary before
petitioners may bring the instant case to the court. (Pimentel v HRET)
A petition for quo warranto in the HRET is directed against one who
has been duly elected and proclaimed for having obtained the highest
number of votes but whose eligibility is in question at the time of such
proclamation. (Codilla v De Venecia)
In Martinez III v HRET, the Supreme Court held that respondent HRET
gravely abused its discretion in af irming the proclamation of
respondent Salimbangon as the duly elected Representative of the
Fourth Legislative District of Cebu despite the inal outcome of revision
showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ"
written on the line for Representative, votes which should have been
properly counted in favor of petitioner and not nulli ied as stray votes,
after considering all relevant circumstances clearly establishing that
such votes could not have been intended for "Edilito C. Martinez" who
was declared a nuisance candidate in a inal judgment.
Commission on Appointments
It has been established that the legality of illing up the membership
of the Commission on Appointments is a justiciable issue and not a
political question.
The Constitution does not contemplate that the Commission on
Appointments must necessarily include twelve (12) senators and
twelve (12) members of the House of Representatives. What the
Constitution requires is that there be at least a majority of the entire
membership. (Guingona, Jr. v Gonzales)
A political party must have at least two senators in the Senate to be
able to have a representative in the Commission on Appointments, so
By RGL
that any number less than 2 will not entitle such a party a membership
in the Commission on Appointments. (Coseteng v Mitra)
The House of Representatives has the authority to change its
representation in the Commission on Appointments to re lect at any
time the changes that may transpire in the political alignments of its
membership. It is understood that such changes must be permanent
and do not include the temporary alliances or factional divisions
not involving severance of political loyalties or formal disaf iliation and
permanent shifts of allegiance from one political party to another.
(Daza v Singson)
Salaries, Privileges and Prohibitions
Freedom from Arrest
In all offenses punishable by not more than six years imprisonment,
be privileged from arrest while the Congress is in session.
Privilege of Speech and Debate
An action for damages on account of defamatory statements not
constituting protected or privileged "speech or debate" is a controversy
well within the courts' authority to settle.
The test therefore is whether the utterance was made in the performance
of one’s of icial functions. It is the nature of the speech and not the
locale or the place where the speech was uttered.
Parliamentary non-accountability cannot be invoked to insulate
statements uttered outside the "sphere of legislative activity," from
judicial review. Statements made in response to queries from the media
during gaps in the Senate's plenary and committee hearings are beyond
the purview of privileged speech or debate under Section 11, Article
VI. (Trillanes v Castillo-Marigomen)
The determination of whether the publication in question is a privileged
communication depends on whether or not the aforementioned
publication falls within the purview of the phrase "speech or debate
therein" - that is to say, in Congress - used in this provision.
Said expression refers to utterances made by Congressmen in the
performance of their of icial functions, such as
1. speeches delivered,
2. statements made, or
3. votes cast
in the halls of Congress, while the same is in session, as well as bills
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Political Law Review
introduced in Congress, whether the same is in session or not, and other
acts performed by Congressmen, either in Congress or outside the
premises housing its of ices, in the of icial 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.
A published open letter to the President of the Philippines does not
belong to said category. (Jimenez v Cabangbang)
The performance of legitimate and even essential duties by public
of icers has never been an excuse to free a person validly in prison.
Never has the call of a particular duty lifted a prisoner into a
different classi ication from those others who are validly
restrained by law. (Trillanes IV v Pimentel, Sr.)
Courts do not interfere with the legislature or its members in the
manner they perform their functions in the legislative loor or in
committee rooms. Any claim of an unworthy purpose or of the falsity
and mala ides of the statement uttered by the member of the Congress
does not destroy the privilege. The disciplinary authority of the
assembly and the voters, not the courts, can properly discourage or
correct such abuses committed in the name of parliamentary immunity.
(Pobre v Santiago)
Restrictions
No Member of Congress may hold any other of ice 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.
(Incompatible of ice)
Neither shall he be appointed to any of ice which may have been
created or the emoluments thereof increased during the term for which
he was elected. (Forbidden of ice)
In Adaza v Pacana, Jr., petitioner has taken his oath of of ice as an
elected Mambabatas Pambansa and has been discharging his duties as
such. This fact operated to vacate his former post and he cannot now
continue to occupy the same, nor attempt to discharge its functions.
The sweeping, all-embracing prohibitions imposed on the President and
his of icial family, which prohibitions are not similarly imposed on
other public of icials or employees such as the Members of Congress,
members of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to treat the
Synthesized from Constitutional and Allied Political Law Notes
RECAP
President and his of icial family as a class by itself and to impose upon
said class stricter prohibitions.
Thus, while all other appointive of icials in the civil service are allowed
to hold other of ice or employment in the government during their
tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do
so only when expressly authorized by the Constitution itself.
In other words, Section 7, Article IX-B is meant to lay down the general
rule applicable to all elective and appointive public of icials and
employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants. (Funa v Executive Secretary )
Appearance as counsel
No member of Congress may personally appear as counsel before any
court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies.
Powers
Legislative power has been de ined not only as the power to pass laws
but also the power to alter or modify them. It also covers the
amendment of existing legislations and that would still be encompassed
as legislative power.
General Plenary Powers
The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on initiative and
referendum. (Sec 1 Art VI)
Requirements as to Bills
Subject and Title
Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof. The purposes of the one subject one title rule are:
(1) to prevent hodge-podge or "log-rolling" legislation;
(2) to prevent surprise or fraud upon the legislature by means of
provisions in bills of which the title gives no intimation, and
By RGL
which might therefore be overlooked and carelessly and
unintentionally adopted; and
(3) to fairly apprise the people, through such publication of
legislative proceedings as is usually made, of the subject of
legislation that is being considered, in order that they may have
the opportunity of being heard thereon, by petition or
otherwise, if they shall so desire.
As to speci ic laws
The transfer of appropriated funds, to be valid under Section 25(5),
supra, must be made upon a concurrence of the following requisites,
namely:
(1) There is a law authorizing the President, the President of the
Senate, the Speaker, the Chief Justice, and the heads of the
Constitutional Commissions to transfer funds within their
respective of ices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective of ices; and
(3) The purpose of the transfer is to augment an item in the
general appropriations law for their respective of ices.
According to the Court, savings refer to that portion or balance that is
available after the completion or the inal discontinuance or the
abandonment of the work for the activity. In order to augment a
particular item, it must irst be determined that that item was de icient.
The power to augment is to be used only when the purpose for which
the funds had been allocated were already satis ied, or the need
for such funds had ceased to exist, for only then could savings be
properly realized. This interpretation prevents the Executive from
unduly transgressing Congress’ power of the purse.
According to Philconsa v. Enriquez: “Impoundment refers to a
refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget
authority of any type.”
Section 25(5) has delineated borders between their of ices, such that
funds appropriated for one of ice are prohibited from crossing over to
another of ice even in the guise of augmentation of a de icient item or
items. Thus, we call such transfers of funds cross-border transfers or
cross-border augmentations. Cross-border transfers, whether as
augmentation, or as aid, were prohibited under Section 25(5).
Procedure for passage of bills
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The title need not be an abstract or index of the Act.
Presidential Veto
The general veto power of the President results in the veto of the
entire bill, as a general rule.
The item-veto power or the line-veto power allows the exercise of the
veto over a particular item or items in an appropriation, revenue, or
tariff bill. As speci ied, the President may not veto less than all of an
item of an Appropriations Bill. In other words, the power given the
executive to disapprove any item or items in an Appropriations Bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item.
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the
details, the distinct and severable parts x x x of the bill. It is an
indivisible sum of money dedicated to a stated purpose.
Explicit is the requirement that a provision in the Appropriations Bill
should relate speci ically to some "particular appropriation"
therein. Any provision which does not relate to any particular item, or
which extends in its operation beyond an item of appropriation, is
considered "an inappropriate provision" which can be vetoed
separately from an item. Also to be included in the category of
"inappropriate provisions" are unconstitutional provisions and
provisions which are intended to amend other laws, because clearly
these kinds of laws have no place in an appropriations bill.
RECAP
administrative agencies must comply with two (2) tests: (1) the
completeness test; and (2) the suf icient standard test.
The completeness test requires that the law to be implemented be
complete and should set forth therein the policy to be executed, carried
out or implemented by the delegate. On the other hand, the suf icient
standard test requires that the law to be implemented contain
adequate guidelines to map out the boundaries of the delegate's
authority. To be suf icient, the standard must specify the limits of the
delegate's authority, announce the legislative policy, and identify the
conditions under which it is to be implemented. Furthermore, the
Administrative Code requires that administrative agencies ile with the
University of the Philippines Law Center the rules they adopt, which
will then be effective 15 days after iling.
Prohibition on passage of irrepealable laws
Among the implied substantive limitations on the legislative powers is
the prohibition against the passage of irrepealable laws. Irrepealable
laws deprive succeeding legislatures of the fundamental best senses
carte blanche in crafting laws appropriate to the operative milieu. (City
of Davao v RTC Br XII - Davao City)
While a supermajority is not a total ban against a repeal, it is a
limitation in excess of what the Constitution requires on the passage of
bills and is constitutionally obnoxious because it signi icantly
constricts the future legislators' room for action and lexibility. (Kida v
Senate of the Philippines)
Aids to Legislation
Limitations to Power of Legislation
Express Limitations
Section 27 of Republic Act No. 6770 cannot validly authorize an appeal
to this Court from decisions of the Of ice of the Ombudsman in
administrative disciplinary cases. It consequently violates the
proscription in Section 30, Article VI of the Constitution against a law
which increases the Appellate jurisdiction of this Court. (Fabian v
Desierto)
Non-delegation of legislative powers
As an exception to the non-delegation of legislative power, Congress
has historically delegated to the chief of the police force the power to
approve or disapprove applications for license to possess or deal with
irearms. To validly exercise their quasi-legislative powers,
Synthesized from Constitutional and Allied Political Law Notes
Question Hour
While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation.
Legislative Investigations
If the subject of investigation before the committee is within the range of
legitimate legislative inquiry and the proposed testimony of the witness
called relates to that subject, obedience to its process may be enforced
by the committee by imprisonment.
The 1987 Constitution recognizes the power of investigation, not just of
Congress, but also of "any of its committee." This is signi icant
because it constitutes a direct conferral of investigatory power upon
the committees.
The elements of presidential communications privilege are,to wit:
By RGL
1) The protected communication must relate to a "quintessential
and non-delegable presidential power."
2) The communication must be authored or "solicited and
received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in
"operational proximity" with the President.
3) The presidential communications privilege remains a
quali ied privilege that may be overcome by a showing of
adequate need, such that the information sought "likely
contains important evidence" and by the unavailability of the
information elsewhere by an appropriate investigating
authority.
Publication requirement
It is incumbent upon the Senate/HoR 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 suf iciently put the
public on notice.
Other Powers
Con irm Certain Appointments
Under the provisions of the 1987 Constitution, there are four (4)
groups of of icers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, of icers of the armed forces from the rank
of colonel or naval captain, and other of icers whose appointments are
vested in him in this Constitution;
Second, all other of icers of the Government whose appointments
are not otherwise provided for by law;
Third, those whom the President may be authorized by law to
appoint;
Fourth, of icers lower in rank whose appointments the Congress
may by law vest in the President alone.
Only the irst group of of icers is to be appointed with the consent
of the Commission on Appointments.
Power of Impeachment or Political Justice
Who may be impeached
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1.
2.
3.
4.
5.
The President,
the Vice-President,
the Members of the Supreme Court,
the Members of the Constitutional Commissions, and
the Ombudsman
Grounds
for, and conviction of,
1.
2.
3.
4.
5.
6.
culpable violation of the Constitution,
treason,
bribery,
graft and corruption,
other high crimes, or
betrayal of public trust.
RECAP
The President and the Vice-President shall be elected by direct vote of
the people for a term of six years
Executive Immunity
The concept of presidential immunity under our governmental and
constitutional system does not distinguish whether or not the suit
pertains to an of icial act of the President. Neither does immunity hinge
on the nature of the suit. (De Lima v. Duterte)
Executive Privilege
It is the power of the Government to withhold information from the
public, the courts, and the Congress.
1.
2.
Effect
Judgment in cases of impeachment shall not extend further than
removal from of ice and disquali ication to hold any of ice under the
Republic of the Philippines, but the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment, according to
law.
3.
One variety of the privilege is the state secrets privilege on
the ground that the information is of such nature that its
disclosure would subvert crucial military or diplomatic
objectives.
Another variety is the informer's privilege, or the privilege of
the Government not to disclose the identity of persons who
furnish information of violations of law to of icers charged
with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been
said to attach to intragovernmental documents re lecting
advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated.
EXECUTIVE DEPARTMENT
The extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in
favor of disclosure.
The President
It is properly invoked in relation to speci ic categories of
information and not to categories of persons. (Senate v. Ermita)
Quali ications, Election, Term, Oath
1.
2.
3.
4.
5.
a natural-born citizen of the Philippines,
a registered voter,
able to read and write,
at least forty years of age on the day of the election, and
a resident of the Philippines for at least ten years immediately
preceding such election.
Synthesized from Constitutional and Allied Political Law Notes
There are two (2) kinds of executive privilege;
one is the presidential communications privilege and,
Accordingly, they are characterized by marked distinctions.
Presidential communications privilege applies to decision-making
of the President while, the deliberative process privilege, to
decision-making of executive of icials. The irst is rooted in the
constitutional principle of separation of power and the President's
unique constitutional role; the second on common law privilege. Unlike
the
deliberative
process
privilege,
the
presidential
communications privilege applies to documents in their entirety,
and covers inal and post-decisional materials as well as
pre-deliberative ones. As a consequence, congressional or judicial
negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process
privilege.
Jurisprudence teaches that for the claim to be properly invoked, there
must be a formal claim of privilege, lodged by the head of the
department which has control over the matter. A formal and proper
claim of executive privilege requires a "precise and certain reason" for
preserving their con identiality. (Neri v. Senate Committee on
Accountability of Public Of icers and Investigations)
Prohibitions
The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this
Constitution, hold ANY other of ice or employment during their
tenure.
In order that additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution,
1.
2.
3.
such additional duties or functions must be required by the
primary functions of the of icial concerned,
who is to perform the same in an ex-of icio capacity as
provided by law,
without receiving any additional compensation therefor.
(Civil Liberties Union v Executive Secretary)
the other is the deliberative process privilege.
The former pertains to "communications, documents or other
materials that re lect presidential decision-making and
deliberations and that the President believes should remain
con idential."
The
latter
includes
`advisory
opinions,
recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated."
By RGL
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RECAP
perpetrators thereof.
Powers and Functions of the President
Executive Power
Power of General Supervision over LGUs
The executive power shall be vested in THE President of the
Philippines. Executive power is more than the sum of speci ic
powers so enumerated. The power involved is the President's
1.
residual power to protect the general welfare of the people.
2.
3.
Power of Control
The President shall have control of all the executive departments,
bureaus, and of ices. He shall ensure that the laws be faithfully
executed.
There are powers vested in the President by the Constitution which may
not be delegated to or exercised by an agent or alter ego of the President.
1.
2.
3.
The declaration of martial law,
the suspension of the writ of habeas corpus, and
the exercise of the pardoning power notwithstanding the
judicial determination of guilt of the accused,
all fall within this special class that demands the exclusive exercise by
the President of the constitutionally vested power. The list is by no
means exclusive, but there must be a showing that the executive power
in question is of similar gravitas and exceptional import.
While the Court has at times expanded the application of the doctrine
of quali ied political agency, 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. (PIDS v COA)
To hold someone liable under the doctrine of command responsibility,
the following elements must obtain:
A. the existence of a superior-subordinate relationship between
the accused as superior and the perpetrator of the crime as his
subordinate;
B. the superior knew or had reason to know that the crime was
about to be or had been committed; and
C. the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the
Synthesized from Constitutional and Allied Political Law Notes
1.
4.
5.
Local autonomy, under the Constitution, involves a mere
decentralization of administration, not of power, in which
local of icials remain accountable to the central government in
the manner the law may provide;
The new Constitution does not prescribe federalism;
The change in constitutional language (with respect to the
supervision clause) was meant but to deny legislative control
over local governments; it did not exempt the latter from
legislative regulation provided regulation is consistent with the
fundamental premise of autonomy;
Since local governments remain accountable to the national
authority, the latter may, by law, and in the manner set forth
therein, impose disciplinary action against local of icials;
"Supervision" and "investigation" are not inconsistent terms:
"investigation" does not signify "control" (which the President
does not have).
Power of Appointment
2.
The spouse and relatives by consanguinity or af inity within
the fourth civil degree of the President shall not, during his
tenure, be appointed as Members of the Constitutional
Commissions, or the Of ice of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or
of ices,
including government-owned or controlled
corporations and their subsidiaries.
Two months immediately before the next presidential
elections and up to the end of his 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.
Interim or recess appointments
It is the clear intent of the framers of our Constitution to make a recess
appointment effective only
(a) until disapproval by the Commission on Appointments, or
(b) until the next adjournment of Congress, and never a day longer
regardless of the nature of the session adjourned.
Basis
Power to remove
Appointment to of ice is intrinsically an executive act involving the
exercise of discretion.
Under the doctrine of implication, the power to appoint carries with it
the power to remove. As a general rule, therefore, all of icers
appointed by the President are also removable by him.
With Concurrence of COA
(a)
(a)
(b)
(c)
(d)
Heads of Departments
Ambassadors, Public Ministers and Consuls
Of icers of AFP from colonel and naval captain
Chairman and members of Constitutional Commissions
Regular members of JBC (Art. VIII, Sec. 8[2])
Upon recommendation of JBC
(a) Members of SC and all other courts;
(b) Ombudsman and deputies.
Limitations to Appointing Power
Prohibition against Nepotism and Midnight Appointments
By RGL
The exception to this is when the law expressly provides otherwise –
that is, when the power to remove is expressly vested in an of ice or
authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the
President's power to appoint.
1.
Under Section 9, Article VIII of the 1987 Constitution, the
Members of the Supreme Court and judges of lower courts shall
be appointed by the President.
a.
However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by
Congress (Section 2, Article XI),
b.
while judges of lower courts may be removed only by
the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11,
Article VIII).
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2.
3.
The Chairpersons and Commissioners of the Civil Service
Commission [Section 1(2), Article IX(B)], the Commission on
Elections [Section 1(2), Article IX(C)], and the Commission on
Audit [Section 1(2), Article IX(D)] shall likewise be appointed
by the President, but they may be removed only by
impeachment (Section 2, Article XI).
The Ombudsman himself shall be appointed by the President
(Section 9, Article XI) but may also be removed only by
impeachment (Section 2, Article XI).
Pardoning Power
1.
2.
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person
pardoned, because the courts take no notice thereof;
while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the
courts should take judicial notice.
Pardon is granted to one after conviction;
while amnesty is granted to classes of persons or
communities who may be guilty of political offenses, generally
before or after the institution of the criminal prosecution and
sometimes after conviction.
3.
Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted,
that is, it abolishes or forgives the punishment, and for that
reason it does "nor work the restoration of the rights to hold
public of ice, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon," and it "in no
case exempts the culprit from the payment of the civil
indemnity imposed upon him by the sentence".
While amnesty looks backward and abolishes and puts into
oblivion the offense with which he is charged that the person
released by amnesty stands before the law precisely as though
he had committed no offense.
Effect of Pardon
The pardon granted to petitioner has resulted in removing her
disquali ication from holding public employment but it cannot go
beyond that. To regain her former post as assistant city treasurer, she
must reapply and undergo the usual procedure required for a new
appointment. (Monsanto v. Factoran)
Synthesized from Constitutional and Allied Political Law Notes
RECAP
The only instances in which the President may not extend pardon
remain to be in:
(1) impeachment cases;
(2) cases that have not yet resulted in a inal conviction; and
(3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation
coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the President. The
foregoing pronouncements solidify the thesis that Articles 36 and 41
of the RPC cannot, in any way, serve to abridge or diminish the
exclusive power and prerogative of the President to pardon
persons convicted of violating penal statutes. (Risos-Vidal v
COMELEC)
Who may avail of amnesty
The invocation of amnesty is in the nature of a. plea of confession and
avoidance, which means that the pleader admits the allegations against
him but disclaims liability therefor on account of intervening facts
which, if proved, would bring the crime charged within the scope of the
amnesty proclamation. (Vera v. People)
The crimes to be amnestied must have been for violations of subversion
laws or those de ined and proscribed under crimes against public
order under the RPC. (Macaga-an v People)
Military Powers
🛈 Graduated powers
Sec 18 grants the President, as Commander-in-Chief, a “sequence” of
“graduated powers.” From the most to the least benign, these are:
1.
the calling out power,
The only criterion is that ‘whenever it becomes necessary,’
the President may call the armed forces ‘to prevent or suppress
lawless violence, invasion or rebellion.’
2.
the power to suspend the privilege of the writ of habeas
corpus
It is only the privilege that is suspended, not the writ itself.
Thus, when a person is detained for an offense related to
rebellion or invasion, the Judge need not inquire into the
legality of his detention.
By RGL
3.
the power to declare martial law.
For the latter two powers, the Constitution requires 2 requisites
to concur:
(1) An actual invasion or rebellion; AND
(2) That public safety requires it.
🛈 On declaring a state of rebellion
Section 18, Article VII does not expressly prohibit the President from
declaring a state of rebellion. The President’s authority to declare a
state of rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her
Commander-in-Chief powers.
In calling out the armed forces, a declaration of a state of rebellion
is an utter super luity. At most, it only gives notice to the nation that
such a state exists. Sanlakas v Reyes inds that such a declaration is
devoid of any legal signi icance. For all legal intents, the declaration
is deemed not written.
During a state of rebellion, Lacson v Perez tells us that authorities may
only resort to warrantless arrests of persons suspected of rebellion, as
provided under Section 5, Rule 113 of the Rules of Court. They should
not be based on the declaration of a "state of rebellion."
🛈 On calling out power
IBP v Zamora instructs that when the President calls the armed forces
to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his
wisdom. It is incumbent upon those who question the legality of the
exercise of such power that the President’s decision is totally bereft of
factual basis.
There is no provision dealing with the revocation or review of the
President’s action to call out the armed forces, unlike that of the
proclamation of martial law or suspension of the privilege of the writ of
habeas corpus.
🛈 On martial law and suspension of the privilege of the writ of
habeas corpus
Fortun v Arroyo af irms that although Sec 18 Art VII vests in the
President the power to proclaim martial law or suspend the privilege of
the writ of habeas corpus, he shares such power with Congress.
Thus:
1.
The President’s proclamation or suspension is temporary,
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2.
3.
4.
good for only 60 days;
He must, within 48 hours of the proclamation or suspension,
report his action in person or in writing to Congress;
Both houses of Congress, if not in session must jointly convene
within 24 hours of the proclamation or suspension for the
purpose of reviewing its validity; and
The Congress, voting jointly, may revoke or af irm the
President’s proclamation or suspension, allow their limited
effectivity to lapse, or extend the same if Congress deems
warranted.
The constitutional validity of the President’s proclamation of martial
law or suspension of the writ of habeas corpus is irst a political
question in the hands of Congress before it becomes a justiciable one
in the hands of the Court.
Lansang held that the factual basis of the declaration of martial law and
the suspension of the privilege of the writ of habeas corpus is not a
political question and is within the ambit of judicial review. The phrase
"in an appropriate proceeding" appearing on the third paragraph of
Section 18, Article VII refers to any action initiated by a citizen for
the purpose of questioning the suf iciency of the factual basis of
the exercise of the Chief Executive's emergency powers. It could be
denominated as a complaint, a petition, or a matter to be resolved by the
Court.
In Lagman v Medialdea, the Court had the occasion to reexamine
Fortun and clarify that 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. In
other words, the judicial power to review is not dependent on
whether Congress exercised its own power to review the act of the
President.
Lagman established the suf iciency of factual basis test as being the
only test for judicial review of the President's power to declare martial
law and suspend the privilege of the writ of habeas corpus under
Section 18, Article VII.
➔ It must be based only on facts or information known by or
available to the President at the time he made the declaration
or suspension, which facts or information are found in the
proclamation as well as the written Report submitted by him to
Congress.
➔ The Court should look into the full complement or totality of
the factual basis, and not piecemeal or individually.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ Neither should the Court expect absolute correctness of
the facts stated in the proclamation and in the written Report as
the President could not be expected to verify the accuracy and
veracity of all facts reported to him due to the urgency of the
situation.
➔ To require precision in the President's appreciation of facts
would unduly burden him and therefore impede the process of
his decision-making.
The parameters for determining the suf iciency of factual basis are as
follows:
1) actual rebellion or invasion;
2) public safety requires it; the irst two requirements must
concur; and
3) there is probable cause for the President to believe that there
is actual rebellion or invasion.
Public safety "involves the prevention of and protection from events
that could endanger the safety of the general public from signi icant
danger, injury/harm, or damage, such as crimes or disasters."
🛈 On extending martial law
The only limitations to the exercise of congressional authority to
extend such proclamation or suspension are that:
a) the extension should be upon the President's initiative;
b) it should be grounded on the persistence of the invasion or
rebellion and the demands of public safety; and
c) it is subject to the Court's review of the suf iciency of its
factual basis upon the petition of any citizen.
The Court is not barred by the doctrine of conclusiveness of
judgment from examining the persistence of rebellion. The Court's
power to review the extension of martial law is limited solely to the
determination of the suf iciency of the factual basis thereof. The
manner in which Congress deliberated on the President's request for
extension is not subject to judicial review.
🛈 Checks and balances on the exercise of martial law and
suspension powers
(a) The President may declare martial law or suspend of the
privilege or the writ of the privilege of habeas corpus only
when there is an invasion or rebellion and public safety
requires such declaration or suspension.
(b) The President's proclamation or suspension shall be for a
By RGL
period not exceeding 60 days.
(c) Within 48 hours from the proclamation or suspension, the
President must submit a Report in person or in writing to
Congress.
(d) The Congress, voting jointly and by a vote of at least a
majority of all its Members, can revoke the proclamation or
suspension.
(e) The President cannot set aside the Congress' revocation of
his proclamation or suspension.
(f) The President cannot, by himself, extend his proclamation or
suspension. He should ask the Congress' approval.
(g) 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.
(h) The extension of the proclamation or suspension shall only be
approved when the invasion or rebellion persists and public
safety requires it.
(i) The Supreme Court may review the suf iciency of the factual
basis of the proclamation or suspension or the extension
thereof, in an appropriate proceeding iled by any citizen.
(j) The Supreme Court must promulgate its decision within 30
days from the iling of the appropriate proceeding.
(k) Martial law does not suspend the operation of the
Constitution.
(l) 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.
(m) The suspension of the privilege of the writ applies only to
persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.
(n) 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.
🛈 Compare Writs of Habeas Corpus, Habeas Data, and Amparo
D. Emergency Powers
Sec 23(2) Art VI provides that in times of war or other national
emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national
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policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
In Ampatuan v Puno, the Court clari ied that the President did not
proclaim a national emergency invoking Sec 23(2) of Art VI, only a
state of emergency in the three places mentioned. And she did not act
pursuant to any law enacted by Congress that authorized her to exercise
extraordinary powers. The calling out of the armed forces to prevent or
suppress lawless violence in such places is a power that the
Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.
🛈 On declaring a state of national emergency
David v Arroyo drew a distinction between the President's authority to
declare "a state of national emergency" and to exercise emergency
powers. 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
requires a delegation from Congress.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to
delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that during
grave emergencies, it may not be possible or practicable for Congress to
meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.
Section 17, Article XII is an aspect of the emergency powers clause.
The taking over of private business affected with public interest is
just another facet of the emergency powers generally reposed upon
Congress. Thus, without congressional authority, the President can not
unilaterally exercise the power to take over private business affected
with public interest such as the media.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
Power over Foreign Affairs
Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are suf iciently
met, viz:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and,
when so required by congress, rati ied by a majority of the
votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.
The phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty.
In our jurisdiction, the power to ratify is vested in the President and
not, as commonly believed, in the legislature. The role of the Senate is
limited only to giving or withholding its consent, or concurrence, to the
rati ication. (Bayan v Zamora)
The usual steps in the treaty-making process are: negotiation,
signature, rati ication, and exchange of the instruments of
rati ication. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not essential to
the validity of the agreement as between the parties.
The signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is usually
performed by the state's authorized representative in the diplomatic
mission. Rati ication, on the other hand, is the formal act by which a
state con irms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken
by the head of the state or of the government.
Although the refusal of a state to ratify a treaty which has been signed in
its behalf is a serious step that should not be taken lightly, such
decision is within the competence of the President alone, which cannot
be encroached by this Court via a writ of mandamus. (Pimentel v
Executive Secretary)
Deportation of undesirable aliens
The State has the inherent power to deport undesirable aliens. That
power may be exercised by the Chief Executive when he deems such
action necessary for the peace and domestic tranquility of the nation.
The right of a country to expel or deport aliens because their continued
presence is detrimental to public welfare is absolute and unquali ied.
(Go Tek v Deportation Board)
By RGL
JUDICIAL DEPARTMENT
The Supreme Court
Composition
No temporary composition of the Supreme Court is authorized by the
constitution. (Vargas v. Rilloraza)
The constitution of divisions has been permitted for convenience and
the prompt dispatch of business. The provision in no way involves
the question of jurisdiction. (US v. Limsiongco)
Appointment and Qualifications
No person shall be appointed Member of the Supreme Court or any
lower collegiate court unless he is a natural-born citizen of the
Philippines. A Member of the Supreme Court must be
1.
2.
at least forty years of age, and
must have been for ifteen years or more, a judge of a lower
court or engaged in the practice of law in the Philippines.
A Member of the Judiciary must be a person of proven competence,
integrity, probity, and independence.
Salary
The salaries of Justices and Judges are properly subject to a
general income tax law applicable to all income earners and that
payment of such income tax by Justices and Judges does not fall within
the constitutional protection against decrease of their salaries
during their continuance in of ice. (Nitafan v. CIR)
Removal
A public of icer who under the Constitution is required to be a Member
of the Philippine Bar as a quali ication for the of ice held by him and
who may be removed from of ice only by impeachment, cannot be
charged with disbarment during the incumbency of such public of icer.
(Re Pamatong)
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Powers of the Supreme Court
RECAP
3.
Assign temporarily judges of lower courts to other stations as
public interest may require. Such temporary assignment shall not
exceed six months without the consent of the judge concerned.
The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
4.
Order a change of venue or place of trial to avoid a miscarriage of
justice.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable.
5.
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall provide a
simpli ied and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
6.
Appoint all of icials and employees of the Judiciary in
accordance with the Civil Service Law.
Plea bargaining has been de ined as "a process whereby the accused
and the prosecution work out a mutually satisfactory disposition of the
case subject to court approval."
Under the Constitution, the power to amend rules of procedure is
constitutionally vested in the Supreme Court. Procedural matters, irst
and foremost, fall more squarely within the rule-making prerogative of
the Supreme Court than the law-making power of Congress. (People v.
Mateo re intermediate review of the CA of cases requiring automatic
review by the SC)
Considering the presence of mutuality of advantage, 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. (Estipona, Jr. v. Lobrigo)
While the power to de ine, prescribe, and apportion the jurisdiction of
the various courts is, by constitutional design, vested unto Congress,
the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts belongs exclusively to this Court as per
Section 5 (5), Article VIII. Thus, as it now stands, Congress has no
authority to repeal, alter, or supplement rules concerning pleading,
practice, and procedure. (Carpio-Morales v. CA)
Manner of sitting and votes required
Judicial Power
Judicial Review
It is the power and duty of the courts 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.
Jurisdiction
1.
Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
2.
Review, revise, reverse, modify, or af irm on appeal or
certiorari, as the law or the Rules of Court may provide, inal
judgments and orders of lower courts in:
a.
All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation is in question.
b.
All cases involving the legality of any tax, impost, assessment,
or toll, or any penalty imposed in relation thereto.
c.
All cases in which the jurisdiction of any lower court is in
issue.
d.
All criminal cases in which the penalty imposed is reclusion
perpetua or higher.
e.
All cases in which only an error or question of law is involved.
The power of a court to issue provisional injunctive reliefs coincides
with its inherent power to issue all auxiliary writs, processes, and other
means necessary to carry its acquired jurisdiction into effect. (ibid.)
Since the payment of legal fees is a vital component of the rules
promulgated by this Court concerning pleading, practice and procedure,
it cannot be validly annulled, changed or modi ied by Congress. (In re
NPC)
Substantive law is that part of the law which creates, de ines and
Synthesized from Constitutional and Allied Political Law Notes
By RGL
regulates rights, or which regulates the right and duties which give rise
to a cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which
prescribes the method of enforcing rights or obtain redress for their
invasions.
In determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or
modi ies 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 classi ied as a substantive
matter; but if it operates as a means of implementing an existing right
then the rule deals merely with procedure.
Rule 56, Section 7. Procedure if opinion is equally divided. —
Where the court en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall again be deliberated on, and if
after such deliberation no decision is reached,
1.
2.
3.
the original action commenced in the court shall be
dismissed,
in appealed cases, the judgment or order appealed from shall
stand af irmed; and
on all incidental matters, the petition or motion shall be
denied.
The Internal Rules of the Supreme Court (IRSC) states that the Court en
banc shall act on the following matters and cases:
(a) cases in which the constitutionality or validity of any treaty,
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international or executive agreement, law, executive order,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;
(b) criminal cases in which the appealed decision imposes the
death penalty or reclusion perpetua;
RECAP
supervision of all courts and their personnel.
The doctrine of immutability of decisions applies only to inal and
executory decisions.
Mandatory periods for deciding cases
(c) cases raising novel questions of law;
All cases or matters iled after the effectivity of this Constitution must
(d) cases affecting ambassadors, other public ministers, and
consuls;
be decided or resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced by the Supreme
Court, twelve months for all lower collegiate courts, and three
(e) cases involving decisions, resolutions, and orders of the CSC,
the COMELEC, and the COA;
(f) cases where the penalty recommended or imposed is
(i)
(ii)
months for all other lower courts.
the dismissal of a judge,
Administrative Powers
the disbarment of a lawyer,
Supervision of lower courts
(iii)
the suspension of any of them for a period of more
than one year, OR
(iv)
a ine exceeding forty thousand pesos;
(g) cases covered by the preceding paragraph and involving the
reinstatement in the judiciary of a dismissed judge, the
reinstatement of a lawyer in the roll of attorneys, or the lifting
of a judge's suspension or a lawyer's suspension from the
practice of law;
Where a criminal complaint against a judge or other court employee
arises from their administrative duties, the Ombudsman must defer
action on said complaint and refer the same to this Court for
determination whether said judge or court employee had acted within
the scope of their administrative duties. (Maceda v. Vasquez)
Rule-making Powers
(h) cases involving the discipline of a Member of the Court, or a
Presiding Justice, or any Associate Justice of the collegial
appellate court;
The admission, suspension, disbarment and reinstatement of attorneys
at law in the practice of the profession and their supervision have been
indisputably a judicial function and responsibility. (In re Cunanan re
Bar Flunkers Act)
(i) cases where a doctrine or principle laid down by the Court en
banc or by a Division may be modi ied or reversed;
Laws are unconstitutional on the following grounds:
(j) cases involving con licting decisions of two or more
divisions;
irst, because they are not within the legislative powers of Congress
to enact, or Congress has exceeded its powers;
(k) cases where three votes in a Division cannot be obtained;
second, because they create or establish arbitrary methods or
forms that infringe constitutional principles; and
(l) Division cases where the subject matter has a huge inancial
impact on businesses or affects the welfare of a community;
(m) Subject to Section 11 (b) of this rule, other division cases that,
in the opinion of at least three Members of the Division who
are voting and present, are appropriate for transfer to the Court
en banc;
(n) cases that the Court en banc deems of suf icient importance
to merit its attention; and
(o) all matters involving policy decisions in the administrative
Synthesized from Constitutional and Allied Political Law Notes
third, because their purposes or effects violate the Constitution or
its basic principles.
An "Integrated Bar" is a State organized Bar, to which every lawyer
must belong, as distinguished from bar associations organized by
individual lawyers themselves, membership in which is voluntary. (In
re Edillon)
Section 5, Article VIII of the 1987 Constitution confers on the Supreme
Court the power to promulgate rules affecting the IBP. Implicit in
By RGL
this constitutional grant is the power to supervise all the activities of
the IBP, including the election of its of icers. (In re De Vera)
Under a "continuing mandamus," the Court may, under
extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative
inaction or indifference. (MMDA v Concerned Residents of Manila Bay)
The Lower Courts
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. (Ynot v. IAC)
The purpose of the rule that a member who takes no part in a decision
or resolution must state the reason for his inhibition was meant to see
to it that all justices participate in the promulgation of decisions. Being
a device to dissuade members of this Court and all lower collegiate
courts from not taking part in the deliberation of cases, the
requirement has nothing to do with the ruling involved but
concerns the judge himself. Thus, non-compliance with the rule does
not annul the ruling in which a judge takes no part but may be basis
for holding him responsible for the omission, i.e. an administrative
sanction. (Pedragoza v Comelec)
Cases pending must be decided within the afore-mentioned period.
Failure to observe said rule constitutes a ground for
administrative sanction against the defaulting judge. (Marcelino v.
Cruz)
The Judicial and Bar Council
A Judicial and Bar Council under the supervision of the Supreme Court
is composed of
1.
2.
3.
4.
5.
6.
7.
the Chief Justice as ex of icio Chairman,
the Secretary of Justice, and
a representative of the Congress as ex of icio Members,
a representative of the Integrated Bar,
a professor of law,
a retired Member of the Supreme Court, and
a representative of the private sector.
The duty of the JBC to submit a list of nominees before the start of the
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President's mandatory 90-day period to appoint is ministerial, but its
selection of the candidates whose names will be in the list to be
submitted to the President lies within the discretion of the JBC. (de
Castro v. JBC)
The clustering of nominees for the six vacancies in the
Sandiganbayan by the JBC impaired the President's power to
appoint members of the Judiciary and to determine the seniority of the
newly-appointed Sandiganbayan Associate Justices. (Aguinaldo v.
Aquino III)
RECAP
All lands of the public domain and all natural resources -- waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, isheries, forests or timber, wildlife, lora and fauna, and other
natural resources -- are owned by the State. The Constitution
provides that in the exploration, development and utilization of
these natural resources, the State exercises full control and
supervision, and may undertake the same in four (4) modes:
1.
2.
ECSTACS
Academic freedom has traditionally been associated as a narrow
aspect of the broader area of freedom of thought, speech, expression and
the press. It has been identi ied with the individual autonomy of
educators to "investigate, pursue, and discuss free from internal and
external interference or pressure." Thus, academic freedom of faculty
members, professors, researchers, or administrators is defended based
on the freedom of speech and press. The academic staff should have
de facto control over:
(a)
(b)
(c)
(d)
the admission and examination of students;
the curricula for courses of study;
the appointment and tenure of of ice of academic staff; and
the allocation of income among the different categories of
expenditure.
In mandating that only applicants who scored at least 55% correct
answers shall be admitted to any· law school, the PhiLSAT actually
usurps the right and duty of the law school to determine for itself
the criteria for the admission of students and thereafter, to apply
such criteria on a case-by-case basis. (Pimentel v. LEB)
National Economy and Patrimony
Regalian Doctrine
Section 3 of Article XII on National Economy and Patrimony of the
1987 Constitution classi ies lands of the public domain into four
categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and
(d) national parks. Section 5 of the same Article XII mentions
ancestral lands and ancestral domains but it does not classify them
under any of the said four categories. To classify them as public
lands under any one of the four classes will render the entire
IPRA law a nullity.
Synthesized from Constitutional and Allied Political Law Notes
3.
4.
The State may directly undertake such activities; or
The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or
quali ied corporations;
Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens;
For the large-scale exploration, development and
utilization of minerals, petroleum and other mineral oils, the
President may enter into agreements with foreign-owned
corporations involving technical or inancial assistance.
(Cruz v. SENR)
Consistent with the Regalian Doctrine, all unexplored or unextracted
mineral resources belong to every Filipino as declared by the
Constitution. As a consequence, the determination of what is in the
interest of the public is necessarily vested in the State as owner of all
mineral resources. In other words, issues regarding the exploration,
extraction and utilization of mineral resources are imbued with
public interest. This striking constitutional realization justi ies a
strict interpretation in favor of preserving the possession of
mineral resources in favor of the State and in trust for its citizens
pending controversies regarding their exploration, extraction,
transportation or exportation. (Shuley Mine v. DENR)
Private Lands
The Constitutional provision which enables aliens to acquire
private lands does not extend to testamentary succession for
otherwise the prohibition will be for naught and meaningless. (Ramirez
v. Vda de Ramirez)
Aliens, whether individuals or corporations, have been disquali ied
from acquiring lands of the public domain. Hence, by virtue of the
aforecited constitutional provision, they are also disquali ied from
acquiring private lands. (Matthews v. Taylor)
By RGL
Economic Activities
The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote
distributive justice and to intervene when the common good so
demands. (Stewardship Concept)
Filipinization of mass media and advertising
The advertising industry is impressed with public interest, and shall
be regulated by law for the protection of consumers and the promotion
of the general welfare.
Only Filipino citizens or corporations or associations at least
seventy per centum (70%) of the capital of which is owned by
such citizens shall be allowed to engage in the advertising industry.
INHERENT POWERS OF THE STATE
➔ Inherent and do not need to be expressly conferred by
constitutional provisions.
➔ Deemed invested in a State the moment it comes into being.
Brie ly
(1) Police Power regulates liberty and property for the promotion
of the general welfare.
(2) Eminent Domain enables the State to forcibly acquire
property, upon payment of just compensation, for some
intended public use.
(3) Taxation is the ability to demand from the members of society
their proportionate share or contribution in the maintenance of
the government.
Similarities
(1) Inherent in the State and may be exercised without express
constitutional grant.
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(2) Not only necessary but indispensable. The State cannot
continue or be effective unless it is able to exercise them.
(3) Methods by which the State interferes with private rights.
(4) Presuppose an equivalent compensation for the private rights
interfered with.
(5) Exercised primarily by the legislature.
Limitation
Subject at all times to the limitations and requirements of the
Constitution and may in proper cases be annulled by the courts of
justice.
Police Power
Eminent Domain
Regulates
Both liberty
and property
Only property rights
Exercised by
Government
Government and
private entities
Property taken
Destroyed
because it is
noxious
Intended for public use or
purpose and is therefore
wholesome
Intangible
altruistic
feeling that he
has
contributed to
the general
welfare
A full and fair equivalent of the
property expropriated or
protection and public
improvements for the taxes paid
Compensation
Taxation
Government
Police Power
➔ Power of promoting the public welfare by restraining and regulating
the use of liberty and property.
Synthesized from Constitutional and Allied Political Law Notes
➔ In a positive sense, it is the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety,
and general welfare of the people.
In negative terms, it is that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety
and welfare of society. (Agustin v Edu, G.R. No. L-49112)
➔ The most essential, insistent and the least limitable of powers,
extending as it does “to all the great public needs.”
➔ It operates from the womb to the tomb, protecting the person even
before he is born and prescribing structures and requirements as to
the disposition of his body, and his estate, ifa any, when he dies.
➔ May not be bargained away through the medium of contract or
even a treaty. The impairment clause must yield to the police
power whenever the contract deals with a subject affecting the
public welfare.
★ In Inchong v Hernandez, the enforcement of the Retail Trade
Nationalization Law was enjoined as it was alleged to be
inconsistent with the treaty of amity between the Philippines
and China, the UN Charter, and the Universal Declaration of
Human Rights. The Supreme Court saw no con lict and decreed
that “the treaty is always subject to quali ication or amendment
by a subsequent law, and the same may never curtail or restrict
the scope of the police power of the State.”
★ It must be noted though that, in Bayan Muna v Romulo, the
Supreme Court distinguished a treaty and an executive
agreement as follows: “a treaty has greater “dignity” than an
executive agreement, because its constitutional ef icacy is
beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people; a rati ied treaty, unlike an
executive agreement, takes precedence over any prior statutory
enactment.
➔ May sometimes use the taxing power as an implement for the
attainment of a legitimate police objective.
★ In Lutz v Araneta, the SC sustained as a legitimate exercise of
the police power the imposition of a special tax on sugar
producers for the purpose of creating a special fund to be used
for the rehabilitation of the sugar industry.
★ In Gerochi v DOE, the Universal Charge was considered as an
exaction in the exercise of the State’s police power, imposed to
ensure the viability of the country’s electric power industry.
➔ Power of eminent domain could also be used as an implement.
➔ When the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must
yield to general welfare. Police power as an attribute to promote the
common good would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and capital, the
questioned provision is invalidated. When the conditions so
demand as determined by the legislature, property rights must
bow to the primacy of police power because property rights,
though sheltered by due process, must yield to general welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will
suffer loss of earnings and capital, the questioned provision is
invalidated. (Carlos Superdrug v. DSWD)
Exercise
➔ Lodged primarily in the national legislature.
➔ By virtue of valid delegation, may be exercised by:
◆ The President;
◆ Administrative boards;
◆ Lawmaking bodies on all municipal levels, including the
barangay.
★ In Deutsche Bank AG Manila Branch v Commissioner of
Internal Revenue, citing Tanada v Angara, SC pronounced that
a “state that has contracted valid international obligations is
bound to make in its legislations those modi ications that may
be necessary to ensure the ful illment of the obligations
undertaken.”
➔ Quasi-legislative power - authority delegated by the lawmaking
body to the administrative body to adopt rules and regulations
intended to carry out the provisions of the law and implement
legislative policy.
➔ Is dynamic, not static, and must move with the moving society it is
supposed to regulate.
➔ Municipal governments exercise quasi-legislative powers under the
general welfare clause, Sec 16, Local Government Code.
By RGL
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➔ No mandamus is available to coerce the exercise of the police
power. Its exercise is upon the discretion of the legislature.
➔ The question of validity of legislation as determined by the
criterion of their conformity to the Constitution is justiciable.
➔ Ordinance No. 092-2000, which regulates the construction and
installation of building and other structures such as
billboards within Davao City, is an exercise of police power.
Rational Relationship/Basis and Strict Scrutiny Tests
(1) Rational Relationship/Basis Test
(a) Applied mainly in analysis of equal protection challenges;
(b) Laws and ordinances are upheld if they rationally further a
legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the
availability of less restrictive measures is considered.
(c) Two requisites must concur:
(i)
(ii)
The interests of the public generally, as
distinguished from those of a particular class, require
its exercise; and
The means employed are reasonably necessary for
the accomplishment of the purpose and not unduly
oppressive upon individuals.
RECAP
★ In Bautista v Junio, to conserve energy, prohibition of heavy and
extra-heavy vehicles from using public streets on weekends and
legal holidays was sustained.
purpose of facilitating transactions with the government,
particularly those providing basic services and social security
bene its was struck down as an invasion of people’s privacy.
★ In Tio v Videogram Regulatory Board, the creation of the VRB was
sustained “to answer the need for regulating the video industry,
particularly because of the rampant ilm piracy, the lagrant
violation of intellectual property rights, and the proliferation of
pornographic video tapes.”
★ However, in Kilusang Mayo Uno v Director General, NEDA, the
Court upheld EO 420 prescribing for all government agencies and
GOCCs a “uniform data collection and format for their existing ID
systems” for their respective employees.
★ In the landmark case of Lozano v Martinez, the SC upheld the
validity of BP 22 as it preserves the integrity of the banking
system by preventing worthless checks from looding the system.
★ In Department of Education v San Diego, a regulation disqualifying
any person who has failed the NMAT three times from taking it
again was reinstated by the SC as the measure was intended to
protect the patients.
★ In Sangalang v IAC, the SC sustained the opening of two erstwhile
private roads due to the demands of the common good, namely,
traf ic decongestion and public convenience.
★ In Del Rosario v Bengzon, the Generics Act was sustained to
“promote and require the use of generic drug products that are
therapeutically equivalent to their brand-name counterparts.”
Subject of the measure is within the scope of police power, i.e. the
activity or property sought to be regulated affects the public welfare.
★ In Telecommunications and Broadcast Attorneys of the Philippines
v COMELEC, Sec 92 of BP Blg 881 requiring radio and television
stations to give free airtime to respondent for broadcasting
information regarding the candidates in the 1998 elections was
validated. According to Justice Mendoza, “Radio and television
broadcasting companies which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast
signals and images. They are merely given the temporary privilege
of using them. The exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of
public service.”
★ In Taxicab Operators of Metro Manila v Board of Transportation,
an administrative regulation phasing out taxicabs more than six
years old was held a valid police measure to protect the riding
public and promote their comfort and convenience.
★ In Social Justice Society v Atienza, a zoning ordinance of the City of
Manila reclassifying “certain areas of the city from industrial to
commercial” was upheld by the SC citing its implementation for the
protection and bene it of the residents.
★ In Velasco v Villegas, an ordinance prohibiting barber shop
operators from rendering massage services in a separate room was
likewise sustained, to prevent immorality and enable the
authorities to properly assess license fees.
Private matters in which the public interest is not at all involved are
beyond the scope of police power.
(2) Strict Scrutiny Test
(a) Focus is on the presence of compelling, rather than
substantial, government interest and on the absence of less
restrictive means for achieving that interest.
Lawful Subject
Synthesized from Constitutional and Allied Political Law Notes
★ In Ople v Torres, an administrative order establishing the National
Computerized Identi ication Reference System for the expressed
By RGL
Lawful Means
➔ Both ends and means must be legitimate. Otherwise, the police
measure shall be struck down as an arbitrary intrusion into private
rights.
➔ There should be reasonable relation between the means and
the end.
★ In Ynot v IAC, an EO prohibiting the transport of carabaos and
carabeef across provincial boundaries without government
clearance, was invalidated as the purpose of indiscriminate
slaughter was not satisfactorily met by the means employed.
★ A law limiting the capacity of common carriers, or of theaters
as in the case of People v Chan, is valid as this would be a
reasonable method for promoting the comfort, convenience and
safety of the customers.
★ In City Government of QC v Ericta, in invalidating an ordinance,
the SC said “there is no reasonable relation between the setting
aside of at least 6% of the total area of private cemeteries for
charity burial grounds of deceased paupers and the promotion
of health, morals, good order, safety, or the general welfare of
the people. The ordinance is actually a taking without just
compensation.”
★ In OSG v Ayala Land, Inc., the SC rejected petitioner’s contention
that malls, inasmuch as they are required by the National
Building Code to provide parking spaces for their customers,
should provide such for free.
➔ The SC has invariably applied certain standards for judicial review:
Strict scrutiny
Laws dealing with the freedom of the mind
or restricting the political process.
Rational basis
Review of economic legislation
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standard
Heightened or
immediate scrutiny
Evaluating classi ications based on gender
and legitimacy
Overbreadth
doctrine
A statute needlessly restrains even
constitutionally guaranteed rights
Void-for-vagueness
doctrine
A penal statute encroaches upon the freedom
of speech.
➔ In ine, the means employed for the accomplishment of the police
objective must pass the test of reasonableness and, speci ically,
conform to the safeguards embodied in the Bill of Rights for the
protection of private rights.
Eminent Domain
De inition, Nature and Function
Also called the power of expropriation, it is described as “the highest
and most exact idea of property remaining in the government” that may
be acquired for some public purpose through a method “in the nature of
a compulsory sale to the State.”
Sec 9 Art III of the Constitution, providing that “private property shall
not be taken for public use without just compensation”, serves as a
limitation, not a grant, of such power. It should be strictly interpreted
against the expropriator and liberally in favor of the property owner.
When exercised by local government unit or other delegates
1.
2.
3.
4.
5.
6.
Who may exercise?
Congress;
The President of the Philippines;
Various local legislative bodies;
Certain public corporations, like the NHA and water districts;
Quasi-public corporations like the Philippine National
Railways, PLDT, Meralco.
Essential requisites for the exercise by an LGU
1) Enactment of an ordinance, not just a resolution;
Synthesized from Constitutional and Allied Political Law Notes
2) Must be for a public use, purpose or welfare, or for the bene it
of the poor and the landless;
Necessity of Exercise
3) Payment of just compensation; and
➔ Essentially political in nature when exercised by the legislature.
4) Exercise must be preceded by a valid and de inite offer made
to the owner, who rejects the same.
➔ In cases of delegated authority, the judiciary has assumed the power
to inquire whether the authority conferred has been correctly or
properly exercised. This involves looking into the necessity of the
expropriation.
Conditions precedent to the issuance of a writ of possession
1) Complaint for expropriation suf icient in form and substance is
iled in the proper court; and
2) Deposit with said court at least 15% of the property’s fair
market value based on its current tax declaration.
Important Points from City of Manila v. Prieto as to application of
RA 7279
SEC 9. Priorities in the Acquisition of Land. - Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas or Priority Development,
Zonal Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
sites which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the bene iciaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands.
SEC. 10. Modes of Land Acquisition. - The modes of acquiring lands
for purposes of this Act shall include, among others, community
mortgage, land swapping, land assembly or consolidation, land
banking, donation to the Government, joint-venture agreement,
negotiated purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other modes of acquisition
have been exhausted: Provided, further, That where expropriation is
resorted to, parcels of land owned by small property owners shall be
exempted for purposes of this Act.
By RGL
★ In Republic v La Orden de PP. Benedictinos de Filipinas, the
order of the President of the Philippines to expropriate a
portion of the property of the defendant for the extension of
now Recto St. was dismissed, with the Court declaring that
courts have the power to inquire into the legality of the right of
eminent domain and to determine whether or not there is a
genuine necessity therefor.
Stages
1) Determination of the validity of the expropriation;
-
Necessity of an expropriation is a justiciable question.
2) Determination of just compensation.
➔ Once the State decides to exercise its power of eminent domain,
the power of judicial review becomes limited in scope, leaving
the courts to settle only the second stage.
➔ Only when just compensation has not been given or the amount
thereof not agreed upon may the remedy of prohibition
become available.
➔ A court’s determination of just compensation may be set aside
if tainted with grave abuse of discretion.
Private Property
➔ Anything that can come under the dominion of man, including: (1)
real and personal, (2) tangible and intangible properties.
Exceptions: money and choses in action.
◆ Choses in action - The right to bring a lawsuit to recover
chattels, money, or a debt.
➔ Property already devoted to public use is still subject to
expropriation, provided this is done (1) directly by the
legislature, or (2) under a speci ic grant of authority to the
delegate.
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★ In NHA v DARAB, land, whether tenanted or not, acquired by
the NHA for its housing and resettlement programs are exempt
from land reform under PD 1472.
➔ Services are considered embraced in the concept of property.
★ In Republic v PLDT, the SC upheld the right of the Bureau of
Telecommunications to demand the interconnection between
the Government Telephone System and PLDT, so that the
former could make use of the lines and facilities of PLDT.
★ Similarly, in PLDT v NTC, the petitioner was required to
interconnect with a private telecommunications company.
➔ Must be wholesome, as it is intended for public use.
➔ Republic v. East Silverlane Realty Development Corp. held that
when the subject property is classi ied by the government as an
industrial zone, the subject property therein had been declared
patrimonial. (PNOC Alternative Fuels v NGCP)
Taking
➔ May include trespass without actual eviction of the owner, material
impairment of the value of the property or prevention of the
ordinary uses for which the property was intended.
★ In Ayala de Roxas v City of Manila, the imposition of an
easement over a 3-meter strip of the plaintiff’s property could
not be legally done without payment to it of just compensation.
★ In People v Fajardo, a municipal ordinance prohibiting
construction of any building that would destroy the view of the
plaza from the highway was considered a taking under the
power of eminent domain.
★ The right-of-way easement, resulting in the restriction or
limitation on property rights over the land traversed by
transmission lines is also an exercise of expropriation, as in
NPC v Aguirre-Paderanga.
★ In NPC v Ileto, the prohibition imposed by the transmission
lines, i.e. construction of any improvements or planting of any
trees that exceed 3 meters within the aerial right of way, clearly
interferes with the landowners’ right to possess and enjoy their
properties.
➔ Not every taking is compensable, as it may be justi ied under
the police power.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
◆ Thus, losses sustained are in the nature of damnum absque
injuria. The only recompense available to the affected owners
is the altruistic feeling that they somehow contributed to the
greater good.
◆ This rule is only valid as long as the prejudice suffered by an
individual is shared in common with the rest as was illustrated
in Richards v Washington Terminal. In that case, most of the
smoke from an exhaust fan blew directly into the house of the
petitioner, and was thus duly awarded with just compensation.
➔ 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. It is neither necessary that the
owner be wholly deprived of the use of his property, nor material
whether the property is removed from the possession of the owner,
or in any respect changes hands.
Requisites of Taking in Eminent Domain (according to Republic v
Castellvi)
1) The expropriator must enter a private property;
2) The entry must be for more than a momentary period;
3) The entry must be under warrant or color of legal authority;
4) The property must be devoted to public use or otherwise
informally appropriated or injuriously affected;
5) The utilization of the property for public use must be in such a
way as to oust the owner and deprive him of bene icial
enjoyment of the property.
➔ Mere notice of the intention to expropriate a particular property
does not bind its owner and inhibit him from disposing or
otherwise dealing with it.
➔ An Ordinance authorizing expropriation will not suf ice.
➔ The expropriator can only enter said property after expropriation
proceedings are actually commenced and the deposit required by
law is duly made.
➔ The owner does not need to ile the usual claim for recovery of just
compensation with the COA if the government takes over the
property and devotes it to public use without bene it of
expropriation, as was held in the case of Amigable v Cuenca.
By RGL
Public use
➔ Any use directly available to the general public as a matter of right
and not merely of forbearance or accommodation.
➔ There will also be public use involved even if the expropriated
property is not actually acquired by the government but is merely
devoted to public services administered by privately-owned public
utilities such as telephone or light companies.
➔ Important thing is that any member of the general public can
demand, for free or for a fee, the right to use the converted property
for his direct and personal convenience.
➔ Broadened to include those that will redound to the indirect
advantage or bene it of the public.
➔ Compliant to the public use requirement:
◆ Agrarian reform;
◆ Slum clearance and urban development;
◆ Urban land reform and housing, or socialized housing program.
➔ The taking of private property, consequent to the Government's
exercise of its power of eminent domain, is always subject to the
condition that the property be devoted to the speci ic public
purpose for which it was taken. Corollarily, if this particular
purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so
desire, may seek the reversion of the property, subject to the
return of the amount of just compensation received. In such a case,
the exercise of the power of eminent domain has become
improper for lack of the required factual justi ication. (MCIAA
v. Lozada)
Just compensation
➔ The determination of just compensation is a judicial function
which cannot be curtailed or limited by legislation, much less
by an administrative rule. (LBP v. Manzano)
➔ Full and fair equivalent of the property taken from the private
owner by the expropriator.
➔ Must be fair not only to the owner, but also to the expropriator.
➔ According to De Knecht v CA, owner refers to all those who have
lawful interest in the property to be condemned, including a
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mortgagee, a lessee, and a vendee in possession under an executory
contract.
rights over the land traversed by transmission lines also falls
within the ambit of the term expropriation. (NPC v. Ibrahim)
★ However, in LBP v AMS Farming Corporation, SC rejected
respondent’s claim for just compensation as it was a mere
lessee. The Court ruled that it had no right under the CARL
to demand from LBP just compensation for the
improvements it had introduced to the leased land. Its
rights are conferred by the provisions of the MOA it
executed with TOTCO in relation to the Civil Code. (Thus,
AMS may demand from TOTCO, and not from LBP.)
➔ In Manila Electric Company v. Pineda, the Court held that where
the issue is determining the amount of just compensation in an
expropriation suit, a trial before the commissioners is
indispensable. However, while the appointment of commissioners
is mandatory in resolving the issue of just compensation, courts
are not bound by their indings. Courts may substitute their
estimate of the value, as long as it is supported by the evidence
on record. (City Government of Valenzuela v Sps Abacan)
How determined
Damages and interest as part of just compensation
➔ To ascertain just compensation, the court should determine irst the
actual or basic value of the property.
➔ Consequential Damages consist of injuries directly caused on the
residue of the private property taken through expropriation.
If Consequential Damages > Consequential Bene its
J .C. = Actual V alue + (Damages − B enef its )
Otherwise:
J ust Compensation = Actual V alue
➔ The basic or market value of the property is the price that may be
agreed upon by parties willing but not compelled to enter into a
contract of sale.
➔ Just compensation “simply means the property’s fair market value
at the time of the iling of the complaint, or that sum of money
which a person desirous but not compelled to but, and an owner
willing but not compelled to sell, would agree on as price to be
given and received therefor.”
➔ Among the factors to be considered in arriving at the fair market
value:
◆ Cost of acquisition;
◆ Current value of like properties at the time of taking;
◆ Actual or potential uses;
◆ In case of land, their size, shape or location and the tax
declarations thereon.
➔ The measure is not the taker's gain, but the owner's loss.
➔ 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
Synthesized from Constitutional and Allied Political Law Notes
★ In Republic v BPI, SC clari ied that no actual taking of the
building is necessary to grant consequential damages.
considerations essential to a fair and just determination have been
judiciously evaluated.
➔ Thus, the determination of just compensation is a judicial
function. Any determination by an administrative body, is at best,
preliminary.
➔ CARL vests in RTCs sitting as Special Agrarian Courts (SACs),
original and exclusive jurisdiction over all petitions for
determination of just compensation.
➔ Just compensation must be paid in money. This was not followed in
the CARP cases, where the SC adopted a more pragmatic stance
noting the enormity of the amount needed vis-a-vis the inancial
capacity of the expropriator. Thus, modes of compensation under
Sec 18 of RA 6657 (CARP Law) were validated as its invalidation
would verily mean the death of the entire law.
★ In Heirs of Banaag v AMS Farming Corporation, it was stressed
that just compensation for the crops and improvements is
inseparable from the valuation of the raw lands as the former
are part and parcel of the latter. These must be awarded to the
landowner irrespective of the nature of ownership of said
crops.
➔ The property taken should be assessed during the time of the taking
which usually coincides with the commencement of the
expropriation proceedings.
➔ Marcos promulgated decrees providing that the just compensation
should be either the sworn valuation made by the owner or the
of icial assessment thereof, whichever is lower, which was
applied in NHA v Reyes.
◆ As a general rule, Rule 67 Sec 4 provides that just
compensation is computed at the time of taking of the
property or at the time the complaint is iled, whichever
comes irst.
★ In EPZA v Dulay, these decrees were invalidated and the Reyes
case reversed.
★ In Republic v Castellvi, property was deemed taken only when
expropriation proceedings were commenced in 1959, not as of
the time of commencement of the lease in 1947. Thus, just
compensation was ascertained in 1959.
Export Processing Zone Authority v Dulay
149 SCRA 305 (1987)
As a necessary consequence, it would be useless for the court to
appoint commissioners under Rule 67 of the Rules of Court. xxxx
It is violative of due process to deny the owner the opportunity to
prove that the valuation in the tax documents is unfair or wrong. And
it is repulsive to the basic concepts of justice and fairness to allow
the haphazard work of a minor bureaucrat or clerk to absolutely
prevail over the judgment of a court promulgated only after expert
commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and
By RGL
➔ Where entry preceded the iling of the complaint for expropriation,
the assessment should be made at the time of the entry.
★ In City of Cebu v Dedamo, the iling of the complaint preceded
the taking of the property but SC said that the valuation should
be computed at the time of taking not necessarily at the time of
the iling of complaint which was done earlier the reason for
that is there is a provision under section 19 of RA 7160 LGC
which provides in essence that the valuation taken by the local
government unit should be reckoned as of the date of actual
possession.
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➔ Where the institution of the action precedes entry into the property,
the just compensation is to be ascertained as of the time of the iling
of the complaint.
➔ Value of the land and its character at the time it was taken by
the government are the criteria for determining just
compensation.
➔ The owner is entitled to payment of interest from the time of
the taking until just compensation is actually paid to him.
APO Fruits Corporation v Land Bank of the Philippines
G.R. No. 164195, 12 Oct 2010, 607 SCRA 200
To be just, the compensation must not only be the correct amount to
be paid; it must also be paid within a reasonable time from the time
the land is taken from the owner.If not, the State must pay the
landowner interest, by way of damages, from the time the property
was taken until just compensation is fully paid. This interest, deemed
a part of just compensation, has been established by prevailing
jurisprudence to be 12% per annum.
Note: By virtue of BSP Circular No 799 Series of 2013, rate of interest
is pegged at 6% per annum, as of July 1, 2013.
➔ Neither laches nor prescription may bar a claim for just
compensation for property taken for public use.
➔ Title to the property shall not be transferred until after actual
payment of just compensation.
Republic v Lim
462 SCRA 265
In cases where the government failed to pay the compensation within
ive years from the inality of the judgment in the expropriation
proceedings, the owner concerned shall have the right to recover
possession of their property. xxxx
In Coscolluela v CA, we de ined 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.
xxxx
Rental
The Court has held that compensation cannot be just to the owner in
Synthesized from Constitutional and Allied Political Law Notes
RECAP
the case of property that is immediately taken unless there is prompt
payment, considering that the owner thereby immediately suffers not
only the loss of his property but also the loss of its fruits or income.
Thus, in addition, the owner is entitled to legal interest from the
time of the taking of the property until the actual payment in
order to place the owner in a position as good as, but not better than, the
position he was in before the taking occurred. (Export Processing Zone
Authority v Estate of Jimenez)
Remedy of Dispossessed Owner
➔ If a landowner agrees voluntarily to the taking of his property by
the government for public use, he waives his right to the institution
of a formal expropriation proceeding.
➔ Owner’s failure to question for a long period of time the
government’s failure to institute expropriation proceedings
constitutes a waiver of his right to regain possession of his
property. His only remedy is an action for payment of just
compensation and may not sue for ejectment.
➔ Amount to be Deposited:
◆ Rule 67 of the Revised Rules of Court: Upon iling of the
expropriation case, the expropriator is required to deposit an
amount which is equivalent to the full assessed value of the
property as appearing in the tax declaration in order for the
court to issue a writ of possession allowing the expropriator to
take actual possession of the property during the pendency of
the case.
◆ If the expropriator is an LGU, the amount to be deposited is
only 15% of the assessed value of the property.
◆ In RA 8974, if the purpose of the expropriation is to
implement a national government infrastructure project, what
needs to be done is not a deposit but payment of BIR Zonal
valuation of the property. This amount deposited or paid is
NOT the just compensation.
★ In NPC v Pobre, the expropriator is not allowed to unilaterally
withdraw because damages may have already been caused to
the property.
➔ Every expropriation case has this built-in condition that the
property should be devoted for the very same purpose for which it
was expropriated as stated in the complaint. Such that: if the
property was not utilized in the said purpose, then recovery may be
By RGL
allowed with or without the express condition. The State shall have
to institute a separate expropriation case for that new purpose.
➔ It is well-settled that a case iled by a landowner for recovery of
possession or ejectment against a public utility corporation,
endowed with the power of eminent domain, which has occupied
the land belonging to the former in the interest of public service
without prior acquisition of title thereto by negotiated purchase or
expropriation proceedings, will not prosper. Any action to compel
the public utility corporation to vacate such property is unavailing
since the landowner is denied the remedies of ejectment and
injunction for reasons of public policy and public necessity as
well as equitable estoppel. The proper recourse is for the
ejectment court:
(1) to dismiss the case without prejudice to the landowner iling
the proper action for recovery of just compensation and
consequential damages; or
(2) to dismiss the case and direct the public utility corporation to
institute the proper expropriation or condemnation
proceedings and to pay the just compensation and
consequential damages assessed therein; or
(3) to continue with the case as if it were an expropriation
case and determine the just compensation and consequential
damages pursuant to Rule 67 (Expropriation) of the Rules of
Court, if the ejectment court has jurisdiction over the value of
the subject land. (NTC v Bermuda Development)
Distinguished from police power
Sec 17 Art XII pertains to the right of the State in times of national
emergency, and in the exercise of its police power, to temporarily take
over the operation of any business affected with public interest.
The duration of the emergency itself is the determining factor as to
how long the temporary takeover by the government would last. The
temporary takeover by the government extends only to the operation
of the business and not to the ownership thereof. As such the
government is not required to compensate the private
entity-owner of the said business as there is no transfer of ownership,
whether permanent or temporary. The private entity-owner affected by
the temporary takeover cannot, likewise, claim just compensation for
the use of the said business and its properties as the temporary takeover
by the government is in exercise of its police power and not of its
power of eminent domain. (Agan, Jr. v. PIATCO)
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Manila Memorial Park, Inc. v. Secretary of the DSWD
G.R. No. 175356, 3 Dec 2013, 711 SCRA 302
In the exercise of police power, xxxx examples of these regulations
are (1) property condemned for being noxious or intended for
noxious purposes (e.g., a building on the verge of collapse to be
demolished for public safety, or obscene materials to be destroyed in
the interest of public morals) as well as (2) zoning ordinances
prohibiting the use of property for purposes injurious to the health,
morals or safety of the community (e.g., dividing a city’s territory
into residential and industrial areas).
On the other hand, in the exercise of the power of eminent domain,
xxxx, examples include the (1) acquisition of lands for the
construction of public highways as well as (2) agricultural lands
acquired by the government under the agrarian reform law for
redistribution to quali ied farmer bene iciaries. However, it is a
settled rule that the acquisition of title or total destruction of the
property is not essential for “taking” under the power of eminent
domain to be present. Examples of these include (3) establishment of
easements such as where the landowner is perpetually deprived of
his proprietary rights because of the hazards posed by electric
transmission lines constructed above his property (NPC v Gutierrez,
271 Phil. 1 (1991)) or the (4) compelled interconnection of the
telephone system between the government and a private company.
(Republic v. PLDT, 136 Phil. 20 (1969)) In these cases, although the
private property owner is not divested of ownership or possession,
payment of just compensation is warranted because of the burden
placed on the property for the use or bene it of the public.
Taxation
➔ Taxes are the enforced proportional contributions from persons
and property, levied by the State by virtue of its sovereignty, for the
support of government and for all public needs.
➔ Obligation to pay taxes is not based on contract.
➔ Except only in the case of poll taxes (Sec 20 Art III Constitution),
nonpayment of a tax may be the subject of criminal prosecution and
punishment.
➔ Taxes are the nation’s lifeblood through which government agencies
continue to operate and with which the State discharges its
functions for the welfare of its constituents.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ Taxes = levied to raise revenues; Licenses = imposed for
regulatory purpose.
attainment. Taxation may be made to implement the state’s
police power.
➔ Imposition of a vehicle registration fee is not an exercise of police
power, but of taxation, as its main purpose is to raise funds for the
construction and maintenance of highways.
c) Reduction of Social Inequality – made possible through
progressive system of taxation where the objective is to prevent
the undue concentration of wealth in the hands of few
individuals (that is why, the bigger income of the person, the
bigger the income tax).
➔ On the other hand, the Universal Charge is not a tax as its primary
purpose is to ensure the viability of the country’s electric power
industry.
★ In Angeles University Foundation v City of Angeles, SC held that
the payment of building permit fee is a regulatory imposition,
and not a charge on property, and is therefore not an imposition
from which petitioner is exempt.
Attributes
➔ Enforced Contribution (will not depend on the will of the person)
➔ Personal Contribution ( base on one’s ability to pay ( the bigger
your income, the bigger your income tax)
➔ It is a pecuniary burden payable in money, but such a tax is not
necessarily con ined to those payable in money.
➔ Imposed on persons and property
➔ Imposed by the State (exercising jurisdiction over the person in a
state)
➔ Normally exercised by the Lawmaking body of the State concerned
➔ It is levied for public purpose as taxation itself involves a burden to
provide revenue for public purposes of a general nature.
Purposes
1) Revenue – The purpose of taxation is to provide funds or property
with which the State promotes the general welfare and protection of
its citizens. Raising the revenues is the principal object of taxation.
2) Non-Revenue
a) Regulation – Taxes may also be imposed for a regulatory
purpose as for example, in the promotion, rehabilitation, and
stabilization of industry which is affected with public interest.
b) Promotion of General Welfare – If objectives and methods
are alike constitutionally valid, no reason is seen why the state
may not levy taxes to raise funds for their prosecution and
By RGL
d) Promote Economic Growth – in the realm of tax exemptions
and tax reliefs, the purpose of taxation (the power to tax being
the power also not to tax) is to grant incentives or exemptions
in order to encourage investments and thereby promote the
country’s economic growth.
e) Protectionism – in some important sectors of the economy,
taxes sometimes provide protection to local industries like
protective tariff and customs duties.
Characteristics
1) Inherent – the power to tax, an inherent prerogative, has to be
availed of to assure the performance of vital state functions.
2) Legislative – taxing power is peculiarly and exclusively legislative
in character and remains undiminished in the legislative in
character.
3) Constitutionally limited – the power to tax is an attribute of
sovereignty. It is the strongest of all the powers of the government.
The Constitution sets forth such limits.
Scope
➔ Reaches even the citizens abroad and his income derived therefrom.
➔ All income earned within the territorial jurisdiction within the State
is taxable.
➔ Shares of stock issued by a foreign corporation but “in action” in the
local State.
➔ Proceeds from an insurance policy issued abroad.
Two opposing views, but equally correct
Taxation as including the
power to destroy
Taxation as not including the
power to destroy
Proferred by Chief Justice John
Refuted later by Justice Holmes
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1) The standards that are used therefor are substantial and
not arbitrary;
Marshall of the US SC
If taxation is used as implement
of police power
If taxation is used solely for
raising revenues
Exercise
➔ Inherent in the State, primarily vested in the Legislature.
➔ May be delegated to the President pursuant to Sec 28(2) Art VI of
the Constitution.
◆ SECTION 28. (2) The Congress may, by law, authorize the
President to ix within speci ied 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.
➔ Pursuant to direct authority conferred by Sec 5 Art X of the
Constitution, local legislative bodies may also exercise the power of
taxation.
➔ General rule: there must be a law granting for an LGU to lawfully
impose a tax. Not applicable where what is involved is the
regulatory power of the LGU which is expressly accompanied by the
taxing power.
Due Process and Taxation
➔ Taxes should not be con iscatory, except when they are intended as
an implement of police power.
➔ Due process does not require previous notice and hearing before a
law prescribing ixed or speci ic taxes on certain articles may be
enacted.
➔ Where the tax to be collected is based on the value of the taxable
property, the taxpayer is entitled to be noti ied of the assessment
proceedings and to be heard therein on the correct valuation.
Equal Protection and Taxation
➔ Sec 28(1) Art VI, the rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of
taxation.
➔ Uniformity does not forfend classi ication as long as:
2) The categorization is germane to achieve the legislative
purpose;
3) The law applies, all things being equal, to both present
and future conditions; and
4) The classi ication applies equally well to all those
belonging to the same class.
➔ Equitable taxation connotes that taxes should be apportioned
among the people according to their capacity to pay.
Double Taxation
➔ Not constitutionally prohibited.
➔ Occurs when additional taxes are laid on the same subject by the
same taxing jurisdiction during the same taxing period and for the
same purpose.
◆ e.g. a person’s properties are taxed individually, then
collectively.
★ In Punzalan v Municipal Board of Manila, the additional tax of
P25.00 on professionals practicing in Manila on top of the
P50.00 imposed under the Revised Internal Revenue Code did
not amount to double taxation as these were imposed by two
distinct jurisdictions, the LGU and national government
respectively.
★ However, in Lladoc v Commissioner of Internal Revenue, a
donation of P10K for the construction of a church was subject
to donee’s tax as it was not an ad valorem tax on the church but
an excise tax imposed on the priest for the exercise of the
privilege to accept the donation.
★ In Lung Center of the Philippines v Quezon City, those portions
leased to private properties and individuals are not exempt
from real property taxes.
➔ Sec 4(3) Art XIV. All revenues and assets of non-stock, non-pro it
educational institutions used actually, directly, and exclusively
for educational purposes shall be exempt from taxes and duties.
xxxx
➔ Sec 4(4) Art XIV. Subject to conditions prescribed by law, all
grants, endowments, donations, or contributions used actually,
directly, and exclusively for educational purposes shall be exempt
from tax.
➔ Statutory exemptions are granted at the discretion of the legislature.
However, as provided in Sec 28(4) Art VI, no law granting any tax
exemption shall be passed without the concurrence of a majority
of all the Members of the Congress.
➔ Despite the lack of prohibition, it will not be allowed if it violates
the equal protection clause. (Sec 1 Art III)
➔ Where a tax exemption was granted gratuitously, the same may be
validly revoked at will, with or without cause.
Public Purpose
➔ If the exemption is granted for valuable consideration, it is deemed
to partake of a contract and obligation thereof is protected against
impairment. Sec 10 Art III.
➔ Revenues received from the imposition of taxes or levies cannot be
used for purely private purposes or for the exclusive bene it of
private persons.
★ In Planters Products Inc v Fertiphil Corporation, the Court
declared that a tax levy on the sale of fertilizers for purposes of
bene iting a private corporation, Philippine Planters Inc., is
invalid. It may not be justi ied even as a valid exercise of police
power.
Tax Exemptions
➔ Construed strongly against the claimant.
Synthesized from Constitutional and Allied Political Law Notes
➔ Sec 28(3) Art VI. Charitable institutions, churches and parsonages
or convents appurtenant thereto, mosques, non-pro it cemeteries,
and all lands, buildings, and improvements, actually, directly, and
exclusively used for religious, charitable, or educational purposes
shall be exempt from taxation.
By RGL
★ In Casanova v Hord, the Spanish Government, in exchange for
certain obligations assumed by the plaintiff, decreed to him
certain mines in accordance with a Royal Decree, which inter
alia imposed a number of taxes.
★ In PAGCOR v BIR, SC rejected petitioner’s assertion that the
removal of its statutory exemption from the payment of
corporate income tax is violative of the equal protection and
non-impairment clauses.
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➔ Sec 11 Art XII. xxxx Neither shall any such franchise or right be
granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the
common good so requires.
★ In MERALCO v Province of Laguna, the Court held that a
franchise partakes the nature of a grant, which is beyond the
purview of the non-impairment clause.
Other Constitutional Limitations
➔ Sec 29 Art VI.
(1) No money shall be paid out of the Treasury except in pursuance
of an appropriation made by law.
(2) No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, bene it, 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.
(3) 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. If the purpose for which a special fund was created has
been ful illed or abandoned, the balance, if any, shall be
transferred to the general funds of the Government.
THE BILL OF RIGHTS
Constitutional Rights and Privileges
We have treated as self-executing the provisions in the Bill of Rights
on arrests, searches and seizures, the rights of a person under custodial
investigation, the rights of an accused, and the privilege against
self-incrimination. (Manila Prince Hotel v. GSIS)
Against whom enforceable
The Bill of Rights cannot be invoked against acts of private
individuals, being directed only against the government and its
law-enforcement agencies as a limitation on of icial action. (People v.
Domasian)
Synthesized from Constitutional and Allied Political Law Notes
RECAP
Due Process of Law
➔ There is no precise meaning as it might prove constricting and
prevent the judiciary from adjusting it to the circumstances of
particular cases.
➔ It continues to be dynamic and resilient, adaptable to every
situation calling for its application.
➔ It is preferred to have the meaning of the phrase “gradually
ascertained by the process of inclusion and exclusion in the course
of the decisions of cases as they arise.”
➔ Justice Fernando describes it as “responsiveness to the supremacy
of reason, obedience to the dictates of justice.”
➔ Justice Frankfurter regards it as “the embodiment of the sporting
idea of fair play.”
➔ Due process is a guaranty against any arbitrariness on the part of
the government.
➔ Protects all persons, natural as well as arti icial (juridical),
citizen or alien.
➔ Juridical persons are also covered but only insofar as their
property is concerned. This narrower protection stems from the
fact that they are only creatures of law, subject to the control of the
legislature.
➔ To deprive is to “take away forcibly, to prevent from possessing,
enjoying or using something.”
➔ Deprivation is denial of the right to life, liberty or property.
➔ It is per se not unconstitutional. What is prohibited is deprivation
without due process of law.
➔ Life is the integrity of the physical person.
➔ Included therein is the
(1) right to give full rein to one’s all natural attributes,
(2) to expand the horizons of one’s mind,
(3) to widen the reach of one’s capabilities,
(4) to enhance those moral and spiritual values that can make
one’s life more meaningful and rewarding.
➔ According to Imbong v Ochoa, life commences upon “conception,
that is, upon fertilization.”
By RGL
➔ “Liberty is the freedom to do right and never wrong; it is ever
guided by reason and the upright honorable conscience of the
individual.”
➔ A person is free to do as he pleases subject only to the reasonable
restrictions of the law.
➔ There is no constitutional right to bear arms. Neither is the
ownership or possession of a irearm a property right. Persons
intending to use a irearm can only either accept or decline the
government's terms for its use.
➔ The grant of license, however, is without prejudice to the
inviolability of the home. Like any other license, the license to
possess a irearm is "neither a property nor a property right."
As a mere "permit or privilege to do what otherwise would be
unlawful," it does not act as "a contract between the authority
granting it and the person to whom it is granted." (Acosta v. Ochoa)
Procedural Aspect
Our SC has held that “the twin requirements of notice and hearing
constitute the essential elements of due process and neither of these
elements can be eliminated without running afoul of the constitutional
guaranty.”
Judicial Proceedings
Requirements are as follows:
(1) There must be an impartial 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 and over the property which is the subject matter of
the proceeding.
(3) The defendant must be given an opportunity to be heard.
(4) Judgment must be rendered upon lawful hearing.
A. Impartial and Competent Court
➔ Every litigant is entitled to the cold neutrality of an impartial
judge.
➔ In Javier v COMELEC, the imperative of impartiality was
described thus, “as not only the judge being impartial but must
also appear to be impartial as an added assurance to the parties
that his decision will be just.
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RECAP
➔ In Tumey v Ohio, a law provided that in case of conviction, the
judge could deduct from the ine imposed by him the sum of
$12 as addition to his salary, another portion of the ine going
to the treasury of the village of which he was also the mayor.
Such law was struck down as it could hardly insure the
impartiality of the judge as he stood to bene it from it.
➔ Disquali ication of judges is provided under Rule 137 of the
RoC.
◆ He or his wife or child is pecuniarily interested as heir,
legatee, creditor;
◆ Related to either party within the 6th degree of
consanguinity or af inity;
◆ Or to counsel, within the 4th civil degree;
◆ He has been executor, administrator, guardian, trustee
or counsel;
◆ He has presided in any inferior court when his
decision is the subject of review; without the written
consent of all parties in interest, signed and entered
upon the record.
◆ In the exercise of sound discretion, for other just or
valid reasons.
➔ In Paderanga v Azura, the judge was inhibited due to the
pronounced hostility between him and petitioners.
➔ A competent court is one vested with jurisdiction over a case
conferred upon it by law.
➔ Preliminary investigation is considered as a judicial
proceeding wherein the prosecutor acts as a quasi-judicial
of icer. It is not required where the case involves an alleged
offense where the penalty prescribed by law is below Four
Years, Two Months and One Day.
B. Jurisdiction
In actions
Such as
Courts acquire
jurisdiction
Effected
In
personam
Complaint for
recovery of loan
By his
voluntary
Personally, or
by substituted
Synthesized from Constitutional and Allied Political Law Notes
In rem or
quasi in
rem
C.
Land
registration
proceedings or
the foreclosure
of a real estate
mortgage
appearance or
through service
of summons
service, or
publication
From the power
it may exercise
over the
property
Through Notice
by publication.
➔ The principle that a person cannot be prejudiced by a ruling
rendered in an action or proceeding in which he was not made
a party conforms to the constitutional guarantee of due
process of law.
➔ Thus, in Munoz v Yabut, Jr., the SC ruled that an “action for
declaration of nullity of title and recovery of ownership of real
property, or reconveyance, is a real action but it is an action in
personam, for it binds a particular individual only although it
concerns the right to a tangible thing.
Hearing
➔ Notice to a party is essential to enable it to adduce its own
evidence and to meet and refute the evidence submitted by the
other party.
➔ Every litigant is entitled to his day in court. He has a right to be
noti ied of every incident of the proceeding and to be present at
every stage.
➔ In Caoile v Vivo, it was held that the law does not require
another notice and hearing for a review of the decision of the
board of special inquiry on the basis of evidence previously
presented.
➔ In Lobete v Sundiam, the right to appeal was held not
unlawfully withheld where it was lost due to appellant’s
neglect.
➔ Due process was also not denied the petitioner who received
notice of the scheduled hearing the day before but failed to
present evidence, according to Marvel Bldg. corporation v Ople.
By RGL
Likewise, Ablaza v CIR established that the petitioners were
adequately served necessary notices and that they deliberately
avoided acknowledgment of the service of summons upon
them.
➔ There was also no denial of due process in Valladolid v Inciong,
where the regional director of the MOLE decided a case, which
had to be summarily resolved in 10 days, on the basis only of
position papers submitted.
➔ In administrative proceedings, including those before the
Ombudsman, cases may be submitted for resolution on the
basis of af idavits and pleadings.
➔ But in Cordero v Public Service Commission, mere notice by
publication of a hearing conducted by an administrative agency
was held insuf icient and so violative of due process.
➔ A monetary award of 5% monthly interest rate was likewise
annulled in Diona v Balangue where it was not being sought by
the complainant petitioner in her Complaint.
➔ In UP v Dizon, it was stressed that service of pleadings and
court processes can be made only upon counsel of record.
➔ Due process does not always require trial-type proceedings.
➔ Mere opportunity to be heard suf ices the adherence to due
process.
➔ Any defect in the observance of due process requirements is
cured by the iling of a Motion for Reconsideration.
➔ In PLDT v HPS Software and Communication Corporation, the
SC held that the petitioner was deprived of due process when
the trial court expeditiously released the items seized by virtue
of the subject search warrants without waiting for it to ile its
memorandum and despite the fact that the requisite motion for
execution was not iled by the respondents.
1. Appeal
➔ Not essential to the right of hearing.
➔ If allowed by statute, it must be exercised strictly in
accordance with the provisions of law and rules.
➔ Cases coming under the minimum appellate
jurisdiction of the SC as speci ied in Sec 5(2) Art VIII:
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(1) All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
PD, proclamation, order, instruction, ordinance, or
regulation is in question.
(2) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto.
(3) All cases in which the jurisdiction of any lower
court is in issue.
(4) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
(5) All cases in which only as error or question of law is
involved.
● Violation of due process is a personal defense that can
only be asserted by the person whose rights have been
allegedly violated.
2. Exceptions
➔ Cancellation of the passport of a person sought for the
commission of a crime
➔ Preventive suspension of a civil servant facing admin
charges
➔ Distraint of properties for tax delinquency
➔ Padlocking of restaurants found to be unsanitary
➔ Padlocking of theatres showing obscene movies
➔ Issuance of temporary protection orders (TPO)
➔ Writs of preliminary attachment or writs of possession
➔ Abatement of nuisance per se
a) Nuisances
Per se
May be
summarily
abated
Objectionable under any and all circumstances
because it presents an immediate danger to the
welfare of the community.
Per accidens
Right thing in the wrong place. Needs judicial
authorization to be abated. Exception: where the
Synthesized from Constitutional and Allied Political Law Notes
RECAP
legislature has authorized its summary abatement,
provided it is of tri ling (insigni icant) value
Only courts of law have the power to determine
whether a thing is a nuisance.
b) Presumptions
● A statutory presumption does not deny the right to a
hearing insofar as the person affected is precluded
from introducing evidence to rebut the presumption,
provided there is a rational or natural connection
between the fact proved and the fact ultimately
presumed from such fact. E.g. where a child born
within 180 days of the marriage is presumed
legitimate if the husband, before such marriage, knew
of the pregnancy of the wife.
D. Judgment
Sec 14 Art VIII. No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which
it is based.
It is a requirement of due process that there be an explanation of the
factual and legal reasons that led to the conclusions of the court.
●
Administrative Proceedings
Requisites are:
(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) The evidence must be substantial.
(5) The decision must be rendered on the evidence presented
at the hearing, or at least contained in the record and
disclosed to the parties affected.
(6) The tribunal or 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.
By RGL
●
●
●
●
(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
reason for the decision rendered.
Notice and hearing are not indispensable in administrative
proceedings.
Litigants may be heard through pleadings, written explanations,
position papers, memoranda or oral arguments.
A reevaluation is a continuation of the original case and not a new
proceeding.
A preliminary investigation is a component part of due process
in criminal justice. The denial of one’s right to such, in the absence
of a waiver, is therefore a denial of due process. (This is true for
those offenses with penalties of more than Four years, Two
months, One day.
Academic Due Process
The imposition of disciplinary sanctions requires observance of
procedural due process. And it bears stressing that 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 in student discipline cases may be
summary; and cross-examination is not, contrary to petitioners' view,
an essential part thereof. There are withal minimum standards which
must be met to satisfy the demands of procedural due process; and
these are, that
(1) the students must be informed in writing of the nature and
cause of any accusation against them;
(2) they shall have the right to answer the charges against them,
with the assistance of counsel, if desired;
(3) they shall be informed of the evidence against them;
(4) they shall have the right to adduce evidence in their own behalf;
and
(5) the evidence must be duly considered by the investigating
committee or of icial designated by the school authorities to
hear and decide the case. (Guzman v National University)
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Substantive Aspect
➔ Requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty or property.
➔ Inquiry is whether it is a proper exercise of legislative power.
➔ The law must have a valid governmental objective.
➔ This objective must be pursued in a lawful manner. In other words,
the means employed must be reasonably related to the
accomplishment of the purpose and not unduly oppressive.
➔ In Kwong Sing v City of Manila, an ordinance requiring all laundry
establishments to issue their receipts in English or Spanish was
sustained by the Court to protect the public from deceptions and
misunderstandings that might arise with the receipts in Chinese
characters that most don’t understand.
➔ However, in Yu Cong Eng v Trinidad, a law prohibiting the keeping
of account books in any language other than English, Spanish, or
any other local dialect was invalidated.
➔ The Retail Trade Nationalization Law was sustained in Ichong v
Hernandez as a valid exercise of police power noting that the retail
trade was at that time controlled by aliens.
➔ Decades later, the Retail Trade Liberalization Law, RA 8762,
repealing RTNL, in Espina v Zamora sustained such repeal absent
any blatant violation of the constitution.
➔ In Serrano v Gallant Maritime Services, Inc., a law which provides
for a 3-month cap on claims of overseas workers with an unexpired
portion of one year or more in their contracts, but none on the
claims of other overseas or local workers with ixed-term
employment was considered a violation of the petitioner’s right to
substantive due process.
Tests in determining compliance with the basic requirements of
substantive due process
Test
Deals with
How?
Strict
Scrutiny
Freedom of the mind;
restricting the political
Focus is on the presence
of compelling, rather
Synthesized from Constitutional and Allied Political Law Notes
process; regulation of
speech, gender, or race,
other fundamental rights
such as suffrage, judicial
access, interstate travel
than substantial
governmental interest
and on the absence of
less restrictive means
for achieving that
interest.
In terms of judicial
review of statutes or
ordinances:
Determines the quality
and the amount of
governmental interest
brought to justify the
regulation of
fundamental freedoms.
Rational
Basis
Standard
Review for economic
legislation; equal
protection challenges
Rationally further a
legitimate governmental
interest
Heightened
or
Immediate
Scrutiny
Classi ication based on
gender and legitimacy
Governmental interest
extensively examined
and the availability of
less restrictive measures
considered.
●
In Tanada v Tuvera, laws should generally be published.
Equal Protection of Law
➔ Requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed.
➔ It is directed principally against undue favor and individual or class
privilege.
➔ Substantive equality is not enough. The law must also be enforced
and applied equally.
➔ In People v Vera, the old Probation Law provided that the probation
system shall be applicable “only in those provinces in which the
respective provincial boards have provided for the salary of a
By RGL
probation of icer.” On its face, it is a sound law. But when applied, it
discriminates against persons in one province that may not be able
to provide for the salary of a probation of icer. Thus, they are
denied the bene its of probation.
➔ It is a restraint on all three departments of the government, etc.
➔ Signi icantly, in Yrasuegui v PAL, the dismissal of an overweight
light attendant was upheld as the equal protection clause erects no
shield against private conduct, however discriminatory or
wrongful. In another case of International School Alliance of
Educators v Quisumbing, however, the equal protection clause was
applied on a private entity.
Classification
The grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars.
Requirements
(1)
(2)
(3)
(4)
It must be based upon substantial distinctions.
It must be germane to the purpose of the law.
It must not be limited to existing conditions only.
It must apply equally to all members of the same class.
Substantial Distinctions
➔ Certain physical differences of persons can in some instance be
the basis of a valid classi ication, i.e. strength, height and
weight, health condition, age.
➔ A recognized distinction between citizens and aliens is that the
former have more solicitude for the national interest.
➔ In Ceniza v COMELEC, a law classifying cities as highly
urbanized if they had an annual revenue of at least P40 million
and all others as component cities was upheld since it would
show whether a city is capable of existence and development
independent from the province where it is geographically
located. Being so, they are exempt from voting for provincial
of icials.
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➔ There is also substantial distinction between barangay of icials
and other elected public of icials, in terms of term-limit and
length of term.
➔ RA 6770 which authorizes the Ombudsman to impose a
six-month preventive suspension, instead of the civil service
provisions of the Admin Code, which limits such suspension to
not exceeding 90 days, does not violate equal protection.
➔ In International School Alliance of Educators v Quisumbing, it
was ruled that there exists no substantial distinction between
local-hire and foreign teachers, in light of the long honored
legal truism, “equal pay for equal work.” Thus, rendering
nugatory the better treatment of the foreign hires in terms of
pay, and allowances.
➔ In DECS v San Diego, the three- lunk rule in NMAT was upheld
and violative of equal protection as there was a substantial
distinction between medical students and other students who
are not subjected to the NMAT and the three- lunk rule.
➔ There also exists between presidential appointees occupying
upper-level positions in government from non-presidential
appointees and those that occupy the lower positions in
government.
➔ Goldenway Merchandising Corporation v Equitable PCI Bank
upheld Sec 47 RA 8791 that shortens the period of
redemption for juridical persons whose properties were
foreclosed and sold in accordance with Act No 3135. There is
substantial difference based on the nature of the properties
foreclosed, residence for natural persons, as compared to
industrial or commercial purposes for juridical persons which
necessitates a shorter redemption period to reduce the period
of uncertainty in the ownership of said properties and enable
mortgagee-banks to dispose sooner of their acquired assets.
➔ Garcia v Drilon validated RA 9262 or the VAWC Law as there is
a need to employ protection upon women as they are more
likely to be victims of abuses.
➔ In Tatad v Secretary of Energy, the law deregulating the oil
industry was declared unconstitutional on the ground inter alia
that it discriminated against the new players, insofar as it
Synthesized from Constitutional and Allied Political Law Notes
RECAP
placed them at a competitive disadvantage vis-a-vis the
established oil companies by requiring them to meet certain
conditions already being observed by the latter.
➔ Serrano v Gallant Maritime Services, Inc. declared that there
was suspect classi ication against overseas workers with an
unexpired portion of one year or more in their contracts which
burdens them with a peculiar disadvantage.
➔ There is no substantial distinction between those tried and
convicted by a military court vis-a-vis those tried and
convicted in regular courts in terms of their rights as accused,
as held in Garcia v Executive Secretary.
➔ EO No 1 of President Benigno Aquino III on his “Truth
Commission” was invalidated as it zeroed-in on the past
administration of Arroyo.
➔ Also considered by the SC as discriminatory was Sec 5.24 of
the IRR of the Reproductive Health Law. It nulli ied said
law in Imbong v Ochoa, saying that the conscientious
objection clause should be equally protective of the religious
belief of public health of icers. There is no perceptible
distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the
private or public sector.
➔ In granting the petition in Ang Ladlad LGBT Party v COMELEC,
the Court further invoked the principle of non-discrimination,
as provided for also under the International Covenant on Civil
and Political Rights (ICCPR) and the Universal Declaration of
Human Rights (UDHR).
Relevance to Purpose of Law
➔ Classi ication will still be invalid if not relevant or germane to
the purpose of the law.
Duration
➔ Classi ication must be enforced not only for the present but as
long as the problem sought to be corrected continues to exist.
By RGL
➔ In People v Cayat, the law prohibited members of the
non-Christian tribes from drinking foreign liquor as they have
low tolerance of such drink.
➔ In Ormoc Sugar Co., Inc. v Treasurer of Ormoc City, an
ordinance imposing 1% tax per export sale to the US of said
company was invalidated as it is restricted to the current
condition that only one sugar mill exists in Ormoc. Should
there be another sugar mill, it will not be imposed with such
tax as the ordinance speci ically mentioned the petitioner
therein.
Theory of Relative Constitutionality
➔ The constitutionality of a statute cannot, in every instance, be
determined by a mere comparison of its provisions with
applicable provisions of the Constitution, since the statute may
be constitutionally valid as applied to one set of facts and
invalid in its application to another.
➔ 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
con iscatory, its validity, even though af irmed by a former
adjudication, is open to inquiry and investigation in the light of
changed conditions.
Applicability to All
➔ Substantive similarity will suf ice; and as long as this is
achieved, all those covered by the classi ication are to be
treated equally.
➔ In Villegas v Hiu Chong Tsai Pao Ho, an ordinance imposing a
work permit fee of P50.00 upon all aliens desirous of obtaining
employment in Manila was struck down noting that the same
amount is being collected whether the alien is casual or
permanent, part time or full-time, or whether he is a lowly
employee or a highly paid executive.
➔ In Tatad v Secretary of Energy and Secretary of Finance, the SC
struck down a law deregulating the downstream oil industry
for violation of the equal protection clause as it favored the
oligopoly of the 3 big players to the prejudice of prospective
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investors that would be saddled with requirements already
complied with by the three oil giants.
Selective Prosecution
In People v. Dela Piedra, the Court declared that an erroneous
performance of statutory duty - such as an apparent selective
enforcement of the statute - could not be considered a violation of
the equal protection clause, unless the element of intentional or
purposeful discrimination is shown.
Legislations for specific class
In Samahan ng Progresibong Kabataan v. Quezon City, this Court
summarized the three (3) tests to determine the reasonableness of
a classi ication:
The strict scrutiny test applies when a classi ication either
1.
2.
interferes with the exercise of fundamental rights, including
the basic liberties guaranteed under the Constitution, or
burdens suspect classes.
The intermediate scrutiny test applies when a classi ication does
not involve suspect classes or fundamental rights, but requires
heightened scrutiny, such as in classi ications based on gender and
legitimacy.
Lastly, the rational basis test applies to all other subjects not
covered by the irst two tests. A "suspect class" is de ined as "a class
saddled with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection from
the majoritarian political process. "
Right Against Unreasonable Searches and Seizures
The ordinary citizen enjoys the right against of icial intrusion and is
master of all the surveys within the domain and privacy of his own
home. Thus, the following constitutional guaranties are set forth:
Sec 2 Art III. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or af irmation of the
Synthesized from Constitutional and Allied Political Law Notes
RECAP
complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized.
Sec 3(1) Art III. The privacy of communication and
correspondence shall be inviolable except upon lawful order of the
court or when public safety or order requires otherwise as
prescribed by law.
Sec 3(2) Art III. Any evidence obtained in violation of this or
the preceding section shall be inadmissible for any purpose in any
proceeding.
Scope of Protection
➔ The rights against unreasonable searches and seizures and to
the privacy of communication and correspondence are
available to all persons.
➔ Such right is personal and may only be invoked by the person
entitled to it.
➔ The “right to be left alone” extends not only to the privacy of
one’s home but also to his of ice, including the papers and
effects that may be found there.
➔ The right applies as a distraint directed only against the
government and its agencies tasked with the enforcement of the
law. The protection cannot extend to acts committed by private
individuals so as to bring them within the ambit of alleged
unlawful intrusion by the government.
➔ In People v. Bongcarawan, G.R. No. 143944, July 11, 2002,
the shabu in the baggage of the accused was found by (private)
security of icers of the interisland passenger vessel who then
reported the matter to the Philippine Coast Guard. The search
and seizure of the suitcase and contraband items were carried
out without government intervention. Accordingly, the
exclusionary rule may not be invoked.
➔ What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.
By RGL
(a) The purpose of the search or seizure;
(b) The presence or absence of probable cause;
(c) The manner in which the search and seizure was
made;
(d) The place or thing searched; and
(e) The character of the articles procured.
➔ The iling of charges and the issuance of the warrant of arrest
against a person invalidly detained will cure the defect of that
detention, or at least deny him the right to be released.
Procedural Rules and Jurisdiction
➔ The conspicuous illegality of the arrest cannot affect the
jurisdiction of the trial court, because even in instances not
allowed by law, a warrantless arrest is not a jurisdictional
defect, and any objection thereto is waived when the person
arrested submits to arraignment without any objection.
➔ Where a criminal case is pending, the Court wherein it is iled,
or the assigned branch thereof, has primary jurisdiction to
issue the search warrant; and where no such criminal case has
yet been iled, the executive judges, or their lawful substitutes,
in the areas and for the offense contemplated in Circular 1-91,
shall have primary jurisdiction.
➔ The determination of the existence of compelling
considerations of urgency, and the subject, time and place
necessitating and justifying the iling of an application for a
search warrant with a court other than the court having
territorial jurisdiction over the place to be searched and things
to be seized or where the materials are found is addressed to
the sound discretion of the trial court where the application is
iled, subject to review by the appellate court in case of grave
abuse of discretion amounting to excess or lack of jurisdiction.
➔ The moment an information is iled with the RTC, it is that
court which must issue the warrant of arrest.
➔ In People v Court of Appeals, it was held that where a search
warrant is issued by one court and the criminal action based on
the results of the search is afterwards commenced in another
court, it is not the rule that a motion to quash the warrant or to
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retrieve things thereunder seized may be iled only with the
issuing court. Such a motion may be iled for the irst time in
either the issuing court or that in which the criminal action is
pending. However, the remedy is alternative, not
cumulative.
➔ The judge may order the quashal of the warrant he issued even
after the same had already been implemented, particularly
when such quashal is based on the inding that there is no
offense committed. This does not trench upon the duty of the
prosecutor. The effect of such a quashal is that the items seized
shall be inadmissible in evidence.
➔ The SC issued Circular 03-8-02, effective Feb. 15, 2004,
pursuant to which the executive judges of the RTC of Manila
and QC or in the absence of their physical incapacity, the vice
judges of those courts are empowered to issue search warrants
that may be enforced throughout the Philippines, or even
outside their respective territorial jurisdiction.
➔ But only for speci ic offenses such as heinous crimes, illegal
possession of irearms, illegal gambling, violation of the
comprehensive dangerous drugs act of 2002 (9165), violation
of intellectual property law, violation of anti-money laundering
law and violation of tariff and customs code.
Requisites of a Valid Warrant
(1) Existence of Probable Cause
- It must be based upon probable cause.
➔ Probable cause has been de ined as referring to “such facts
and circumstances antecedent to the issuance of the warrant
that in themselves are suf icient to induce a cautious man to
rely on them and act in pursuance thereof.”
➔ It “consists of a reasonable ground of suspicion supported by
circumstances suf iciently strong in themselves to warrant a
cautious man in believing accused to be committing the offense
or to be guilty of the offense.”
➔ It is the knowledge of facts, actual or apparent, strong enough
to justify a reasonable man in the belief that he has lawful
grounds for prosecuting defendant in the manner complained
Synthesized from Constitutional and Allied Political Law Notes
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of, the concurrence of facts and circumstances reasonably
warranting the belief.
➔ In Burgos v Chief of Staff, it is de ined as “such facts and
circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the
place sought to be searched.”
➔ A inding of probable cause need not be based on clear and
convincing evidence, or on evidence beyond reasonable doubt.
But, it must be more than mere suspicion.
➔ It merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.
➔ The warrant must refer to only one speci ic offense, provided
in Sec 3 Rule 126 of the Rules of Court.
➔ In Stonehill v Diokno, the warrants were invalidated as no
speci ic offense had been alleged in the applications thereof.
➔ In Asian Surety & Insurance Co., Inc. v Herrera, the search
warrant was annulled because it had been issued for four
separate and distinct offenses; as well as in Castro v Pabalan,
because it did not refer to one particular offense but to “an
illegal traf ic in narcotics and contraband.”
➔ Same ruling was reached in People v CA, where the warrant
was described as a “scatter-shot warrant”.
➔ In Tan v. Sy Tiong Gue, the petitioner could not utilize the
evidence seized by virtue of the search warrants issued in
connection with the case of Robbery in a separate case of
Quali ied Theft, even if both cases emanated from the same
incident.
➔ In Century Chinese Medicine Co. v People, the search warrant
issued “in anticipation of criminal actions for violation of RA
8293” was validated.
➔ Signi icantly, in People v Martinez, it is acknowledged that
“tipped information” has been considered suf icient probable
cause to effect warrantless searches in buy-bust operations
or cases involving drugs in transit.
(2) Determination of Probable Cause
By RGL
➔
➔
➔
➔
The probable cause must be determined personally by the
judge.
According to Collector of Customs v Villaluz, this power is
derived directly from the self-executing provisions of Sec 2 Art
III of the 1987 Constitution. The word “judge” includes judges
of all levels.
As to the question of who should determine probable cause
as a requirement for the issuance of a warrant of arrest, the
Court in Placer v Villanueva, ruled that such issuance is not a
ministerial function of the judge who had the right to determine
for himself the existence of probable cause. He is not bound by
the indings of the prosecutor.
In that case, the Court cited Sec 6 Rule 112 of the Rule of
Court providing that a judge may issue a warrant of arrest only
if he is satis ied from the investigation conducted by him
or the prosecutor that there is probable cause.
Thus, in Soliven v Makasiar:
Following established doctrine, the judge shall
(1) Personally evaluate the report and the supporting documents
submitted by the iscal regarding the existence of probable
cause and on the basis thereof, issue a warrant of arrest, or
(2) If on the basis thereof he inds no probable cause, he may
disregard the iscal’s report and require the submission of
supporting af idavits of witnesses to aid him in arriving at
a conclusion as to the existence of probable cause.
➔ In other words, as was held in Enrile v Salazar, the judge
need not personally determine the existence of probable cause
by examining under oath or af irmation the complainant and
his witnesses, it being suf icient that he follows established
procedure by personally evaluating the report and supporting
documents submitted by the prosecutor.
➔ In People v Desmond, MeTC or MTC, and MTCC judges are no
longer authorized to conduct preliminary investigations as
per AM No. 05-8-26-SC, August 30, 2005.
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➔ As to the issuance of warrant of arrest, under Sec 5(a) of Rule
112 of the Rules of Court:
◆ Within 10 days from the iling of complaint or
information, the judge shall personally examine the
resolution of the prosecutor;
◆ If evidence on record fails to prove probable cause =
dismiss the case;
◆ If he inds probable cause = issue a warrant of
arrest;
◆ In case of doubt, order the prosecutor to present
additional evidence within 5 days from notice;
◆ The issue must be resolved within 30 days from the
iling of the complaint or information.
➔ In Ho v People, the objectives of the prosecutor and the judge
in determining probable cause were distinguished:
Prosecutor
Judge
Whether there is reasonable
ground to believe that the
accused is guilty and should be
held for trial.
If a warrant of arrest should be
issued to place the accused in
immediate custody so as not to
frustrate the ends of justice.
Conducts preliminary
investigation proper
Conducts preliminary inquiry/
examination
In People v Desmond, determination of probable cause may either
be:
Executive: for the purpose of
iling a criminal information in
court
Judicial: to ascertain whether a
warrant of arrest should be
issued.
➔ In a preliminary investigation, the public prosecutor merely
determines whether there is probable cause or suf icient
ground to engender a well-founded belief that (1) a crime has
been committed, and that (2) the respondent is probably guilty
thereof and (3) should be held for trial.
Synthesized from Constitutional and Allied Political Law Notes
➔ A writ of mandamus may not issue to compel the iling of
cases by prosecutors.
➔ It is the (1) report, (2) af idavits, (3) transcripts of
stenographic notes (if any), (4) and all other supporting
documents behind the Prosecution’s certi ication which are
material in assisting the Judge in making his
determination.
➔ In The Law Firm of Chavez Miranda and Aseoche v Fria, the
judge’s power to immediately dismiss a criminal case would
only be warranted when the lack of probable cause is clear.
➔ A clear-cut case of lack of probable cause exists when the
records readily show uncontroverted, and thus, established
facts which unmistakably negate the existence of the elements
of the crime charged.
➔ Warrants of arrest may be issued by administrative
authorities only for the purpose of carrying out a inal inding
of a violation of law, i.e. (1) order of deportation, or an (2)
order of contempt, and not for the sole purpose of
investigation or prosecution, as was held in Morano v Vivo.
➔ Strictly speaking, the requirement of probable cause is not
applicable in deportation proceedings as it is purely
administrative.
➔ Search warrant should not be confused with:
(a) Production order, likened to the production of documents
or things under Sec 1 Rule 27 of the Rules of Civil
Procedure;
(b) Inspection order, an interim relief designed to give
support or strengthen the claim of a petitioner in an
amparo petition; and
(c) Bank inquiry order, under the Anti-Money Laundering
Act.
➔ In Salazar v Achacoso, Art 38(c) of the Labor Code which
empowers the Secretary of Labor or his duly authorized
representative to cause the arrest and detention and order the
search of the of ice and the seizure of documents,
paraphernalia, properties and other implements of any
By RGL
unlicensed recruiter for overseas employment, was declared
unconstitutional.
➔ The Congress, in its exercise of its power of legislative inquiry,
may likewise provide for the arrest and detention of persons
for contempt.
(3) Examination of Applicant
- The determination must be made after examination under
oath or af irmation of the complainant and the witnesses
he may produce.
Sec 4 Rule 126 of the Rules of Court, the judge, before issuing the
search warrant, must “personally examine in the form of searching
questions and answers, in writing and under oath the complainant
and any witnesses he may produce on facts personally known to
them, and attach to the record their sworn statements together with
any af idavits submitted.”
➔ Evidence must be based on the personal knowledge of those
who offered same and not on mere information or belief.
Hearsay is not allowed.
➔ To be considered suf icient, the af idavits must be drawn in
such a manner that the af iant could be charged with perjury if
the allegations contained therein are found to be untrue.
➔ In Alvarez v Court of First Instance, a search warrant was
annulled as it was issued of an af idavit based on “reliable
information” only.
➔ In the Burgos case, the application for search warrants iled by
two military of icers on the basis of “the evidence gathered and
collected by our unit” was rejected.
➔ By contrast, the search warrant was sustained in Yee Sue Koy v
Almeda, where it was shown that the complainant and his
witnesses, of their own personal knowledge obtained from the
personal investigations conducted by them, both declared
under oath that the petitioner was engaged in usurious
activities.
➔ The cases of Mata v Bayona and Tabujara v People
invalidated the search warrant and warrant of arrest,
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RECAP
respectively, as they were based solely on the statement of
already iled in court or (2) in anticipation of one yet to be
witnesses whom the judge did not personally examine in
iled.
writing and under oath; neither did he propound searching
➔ Where the search warrant is issued as an incident in a pending
questions.
criminal case, its quashal is merely interlocutory. In contrast,
This procedure is laid in Sec 6 Rule 112 and is mandatory as
where a search warrant is applied for and issued in anticipation
its failure amounts to a denial of due process.
of a criminal case yet to be iled, the order quashing a warrant
A inding of probable cause may be set aside and the search
ends the judicial process.
warrant may be quashed if:
(4) Particularity of Description
◆ The applicants and their witnesses committed a
- It must particularly describe the place to be searched and
deliberate falsehood or reckless disregard for the truth
the persons or things to be seized.
on matters that are essential or necessary to the
➔ The Constitution requires that the place to be searched or the
showing of probable cause.
persons or things to be seized be described with such
However, mere innocent and negligent omissions or
particularity as to enable the person serving the warrant to
misrepresentation of witnesses will not cause the quashal of a
identify them.
search warrant.
➔ Otherwise, it is considered as a general warrant which is
A search warrant proceeding is, in no sense, a criminal
proscribed by both jurisprudence and the Constitution.
action or the commencement of a prosecution. Though it is
➔ Tests for speci icity:
entitled like a criminal action, it does not make it such an
(a) When the description therein is as speci ic as the
action.
circumstances will ordinarily allow;
A search warrant is a legal process which has been likened to
(b) When the description expresses a conclusion of fact a writ of discovery employed by the State to procure relevant
not of law - by which the warrant of icer may be
evidence of crime. It has no relation to a civil process. It may
guided;
only be applied in the furtherance of public prosecution.
(c) When the things described are limited to those which
It is de ined in our jurisdiction as an order in writing issued in
bear direct relation to the offense for which the
the name of the People of the Philippines signed by a judge and
warrant is being issued.
directed to a peace of icer, commanding him to search for
➔ GR: Person sought to be seized should be identi ied by name. A
personal property and bring it before the court.
John Doe warrant is generally illegal. However, a search
A challenge against the participation of a private person in a
warrant need not identify with particularity the person against
search warrant proceeding was rejected in PLDT v HPS
whom it is directed; it suf ices that the place to be searched
Software and Communication Corporation, for as long as
and the things to be seized are described.
the private party is in collaboration with the NBI or such
➔ But while a John Doe warrant is generally held invalid, it is
government agency. The party may ile an opposition to a
enough if there is some descriptio personae that will enable
motion to quash the search warrant issued by the court, or
the of icer to identify the accused.
a motion for reconsideration of the court order granting such
➔ In PLDT v HPS Software and Communication Corporation,
motion to quash.
the search warrants were not general warrants because the
An application for a search warrant is a judicial process
items to be seized were suf iciently identi ied physically and
conducted either as (1) an incident in a main criminal case
their relation to the offenses charged.
Synthesized from Constitutional and Allied Political Law Notes
By RGL
➔ Thus, a warrant would be valid:
(a) When it enables the police of icers to readily identify
the properties to be seized;
(b) It leaves them with no discretion regarding the articles
to be seized;
(c) When the things described are limited to those that
bear a direct relation to the offense charged.
➔ Only the articles particularly described in the warrant can be
seized, and no other property can be taken thereunder unless it
is prohibited by law.
➔ A search warrant is severable. Thus, in Uy v. Bureau of
Internal Revenue, G.R. No. 129651, October 20, 2000, the
Supreme Court said that the general description of most of the
documents in the warrant — if there are others particularly
described — will not invalidate the entire warrant. Those items
which are not particularly described may simply be cut off
without destroying the whole warrant. This ruling is reiterated
in Microsoft Corporation v. Maxicorp, Inc.
➔ The Constitution requires search warrants to particularly
describe not only the place to be searched, but also the persons
to be searched.
➔ In People v. Tiu Won Chua, G.R. No. 149878, July 1, 2003, the
validity of the search warrant was upheld despite the mistake
in the name of the persons to be searched, because the
authorities conducted surveillance and a test-buy operation
before obtaining the search warrant and subsequently
implementing it. They had personal knowledge of the identity
of the persons and the place to be searched, although they did
not speci ically know the names of the accused.
Properties Subject to Seizure
➔ Under Sec 2 Rule 126 of the Rules of Court, the following are
subject to search and seizure:
(1) Property subject of the offense;
(2) Property stolen or embezzled and other proceeds or
fruits of the offense; and
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(3) Property used or intended to be used as the means of
committing an offense.
Sec 13 Rule 126 provides that, if the search is an incident to a
lawful arrest, seizure may be made of dangerous weapons or
anything that may have been used or may constitute proof in
the commission of an offense.
Where the search and seizure is made only for the purpose of
obtaining evidence to be used against the accused, the warrant
is unlawful as it would violate the constitutional right against
self-incrimination.
If said seized property is used as evidence, the order for its
disposition or return can be made only when the case is inally
terminated, unless it is then subject to forfeiture or other
proceedings.
In Burgos v Chief of Staff, it is not necessary that the property
to be searched or seized should be owned by the person against
whom the warrant is issued; it is suf icient that the property is
within his control or constructive possession.
Conduct of the Search
➔ Sec. 8, Rule 126, Rules of Court, requires that no search of a
house, room or any of the 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, in the presence of two
witnesses of suf icient age and discretion, residing in the same
locality. Failure to comply with this requirement invalidates
the search.
➔ The police of icers may use force in entering the dwelling if
justi ied by Sec 7 Rule 126 of the Rules of Court. In People v.
Salanguit, supra., the occupants of the house refused to open
the door despite the fact that the searching party knocked on
the door several times, and the agents saw suspicious
movements of the people inside the house. These
circumstances justi ied the searching party’s forcible entry, as
it was done on the apprehension that the execution of their
mission would be frustrated unless they did so.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ The General Rule as per Sec 9 Rule 126 is that the search
warrant must be served in day time —
➔ Exception: Af idavit 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.
➔ Sec 10 Rule 126 provides that search warrants are valid only
10 days reckoned from the date of issuance.
Admissibility of Illegally Seized Evidence
➔ “Fruit of the poisonous tree” doctrine, non-exclusionary
rule originally enunciated in Stonehill v Diokno and later
constitutionally af irmed in Sec 3(2) Art III.
➔ Evidences illegally obtained however may nonetheless be used
in the judicial or administrative action that may be iled against
the of icer responsible for its illegal seizure.
In Luz v People, the Supreme Court acquitted an accused charged
with illegal possession of dangerous drugs due to the inadmissibility
of the evidence seized from him after it was considered to be an
unlawful warrantless search, which was conducted after he was
stopped for a traf ic violation.
First, there was no valid arrest. When he was lagged down for
committing a traf ic violation, he was not, ipso facto and solely for
this reason, arrested. Under RA 4136, or the Land Transportation and
Traf ic Code, the general procedure for dealing with a traf ic violation
is not the arrest, but the con iscation of the driver’s license.
Second, there being no valid arrest, the warrantless search that
resulted from it was likewise illegal. The plain view doctrine is
inapplicable as the evidence was concealed in a metal container
inside petitioner’s pocket. Neither was there a consented warrantless
search. He was merely told to take out the contents of his pocket.
Neither does the search qualify as a stop and frisk one. While the rule
normally applies when a police of icer observes suspicious or
unusual conduct, which may lead him to believe that a criminal act
may be afoot, the stop and frisk is merely a limited protective
search of outer clothing for weapons.
By RGL
➔ Where the accused did not raise the issue of the admissibility
of evidence against him on the ground that it had been illegally
seized, such omission constituted a waiver of the protection
granted by this section, and the illegally seized evidence could
then be admitted against him.
➔ Such objection should be made before arraignment as per
People v Zaspa.
➔ The legality of a seizure can be contested only by the party
whose rights have been impaired thereby as it is purely
personal and cannot be availed of by third parties.
➔ The objection must be on constitutional grounds.
➔ The constitutional guaranty against unreasonable searches and
seizure is applicable only against government authorities and
not to private individuals such as the barangay tanod.
➔ In Del Castillo v People, however, having been established that
the assistance of the barangay tanods were sought by the police
authorities who effected the search warrant, the same barangay
tanods therefore acted as agents of persons in authority.
Thus, the constitutional proscription applied to them.
➔ The complaint for warrantless searches charges no criminal
offense. The remedy is civil under Article 32, in relation to
Article 2219(6) and (10) of the Civil Code.
Warrantless Searches and Seizures
Instances wherein warrantless searches and seizures are deemed valid:
(1) Consented searches;
(2) Incident to a lawful arrest;
(3) Of vessels and aircraft for violation of immigration,
customs, and drug laws;
(4) Of moving vehicles;
(5) Of automobiles at borders or constructive borders;
(6) Where the prohibited articles are in ‘plain view’;
(7) Of buildings and premises to enforce ire, sanitary, and
building regulations;
(8) Stop and frisk or “Terry searches”;
(9) Customs searches;
(10) Under exigent and emergency circumstances;
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(11) At military checkpoints;
(12) Based on tipped information in buy-bust operations or
cases involving drugs in transit.
(1) Consented searches
➔ It is not to be lightly inferred and must be shown by clear and
convincing evidence.
➔ It must be voluntary in order to validate an otherwise illegal
search; that is, the consent must be (1) unequivocal, (2)
speci ic, (3) intelligently given and (4) uncontaminated by
any duress or coercion.
➔ It must be shown that
(a) The right exists;
(b) That the person involved had knowledge. Either actual
or constructive, of the existence of such right; and
(c) The said person had an actual intention to relinquish
the right.
➔ The following characteristics of person giving consent and the
environment in which consent is given may be of help:
(1) Age of defendant;
(2) Public or secluded place;
(3) Objected or passively looked on;
(4) Education and intelligence;
(5) Presence of coercive police procedures;
(6) Belief that no incriminating evidence will be found;
(7) Nature of police questioning;
(8) Environment where questioning took place; and
(9) Possibly vulnerable subjective state of the person
consenting.
(2) Incident to a lawful arrest
➔ Under Sec 5 Rule 113 of the Revised Rules on Criminal
Procedure, a peace of icer or a private person may, without a
warrant, arrest a person:
(a) When such person has in fact just committed, is
actually committing, or is attempting to commit an
offense in his presence (in lagrante delicto);
Synthesized from Constitutional and Allied Political Law Notes
RECAP
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(b) When an offense has in fact been committed and he
has personal knowledge of facts indicating that the
person to be arrested has committed it (hot pursuit);
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or a place where
he is serving inal judgment or temporarily con ined
while his case is pending, or has escaped while being
transferred from one con inement to another.
The individual being arrested may be frisked for concealed
weapons that may be used against the arresting of icer and all
unlawful articles found in his person or within his immediate
control may be seized.
The Supreme Court stressed in People v Figueroa that
evidence obtained during a warrantless search made before,
and not after, a warrantless arrest would be inadmissible.
This is consistent with Sec 13 Rule 126 of the Rules of Court.
The lawful arrest must precede the search of a person and his
belongings.
Requisites of a valid in lagrante delicto arrest:
(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 is done in the presence or within the
view of the arresting of icer.
While buy-bust operations have been recognized as valid, it
must be distinguished from instigation, when a person who is
otherwise not predisposed to commit the crime is enticed or
lured or talked into committing the crime.
Decoy solicitation or the act of soliciting drugs during a
buy-bust operation has been ruled as valid.
Prior surveillance is not necessary for as long as the buy-bust
team is accompanied to the target area by the informant.
It is conceded that such warrantless arrests may be susceptible
to police abuses. Thus, several procedural safeguards have
been instituted by RA 9165.
By RGL
➔ The State must show a faithful compliance with the chain of
custody procedures to preserve the integrity of the evidence
seized.
➔ Warrantless arrests made on the basis alone of “tips” or
“reliable information” is not suf icient. It is further required
that the accused performed some overt act that would indicate
that he has committed, is actually committing, or is attempting
to commit an offense.
➔ The warrantless arrests of the accused which were based solely
on a “report from a civilian asset” or mere “information” were
likewise invalidated in People v Tudtud and People v Nuevas.
➔ Antiquera v People, in acquitting the accused declared, citing
People v Martinez, that a waiver of an illegal warrantless
arrest does not carry with it a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.
➔ Requisites of a valid hot pursuit arrest:
(a) An offense has just been committed; and
(b) The person making the arrest has personal
knowledge of facts indicating that the person to be
arrested has committed it.
➔ May only be made within the permissible area of search, or the
place within the immediate control of the person being arrested
as per Espano v CA.
➔ In People v. Del Rosario, G.R. No. 127755, April 14, 1999, it
was held that these requirements were not complied with. The
arrest came a day after the offense was committed and thus, the
offense had not been “just” committed. Furthermore, the
arresting of icers had no personal knowledge of facts indicating
that the person to be arrested had committed the offense, since
they were not present and were not actual eyewitnesses to the
crime, and they became aware of the identity of the driver of
the getaway tricycle only during the custodial investigation.
➔ In Robin Padilla v. Court of Appeals, G.R. No. 121917, March
12, 1997, the-Court held that there was a valid arrest, as there
was neither supervening event nor a considerable lapse of time
between the hit-and-run and the apprehension. After the
policemen had stationed themselves at possible exits, they saw
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the fast approaching vehicle, its plate number, and the dented
hood and railings thereof. These formed part of the arresting
of icers’ personal knowledge of the fact that Padilla’s vehicle
was the one involved in the incident.
‘Within the area of his immediate control’ means the area
from within which he might gain possession of a weapon or
destructible evidence. When a driver is arrested, is is legal to
search his car.
As held in Terry v Ohio, even before an arrest, “when an of icer
is justi ied in believing that the individual whose suspicious
behavior he is investigating at close range is presently
dangerous to the of icer or to others”, he may conduct a limited
protective search for concealed weapons. The purpose is not
the discovery of evidence of a crime but to allow the of icer to
pursue his investigation without risk of violence.
Search made pursuant to routine airport security procedure
which is allowed under Sec 9 of RA 6235 was applied in
People v Johnson and
People v Canton, such that
announcements place passengers on notice that ordinary
constitutional protections against warrantless searches and
seizures do not apply to routine airport procedures.
The scope of a search pursuant to airport security procedures
is not con ined only to search for weapons under the Terry
search doctrine.
A warrantless arrest may be made where the right thereto is
waived. But no waiver is presumed
(a) Where the person merely submits to the arresting
of icer in manifestation of his respect for authority; or
(b) Where he allows entry into his home as a sign of
hospitality and politeness.
In Callanta v Villanueva, posting of a bail bond constitutes
waiver of any irregularity attending the arrest of a person.
However, it is now provided in Sec 26 Rule 114 of the Rules
of Court that an application for or admission to bail shall not
bar the accused from
(a) Challenging the validity of his arrest or legality of the
warrant issued therefor; or
Synthesized from Constitutional and Allied Political Law Notes
RECAP
(b) Assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him,
provided that he raises them before entering his
plea.
➔ It has later been ruled that a search substantially
contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset of
the search.
(3) Of vessels and aircraft for violation of immigration, customs,
and drug laws
➔ Rationale: The vessel can be quickly moved out of the locality
or jurisdiction in which the search must be sought before the
warrant could be secured.
➔ In People v. Aminnudin, 163 SCRA 402, where the accused
was searched and arrested upon disembarkation from a
passenger vessel, the Court held that there was no urgency to
effect a warrantless search, as it is clear that the Philippine
Constabulary had at least two days (from the time they
received the tip until the arrival of the vessel) within which
they could have obtained a warrant to search and arrest the
accused. Yet, they did nothing; no effort was made to comply
with the law.
➔ The Tangliben ruling cannot apply because the evidence did
not show that the accused was acting suspiciously when he
disembarked from the vessel.
(4) Of moving vehicles
➔ Transport as used under RA 9165 means to carry or convey
from one place to another.
➔ Thus, in People v Dequina, the SC considered dried marijuana
leaves in traveling bags being carried or transported by the
accused in a taxi cab as admissible in evidence against them.
Since a crime was actually then being committed by the
accused, their warrantless arrest was legally justi ied, as well
as the ensuing search.
By RGL
➔ A warrantless search and seizure involving an accused which
was caught in lagrante delicto transporting marijuana using a
bicycle was upheld in People v Pena lorida.
➔ It has been clari ied though that the exception from securing a
search warrant when it comes to moving vehicles does not give
the police authorities unbridled discretion to conduct a
warrantless search of an automobile. Probable cause must
exist.
➔ Section 80 of the Forestry Code authorizes forestry of icers
or employees of the DENR or any personnel of the PNP to
arrest, even without a warrant, any person who has committed
or is committing in their presence any of the offenses under the
Forestry code.
(5) Of automobiles at borders or constructive borders
➔ Searches without warrant of automobiles are also allowed for
the purpose of preventing violations of smuggling or
immigration laws, provided that such searches are made at
borders or “constructive borders”, like checkpoints near the
boundary lines of the State.
➔ One such form of search of moving vehicles is the
"stop-and-search" for as long as it is warranted by the
exigencies of public order and conducted in a way least
intrusive to motorists. Routine inspections may be had:
(1) where the of icer merely draws aside the curtain of a
vacant vehicle which is parked on the public fairgrounds;
(2) simply looks into a vehicle;
(3) lashes a light therein without opening the car's doors;
(4) where the occupants are not subjected to a physical or
body search;
(5) where the inspection of the vehicles is limited to a
visual search or visual inspection;and
(6) where the routine check is conducted in a ixed area.
➔ In the cases of Caballes v CA and People v Libnao, a
checkpoint search may either be a mere routine inspection,
or it may involve an extensive search.
➔ For a mere routine inspection, the search is normally
permissible when it is:
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◆ limited to a mere visual search,
◆ where the occupants are not subjected to a physical or
body search.
➔ On the other hand, when the vehicle is stopped and subjected to
an extensive search, it would be constitutionally permissible
only if
◆ the of icers conducting the search had reasonable or
probable cause to believe, before the search, that either
the motorist is a law offender or
◆ they will ind the instrumentality or evidence
pertaining to a crime in the vehicle to be searched.
(6) Where the prohibited articles are in ‘plain view’
➔ The following requisites must concur:
(a) Prior justi ication for an intrusion or is in a position
from which he can view a particular area;
(b) Inadvertent discovery;
(c) Immediately apparent to the of icer that the item he
observes may be evidence of a crime, contraband or
otherwise subject to seizure;
(d) Justi ied mere seizure of evidence without further
search.
➔ Object is in plain view when it is plainly exposed to sight.
➔ If the package proclaims its contents, whether by its (a)
distinctive con iguration, its (b) transparency, or its (c)
contents are obvious to the observer, then the contents are in
plain view.
➔ The element of inadvertence would not be present if the
police of icers intentionally entered the house with no prior
surveillance or investigation before they discovered the
accused with the subject items.
➔ The “immediately apparent” test does not require an unduly
high degree of certainty as to the incriminating character of
evidence. It requires merely that the seizure be presumptively
reasonable assuming that there is probable cause to associate
the property with criminal activity; that a nexus exists between
the viewed object and criminal activity.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ In People v Bolasa, acting on an anonymous tip, the
warrantless arrest and search of the suspects were invalidated
as they were not caught in lagrante delicto or as a result of a
hot pursuit, and the objects seized were not in plain view as it
was shown that the police of icers had to peep to see them.
They ought to have conducted prior surveillance and obtained a
search warrant.
➔ In People v. Figueroa, 248 SCRA 679, where, while serving a
warrant of arrest, police of icers searched the house and found
a pistol, a magazine and seven rounds of ammunition, the
seizure of the irearm and ammunition was held lawful,
because the objects seized were in plain view of the of icer who
had the right to be in the place where he was.
➔ In People v. Salanguit, G.R No. 133254-55, April 19, 2001, the
peace of icers entered the dwelling armed with a search
warrant for the seizure of shabu and drug paraphernalia. In the
course of the search, they (presumably) found the shabu irst,
and then came upon an article wrapped in newspaper which
turned out to be marijuana. On the issue of whether the
marijuana may be validly seized, the Supreme Court said once
the valid portion of the search warrant has been executed, the
“plain view” doctrine can no longer provide any basis for
admitting the other items subsequently found. (Note that the
marijuana was wrapped in newspaper which was not
transparent.)
(7) Of buildings and premises to enforce ire, sanitary, and
building regulations
➔ This is basically an exercise of the police power of the State,
and would not require a search warrant. These are routine
inspections which, however, must be conducted during
reasonable hours.
(8) Stop and frisk or “Terry searches”
In Manalili v. Court of Appeals, G.R. No. 113447, October 7,
1997, the Supreme Court upheld the validity of the search as akin to
“stop-and-frisk” which, in the landmark U.S. case, Terry v. Ohio, was
de ined as the vernacular designation of the right of a police of icer to
By RGL
stop a citizen on the street, interrogate him and pat him for weapons
whenever he observes unusual conduct which leads him to conclude
that criminal activity may be afoot. In this case, the policemen
chanced upon the accused who had reddish eyes, walking in a
swaying manner, and who appeared to be high on drugs; thus, the
search.
➔ (a) The police of icer should properly introduce himself and
make initial inquiries, (b) approach and restrain a person who
manifests unusual and suspicious conduct, in order to check
the latter’s outer clothing for possibly concealed weapons. The
apprehending police of icer must have a genuine reason, in
accordance with the police of icer’s experience and the
surrounding conditions, to warrant the belief that the person to
be held has weapons or contraband concealed about him. It
should, therefore, be emphasized that a search and seizure
should precede the arrest for the principle to apply.
➔ In People v. Solayao, 262 SCRA 255, the Supreme Court found
justi iable reason to apply the “stop-and-frisk” rule, because of
the drunken actuations of the accused and his companions, and
because of the fact that his companions led when they saw the
policemen, and inally, because the peace of icers were
precisely on an intelligence mission to verify reports that
armed persons were roaming the vicinity.
➔ The rule was not applied in Malacat v. Court of Appeals, G.R.
No. 123595, December 12, 1997, where police of icers,
conducting a patrol on the strength of an information that a
Muslim group would explode a grenade, saw petitioner and
companions attempting to explode a grenade but who, upon
seeing the policemen, desisted and ran away; then, two days
later, police of icers saw petitioner at a street corner, accosted
him when his companions ran away, then searched him and
found a grenade. In this case, the Supreme Court said that there
was no valid search because there was nothing in the behavior
or conduct of the petitioner which could have elicited even
mere suspicion other than that his eyes were moving fast.
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There was no reasonable ground to believe that the petitioner
was armed with a deadly weapon.
➔ To be valid, searches must proceed from a warrant issued by a
judge. While there are exceptions to this rule, warrantless
searches can only be carried out when founded on probable
cause, or "a reasonable ground of suspicion supported by
circumstances suf iciently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the
offense with which he is charged." There must be a
con luence of several suspicious circumstances. A solitary
tip hardly suf ices as probable cause; items seized during
warrantless searches based on solitary tips are inadmissible as
evidence. (People v. Yanson)
(9) Under exigent and emergency circumstances
➔ In People v. de Gracia, 233 SCRA 716, the raid of, and the
consequent seizure of irearms and ammunition in, the Eurocar
Sales Of ice at the height of the December 1989 coup d’etat was
held valid, considering the exigent and emergency situation
obtaining. The military operatives had reasonable ground to
believe that a crime was being committed, and they had no
opportunity to apply for a search warrant from the courts
because the latter were closed. Under such urgency and
exigency, a search warrant could be validly dispensed with.
(10)
At military checkpoints;
In People v Malmstedt, a passenger bus was stopped at a
military checkpoint for inspection. One of the soldiers noticed a
bulge on the waist of the accused which turned out to be a pouch
containing hashish. Further search revealed more hashish concealed
in several teddy bears he was carrying in his bag.
➔ Valmonte v De Villa upheld the establishment of checkpoints
by the military where it could conduct searches and make
arrests without warrant.
RECAP
Remedies against unlawful searches
1) File a motion to quash the search warrant and motion to
suppress evidence illegally obtained if a search warrant is
issued and the same is invalid. This motion is iled in the court
who issued the search warrant or in the court where the case is
already iled.
2) Omnibus Motion
3) File a petition for certiorari on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of the judge who issued the search warrant.
4) Interpose a timely objection when the prosecution is
formally offered the evidences during the trial for the
inadmissibility of the evidences. The failure to object of the
illegality of the arrest does not include the waiver to object of
the inadmissibility of the objects con iscated.
5) File a criminal case for violation of domicile or illegal
procurement of search warrant.
6) Ask for the return of the objects con iscated when the same is
not illegal. However, this can only be asked during the
termination of the case except when the objects con iscated are
not included in the search warrant.
Bus Searches/Inspections
From Saluday v. People
In the conduct of bus searches, the Court lays down the following
guidelines.
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.
contraband or illegal articles, the bus where the passenger is aboard
can be stopped en route to allow for an inspection of the person and
his or her effects. This is no different from an airplane that is forced
to land upon receipt of information about the contraband or illegal
articles carried by a passenger on board.
Second, 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.
Third, a bus can be lagged 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.
In both situations, 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.
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.
Second, neither can the search result from any discriminatory
motive such as insidious pro iling, 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.
Third, as to the purpose of the search, it must be continued to
ensure public safety.
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.
To emphasize, 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.
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.
First, upon receipt of information that a passenger carries
Synthesized from Constitutional and Allied Political Law Notes
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Rights of a Person Under Custodial Investigation
1. Any person arrested, detained or under custodial investigation shall
at all times be assisted by counsel.
2. Any public of icer or employee, or anyone acting under his order or
in his place, who arrests, detains or investigates any person for the
commission of an offense shall inform the latter, in a language
known to and understood by him, of his rights to remain silent
and to have competent and independent counsel, preferably of
his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own
counsel, he must be provided with a competent and
independent counsel by the investigating of icer.
3. The custodial investigation report shall be reduced to writing by
the investigating of icer, provided that before such report is signed,
or thumb-marked if the person arrested or detained does not know
how to read and write, it shall be read and adequately explained to
him by his counsel or by the assisting counsel provided by the
investigating of icer in the language or dialect known to such
arrested or detained person, otherwise, such investigation report
shall be null and void and of no effect whatsoever.
4. Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any of
the parents, elder brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evidence in any
proceeding.
5. Any waiver by a person arrested or detained under the provisions
of Article 125 of the Revised Penal Code, or under custodial
investigation, shall be in writing and signed by such person in the
presence of his counsel; otherwise such waiver shall be null and
void and of no effect.
6. Any person arrested or detained or under custodial investigation
shall be allowed visits by or conferences with any member of his
immediate family, or any medical doctor of priest or religious
Synthesized from Constitutional and Allied Political Law Notes
RECAP
minister chosen by him or by any member of his immediate family
or by his counsel, or by any national non-government organization
duly accredited by the Commission on Human Rights or by any
international non-governmental organization duly accredited by the
Of ice of the President. The person's "immediate family" shall
include his or her spouse, iance or iancee, parent or child, brother
or sister, grandparent or grandchild, uncle or aunt, nephew or niece,
and guardian or ward.
As used in RA 7438, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" of icer for any violation of law.
Custodial Investigation
In People v. Cachuela, the Court held that a custodial investigation is:
any questioning initiated by law enforcement authorities after a person
is taken into custody or otherwise deprived of his freedom of action in
any signi icant manner. x x x It begins when there is no longer a
general inquiry into an unsolved crime and the investigation has
started to focus on a particular person as a suspect, i.e., when the
police investigator starts interrogating or exacting a confession from the
suspect in connection with an alleged offense.
The four fundamental requisites for the admissibility of a confession
are
(1) the confession must be voluntary;
(2) the confession must be made with the assistance of competent
and independent counsel;
(3) the confession must be express; and
(4) the confession must be in writing.
Any person under investigation for the commission of an offense shall
have the right
(1) to remain silent;
(2) to have competent and independent counsel preferably of his
own choice; and
(3) to be informed of such rights.
Right to remain silent
An admission made without the assistance of counsel during custodial
investigation is inadmissible in evidence (People v. Cascalla).
By RGL
Even if the confession of an accused speaks the truth, if it was made
without the assistance of counsel, it is inadmissible in evidence
regardless of the absence of coercion or even if it had been voluntarily
given (People v. Agustin).
An uncounselled extrajudicial confession without a valid waiver of the
right to counsel – that is, in writing and in the presence of counsel – is
inadmissible in evidence (People v. Cabintoy).
Right to have independent and competent counsel
The lawyer called to be present during such investigations should be as
far as reasonably possible, the choice of the individual undergoing
questioning. If the lawyer were one furnished in the accused's behalf, it
is important that he should be competent and independent, i.e., that
he is willing to fully safeguard the constitutional rights of
the accused, as distinguished from one who would merely be giving a
routine, peremptory and meaningless recital of the individual's
constitutional rights. In People vs. Basay, this Court stressed that an
accused's right to be informed of the right to remain silent and to
counsel "contemplates the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle." (People v.
Deniega)
In People vs. Bandula, it was held that a Municipal Attorney cannot
be an independent counsel as required by the Constitution.
Right to be informed
It is settled that one's right to be informed of the right to remain
silent and to counsel contemplates the transmission of meaningful
information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.
The right to be informed carries with it a correlative obligation on the
part of the police investigator to explain, and contemplates effective
communication which results in the subject's understanding of what is
conveyed.
Waiver
These rights cannot be waived except
1.
2.
in writing and
in the presence of counsel.
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Out of Court Identi ications or Police Line-ups
Out-of-court identi ication is conducted by the police in various ways.
It is done thru show-ups where the suspect alone is brought face to face
with the witness for identi ication. It is done thru mug shots where
photographs are shown to the witness to identify the suspect. It is also
done thru lineups where a witness identi ies the suspect from a group
of persons lined up for the purpose x x x. In resolving the admissibility
of and relying on out-of-court identi ication of suspects, courts have
adopted the totality of circumstances test where they consider the
following factors, viz[.]:
(1) the witness' opportunity to view the criminal at the time of the
crime;
(2) the witness' degree of attention at that time;
(3) the accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at the
identi ication;
(5) the length of time between the crime and the identi ication; and
(6) the suggestiveness of the identi ication procedure.
Right to Bail
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 speci ied.
Bail may be given in the form of corporate surety, property bond, cash
deposit, or recognizance.
Te v. Perez reiterated the following duties of judges in case an
application for bail is iled:
1. In all cases, whether bail is a matter of right or discretion, notify
the prosecutor of the hearing of the application for bail or
require him to submit his recommendation;
2. Where bail is a matter of discretion, conduct a hearing of the
application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the
guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion;
3. Decide whether the guilt of the accused is strong based on the
summary of evidence of the prosecution; and
4.
If the guilt of the accused is not strong, discharge the accused
Synthesized from Constitutional and Allied Political Law Notes
RECAP
upon the approval of the bail bond. Otherwise the bail should be
denied.
Bail may be a matter of right or judicial discretion. The accused has
the right to bail if the offense charged is "not punishable by death,
reclusion perpetua or life imprisonment" before conviction by the
Regional Trial Court. However, if the accused is charged with an offense
the penalty of which is death, reclusion perpetua, or life
imprisonment—"regardless of the stage of the criminal
prosecution"—and when evidence of one's guilt is not strong, then the
accused's prayer for bail is subject to the discretion of the trial court.
In non-capital offenses where the trial court imposes the penalty of
imprisonment exceeding six years, the conviction of the accused of the
crime charged does not ipso facto negate bail pending appeal.
If the penalty imposed by the trial court is imprisonment exceeding six
(6) years, the accused shall be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from legal con inement,
evaded sentence, or violated the conditions of his bail without
valid justi ication;
(c) That he committed the offense while under probation,
parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of
light if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
In Leviste v. Court of Appeals, the Court explained that the foregoing
provisions contemplate two scenarios.
First, where none of the listed bail-negating circumstances is
present, the Court may grant or deny bail based on its sound
judicial discretion.
Second, if a bail-negating circumstance exists, the Court has no
other option but to deny or cancel the bail.
It is emphasized that the enumeration in Section 5 is not exclusive.
The existence of a high degree of probability that the accused will
abscond confers upon the court no greater discretion than to increase
By RGL
the bond to such an amount as would reasonably tend to assure the
presence of the defendant when it is wanted, such amount to be subject,
of course, to the constitutional provision that "excessive bail shall not
be required." The recourse of the judge is to ix a higher amount of
bail and NOT to deny the ixing of bail. (Padua v. People)
A court has the power to prohibit a person admitted to bail from leaving
the Philippines. This is a necessary consequence of the nature and
function of a bail bond. (Manotoc, Jr. v. CA)
Right to bail and extradition proceedings
An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases.
In his Separate Opinion in Purganan, CJ Puno proposed that a new
standard which he termed "clear and convincing evidence"
should be used in granting bail in extradition cases. According to him,
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 he is not a light risk
and will abide with all the orders and processes of the extradition court.
Rights of the Accused
In all criminal prosecutions, the accused shall be entitled to the
following rights:
(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature and cause of the accusation
against him.
(c) To be present and defend in person and by counsel at
every stage of the proceedings, from arraignment to
promulgation of the judgment. The accused may, however,
waive his presence at the trial pursuant to the stipulations set
forth in his bail, unless his presence is speci ically ordered by
the court for purposes of identi ication. The absence of the
accused without justi iable cause at the trial of which he had
notice shall be considered a waiver of his right to be present
thereat. When an accused under custody escapes, he shall be
deemed to have waived his right to be present on all
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(d)
(e)
(f)
(g)
(h)
(i)
subsequent trial dates until custody over him is regained. Upon
motion, the accused may be allowed to defend himself in
person when it suf iciently appears to the court that he can
properly protect his right without the assistance of counsel.
To testify as a witness in his own behalf but subject to
cross-examination on matters covered by direct examination.
His silence shall not in any manner prejudice him.
To be exempt from being compelled to be a witness against
himself.
To confront and cross-examine the witnesses against him at
the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not with
due diligence be found in the Philippines, unavailable or
otherwise unable to testify, given in another case or proceeding,
judicial or administrative, involving the same parties and
subject matter, the adverse party having the opportunity to
cross-examine him.
To have compulsory process issued to secure the
attendance of witnesses and production of other evidence in
his behalf.
To have speedy, impartial and public trial.
To appeal in all cases allowed and in the manner prescribed
by law.
has upheld the constitutionality of disputable
presumptions in criminal laws. The constitutional presumption of
innocence is not violated when there is a logical connection between
the fact proved and the ultimate fact presumed. When such prima
facie evidence is unexplained or not contradicted by the accused, the
conviction founded on such evidence will be valid. However, the
prosecution must still prove the guilt of the accused beyond reasonable
doubt. The existence of a disputable presumption does not preclude the
presentation of contrary evidence. (Fuertes v. Senate)
This
Court
The presumption of regularity in the conduct of police of icers
CANNOT trump the constitutional right to be presumed innocent until
proven guilty. (People v. Ordiz)
The Court has adopted the "balancing test" based on the landmark
ruling of the United States Supreme Court in Barker v. Wingo to the
effect that in determining the existence of inordinate delay the
courts should consider the presence of the following factors, namely;
Synthesized from Constitutional and Allied Political Law Notes
RECAP
(1) the length of delay;
(2) the reason for delay;
(3) the defendant's assertion or non assertion of his or her right;
and
(4) the prejudice to the defendant as a result of the delay. (Martinez
III v People)
The rule against double jeopardy protects the accused not against
the peril of second punishment but against being tried for the
same offense. Nemo bis punitur pro eodem delicto. No man is
punished twice for the same fault or offense.
The right to confrontation is part of due process not only in
criminal proceedings but also in civil proceedings as well as in
proceedings in administrative tribunals with quasi-judicial powers. It
has a two-fold purpose:
When a penalty of reclusion perpetua or life imprisonment is imposed,
an accused may:
(1) primarily, to afford the accused an opportunity to test the
testimony of the witness by cross-examination; and
(2) secondarily, to allow the judge to observe the deportment of the
witness. (People v Sergio and Lacanilao)
When presence of accused is a duty
1.
2.
3.
Arraignment and plea;
During trial, for identi ication;
Promulgation of sentence, unless for light offense.
Double Jeopardy
The elements of double jeopardy are
(1) the complaint or information was suf icient in form and
substance to sustain a conviction;
(2) the court had jurisdiction;
(3) the accused had been arraigned and had pleaded; and
(4) the accused was convicted or acquitted or the case was
dismissed without his express consent.
The only instance when the accused can be barred from invoking his
right against double jeopardy is when it can be demonstrated that the
trial court acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution was not allowed
the opportunity to make its case against the accused or where the trial
was sham.
The rule barring an appeal from a judgment of acquittal is, however, not
absolute. The following are the recognized exceptions thereto:
1.
2.
when the prosecution is denied due process of law; and
when the trial court commits grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing a
criminal case by granting the accused's demurrer to evidence.
By RGL
Appeals
(1) ile a notice of appeal under Section 13 (c), Rule 124 to avail
of an appeal as a matter of right before the Court and open the
entire case for review on any question; or
(2) ile a petition for review on certiorari under Rule 45 to
resort to an appeal as a matter of discretion and raise only
questions of law.
Our law recognizes two kinds of acquittal, with different effects on the
civil liability of the accused.
First is an acquittal on the ground that the accused is not the
author of the act or omission complained of. This instance closes
the door to civil liability, for a person who has been found to be
not the perpetrator of any act or omission cannot and can never be
held liable for such act or omission.
The second instance is an acquittal based on reasonable doubt
on the guilt of the accused. In this case, even if the guilt of the
accused has not been satisfactorily established, he is not exempt
from civil liability which may be proved by preponderance of
evidence only.
Privilege Against Self-incrimination
The prohibition of compelling a man in a criminal court to be a witness
against himself, is a prohibition of the use of physical or moral
compulsion, to extort communications from him, not an exclusion of
his body as evidence, when it may be material. (US v. Tan Teng)
The constitutional guaranty, that no person shall be compelled in any
criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination.
(Villa lor v. Summers)
The constitutional inhibition against self-incrimination is directed not
merely to giving of oral testimony, but embraces as well the furnishing
of evidence by other means than by word of mouth, the divulging, in
short, of any fact which the accused has a right to hold secret. (Beltran
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RECAP
v. Samson)
Forced re-enactments, like uncounselled and coerced confessions
come within the ban against self-incrimination. Accused is not
merely required to exhibit some physical characteristics; by and large,
he is made to admit criminal responsibility against his will. It is a
police procedure just as condemnable as an uncounselled confession.
(People v. Olvis)
Whereas an ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring an
incriminating answer is shot at him, an accused may altogether
refuse to take the witness stand and refuse to answer any and all
questions. For, in reality, the purpose of calling an accused as a witness
for the People would be to incriminate him. (Chavez v. CA)
The right against self-incrimination is not self-executing 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)
In ine, a person suspected of having committed a crime and
subsequently charged with its commission in court, has the following
rights in the matter of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public
prosecutor, for preliminary investigation), but after having
been taken into custody or otherwise deprived of his liberty in
some signi icant way, and on being interrogated by the police:
the continuing right to remain silent and to counsel, and to be
informed thereof, not to be subjected to force, violence, threat,
intimidation or any other means which vitiates the free will;
and to have evidence obtained in violation of these rights
rejected; and
2) AFTER THE CASE IS FILED IN COURT
penal, and, hence, the exemption of defendants in criminal case from
the obligation to be witnesses against themselves are applicable thereto.
(Cabal v. Kapunan, Jr.)
Immunity statutes may be generally classi ied into two: one, which
grants "use immunity"; and the other, which grants what is known as
"transactional immunity".
The distinction between the two is as follows: "Use immunity"
prohibits use of witness' compelled testimony and its fruits in any
manner in connection with the criminal prosecution of the witness. On
the other hand, "transactional immunity" grants immunity to the
witness from prosecution for an offense to which his compelled
testimony relates.
Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
Ex Post Facto Law and Bill of Attainder
For a law to be considered a bill of attainder, it must be shown to
contain all of the following:
1.
2.
3.
a speci ication of certain individuals or a group of individuals,
the imposition of a punishment, penal or otherwise, and
the lack of judicial trial.
Privilege of Writ of Habeas Corpus
Persons restrained under a lawful process or order of the court must
pursue the orderly course of trial and exhaust the usual remedies,
instead of availing themselves of the extraordinary remedy of a petition
for habeas corpus. An ordinary remedy is to ile a motion to quash the
information or warrant of arrest. (In the Matter of the Petition for
Habeas Corpus of Punzalan)
a) to refuse to be a witness;
Liberty of Abode and Travel
b) not to have any prejudice whatsoever result to him by
such refusal;
The right to return to one's country is not among the rights
speci ically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally accepted
principle of international law and under our Constitution, is part of the
law of the land. However, it is distinct and separate from the right to
travel and enjoys a different protection under the International Covenant
of Civil and Political Rights, i.e., against being "arbitrarily deprived"
thereof. (Marcos v. Manglapus)
c) to testify in his own behalf,
cross-examination by the prosecution;
subject
to
d) WHILE TESTIFYING, to refuse to answer a speci ic
question which tends to incriminate him for some
crime other than that for which he is then prosecuted.
Proceedings for forfeiture of property are deemed criminal or
Synthesized from Constitutional and Allied Political Law Notes
By RGL
There are only three considerations that may permit a restriction on the
right to travel: national security, public safety or public health. As a
further requirement, there must be an explicit provision of statutory
law or the Rules of Court providing for the impairment. The
requirement for a legislative enactment was purposely added to prevent
inordinate restraints on the person's right to travel by administrative
of icials who may be tempted to wield authority under the guise of
national security, public safety or public health.
The liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be impaired by
a law that concerns national security, public safety or public health.
Therefore, when the exigencies of times call for a limitation on the right
to travel, the Congress must respond to the need by explicitly providing
for the restriction in a law. (Genuino v. De Lima)
Right to Information
Two requisites must concur before the right to information may be
compelled by writ of mandamus. Firstly, the information sought must
be in relation to matters of public concern or public interest.
And, secondly, it must not be exempt by law from the operation of the
constitutional guarantee. (Sereno v Committee on Trade and Related
Matters of NEDA)
The Court has already declared that the constitutional guarantee of the
people's right to information does not cover
1.
2.
national security matters and intelligence information,
trade secrets and banking transactions and criminal
matters.
Equally excluded from coverage of the constitutional guarantee are
3.
4.
5.
6.
diplomatic correspondence,
closed-door Cabinet meeting and
executive sessions of either house of Congress, as well as
the internal deliberations of the Supreme Court.
The Court has held in Chavez v. Public Estates Authority that:
The constitutional right to information includes of icial
information on on-going negotiations before a inal contract. The
information, however, must constitute de inite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and
similar matters affecting national security and public order.
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Congress has also prescribed other limitations on the right to
information in several legislations.
Deliberative process privilege is one kind of privileged information,
which is within the exceptions of the constitutional right to
information. It contains three policy bases:
irst, the privilege protects candid discussions within an agency;
second, it prevents public confusion from premature disclosure of
agency opinions before the agency establishes inal policy; and
third, it protects the integrity of an agency's decision; the public
should not judge of icials based on information they considered
prior to issuing their inal decisions.
There is a public policy involved in a claim of deliberative process
privilege - "the policy of open, frank discussion between subordinate
and chief concerning administrative action." Thus, the deliberative
process privilege cannot be waived.
As a quali ied privilege, the burden falls upon the government
agency asserting the deliberative process privilege to prove that the
information in question satis ies both requirements - predecisional and
deliberative.
When the subject of the petition for mandamus relates to a public right
such as the right to information on matters of public concern, and when
the object of the petition is to compel the performance of a public duty,
the petitioner need not show that its interest on the result is exclusive. It
may be shared by the public in general.
For every person's fundamental right, there is a corresponding duty on
the part of government to recognize and protect it.
Disbarment proceedings
The con identiality rule requires only that "proceedings against
attorneys" be kept private and con idential. It is the proceedings against
attorneys that must be kept private and con idential. This would
necessarily prohibit the distribution of actual disbarment complaints to
the press. However, the rule does not extend so far that it covers the
mere existence or pendency of disciplinary actions. (Roque, Jr. v AFP
Chief of Staff)
RECAP
Co. V. Feati Bank:
While non-impairment of contracts is constitutionally guaranteed,
the rule is not absolute, since it has to be reconciled with the
legitimate exercise of police power.
Right to Speedy Disposition of Cases
In determining whether the accused has been deprived of his right to a
speedy disposition of the case and to a speedy trial, four factors must be
considered:
(a)
(b)
(c)
(d)
length of delay;
the reason for the delay;
the defendant's assertion of his right; and
prejudice to the defendant
Freedom of Expression
This primordial right calls for utmost respect, more so “when what
may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.”
Not all speech are treated the same. In Chavez v. Gonzales, this
court discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the
State under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant
interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech.
We distinguish between political and commercial speech. Political
speech refers to speech “both intended and received as a contribution
to public deliberation about some issue,” “foster[ing] informed and
civic-minded deliberation.” On the other hand, commercial speech has
been de ined as speech that does “no more than propose a commercial
transaction.”
Non-impairment of Obligations and Contracts
Even some forms of protected speech are still subject to some
restrictions. The degree of restriction may depend on whether the
regulation is content-based or content-neutral. Content-based
regulations can either be based on the viewpoint of the speaker or the
subject of the expression.
The relation of the state's police power to the principle of
non-impairment of contracts was thoroughly explained in Ortigas and
Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as
Synthesized from Constitutional and Allied Political Law Notes
By RGL
measure. Under this rule, “the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of imminence
extremely high.’”
Content-based restraint or censorship refers to restrictions “based on
the subject matter of the utterance or speech.” In contrast,
content-neutral regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the speech.
If we apply the test for content-neutral regulation, the questioned acts
of COMELEC will not pass the three requirements for evaluating such
restraints on freedom of speech. “When the speech restraints take the
form of a content-neutral regulation, only a substantial governmental
interest is required for its validity,” and it is subject only to the
intermediate approach.
This intermediate approach is based on the test that we have
prescribed in several cases. A content-neutral government
regulation is suf iciently justi ied:
1.
2.
3.
4.
if it is within the constitutional power of the Government;
if it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of
free expression; and
if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of
that interest.
Prior restraint
In as early as the 1935 Constitution, our jurisprudence has recognized
four aspects of freedom of the press, to wit:
(1)
(2)
(3)
(4)
freedom from prior restraint;
freedom from punishment subsequent to publication;
freedom of access to information; and
freedom of circulation.
Prior restraint refers to of icial 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.
A facial review of a law or statute encroaching upon the freedom of
speech on the ground of overbreadth or vagueness is acceptable in
our jurisdiction. Under the overbreadth doctrine, a proper
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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. On the other hand, a
law or statute suffers from vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at
its meaning and differ as to its application.
Restraints on freedom of expression are also evaluated by either or a
combination of the following theoretical tests, to wit:
(a) the dangerous tendency doctrine, which were used in early
Philippine case laws;
(b) the clear and present danger rule, which was generally
adhered to in more recent cases; and
(c) the balancing of interests test, which was also recognized in
our jurisprudence.
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 content-based
restrictions.
RECAP
v. Gatdula)
applied to the litigants.
Right to Assemble; Freedom of Association
Penumbral Right
Although the Constitution vests in public school teachers the right to
organize, to assemble peaceably and to petition the government for a
redress of grievances, there is no like express provision granting
them the right to strike. Rather, the constitutional grant of the right to
strike is restrained by the proviso that its exercise shall be done in
accordance with law. (Jacinto v. CA)
The penumbra doctrine has primarily been used to represent implied
powers that emanate from a speci ic rule, thus extending the meaning of
the rule into its periphery or penumbra.
To compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. Integration does
not make a lawyer a member of any group of which he is not already a
member. He became a member of the Bar when he passed the Bar
examinations. All that integration actually does is to provide an of icial
national organization for the well-de ined but unorganized and
incohesive group of which every lawyer is already a member. (In re
Edillon)
The cases of Sherbert and Yoder laid out the following doctrines:
B.P. No. 880 is not an absolute ban of public assemblies but a restriction
that simply regulates the time, place and manner of the assemblies. This
was adverted to in Osmeña v. Comelec, where the Court referred to it as
a "content-neutral" regulation of the time, place, and manner of
holding public assemblies. (Bayan v. Ermita)
Unprotected utterances
Facial challenge
The constitutional right of freedom of expression may not be availed
of to broadcast lies or half-truths, insult others, destroy their
name or reputation or bring them into disrepute.
A facial invalidation of a statute is allowed only in free speech cases,
wherein certain rules of constitutional litigation are rightly excepted.
Obscene Matters
The test is whether to the average person, applying contemporary
community standards, the dominant theme of the material taken
as a whole appeals to prurient interest. (Gonzales v. Katigbak)
When does a publication have a corrupting tendency, or when can it be
said to be offensive to human sensibilities?
It was People v. Padan y Alova that introduced to Philippine
jurisprudence the "redeeming" element that should accompany the
work, to save it from a valid prosecution. Thus, it should be asked
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scienti ic value.
An anti-obscenity law cannot be facially attacked on the ground of
overbreadth because obscenity is unprotected speech. (Madrilejos
Synthesized from Constitutional and Allied Political Law Notes
A "facial" challenge is likewise different from an "as-applied"
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 laws and defects, not
only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court con ines itself only to facts as
By RGL
Freedom of Religion
(a) free exercise clause claims were subject to heightened
scrutiny or compelling interest test if government
substantially burdened the exercise of religion;
(b) heightened scrutiny or compelling interest test governed
cases where the burden was direct, i.e., the exercise of religion
triggered a criminal or civil penalty, as well as cases where the
burden was indirect, i.e., the exercise of religion resulted in the
forfeiture of a government bene it; and
(c) the Court could carve out accommodations or exemptions
from a facially neutral law of general application, whether
general or criminal.
Sherbert and Yoder adopted a balancing test for free exercise
jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests.
A free exercise claim could result to three kinds of accommodation:
(a) those which are found to be constitutionally compelled, i.e.,
required by the Free Exercise Clause;
(b) those which are discretionary or legislative, i.e., not required
by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and
(c) those which the religion clauses prohibit.
Mandatory accommodation results when the Court inds that
accommodation is required by the Free Exercise Clause, i.e, when the
Court itself carves out an exemption.
In permissive accommodation, the Court inds that the State may, but
is not required to, accommodate religious interests.
Finally, when the Court inds no basis for a mandatory accommodation,
or it determines that the legislative accommodation runs afoul of the
establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court inds that establishment
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concerns prevail over potential accommodation interests.
secular purpose. (Estrada v. Escritor)
Non-establishment of religion
Free Exercise of Religion
The "Lemon test", which has been extensively applied by the U. S.
Supreme Court in issues involving the determination of
non-establishment of religion clause originated from the case of
Lemon vs. Kurtzman. In that case, the Court used a three-pronged test
to adjudge whether the assailed governmental act violated the First
Amendment, as follows:
The right to religious profession and worship has a twofold aspect,
viz., freedom to believe and freedom to act on one's beliefs. The
irst is absolute as long as the belief is con ined within the realm of
thought. The second is subject to regulation where the belief is
translated into external acts that affect the public welfare.
1.
The statute must have a secular legislative purpose;
2.
Its principal or primary effect must be one that neither
advances nor inhibits religion; and,
3.
The statute must NOT foster "an excessive government
entanglement with religion.”
Government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or
sect. (Victoriano v Elizalde Rope Workers’ Union)
Privacy of Communication and Correspondence
The essence of privacy is the "right to be let alone."
In effect, what non-establishment calls for is government neutrality
in religious matters. Such government neutrality may be summarized
in four general propositions:
Speci ic guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance
x x x. Various guarantees create zones of privacy.
(1) Government must not prefer one religion over another or
religion over irreligion because such preference would violate
voluntarism and breed dissension;
(2) Government funds must not be applied to religious purposes
because this too would violate voluntarism and breed interfaith
dissension;
(3) Government action must not aid religion because this too can
violate voluntarism and breed interfaith dissension; [and]
(4) Government action must not result in excessive entanglement
with religion because this too can violate voluntarism and
breed interfaith dissension. (Re Valenciano)
In evaluating a claim for violation of the right to privacy, a court
must determine
Recognizing the religious nature of the Filipinos and the elevating
in luence of religion in society, however, the Philippine constitution's
religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within lexible
constitutional limits. Thus, although the morality contemplated by laws
is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests. (Ang Ladlad LGBT Party v Comelec)
Government action, including its proscription of immorality as
expressed in criminal law like adultery or concubinage, must have a
Synthesized from Constitutional and Allied Political Law Notes
1.
2.
whether a person has exhibited a reasonable expectation
of privacy and, if so,
whether that expectation has been violated by unreasonable
government intrusion.
The existence of privacy right involves a two-fold requirement:
particularly in instances where such information is being collected
through unlawful means in order to achieve unlawful ends." The Habeas
Data Rule likewise requires substantial evidence.
In Secretary of National Defense v. Manalo, this Court explains that
the remedy of a writ of amparo, being a summary proceeding, requires
only substantial evidence to provide rapid judicial relief to the
petitioner. More than a mere scintilla, substantial evidence is such
relevant evidence that a reasonable mind might determine as adequate
to support a conclusion.
Additionally, hearsay evidence, which is generally considered
inadmissible under the rules of evidence, may be considered in a writ
of amparo proceeding if required by the unique circumstances of the
case. This Court in Razon, Jr. v. Tagitis concluded that the "totality of
the obtaining situation" must be taken into consideration to
determine if a petitioner is entitled to a writ of amparo. (Sanchez v.
Darroca)
The Writ of Habeas Corpus or the "great writ of liberty" was devised
as a "speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only suf icient defense of personal
freedom." 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."
As to what kind of restraint against which the writ is effective, case
law deems any restraint which will preclude freedom of action as
suf icient.
irst, that a person has exhibited an actual (subjective) expectation
of privacy; and
The iling of the petition for the issuance of a writ of Amparo
before this Court while the Habeas Corpus Petition before the CA
was still pending is improper.
second, that the expectation be one that society is prepared to
recognize as reasonable (objective).
In Navia, et al. v. Pardico, the elements constituting "enforced
disappearance," are enumerated as follows:
Remedies For Violation of Constitutional Rights
The writ of amparo is an extraordinary remedy as it is available not
only for violations of life, liberty, and security, but also against
threatened violations of such. But not all threats are protected by the
Amparo Rule. As previously elucidated by this Court, only actual
threats, as may be established from all the facts and circumstances of
the case, can qualify as a violation.
The extraordinary writ of habeas data "provides a judicial remedy to
protect a person's right to control information regarding oneself,
By RGL
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) 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,
(d) that the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.
To reiterate, the writ of Amparo is designed to protect and guarantee the
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(1) right to life;
(2) right to liberty; and
(3) right to security of persons, free from fears and threats that
vitiate the quality of life. (Agcaoili, Jr. v. Farinas)
PUBLIC CORPORATION LAW
Municipal Corporation
●
●
●
●
●
A corporation is an arti icial being created by operation of law,
having the right of succession and the powers, attributes and
properties expressly authorized by law or incident to its
existence.
Attachment is the lateral relationship between the department
or its equivalent and the attached agency or corporation for
purposes of policy and program coordination. The
coordination may be accomplished by having the department
represented in the governing board of the attached agency or
corporation, either as chairman or as a member, with or
without voting rights, if this is permitted by the charter.
"Instrumentality" refers to any agency of the National
Government, not integrated within the department framework,
vested with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering special
funds, and enjoying operational autonomy, usually through
a charter.
"Chartered institution" refers to any agency organized or
operating under a special charter, and vested by law with
functions relating to speci ic constitutional policies or
objectives.
"Government-owned or controlled corporation" refers to
any agency organized as a stock or non-stock corporation,
vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the
Government directly or through its instrumentalities either
wholly, or, where applicable as in the case of stock
Synthesized from Constitutional and Allied Political Law Notes
RECAP
corporations, to the extent of at least ifty-one (51) percent of
its capital stock.
-
Classi ication
a. Public - one that is organized for government of a portion of a
state, created for public use.
b. Private - formed for some private purpose, bene it, aim, or
end.
c. Quasi-public - a private corporation that renders public
service or supplies public wants.
d. De Facto - consent of the state is implied even though the
conditions of incorporation are not substantially complied
with.
e. By prescription - a presumption arises of an ancient charter
authorizing the exercise of corporate powers.
f. By estoppel - as between private litigants, they would not be
permitted to deny the existence of the corporation by their
agreements, admission, or conduct.
Public
Private
Purpose
Administration of civil or
local governments
Private aim, gain or
bene its
Creation
Legislation; Involuntary
Will of incorporators;
Voluntary
Relation to
the State
Created by State as its own
agency or instrumentality
in carrying out
governmental functions
NONE
Public Corporations, classi ied
a. Quasi-corporations - created by the State for a limited
purpose.
b. Municipal corporations - a body politic and corporate
constituted by the incorporation of inhabitants for the purpose
of local government.
Municipal Corporation, de ined
By RGL
Is a body politic or corporate established by law to assist in the
civil government of the state, with delegated authority to
regulate and administer the local or internal affairs of a city,
town or district which is incorporated.
Elements
a. Legal creation/incorporation - by legislation
b. Corporate Name - name by which it is incorporated and
known in which all corporate acts are done.
c. Inhabitants - refers to natural persons, the constituents
d. Territory - the land mass where the inhabitants reside,
together with the waters, and the air space. The territorial
boundaries must be de inite, ixed or certain.
Dual Nature and Functions
a. Governmental - administration of the power of the State and
promoting the public welfare. Agents of the State.
b. Proprietary - exercised for the special bene it and advantage of
the community and for the attainment of their collective needs.
Representative of the inhabitants.
Under the LGC, local governments may exercise (4) general kinds
of powers:
a.
b.
c.
d.
Those that are expressly granted to them;
Those that are implied from those expressly granted;
Those that are necessary, appropriate, or incidental for their
ef icient and effective governance, and
Those that are essential to the promotion of the general welfare
of their inhabitants.
Types
a. De jure - its creation perfectly complies with all requirements
of incorporation.
b. De facto - not all requirements duly complied with.
De facto Municipal Corporation Doctrine, Elements
a.
b.
c.
d.
Valid law authorizing incorporation;
Attempt in good faith to organize it;
Colorable compliance with the law; and
Assumption of corporate powers
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Sec 442(d), LGC of 1991. Municipalities existing as of the date of the
effectivity of this Code shall continue to exist and operate as such.
Existing municipal districts
(1) organized pursuant to presidential issuances or executive
orders AND
(2) which have their respective set of elective municipal
of icials holding of ice at the time of the effectivity of this
Code
RECAP
Local Government System
●
●
shall henceforth be considered as regular municipalities.
For where it is neither a corporation de jure nor de facto, but a
nullity, the rule is that its existence may be questioned
collaterally:
●
I. The color of authority requisite to the organization of a de facto
municipal corporation may be:
1.
A valid law enacted by the legislature.
2.
An unconstitutional law, valid on its face, which has either
(a) been upheld for a time by the courts or
(b) not yet been declared void; provided that a warrant for
its creation can be found in some other valid law or in
the recognition of its potential existence by the general
laws or constitution of the state.
II. There can be no de facto municipal corporation unless either
directly or potentially, such a de jure corporation is authorized by
some legislative iat.
III. There can be no color of authority in an unconstitutional statute
alone, the invalidity of which is apparent on its face.
IV. There can be no de facto corporation created to take the place of an
existing de jure corporation, as such organization would clearly be
an usurper.
The doctrine of operative fact, as an exception to the general rule, only
applies as a matter of equity and fair play. It nulli ies the effects of an
unconstitutional law by recognizing that the existence of a statute prior
to a determination of unconstitutionality is an operative fact and may
have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration.
Synthesized from Constitutional and Allied Political Law Notes
●
●
●
"Control" has been de ined as "the power of an of icer to alter
or modify or nullify or set aside what a subordinate of icer had
done in the performance of his duties and to substitute the
judgment of the former for test of the latter.”
"Supervision" on the other hand means "overseeing or the
power or authority of an of icer to see that subordinate of icers
perform their duties." As we held, however, "investigating" is
not inconsistent with "overseeing", although it is a lesser
power than "altering".
Ganzon v CA laid down the following rules:
1. Local autonomy, under the Constitution, involves a
mere decentralization of administration, not of
power, in which local of icials remain accountable to
the central government in the manner the law may
provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to
the supervision clause) was meant but to deny
legislative control over local governments; it did not
exempt the latter from legislative regulation provided
regulation is consistent with the fundamental premise
of autonomy;
4. Since local governments remain accountable to the
national authority, the latter may, by law, and in the
manner set forth therein, impose disciplinary action
against local of icials;
5. "Supervision" and "investigation" are not inconsistent
terms: "investigation" does not signify "control"
(which the President does not have);
President has power of control over Cabinet members and
other executive of icials;
He only has power of supervision over local government
of icials as the latter are accountable to their constituencies.
Fiscal autonomy means that local governments have
1. the power to create their own sources of revenue
in addition to their equitable share in the national
taxes released by the national government, as well as
By RGL
●
2. the power to allocate their resources in accordance
with their own priorities. It extends to the preparation
of their budgets, and local of icials in turn have to
work within the constraints thereof.
Further, a basic feature of local iscal autonomy is the
constitutionally mandated automatic release of the
shares of LGUs in the national taxes. (not national internal
revenue taxes, as ruled in Mandanas v Ochoa, Jr.)
●
Autonomy is either decentralization of administration or
decentralization of power.
●
There is decentralization of administration when the central
government delegates administrative powers to political
subdivisions in order to broaden the base of government power
and in the process to make local governments “more
responsive and accountable,” and “ensure their fullest
development as self-reliant communities and make them more
effective partners in the pursuit of national development and
social progress.”
●
Decentralization of power, on the other hand, involves an
abdication of political power in the favor of local governments
[sic] units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and
shape its future with minimum intervention from central
authorities. It amounts to ‘self-immolation,’ since in that
event, the autonomous government becomes accountable not
to the central authorities but to its constituency.
●
To be valid, an ordinance must conform to the following
substantive requirements:
●
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 be general and consistent with public policy.
6) It must not be unreasonable.
Ours is still a unitary form of government, not a federal state.
Being so, any form of autonomy granted to local governments
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will necessarily be limited and con ined within the extent
allowed by the central authority. Besides, the principle of local
autonomy under the 1987 Constitution simply means
"decentralization".
It does not make local governments
sovereign within the state or an "imperium in imperio". (Lina
v Pano)
●
●
●
Sec 6 Art X mandates that Local government units shall
1) have a just share,
2) as determined by law, in the national taxes
3) which shall be automatically released to them.
Notwithstanding the local iscal autonomy being enjoyed by
LGUs, they are still under the supervision of the President and
maybe held accountable for malfeasance or violations of
existing laws. “Supervision is not incompatible with
discipline. And the power to discipline and ensure that
the laws be faithfully executed must be construed to
authorize the President to order an investigation of the
act or conduct of local of icials when in his opinion the
good of the public service so requires.” (Villafuerte v
Robredo)
○
must
GENERAL REQUIREMENTS
●
●
3) It must be within the scope of the authority given by
the legislature; and
subject to such limitations and requirements prescribed in this
Code.
4) It must be reasonable.
In sum
○ Local autonomy refers to the degree of
self-determination exercised by LGUs vis-a-vis the
central government.
○ A system of decentralization is a prerequisite to
local autonomy.
○ Devolution is applied to effect decentralization.
Synthesized from Constitutional and Allied Political Law Notes
Section 10 Art X. No province, city, municipality, or barangay
may be
(1) created,
(2) divided,
(3) merged,
(4) abolished, or
(5) its boundary substantially altered,
except
(1) in accordance with the criteria (on income, land
area and population) established in the LGC and
(2) subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
Section 6, LGC. Authority to Create Local Government
Units. - An LGU may be created, divided, merged, abolished, or
its boundaries substantially altered either
(1) by law enacted by Congress in the case of a province,
city, municipality, or any other political subdivision,
or
(2) by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod concerned in
the case of a barangay located within its territorial
jurisdiction,
be authorized by the
2) It must be promulgated in accordance with the
prescribed procedure;
●
commensurate with the size of its population, as
expected of the local government unit concerned;
(b) Population. - It shall be determined as the total
number of inhabitants within the territorial
jurisdiction of the local government unit concerned;
and
(c) Land Area. - It must be contiguous, unless it
comprises two or more islands or is separated by a
local government unit independent of the others;
properly identi ied by metes and bounds with
technical descriptions; and suf icient to provide for
such basic services and facilities to meet the
requirements of its populace.
Regular Political Subdivisions
To be valid, an administrative issuance, such as an executive
order, must comply with the following requisites:
1) Its promulgation
legislature;
Deconcentration merely transfers administrative
functions from national of ices to regional and local
of ices, and not to local governments.
●
As a general rule, the creation of a local government unit or its
conversion from one level to another level shall be based on
veri iable indicators of viability and projected capacity to
provide services, to wit:
(a) Income. - It must be suf icient, based on acceptable
standards, to provide for all essential government
facilities and services and special functions
By RGL
PLEBISCITE
●
When the law states that the plebiscite shall be conducted “in
the political units directly affected,” it means that residents
of the political entity who would be economically dislocated
by the separation of a portion thereof have a right to vote in
said plebiscite.
●
The creation, division, merger, abolition or substantial
alteration of boundaries of local government units involve a
common denominator - - - material change in the political
and economic rights of the local government units directly
affected as well as the people therein. (Miranda v Aguirre)
●
Conversion to an HUC is substantial alteration of boundaries
governed by Sec. 10, Art. X and resultantly, said provision
applies, governs and prevails over Sec. 453 of the LGC (Umali v
Comelec)
INCOME
●
The IRAs are items of income because they form part of the
gross accretion of the funds of the local government unit. The
IRAs regularly and automatically accrue to the local treasury
without need of any further action on the part of the local
government unit.[11] They thus constitute income which the
local government can invariably rely upon as the source of
much needed funds. (Alvarez v Guingona)
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●
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NB: In case of conversion to a new component city, IRAs are no
longer included in the computation of the P100M income
requirement, as per RA 9009 amending Sec 450 of the LGC.
LAND AREA
●
●
In Mariano v Comelec, petitioners have not demonstrated that
the delineation of the land area of the proposed City of Makati
will cause confusion as to its boundaries. We note that said
delineation did not change even by an inch the land area
previously covered by Makati as a municipality.
Sec. 2, Art. 9 of the IRR provides "[t]he land area requirement
shall not apply where the proposed province is composed of
one (1) or more islands" (upheld by the 2011 Resolution of
Navarro v Ermita)
POPULATION
●
●
Sec 5(3) Art VI provides, inter alia, that a city with a
population of at least two hundred ifty thousand (250,000)
shall have at least one representative. In fact, section 3 of
the Ordinance appended to the Constitution provides that a city
whose population has increased to more than two hundred ifty
thousand (250,000) shall be entitled to at least one
congressional representative. (Mariano v Comelec)
Plainly read, Section 5(3) of the Constitution requires a
250,000 minimum population only for a city to be
entitled to a representative, but not so for a
province.(Aquino III v Comelec)
SPECIFIC REQUIREMENTS
LGU
Barangay
Municipality
Income
Population
Land Area
NA
2K; 5K in
MM, SMPS
and HUCs
NA
Ave of P2.5M for
2 consecutive
preceding yrs
AND 25K
AND 50 sq km,
except if an island
Synthesized from Constitutional and Allied Political Law Notes
Component
City
P100M
AND 150K
HUC
P50M latest
income
AND 200K
Ave of P20M for
2 consecutive
preceding yrs
AND 250K
Province
OR 100 sq km
●
OR 2,000 sq km of
contiguous territory,
except if an island
Division and Merger. - Division and merger of existing local
government units shall comply with the same requirements herein
prescribed for their creation:
(1) Provided, however, That such division shall not reduce the
income, population, or land area of the local government unit
or units concerned to less than the minimum requirements
prescribed in this Code:
(2) Provided, further, That the income classi ication of the
original local government unit or units shall not fall below its
current classi ication prior to such division.
Jurisdictional Responsibility for Settlement of Boundary Dispute. Boundary disputes between and among local government units shall, as
much as possible, be settled amicably. To this end:
(a) Boundary disputes involving two (2) or more barangays in the
same city or municipality shall be referred for settlement to the
sangguniang panlungsod or sangguniang bayan
concerned.
(b) Boundary disputes involving two (2) or more municipalities
within the same province shall be referred for settlement to the
sangguniang panlalawigan concerned.
(c) Boundary disputes involving municipalities or component
cities of different provinces shall be jointly referred for
settlement to the sanggunians of the province concerned.
(d) Boundary disputes involving a component city or municipality
on the one hand and a highly urbanized city on the other, or two
(2) or more highly urbanized cities, shall be jointly referred for
settlement to the respective sanggunians of the parties.
(e) In the event the sanggunian fails to effect an amicable
settlement within sixty (60) days from the date the dispute was
referred thereto, it shall issue a certi ication to that effect.
By RGL
Thereafter, the dispute shall be formally tried by the
sanggunian concerned which shall decide the issue within
sixty (60) days from the date of the certi ication referred to
above.
There is a boundary dispute when a portion or the whole
of the territorial area of an LGU is claimed by two or more
LGUs.
Abolition - A local government unit may be abolished when its income,
population, or land area has been irreversibly reduced to less than the
minimum standards. xxxx The law or ordinance abolishing a local
government unit shall specify the province, city, municipality, or
barangay with which the local government unit sought to be abolished
will be incorporated or merged.
Beginning of Corporate Existence. - When a new local government
unit is created, its corporate existence shall commence upon the
election and quali ication of its chief executive and a majority of
the members of its sanggunian, unless some other time is ixed
therefor by the law or ordinance creating it.
Autonomous Regions and Special Metropolitan Political
Subdivisions
●
●
●
Section 11 Art X. The Congress may, by law, create special
metropolitan political subdivisions, subject to a plebiscite
as set forth in Section 10 hereof.
The creation of the autonomous region is made to depend,
not on the total majority vote in the plebiscite, but on the will
of the majority in each of the constituent units. (Abbas v
Comelec)
The term "region" used in it's ordinary sense means two or
more provinces. Ifugao is a province by itself. To become part
of a region, it must join other provinces, cities, municipalities,
and geographical areas. (Ordillo v Comelec)
Power Relations
(1) with National Government
Municipal governments are only agents of the national government.
Local councils exercise only delegated legislative powers conferred on
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them by Congress as the national lawmaking body. The delegate cannot
be superior to the principal or exercise powers higher than those of the
latter. (Magtajas v Pryce Properties)
(2) with SC
All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme Court
en banc, and all other cases which under the Rules of Court are required
to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, 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.
(3) with President
Section 4 Art X. The President of the Philippines shall exercise general
supervision over local governments. Xxxx
Section 16 Art X. The President shall exercise general supervision over
autonomous regions to ensure that laws are faithfully executed.
The acts of the DILG went beyond the sphere of general supervision and
constituted direct interference with the political affairs, not only of the
Liga, but more importantly, of the barangay as an institution. The
election of Liga of icers is part of the Liga’s internal organization, for
which the latter has already provided guidelines. In succession, the
DILG assumed stewardship and jurisdiction over the Liga affairs, issued
supplemental guidelines for the election, and nulli ied the effects of the
Liga-conducted elections. Clearly, what the DILG wielded was the
power of control which even the President does not have. (Natl LIga ng
mga Barangay v Paredes)
(4) with Congress
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of
life, without which they cannot exist. As it creates, so it may destroy. As
it destroy, it may abridge and control. Unless there is some
Synthesized from Constitutional and Allied Political Law Notes
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constitutional limitation on the right, the legislature might, by a single
act, and if we can suppose it capable of so great a folly and so great a
wrong, sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of no limitation
on the right so far as to the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature. (Magtajas
v Pryce Properties)
(5) between Mother and Component LGUs
Component
Mother
Reviews what
Barangay
City/Muni
Municipality
Province
Component
City
Province
1. All EOs within 30 days from
submission.
2. Ordinances and resolutions
approving the local development
plans and public investment
programs formulated by the local
development councils.
(6) with NGAs, GOCCs
No project or program that:
(1) may cause pollution;
(2) may bring about climatic change;
(3) may cause the depletion of non-renewable resources;
(4) may result in loss of crop land, range-land, or forest cover;
(5) may eradicate certain animal or plant species from the face of
the planet; OR
(6) may call for the eviction of a particular group of people
residing in the locality where these will be implemented.
shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained.
Under the LGC, therefore, two requisites must be met before a
national project that affects the environmental and ecological balance of
local communities can be implemented:
By RGL
(1) prior consultation with the affected local communities, and
(2) prior approval of the project by the appropriate sanggunian.
Absent either of these mandatory requirements, the project's
implementation is illegal. (Province of Rizal v Executive Secretary)
The LGC does not prohibit the agency from acting through a
medium such as the project proponent. However, the agency is
responsible for ensuring that:
(1) the concerned LGUs and stakeholders have been thoroughly
and truthfully informed of the objectives of the program and its
ecological impact on the community; so that
(2) the community, through their sanggunian, can intelligently give
their approval to socially acceptable projects and reject the
unacceptable ones.
These requirements must be complied with before the project is
implemented. (Braga v Abaya)
(7) with PNP, BFP, BJMP
As deputy of the Commission, the authority of the mayor is very
limited. In reality, he has no power of appointment; he has only the
limited power of selecting one from among the list of ive eligibles to be
named the chief of police. The purpose is to enhance police
professionalism and to isolate the police service from political
domination. (Andaya v RTC)
Local Power of Taxation
a. Taxes, Fees, and Charges
The following fundamental principles shall govern the exercise of the
taxing and other revenue-raising powers of local government units:
(a) Taxation shall be uniform in each local government unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the
taxpayer's ability to pay;
(2) be levied and collected only for public purposes
(3) not be unjust, excessive, oppressive, or con iscatory;
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(4) not be contrary to law, public policy, national
economic policy, or in the restraint of trade;
(c) The collection of local taxes, fees, charges and other
impositions shall in no case be let to any private person;
(d) The revenue collected pursuant to the provisions of this Code
shall inure solely to the bene it of, and be subject to the
disposition by, the local government unit levying the tax, fee,
charge or other imposition unless otherwise speci ically
provided herein; and,
(e) Each local government unit shall, as far as practicable, evolve a
progressive system of taxation.
Section 133. Common Limitations on the Taxing Powers of Local
Government Units. - Unless otherwise provided herein, the exercise of
the taxing powers of provinces, cities, municipalities, and barangays
shall not extend to the levy of the following:
(o) Taxes, fees or charges of any kind on the National Government,
its agencies and instrumentalities, and local government units.
RECAP
water districts or by government-owned or controlled
corporations engaged in the supply and distribution of water
and/or generation and transmission of electric power; and (iii)
all machinery and equipment used for pollution control and
environmental protection.
b. Just share in the national taxes
●
●
●
●
Local governments do not have the inherent power to tax
except to the extent that such power might be delegated to
them either by the basic law or by statute.
EXEMPTIONS
(a) Ownership Exemptions. Exemptions from real property taxes
on the basis of ownership are real properties owned by: (i) the
Republic, (ii) a province, (iii) a city, (iv) a municipality, (v) a
barangay, and (vi) registered cooperatives.
(b) Character Exemptions. Exempted from real property taxes on
the basis of their character are: (i) charitable institutions, (ii)
houses and temples of prayer like churches, parsonages or
convents appurtenant thereto, mosques, and (iii) non-pro it or
religious cemeteries.
(c) Usage exemptions. Exempted from real property taxes on the
basis of the actual, direct and exclusive use to which they are
devoted are: (i) all lands, buildings and improvements which
are actually directly and exclusively used for religious,
charitable or educational purposes; (ii) all machineries and
equipment actually, directly and exclusively used by local
Synthesized from Constitutional and Allied Political Law Notes
Section 284. Allotment of Internal Revenue Taxes. - Local
government units shall have a share in the national internal
revenue taxes based on the collection of the third iscal year
preceding the current iscal year as follows: (c) On the third
year and thereafter, forty percent (40%).
Section 287. Local Development Projects. - Each local
government unit shall appropriate in its annual budget no less
than twenty percent (20%) of its annual internal revenue
allotment for development projects.
The share of each local government unit shall be released,
without need of any further action, directly to the provincial,
city, municipal or barangay treasurer, as the case may be, on a
quarterly basis within ive (5) days after the end of each
quarter, and which shall not be subject to any lien or holdback
that may be imposed by the national government for whatever
purpose.
c. Equitable share in the proceeds of the utilization and
development of the national wealth within their respective
areas
●
Section 290. Amount of Share of Local Government Units. Local government units shall, in addition to the internal
revenue allotment, have a share of forty percent (40%) of the
gross collection derived by the national government from the
preceding iscal year from mining taxes, royalties, forestry and
ishery charges, and such other taxes, fees, or charges,
including related surcharges, interests, or ines, and from its
share in any co-production, joint venture or production sharing
By RGL
agreement in the utilization and development of the national
wealth within their territorial jurisdiction.
Local Police Power
A local government unit is considered to have properly exercised its
police powers only if it satis ies the following requisites, to wit:
(1) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State;
and
(2) the means employed are reasonably necessary for the
attainment of the object sought to be accomplished and not
unduly oppressive
.
Local Eminent Domain
The right of expropriation is not an inherent power in a municipal
corporation, and before it can exercise the right some law must exist
conferring the power upon it. When the courts come to determine the
question, they must not only ind
(a) that a law or authority exists for the exercise of the right of
eminent domain, but
(b) also that the right or authority is being exercised in
accordance with the law.
The courts have the obligation to determine whether the following
requisites have been complied with by the local government unit
concerned:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, 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 bene it 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.
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A valid and de inite offer has been previously made to the
owner of the property sought to be expropriated, but said offer
was not accepted.
The applicable law as to the point of reckoning for the determination of
just compensation is Section 19 of R.A. No. 7160, which expressly
provides that just compensation shall be determined as of the time
of actual taking
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4.
Genuine necessity for public use entails:
1. It should be ascertained to be PUBLIC in character;
2. The ascertainment must precede or accompany and not follow,
the taking of the land; and
3. There is a reasonable or practical necessity, such as would
combine the greatest bene it to the public with the least
inconvenience and expense to the condemning party and the
property owner.
Basic Services and Facilities
Devolution refers to the act by which the national government confers
power and authority upon the various local government units to
perform speci ic functions and responsibilities.
Reclassification of Lands
➔ Reclassi ication is different from conversion. Reclassi ication
alone will not suf ice and does not automatically allow the
landowner to change its use. It must still undergo conversion
process before the landowner can use such agricultural lands for
such purpose.
➔ Any reclassi ication, therefore, of agricultural lands to residential,
commercial, industrial or other non-agricultural uses either by the
LGUs or by way of Presidential Proclamations enacted on or after
15 June 1988 must undergo the process of conversion, despite
having undergone reclassi ication, before agricultural lands
may be used for other purposes.
➔ It is different, however, when through Presidential Proclamations
public agricultural lands have been reserved in whole or in part for
public use or purpose, i.e., public school, etc., because in such a
case, conversion is no longer necessary.
Synthesized from Constitutional and Allied Political Law Notes
c.
Closure and Opening of Roads
Reversion is a proceeding by which the State seeks the return of lands
of the public domain or the improvements thereon through the
cancellation of private title erroneously or fraudulently issued over it.
The one crucial element which sets it apart from all other actions
involving possession or title to property is the positive averment in
the complaint of state ownership of the property in dispute.
As a general rule, local roads used for public service are considered
public property under the absolute control of Congress; hence, local
governments have no authority to control or regulate their use.
However, under Section 10, Chapter II of the Local Government Code,
Congress delegated to political subdivisions some control of local
roads. (Figuracion v Sps Libi)
To convert a barrio road into patrimonial property, the law requires the
LGU to enact an ordinance, approved by at least two-thirds (2/3) of
the Sanggunian members, permanently closing the road. (Alolino v
Flores)
Corporate Powers
To sue and be sued
1. Private attorneys cannot represent a province or municipality
in lawsuits. Only the provincial iscal, provincial attorney, and
municipal attorney should represent a municipality in its
lawsuits. Only in exceptional instances may a private attorney be
hired by a municipality to represent it in lawsuits. The
municipality's authority to employ a private attorney is expressly
limited only to situations where the provincial iscal would be
disquali ied to serve and represent it, to wit:
a. if and when original jurisdiction of case involving the
municipality is vested in the Supreme Court,
b. when the municipality is a party adverse to the provincial
government or to some other municipality in the same
province, and
By RGL
when, in a case involving the municipality, he, or his wife, or
child, is pecuniarily involved, as heir legatee, creditor or
otherwise.
2. In Ramos v CA, the Court ruled that a municipality may not be
represented by a private law irm which had volunteered its
services gratis, in collaboration with the municipal attorney and the
iscal, as such representation was violative of Sec. 1683 of the old
Administrative Code. This strict coherence to the letter of the law
appears to have been dictated by the fact that 'the municipality
should not be burdened with expenses of hiring a private lawyer
and that ‘the interests of the municipality would be best protected if
a government lawyer handles its litigations.’ Only accountable
public of icers may act for and in behalf of public entities and
that public funds should not be expended to hire private
lawyers.
3. Municipality of Pililla, Rizal v CA held that the legality of the
representation of an unauthorized counsel may be raised at
any stage of the proceedings.
4. Although a municipality may not hire a private lawyer to represent
it in litigations, in the interest of substantial justice however, we
hold that a municipality may adopt the work already
performed in good faith by such private lawyer, which work is
bene icial to it
(1) provided that no injustice is thereby heaped on the
adverse party and
(2) provided further that no compensation in any guise is
paid therefor by said municipality to the private
lawyer.
Unless so expressly adopted, the private lawyer's work cannot bind
the municipality.
5. The LGC requires prior authorization from the sangguniang
panlungsod, law, or ordinance, before a city mayor may sign a
contract in behalf of the city. If the city mayor has no authority from
the sangguniang panlungsod to sign a contract, members of the
sangguniang panlungsod have standing to ile a case to have this
contract declared null and void. (Lao, Jr. v LGU of Cagayan De Oro)
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To acquire and convey property
To enter into contracts
1.
Requisites of a valid local government contract
2.
3.
If the property is owned by the municipality in its public and
governmental capacity, the property is public and Congress has
absolute control over it. But if the property is owned in its private
or proprietary capacity, then it is patrimonial and Congress has no
absolute control. The municipality cannot be deprived of it without
due process and payment of just compensation. (Province of
Zamboanga del Norte v City of Zamboanga)
5.
b.
c.
Regardless of the source or classi ication of land in the possession
of a municipality, excepting those acquired with its own funds in its
private or corporate capacity, such property is held in trust for the
State for the bene it of its inhabitants, whether it be for
governmental or proprietary purposes. (Rabuco v. Villegas)
d.
e.
There can be no question that properties for public use held by
municipal corporations are not subject to levy and execution.
Property however, which is patrimonial and which is held by a
municipality in its proprietary capacity is treated by the great
weight of authority as the private asset of the town and may be
levied upon and sold under an ordinary execution. The same rule
applies to municipal funds derived from patrimonial properties.
(Muni of Paoay v. Manaois)
4.
a.
The properties of a municipality, whether real or personal, which
are necessary for public use cannot be attached and sold at
execution sale to satisfy a money judgment against the
municipality. Municipal revenues derived from taxes, licenses and
market fees, and which are intended primarily and exclusively for
the purpose of inancing the governmental activities and functions
of the municipality, are exempt from execution.
Where a municipality fails or refuses, without justi iable reason, to
effect payment of a inal money judgment rendered against it, the
claimant may avail of the remedy of mandamus in order to
compel the enactment and approval of the necessary appropriation
ordinance, and the corresponding disbursement of municipal funds
therefor. (Muni of Makati v. CA)
Synthesized from Constitutional and Allied Political Law Notes
(c) are entered into by the improper department, board, of icer of
agent; and
(d) do not comply with the formal requirements of a written
contract e.g., the Statute of Frauds. (ibid.)
The LGU must have the power to enter into the particular
contract;
Pursuant to Sec 22(c), there must be prior authorization
by the sanggunian concerned;
If the contract involves the expenditure of public funds, there
should be
i.
An actual appropriation; and
ii.
A certi icate of availability of funds by the treasurer;
Must conform with the formal requisites of written contracts;
and
If a province is a party to a contract conveying title to real
property, it must be approved by the President; If municipality,
it should be approved by the Governor.
EFFECTS OF NONCOMPLIANCE
3.
Public of icials can be held personally accountable for acts claimed
to have been performed in connection with of icial duties where
they have acted ultra vires. (ibid.)
4.
If the project is already provided for in the appropriation ordinance
in suf icient detail, then no separate authorization is necessary. On
the other hand, if the project is couched in general terms, then a
separate approval by the Sangguniang Bayan is required.
(Quisumbing v. Garcia)
5.
When the local chief executive enters into contracts, the law speaks
of prior authorization or authority from the Sangguniang
Panlungsod and not rati ication. (Vergara v. Ombudsman)
6.
While a blanket authority is not per se ineffective, it does not
suf ice for purposes of implementing projects funded by
lump-sum appropriations.
A and C = Ultra vires; B and D = may be rati ied.
1.
A careful perusal of Section 444(b)(1)(vi) of the LGC shows that
while the authorization of the municipal mayor need not be in the
form of an ordinance, the obligation which the said local
executive is authorized to enter into must be made pursuant
to a law or ordinance. (Land Bank v. Cacayuran)
2.
An act which is outside of the municipality’s jurisdiction is
considered as a void ultra vires act, while an act attended only by
an irregularity but remains within the municipality’s power is
considered as an ultra vires act subject to rati ication and/or
validation. To the former belongs municipal contracts which
(a) are entered into beyond the express, implied or inherent
powers of the local government unit; and
(b) do not comply with the substantive requirements of law e.g.,
when expenditure of public funds is to be made, there must be
an actual appropriation and certi icate of availability of funds;
while to the latter belongs those which
By RGL
The nature of lump-sum appropriations vis-a-vis the power of the purse
of the SP requires the local chief executive to obtain de inite and
speci ic authorizations before he can enter into contracts funded by
lump-sum appropriations. (Verceles, Jr. v. COA)
7.
Under Section 336 of the LGC, the general rule is that funds shall
be available exclusively for the speci ic purpose for which they
have been appropriated. The exception is when the local chief
executive is authorized by ordinance to augment any item in the
approved annual budget from savings in other items within the
same expense class. (ibid.)
8.
A line-item is "the last and indivisible purpose of a program in
the appropriation law, which is distinct from the expense category
or allotment class." It is an allocation of a speci ied singular
amount for a speci ied singular purpose. (Germar v. Legaspi)
9.
RA 7160 explicitly provides that, as a rule, "acquisitions of
supplies by local government units shall be through
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competitive bidding." By way of exception, no bidding is
required in the following instances:
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4.
A municipality is not exempt from liability for the negligent
performance of its corporate or proprietary or business functions.
(Mendoza v. De Leon)
5.
A municipality may become obligated upon an implied contract to
pay the reasonable value of the bene its accepted or appropriated by
it as to which it has the general power to contract. The doctrine of
implied municipal liability has been said to apply to all cases
where money or other property of a party is received under such
circumstances that the general law, independent of express contract
implies an obligation upon the municipality to do justice with
respect to the same.
6.
The obligation of a municipal corporation upon the doctrine of an
implied contract does not connote an enforceable obligation. Some
speci ic principle or situation of which equity takes cognizance
must be the foundation of the claim. The principle of liability rests
upon the theory that the obligation implied by law to pay does not
originate in the unlawful contract, but arises from considerations
outside it. The measure of recovery is the bene it
(1) personal canvass of responsible merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or exclusive distributors
and
(5) purchase from other government entities. (Sison v. People)
10. A local chief executive could only resort to a negotiated
purchase under Section 366 of RA No. 7160 and the COA
Resolutions if the following two requisites are present:
(1) public biddings have failed for at least two consecutive
times and;
(2) no suppliers have quali ied to participate or win in the
biddings. (Ong v. People)
It is not necessary for the liability therein established to attach that
the defective roads or streets belong to the province, city or
municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality have
either "control or supervision" over said street or road. (City of
Manila v. Teotico applied in Jimenez v. City of Manila)
2.
Local government units and their of icials are not exempt from
liability for death or injury to persons or damage to property. (Sec
24, LGC)
3.
The State is only liable for the acts of its agents, of icers and
employees when they act as special agents and that the chauffeur of
the ambulance of the General Hospital was not such an agent. A
special agent is one who receives a de inite and ixed order or
commission, foreign to the exercise of the duties of his of ice if he
is a special of icial. (Merritt v. Gov of the Phil Islands)
Synthesized from Constitutional and Allied Political Law Notes
Disciplinary Actions
1.
If the purpose of the preventive suspension is already achieved, the
imposition of the maximum period of six months is
unwarranted. (Garcia v. Mojica)
2.
The Ombudsman has concurrent jurisdiction over administrative
cases which are within the jurisdiction of the regular courts or
administrative agencies. The Ombudsman has primary
jurisdiction to investigate any act or omission of a public of icer or
employee who is under the jurisdiction of the Sandiganbayan.
3.
An elective local of icial may be removed from of ice by order of
the proper court. It is clear from the last paragraph of Sec 60 of
the LGC that the penalty of dismissal from service upon an erring
elective local of icial may be decreed only by a court of law.
(Pablico v. Villapando)
received by the municipal corporation. (Prov of Cebu v. IAC)
Liability for Damages
1.
10. A public of icer who commits a tort or other wrongful act, done in
excess or beyond the scope of his duty, is not protected by his of ice
and is personally liable therefor like any private individual. This
principle of personal liability has been applied to cases where a
public of icer removes another of icer or discharges an employee
wrongfully, the reported cases saying that by reason of
non-compliance with the requirements of law in respect to removal
from of ice, the of icials were acting outside of their of icial
authority. (Correa v. CFI of Bulacan)
7.
The doctrine of estoppel CANNOT be applied as against a
municipal corporation to validate a contract which it has no power
to make or which it is authorized to make only under prescribed
conditions, within prescribed limitations, or in a prescribed mode
or manner, although the corporation has accepted the bene its
thereof and the other party has fully performed his part of the
agreement, or has expended large sums in preparation for
performance. (San Diego v Muni of Naujan)
8.
The general rule is that public of icials can be held personally
accountable for acts claimed to have been performed in connection
with of icial duties where they have acted ultra vires or where there
is a showing of bad faith. (Chavez v. SB)
9.
Indeed, municipal of icers are liable for damages if they act
maliciously or wantonly, and if the work which they perform is
done rather to injure an individual than to discharge a public duty.
(Rama v. CA)
By RGL
Recall
1.
In construing the meaning of the term, “regular local election” in
Section 74 of the LGC which provides that “no recall shall take place
within one (1) year x x x immediately preceding a regular local
election,” we ruled that for the time bar to apply, the
approaching regular local election must be one where the
position of the of icial to be recalled, is to be actually
contested and illed by the electorate. (Angobung v. Comelec)
2.
Any elective local of icial may be the subject of a recall election
only once during his term of of ice for loss of con idence.
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3.
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Sangguniang Bayan's funds is only ministerial and may be
disregarded upon the mayor's unjusti ied refusal to do so.
(Maulana v. Pangansayan)
No recall shall take place within one (1) year from the date of the
of icial's assumption to of ice or one (1) year immediately
preceding a regular local election.
7.
Section 53 of the LGC is more exacting as it requires that the
“majority of ALL members of the sanggunian . . . elected and
quali ied” shall constitute a quorum.
8.
The Vice Governor, as the Presiding Of icer, shall be considered a
part of the SP for purposes of ascertaining if a quorum exists. In
determining the number which constitutes as the majority vote, the
Vice Governor is excluded. The Vice Governor's right to vote is
merely contingent and arises only when there is a tie to break.
(Javier v. Cadiao)
Local Legislations
1.
For an ordinance to be valid, it must not only be within the
corporate powers of the local government unit to enact and must be
passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute;
(2) must not be unfair or oppressive;
(3) must not be partial or discriminatory;
(4) must not prohibit but may regulate trade;
Local Initiative and Referendum
1.
(5) must be general and consistent with public policy; and
(6) must not be unreasonable.
2.
Section 335 of RA 7160 is clear and speci ic that no public money
or property shall be appropriated or applied for private purposes.
3.
A municipal ordinance is not subject to collateral attack.
4.
The Vice-Governor, as the presiding of icer of the Sangguniang
Panlalawigan, has administrative control of the funds of the said
body. Accordingly, it is the Vice-Governor who has the authority to
approve disbursement vouchers for expenditures appropriated for
the operation of the Sangguniang Panlalawigan. (Atienza v.
Villarosa)
5.
6.
As a corollary, if the salary of an employee or of icial is charged
against the provincial funds, even if this employee reports to the
Vice-Governor or is assigned to his of ice, the Governor retains the
authority to appoint the said employee pursuant to Section
465(b)(v) of Rep. Act No. 7160. (ibid.)
It is the vice mayor who exercises administrative control over the
Sangguniang Bayan's funds as presiding of icer thereof. Thus, the
approval of the mayor in relation to travel orders chargeable to the
Synthesized from Constitutional and Allied Political Law Notes
Local initiative is the legal process whereby the registered
voters of a local government unit may directly propose, enact,
or amend any ordinance.
2.
If the proposition is approved by a majority of the votes cast, it
shall take effect ifteen (15) days after certi ication by the
COMELEC.
3.
Local referendum is the legal process whereby the registered
voters of the local government units may approve, amend or
reject any ordinance enacted by the sanggunian.
4.
The COMELEC's power to review the substance of the
propositions in an initiative petition is implied in Section 12 of
RA No. 6735, which gives this Court appellate power to review
the COMELEC's indings of the suf iciency or insuf iciency of
the petition for initiative or referendum. (Marmeto v. Comelec)
ADMINISTRATIVE LAW
(2) by law (statute duly enacted by Congress), or
(3) by authority of law.
The abolition of an of ice within the competence of a legitimate body if
done in good faith suffers from no in irmity. It is a well-known rule also
that valid abolition of of ices is neither removal nor separation of the
incumbents. If the abolition is void, the incumbent is deemed never to
have ceased to hold of ice. The test remains whether the
abolition is in good faith. As that element is conspicuously present
in the enactment of Batas Pambansa Blg. 129, then the lack of merit of
this petition becomes even more apparent. (De la Llana v. Alba)
As a general rule, a reorganization is carried out in ‘good faith’ if
it is for
1.
2.
the purpose of economy or
to make bureaucracy more ef icient.
In that event no dismissal or separation actually occurs because the
position itself ceases to exist. And in that case the security of tenure
would not be a Chinese Wall.
Be that as it may, if the abolition which is nothing else but a separation
or removal, is done for
1.
2.
3.
political reasons or
purposely to defeat security of tenure, or
otherwise not in good faith,
no valid abolition takes place and whatever abolition is done is void ab
initio. There is an invalid abolition as where there is merely a change of
nomenclature of positions or where claims of economy are belied by
the existence of ample funds.
The existence of any or some of the following circumstances may be
Administrative Agencies
A public of ice may be created through any of the following modes, to
wit, either
(1) by the Constitution (fundamental law),
By RGL
considered as evidence of bad faith in the removals made as a
result of reorganization, giving rise to a claim for reinstatement or
reappointment by an aggrieved party:
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A. Where there is a signi icant increase in the number of
positions in the new staf ing pattern of the department or
agency concerned;
B. Where an of ice is abolished and another performing
substantially the same functions is created;
C. Where incumbents are replaced by those less quali ied in
terms of status of appointment, performance and merit;
D. Where there is a reclassi ication of of ices in the department or
agency concerned and the reclassi ied of ices perform
substantially the same functions as the original of ices;
E. Where the removal violates the order of separation provided
in Section 3 hereof.
In the separation of personnel pursuant to reorganization, the following
order of removal shall be followed:
A. Casual employees with less than ive (5) years of government
service;
B. Casual employees with ive (5) years or more of government
service;
C. Employees holding temporary appointments; and
D. Employees holding permanent appointments: Provided, That
those in the same category as enumerated above, who are least
quali ied in terms of performance and merit shall be laid off
irst, length of service notwithstanding.
Abolition and removal are mutually exclusive concepts. From a legal
standpoint, there is no occupant in an abolished of ice. Where there is
no occupant, there is no tenure to speak of. Thus, impairment of the
constitutional guarantee of security of tenure does not arise in the
abolition of an of ice. On the other hand, removal implies that the of ice
and its related positions subsist and that the occupants are merely
separated from their positions.
In Buklod ng Kawaning EIIB v. Zamora, the Court pointed out that
Executive Order No. 292 or the Administrative Code of 1987 gives the
President continuing authority to reorganize and rede ine the functions
of the Of ice of the President.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
Powers
Administrative agencies possess quasi-legislative or rule-making
powers and quasi-judicial or administrative adjudicatory powers.
The rules and regulations that administrative agencies promulgate,
which are the product of a delegated legislative power to create new
and additional legal provisions that have the effect of law, should be
(a) within the scope of the statutory authority granted by the
legislature to the administrative agency.
(b) that the regulation be germane to the objects and purposes of the
law, and be not in contradiction to, but in conformity with, the
standards prescribed by law
(c) they must conform to and be consistent with the provisions of the
enabling statute in order for such rule or regulation to be valid.
In questioning the validity or constitutionality of a rule or regulation
issued by an administrative agency, a party need NOT exhaust
administrative remedies before going to court. This principle
applies only where the act of the administrative agency concerned
was performed pursuant to its quasi-judicial function, and not
when the assailed act pertained to its rule-making or quasi-legislative
power.
In like manner, the doctrine of primary jurisdiction applies only
where the administrative agency exercises its quasi-judicial or
adjudicatory function.
Quasi-Legislative
Tests of Delegation
1.
Completeness Test. it must set forth therein the policy to be
executed, carried out or implemented by the delegate.
2.
Suf icient Standard Test. the limits of which are suf iciently
determinate or determinable - to which the delegate must
conform in the performance of his functions.
Kinds of Administrative Regulations
1.
Legislative - designed to implement a primary legislation by
providing the details thereof. Before it is adopted, there must be
hearing, and must be published.
By RGL
2.
Interpretative - designed to provide guidelines to the law
which the administrative agency is in charge of enforcing. It
need NOT be published.
The validity of an administrative issuance hinges on compliance with
the following requisites:
1.
Its promulgation must be authorized by the legislature;
2.
It must be promulgated in accordance with the prescribed
procedure;
3.
It must be within the scope of the authority given by the
legislature;
4.
It must be reasonable.
In questioning the validity or constitutionality of a rule or regulation
issued by an administrative agency, a party need NOT exhaust
administrative remedies before going to court. This principle,
however, applies only where the act of the administrative agency
concerned was performed pursuant to its QUASI-JUDICIAL
function, and not when the assailed act pertained to its rule-making or
quasi-legislative power. (Holy Spirit Homeowners Association v
Defensor)
The function of prescribing rates by an administrative agency may be
either a legislative or an adjudicative function. If it were a legislative
function, the grant of prior notice and hearing to the affected
parties is NOT a requirement of due process. As regards rates
prescribed by an administrative agency in the exercise of its
quasi-judicial function, prior notice and hearing are essential to
the validity of such rates.
When the rules and/or rates laid down by an administrative agency are
meant to apply to all enterprises of a given kind throughout the
country, they may partake of a legislative character.
Where the rules and the rates imposed apply exclusively to a
particular party, based upon a inding of fact, then its function is
quasi-judicial in character.
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Quasi-Judicial
In administrative law, a quasi-judicial proceeding involves
(a) taking and evaluating evidence;
(b) determining facts based upon the evidence presented; and
(c) rendering an order or decision supported by the facts proved.
The Court has laid down the test for determining whether an
administrative body is exercising judicial or merely investigatory
functions: adjudication signi ies the exercise of the power and authority
to adjudicate upon the rights and obligations of the parties. Hence, if the
only purpose of an investigation is to evaluate the evidence
submitted to an agency based on the facts and circumstances
presented to it, and if the agency is not authorized to make a inal
pronouncement affecting the parties, then there is an absence of
judicial discretion and judgment.
In administrative proceedings, procedural due process has been
recognized to include the following:
(1) the right to actual or constructive notice of the institution of
proceedings which may affect a respondent's legal rights;
(2) a real opportunity to be heard personally or with the
assistance of counsel, to present witnesses and evidence in
one's favor, and to defend one's rights;
(3) a tribunal vested with competent jurisdiction and so
constituted as to afford a person charged administratively a
reasonable guarantee of honesty as well as impartiality; and
(4) a inding by said tribunal which is submitted for consideration
during the hearing or supported by substantial evidence
contained in the records or made known to the parties affected.
Exceptions to requirements of notice and hearing
1)
2)
3)
4)
5)
6)
Summary Abatement of Nuisance per se
Preventive Suspension
Padlocking of ilthy restaurants, theaters, etc.
Cancellation of Passport of accused
Summary distraint and levy
Grant of Provisional Authority
Synthesized from Constitutional and Allied Political Law Notes
Doctrine of Primary Jurisdiction
Judicial Review
An administrative agency has standing to appeal the Civil Service
Commission’s repeal or modi ication of its original decision. In such
instances, it is included in the concept of a “party adversely affected” by
a decision of the Civil Service Commission granted the statutory right to
appeal. (LRTA v. Salvana)
As a general rule, factual indings of administrative agencies, such
as the CSC, that are af irmed by the CA, are conclusive upon and
generally not reviewable by this Court.
However, this Court has recognized several exceptions to this rule, to
wit:
(1)
when the indings are grounded entirely on speculation,
surmises, or conjectures;
(2)
when the inference made is manifestly mistaken, absurd, or
impossible;
(3)
when there is grave abuse of discretion;
(4)
when the judgment is based on a misapprehension of facts;
(5)
when the indings of facts are con licting;
(6)
when in making its indings, the CA went beyond the issues
of the case, or its indings are contrary to the admissions
of both the appellant and the appellee;
(7)
when the indings are contrary to the trial court;
(8)
when the indings are conclusions without citation of
speci ic evidence on which they are based;
(9)
when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondent;
(10) when the indings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
(11) when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered,
would justify a different conclusion.
By RGL
The doctrine of primary jurisdiction holds that if a case is such that
its determination requires the expertise, specialized training and
knowledge of an administrative body, relief must irst be obtained in an
administrative proceeding before resort to the courts is had even if the
matter may well be within their proper jurisdiction. It applies where a
claim is originally cognizable in the courts and comes into play
whenever enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, have been placed within the special
competence of an administrative agency. In such a case, the court in
which the claim is sought to be enforced may suspend the judicial
process pending referral of such issues to the administrative body
for its view or, if the parties would not be unfairly disadvantaged,
dismiss the case without prejudice.
Doctrine of Exhaustion of Administrative Remedies
Under the doctrine of exhaustion of administrative remedies, recourse
through court action, cannot prosper until after all such administrative
remedies would have irst been exhausted. The doctrine does not
warrant a court to arrogate unto itself the authority to resolve, or
interfere in, a controversy the jurisdiction over which is lodged initially
with an administrative body. The rule is an element of petitioner's
right of action, and it is too signi icant a mandate to be just waylaid by
the courts.
There are a number of instances when the doctrine has been held to be
inapplicable. Among the established exceptions are:
1) when there is a violation of due process,
2) when the issue involved is purely a legal question,
3) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction,
4) when there is estoppel on the part of the administrative agency
concerned,
5) when there is irreparable injury,
6) when the respondent is a department secretary whose acts
as an alter ego of the President bears the implied and assumed
approval of the latter,
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7) when to require exhaustion of administrative remedies would
be unreasonable,
8) when it would amount to a nulli ication of a claim,
9) when the subject matter is a private land in land case
proceedings,
10) when the rule does not provide a plain, speedy and
adequate remedy,
11) when there are circumstances indicating the urgency of
judicial intervention.
12) in quo warranto proceedings;
13) when the claim involved is small.
The doctrine of exhaustion of administrative remedies calls for resort
irst to the appropriate administrative authorities in the resolution of a
controversy falling under their jurisdiction before the same may be
elevated to the courts of justice for review. Non-observance of the
doctrine results in lack of a cause of action, which is one of the
grounds allowed in the Rules of Court for the dismissal of the
complaint.
The de iciency is not jurisdictional. Failure to invoke it operates
as a waiver of the objection as a ground for a motion to dismiss and
the court may then proceed with the case as if the doctrine had been
observed.
RECAP
controversy, courts should not resolve the issue even if it may be within
its proper jurisdiction. This is especially true when the question
involves its sound discretion requiring special knowledge, experience,
and services to determine technical and intricate matters of fact.
Thus, the doctrine of primary administrative jurisdiction refers to the
competence of a court to take cognizance of a case at irst instance.
Unlike the doctrine of exhaustion of administrative remedies, it cannot
be waived.
However, for reasons of equity, in cases where jurisdiction is lacking,
this Court has ruled that failure to raise the issue of non-compliance
with the doctrine of primary administrative jurisdiction at an opportune
time may bar a subsequent iling of a motion to dismiss based on that
ground by way of laches.
LAW ON PUBLIC OFFICERS
●
●
Meanwhile, under the doctrine of primary administrative
jurisdiction, if an administrative tribunal has jurisdiction over a
Synthesized from Constitutional and Allied Political Law Notes
Public of ice is a public trust.
Public of icers and employees must, at all times,
(1) be accountable to the people,
(2) serve them with utmost
(a) responsibility,
(b) integrity,
(c) loyalty, and
(d) ef iciency;
Under the doctrine of exhaustion of administrative remedies,
However, failure to observe the doctrine of exhaustion of administrative
remedies does not affect the court's jurisdiction. Thus, the doctrine
may be waived as in Soto v. Jareno.
●
●
●
●
Public Office and Officer
The Two Doctrines Distinguished
a party must irst avail of all administrative processes available before
seeking the courts' intervention. The administrative of icer concerned
must be given every opportunity to decide on the matter within his or
her jurisdiction. Failing to exhaust administrative remedies affects the
party's cause of action as these remedies refer to a precedent
condition which must be complied with prior to iling a case in court.
●
●
●
(3) act with patriotism and justice, and
(4) lead modest lives.
A public of ice is not property within the sense of the
constitutional guaranties of due process of law, but is a public
trust or agency.
The characteristics of a public of ice, according to Mechem,
include
(1) the delegation of sovereign functions,
(2) its creation by law and not by contract,
(3) an oath,
(4) salary,
By RGL
●
●
●
(5) continuance of the position,
(6) scope of duties, and
(7) the designation of the position as an of ice.
Public of ice is personal to the incumbent and is NOT a
property which passes to his heirs.
"Public of icer" includes elective and appointive of icials and
employees, permanent or temporary, whether in the classi ied
or unclassi ied or exempt service receiving compensation, even
nominal, from the government.
It is well established that compensation is not an essential
element of public of ice. At most, it is merely incidental to the
public of ice.
Under the Anti-Graft Law, the nature of one's appointment, and
whether the compensation one receives from the government is
only nominal, is immaterial because the person so elected or
appointed is still considered a public of icer.
The Revised Penal Code de ines a public of icer as any person
who, by direct provision of the law, popular election, or
appointment by competent authority, shall take part in the
performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in
any of its branches public duties as an employee, agent, or
subordinate of icial, of any rank or classes.
A public of ice is the right, authority and duty, created and
conferred by law, by which, for a given period, either ixed by
law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
bene it of the public. The individual so invested is a public
of icer.
On accountability. Public service requires the utmost
integrity and strictest discipline. Thus, a public servant must
exhibit at all times the highest sense of honesty and integrity
not only in the performance of his of icial duties but in his
personal and private dealings with other people.
The precept that could be drawn from Luciano, Singian and
Domingo, and which is applicable to the present case, is that
private persons, when acting in conspiracy with public
of icers, may be indicted and, if found guilty, held liable for the
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pertinent offenses under Section 3 of RA 3019, including (g)
and (h) thereof.
●
Thus, “(to) be a public of icer, one must be --
(1) Taking part in the performance of public functions in the
government, or
Performing in said Government or any of its branches public
duties as an employee, agent, or subordinate of icial, of any
rank or class; and
(2) That his authority to take part in the performance of public
functions or to perform public duties must be -a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.”
● A private individual who has in his charge any of the public
funds or property enumerated therein and commits any of the
acts de ined in any of the provisions of Chapter Four, Title
Seven of the RPC, should likewise be penalized with the same
penalty meted to erring public of icers. Nowhere in this
provision is it expressed or implied that a private
individual falling under said Article 222 is to be deemed a
public of icer.
RECAP
emoluments for actual services rendered.
EXC: The nature of petitioner’s designation and the absence of authority
of the Governor to authorize the payment of the additional salary and
RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make him a de facto of icer.
EXC to the EXC: Where there is a de jure of icer, a de facto of icer,
during his wrongful incumbency, is not entitled to the
emoluments attached to the of ice, even if he occupied the of ice
in good faith.
●
Elements of a de facto of ice
(a) there must be a de jure of ice;
(b) there must be color of right or general acquiescence
by the public; and
(c) there must be actual physical possession of the
of ice in good faith.
De jure
Entitlement to salary of a de facto of icer
GR: A de facto public of icer cannot be made to reimburse funds
disbursed during his term of of ice because his acts are as valid as those
of a de jure of icer. Moreover, as a de facto of icer, he is entitled to
Synthesized from Constitutional and Allied Political Law Notes
One who actually possesses the
of ice although he has an
imperfect or only colorable title
thereto.
Has title
Only has color of title
A de facto may grow into a de
jure.
A usurper may grow into a de
facto if the assumption is
acquiesced in
Validly appointed
Not validly appointed
Eligibility and Quali ications
By RGL
power entrusted with the execution of the laws, which exempts
the individual, on whom it is bestowed, from the punishment
the law in licts for a crime he has committed. It is the private,
though of icial act of the executive magistrate, delivered to the
individual for whose bene it it is intended, and not
communicated of icially to the Court. xxx. A pardon is a deed,
to the validity of which delivery is essential, and delivery is
not complete without acceptance."
A pardon looks to the future. It is not retrospective. It makes
no amends for the past. This would explain why petitioner,
though pardoned, cannot be entitled to receive backpay
for lost earnings and bene its.
If the pardon is based on the innocence of the individual, it
af irms this innocence and makes him a new man and as
innocent as if he had not been found guilty of the offense
charged. This signi ies that petitioner need no longer apply to
be reinstated to his former employment; he is restored to his
of ice ipso facto upon the issuance of the clemency. Petitioner's
automatic reinstatement to the government service entitles him
to back wages. Moreover, the right to back wages is afforded to
those who have been illegally dismissed and were thus ordered
reinstated or to those otherwise acquitted of the charges
against them
●
Amnesty looks backward, and abolishes and puts into
oblivion, the offense itself; it so overlooks and obliterates the
offense with which he is charged, that the person released by
amnesty stands before the law precisely as though he had
committed no offense.
De facto
One who has lawful title to the
of ice but has not been able to
take possession of it or has been
ousted therefrom
Pardon is de ined as "an act of grace, proceeding from the
●
Distinction between de jure and de facto of icers
Kinds of Public Of icers
(1) De jure. One who has lawful title to the of ice but has not been
able to take possession of it or has been ousted therefrom.
(2) De facto. One who derives his appointment from one having
colorable authority to appoint, if the of ice is an appointive of ice,
and whose appointment is valid on its face.
●
Formation of Relations
●
The Commission has no authority to revoke an appointment on
the ground that another person is more quali ied for a
particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing
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authority.
●
Stages of Appointment. First, comes the nomination by the
President.
Second, to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to con irm
said nomination.
●
The rule neither grants a vested right to the holder nor imposes
a ministerial duty on the appointing authority to promote such
person to the next higher position.
●
The power to appoint is a matter of discretion. The
appointing power has a wide latitude of choice as to who is
best quali ied for the position. To apply the next-in-rank rule
peremptorily would impose a rigid formula on the appointing
power contrary to the policy of the law that among those
quali ied and eligible, the appointing authority is granted
discretion and prerogative of choice of the one he deems it for
appointment.
Third and last is the acceptance thereof by the appointee by
his assumption of of ice.
●
There is no power in this country which can compel
a man to accept an of ice.
●
While an appointment is the selection by the proper
authority of an individual who is to exercise the powers and
functions of a given of ice, designation merely connotes an
imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier
appointment. Designation is simply the mere imposition of
new or additional duties on the of icer or employee to be
performed by him in a special manner. It does not entail
payment of additional bene its or grant upon the person so
designated the right to claim the salary attached to the position.
●
An "acting" appointment is merely temporary, one which is
good only until another appointment is made to take its place.
●
An action for quo warranto may be commenced by "a person
claiming to be entitled to a public of ice or position usurped or
unlawfully held or exercised by another".
●
Exception to the GR distinguishing appointment from
designation. The term "appointment" was used in a general
sense to include the term "designation." In other words, no
distinction was intended between the two terms in Section 9 of
Executive Order No. 966.
●
Next-in-rank rule. There is "no mandatory nor peremptory
requirement in the (Civil Service Law) that persons
next-in-rank are entitled to preference in appointment. What it
does provide is that they would be among the irst to be
considered for the vacancy, if quali ied, and if the vacancy is
not illed by promotion, the same shall be illed by transfer or
Synthesized from Constitutional and Allied Political Law Notes
is no power in these Islands which can compel a man
to accept the of ice.
other modes of appointment.
●
Indeed, the approval by the CSC is more appropriately called an
attestation, that is, of the fact that the appointee is quali ied
for the position to which he has been named.
●
Appointment is an essentially discretionary power and
must be performed by the of icer in which it is vested
according to his best lights, the only condition being that the
appointee should possess the quali ications required by law. If
he does, then the appointment cannot be faulted on the ground
that there are others better quali ied who should have been
preferred.
This is a political question involving
considerations of wisdom which only the appointing authority
can decide.
●
Ways vacancies are to be illed; by
1. transfer of present employees,
2. reinstatement,
3. reemployment, or
4. appointment of outsiders who have the appropriate
eligibility
Assumption and Term of Of ice
●
Appointment and quali ication to of ice are separate and
distinct things. Appointment is the sole act of those vested
with the power to make it. Acceptance is the sole act of the
appointee. Persons may be chosen for of ice at pleasure; there
By RGL
Code of Conduct
●
Under Section 24 of RA 6770, two requisites must concur to
render the preventive suspension order valid. First, there
must be a prior determination by the Ombudsman that the
evidence of respondent's guilt is strong. Second,
(a) the offense charged must involve dishonesty,
oppression, grave misconduct or neglect in the
performance of duty;
(b) the charges would warrant removal from the service;
or
(c) the respondent's continued stay in of ice may
prejudice the case iled against him.
Powers, Duties, Rights, Privileges and Prohibitions
●
●
●
Doctrine of necessary implication. A statutory provision of
the power to approve necessarily implies the power to
disapprove or revoke the subject matter of that power.
The express grant of power carries with it the grant of all other
powers necessary, proper, or incidental to the effective and
ef icient exercise of the expressly granted power.
Alter ego principle. Under the doctrine of quali ied
political agency, which recognizes the establishment of a
single executive, all executive and administrative organizations
are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular course
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●
●
●
RECAP
of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief Executive.
This doctrine is corollary to the control power of the
President. Control is said to be the very heart of the power of
the presidency.
Discretionary Function. Ordinarily, mandamus will not
prosper to compel a discretionary act. But where there is
"gross abuse of discretion, manifest injustice or palpable
excess of authority" equivalent to denial of a settled right to
which petitioner is entitled, and there is no other plain, speedy
and adequate remedy, the writ shall issue.
Ministerial Function. A mechanical act that must be
performed in any case, and if it is not, may be ordered
performed by a court of justice.
Rights and Privileges
A. Right to Of ice. If the appointment only stated the position and
not a particular station, then the of icer may validly be
reassigned or transferred to any station without violating the
right to security of tenure.
B. Right to Compensation.
● GR: No work, no pay;
EXC: The Court crafted two conditions before an
employee may be entitled to back salaries:
the employee must be found innocent
of the charges and
2. his suspension must be unjusti ied
C.
D.
➔
E.
1.
●
●
NB: A strict observance of the second condition for
an award of back salaries becomes important only
if the employee is not totally innocent of any
administrative infraction.
There are two kinds of preventive suspension of
civil service employees who are charged with offenses
punishable by removal or suspension:
(1) Preventive
suspension
pending
investigation and
(2) preventive suspension pending appeal;
Synthesized from Constitutional and Allied Political Law Notes
F.
G.
compensation is due only for the period of preventive
suspension pending appeal should the employee be
ultimately exonerated.
Presidential Immunity from Suit.The rationale for the grant
to the President of the privilege of immunity from suit is to
assure the exercise of Presidential duties and functions free
from any hindrance or distraction, considering that being the
Chief Executive of the Government is a job that, aside from
requiring all of the of ice-holder's time, also demands
undivided attention.
Doctrine of Of icial Immunity. Mistakes concededly
committed by public of icers are not actionable absent any
clear showing that they were motivated by malice or gross
negligence amounting to bad faith. After all, "even under the
law of public of icers, the acts of the petitioners are protected
by the presumption of good faith.”
As a rule, a public of icer, whether judicial, quasi-judicial or
executive, is not personally liable to one injured in
consequence of an act performed within the scope of his
of icial authority, and in line of his of icial duty.
Preference in Promotion. We ind no mandatory nor
peremptory requirement in the foregoing provision that
persons next-in-rank are entitled to preference in appointment.
What it does provide is that they would be among the irst to be
considered for the vacancy if quali ied, and if the vacancy is
not illed by promotion, the same shall be illed by transfer or
other modes of appointment.
Leave of Absence. 15 days VL of absence and 15 days of SL for
each year of service with full pay, exclusive of Saturdays,
Sundays and holidays.
Retirement Pay. Retirement laws should be interpreted
liberally in favor of the retiree because their intention is to
provide for his sustenance, and hopefully even comfort, when
he no longer has the stamina to continue earning his livelihood.
Prohibitions
A. No of icer or employee of the civil service shall be removed or
suspended except for cause provided by law.
By RGL
B. No elective or appointive public of icer or employee shall
receive additional, double, or indirect compensation, unless
speci ically authorized by law, nor accept without the consent
of the Congress, any present, emolument, of ice, or title of any
kind from any foreign government.
Liabilities
Presumption of Good Faith
Liability of Superior Of icers. —
1. A public of icer shall not be civilly liable for acts done in the
performance of his of icial duties, unless there is a clear
showing of bad faith, malice or gross negligence.
2. Any public of icer who, without just cause, neglects to perform
a duty within a period ixed by law or regulation, or within a
reasonable period if none is ixed, shall be liable for damages
to the private party concerned without prejudice to such other
liability as may be prescribed by law.
3. A head of a department or a superior of icer shall not be civilly
liable for the wrongful acts, omissions of duty, negligence, or
misfeasance of his subordinates, unless he has actually
authorized by written order the speci ic act or misconduct
complained of.
Liability of Subordinate Of icers. — No subordinate of icer or
employee shall be civilly liable for acts done by him in good faith in the
performance of his duties. However, he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public
policy and good customs even if he acted under orders or instructions
of his superiors.
➔ It is well-settled that when a public of icer goes beyond the
scope of his duty, particularly when acting tortiously, he is not
entitled to protection on account of his of ice, but is liable for
his acts like any private individual.
Malfeasance
Doing of an act which a public of icer should not
have done.
Misfeasance
Improper doing of an act which a person might
lawfully do.
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Nonfeasance
RECAP
Failure of an agent to perform his undertaking for
the principal.
Test to Determine if Offense was Committed in Relation to Of ice
●
A public of icer commits an offense in relation to his of ice if
he perpetrates the offense while performing, though in an
improper or irregular manner, his of icial functions and
he cannot commit the offense without holding his public
of ice. In such a case, there is an intimate connection
between the offense and the of ice of the accused.
Threefold Liability Rule
●
Wrongful acts or omissions of a public of icer may give rise to
civil, criminal and administrative liability. An action for
each can proceed independently of the others.
Liability of Superior Of icers for Acts of Subordinates
GR: All heads of of ices have to rely to a reasonable extent on their
subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations.
EXC: A public of icial's foreknowledge of facts and circumstances that
suggested an irregularity constitutes an added reason to exercise a
greater degree of circumspection before signing and issuing public
documents.
Doctrine of Condonation or the Aguinaldo Doctrine
➔ Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the
term in which the public of icer was elected for each term is
separate and distinct.
Second, an elective of icial's re-election serves as a
condonation of previous misconduct, thereby cutting the right
to remove him therefor; and
Synthesized from Constitutional and Allied Political Law Notes
Third, courts may not deprive the electorate, who are assumed
to have known the life and character of candidates, of their right
to elect of icers.
➔ This Court's abandonment of the condonation doctrine
should be prospective in application for the reason that
judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal system
of the Philippines.
Termination
A.
End of term. It is to be understood of course that of icials
and employees holding primarily con idential positions
continue only for so long as con idence in them endures. The
termination of their of icial relation can be justi ied on the
ground of loss of con idence because in that case their
cessation from of ice involves no removal but merely the
expiration of the term of of ice—two different causes for the
termination of of icial relations recognized in the Law of Public
Of icers.
B. Retirement. The compulsory retirement of government
of icials and employees upon their reaching the age of 65 years
is founded on public policy which aims by it to maintain
ef iciency in the government service and at the same time give
to the retiring public servants the opportunity to enjoy during
the remainder of their lives the recompense, inadequate
perhaps for their long service and devotion to the government,
in the form of a comparatively easier life, freed from the rigors
of civil service discipline and the exacting demands that the
nature of their work and their relations with their superiors as
well as the public would impose upon them.
C. Abolition of Of ice. It is a well-known rule also that valid
abolition of of ices is neither removal nor separation of the
incumbents. And, of course, if the abolition is void, the
incumbent is deemed never to have ceased to hold of ice.
As well-settled as the rule that the abolition of an of ice does
not amount to an illegal removal of its incumbent is the
principle that, in order to be valid, the abolition must be made
in good faith. Where the abolition is made in bad faith, for
By RGL
political or personal reasons, or in order to circumvent the
constitutional security of tenure of civil service employees, it
is null and void.
➔ To consider an of ice abolished there must have been an
intention to do away with it wholly and permanently, as
the word "abolish" denote.
D. Reorganization. As a general rule, a reorganization is
carried out in "good faith" if it is for the purpose of economy
or to make bureaucracy more ef icient. If the "abolition,"
which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat security of tenure, or
otherwise not in good faith, no valid "abolition" takes place and
whatever "abolition" is done, is ab initio. There is an invalid
"abolition" as where there is merely a change of nomenclature
of positions, or where claims of economy are belied by the
existence of ample funds.
Section 2 of R.A. 6656 (An Act to Protect the Security of Tenure
of Civil Service Of icers and Employees in the Implementation
of Government Reorganization) cites instances that may be
considered as evidence of bad faith in the removal from
of ice of a government of icer or employee pursuant to a
reorganization:
a. Where there is a signi icant increase in the number of
positions in the new staf ing pattern of the department
or agency concerned;
b. Where an of ice is abolished and other performing
substantially the same functions is created;
c. Where incumbents are replaced by those less quali ied
in terms of status of appointment, performance and
merit;
d. Where there is a reclassi ication of of ices in the
department or agency concerned and the reclassi ied
of ices perform substantially the same function as the
original of ices;
e. Where the removal violates the order of separation
provided in Section 3 hereof.
E. Abandonment. When a judge of irst instance, presiding
over a branch of a Court of First Instance of a judicial district
by virtue of a legal and valid appointment, accepts another
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Political Law Review
appointment to preside over the same branch of the same Court
of First Instance, in addition to another court of the same
category, both of which belong to a new judicial district formed
by the addition of another Court of First Instance to the old one,
enters into the discharge of the functions of his new of ice and
receives the corresponding salary, he abandons his old of ice
and cannot claim to be entitled to repossess it.
F. Incompatible Of ice. Exists where there is a con lict in the
duties of the of ices, so that the performance of the duties of the
one interferes with the performance of the duties of the other,
or whenever one is subordinate to the other in some of its
important and principal duties, and subject in some degree to
its revisory power. One person cannot and should not hold
both of ices, if they are incompatible, at the same time.
G. Resignation, Removal. Removal or resignation from of ice
is not a bar to a inding of administrative liability. Resignation
does not preclude the inding of administrative liability if the
case was iled prior to resignation. However, if the of icial has
resigned without an administrative case having been iled, no
administrative case may be iled thereafter. The only recourse
is to ile civil or criminal cases.
RECAP
EXC: 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.
●
The Ombudsman
●
●
●
H. Recall
I. Prescription. In view of the policy of the State contained in
the law ixing the period of one year within which actions for
quo warranto may be instituted, any person claiming right to a
position in the civil service should also be required to ile his
petition for reinstatement within the period of one year,
otherwise he is thereby considered as having abandoned his
of ice.
J. Failure to Assume Of ice. The of ice of any of icial elected
who fails or refuses to take his oath of of ice within six
months from his proclamation shall be considered vacant,
unless said failure is for a cause or causes beyond his control.
Punishable under Art 234 of the RPC.
Administrative Discipline
GR: The President has the power to discipline his appointees.
Synthesized from Constitutional and Allied Political Law Notes
●
●
The power of the Ombudsman to investigate and prosecute any
illegal act or omission of any public of icial is not an exclusive
authority but a shared or concurrent authority in respect of the
offense charged.
It has the power to impose the penalty of removal, suspension,
demotion, ine, censure, or prosecution of a public of icer or
employee found to be at fault, in the exercise of its
administrative disciplinary authority.
Power to Investigate Administrative Charges. Unlike the
"classical Ombudsman model" whose function is merely to
"receive and process the people's complaints against corrupt
and abusive government personnel," the Philippine
Ombudsman — as protector of the people, is armed with the
power to prosecute erring public of icers and employees,
giving him an active role in the enforcement of laws on
anti-graft and corrupt practices and such other offenses that
may be committed by such of icers and employees. The
legislature has vested him with broad powers to enable
him to implement his own actions.
Concurrent with the Of ice of the President. The authority to
conduct administrative investigation and to impose preventive
suspension over elective provincial or city of icials was at that
time entrusted to the Minister of Local Government until it
became concurrent with the Ombudsman upon the enactment
of R.A. No. 6770.
Congress had intended the Ombudsman and the President to
exercise concurrent disciplinary jurisdiction over petitioners
as Deputy Ombudsman and Special Prosecutor, respectively.
Concurrent with the DoJ. The authority of the Ombudsman to
investigate offenses involving public of icers or employees is
not exclusive but is concurrent with other similarly authorized
agencies of the government. However, the Ombudsman, in the
exercise of its primary jurisdiction over cases cognizable by
By RGL
●
●
●
●
the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of
such cases.
Power to Investigate Cases of Ill-gotten Wealth After
February 25, 1986. In accordance with sec. 1 of Executive
Order No. 14, dated May 7, 1986, the PCGG, with the assistance
of the Solicitor General, is the agency of the government
empowered to bring these proceedings for forfeiture of
property allegedly acquired unlawfully before February 25,
1986, the date of the EDSA Revolution. The power to
investigate cases of ill-gotten or unexplained wealth
acquired after that date is now vested in the Ombudsman.
Ombudsman for the Military. Has jurisdiction over cases
involving Police of icers.
Preventive Suspension. Preventive suspension under Section
13, Rep. Act 3019 as amended shall be limited to a maximum
period of ninety (90) days, from issuances thereof, and this
applies to all public of icers, (as de ined in Section 2(b) of Rep.
Act 3019) who are validly charged under said Act.
Preventive suspension pursuant to §24 of the Ombudsman Act
expressly provides that "the preventive suspension shall
continue until the case is terminated by the Of ice of the
Ombudsman but not more than six months, without pay."
Their preventive suspension for six (6) months without pay is
thus according to law.
Preventive suspension is 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 of ice to in luence 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 he is suspended,
removed or dismissed. This is the penalty.
A decision of the Of ice of the Ombudsman in
administrative cases shall be executed as a matter of
course. The Of ice of the Ombudsman shall ensure that the
decision shall be strictly enforced and properly implemented.
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ELECTION LAW
Elective Officials
Position
Allocation
Citizenship
Age
Residency
Registration
Literacy
Term
Limit
(1) President
1, National
Natural-Born
40
10
PH
ATRW
6
Ineligible for any
election; Successor who
served at least 4 years.
(1) VP
1, National
Natural-Born
40
10
PH
ATRW
6
2 consecutive
(24) Senator
24, National
Natural-Born
35
2
PH
ATRW
6
2 consecutive
Party-List Representative
20% of HR; Max of 3
per PL
Natural-Born
251
1
PH
ATRW
3
3 consecutive
District Representative
1, Legislative District
Natural-Born
25
1
District
ATRW
3
3 consecutive
(1) ARMM Governor
1, Regional
Natural-Born
35
5
ARMM
ATRW
3
2 consecutive
(1) ARMM Vice Governor
1, Regional
Natural-Born
35
5
ARMM
ATRW
3
2 consecutive
ARMM Assemblyman
24, Regional; 3 per
District
Natural-Born
21
5
District
ATRW
3
2 consecutive
(1) Governor
1, Provincial
Filipino
21
1
Province
ATRW + Filipino
3
3 consecutive
(1) Vice Governor
1, Provincial
Filipino
21
1
Province
ATRW + Filipino
3
3 consecutive
Member, Sangguniang
Panlalawigan
2 per District
Filipino
21
1
District
ATRW + Filipino
3
3 consecutive
Mayor
HUC, ICC, Municipality
Filipino
21
1
City or Municipality
ATRW + Filipino
3
3 consecutive
Vice Mayor
HUC, ICC, Municipality
Filipino
21
1
City or Municipality
ATRW + Filipino
3
3 consecutive
Member, Sangguniang
Panlungsod
8, 10 or 12, HUC, ICC
Filipino
18
1
City or Municipality
ATRW + Filipino
3
3 consecutive
Member, Sangguniang Bayan
8, Municipality
Filipino
18
1
Municipality
ATRW + Filipino
3
3 consecutive
Punong Barangay
1, Barangay
Filipino
18
1
Barangay
ATRW + Filipino
3
3 consecutive
Synthesized from Constitutional and Allied Political Law Notes
By RGL
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Kagawad
7, Barangay
Filipino
18
1
Barangay
ATRW + Filipino
3
3 consecutive
Sangguniang Kabataan
Chairperson
1, Barangay
Filipino
18-24
1
Barangay
ATRW + Filipino
3
Silent
Sangguniang Kabataan
Members
7, Barangay
Filipino
18-24
1
Barangay
ATRW + Filipino
3
Silent
Legends:
1
But not more than 30 for Youth sector
Qualifications
a. Citizenship
➔ Must be possessed at the time he is proclaimed and at the start
of term.
➔ Repatriation of a former Filipino under RA 9225 allows him to
recover his natural-born citizenship upon taking an oath of
allegiance.
➔ Those who seek public of ice must ALSO make a personal
and sworn renunciation of other foreign citizenship.
b. Age
➔ Must be possessed on the day of election.
c. Residence
➔ For purposes of election law, it is synonymous with domicile.
➔ To abandon or reacquire domicile of origin, the following must
concur:
(1) Bodily presence in new locality;
(2) Animus manendi; AND
(3) Animus non revertendi.
➔ To abandon an OLD domicile:
(1) Actual removal or change of domicile;
(2) Animus non revertendi with de inite corresponding
acts; AND
(3) Purpose to remain must be for an inde inite time,
voluntary and actual.
➔ To establish NEW domicile:
(1) Actual removal or change of domicile;
(2) Animus non revertendi AND animus manendi; AND
(3) Acts which correspond with the purpose.
Synthesized from Constitutional and Allied Political Law Notes
HUC: Highly Urbanized City
ICC: Independent Component City
ATRW: Able to Read and Write
Filipino or any other Local Dialect
➔ Evidence must engender the kind of permanency required to
prove abandonment of one's original domicile.
➔ False material representation in the COC.
Under the LGC
d. Registration as Voter
➔ A candidate should be a registered voter at the time of iling of
COC.
(a) Sentenced by inal judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more
of imprisonment, within two (2) years after serving sentence;
(b) Removed from of ice as a result of an administrative case;
(c) Convicted by inal judgment for violating the oath of allegiance
to the Republic;
(d) Dual citizenship;
Continued use of foreign passport after renunciation
negates the oath and renounces the renunciation.
(e) Fugitives from justice;
(f) Permanent residents in a foreign country;
(g) Insane or feeble-minded.
e. Literacy
➔ Simple means ability to read and write.
Disqualifications
➔ Non-possession of quali ications under the Constitution.
Under the OEC
➔ Under the OEC:
(1) Insanity or incompetence;
(2) Sentenced by inal judgment for subversion,
insurrection, rebellion;
(3) Sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude.
➔ Conviction by inal judgment for:
◆ Bribery;
◆ Acts of terrorism to enhance candidacy;
◆ Excess in campaign expenditure;
◆ Solicited, received or made any prohibited
contributions; or
◆ Violation of the OEC.
➔ Permanent resident of or an immigrant to a foreign country
unless he has waived such status.
➔ Nuisance candidates; and
By RGL
Vacancy and Succession
Position
Remedy
President
VP succeeds, either permanently or in an acting
capacity.
VP
President nominates from Congress;
Congress con irms by majority vote voting
separately.
Senator
Special election held on next regular election.
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Party-List
Representative
Next nominee succeeds. If the 5-man list is
exhausted, nominate more.
District
Representative
Special Election provided the vacancy occurred
at least 1 year before term expiration and it be
held 60-90 days after occurrence.
Governor or
Mayor
Vice Governor or Vice Mayor succeeds
Vice Governor
or Vice Mayor
No 1 Board Member or Councilor with the
highest percentage of votes.
Punong
Barangay
No 1 Barangay Kagawad
Sanggunian
Members
Appointment by:
a) President, in case of Province or HUC or
ICC;
b) Governor, in case of Component City of
Municipality;
c) Mayor, in case of barangay upon
recommendation of the sangguniang
barangay.
➔
➔
➔
Appointee should be a party-mate of the member
who caused the vacancy to maintain party
representation.
If member is independent, the sanggunian
nominates.
Rules on Presidential Vacancy
➔ Vacancy may either be PERMANENT or TEMPORARY.
➔ If it be permanent, the VP becomes President. If only
temporary, VP merely is in an acting capacity.
➔ Permanent vacancy occurs when:
(a) At the start of term, the President-elect dies or is
permanently disabled;
(b) During midterm, death, permanent disability,
removal from of ice, or resignation of President.
➔ Temporary vacancy occurs when:
Synthesized from Constitutional and Allied Political Law Notes
➔
(a) At the start of term, the President-elect fails to
qualify or shall not have been chosen.
- Fails to qualify mean failure to take oath.
(b) During midterm, the President is declared to be
unable to discharge the powers and duties of the of ice
by:
(i)
Himself, by writing to both the Speaker and
Senate President;
(ii)
By majority of the cabinet members; or
(iii)
By 2/3 of Congress voting separately.
Where no President and Vice-President shall have been chosen
or shall have quali ied, or where both shall have died or
become permanently disabled, the President of the Senate or, in
case of his inability, the Speaker of the House of
Representatives, shall act as President until a President or a
Vice-President shall have been chosen and quali ied.
The Congress shall, by law, provide for the manner in which
one who is to act as President shall be selected until a
President or a Vice-President shall have quali ied, in case of
death, permanent disability, or inability of the of icials
mentioned in the next preceding paragraph.
The Congress shall, at ten o'clock in the morning of the third
day after the vacancy in the of ices of the President and
Vice-President occurs, convene and within seven days, enact a
law calling for a special election to elect a President and a
Vice-President to be held not earlier than 45 days nor later than
60 days from the time of such call.
No special election shall be called if the vacancy occurs within
18 months before the date of the next presidential election.
Term Limit
➔ For local elective of icials, three-term limit rule applies.
➔ It attaches when the following concurs:
(a) Election to same position; AND
(b) Full service, for 3 consecutive terms.
➔ GR: The limit does not apply when there is interruption.
INTERRUPTS
By RGL
DOES NOT INTERRUPT
Involuntary
Cause
Voluntary
Cause
Succession;
Recall;
DQ before end
of term;
Suspension;
Extended Illness;
Force Majeure;
Conversion of municipality to
city;
DQ after end of term
Renunciation (abandonment
or resignation);
➔ There is interruption if there is involuntary loss of title.
Party-list
Allocation
There are four parameters in a Philippine-style party-list election
system:
➔ Twenty percent maximum is a mere ceiling;
➔ Garnering two percent of the total votes cast in the party-list
elections for a guaranteed seat;
➔ The additional seats shall be distributed to the parties by
rank in a second round of seat allocation.
➔ The three-seat cap is constitutional.
Nominees
➔ The nominees must belong to their respective sectors, or must
have a track record of advocacy for their respective sectors.
➔ The nominees of national and regional parties or organizations
must be bona- ide members of such parties or organizations.
➔ The list of nominees is of public interest and should not be
con idential.
➔ The party-list submits at least 5 nominees to the Comelec not
later than 45 days before election.
➔ Exclusive grounds for substitution:
a. Death;
b. Withdrawal in writing; OR
c. Incapacity
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Sectors to be represented
➔ Three different groups
(1) national parties or organizations,
(2) regional parties or organizations, and
(3) sectoral parties or organizations.
➔ National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines and
do not need to represent any “marginalized and
underrepresented” sector.
➔ Political parties can participate in party-list elections
provided they do not ield candidates in legislative district
elections. They may also participate through their sectoral
wings.
➔ Sectoral parties or organizations may either be “marginalized
and underrepresented” or lacking in “well-de ined political
constituencies.”
➔ A majority of the members of sectoral parties or organizations
must belong to the sector they represent.
➔ National, regional, and sectoral parties or organizations shall
not be disquali ied provided that they have at least one
nominee who remains quali ied.
➔ A “political party refers to an organized group of citizens
advocating an ideology or platform, principles and
policies for the general conduct of government.”
➔ A “sectoral party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section 5 hereof
whose principal advocacy pertains to the special interest
and concerns of their sector.”
➔ The list of sectors provided by law is not exclusive. A party-list
may still qualify so long as it has all the quali ications and
none of the disquali ications. (Ang Ladlad v Comelec)
Disqualifications
➔ It is a religious sect or denomination, organization or
association organized for religious purposes;
➔ It advocates violence or unlawful means to seek its goal;
➔ It is a foreign party or organization;
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or
through any of its of icers or members or indirectly through
third parties for partisan election purposes;
➔ It violates or fails to comply with laws, rules or regulations
relating to elections;
➔ It declares untruthful statements in its petition;
➔ It has ceased to exist for at least one (1) year; or
➔ It fails to participate in the last two (2) preceding elections or
fails to obtain at least two per centum (2%) of the votes cast
under the party-list system in the two (2) preceding elections
for the constituency in which it has registered.
Postponement or Failure of Elections
➔
Only the Commission en banc, motu proprio or upon veri ied
petition may
postpone election.
➔ The grounds for postponement are:
(a) Violence;
(b) Terrorism;
(c) Loss or destruction of election paraphernalia or
records;
(d) Force majeure; OR
(e) Other analogous causes that renders the holding of a
free, orderly, honest elections impossible.
➔ If the reason is not one as aforestated, such as operational
dif iculty, Comelec may recommend to Congress to pass a law
to postpone Barangay and SK elections.
➔ The election must be reset to a date reasonably close but not
later than 30 days after the cause has ceased. This 30-day
period is only directory.
➔
Failure of elections happen when:
(a) Election in any polling place was not held on ixed
date;
(b) Election in any polling place had been suspended
before close of voting; and
(c) After voting and during preparation and transmission
of election returns or in their custody or canvass;
- The three instances were due to:
By RGL
(i)
Force Majeure;
(ii)
Violence;
(iii)
Terrorism;
(iv)
Fraud;
(v)
Other analogous causes.
➔ The requisites to declare failure of elections:
(a) No voting took place in the polling places on the date
ixed by law, or there was failure to elect; AND
(b) The votes that were not case affect election result.
➔ Again, the Comelec en banc has exclusive jurisdiction to
declare a failure of elections.
➔ Requisites for holding Special Elections:
(1) that there is a failure of election, and
(2) that such failure would affect the results of the
election.
Suffrage
➔ Suffrage may be exercised by all citizens of the Philippines, not
otherwise disquali ied by law, who are at least eighteen years
of age, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote, for at
least six months immediately preceding the election.
➔ No literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage.
Overseas Absentee Voters
➔ All citizens of the Philippines abroad, who are not otherwise
disquali ied by law, at least eighteen (18) years of age on the
day of elections, may vote for President, Vice-President,
Senators and Party-List Representatives, as well as in all
national referenda and plebiscites.
➔ Disquali ications:
(a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
(b) Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country, except those who
have reacquired or retained their Philippine
citizenship under Republic Act No. 9225, otherwise
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known as the 'Citizenship Retention and Reacquisition
Act of 2003′;
(c) Those who have committed and are convicted in a
inal judgment by a Philippine court or tribunal of an
offense punishable by imprisonment of not less than
one (1) year; and
(d) Any citizen of the Philippines abroad previously
declared insane or incompetent.
Local Absentee Voters
(a) Members of the AFP and PNP and other government of icers
and employees who are duly registered voters and who, on
election day, may temporarily be assigned in connection with
the performance of election duties to place where they are not
registered voters.
(b) Members of the board of election inspectors and their
substitutes may vote in the polling place where they are
assigned on election day: Provided, That they are registered
voters within the province, city or municipality.
(c) Members of media, media practitioners, including the
technical and support staff who are duly registered voters and
who, on election day, may not be able to vote due to the
performance of their functions in covering and reporting on the
elections.
Additional Notes
➔ Absentee voters may only vote for National Positions.
➔ An Illiterate or PWD may vote through an assistor who may
either be
(a) A relative within the 4th civil degree;
(b) A con idant who belongs to the same household; OR
(c) A BEI member.
➔ An assistor, except for a BEI member, may only assist up to 3
times.
Voters’ Registration
➔ The following are disquali ied from voting:
(a) Sentenced by inal judgment to suffer imprisonment
for not less than one year;
Synthesized from Constitutional and Allied Political Law Notes
RECAP
(b) Adjudged by inal judgment by competent court or
tribunal of having committed any crime involving
disloyalty to the duly constituted government such as
rebellion, sedition, violation of the anti-subversion
and irearms laws, or any crime against national
security;
(c) Insane or incompetent persons.
➔ Registration shall be daily except during the period starting
120 days before a regular election and 90 days before a
special election.
➔ Grounds for deactivation:
(a) Any of the grounds for disquali ication
(b) Did not vote in the two (2) successive preceding
regular elections as shown by their voting records. For
this purpose, regular elections do not include the
Sangguniang Kabataan (SK) elections;
(c) Registration has been ordered excluded by the Court;
and
(d) Lost his Filipino citizenship.
(e) Fails to submit for validation on or before the last day
of iling of application for registration for purposes of
the May 2016 elections.
Inclusion and Exclusion Proceedings
➔ The MTC shall have original and exclusive jurisdiction over all
cases of inclusion and exclusion of voters.
➔ Decisions of the MTC may be appealed to the RTC within ive
(5) days from receipt of notice thereof. Otherwise, said
decision shall become inal and executory.
➔ The RTC shall decide the appeal within ten (10) days from the
time it is received and the decision shall immediately become
inal and executory. No motion for reconsideration shall be
entertained.
➔ Petition for Inclusion may be iled at any time except one
hundred ive (105) days prior to a regular election or
seventy- ive (75) days prior to a special election. It shall be
decided within ifteen (15) days after its iling.
➔ Petition for Exclusion may be iled at any time except one
hundred (100) days prior to a regular election or sixty- ive (65)
By RGL
days before a special election. It shall be decided within ten
(10) days from its iling.
➔ The challenge to the right to register is administrative and iled
with the ERB, whereas petitions for inclusion or exclusion
pertains to the right to vote, is judicial in nature and lodged
with the MTC.
➔ A decision in an exclusion proceeding would neither be
conclusive on the voter's political status, nor bar subsequent
proceedings on his right to be registered as a voter in any other
election. It is not res judicata as to the Comelec.
➔ The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the
list of voters or to declare that the challenged voter is not
quali ied to vote in the precinct in which he is registered,
specifying the ground of the voter's disquali ication.
Comelec Officials
➔ Composed of a Chairman and 6 Commissioners who shall be
(a) natural-born citizens of the Philippines and,
(b) at the time of their appointment, at least thirty- ive
years of age,
(c) holders of a college degree, and
(d) must not have been candidates for any elective
positions in the immediately preceding elections.
➔ A majority, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for
at least ten years.
➔ They shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years
without reappointment.
➔ 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.
➔ No member of a Constitutional Commission shall, during his
tenure, hold any other of ice or employment.
➔ Neither shall he engage in the practice of any profession or in
the active management or control of any business which, in any
way, may be affected by the functions of his of ice, nor shall he
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be inancially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or
instrumentalities, including GOCCs or their subsidiaries.
➔ To maintain their independence, the following are
constitutionally mandated:
(a) Salaries shall be ixed by law and shall not be
decreased during their tenure.
(b) Appoint of icials and employees in accordance with
law.
(c) Enjoy iscal autonomy.
(d) Approved
annual
appropriations
shall
be
automatically and regularly released.
(e) Promulgate rules concerning pleadings and practice
before it or before any of its of ices.
Administrative Powers
1. Power to enforce and administer election laws
➔ It includes the power to deny due course to or cancel COCS,
provided the candidate’s disquali ication is based on inal
conviction.
➔ The Commission may place under its immediate and direct
control and supervision, any political division, subdivision,
unit or area affected by "serious armed threats".
➔ "Serious armed threats" shall refer to the presence of
paramilitary forces, private armies or identi iable armed bands
widely perceived to have committed terrorism, fraud or other
election irregularities and threaten or tend to disrupt the
holding of free, peaceful, honest, orderly and credible elections
in any political division, subdivision, unit or area.
➔ Comelec Control shall continue to be in full force and in effect
until the end of the election period, unless sooner lifted by the
Commission.
2. Power to conduct plebiscite, initiative, referendum and
recall
➔ Any amendment to, or revision of, this Constitution may be
proposed by
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔
➔
➔
➔
➔
➔
➔
➔
➔
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention;
A constitutional convention may be called by a 2/3 vote of all
members of Congress voting separately, or upon majority vote,
refer to the people to decide the calling of such.
Amendment may also be done through People’s Initiative.
RA 6735 or the Initiative and Referendum Act is suf icient
and adequate as the enabling law to amend the Constitution
through People’s Initiative.
"Initiative" is the power of the people to propose amendments
to the Constitution or to propose and enact legislations through
an election called for the purpose. There are three (3) systems
of initiative,:
(1) Initiative on the Constitution;
(2) Initiative on statutes;
(3) Initiative on local legislation;
It may only be exercised once every ive years.
"Petition" is the written instrument containing the proposition
and the required number of signatories. It has 2 essential
elements:
(1) The people must author and sign the entire proposal;
and
(2) The entire proposal must be embodied in the petition
and must be shown to the people.
"Plebiscite" is the electoral process by which an initiative on
the Constitution is approved or rejected by the people.
"Referendum" is the power of the electorate to approve or
reject a legislation through an election called for the purpose.
To determine whether a proposed change is either an
amendment or revision, a two-part test is employed:
(1) The quantitative test asks whether the proposed
change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by
the deletion or alteration of numerous existing
provisions.
(2) The qualitative test asks whether the change will
"accomplish such far reaching changes in the nature of
By RGL
our basic governmental plan as to amount to a
revision.”
➔ Revision broadly implies a change that alters a basic
principle in the constitution, like altering the principle of
separation of powers or the system of checks-and-balances.
There is also revision if the change alters the substantial
entirety of the constitution, as when the change affects
substantial provisions of the constitution.
➔ Amendment merely envisages an alteration of one or a few
speci ic and separable provisions.
Initiative on
Nationwide
Per District
Constitution
12%
3%
Statutes and Local Laws
10%
3%
➔ Recall is a mode of removal of a public of icer by the people
before the end of his term of of ice.
➔ There is only one ground for the recall of local government
of icials: loss of con idence and must be done on the second
year of assumption of of ice.
% Requirement
Voting Population
Minimum
At least 25%
Not > 20K
-
At least 20%
20K - 75K
5K
At least 15%
75K - 300K
10K
At least 10%
> 300K
45K
3. Power to decide all questions affecting elections
➔ 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
of icials and inspectors, and registration of voters.
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➔ It has NO authority to transfer municipalities from one
legislative district to another district. The authority
conferred would be on minor corrections or amendments,
such as an intervening municipality forgotten in the
enumeration, which ought to be included in one district.
4. Power to deputize other government agencies
➔ 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.
➔ As a limitation, Comelec can not suspend or remove its
deputies but may recommend such sanction to the relevant
authorities.
5. Recommendatory power
➔ 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 of icer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to, its directive, order, or decision.
6. Power to register political parties and party-list
➔ A political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for
the general conduct of government and which, as the most
immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as
candidates for public of ice.
➔ It is a national party when its constituency is spread over the
geographical territory of at least a majority of the regions. It is a
regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and
provinces comprising the region.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ The disquali ication should now necessarily be read to apply to
party-list groups or organizations that did not qualify for a
seat in the two preceding elections for the constituency in
which it registered.
➔ Registration is the act that bestows juridical personality for
purposes of election.
➔ Accreditation relates to the privileged participation that
election laws grant to quali ied registered parties. To be
accredited, the following criteria is used:
(1) History. Established record and showing in past
elections;
(2) Incumbents. Number of incumbent elective of icials
90 days before election date;
(3) Chapters. Identi iable political organizations and
strengths;
(4) Candidates. Ability to ield a complete slate;
(5) Other analogous circumstances.
7. Power
to
supervise
transportation
or
regulate
franchises,
➔ Supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and
other public utilities, media of communication or information.
➔ Such supervision or regulation shall aim to ensure equal
opportunity, time, and space ,and the right to reply, including
reasonable, equal rates therefor, for public information
campaigns and forums among candidates.
➔ Comelec has NOT been granted the right to supervise and
regulate the exercise by media practitioners themselves of their
right to expression during plebiscite periods. (Sanidad v
Comelec)
➔ The supervisory power of transportation does not extend to the
very freedom of an individual to express his preference of
candidates by placing campaign stickers on his own vehicle.
➔ Posting, displaying or exhibition of election campaign
materials in PUV is not only a form of political expression, but
also an act of ownership, which the Comelec can not prohibit.
(1-UTAK v Comelec)
By RGL
➔ In exit polls, the contents of the of icial ballot are not actually
exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Thus, the secrecy of ballot
is not violated. (ABS-CBN v Comelec)
8. Power to investigate and prosecute
➔ The task of the Comelec as investigator and prosecutor, acting
upon any election offenses complaint, is not the physical
searching and gathering of proof in support of a complaint for
an alleged commission of an election offense. A complainant,
who in effect accuses another person of having committed an
act constituting an election offense, has the burden, as it is his
responsibility, to follow through his accusation and prove his
complaint. (Kilosbayan v Comelec)
9. Duty to report.
Quasi-Legislative Powers
➔ The COMELEC can not adopt a rule prohibiting the iling of
certain pleadings in the regular courts. The power to
promulgate rules concerning pleadings, practice and procedure
in all courts is vested on the Supreme Court.
➔ In the interest of justice and in order to obtain speedy
disposition of all matters pending before the Commission,
these rules or any portion thereof may be suspended by
the Commission.
Quasi-Judicial Powers
(1) Exercise original jurisdiction over regional, provincial, and
city election contests and appellate jurisdiction over municipal
and barangay election contests
➔ The Constitution vests exclusive jurisdiction over all contests
relating to the election, returns and quali ications of the
Members of the Senate and the House of Representatives in the
respective Electoral Tribunals [Art. VI, Sec. 17.]
➔ The exclusive original jurisdiction of the COMELEC is limited
by constitutional iat to election contests pertaining to elective
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regional, provincial and city of ices and its appellate
jurisdiction to those involving municipal and barangay of ices.
➔ An aggrieved party may ile a petition for certiorari with the
COMELEC whenever a judge hearing an election case has acted
without or in excess of his jurisdiction or with grave abuse of
discretion and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law.
➔ Provision which states that decision of the municipal or
metropolitan court in a barangay election case should be
appealed to the regional trial court, must be declared
unconstitutional. Appellate jurisdiction is with the Comelec.
(2) Power to issue extraordinary writs
➔ The Comelec has original jurisdiction to issue writs of
certiorari, prohibition and mandamus involving election cases
in aid of its appellate jurisdiction.
(3) Contumacy powers
➔ COMELEC resolution awarding the contract was not issued
pursuant to its quasi-judicial functions but merely as an
incident of its inherent administrative functions over the
conduct of elections, and hence, the said resolution may not be
deemed as a " inal order" reviewable by certiorari by the
Supreme Court.
➔ Being non-judicial in character, no contempt may be
imposed by the COMELEC from said order, and no direct and
exclusive appeal by certiorari to this Tribunal lie from such
order. Any question arising from said order may be well taken
in an ordinary civil action before the trial courts.
(4) Jurisdiction of en banc or division
➔ May sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election
cases, including pre- proclamation controversies.
➔ All such election cases shall be heard and decided in division,
provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
➔ In the exercise of its ADMINISTRATIVE function
◆ May be iled directly to the en banc;
➔ In the exercise of its QUASI-JUDICIAL function
◆ Original jurisdiction with the Division.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
➔ In making the correction in the computation the Municipal
Board of Canvassers acted in an administrative capacity.
➔ The authority to resolve incidental matters of the case
pending in a division, like the questioned interlocutory
orders, falls on the division itself, and not on the
Commission en banc.
➔ Only motions to reconsider decisions, resolutions, orders or
rulings of the COMELEC in Division are resolved by the
COMELEC en banc.
➔ Under the COMELEC Rules of Procedure, a motion for
reconsideration of its en banc ruling is prohibited except in a
case involving an election offense. Since the present
controversy involves no election offense, reconsideration is
not possible and petitioner has no appeal or any plain, speedy
and adequate remedy in the ordinary course of law.
Accordingly, petitioner properly iled the instant petition for
certiorari with the Supreme Court.
➔ A motion for reconsideration before the COMELEC en banc is
required for the iling of a petition for certiorari.
➔ It is, therefore, the decision, order or ruling of the COMELEC en
banc that, in accordance with Art. IX, A, §7, "may be brought to
the Supreme Court on certiorari.”
➔ Errors of judgment by the Comelec are not reviewable in
certiorari, so long as they are founded on substantial evidence.
➔ Because of their subordinate status and rank vis-a-vis the
COMELEC, lower courts cannot issue writs of injunction
enforceable against the COMELEC.
➔ The Constitution grants to RTC exclusive original jurisdiction
over contests involving elective municipal of icials.
Election Period
●
●
Ninety (90) days before the day of the election and shall end
thirty (30) days thereafter.
Comelec may ix the starting date earlier.
Election Offenses
By RGL
(1) During Election Period
a. Vote-buying and vote-selling
b. Appointment of new employees, creation of new position,
promotion, or giving salary increases. — During the period
of 45 days before a regular election and thirty days before a
special election.
EX: a new employee may be appointed in case of urgent need
provided Comelec is noti ied within 3 days from appointment.
The appointment referred to in the election ban
provision is covered by the Civil Service Law.
- Filling up of position covered by the LGC is not
covered by this position.
c. Promotion, salary increases, granting of privileges
- ABSOLUTE BAN.
d. Transfer of of icers and employees in the civil service.
Requisites:
1. The fact of transfer or detail of a public of icer or
employee within the election period as ixed by the
COMELEC, and
2. The transfer or detail was effected without prior
approval of the COMELEC in accordance with its
implementing rules and regulations.
e. Carrying irearms outside residence or place of business.
EX:
1. cashiers and disbursing of icers while in the
performance of their duties or
2. to persons who by nature of their of icial duties,
profession, business or occupation habitually carry
large sums of money or valuables.
3. Regular members or of icers of the PNP, the AFP and
other enforcement agencies of the Government who
are duly deputized in writing by the Commission for
election duty.
a. in full uniform showing clearly and legibly
his name, rank and serial number which shall
remain visible at all times; and
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RECAP
b.
f.
in the actual performance of his election duty
in the speci ic area designated by the
Commission.
Prohibition against release, disbursement or expenditure
of public funds
1. Any and all kinds of public works
EX: (not prohibited)
a. Maintenance of existing and/or completed
public works project;
b. Work undertaken by contract through public
bidding; EX: takay or pakyaw.
c. Procedures
preparatory
to
actual
construction;
d. Emergency work necessitated by the
occurrence of a public calamity.
shall not apply to ongoing public works projects
commenced before the campaign period or similar
projects under foreign agreements.
2. Social Work
EX:
a.
b.
c.
g.
salaries of personnel,
for such other routine and normal expenses,
for such other expenses as the Commission
may authorize after due notice and hearing.
Relief operations must be coursed through
the Philippine National Red Cross.
3. Housing Projects (Same exceptions as No 2)
Need to secure CERTIFICATE OF EXCEPTION, not exemption.
Suspension of elective provincial, city, municipal or
barangay of ice.
(2) During Registration of Voters
a.
b.
c.
d.
e.
Knowingly makes any false or untruthful statement;
Deliberately imprints ingerprint;
Misapproves application for registration;
Double registration;
Registers in substitution for another;
Synthesized from Constitutional and Allied Political Law Notes
f.
g.
h.
i.
j.
k.
l.
Tampers data in the application;
Delays, hinders or obstructs;
Falsely certi ies;
Uses the voter's af idavit of another;
Misplacement or misinsertion of application;
Mistransfer of registration records;
Asks, demands, takes, accepts or possesses, directly or
indirectly, the voter's af idavit of another;
m. Delivers, hands over, entrusts, gives, directly or indirectly his
voter's af idavit to another for a consideration;
n. Alters in any manner, tears, defaces, removes or destroys any
certi ied list of voters;
o. Takes, carries or possesses any blank or unused registration
form already issued;
p. Maliciously omits, tampers or transfers to another list the
name of a registered voter.
q. Deliver, hand over, entrust or give, directly or indirectly, his
voter’s identi ication card to another for a consideration;
r. Misissuance of a VIN;
s. Accept an appointment, to assume of ice and to actually serve
as a member of the Election Registration Board although
ineligible;
t. Interfere with, impede, abscond for purpose of gain or to
prevent the installation or use of computers and devices;
u. Gain, cause access to use, alter, destroy, or disclose any
computer-related hardware, software and data ;
v. Failure to provide certi ied voters and deactivated voters list to
candidates;
w. posting of a list of voters outside or at the door of a precinct
different in contents from the certi ied list of voters being used
by the Electoral Board.
(3) During Voting
a.
b.
c.
Votes more than once or having voted without being registered
irst;
Votes in substitution for another;
Not being illiterate or a PWD, allows others to prepare his
ballot;
By RGL
d.
e.
f.
g.
h.
i.
j.
k.
Discover the contents of the ballot of a voter who is preparing
or casting his vote or who has just voted;
Use of another ballot or more than one ballot;
Places under arrest or detains a voter without lawful cause, or
molests him to prevent him from voting;
Reveals the contents of the ballot of an illiterate or disabled
voter whom he assisted;
Transfers the location of a polling place;
Removes, tears, defaces or destroys any certi ied list of
candidates posted inside the voting booths;
Holds or causes the holding of an election on any other day
than that ixed by law or stops it.
Deliberately blurs his ingerprint in the voting record.
During Counting:
l. Deliberately misreads ballot;
m. Mistallies votes;
n. Made possible the casting of more votes than there are
registered voters.
o. Propagates false and alarming reports or information or
transmits or circulates false orders, directives or messages;
During printing and custody of paraphernalia:
p. Destroys, substitutes or takes away any election form or
document or ballot box which contains of icial ballots or other
documents used in the election;
q. Opens or destroys ballot box or removes or destroys its
contents or through negligence allows others to do same.
r. Knowingly uses ballots other than the of icial ballots;
s. Any public of icial who neglects or fails to properly preserve or
account for any ballot box, documents and forms received by
him;
t. Prints or causes the printing of any ballot or election returns;
u. Keeps, uses or carries out or causes to be kept, used or carried
out, any of icial ballot or election returns or printed proof
thereof, and printing paraphernalia;
v. causes of icial ballots or election returns to be printed in
quantities exceeding those authorized by Comelec;
w. Violates the integrity of any of icial ballot or election returns;
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(4) During Canvassing
a.
b.
c.
d.
e.
f.
g.
h.
i.
Fails to give due notice;
Proceeds with the canvass of the votes and/or proclamation of
any candidate which was suspended or annulled by the
Commission.
Proceeds in the absence of quorum, or without giving due
notice;
Uses in the canvass of votes and/or proclamation of any
candidate any document other than the of icial copy of the
election returns.
Deliberately absents himself from the meetings of said body
for the purpose of obstructing or delaying;
Unjusti iably refuses to sign and certify any election form;
Accepts an appointment and actually serves although
ineligible;
Conducts himself in such a disorderly manner as to interrupt
or disrupt the work or proceedings;
Relieves any member of any board of election inspectors or
board of canvassers or who changes or causes the change of the
assignments without authority.
(5) On Candidacy and Campaign
a.
b.
c.
d.
e.
f.
Holds political conventions or meetings to nominate its of icial
candidates earlier than the period ixed;
Abstracts, destroys or cancels any CoC duly iled;
Misleads the EB by submitting any false or spurious CoC or
document to the prejudice of a candidate;
Receives any CoC outside the period;
Jams, obstructs or interferes with a radio or television
broadcast of any lawful political program;
Solicits votes on the day of election, for or against any
candidate or any political party within the polling place or
within a radius of 30 meters;
The phrase “those incurred or caused to be incurred by the
candidate” is suf iciently adequate to cover those expenses
which are contributed or donated in the candidate’s behalf. By
virtue of the legal requirement that a contribution or donation
should bear the written conformity of the candidate, a
contributor/ supporter/ donor certainly quali ies as “any
person authorized by such candidate or treasurer.” Ubi lex non
distinguit, nec nos distinguere debemus.
(6) Other Prohibitions
●
●
●
●
a. Liquor Ban - on the day before the election or on election day;
b. Intervention of foreigners;
c. Prohibited contributions from
i.
Public or private inancial institutions EX for loan;
ii.
Persons operating a public utility or in possession of
or exploiting any natural resources;
iii.
Persons who hold public works contracts or
subcontracts;
iv.
Persons who have been granted franchises, incentives,
exemptions, allocations;
v.
Persons who, within one year prior to the date of the
election, have been granted loans by the government;
vi.
Educational institutions which have received grants of
public funds amounting to no less than P100,000.00;
vii.
Of icials or employees in the Civil Service, or
members of the Armed Forces of the Philippines; and
viii.
Foreigners and foreign corporations.
●
●
The conduct of a preliminary investigation of election offenses
for the purpose of determining whether or not there is probable
cause to believe that the accused is guilty of the offense
charged and, therefore, should be subjected to trial is the
function of the petitioner. The Court will not even interfere with
the inding of the petitioner absent a clear showing of grave
abuse of discretion.
By RGL
The RTC shall have the exclusive original jurisdiction to try and
decide any criminal action or proceedings for violation of the
OEC.
Supporting af idavits by the complaining witnesses are needed
to sustain the charge of vote buying.
The prohibition of carrying a irearm within a distance from
the polling place is mala prohibita.
Vote padding is mala in se.For otherwise, even errors and
mistakes committed due to overwork and fatigue would be
punishable.
Election offenses shall prescribe after ive years from the
date of their commission.
The provision on preventive suspension in the Anti-Graft Law
applies to unlawful and unauthorized use of government
property by incumbent public of icers even if the alleged
violations are primarily considered as election offenses.
Campaign Period
a. For President, VP, Senators, Party-list - 90 days;
b. All others - 45 days;
c. Barangay - 15 days.
●
"election campaign" or “partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public of ice.
●
Elements of Premature Campaigning:
(1) a person engages in an election campaign or partisan
political activity;
(2) the act is designed to promote the election or defeat of
a particular candidate or candidates;
(3) the act is done outside the campaign period.
A person who iles a CoC is not a candidate until the start of the
campaign period.
A candidate is liable for an election offense only for acts done
during the campaign period, not before.
Section 14 of R. A. No. 7166 states that "every candidate" has
the obligation to ile his statement of contributions and
ADDITIONAL NOTES:
On Campaign Expenses
Synthesized from Constitutional and Allied Political Law Notes
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expenditures. Ubi lex non distinguit nec nos distinguere
debemos.
The COMELEC's prohibition on posting of decals and stickers
on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null and
void on constitutional grounds.
(1) Infringes free speech, and
(2) Void for overbreadth.
The assailed rule on “aggregate-based” airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains
the ability of candidates and political parties to reach out and
communicate with the people.
Certificate of Candidacy
●
●
●
●
Disquali ication
Votes for DQed candidate
considered STRAY votes
Not candidate to begin
with
Substitution
ALLOWED
NOT ALLOWED
2nd Placer
Does not win. Succession
or appointment applies.
WINS
●
●
●
Aside from CARRL, other substantial quali ication of a person
in iling his CoC is that he certi ies that he is not ineligible to
run due to causes such as:
(1) Perpetual disquali ication;
(2) Barred by 3-term Limit Rule;
(3) Sentenced by inal judgment for a crime involving
moral turpitude;
It is the ministerial duty of the Comelec to receive COCs that
on their face appears to be duly accomplished.
Appointive of icials are deemed-resigned upon iling of CoC.
Does not apply to elective of icials (Quinto v Comelec)
In case there is a material misrepresentation in the certi icate
of candidacy, the Comelec is authorized to deny due course to
or cancel such certi icate upon the iling of a petition by any
person.
As to
Effect
Deny Due Course/
Cancel CoC
Reason
Ineligibility of candidate
due to commission of
prohibited acts.
Material
misrepresentation of
quali ications intended
to defraud
Attacks
The Candidate
The CoC
Synthesized from Constitutional and Allied Political Law Notes
●
●
●
●
●
It is necessary, among others, that the substitute candidate
must be of the same political party as the original candidate
and must be duly nominated as such by the political party.
Grounds for substitution are death, withdrawal or
disquali ication of a candidate.
A candidate must personally appear before the proper Comelec
Of ice to withdraw his candidacy.
A person can ile multiple CoCs. However, before the
deadline of the iling of CoC, he must ensure that he retains one
CoC and withdraws all the other. Otherwise, he will be
disquali ied from all positions.
The declaration of a duly registered candidate as nuisance
candidate results in the cancellation of his certi icate of
candidacy.
A nuisance candidate is thus de ined as one who, based on
the attendant circumstances, has no bona ide intention to run
for the of ice for which the certi icate of candidacy has been
iled, his sole purpose being the reduction of the votes of a
strong candidate, upon the expectation that ballots with only
the surname of such candidate will be considered stray and not
counted for either of them.
In a special election, should there be a lone candidate, he
shall be proclaimed without the need to proceed with the
election.
In regular elections, the lone candidate only needs 1 vote to
win.
●
●
●
Counting and Ballot Appreciation
●
Voting and the EB
●
By RGL
No person shall serve as chairman or member of the board of
election inspectors (now, Electoral Board) if he is related
within the fourth civil degree to
a. any member of the board of election inspectors or
b. to any candidate to be voted for in the polling place or
his spouse.
Those convicted with inality of any criminal offense
punishable of at least 6 months imprisonment or has a
pending electoral offense case is DQed.
Should there be a lack of public school teachers willing,
available or quali ied to serve, the Commission may instead
appoint the following persons in this order of preference:
○ Private school teachers;
○ National government employees:
■ DepED nonteaching personnel;
■ Other national government of icials and
employees holding regular or permanent
positions, excluding uniformed personnel of
the Department of National Defense and all its
attached agencies;
○ Members of the Commission-accredited citizen arms
or other civil
society
organizations
and
nongovernmental organizations duly accredited by the
Commission; and
○ Any registered voter of the city or municipality of
known integrity and competence who is not connected
with any candidate or political party.
Ballot appreciation aims to obtain the expression of the will
of the voter. The following rules apply:
(1) Intent;
(2) Neighborhood;
(3) Idem sonans;
(4) Equity of the Incumbent;
(5) Superiority of the surname;
(6) Correct sequence.
The intent rule is well settled in this jurisdiction that in the
appreciation of the ballot, the objective should be to ascertain
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and carry into effect the intention of the voter, if it could be
determined with reasonable certainty. The ballot in question
should be liberally appreciated to effectuate the voter's choice
of Bataller.
The neighborhood rule is a settled rule stating that where the
name of a candidate is not written in the proper space in the
ballot, but is preceded by the name of the of ice for which he is
a candidate, the vote should be counted as valid for said
candidate.
Excepted from Section 211(19) on the rule on appreciation
of misplaced votes are ballots with
(1) a general misplacement of an entire series of names
intended to be voted for the successive of ices
appearing in the ballot;
(2) a single or double misplacement of names where such
names were preceded or followed by the title of the
contested of ice or where the voter wrote after the
candidate's name a directional symbol indicating the
correct of ice for which the misplaced name was
intended; and
(3) a single misplacement of a name written
(a) off-center from the designated space,
(b) slightly underneath the line for the contested
of ice,
(c) immediately above the title for the contested
of ice, or
(d) in the space for an of ice immediately
following that for which the candidate
presented himself.
Idem sonans states that the occurrence in a document of a
spelling of a material word that is wrong but has the sound of
the word intended does not vitiate the instrument.
For the neighborhood rule to apply:
(1) The space intended must be blank;
(2) The vote must relate to an of ice;
(3) The idem sonans rule followed; and
(4) Voter’s intention be at least discernable with certainty.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
●
●
●
●
The writing of a name more than twice on the ballot is
considered to be intentional and serves no other purpose
than to identify the ballot.
A vote cast in favor of a candidate for an of ice for which he
did not present himself is void but will not invalidate the
whole ballot. The vote is merely considered stray vote.
It is a well-settled rule that a ballot signed by the voter
himself is a marked ballot. This ballot was properly
rejected.
The ballot was marked because 'Carlos P. Garcia' and 'Juan Pajo'
were voted as councilors, they being national igures and not
●
●
Pre-proclamation Controversies
●
A pre-proclamation controversy refers to any question
pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before
the board or directly with the Commission.
●
Issues that may be raised:
candidates for said position.
●
●
●
●
The presence of an arrow with the words “and party,” was
meant for no other purpose than to identify the voter. They are
irrelevant expressions that nulli ied the ballots.
As long as the stickers were pasted on a blank space on the
ballot, the ballot should be invalidated
Three kinds of votes are considered stray:
(1) a vote containing initials only,
- may be counted for a candidate provided that
the initials would suf iciently identify the
candidate voted for.
(2) a vote which is illegible, and
(3) a vote which does not suf iciently identify the
candidate for whom it is intended.
Only one nickname or stage name is allowed.
Canvassing
●
●
COMELEC can suspend the canvass of votes pending its inquiry
whether there exists a discrepancy between the various copies
of election returns from the disputed voting centers.
Corollarily, once the election returns were found to be falsi ied
or tampered with, the COMELEC can annul the illegal canvass
and order the Board of Canvassers to reconvene and proclaim
the winners on the basis of the genuine returns or, if it should
refuse, replace the members of the board or proclaim the
winners itself.
By RGL
The COMELEC exercises direct supervision and control over
the proceedings before the Board of Canvassers.
The function of a canvassing board in the canvass of the
returns is purely ministerial in nature.
●
(a) Illegal composition or proceedings of the board of
canvassers;
(b) The canvassed election returns are incomplete,
contain material defects, appear to be tampered with
or falsi ied, or contain discrepancies in the same
returns or in other authentic copies thereof as
mentioned in Sections 233, 234, 235 and 236 of this
Code;
(c) The election returns were prepared under duress,
threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in
controverted polling places were canvassed, the
results of which materially affected the standing of
the aggrieved candidate or candidates.
In a pre-proclamation controversy, the board of canvassers and
the Comelec are not to look beyond or behind election returns
which are on their face regular and authentic returns. In such
summary proceedings, there is no room for the presentation
of evidence aliunde, the inspection of voluminous
documents, and for meticulous technical examinations which
take up considerable time.
Pre-proclamation controversies are mandated by law to be
summarily disposed of.
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While the Commission has exclusive jurisdiction over
pre-proclamation controversies involving local elective
of icials, nevertheless, pre-proclamation cases are not allowed
in elections for President, Vice-President, Senator and Member
of the House of Representatives. What is allowed is the
correction of "manifest errors in the certi icate of canvass
or election returns."
If the error sought to be corrected is truly a manifest error, then
the matter should have already been raised before the board of
canvassers. The exception is if the error is one that “could not
have been discovered during the canvassing despite the
exercise of due diligence.”
The act of the Board of Inspectors in declaring some votes as
stray involves the appreciation of ballots which is a proper
subject for an election protest.
The COMELEC as a general rule need not go beyond the face of
the returns and investigate alleged election irregularities. An
exception to this is
a. precipitate canvassing,
b. terrorism,
c. lack of suf icient notice to the Board, and
d. disregard of manifest irregularities in the face of the
questioned returns
Coupled with intent to defraud or manipulate election
results to justify the summary annulment of the canvass and
the annulment of proclamation
After a proclamation has been made a pre-proclamation case
before the COMELEC is, logically, no longer viable. The rule
admits of exceptions, however, as where:
(a) the board of canvassers was improperly constituted;
(b) quo warranto was not the proper remedy;
(c) what was iled was not really a petition for quo
warranto or an election protest but a petition to annul
a proclamation;
(d) the iling of a quo warranto petition or an election
protest was expressly made without prejudice to the
pre-proclamation controversy or was made ad
cautelam; and,
(e) the proclamation was null and void.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
●
●
●
●
●
●
The iling of an election protest or a petition for quo warranto
precludes the subsequent iling of a pre-proclamation
controversy or amounts to the abandonment of one earlier
iled, thus depriving the COMELEC of the authority to inquire
into and pass upon the title of the protestee or the validity of
his proclamation.
All pre-proclamation cases pending before the Commission
shall be deemed terminated at the beginning of the term of
the Of ice involved and the rulings of the board of canvassers
concerned shall be deemed af irmed, without prejudice to the
iling of a regular election protest by the aggrieved party.
However, proceedings may continue when on the basis of the
evidence thus far presented, the Commission determines that
the petition appears meritorious and accordingly issues an
order for the proceeding to continue or when an appropriate
order had been issued by the Supreme Court in a petition for
certiorari.
The rule is indeed that the proclamation of the winning
candidate makes the pre-proclamation controversy no longer
viable, as the issues raised therein may be more closely
examined and better resolved in an election protest. However,
this is true only where the proclamation is based on a
complete canvass, as we have held in a number of cases.
Where it is claimed that certain returns should have been
omitted because they were manufactured and other returns
cannot be included because they have been irretrievably lost
(thus raising the question of whether a special election should
be called in the precincts affected), the pre-proclamation
controversy should still be continued despite the
proclamation of the supposed winner.
Indeed, the
COMELEC may in such pre-proclamation proceedings
determine if the proclamation should be annulled.
Where only an election protest ex abundante ad cautelam (as a
precautionary measure) is iled, the Court retains jurisdiction
to hear the petition seeking to annul an election.
Doctrine of statistical improbability. Standing alone and
without more, the bare fact that a candidate for public of ice
received zero votes in one or two precincts can not adequately
By RGL
support a inding that the subject election returns are
statistically improbable.
Proclamation
●
●
Where a proclamation is null and void, the proclamation is no
proclamation at all and the proclaimed candidate's assumption
of of ice cannot deprive the COMELEC of the power to make
such declaration of nullity.
The Comelec en banc has the exclusive jurisdiction to annul a
canvas or proclamation. The grounds are:
(1) Based on incomplete returns, or on incorrect or
tampered returns;
(2) Made in an unauthorized meeting of the board of
canvassers either because it lacked a quorum or
because the board did not meet at all.
Election Contests
●
Election Contests - refer to election protests or petitions for
quo warranto.
●
●
●
Election Protest - refers to an election contest relating to the
election and returns of elective of icials, grounded on frauds or
irregularities in the conduct of the elections, the casting and
counting of the ballots and the preparation and canvassing of
returns. The issue is who obtained the plurality of valid
votes cast.
Quo Warranto refers to an election contest relating to the
quali ications of an elective of icial on the ground of
ineligibility or disloyalty to the Republic of the Philippines.
The issue is whether respondent possesses all the
quali ications and none of the disquali ications
prescribed by law.
A valid exercise of the discretion to allow execution pending
appeal requires that it should be based "upon good reasons to
be stated in a special order." The following constitute "good
reasons" and a combination of two or more of them will suf ice
to grant execution pending appeal:
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(1) public interest involved or will of the electorate;
(2) the shortness of the remaining portion of the term of
the contested of ice; and
(3) the length of time that the election contest has been
pending.
●
●
●
The mere iling of the notice of appeal was not enough. It
should be accompanied by the payment of the correct amount
of appeal fee.
The payment of the full amount of the docket fee is an
indispensable step for the perfection of an appeal.
The requirement of an appeal fee is by no means a mere
technicality of law or procedure. It is an essential requirement
●
without which the decision appealed from would become inal
and executory as if no appeal was iled at all.
If an election protest may be dismissed on technical grounds,
then it must be, for a decidedly stronger reason, if it has
become moot due to its abandonment by the Protestant.
(1) Assumption of
Of ice by Operation of
Law
Borja v Comelec
and Capco
There was, the Court ruled, no violation of the three-term limit, for Capco “was not elected to the of ice of the mayor in the irst term but simply found himself thrust into it by
operation of law” when a permanent vacancy occurred in that of ice.
Montebon v
Comelec
The Court emphasized that succession in local government of ice is by operation of law and as such, it is an involuntary severance from of ice. Since the law no less
allowed Montebon to vacate his post as councilor in order to assume of ice as vice- mayor, his occupation of the higher of ice cannot, without more, be deemed as a voluntary
renunciation of his position as councilor.
(2) Recall Election
Adormeo v
Comelec
The Court emphasized that the continuity of Talaga’s mayorship was disrupted by his defeat during the 1998 elections.
Socrates v
Comelec
The Court likewise emphasized in Socrates that “an elective local of icial cannot seek immediate reelection for a fourth term. The prohibited election refers to the next
regular election for the same of ice following the end of the third consecutive term [and, hence], [a]ny subsequent election, like recall election, is no longer covered x x x.”
(3) Conversion of a
Municipality into a City
Latasa v
Comelec
The conversion of a municipality into a city does not constitute an interruption of the incumbent of icial’s continuity of service.
(4) Period of
Preventive Suspension
Aldovino v
Comelec
A preventive suspension cannot simply be a term interruption because the suspended of icial continues to stay in of ice although he is barred from exercising
the functions and prerogatives of the of ice within the suspension period. The best indicator of the suspended of icial’s continuity in of ice is the absence of a
permanent replacement and the lack of the authority to appoint one since no vacancy exists
(5) Election Protest
Lonzanida v
Comelec
Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from of ice as a result of legal processes. In ine, there was an effective
interruption of the continuity of service.
Ong v Alegre
His proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of of ice and his continuous exercise of the functions
thereof from start to inish of the term, should legally be taken as service for a full term in contemplation of the three-term rule.
Rivera III v
Comelec
The fact of being belatedly ousted, i.e., after the expiry of the term, cannot constitute an interruption in Morales’ service of the full term; neither can Morales, as he argued, be
considered merely a “caretaker of the of ice” or a mere “de facto of icer” for purposes of applying the three-term limit rule.
Dizon v Comelec
The assumption by the vice mayor of the of ice of the mayor, no matter how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales
did not hold of ice for the full term of 1 July 2004 to 30 June 2007
Abundo v
Comelec
During the pendency of the election protest, Abundo ceased from exercising power or authority over the good people of Viga, Catanduanes. Consequently, the period
during which Abundo was not serving as mayor should be considered as a rest period or break in his service.
Synthesized from Constitutional and Allied Political Law Notes
By RGL
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What is the Persistent Objector Doctrine (POD)?
PUBLIC INTERNATIONAL LAW
Sources of International Law
Article 38 of the Statute of ICJ
The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice
accepted as law;
c.
the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly quali ied publicists of the
various nations, as subsidiary means for the determination of
rules of law.
How is PIL formed?
(1) Through state practice - PIL may come into existence as a
result of practice of states couple with the belief that it is
practiced because the norm or conduct is binding upon states 2 elements:
1. objective element (general state practice);
2. subjective element (opinio juris sive necessitatis)
(2) Through agreement by the states - PIL may be enacted by
agreement of a group of states. It may be considered a positive
law by the contracting parties - Through conventions or
treaties.
Lotus Doctrine (customary international law and how to relate it to
sovereignty) A state is barred to do an act only when it is so prohibited
under a treaty or customary international law because restriction to
state sovereignty is not presumed.
Relevant State Practice Doctrine. Practice of those states whose
interests are specially affected. In counting state practice, we do not
necessarily include all the states. We only count the so-called relevant
state practice.
Synthesized from Constitutional and Allied Political Law Notes
According to ICJ the important elements to consider in this case are:
1.
2.
3.
The objection by the state objector/dissenter must have been
done before the norm has ripened to customary international
law or at the outset.
The objection must be consistent.
The objection must be categorical, clear and equivocal dissent
must be shown.
What is the value of the POD? Since it is a CIL, all states must comply
because all states are bound by it. Non-compliance may even mean
sanctions to the noncompliant state. However, when the state quali ies
as a persistent objector, it may not be compelled to follow the CIL.
Article 62 of the VCLT, relating to termination of a treaty because of a
fundamental change in circumstance (“rebus sic stantibus”).
Represented a codi ication of existing CIL.
What is espousal of claim? Generic term where a claim of a citizen of a
particular state is elevated to the international level where an individual
will not have legal standing. 2 Elements before a state can exercise this
diplomatic protection:
1.
2.
What is actio popularis? In international law, it refers to the action
taken by a State in the name of the international community even if it is
not directly the victim.
There is no stare decisis on ICJ decisions because Art 59 provides
that decisions of ICJ shall apply only between the parties and only in a
particular case. So even if two cases have practically the same issue, the
ICJ is not bound.
What does ex aequo et bono mean? Ex aequo et bono literally
means a decision in which equity overrides all other rules. The
important framework here is that this ex aequo et bono jurisdiction of
the ICJ presupposes that as between the parties in that dispute, certain
rules, whether primary or subsidiary sources may be applied to the
parties in regard to that dispute but the parties have decided that their
dispute be resolved on the basis of a particular rule on equity as the
court may apply.
It is important to note that there are 2 instances where equity may be
applied:
1.
Prior exhaustion of local remedies (to ensure that all effort has
been done to the resolution of the issue in the domestic level);
Effective nationality link.
There may be instances where direct injury may not be required. Those
instances are where:
(1) The right involved is towards the international community –
erga omnes suit. Had the claim of Barcelona traction
revolved around erga omnes norm then any state would have
legal standing before the ICJ and;
(2) erga omnes inter partes principle—general obligation of the
state towards other states, not the entire international
community. This may happen in obligations embodied in
international conventions where a state violates an obligation
embodied therein which is considered an obligation towards
speci ic states who are parties to the convention.
By RGL
2.
Ex Aequo et Bono—there is the requirement of agreement by
the parties. This presupposes that the parties have agreed to
dispense with any applicable international law but the parties
have submitted themselves to the ex aequo et bono jurisdiction
of the ICJ by permitting the ICJ to resolve the case on the basis
of equity instead of the applicable rules of international law.
Non Liquet—there is no requirement of agreement. This is
when the court observes that there are neither conventional or
customary rules of international law that can be applied to the
case, general principles of equity may be applied. This is part
of the general jurisdiction of the ICJ at the time that the parties
have submitted all issues to the dispute to the court. This is
some sort of “ illing the gaps” between the sources of
international law.
Jus Cogens. This is the particular principle of international law that
prevails over all others. The material source is Article 53 of the VCLT,
making it a limitation to the kind of terms and conditions that states
may stipulate in a treaty. A treaty is void if, at the time of its conclusion,
it con licts with a peremptory norm of general international law.
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Obligations Erga Omnes. Obligations of a state to the international
community. Obligations for which all states have a legal interest in the
ful illment by reason of the importance of their subject matter to the
international community. It is the duty to refrain from doing,
irrespective of any treaty because the obligatory duty of compliance is
understood or being owed to the international community as a whole.
To determine if there exists such a duty towards the international
community and therefore erga omnes norm is to know whether such
duty addresses a jus cogens norm in order to protect, promote and
preserve a jus cogens norm.
Unilateral Declaration of State Doctrine. A unilateral declaration
binds the state internationally when:
1.
2.
3.
4.
5.
6.
7.
8.
Publicly made and manifesting will to be bound;
Made by an authority vested with the power to do so;
Made orally or in writing;
Addressed to the international community or to speci ic state
or entity;
Stated in clear and speci ic terms;
Consistent with jus cogens;
Will not bind third states who do not accept it;
Not validly revoked.
Treaties
Per VCLT, a treaty is an international agreement concluded between
States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments,
and whatever its particular designation. Elements:
1.
2.
3.
4.
An international agreement;
Concluded between States;
In written form;
Governed by International law.
As established in the case of Qatar v. Bahrain, even agreements that are
not in conformity with the de inition of a treaty in the VCLT, may
actually be binding.
Synthesized from Constitutional and Allied Political Law Notes
RECAP
When the state is still a signatory, then the substantive content of the
What is the best source of interpretation of the VCLT? The travaux
treaty will not yet govern the state’s conduct (e.g. Exit Rules do not
apply). When the state is a contracting state, then the state is
duty-bound not to perform acts that will render it incapable to perform
the object and purpose of the treaty. When the state is already a party,
(so the treaty has entered into force already) the provisions of the treaty
will already enter into force in their relations.
preparatoires was carried out by the ILC so its commentary is one of
“Full powers” means a document emanating from the competent
authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty.
Exceptions:
1.
2.
Apparent Authority—Article 7 (1) (b), VCLT – If it appears
from the practice of the States concerned or from other
circumstances that their intention was to consider that person
as representing the State for such purposes and to dispense
with full powers.
Implied Authority—Article 7 (2), VCLT –
a. Heads of State, Heads of Government and Ministers for
Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty;
b. Heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the accrediting
State and the State to which they are accredited;
c. Representatives accredited by States to an
international conference or to an international
organization or one of its organs, for the purpose of
adopting the text of a treaty in that conference,
organization or organ.
For these exceptions, full powers is still needed in order to represent the
state for all other stages other than adoption of the text of the treaty.
the best sources of interpretation of the VCLT.
Reservations. A unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that
State. A state may be willing to accept most of the provisions of a treaty,
but it may, for various reasons, object to other provisions of the treaty.
The effect of a reservation depends on whether it is accepted or rejected
by the other states concerned.
When is reservation not allowed? Article 19, VCLT – A state may,
when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
1.
2.
3.
The reservation is prohibited by the treaty;
The treaty provides that only speci ied reservations, which do
not include the reservation in question, may be made;
The reservation is incompatible with the object and purpose of
the treaty.
Development of a Treaty (How a Treaty is formed)
1.
2.
3.
4.
5.
6.
7.
Proposal to draft a Treaty;
Negotiation and drafting of the terms;
Adoption and Authentication of the text of the Treaty by the
negotiating states;
Signature/ expression of consent to be bound by the Treaty by
the individual states;
Rati ication of the treaty by the individual states;
Exchange of Instruments of Rati ication and Entry into force of
the Treaty;
Accession to the Treaty by states wishing to join after its entry
into force, if any.
Ways by which a state party to a treaty may no longer be bound by
the treaty:
By RGL
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1.
2.
3.
RECAP
Withdrawal or renunciation;
Invalidity of treaty – this presupposes that the treaty is
defective;
Termination of treaty – treaty is valid but may be terminated
based on valid grounds.
a.
4.
5.
Grounds for Invalidity of Treaties
1.
2.
3.
4.
5.
6.
7.
8.
Provisions of municipal law regarding competence to conclude
treaties;
Speci ic restrictions on authority to express the consent of a
state;
Error;
Fraud;
Corruption of a representative of a State;
Coercion of a representative of a State;
Coercion of a state by the threat or use of force;
Treaties con licting with jus cogens norm.
Requisites of Error:
1.
2.
3.
4.
Error is about a fact or situation which was assumed to exist at
the time of conclusion;
That fact or situation forms an essential basis of the consent to
be bound by the treaty;
Subject matter of the temple case the state invoking the error
must not have contributed to the error. (Doctrine of Clean
Hands);
The state had known of the error or would have known of the
error.
Grounds for
Suspension:
1.
2.
3.
Termination,
Denunciation,
Withdrawal,
or
Application of the treaty and/or Application of the VCLT (Art.
42);
Consent of all parties e.g Desuetude (Art. 54);
Discharge through Material Breach (Art. 60). A material breach
of a treaty consists in:
Synthesized from Constitutional and Allied Political Law Notes
6.
7.
A repudiation of the treaty not sanctioned by the
present Convention, or
b. The violation of a provision essential to the
accomplishment of the object or purpose of the treaty.
Impossibility of Performance;
Rebus Sic Stantibus (Art. 62); Elements of Fundamental
Change of Circumstances;
a. The change of circumstances must have been of a
“fundamental” character When can change be
considered fundamental?
i.
It should radically transform the extent of the
obligation that will be performed;
ii.
The party, due to the change in circumstance,
would now be obliged to perform something
which is different from that which was
originally agreed upon;
iii.
By radically transforming – it means that the
change must have increased the burden of the
obligation to be executed to the extent of
rendering the performance of something
essentially different.
b. The change must have resulted in a radical
transformation of the extent of the obligations still to
be performed. The change must have increased the
burden of the obligations to be executed to the extent
of rendering the performance something essentially
different from that originally undertaken.
c. The circumstances that changed must refer to those
that determined the parties to accept the treaty.
d. The change in circumstance must have been
unforeseen by the parties.
e. The existence of the circumstances at the time of the
treaty’s conclusion must have constituted an essential
basis of the consent of the parties to be bound
Emergence of new Jus Cogens (Art. 64);
Outbreak of war.
By RGL
States and Government
Doctrine of State Continuity. State continues despite changes of
government, people, and territory.
Doctrine of State Succession. Opposite of Continuity. When one state
succeeds another, there is now a change of sovereignty. There is already
a change of legal personality of a state, i.e. when a territory is ceded to
another state. How the state “governs” internally may be relevant in
recognition of government issues Because some states may not
recognize governments established by force. Some states may also
recognize a government based on its own criteria. Two theories of
recognition:
1.
2.
Declarative Theory—objective evaluation of statehood. If the
four elements are complete, there exists a State. Recognition is
immaterial. This is acknowledged by the Montevideo
Convention.
Constitutive Theory – Recognition of state is an additional
element of statehood. Not a well-accepted view.
Elements of “State”
1.
2.
3.
4.
Permanent population;
De ined territory;
Government;
Capacity to enter into relations with other states (Art. 1, 1933
Montevideo Convention on the Rights and Duties of States).
To effectively comply with the territory requisite, there must be:
1.
2.
Suf icient consistency in the exercise of sovereignty over the
territory and that the;
Authority must be exercised effectively.
The study of statehood in PIL, independence means not only free from
external pressure but being able to run the government on its own, not
dependent on the aid or assistance of outside forces.
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Principle of association. Under the principle of association, you
have a principal and an associate. The associates are former colonies,
wanting to have independence but cannot yet effectively or competently
enter into foreign relations. Thus, they have to enter into an association
treaty with other powerful states and the latter will exercise the foreign
relations with respect to that territory.
Protectorates. Those still unable to exercise its capacity to enter into
relations with other states and so it must rely irst on some powerful
states used to be the colonizing states to exercise this power for them
until the time that protectorate will now be able to govern itself more
effectively.
Principle of Uti Possidetis Juris
A general rule of international law stating that the boundaries of
colonial territories ought to become international boundaries when
those territories attained independence unless altered by agreement.
The boundaries of colonial territories must be respected by the
international community.
Right to Self-Determination. A customary international law, jus
cogens and an erga omnes obligation. All peoples have the right to
self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development”.
Right to self-determination consists of:
1.
2.
The right to determine the political status and is applicable to
colonial territories;
Freedom to pursue economic, social and cultural development.
Secession. By secession, we mean of a situation where a particular
territory is withdrawn from a mother state. Whether or not there is
secession, it will be determined by international law. The manner in
which a state is established is important in international law.
What is the difference between unilateral secession and unilateral
declaration of independence?
Synthesized from Constitutional and Allied Political Law Notes
RECAP
(1) Unilateral Declaration of independence—declaring the
territory as now separate from the mother state, and declaring
that the territory itself has established a new state
(independence is declared against the will of the mother state);
(2) Unilateral secession—when a portion of a territory separates
itself from an original state.
In summary, international law does not regulate unilateral declaration of
independence but it does recognize the so-called remedial right
theory as a possible valid reason for secession.
“Remedial Right Only Theories” assert that a group has a general right
to secede if and only if it has suffered certain injustices for which
secession is the appropriate remedy of last resort.
Internal Self-determination. According to the Supreme Court of
Canada, the right to self determination must be exercised in the context
or within the framework of the sovereign state and consistent with
territorial integrity of those states. In other words, when you say right to
self-determination, the group of people claiming to be different from the
majority would be able to pursue political, economic, social and
cultural development without a need of being separated from the State.
External Self-determination. It is external self-determination if it
involves unilateral secession from the state. The threshold to invoke
such is re lective of lex ferenda norm on the matter. According to the
Supreme Court of Canada, the international law right to
self-determination only generates at best a right to external
self-determination (which is actually secession) in cases of:
(1) Former Colonies;
(2) Where a people is oppressed (“a people”—requirement in
international law is “identi iable group of people”; e.g. under
foreign military occupation);
(3) Where a de inable group is denied meaningful access to
government to pursue their political, economic, social and
cultural development.
These situations are the bases of the Remedial Right Theory.
By RGL
Recognition. A method of accepting certain factual situations and
endowing them with legal signi icance. Act or process of recognizing a
status, fact or a condition and giving it legal effects or consequences.
When we talk about recognition, it has to be contextualized. Whether we
are talking about:
(1) Recognition of states. (constitutive v declaratory);
(2) Recognition of governments; or
(3) Recognition of belligerency.
Theories on the legal effects of Recognition of State in
International Law
Recognition of state is suggested to be an additional requisite for
statehood along with Suf icient Degree of Civilization.
(1) Constitutive Theory (recognition is state-creating);
(2) Declaratory Theory (recognition is state-af irming).
Under International law, which theory is well-accepted? Article 3 of
Montevideo Convention is an af irmation of the international
community’s adherence to the “Declaratory Theory” which says: “The
political existence of the state is independent of recognition by the
other states. Even before recognition, the state has the right to defend
its integrity and independence.”
The fact of the states’ signing of the Montevideo Convention af irms
their belief in the declaratory theory as the more preferred theory on the
matter.
Co-optation. While recognition of a state is not indispensable to
statehood, particularly with respect to jus cogens and erga omnes
norms, the newly established state can only enjoy such other rights and
privileges in the international sphere through “co-optation.”
Effects of Recognition on the Recognizing State
These effects of recognition are due to the fact that the recognizing state
consider the recognized state as having international legal
personality.
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(1) Full diplomatic relations, except in the case of de facto
recognition (it may be that the state recognizes another state
but is not willing to enter into relations with that state which
may be a case of de facto recognition)
(2) Right to sue in courts of recognizing state;
(3) Entitlement to property within recognizing state;
(4) Recognition being retroactive, validates past acts of recognized
state or government (i.e. act of state and sovereign immunity
covers past, present and future acts)
RECAP
the armed con lict. An armed group may be classi ied as either a
belligerent, insurgent, or a terrorist group. When we say belligerent, we
are referring to any party of an armed con lict.
Elements of "belligerency" for purposes of recognition
Recognition has a retroactive effect, which means it validates past acts
of recognized state or government.
(1) Occupation of substantial portion of territory,
(2) Organized civil government supported by the majority of the
inhabitants in the territory,
(3) Con lict between legitimate government and the belligerents is
serious and outcome is uncertain,
(4) Belligerents are willing and able to observe laws of war and
other international obligations.
The Act of State Doctrine. Every sovereign state is bound to respect
Doctrine of State Continuity. The moment a State is established as
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 than within its own territory. This is corollary to the principle
of state immunity. A state cannot pass judgment on the validity of acts
of another state.
an international person; the State continues to be the same corporate
person whatever changes may take place in its internal organization.
This continuity of the legal personality of the State may withstand even
the most radical transformations in its constitutions. Thus, temporary
absence of governmental control (e.g. civil war) will not change
statehood. It is still the same State that continues to exist and so despite
changes in government, treaties shall continue and in fact a temporary
absence of governmental control will not affect the status of the State as
such.
Recognition of Government. Recognition is a political question
and largely involves the discretion of the Executive. It is not mandatory.
It involves the recognition of the government of the state as a
government that has effective control over the territory.
Estrada Doctrine. If a government was established through political
Effects of State Succession
upheaval, a state may not issue a declaration giving recognition to such
government, but may merely accept whatever government is in effective
control without raising the issue on recognition. Dealing or not
dealing with the government is not judgment on the legitimacy of
the said government. This is well-accepted as this is in accordance
with the Act of State Doctrine. If there had been a political upheaval as a
way of changing the government, dealing or not dealing with the
government is not a judgment on the legitimacy of the government. It is
just an admission that that government is in effective control but it is
not saying it is exercising its legitimacy.
(1) Transfer of allegiance of inhabitants (that’s an expected
consequence);
(2) Political laws are automatically abrogated. Non- political laws
are deemed continued unless expressly repealed or
inconsistent with domestic laws of new sovereign;
(3) Public properties are acquired. Torts liability are not acquired –
the new sovereign has option to assume liability;
(4) Treaties of predecessor state are not binding on new sovereign
except those dealing with local rights and affecting territory
(e.g. servitudes and boundaries)
Recognition of Belligerency. The idea of belligerency denotes
Government Succession. Government succession could take place
armed con lict and the so-called belligerents are considered parties to
either through:
Synthesized from Constitutional and Allied Political Law Notes
By RGL
(1) Revolution (non- peaceful means or not in accordance with the
constitution or extra-constitutional);
(2) Changing the Constitution by adopting a new system (peaceful
means; intra-constitutional)
So when we have elections, will that involve a change in government?
No, it is only a change in administration.
Effects of Government Succession
(1) All rights of predecessor government are inherited by the new
government;
(2) If change is by peaceful means, new government inherits all
obligations;
(3) If change is by violent means, new government has the option
to reject political and personal obligations, but not those
arising out of regular administration of government.
Jurisdiction
Kinds of jurisdiction:
(1) Jurisdiction to prescribe law
- The authority of a state to make its policy applicable to
persons or activities regardless of boundaries (whether the
act is committed outside—IL has not limited the scope of
this jurisdiction)
- In relation to the Lotus case where the sovereignty of a
state is never presumed, while there is no CIL or
conventional IL prohibiting the exercise of such
jurisdiction then exercise of this jurisdiction is allowed.
- Art. 14 of the Civil Code Penal laws and those of public
security and safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to the principles
of public international law and to treaty stipulations.
- In other words, our laws shall be made applicable to all
persons who live and sojourn in the Philippine territory.
(2) Jurisdiction to adjudicate - The authority of the state to
subject particular persons or things to its courts regardless of
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boundaries (whether national of another state or act committed
outside)
RECAP
Along with jurisdiction to prescribe laws, jurisdiction to adjudicate,
other states will generally not complain. However, the issue may come
with jurisdiction to enforce.
In other words, jurisdiction may be applied or exercised territorially or
extra-territorially depending on the context.
(2) Passive Nationality - A state may prescribe law for situations
where its nationals are victims of the conduct being regulated.
This has limited scope, usually applicable to terrorist attacks.
This pertains to the nationality of the victim. The link is the
nationality of the victim and the court.
Territorial Principle (Subjective v Objective). State has jurisdiction
(3) Jurisdiction to enforce
- Jurisdiction of the executive to implement certain processes
- Concerned with the authority of a state to use the resources
of government to induce or compel compliance with its law.
This includes authority to arrest.
- Like implementing warrants of arrest abroad. It can be done
with the permission of the state where the subject of the
warrant may be found. If it is without consent, that is
another story.
- This may be problematic when done outside the borders of
the state because it may be regarded as an act of
intervention in the sovereignty of the other state when done
without its consent (in this form of jurisdiction, there is a
compulsion with the law of one state in the jurisdiction of
the other)
- Mere physical presence or any manifestation of one state’s
forces in the other state’s jurisdiction to effect any
enforcement authority without its consent is considered as
an intervention or intrusion (see doctrine of
Monopolization of Power in the Treaty of Westphalia where
there should only be one sovereign power existing in the
physical sphere of the territory of the state)
- Even the position of the ICJ may encounter problems with
regard to enforcement because of sovereignty of states. That
is why enforcement of international law would generally
rely on cooperation between states.
- That is why we have an international police INTERPOL for
example that may be requested to implement processes that
have been allowed by other states. But if the other states
would not, this would amount to another form of rendition
if we are to secure or obtain jurisdiction over the person of
another and if we want to bring the person to the
jurisdiction of the court then it can be done in various ways.
In cases where two nationalities are in con lict with each other, the ICJ
over property, persons, acts, or events occurring within its territory.
This deals with the connection of the crime and the territory.
“Generality principle”, it refers to the reach of the application of our
law. Whereas “Territoriality'' speaks of whether jurisdiction is made
applicable to a person, property, act or event occurring in that territory.
It has nothing to do with the reach. It is simply on the issue that since
the act is in the territory of that state, then jurisdiction of that state can
be invoked.
subscribes to the real and effective nationality of the individual.
Among other factors to be considered are his
(1) Subjective Territorial Principle (where the crime was
commenced)
Effective nationality theory. Nationality as a basis for exercising
Synthesized from Constitutional and Allied Political Law Notes
-
Hence, having jurisdiction is one and enforcement of the
decision of the court is another.
Jurisdiction to prosecute or punish crimes commenced within
their territory but completed or consummated in the territory
of another state.
(2) Objective Territorial Principle (where the crime was
consummated)
Certain states apply their territorial jurisdiction to offenses or
acts commenced in another state, but:
a.
b.
Consummated or completed within their territory, or
Producing gravely harmful consequences to the social
or economic order inside their territory.
Nationality Principle (Active vs. Passive). The link of course is
jurisdiction and the nationality of the person (either offender or victim).
(1) Active Nationality - States may regulate the conduct of their
nationals wherever they are in the world. This pertains to the
nationality of the actor. The link is the nationality of the
offender and the court.
By RGL
(1)
(2)
(3)
(4)
habitual residence,
family ties,
participation in public life and
attachment shown by him to his country and inculcated in his
children.
jurisdiction must be real and effective to give a right to a state who has
conferred it. Right to diplomatic protection and protection by means of
international judicial proceedings only arises when proper nationality
link exists between the individual concerned and the state seeking to
exercise such rights.
Protective Principle (vs. diplomatic protection). A state can
legislate crimes that it considers to be a threat to its security, integrity
or economic interests regardless of the place of the commission of the
crime. Passive nationality and protective principle have narrow
applications.
Universality Principle. It is for violation of erga-omnes norms.
Rendition. To deliver an individual from one state to another or
surrender if applicable to persons. Three methods of rendition in
international law:
(1) Extradition;
(2) Deportation;
(3) Abduction of foreign nationals aboard.
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Deportation. A unilateral act of the state because it is not dependent
upon the request of a state not dependent on a treaty. The destination of
the deportee is irrelevant because the act of the deportation is simply
expelled from the territory of a particular state.
Extradition. The requesting state expects under pacta sunt servanda
to receive the extradited individual. There may be a request. Conditions:
(1) It must be pursuant to a treaty (bilateral act; no CIL to extradite;
always treaty-based)
(2) The person to be extradited had been charged or convicted of
extraditable offense o In most cases, the threshold is
indictment or charge of an extraditable offense. not usually at
investigation level. Although there is no prohibition for states
to enable themselves to extradite even at investigation level.
(3) Extraditable offense is either
(a) listed and/or
(b) covered by
“Double or Dual Criminality
Principle/Clause.”
Basic Principles in Extradition
(1) The obligation to extradite is treaty-based. No treaty, no
obligation to extradite. But if voluntary extradition, then there
is no problem. If there is no treaty, then no compulsion;
(2) Pacta sunt servanda applies. This means that if there is a
treaty and all of the conditions for the application to the
extradition treaty are present, there is a person charged or
convicted and the offense is extraditable, yet the other party
refuses to extradite, then such State violates the principle of
Pacta Sunt Servanda. The refusal is not just invalid under
International Law but can also constitute an internationally
wrongful act (IWA).
(3) Dual purposes:
a. Prosecution;
b. Execution.
(4) Could not cover “political offenses” (Attentat Clause).
This is CIL. Because there is the right to asylum which is also
CIL. Political offenses are closely linked with the exercise of the
Synthesized from Constitutional and Allied Political Law Notes
RECAP
freedom of expression (e.g. freedom of political belief)
therefore the international covenant of civil and political rights,
for example, may be applicable in this situation. If one is
granted asylum, any extradition treaty will not apply.
(5) “Rule of Specialty” must be followed. In order to comply and
to make sure that due process and fairness are observed, even
for criminals or accused individuals, there is a Rule of
Specialty. Under this rule, the requesting state is not permitted
to prosecute the extradited individual for offenses that are not
covered by the request.
(6) Ex post facto law prohibition does not apply.
Abduction. Abduction of criminals in the territory of another state is
understood as “intervention” and therefore violates customary law and
the UN charter.
Male captus bene dentus. It is now a general principle of law. This
means “wrongfully captured, validly detained.” Male Captus Bene
Detentus is justi iable for two reasons:
(1) Because fundamental individual rights such as the right to due
process is still recognized.
(2) Because if you question the jurisdiction of the court, you
should question the jurisdiction on the basis of a judicial
function involved.
Ker Doctrine. The illegality of the arrest will not necessarily affect
the jurisdiction of the court (jurisdiction of the court is conferred upon
the arrest).
Immunity from Jurisdiction
Part of the concept of sovereignty is the understanding that each state is
co-equal. Par en parem non habet imperium. Because states are coequal, no state can exercise jurisdiction over the other in the territory of
that state. This is where immunity from jurisdiction comes in.
Immunity is one of the restrictions of the state’s exercise of jurisdiction.
(1) Immunity from suit;
(2) Immunity of head of state;
By RGL
(3)
(4)
(5)
(6)
Immunity of former head of state;
Immunity of foreign ministers;
Immunity of diplomats and consuls;
Immunity of international organizations.
In International Law, it is not usually the case that the state is deemed to
have descended into the level of a private individual if it enters into a
contract. We apply the doctrine of quali ied immunity. Under this
doctrine, we distinguish between jure imperii and jure gestionis. This
is CIL. The doctrine is CIL and the act of distinguishing or the Doctrine
of Quali ied Immunity is also CIL. What is not CIL are the methods of
determining or characterizing the function as public or private.
Incumbency of head of state Immunity ratione personae Immunity of
the head of state as a person.
When his term ends Immunity ratione materiae Immunity of the
head of state not as a person. Now we look at the function. If function is
of icial – immunity continues. If not of icial – no more immunity.
The Act of State Doctrine. Courts generally will not pass judgment
on the validity of the public and of icial acts of a foreign government
within its own territory.
Inviolability of the Premises of Foreign Diplomatic Mission
(1) Inviolability of the persons of the members of the diplomatic
mission;
(2) Inviolability of the premises of embassies and consulates.
Functional Immunity of Consular Of icials. As for consuls however,
although they enjoy more or less the same immunities and privileges as
diplomats, the Convention on Consular Immunities limits their
immunity from criminal and civil jurisdiction extends to of icial
functions only. The reason for that is he is not actually exercising a
governmental function.
State Responsibility
Internationally Wrongful Act
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Political Law Review
Draft Article 2 of the ILC:
(1) Action or omission attributable to the State under International
Law;
(2) Constitutes a breach of international obligation of the State
(what constitutes a breach is not de ined in the ARSIWA; it is in
the primary rules like CIL or treaties; ARSIWA does not also
provide how the obligation may be breached whether by
conduct or result)
Add: The “nexus” requirement. To hold a state responsible, two
elements are required:
(1) Internationally wrongful act;
(2) It be attributed to the state.
There must be a nexus or connection of that act and the noncompliance
or a breach of an international obligation.
Two Theories on State Responsibility
RECAP
state; but Calvo Clause says that a foreigner in the presence of
the foreign state usually for business will provide in the
contract to waive its right to diplomatic protection—in effect
the foreigner should avail of local remedies before diplomatic
protection);
4. Unreasonable delay and improper behavior of injured alien;
5. Consent of injured state;
6. Lawful exercise of self-defense under UN Charter an in
conformity with IHRL and IHL;
7. Lawful countermeasure (elements of a valid countermeasure:
prior internationally wrongful act, invoking state had called
upon the other to discontinue the wrongful act or make
reparation, and proportionality of the measure; purpose of
countermeasure: compel breaching state to comply with the
terms of the treaty);
8. Force majeure (irresistible force or of an unforeseen event,
beyond the control of a State, making the performance of
obligation materially impossible);
9. Distress (Article 24);
10. Necessity (Article 25).
(1) Strict liability theory – objective or risk theory; liability
attaches irrespective of bad or good faith. Here, a mere
violation of international law whether it results to damage or
not engages state responsibility; obligation of results;
(2) Fault liability theory – subjective theory; liability attaches
only upon proof of dolo or fault (negligence); obligation of
conduct (how the act was done; due diligence).
Doctrine of Imputability. A State is liable only for its own acts and
omissions, and in this context, the State is identi ied with its
governmental organs and apparatus, not with the population.
Circumstances precluding wrongfulness
1.
2.
3.
Non-compliance with rules concerning nationality of claims;
Failure to exhaust local remedies;
Waiver by the state (vs. “Calvo Clause”—offshoot of Calvo
Doctrine which says aliens in a foreign state should not be
given preferential treatment than the citizens of that foreign
Synthesized from Constitutional and Allied Political Law Notes
By RGL
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